though such failure might result in an affirm-, state engineer is not an appealable order. ance of the decree. 3. APPEAL AND ERROR 387(1)-NOTICE OF UNDERTAKING-DISMISSAL OF APPEAL. Since Rev. Laws, § 5330, does not require that an undertaking on appeal be served on the adverse party, the Supreme Court is not authorized to dismiss an appeal for want of service. This is correct. The only appeal allowed by law in such a case as this is an appeal from the decree of the court affirming or modifying the order of the state engineer. Section 6 (section 36) Stats. of 1915, p. 381. An appeal direct to this court from the order of the state engineer is irregular and of no effect. [2] Second. "That no bills of exception were either agreed upon or settled in the low. 4. APPEAL AND ERROR 783(2)-LACK OF MOTION FOR NEW TRIAL-GROUNDS FOR DIS-er court, and in the time allowed by law, MISSAL OF APPEAL. Since the Supreme Court, on appeal from a decree, can look to the judgment roll to ascertain whether any error appears, an appeal will not be dismissed because it appears from the record that it is based on the ground that the evidence is insufficient to justify the decision of the court, and that no motion for a new trial was made and determined before the appeal was taken, under Rev. Laws, § 5328. In the matter of the determination of the relative rights to the waters of Barber creek and its tributaries in Douglas county. From a decision of the court, Eugene Scossa appealed. Clarissa Church and the Barber Estate move to dismiss the appeal. Motion de nied. practice, and procedure, and no bill of excep tion was filed herein." It is obvious from the notice of appeal that this is also an ap peal from a decree entered on the 30th of January, 1919, affirming an order of deter mination of the state engineer. Conceding, but not deciding, that the rules prescribed by the Civil Practice Act, as amended by Statutes of 1915, p. 164, applies to the hearing of an issue raised by the notice of exceptions to the order of determination of the state engineer, duly filed with the clerk of the court (section 6 [section 36] Stats. 1915, pp. 378, 381), it does not follow that the failure to preserve errors by a bill of exceptions must result in the dismissal of an appeal. The appeal being from the decree, such failure might result in the affirmance of the decree, Chartz & Chartz, of Carson City, for appel- but not necessarily in the dismissal of the ap lant. Platt & Sanford, of Carson City, for respondents. peal taken from the decree. [3] Third. “That there was no notice of an undertaking herein." An appeal to be effectual an undertaking must be filed within five days after service of the notice of appeal. Section 5330, Rev. Laws. In the absence of a requirement that such undertaking be served upon the adverse party we are not authorized to dismiss an appeal upon this ground. SANDERS, J. This is a motion to dismiss an appeal. The notice of appeal is as follows: "To Contestees, Clarissa Church, acting for herself and as guardian for Benjamin Barber, and George C. Russell, executor of the estate of Lyman Barber, deceased, and to George Springmeyer, their attorney: [4] Fourth. That this court has no juris"Please take notice that contestant, Eugene diction of the appeal, in that it appears from Scossa, in the above-entitled proceeding here- the record that the appeal is based upon the by appeals to the Supreme Court of the state of Nevada from the order of determination, ground that the evidence is insufficient to and from the supplemental order of determina-justify the decision of the court, and, it aption of the state engineer in the above-entitled pearing that no motion for a new trial was proceeding, filed and returned in the aboveentitled court, and from the whole thereof, and also appeals from the deeree of the above-entitled court, confirming, approving, and affirming said relative determination, and as amended and modified by the supplemental order of determination as made and entered by the state engineer of the state of Nevada and filed in the above-entitled court, made and entered January 30, 1919, and from the whole thereof, said decree being in favor of defendants, and against said plaintiff, contestant. "Dated March 12, 1919." The respondents move to dismiss the appeal on several grounds, and for convenience we shall dispose of them in their order. [1] First the order of determination of the made and determined before the appeal was taken, the appeal must be dismissed. Section 5328, Rev. Laws. Gill v. Goldfield Consolidated Mines Co., 176 Pac. 784, is cited as an authority in support of this position. It is proper to state in this connection that that case is now pending upon an order granting a rehearing therein. This case being an appeal from a decree, we can look to the judgment roll to ascer tain whether any error appears. This being true, the appeal should not be dismissed. The motion to dismiss the appeal