U.S. Supreme Court SINCLAIR REFINING CO. v. JENKINS PETROLEUM P. CO., 289 U.S. 689 (1933)

[Page 289 U.S. 689, 695]

Clarke, supra; Sherwood Bros., Inc., v. Yellow Cab Co., 283 Pa. 488, 491, 492, 129 A. 563; Wells v. Holman, 115 S.C. 443, 106 S.E. 224; McKinnon Young Co. v. Stockton, 55 Fla. 708, 46 So. 87; Burns v. Lipson, 204 App. Div. 643, 198 N.Y.S. 810; Webb v. Homer W. Hedge Co., 133 App.Div. 420, 117 N.Y.S. 643; Iroquois Hotel & Apartment Co. v. Iroquois Realty Co., 126 App.Div. 814, 111 N.Y.S. 172; Harbaugh v. Middlesex Securities Co., 110 App.Div. 633, 97 N.Y.S. 350; Peile, supra, p. 112; Bray, supra, p. 21. 'I have consulted my learned Brothers,' said Lush, J., in Pape v. Lister, supra, 'and the conclusion at which we have arrived is that this rule must be made absolute. I do not agree with Mr. Wills' contention that 'relating to such action' means relating to the issues raised. I think if documents relate to the amount of damages, that is quite sufficient.'

Munger v. Firestone Tire & Rubber Co. [C.C.A.] 261 F. 921, is cited by the petitioner as supporting a general rule that the necessity of proving damages is never a sufficient ground for a discovery in equity. If confined to its special facts, the decision may not be wrong. Very likely the bill was insufficient to make out a pri a facie showing of right or liability. If the case stands for more than that, as the opinion indicates it does, it does not have our approval. The point is made in it that damages are not part of the 'issues' in a lawsuit, and that the interrogatories to be answered by a defendant under a bill of discovery are to be directed to the issues and not to anything else. There is indeed a rule of common-law pleading that the statement of general damages in the ad damnum clause of a complaint is not an issuable allegation. McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 356, 169 N.E. 605; Howell v. Bennett, 74 Hun, 555, 558, 26 N.Y.S. 627. This does not mean, however, that the plaintiff will not have to prove his damages if he wishes to get more than a nominal verdict. Quite to the con-

[Page 289 U.S. 689, 699]

nati Siemens-Lungren Gas Co. v. Western Siemens-Lungren Co., 152 U.S. 200, 14 S.Ct. 523; Henry v. North American Railway Construction Co. (C.C.A.) 158 F. 79, 80, 81; Williston, Contracts, Vol. III, p. 2394

Value for exchange is not the only value known to the law of damages. There are times when heed must be given to value for use, if reparation is to be adequate. Barker v. Lewis Storage & Transportation Co., 78 Conn. 198, 61 A. 363, 3 Ann.Cas. 889; Green v. Boston & Lowell Railroad Co., 128 Mass. 221, 35 Am.Rep. 370; Citizens' Bank v. Fitchburg Fire Ins. Co., 86 Vt. 267, 84 A. 970; McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176, 184, 185, 159 N.E. 902, 56 A.L.R. 1149. Sedgwick, supra, pp. 504-507. An imaginary bid by an imaginary buyer, acting upon the information available at the moment of the breach, is not the limit of recovery where the subject of the bargain is an undeveloped patent. Information at such a time might be so scanty and imperfect that the offer would be nominal. The promisee of the patent has less than fair compensation if the criterion of value is the price that he would have received if he had disposed of it at once, irrespective of the value that would have been uncovered if he had kept it as his o n. Formulas of measurement declared alio intuitu may be misleading if wrested from their setting and applied to new conditions. See, e.g., Standard Oil Co. v. So. Pac. Co., 268 U.S. 146, 155, 45 S.Ct. 465. The market test failing, there must be reference to the values inherent in the thing itself, whether for use or for exchange. Industrial & General Trust Co. v. Tod, supra. These will not be known by first imagining a forced sale, and then accepting as a measure its probable results. The law is not so tender to sellers in default.

3. Section 724 of the Revised Statutes [28 USCA 636] permitting the use of a subpoena duces tecum for the production of books and papers has not superseded the remedy of dis-

[Page 289 U.S. 689, 700]

covery in cases where inspection during the trial and in the presence of the jury will produce delay or inconvenience. Carpenter v. Winn, supra; Pressed Steel Car Co. v. Union Pacific Railroad Co., supra.

The court did not exceed the bounds of a legitimate discretion in holding that these embarrassments might reasonably be expected to follow if discovery were refused.

The decree should be affirmed.