WPI 303.02 Measure of Expectation Damages—Breach of Contract—Counterclaim
6A WAPRAC WPI 303.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 303.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XIII. Contracts
Chapter 303. Contracts—Remedies
WPI 303.02 Measure of Expectation Damages—Breach of Contract—Counterclaim
It is the duty of the court to instruct you as to the measure of damages. In this case, the plaintiff and the defendant each claim to have suffered damages as a result of a breach of contract by the other. [By instructing you on damages the court does not mean to suggest for which party your verdict should be rendered.]
In order for either party to recover actual damages, that party has the burden of proving that the other party breached a contract with the party seeking damages, that the party incurred actual [economic] damages as a result of the other party's breach, and the amount of those damages.
[If your verdict is for the plaintiff on plaintiff's breach of contract claim and] if you find that plaintiff has proved that plaintiff incurred actual damages and the amount of those actual damages, then you shall award actual damages to the plaintiff.
[If your verdict is for the defendant on defendant's breach of contract claim, and] if you find that defendant has proved that defendant incurred actual damages and the amount of those actual damages, then you shall award actual damages to the defendant.
Actual damages are those losses that were reasonably foreseeable at the time the contract was made. A loss may be foreseeable as a probable result of a breach because it follows from the breach either
(1) in the ordinary course of events, or
(2) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know.
In calculating a party's actual damages, you should determine the sum of money that will put that party in as good a position as that party would have been in if both parties had performed all of their promises under the contract.
The burden of proving damages rests with the party claiming them and it is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence. In determining an award of damages to either party, you must be governed by your own judgment, by the evidence in the case, and by these instructions, rather than by speculation, guess, or conjecture.
NOTE ON USE
Use this instruction in a breach of contract action with a counterclaim.
See the Note on Use to WPI 303.01 (Measure of Expectation Damages—Breach of Contract—No Counterclaim).
Use the bracketed phrases as appropriate.
When the court determines that a set-off is appropriate, this instruction should generally be given with a verdict form in which the jury spells out the damages awarded to both parties. When an affirmative defense is asserted as a set-off, a separate instruction should be drafted.
COMMENT
For the general measure of damages in a breach of contract action, see the Comment to WPI 303.01 (Measure of Expectation Damages—Breach of Contract—No Counterclaim).
If both parties are awarded damages and a defendant is awarded a set-off that is less than the plaintiff's judgment, the plaintiff is entitled to judgment for the difference, while the defendant is entitled to judgment when the amount of the defendant's set-off exceeds the plaintiff's judgment. RCW 4.56.060–.070. For specific rules regarding set-offs, see generally RCW 4.32.120–.150, RCW 4.56.050–.075, and CR 13(j) (regarding assignee).
In some types of cases, such as unlawful detainer actions, counterclaims and set-offs may not be allowed unless the court determines that the defendant's claims relate to possession of the property. See, e.g., Heaverlo v. Keico Indus., Inc., 80 Wn.App. 724, 911 P.2d 406 (1996).
Special rules apply to the issue of whether prejudgment interest is available on the whole amount of a liquidated claim, when it is offset by an unliquidated counterclaim, or whether it is available only on the balance remaining after the offset of the unliquidated claim. See, e.g., Jet Boats, Inc. v. Puget Sound Nat'l Bank, 44 Wn.App. 32, 721 P.2d 18 (1986); Robblee v. Robblee, 68 Wn.App. 69, 841 P.2d 1289 (1992) (citing Mall Tool Co. v. Far West Equip. Co., 45 Wn.2d 158, 273 P.2d 652 (1954)).
In some circumstances, a defendant may be entitled to damages on the basis of an affirmative defense, rather than a counterclaim. See, e.g., Seattle First Nat'l Bank, N.A. v. Siebol, 64 Wn.App. 401, 824 P.2d 1252 (1992) (in foreclosure action, borrower entitled to equitable set-off for lost profits on basis of promissory estoppel).
For a detailed discussion of damages issues, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice ch. 14 (3d ed.).
[Current as of April 2021.]
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