SUPREME COURT OF WASHINGTON TERRITORY. (2 Wash. T. 251) ROBINSON v. Coffin. July Term, 1884. TOWN PLAT-DEDICATION OF STREET. Examination of a town plat by the court for the purpose of deciding whether a certain strip of land was intended by the owner of the property platted to be dedicated to the city as a street. W. G. Langford, for appellant. J. B. Allen, for appellee. GREENE, C. J. This is a case wherein the appellee sued out an injunction to prevent appellant, who was then city marshal of the city of Walla Walla, from entering upon certain land to remove improvements which were obstructions upon what the city claimed was a street. Parties agree, and the transcript shows, that in January, 1871, the land in question was a part of a large tract belonging to one A. B. Roberts, who in that month filed and had recorded in the office of the auditor of Walla Walla county, under the statutes of the territory relative to town plats and additions, a duly executed and acknowledged plat of the tract. By this plat the tract was laid off into various parcels, some of which were subdivided with regularity and uniformity into lots and blocks bounded by streets or other lots, and some of which were strips or blocks, differing very much from one another in size and shape, and laid off without much, if any, obvious method. The land in controversy is a part of a long strip 80 feet wide, abutting at one end upon a street at right angles, called Park street, and at the other end upon the end of a street in direct line with it, and also 80 feet wide, called Roberts street, and upon another street at right angles, called Dr. Newell street. From Dr. Newell street to Park the strip runs along the front of a long block of lots, the ingress and egress to which would naturally be through it, were it a street. On one side of the strip, at a distance of about half its length, and parallel to it, separated from it by two blocks of lots and another narrower strip, runs a street called Ebbie street; and on the other side, and also parallel, at about the same distance, and with an assortment of various-sized lots and parcels intervening, runs another street called Catherine. Thus, this strip is one running through the midst of a large square or block, around which, as platted, runs a continuous line of demarkation, and which is bounded by Dr. Newell, Ebbie, Park, and Catherine streets. It does not, according to the lines of the plat, open out into any street or other public place. All the lands embraced in the entire plat have been, since 1871, within the city limits of Walla Walla. The only question put before us by the record is whether this plat shows an intention by Roberts to dedicate the strip above described to public use as a street. We do not think that such an intent is indicated by the plat. Upon it all streets are plainly marked as streets, and all other subdivisions are designated by letters and numbers. This strip is a lettered subdivision denominated "C." While it is true that it might well serve as a convenient street for access to the lots abutting upon it, and while the lots, if it be not a street, are indeed without any way of approach, yet there are many other lots in this plat that are condemned to like isolation, with no convenient strip that might serve for a street near them. It is a rather strange plat that Mr. Roberts has made, but the author of it had a right to indulge his freedom by platting his own property after a fashion to suit himself. As our views accord with those upon which the judgment of the court below is justly based, that judgment will be affirmed. HOYT and TURNER, JJ., concurred. (2 Wash. T. 254) SWEENY U. JAMIESON and others. July Term, 1884. CONTRACT-BREACH-EXCESSIVE DAMAGES. A defendant having failed in his contract to furnish pressed brick sufficient to complete a building, should not, in the damages assessed against him by the verdict of a jury, be made responsible for the alteration of the appearance of the building by the use of common brick, when the builders, according to proof, could have procured pressed brick without difficulty from other parties. Appeal from the First judicial district, holding terms at Cheney. J. B. Allen, for appellant. Andrews & Jones, for appellees. TURNER, J. This was an action in the court below to recover damages for the breach of a contract to furnish enough common and faced brick or pressed brick to complete a building to be erected at Spokane Falls. The appellant, who was the defendant below, answered, as a defense to the complaint, a prior breach of the contract on the part of the appellees in failing to pay for the brick as they were delivered, and a release upon his part thereby from obligation to further comply with the contract. Numerous questions upon the introduction of testimony for and against this defense arose in the court below, and exceptions were reserved to the rulings of the court thereon, and to instructions given by the court to the jury concerning defense. We find no error in said rulings or instructions. We think, however, that there was no evidence in the case to warrant a verdict for the full amount recovered by appellees. The damages claimed in the complaint were: (1) The difference between the purchase price of the brick which was procured to finish the building after the breach by the appellant, and the contract price under the contract with appellant. (2) Damage to the appearance and finish of the building, caused by appellant's failure to furnish pressed or faced brick with which to finish the front of the building, thus rendering it necessary for the appellees to finish the front of the building with common brick. According to the testimony of appellees, they purchased 57,000 additional brick with which to finish their building, after the default of the appellant, paying $13.50 per thousand for 40,000, and $15.50 per thousand for the additional 17,000. As the contract price with the appellant was nine dollars per thousand, it needs but a simple computation to show that the damage under this head was in the neighborhood of $300. The verdict against appellant was for $800. The excess over $300, therefore, must have been for damage to the appearance and finish of the building, caused by the use of common brick in the finish of the front of the building. This defect in the building was a proper subject for the computation of damages, if the evidence on the trial had disclosed that it was the necessary result of the breach of the contract by the appellant. The evidence, however, shows no more than that the appellees, when they found that the appellant would furnish no more pressed brick, changed their plans as to the finish of the front of the building, and concluded to finish it with common brick. It does not show an inability to procure pressed brick from other persons in Spokane Falls, at the same or a less price than they had agreed to pay the appellant. On the contrary, it shows affirmatively that they failed to make inquiries on the subject before changing their plan of construction. Under these circumstances they were not entitled to have a verdict from the jury for damage caused by the change. The damages, therefore, were excessive, and the motion for a new trial, based upon that ground, should have been granted, unless the appellees had remitted the excess. No offer to remit having been made in this court, the judgment of the court below is reversed, and the cause remanded for further proceedings. HOYT, J., and GREENE, C. J., concurred. (19 Nev, 53) SUPREME COURT OF NEVADA. SWEENEY V. SCHULTES and others. 