Oakland California Towel Co. v. Sivils

WARD, J.

Appeal by defendant from a judgment in favor of plaintiff corporation for $873.78, together with attorney’s fees and costs, in an action for damages arising from defendant’s alleged breach of a contract between the parties for linen supply service.

On September 23, 1937, the parties hereto entered into a contract by which respondent agreed to furnish, for a period of three years, such linen supplies as appellant would require in his chiropractic business. Subsequently the contract was modified by the establishment of a guaranteed weekly minimum of service for the sum of $14.47 a week. On February 16, 1938, appellant prevented further performance of the contract on respondent’s part. Had the contract been performed according to its terms there would have accrued to the respondent during the period yet to run the sum of $1,953.45. After new trial granted on the issue of damages alone, the court found that respondent would have incurred expenses in the performance of the contract during said period in a sum of $1,079.67, and that therefore the amount of damage sustained was only the difference between these sums, viz., $873.78.

It is appellant’s contention that the amount of damages awarded is excessive for the reason that respondent suffered

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“no loss or damage by reason of said breach, and if any such loss or damage should be found, the same is negligible. ’ ’

He further contends that the trial court did not take into consideration as an offset all items of cost that would be incurred by respondent in furnishing the service; and that not only the direct, but indirect, costs, such as overhead, should have been considered. Respondent on the other hand urges that overhead or fixed costs were not affected by the performance or non-performance of the contract.

The terms “fixed costs,” “overhead,” “direct overhead,” “indirect overhead,” “indirect miscellaneous overhead,” “profits,” “loss,” “detriment,” “benefit,” etc. are words that may be defined technically, or according to their popular sense, the latter involving a consideration of the subject matter and manner of use. The definition of a word adopted in one judicial decision may not be applicable in a case different facts or subject matter. The use of a certain word in a statute, contract or pleading may be clear and certain and subject to plain definition, yet the same word employed under different circumstances may be incorrect or ambiguous if its meaning be restricted to that particular definition. This observation as it relates to the question on this appeal, namely, measure of damages, may be considered an answer to the numerous citations involving words, terms and phrases.