is denied. COLEMAN, C. J., and DUCKER, J. concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) (43 Nev. 150) (Supreme Court of Nevada. Aug. 1, 1919.) Original proceeding in mandamus by the State of Nevada, on the relation of Lester D. Summerfield, as District Attorney of Washoe county, Nev., against Thomas F. Moran, as one of the Judges of the Second Judicial District Court of the State of Nevada, in and for the County of Washoe. Writ issued. Lester D. Summerfield, Dist. Atty., and W. M. Kearney, Deputy Dist. Atty., both of Reno, for petitioner. LeRoy F. Pike, E. W. Cheney, and W. M. Kennedy, all of Reno, for respondent. knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended and that the defendant be released from custody on such conditions as the court may impose until otherwise ordered by such court." It is the contention of the petitioner that the court was without authority to suspend the sentence and judgment of the court, for the reason that the statute in question is unconstitutional, null, and void. [1] The writer of this opinion, while district judge, on several occasions suspended sentence, no objection having been raised as to the constitutionality of the statute in question; but on careful examination of the question here presented he is convinced that such action was without authority of law. Article 5, 13, of the Constitution of Nevada, authorizes the Governor "to suspend the collection of fines and forfeitures, and grant reprieves for a period of sixty days"; and section 14 of the same article of our Constitution provides: "The Governor, Justices of the Supreme Court and Attorney General, or a major part of them, of whom the Governor shall be one, may upon such conditions and with such limitations and restrictions as they may think proper, remit fines and forfeitures, commute punishments and grant pardons after convictions, in all cases, except treason and impeachments, subject to such regulations as may be provided by law, relative to the manner of applying for COLEMAN, C. J. This is an original pro- pardons." ceeding in mandamus. [2] We see no way to escape the conclusion that the authority to suspend the collection of a fine can be exercised only in the manner provided in the Constitution. To hold, in the face of the provisions mentioned, that the courts also can suspend the collection of a fine would be to override our Constitution; for while there is nothing in the Constitution which expressly provides that the Legislature may not confer this author The facts out of which the proceeding grows are these: In the year 1915 one Adrian C. Wheeler was convicted of a crime in the district court of Washoe county, Nev.; the respondent presiding. Thereafter the respondent, as such judge, pronounced judgment and sentence upon said Wheeler, whereby it was ordered, adjudged, and decreed that he pay a fine, and that upon default in the payment of said fine he be confined in the county jail; and as a part of said judg-ity upon the courts, it must necessarily folment it was ordered that such sentence and judgment be stayed and suspended during good behavior, and until a further order of the court. The said Wheeler has paid no part of said fine nor served any part of said sentence. The purpose of this proceeding is to compel the respondent judge to enforce the payment of the fine, and in default of such payment to commit the said Wheeler to jall in pursuance of the sentence and judgment of the court. The court in suspending the judgment and sentence acted in pursuance of section 7259, Revised Laws 1912, which provides: "Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal low that where the Constitution enumerates certain cases in which the collection of a fine may be suspended, or certain methods whereby it may be done, or confers upon a certain official or officials such power, the power so conferred must be held to be exclusive. This view is not open to debate. In State v. Arrington, 18 Nev. 412, 4 Pac. 735, the court said: "We admit, also, that the Legislature can perform any act not prohibited by the Constitution; that, outside of constitutional limitations and restrictions, its power is 'as absolute, omnipotent, and uncontrollable as Parliament.' But in seeking for limitations and restrictions, we must not confine ourselves to express prohibitions. Negative words are not indispensable in the creation of limitations to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes legislative power, and if the Constitution pre- [an executive power, expressly vested by the scribes one method of filling an office, the Leg- Constitution of the state in the Governor, and islature cannot adopt another." If this view is correct, of which there can be no doubt, the Legislature cannot confer upon the courts authority to suspend a sentence. Under our Constitution the Governor can suspend the collection of a fine for only 60 days, and it would certainly be a remarkable thing