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Deep Red Oil Co. v. Owen et ux.

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in the courthouse in the city of Frederick, Tillman county, Okla., for settlement, signature, and allowance on the 12th day of March, 1914, at the hour of 9 o'clock a. m. On that date the case-made was signed and settled by the trial judge, which was before the expiration of the time given to make and serve a case-made. A motion has been filed to dismiss this appeal on the ground that the casemade is void because it was settled and certified by the trial judge in the absence of the defendants in error and their attorneys and without their consent prior to the ex· piration of the time granted said defendants in error to suggest amendments thereto. This motion was verified, showing that the defendants in error did not suggest amendments and did not waive their right to suggest amendments or waive the time allowed by law or by the court in which to suggest such amendments, and that neither defendants in error nor their attorneys were present when said casemade was settled and signed. An answer was filed to this motion, which was supported by affidavit stating that H. S. Davis, one of the attorneys for the defendants in error, was present and stated in open court that he had no objection to settling and signing of said case-made, and no amendments were offered, and that thereupon said casemade was settled and signed upon such waiver. The affidavit of H. S. Davis is filed in which he denies any knowledge of having made any waiver as suggested. Inasmuch as this is a controverted question of fact, this court will not attempt to decide it upon the affidavits, but will look solely to the record.

The rule in this state, as laid down in Cummings v. Tate, 47 Okla. 54, 147 Pac. 304, is that the defendant in error is entitled to the full time allowed for the suggestion

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City of Chickasha v. Hollingsworth et al.

of amendments after the expiration of the time allowed for making and serving the case-made, unless he waives the same; and from an examination of the record in this case we are confident that the same comes within the rule above laid down; that is, that the full time allowed for the suggestion of amendments after the expiration of the time allowed for making and serving case-made has not been given, and that the record does not show a waiver of the suggestion of amendments.

The cause should therefore be dismissed.

By the Court: It is so ordered.

CITY OF CHICKASHA V. HOLLINGSWORTH et al.

1.

No. 6223. Opinion Filed February 29, 1916.
Rehearing Denied March 14, 1916.

(155 Pac. 859.)
CONTRACTS—Damages Breach. Where A. contracts to per-
form work for B., and in order to fulfill his contract A. hires
machinery and employs skilled men to operate it, and without
fault on his part A. is delayed in his work by B.'s failure to fur-
nish material as agreed, A. is entitled to recover damages for
delay proximately caused to him, and the rent of the machinery
and the hire of the men are proper elements of damage in this
character of case.
INTEREST—Unliquidated Damages. Interest cannot be recov-
ered upon unliquidated damages, where it is necessary for a judg.
ment on verdict to be had in order to ascertain the amount of

2.

same.

(Syllabus by Hooker, C.)
Error from District Court, Grady County;

Frank M. Bailey, Judge.

City of Chickasha v. Hollingsworth et al.

Action by C. P. Hollingsworth and others against the City of Chickasha. Judgment for plaintiffs, and defendant brings error. Modified and affirmed.

Harry Hammerly, for plaintiff in error.
Bond & Melton, for defendants in error.

Opinion by HOOKER, C.The defendants in error recovered a judgment in the lower court against the plaintiff in error for damages caused to them by an unreasonable delay in the performance of a certain contract which they had' made with the city, which delay was caused by the failure of the city to furnish the material to be used in the performance of the work and was without fault on the part of the defendants in error. The lower court heard the evidence and rendered a judgment against the plaintiff in error for the sum of $295.50, with interest thereon from the 30th day of June, 1910, amounting to $52.19, which judgment was rendered on the 10th day of July, 1913. To reverse this judgment the city has appealed and has asserted two grounds for reversal: (1) That the evidence upon which the court rendered the judgment is insufficient to sustain the judgment; (2) that the rendition of the judgment for interest upon unliquidated damages was improper.

The evidence discloses that the defendants in error, in order to complete their contract which they made with the city, hired expensive machinery at so much per day and also employed skilled men to operate the same, for which they paid daily wages of so much per day to each man. The court found that the city had, without fault of the defendants in error, unreasonably delayed them in the progress of the work, and that the defendants in error

Opinion of the Court.

had been compelled to pay the rent of the machinery in question and the wages for the men during the time that they were delayed and rendered a judgment in their favor and against the city for the same.

We are of the opinion that this is a proper measure of damages in a case of this character, for if the city delayed the defendants in error in the progress of their work they would be entitled to recover from the city the damages accruing therefrom; that is, such as were proximately caused to them by reason of this delay, and if the defendants in error were compelled to pay the rent of the machinery and the wages of the men for the time they were delayed, that the amount thus paid by them would be recoverable against the city, and the same is the proximate damage flowing from this delay.

The machinery used by the defendants in error was of a very expensive character and required skilled men to operate it, and in the absence of an established rental value upon the market we cannot say that the court committed error in fixing the lease price as the prima facie evidence of its rental value in the absence of other evidence to the contrary. See Burgess et al. v. Felix, 42 Okla. 193, 140 Pac. 1180. However, we think that the damages accruing to the defendants in error was properly found by the court to be the money that they had to pay for the use of the machinery and for the wages of the men during the time of the delay. See Houser v. Pearce, 13 Kan. 104.

Upon the second proposition of permitting the defendants in error to draw interest upon the damages as stated above, we are of the opinion that the lower court was in error to this extent, and that section 2848, Rev. Laws 1910,

City of Chickasha v. Hollingsworth et al.

does not authorize the recovery of interest upon an unliquidated claim of this character, for in the instant case it required a judgment of the court or a verdict of the jury to establish the claim of the defendants in error, and the general rule that interest upon unliquidated damages is not recoverable until reduced to a judgment must be applied in this case.

In the case of Cox v. McLaughlin, reported in 76 Cal. 60, 18 Pac. 100, 9 Am. St. Rep. 164, this question is discussed at length, and we quote from paragraph 4 that part of the opinion which we think applicable here:

“The court below allowed interest on the amount recovered, from June 15, 1866. Appellants attack this portion of the judgment as unwarranted by the facts and law. It may be stated as a general principle that interest is not allowed on unliquidated damages or demands. This term 'unliquidated damages' applies equally to cases of tort, as slander, assault, and battery, etc., and to cases upon a quantum meruit, for goods sold and delivered, or services rendered. The reason of such denial of interest is said to be that the person liable does not know what sum he owes, and therefore can be in no default for not paying. The damages in such cases are an uncertain quantity, depending upon no fixed standard, are referred to the wise discretion of a jury, and can never be made certain except by accord or verdict. As to such damages there can be no default, and hence the initial point at which to fix the starting of interest is wanting. To this general rule there are many exceptions; and while it is said 'a demand is unliquidated if one party alone cannot make it certain, when it cannot be made certain by mere calculation' (1 Suth. Dam. 610), yet the same author, in the next sentence, adds: “The allowance of interest as damages is not dependent on this rigid test.' A review of the cases relied upon in support of this last assertion assert this proposition: “Whenever a debtor is in default for not paying

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