SIMPSON, J.
This is a suit by the appellant against the appellee for breach of a contract by which the defendant agreed to furnish a saAvmill, all of his standing timber, and the use of certain teams, wagons, etc., in consideration that plaintiff would cut the timber, furnish drivers, labor, etc., and manufacture the lumber in a workmanlike manner — said lumber to be the property of plaintiff and defendant in equal shares, and the plaintiff to purchase defendant’s part thereof at $9 per 1,000 feet. The plaintiff claims that, relying upon the provisions of said contract, he had made certain contracts for the sale of the lumber at certain prices, and that by the breach of the contract by the defendant the plaintiff has been deprived of the profits which he would otherAvise have made on said contracts..
The first point of contention is as to the measure of damages in this case. While this subject has been prolific of a great deal of litigation, and volumes have been written upon it, in various jurisdictions, ever since the decision in the leading case of Hadley v. Baxendale, 9 Exch. 341, our oavii court has had much to say on the subject, and we think its decisions clearly mark cut the rules governing such cases, and that they are in accordance with the leading case and with the great weight of authority. In this, as in other matters, the great aim of the law, in interpreting contracts, is to put one’s self in the position of the contracting parties and ascertain what was their intention — what rights the one party intended to secure, and Avhat the other intended to confer or to guarantee. Hence the rule in the Hadley-Baxendale Case-, that the plaintiff in entitled to “(1) such damages as may fairly and substantially be considered as arising naturally — i. e., according to the usual course of things — from the breach of the contract itself, or (2) [161]*161such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.”
While our court has followed the Hadley-Baxendale Case, yet the writer of one of our decisions criticises the wording of it, because he thinks that, as men axe not supposed to contemplate breaking their contracts, it is not correct to speak of the damages which aré within their contemplation when the contract is made. The very object of making contracts and reducing them to writing is to bind the parties to their performance and to provide against their breach; and when parties malee them, however honest they may be, they necessarily project their minds forward, and each party considers, “What rights am I securing, and against what loss am I agreeing to hold the other party harmless?” and this necessarily carries with it the question, “What are my liabilities if, for any cause, I fail to carry out my part?” It is no impeachment of a man’s integrity to think of the possible damages, but is only business judgment to do so.
However, the meaning of the expression is merely, “What were the matters intended to be provided for and against when the contract was made?” Hence, as every person is presumed to intend the natural and usual consequences of his act, the rule is reasonable that he should be liable for “such damages as may fairly and substantially be considered as arising naturally — i. e., according to the usual course of things — from the breach of the contract;” and, as all contracts are made in the light of surrounding circumstances, if the contract is made for a specific purpose, which is known to both parties, .or, as expressed by our own court, if “there be special circumstances, which impart to the subject or services a value and importance their appearance does not indicate [162]*162this is outside of the usual course of things, and falls within Baron Alclerson’s second rule, which requires that the party sought to be charged shall have had notice of such special circumstances when he entered into the contract.” — Daughtery v. Am. Tel. Co., 75 Ala. 168, 176, 51 Am. Rep. 135.
In the case cited a seeming exception is ingrafted upon the rule; but it is not really an exception, and is based upon the principle that the telegraph is a peculiar instrumentality resorted to only in particular emergencies, and public policy fixes upon such company the responsibility of expedition as to all messages, because the very fact of using it is notice to the company that expedition is required for some special reason, which it is not necessary to communicate to the company.
In the case of Ramey v. Holcombe, 21 Ala. 567, the contract was made for the specific purpose of enabling the party to run a stage line, but really no damages on account of profits lost were claimed; the only question being whether the plaintiff was entitled to recover the full amount which he was to have been paid for feeding the teams, or that amount reduced by what it would cost him, to provide the feed. The Peck-Hammond Case, 136 Ala. 473, 33 South. 807, 96 Am. St. Rep. 36, the case of Bonifay v. Hassell, 100 Ala. 269, 14 South. 46, and the case of Fails & Mills v. McRee, 36 Ala. 61, are upon the same principle, as is also the case of Robinson v. Bullock, 66 Ala. 548; and the cases are merely cited as a reason for excluding certain testimony in the casi1 of Mason v. Ala. Iron Co., 73 Ala. 270.
