Nature of the Case
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Facts
P is in the vending machine business. P places a variety of coin-operated machines, which it owns, on the premises of others, including cigarette machines, jukeboxes, and game machines. If the machine sells a product, P keeps the machine stocked. It also services the machines on an on-call basis. The coins are removed by its collectors on a biweekly basis and the revenue is shared between P and the owner of the premises in accordance with the terms of their agreement. Tabatneck (D) is the proprietor of a so-called go-go bar operated under the trade name Ragtime (D). D had P's coin-operated machines on his premises since the late 1970s or early 1980s under a series of consecutive contracts. A five-year contract was executed on October 13, 1994. The agreement covered a cigarette machine, a jukebox, a pool table, and a pinball machine, which had been on the premises for some time. Pursuant to the terms of the agreement, P also loaned D $3,500 by way of an advance on D's portion of the future revenues at ten percent interest. In the following month, D repaid the loan and the four machines were removed. P and D disputed the circumstances of the removal D claimed he was dissatisfied with P's servicing of the machines. After the breach, D purchased and installed at the bar his own cigarette vending machine, a coin-operated pool table, and a jukebox to 'back-up' his new compact disc player. P sued D for breach and the court found that D had breached the contract. P calculated the net lost monthly revenue over the life of the contract at $700. Over the course of the 59 months of the term remaining on the lease at the time of the breach, the total loss of net revenue was $41,000. D claimed that P was required to mitigate damages and had failed to do so. P claimed that the machines had been taken to P's warehouse and that another customer would, in the normal course of business, have been sought for them. P was unable to say, beyond speculation, if these machines had ever been placed with another customer and, if so, how long it had taken to do so. The judge was of the view that mitigation was an applicable doctrine. P argued that there was no duty to mitigate. Neither attorney requested a charge respecting the duty to mitigate despite S's clear assertion that there was such a duty as a matter of law and P's equally clear assertion that there was not. The court advised the jury that in fixing damages, it could consider what P did or should have done to 'mitigate or lessen damages.' P got a $1 damages verdict. P appealed.
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