Denied March 14, 1916.
On Petition eor Rehearing.
(155 Pac. 1197.)
Mr. William M. Cooper and Mr. Ralph R. Duniway, for the petition.
Mr. Robert C. Wright and Messrs. Beach, Simon é Nelson, contra.
Department 2.
Mr. Justice Burnettdelivered the opinion of the court.
It will be remembered that this is an action by the plaintiff city against a paving contractor and his surety to recover damages for an alleged breach of his agreement, which is thus assigned in the complaint:
“That said defendant, Charles Masters, entered upon the performance of said contract with plaintiff, *541but said defendants, and each of them, utterly failed and neglected to complete said contract in any manner by September 15, 1909, or otherwise or at all, and said contract remains uncompleted to this day, and it will take a good many thousands of dollars to complete this contract.”
On the trial in the Circuit Court the plaintiff sought to enforce as its measure of damages a diurnal forfeiture of $10, and tried its case on that theory. "We find in the petition for rehearing that:
“Upon the trial, plaintiff made no attempt to prove as its measure of damages the difference between the contract price and the greater cost of completing the contracts, because the lower court ruled, in accordance with the contention of plaintiff, that plaintiff was entitled to recover the $10 per day as liquidated damages.”
Generally, and on special verdicts submitted on the motion of the plaintiff, the jury found in favor of the defendants. The trial court set this verdict aside on the plaintiff’s application, and the defendants appealed. We held that the stipulated sum per diem was not the measure of damages to be applied to an abandonment of the contract, reinstated the verdict, and directed judgment in accordance therewith.
The essence of the petition for rehearing’ is that this court should not have terminated the action, but should have remanded the cause to the court below for a new trial so as to give the plaintiff an opportunity to prove general damages. On the faith of Sunnyside Land Co. v. Willamette Bridge Ry. Co., 20 Or. 544 (26 Pac. 835), Hoskins v. Scott, 52 Or. 271 (96 Pac. 1112), and State v. Portland Gen. Elec. Co., 52 Or. 502 (95 Pac. 722, 98 Pac. 160), counsel for the plaintiff argues that, the complaint having alleged the making of the contract *542and a breach thereof, enough is stated to compel the allowance of nominal damages at all events.
5-7. It is true, as a general principle, that, if an agreement is stated and a breach thereof is alleged, in the absence of anything else that measure of indemnity will be awarded. We note that all the precedents cited by .the plaintiff on the petition for rehearing are those where a contractor has undertaken to recover upon an agreement without having shown complete performance. The instant case is not like those. The city essays to recover damages. It not only alleges the making of the contract, but it further states that the contractor entered upon the performance thereof. In other words, by inference at least it advances the proposition that the defendants had done something of the work beneficial to the plaintiff which would amount to a mitigation of damages. This construction is justified by the principle that after verdict the pleading will be construed most strongly against the defeated pleader. The complaint in that respect is entirely consistent with the hypothesis that, the contractor had completed his undertaking to such an extent that the city would derive profit therefrom although full performance of his stipulation was not accomplished. In such an action as this, it would be competent for the defendants to show such benefit to the city, and so lessen the claim for general damages and effectually overcome mere nominal damages which would arise from a technical breach of the contract. We quote from 5 Words & Phrases, page 4816:
“Nominal damages means those damages that exist only in name and not in amount: Brennan v. Berlin Iron Bridge Co., 72 Conn. 386 (44 Atl. 727, 728). Nominal damages means no damages at all. In the quaint language of an old writer, they are a mere peg to hang costs on. They are such as are to be awarded *543in a case where there has been a breach of a contract, and no actual damages whatever have been or can be shown: Stanton v. New York & E. R. Co., 59 Conn. 272 (22 Atl. 300, 303, 21 Am. St. Rep. 110).”
8. The complaint is not predicated upon the allowance of nominal damages. The admission therein that the defendant contractor entered upon the performance of his work excludes the idea of such trivial compensation. Moreover, as stated in Beattie v. New York, etc. R. Co., 84 Conn. 555 (80 Atl. 709), “as a general rule, a new trial will not be granted to enable a party to recover nominal damages.” The indefinite expression in the complaint that “it would take a good many thousands of dollars to complete this contract” is in harmony with the concept that the contract could be completed for much less than the contract price, and, this being true, the plaintiff would not suffer damage by its noncompletion. Nominal damages having been eliminated by the admission of- part performance of the work, it was incumbent upon the pleader to go farther and plead facts from which the court could derive the conclusion that the plaintiff would suffer loss notwithstanding the labor and materials furnished by the contractor.
9. Passing this, however, and conceding for the sake of argument that the complaint does state a cause of action for general damages on a partly completed contract, the plaintiff confessedly made no effort to prove that branch of its case. If the court was wrong in not considering that phase of the contention, it was error invited by the plaintiff itself, and avails it nothing in this court: Fleishman v. Meyer, 46 Or. 267 (80 Pac. 209); Gresham v. Harcourt, 93 Tex. 149 (53 S. W. 1019); American Const. Co. v. Caswell (Tex. Civ. App.), 141 S. W. 1013.
*54410. The case was avowedly tried on the assumption that the per diem compensation was the only proper measure of damages, and,, this postulate having been adopted by the plaintiff, it is the only one which this court will consider. The complainant, having had its day in -court on the feature of general damages and having refused to avail itself of its opportunity, cannot now mend its hold and reopen the litigation: Wyatt v. Henderson, 31 Or. 48 (48 Pac. 790); Anderson v. Portland Flouring Mills Co., 37 Or. 483 (60 Pac. 839, 82 Am. St. Rep. 771, 50 L. R. A. 235); Mattis v. Hosmer, 37 Or. 523 (62 Pac. 17, 632); Larch Mountain Inv. Co. v. Garbade, 41 Or. 123 (68 Pac. 6); State v. Davis, 42 Or. 34 (71 Pac. 68, 72 Pac. 317); Durning v. Walz, 42 Or. 109 (71 Pac. 662); Ward v. Queen City Ins. Co., 69 Or. 347 (138 Pac. 1067).
Much is said in the petition for rehearing about the effect the ruling upon this petition may have upon the city’s effort to collect from its taxpayers the funds to pay for the improvement. The questions suggested are coram non judice. All we have decided is that the per diem forfeiture was not a correct measure of damages in the case stated by the complaint, and that having presented that question alone to the Circuit Court, where the plaintiff had the opportunity to litigate the question of general damages, but did not, the Circuit Court was in error in setting aside a verdict of the jurors on the issue committed to them.
The petition for rehearing is denied.
Reversed and Remanded "With: Directions.
Rehearing Denied.
Mr. Justice Bean, Mr. Justice Harris and Mr. Justice Benson concur.