if a judge should have the authority to suspend indefinitely the collection of a fine. To confer such authority upon a trial court would be to give it, though subject to local influences and environment, greater power than that possessed by the chief executive of the state. It is very clear that our Constitution contemplated no such authority. But it would seem that this court has substantially determined this very question. In Ex parte Shelor, 33 Nev. 361, 111 Pac. 291, it was held that the indefinite suspension of a fine is in effect substantially a remission thereof, and that the board of pardons alone could exercise that authority. To take any other view would enable the trial courts in an indirect manner to accomplish that which they cannot do directly. To do so would result in a dual system of paroling persons convicted of crime-something repugnant to the spirit of our organic law. The question of the authority of the trial courts of the country to suspend sentences has been considered in many cases, and the overwhelming weight of authority is against it. In the case of People v. Brown, 54 Mich. 15, 19 N. W. 571, the court, speaking through that eminent authority on constitutional law, Judge Cooley, in considering the authority of a trial judge to suspend a sentence, said: "That there may be no misapprehension on this point, it is only necessary to understand exactly what it was the judge was requested to do. In terms, it was to suspend sentence. Now, it is no doubt competent for a criminal court, after conviction, to stay for a time its sentence, and many good reasons may be suggested for doing so, such as to give opportunity for a motion for a new trial or in arrest, or to enable the judge to better satisfy his own mind what the punishment ought to be (Com. v. Dowdican's Bail, 115 Mass. 133); but it was not a suspension of judgment of this sort that was requested or desired in this case; it was not a mere postponement; it was not delay for any purpose of better advising the judicial mind what ought to be done; but it was an entire and absolute remission of all penalty, and the excusing of all guilt. In other words, what was requested of the judge was that he should take advantage of the fact that he alone was empowered to pass sentence, and, by postponing indefinitely the performance of this duty, indirectly, but to complete effect, grant to the respondent a pardon for his crime. "Now, it cannot for a moment be supposed that any 35 intelligent citizens of this state are ignorant of the fact that the power to pardon is exclusively belonging to his office. And knowing that fact, as these petitioners must have done, they could scarcely fail to understand that this judge would be usurping the functions of the executive were he to assume to give total immunity from punishment. No doubt judges have done this sometimes, under the pressure of such influences as appear here; but this is no reason for asking a repetition of the wrong; it is rather a reason for being especially careful and particular not to invite it, lest by and by it comes to be understood that the power to pardon, instead of being limited to one tribunal, is confided to many, and that the pressure of influence and respectability may be as properly employed with a judge to prevent sentence nor to procure a formal pardon." as many seem to think it may be with a Gover In Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175, being a case growing out of the suspension of sentence by the trial court, it is said: "The plaintiff in error contends that 'the action of the court, after passing sentence, in suspending the execution of the same,' was 'an unwarranted interference with the powers, duties, and functions of the executive.' We think that this contention is sound. The Constitution of the state expressly provides that the Governor 'shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law, and to remit any part of a sentence for offenses against the state, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to If the execution of a sentence, which has been the manner of applying for pardons. imposed in accordance with law, can be suspended, either in whole or in part, as the judge may see fit, during the pleasure of the court, then the court may in this way indirectly grant a reprieve, commute a penalty, or remit any part of a sentence, and thus practically exercise powers which the Constitution confers exclusively upon the Governor of the state. For a sentence, the execution of which is suspended during the pleasure of the court may never be enforced, as it may never be the pleasure of the court to revoke the order of suspension and enforce its execution. If a court can indefinitely suspend the execution of a sentence, it may even indirectly exercise all the pardoning power conferred upon the chief executive of the state, except that portion of it which embraces the removal of disabilities imposed by the law, in