
    [No. 3565.
    Decided June 30, 1900.]
    R. G. Trumbull, Respondent, v. School District No. 7, Clallam County, Washington, Appellant.
    
    APPEAL — AMOUNT IN CONTROVERSY.
    The provision of art. 4, § 4, of the constitution, limiting the appellate jurisdiction of the supreme court in civil actions to cases where the original amount in controversy does not exceed the sum of $200, applies to the amount sued for, and not to the judgment rendered.
    DIRECTING VERDICT POR NOMINAL DAMAGES-DUTY OP JURY.
    Where, under the evidence, an instruction by the court to find a verdict for plaintiff for nominal damages was proper, a verdict by the jury in the sum of twenty-six dollars was erroneous, after the court had charged them that by nominal damages was meant any unsubstantial sum, as one dollar.
    
      Appeal from Superior Court, Clallam County. — Hon. James G-. McClintost, Judge.
    
      George O. Hatch,, for appellant.
    
      Harry Ballinger and Trumbull & Trumbull, for respondent.
   The opinion of the court was delivered hy

White, J.

-Respondent commenced this cause in the court helow to recover from appellant damages in the sum of $1,305, for breach of contract to teach the schools for school years 1896-7 and 1897-8. Appellant’s defense consisted of two affirmative defenses, to-wit: First, that respondent had during the life of the contract sought and obtained other like employment; second, that when the contract was made and broken, and during its entire life, appellant had reached its limit of indebtedness. The case was tried before a jury. At the close of the testimony appellant moved the court to withdraw the case from the jury and to direct a judgment for the appellant. This motion was overruled. The court then, on its own motion, instructed the jury to find a verdict for the respondent for nominal damages, stating that by nominal damages was meant any unsubstantial sum, as one dollar. The jury returned a verdict for $26. Appellant objected to receiving the verdict, on the ground that the amount found was not nominal damages. The court overruled the objection and received the verdict. Appellant moved for a new trial. The motion was overruled, and judgment was entered for respondent for $26. Respondent acquiesced in the decision of the court and instituted no cross appeal.

There can be no question but that there was a breach of the contract of employment, entitling the respondent to nominal damages, at least. To defeat a recovery, the second defense must be made good by appellant. Tbe respondent moves to dismiss tbe appeal for want of jurisdiction in tbis court to hear tbe same, inasmuch as tbe amount now in controversy is less than $200. Tbe amount originally in controversy was $1,305. Tbis case falls squarely within tbe rule laid down by tbis count in Bleecker v. Satsop R. R. Co., 3 Wash. 77 (27 Pac. 1073). Tbe motion to dismiss tbe appeal is not well taken and will be overruled.

The appellant claims that $26 is not nominal damages. We think that $26 is compensatory, and not nominal, damages. Whether it is or not, it was tbe duty of tbe jury to obey tbe instructions of tbe court in finding their verdict. Tbe court instructed tbe jury as follows:

“You are instructed to find a verdict for plaintiff for nominal damages. By nominal damages tbe court means any unsubstantial sum, as one dollar.”

Under tbis instruction it was tbe duty of the jury to return a verdict in favor of tbe respondent for one dollar or less.

Tbe court was very liberal in allowing tbe appellant to amend its answer while tbe case was on trial, two amended answers having been filed.' When tbe last answer was filed, tbe respondent announced that be stood on tbe reply already filed, and tbe court must have treated tbe second amended answer as if a reply bad been interposed thereto; for it allowed the appellant to introduce testimony in support of tbe second defense, and tbe respondent to cross-examine the witness giving such testimony. We are not satisfied that the evidence supported tbe appellant’s second affirmative defense, and the court below must have taken this view when it instructed the jury to return a verdict for nominal damages.

The judgment entered by the court in this case is so modified that it shall be for one dollar and no more, and as so modified it is affirmed, the appellant to recover its costs in this court.

Dunbar, C. J., and Anders, Reavis and Fullerton, JJ., 'concur.  