In the case of Bell v. Reynolds & Lee, 78 Ala. 511, 56 Am. Rep. 52, the contract was made for the sale of fertilizer, “with notice that it was intended for use on defendant’s cotton crop” on a certain place. The fertilizer could not be purchased elsewhere, and the differ[163]*163ence between that portion of the crop on which the fertilizer was used and. that on which it was not was plainly visible and easily estimated. The rule above referred to is recognized, and the additional one, which is in accordance with the best-considered cases, and followed in the cases hereafter cited, that in any event profits which are remote and uncertain are never recoverable, and that “those profits are usually considered too remote, among others, which are not the immediate fruits of the principal contract, but are dependent on collateral engagements and enterprises, not brought to the notice of the contracting parties, and not, therefore, brought within their contemplation, or that of the law. Those are considered uncertain which are purely speculative in their nature and depend upon so many incalculable contingencies as to make it impracticable to determine them definitely by any trustworthy mode of computation.”
The cases of Danforth & Armstrong v. Tenn. & C. R. R., 93 Ala. 614, 11 South. 60, and 99 Ala. 331, 13 South. 51, and Worthington v. Gwin, 119 Ala. 44, 24 South. 739, 43 L. R. A. 382, do not contravene the general rule, but relate to profits to be realized out of the immediate; business, the subject of the contract.
These salutary rules are followed in a long line of decisions by our own court, and are in accordance with the views of our best text-writers. — Western U. Tel. Co. v. Way, 83 Ala. 542, 557, 4 South. 844; Young & Co. v. Cureton, 87 Ala. 727, 6 South. 352; Swift & Co. v. Eastern Warehouse Co., 86 Ala. 294, 5 South. 505; Am Union Tel. Co. v. Daughtery, 89 Ala. 191, 7 South. 660; Burton v. Henry, 90 Ala. 282, 7 South. 925; Reed Lumber Co. v. Lewis, 94 Ala. 626, 627, 628, 10 South. 333; Moulthrop & Stevens v. Hyett & Smith,
Free access — add to your briefcase to read the full text and ask questions with AI
SIMPSON, J.
This is a suit by the appellant against the appellee for breach of a contract by which the defendant agreed to furnish a saAvmill, all of his standing timber, and the use of certain teams, wagons, etc., in consideration that plaintiff would cut the timber, furnish drivers, labor, etc., and manufacture the lumber in a workmanlike manner — said lumber to be the property of plaintiff and defendant in equal shares, and the plaintiff to purchase defendant’s part thereof at $9 per 1,000 feet. The plaintiff claims that, relying upon the provisions of said contract, he had made certain contracts for the sale of the lumber at certain prices, and that by the breach of the contract by the defendant the plaintiff has been deprived of the profits which he would otherAvise have made on said contracts..
The first point of contention is as to the measure of damages in this case. While this subject has been prolific of a great deal of litigation, and volumes have been written upon it, in various jurisdictions, ever since the decision in the leading case of Hadley v. Baxendale, 9 Exch. 341, our oavii court has had much to say on the subject, and we think its decisions clearly mark cut the rules governing such cases, and that they are in accordance with the leading case and with the great weight of authority. In this, as in other matters, the great aim of the law, in interpreting contracts, is to put one’s self in the position of the contracting parties and ascertain what was their intention — what rights the one party intended to secure, and Avhat the other intended to confer or to guarantee. Hence the rule in the Hadley-Baxendale Case-, that the plaintiff in entitled to “(1) such damages as may fairly and substantially be considered as arising naturally — i. e., according to the usual course of things — from the breach of the contract itself, or (2) [161]*161such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.”
While our court has followed the Hadley-Baxendale Case, yet the writer of one of our decisions criticises the wording of it, because he thinks that, as men axe not supposed to contemplate breaking their contracts, it is not correct to speak of the damages which aré within their contemplation when the contract is made. The very object of making contracts and reducing them to writing is to bind the parties to their performance and to provide against their breach; and when parties malee them, however honest they may be, they necessarily project their minds forward, and each party considers, “What rights am I securing, and against what loss am I agreeing to hold the other party harmless?” and this necessarily carries with it the question, “What are my liabilities if, for any cause, I fail to carry out my part?” It is no impeachment of a man’s integrity to think of the possible damages, but is only business judgment to do so.