certain criminal cases, a consequence of conviction. The fundamental law provides that when the Governor exercises any of these functions he shall report his action and the reasons therefor to the Legislature. Surely the judges of courts having criminal jurisdiction cannot, unhampered by such a requirement, exercise any of these powers." as Judge Beatty, in United States v. Wilson (C. C.) 46 Fed. 748, in passing upon this question said: (182 P.) PROSPECTIVE PROFITS. (108 Wash. 31) "There can be no doubt of the right of a court to temporarily suspend its judgment, and BROMLEY et al. v. HEFFERNAN ENGINE continue to do so from time to time, in a crimWORKS. (No. 15241.) inal cause, for the purpose of hearing and determining motions and other proceedings which (Supreme Court of Washington. July 31, 1919.) may occur after verdict, and which may prop-1. DAMAGES 40(1)—BREACH OF CONTRACTerly be considered before judgment, or for other good cause. In this cause, however, the record does not show that the suspension was for any such reason, or for a certain or short time, but, on the contrary, it appears it was for such uncertain time as the defendant should continue to remain favorably impressed with the laws of the land as to obey them. Instead of this being a mere suspension of sentence, it operated as a condonation of the offense, and an exercise of a pardoning power which was never conferred upon the court. In this I think the court clearly transcended its authority." The Supreme Court of Illinois, speaking through Mr. Justice Carter, after reviewing many cases, in People v. Barrett, 202 Ill. 287, 67 N. E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230, says: "Whatever may have been the practice at common law, or whatever may be the practice in other states of this country, in regard to the suspending of sentence for the purpose of giving the accused a chance to reform, and thus virtually reprieving him, the Legislature of this state has adopted a different method to give persons convicted of crimes the opportunity to reform, by providing a system of parole, and boards to administer the same; and, in view of the expressed policy of the legislation of this state, we are disposed to hold that the trial courts do not have the power to suspend the imposition of the sentence indefinitely after conviction, or to do such acts that virtually amount to an indefinite suspension of sentence, or to release the prisoner on parole." The language just quoted applies with greater force to Nevada, because of the fact that our Constitution provides the method of giving persons convicted of crime an opportunity to reform. See, also, Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S. W. 162, 41 L. R. A. (N. S.) 1144. It appearing that the statute in question is in violation of the express provisions of the Constitution, it follows that the action of the court in suspending the sentence passed was and is without force and effect, and the writ will issue as demanded in the petition; but in order that the said Wheeler may make application to the Governor or the board of pardons for a suspension of the collection of said fine, or such other clemency as he may see fit to seek, the service and execution of the order will be stayed for a period of 20 days. SANDERS and DUCKER, JJ., concur. Prospective profits may be recovered as damages for breach of contract, if they can be proven with reasonable certainty, but remote and speculative damages cannot be recovered. 2. DAMAGES 40(2)-BUILDING CONTRACTS -PROFITS. Profits which contractor would have made upon building contract are not remote and speculative, and therefore incapable of proof. 3. APPEAL AND ERROR 1048(3)—REVIEW— HARMLESS ERROR. en In contractor's action for owner's breach of contract before its performance was tered upon, direct question as to amount of profits, instead of questions to cost of construction, considering price of labor and materials and local conditions, was harmless, where it appears that witnesses in answering question considered contract price, cost of labor and material, and local conditions, and estimated profits at difference between contract price and what it would cost to perform the contract. 4. DAMAGES 208(1)-BUILDING CONTRACTS -ACTION FOR BREACH-JURY QUESTION. In contractor's action against owner for breach of contract before performance of work was entered upon, evidence showing damages with reasonable certainty held sufficient to carry case to jury. Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by H. C. Bromley and another, copartners doing business under the firm name and style of Hull Building Company, against the Heffernan Engine Works. Judgment for plaintiff, and defendant appeals. Affirmed. Bronson, Robinson & Jones, of Seattle, for appellant. Ralph S. Pierce, of Seattle, for respondent. MAIN, J. The purpose of this action was to recover damages for breach of a building contract. The cause was tried to the court and a jury, and resulted in a verdict for the plaintiff. The defendant interposed a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial, Judgment both of which were overruled. was entered upon the verdict, and the defendant appeals. The respondents are copartners doing business under the firm name of Hull Building Company. The appellant is a corporation with its principal place of business in Seattle, Wash. During the month of May, 1918, the appellant contracted with the respondents For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 P.-59 It to erect for it a certain building, and of the work, such as felling, bucking, and breached the contract before its performance swamping. From this evidence, the case was entered upon. At least from the evi- being tried to the court, it was found that dence, the jury had a right to find that the the plaintiff would have made a profit. contract was made and breached. The ver- was there said: dict of the jury upon this question is accepted by the appellant so far as the appeal is concerned, but it is claimed that the respondents failed in their proof of damages. "To ascertain the cost of performing any contract so as to arrive at the measure laid down in the above cases [which is the rule above referred to], resort must, of necessity, be had to the The only question here is whether the proof estimates of those who are competent to pass was sufficient to carry the question of dam- judgment and who have knowledge of the parages to the jury. The appellant claims that ticular conditions. Such evidence is the damages, if any, were remote and specu- received upon the theory that it is the best evilative, and therefore the proof would not dence obtainable. Consequently, men who know sustain the verdict and judgment. It is fur-conditions, and have dealt in commodities, lands, or manufactured goods, are constantly called upon to advise courts and juries as to cost ther claimed that, in any event, the damages were not proven in a proper manner. [1] This court has adopted the rule that upon the breach of a contract prospective profits may be recovered as damages, provided they can be proven with reasonable certainty, but that damages which are remote and speculative cannot be recovered. Cuschner v. Pittsburgh-Hickson Co., 91 Wash. 371, 157 Pac. 879. and value." [2] It cannot be held that the profits which would have been made upon the building contract, had it been performed, are remote and speculative, and therefore incapable of proof. Such a doctrine applied to the extensive business of contracting would be an anomaly in the law. No case so holding has been called to our attention. Upon the trial the contract price of the building was shown, and it was also shown [3] But in this case it is said that the witthat at the time the contract was made it nesses were asked the direct question as to was within the contemplation of the parties what the amount of profits would be, rather that the respondents would make a profit of than the cost of the construction of the build10 per cent. of the contract price. Witnesses ing, taking into consideration the price of who had been engaged in the contracting labor and material and the local conditions. business for many years testified, over ob- It is true that the form of the question projections, that, taking into consideration the pounded to at least two of the witnesses is plans for the building, the cost of labor and subject to this objection, but it does not necmaterial, and local conditions, the respond-essarily follow that the judgment should be ents, had they been permitted to perform the reversed because the questions were impropcontract, would have made a profit of 10 per er in form, if they were not improper in subcent. stance. The evidence offered in proof of damages is not substantially different from that in the case of Bogart v. Pitchless Lumber Co., 72 Wash. 417, 130 Pac. 490. In that case the plaintiff had contracted to remove certain timber of which the defendant was the owner. The latter breached the contract, and the action was brought to recover damages for the loss of profits which would have been realized had the contract been performed. There a number of witnesses who were qualified as competent timber men and who knew local conditions were permitted to testify as to what it would cost to log the land and how much it would cost to perform certain parts Reading the testimony, it is plain that the witnesses, in answering the question, were taking into consideration the contract price, the cost of labor and material, and the local conditions, and estimating the profits at the difference between the contract price and what it would cost to perform the contract. [4] We think the evidence offered in this case comes within the rule of reasonable certainty, and that therefore the judgment should be sustained. Affirmed. HOLCOMB, C. J., and MACKINTOSH, MITCHELL, and TOLMAN, JJ., concur. |