I dissent, except as to the affirmance of the judgment on the contract cause of action as to which I concur.
In addition I dissent from the order of publication and I dissent from the majority’s refusal to dismiss the appeal.1
The majority’s only apparent reason for refusing to dismiss the appeal and to thereafter publish the opinion is to discuss whether Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752 [206 Cal.Rptr. 354, 686 P.2d 1158], should be expanded.
Since, however, there is no need to reach this issue, there is no reason to publish the opinion and there is no reason not to dismiss the appeal pursuant to the stipulation of the parties.2
Substantial Evidence Supports the Bad Faith Denial of the Contract
The appellate court must examine the record to determine whether the evidence supports the jury’s determination finding the bad faith denial of the contract.
There is evidence that Fallaw (Southwest’s representative) repudiated the existence of the contract by denying DuBarry’s authority to present the September 3d terms, even though Russell had conversations with Fallaw about the offer. After Castle & Cooke accepted the offer, Fallaw accused DuBarry of pushing Southwest “into a position with Castle and Cooke that we are not now nor never were willing to accept.” (Italics added.) Fallaw flatly denied DuBarry’s authority to make the September 3d offer and asserted that Russell’s telex to DuBarry on September 3, 1981, required the establishment of a contract in 60 days. There is evidence that Fallaw had *580been apprised of the offer and its renewal by both DuBarry and Russell. DuBarry felt that Fallaw was discrediting his integrity, and “my integrity is the way I make my living in this business.” After an agreement was struck with Castle & Cooke, Fallaw denied there was an agreement, until finally Castle & Cooke declared its acceptance null and void due to the changes made by Fallaw to the original proposal and the delay in preparing the documents. Substantial evidence even though contradicted, supports the jury’s findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362].)
This was not the only evidence before the jury. In addition defendant’s verified answer to the original complaint expressly denied the existence of the contract.
There was certainly substantial evidence before the jury to support its verdict.
The majority opinion brushes aside the evidence establishing the cause of action. The fact that the majority would have ruled for the defendant if they were the fact finder, does not justify the majority in rejecting the jury’s resolutions of the disputed facts. Characterizing plaintiff’s evidence as “only an argumentative conclusion” (maj. opn., ante, p. 574) does not invalidate the jury’s verdict to the contrary.
The majority consistently disregard plaintiff’s evidence presented to the jury by characterizing it as contentions, disputed, or allegations. These characterizations are not a substitute for viewing the record in accordance with settled principles of appellate review.
It is clear that the tort is not committed where the denial of the existence of the contract occurs only in the defendant’s answer to a complaint. (Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603 [267 Cal.Rptr. 189].)
However, the Lynch case does not apply to the case before us.
Defendant’s denial of the existence of the contract in the answer3 was not the only evidence of the denial as is amply demonstrated above.
The majority say there is no evidence of the bad faith denial of the contract at the outset and repeat it throughout their opinion, without *581analyzing the evidence before the jury. They point out conflicts in the evidence to discredit plaintiff’s case ignoring the obligation to resolve conflicts in favor of the verdict. Every contested case has conflicts or it would not be tried in the first place.
The majority’s view of the case is: “The trial court. . . effectively gave DuBarry a hunting license to capitalize on every prelitigation action which Southwest may have taken (1) to limit and control the negotiating activities of DuBarry and (2) to avoid exposure to the risk of an unprofitable long-term contract with Castle & Cooke.” (Maj. opn., ante, p. 578.)
This is an amazing summary of the case in light of the fact that even the majority uphold damages in the amount of $1,502,604 because Southwest breached the contract.
The evidence establishes and the majority recognize that Southwest took prelitigation action to relieve itself from its obligations under the contract. Denying the existence of the contract was its primary “pre-litigation action.”
Substantial Evidence of Compensatory Damages
Although the majority find there was no evidence to support the bad faith cause of action, they nevertheless discuss the damage award for this cause of action. This is pure dicta.
The parties agree that a plaintiff is not entitled to double recovery of the same damages. (See, e.g., Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 760, fn. 13 [250 Cal.Rptr. 195].) Southwest contends that the jury award of $1,502,604 for damages for breach of contract and $1,502,604 for damages for bad faith denial of contract constitutes impermissible double recovery. Southwest also contends the award was speculative, asserting that the only evidence DuBarry presented on the amount of linerboard contracted for by Castle & Cooke was a statement that “[t]he first year’s quantity should be approximately 20,000 [short] Tons with following years to be accelerated as C&C’s volumes increase.”
Substantial evidence supports the award as announced by the jury. The suggestion that a jury award of the identical amount on two different causes of action constituted double recovery rests upon speculation and is not supported by the record, even if the damages on both causes arose from lost *582commissions.4 If the verdict appeared to be improper, or even simply ambiguous, Southwest waived any challenge on that basis by failure to request timely clarification. (See Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 2 [72 Cal.Rptr. 217, 445 P.2d 881].)
Evidence of the contract terms, including quantities and Castle & Cooke’s purchases during the five-year period, supports the jury’s award.
The majority suggest that an explicit instruction that duplicate damages could not be awarded should have been given. If defendant wanted such an instruction, defendant should have requested it.
If defendant perceived any problem with the verdicts, defendant should have raised them before the jury was discharged. Defendant cannot sit idly by until after a time when the alleged error can be explored, and then complain for the first time.
The majority suggest that defendant raised the issue in a motion for a new trial. This is obviously too late.
Punitive Damages
The majority simply decline to discuss the amount of the punitive damages on the grounds that no tort cause of action was established by plaintiff. This conclusion did not apply to the matter of compensatory damages for the tort action. The majority state: “We note that this [compensatory damage] award would also fall for the reasons discussed below where we conclude that there was not substantial evidence that the alleged tort had even been committed.” (Maj. opn., ante, p. 565, fn. 18.)
Conclusion
I respectfully dissent, except as to the affirmance of the judgment on the contract cause of action as to which I concur.
*583In addition I dissent from the majority’s refusal to dismiss the appeal pursuant to the parties’ stipulation. I also dissent from the order of publication.
The parties have settled this case and stipulated to dismiss the appeal.
The majority discuss several other issues which are pure dicta.
They have concluded that there is no factual basis for a bad faith denial of the contract and yet they extensively discuss whether there were duplicate damages awarded for the breach of contract cause of action and the bad faith denial of a contract cause of action. See also their gratuitous comments concerning the bad faith and damage instructions.
We do not need a law review article or, for that matter, a defendant’s primer, on a contrived issue. This is especially so, where the resolution of the issue has significant consequences. (See Howard v. Drapkin (1990) 222 Cal.App.3d 843 [271 Cal.Rptr. 893].)
The majority will not even concede that the answer denied the existence of the contract, although the defendant does not make this claim. They will only assume that defendant’s answer “actually constitutes a denial of contract existence.” (Maj. opn., ante, p. 573, fn. 25.)
In response to a jury inquiry, the trial court stated that damages for bad faith denial included loss of commission. This does not require the conclusion asserted by Southwest that “the jury’s award must represent an award of the same lost commissions twice —an improper double recovery.” (Italics added.) Nor is there merit to Southwest’s contention that a speculation that the jury split the verdict would require reversal. Shell v. Schmidt (1954) 126 Cal.App.2d 279 [272 P.2d 82], relied upon by Southwest, reversed a verdict pursuant to erroneous instructions that it was permissible to split the total damages, which was prejudicial because nine of the separate verdicts were not sustainable. {Id., at p. 294.)