1. PRACTICE-SUMMONS-NOTICE-LAW OF NEVADA. The legislature having prescribed that a certain notice shall be given in certain actions, and that a different notice shall be given in others, the distinction, as made in the statute, ought to be observed and enforced by the courts as essential and necessary. 2. SAME-OBJECT OF SUMMONS. The object of a summons is to put the defendant upon notice of the demand against him, and to bring him into court at the time therein specified. 3. SAME-FAILURE TO SERVE PROPER NOTICE-PRESUMPTION OF INJURY TO DEFENDANT. The defendant will be presumed to be injured by the failure of the plaintiff to comply with the provision of the statute in relation to notice, when nothing further appears from the record to have been done by the defendant. 4. SAME-TECHNICAL OBJECTIONS-1 COMP. LAWS, 1134. The courts look with disfavor upon mere technical objections which look merely to the form of the process or proceedings, especially when it is apparent that the error is one which has caused no injury to the complaining party. Hence the enactment of the statute, (1 Comp. Laws, 1134.) Appeal from a judgment of the Sixth judicial district court, Eureka county, entered in favor of the plaintiff. II. K. Mitchell, for appellants. HAWLEY, C. J. This is an action of ejectment for the recovery of certain real estate and mesne profits. The defendants were personally served with summons. They appeared specially, and separately moved the court to set aside the summons, on the ground that it did not contain the notice required by section 26 of the civil practice act. The notice in the summons reads as follows: "And you are hereby notified that if you fail to appear and answer the said complaint, as above required, the said plaintiff will take judgment against you for the restitution of said lots and parcels of land and premises, and five thousand dollars damages, and costs of suit." * * * The motions were denied, and time was given defendants to appear and answer. They appeared within the time given, and filed a joint demurrer to the complaint, it being therein stated that it was interposed "without waiving any rights they, or either of them, may have under and by virtue of his separate notice of motion to set aside the summons issued and served in this case, and the order and ruling of the court made thereon." The demurrer was overruled, and the defendants were given further time to answer. They failed to file an answer within the time given, and their default was duly noted by the clerk. Thereafter, on the same day, they appeared and filed an answer, making therein the same reservation of their rights as contained. in their demurrer. The plaintiff subsequently had the case set for trial, introduced his proofs, and obtained judgment for the possession of the property, and for $1,500 damages. This appeal is taken from the judgment. Did the court err in overruling defendant's motion to set aside the summons? This question must, in our opinion, be answered in the affirmative. The statute declares in explicit language what notice shall be inserted in the summons, viz.: "First. In an action arising on contract for the recovery only of money or damages, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint. Second. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief demanded therein." Civil Pr. Act, § 26; 1 Comp. Laws, 1089. This action came within the second subdivision of this section, and the summons should have contained the notice therein specified, instead of the notice required in the first subdivision, which relates to a different cause of action. The legislature having prescribed that a certain notice shall be given in certain actions, and that a different notice shall be given in others, the distinction, as made in the statute, ought to be observed and enforced by the courts as essential and necessary. Odell v. Campbell, 9 Or. 305. In Ward v. Ward the summons, as served upon the defendant, contained the notice required in the second subdivision of the statute, and the cause of action set forth in the complaint came within the class designated in the first subdivision. The defendant did not appear, and judgment was entered by default, against him, for the amount claimed in the complaint. He moved to set aside the judgment on the ground that the summons did not contain the notice required by law. The district court set the judgment aside, and the supreme court, in affirming the judgment, said: "We have no doubt that the entry of a judgment by default, in the absence of a notice in the summons that in case the defendant failed to appear and answer within the time prescribed by law the plaintiff would take judgment for the sum demanded in the complaint, was, at least, such an irregularity as would justify the court in vacating the judgment.' 59 Cal. 141. The defendants had the right to appear specially for the purpose of moving to set aside the summons, and their motions ought to have been granted, unless the plaintiff applied to the court for leave to amend the summons, and this is what he ought to have done. Polack v. Hunt, 2 Cal. 194. This brings us to a consideration of the more important question, whether the error, in the light of the subsequent proceedings, was prejudicial to the defendants, or of such a character as demands a reversal of the judgment. Upon this point there appears to be considerable diversity of opinion. Decisions can be found apparently sustaining both sides of the question. See authorities cited in briefs; also, Ridder v. Whitlock, 12 How. Pr. 213; Brett v. Brown, 13 Abb. Pr. (N. S.) 296; Brown v. Eaton, 37 How. Pr. 325; Briggs v. Sneghan, 45 Ind. 18; Warren v. Crane, 50 Mich. 301; S. C. |