could reasonably have prevented the increase. It is true that the burden of showing that the damages could have been mitigated is upon the wrongdoer, but this burden does not relieve the injured party from his primary burden of proving the extent of his damage -- an entirely different matter.
In the present case, BICOA asserts that it lost six tons, or 120,000 cubic feet, of carbon dioxide each day that the plant was in operation. This assertion is sharply contested by D&Z which produced expert opinion that no such amount could possibly have been lost through the cracks in the floor.
Upon the issue of fact thus raised, I find that the volume of gas claimed by BICOA or anything like it did not escape through the floor. I simply do not believe it possible that it could have. This finding leaves the record before me with no basis upon which I can find the amount of gas that may have escaped through these cracks of unspecified number, unspecified length and existing for an unspecified time. Any sum which I might award as damages would be the purest kind of guess.
Another reason for rejecting this part of the claim is that, if the cracks were of sufficient extent and existed for a long enough time to have allowed the escape of the amount of carbon dioxide that BICOA claims, then BICOA could not recover for such part of the loss as it could have avoided, provided the necessary steps would not have involved undue expenditure or risk.
There is no evidence as to what the cost of making the necessary repairs would be, but it was proved that cracks in the oven floor were repaired for about $ 100. Although, as stated, the burden was on D&Z to show that damages could have been mitigated without unreasonable expense, a judge is not required to divorce himself from his common sense, and I am forced to the conclusion that repairs could have been made and the condition corrected for a mere fraction of the sum claimed for the loss. By way of illustration, if a plumber, called in to install a kitchen sink, leaves a faucet which drips, the housewife may not permit the faucet to go on dripping for an indefinite time and then charge the plumber with her excess water bills. I disallow the whole claim for loss of carbon dioxide for want of proof by sufficient satisfactory and credible evidence to establish it with the reasonable certainty required by the law. Restatement, Contracts, Section 331(1).
D&Z claims interest on the $ 184,413.01 awarded to it. Under the contract, payment was due 15 days after D&Z submitted its monthly bills.
The general rule is that on a liquidated claim (and D&Z's claim was liquidated from its various due dates) interest is due as a matter of right. I am aware that in some cases in which a counterclaim has been asserted it has been held that interest should be allowed only for the sum remaining due after the amount of the counterclaim (unliquidated when made but subsequently liquidated) has been subtracted. Even in such case the matter is discretionary with the Court. Restatement, Contracts, Section 337, noting particularly Illustration 10. The facts of the present case so not in my judgment justify a reduction or disallowance of the claim for interest by reason of the counterclaim.
As has been pointed out, in February 1957 BICOA, with full knowledge of the oven deficiency and its potential counterclaim therefor, agreed, unequivocally, (in connection with a request by it that D&Z continue on the job) to 'continue to make payments under this contract.' This, it seems to me, eliminates any doubt as to liability to pay interest on such parts of the claim for which BICOA was billed in the usual course of dealings between the parties. D&Z justifiably left the job because of BICOA's continuing breach of this agreement (see Guerini Stone Co. v. P. J. Carlin Constr. Co., 248 U.S. 334, 39 S. Ct. 102, 63 L. Ed. 275) and interest will be allowed upon the invoices for which BICOA was so billed. This includes the invoices of August 10, 1957.
It does not include invoices of October 11, 1957, and March 13, 1958 amounting to $ 66,389.72. These invoices were not submitted to BICOA as they accrued and demand for payment of them was made in a mechanics lien action brought by D&Z against BICOA. Under these circumstances, I do not feel that in the exercise of my discretion I should allow interest on them. They are not covered by the letter of February 27 referred to above.
Interest will not be allowed upon the counterclaim.
An order for judgment in accordance with the foregoing may be submitted.