However, the meaning of the expression is merely, “What were the matters intended to be provided for and against when the contract was made?” Hence, as every person is presumed to intend the natural and usual consequences of his act, the rule is reasonable that he should be liable for “such damages as may fairly and substantially be considered as arising naturally — i. e., according to the usual course of things — from the breach of the contract;” and, as all contracts are made in the light of surrounding circumstances, if the contract is made for a specific purpose, which is known to both parties, .or, as expressed by our own court, if “there be special circumstances, which impart to the subject or services a value and importance their appearance does not indicate [162]*162this is outside of the usual course of things, and falls within Baron Alclerson’s second rule, which requires that the party sought to be charged shall have had notice of such special circumstances when he entered into the contract.” — Daughtery v. Am. Tel. Co., 75 Ala. 168, 176, 51 Am. Rep. 135.
In the case cited a seeming exception is ingrafted upon the rule; but it is not really an exception, and is based upon the principle that the telegraph is a peculiar instrumentality resorted to only in particular emergencies, and public policy fixes upon such company the responsibility of expedition as to all messages, because the very fact of using it is notice to the company that expedition is required for some special reason, which it is not necessary to communicate to the company.
In the case of Ramey v. Holcombe, 21 Ala. 567, the contract was made for the specific purpose of enabling the party to run a stage line, but really no damages on account of profits lost were claimed; the only question being whether the plaintiff was entitled to recover the full amount which he was to have been paid for feeding the teams, or that amount reduced by what it would cost him, to provide the feed. The Peck-Hammond Case, 136 Ala. 473, 33 South. 807, 96 Am. St. Rep. 36, the case of Bonifay v. Hassell, 100 Ala. 269, 14 South. 46, and the case of Fails & Mills v. McRee, 36 Ala. 61, are upon the same principle, as is also the case of Robinson v. Bullock, 66 Ala. 548; and the cases are merely cited as a reason for excluding certain testimony in the casi1 of Mason v. Ala. Iron Co., 73 Ala. 270.
In the case of Bell v. Reynolds & Lee, 78 Ala. 511, 56 Am. Rep. 52, the contract was made for the sale of fertilizer, “with notice that it was intended for use on defendant’s cotton crop” on a certain place. The fertilizer could not be purchased elsewhere, and the differ[163]*163ence between that portion of the crop on which the fertilizer was used and. that on which it was not was plainly visible and easily estimated. The rule above referred to is recognized, and the additional one, which is in accordance with the best-considered cases, and followed in the cases hereafter cited, that in any event profits which are remote and uncertain are never recoverable, and that “those profits are usually considered too remote, among others, which are not the immediate fruits of the principal contract, but are dependent on collateral engagements and enterprises, not brought to the notice of the contracting parties, and not, therefore, brought within their contemplation, or that of the law. Those are considered uncertain which are purely speculative in their nature and depend upon so many incalculable contingencies as to make it impracticable to determine them definitely by any trustworthy mode of computation.”
The cases of Danforth & Armstrong v. Tenn. & C. R. R., 93 Ala. 614, 11 South. 60, and 99 Ala. 331, 13 South. 51, and Worthington v. Gwin, 119 Ala. 44, 24 South. 739, 43 L. R. A. 382, do not contravene the general rule, but relate to profits to be realized out of the immediate; business, the subject of the contract.
These salutary rules are followed in a long line of decisions by our own court, and are in accordance with the views of our best text-writers. — Western U. Tel. Co. v. Way, 83 Ala. 542, 557, 4 South. 844; Young & Co. v. Cureton, 87 Ala. 727, 6 South. 352; Swift & Co. v. Eastern Warehouse Co., 86 Ala. 294, 5 South. 505; Am Union Tel. Co. v. Daughtery, 89 Ala. 191, 7 South. 660; Burton v. Henry, 90 Ala. 282, 7 South. 925; Reed Lumber Co. v. Lewis, 94 Ala. 626, 627, 628, 10 South. 333; Moulthrop & Stevens v. Hyett & Smith, 105 Ala. 493, 494, 17 South. 32, 53 Am. St. Rep. 139; Raisin Fertilizer Co. v. Barrow, 97 Ala. 694, 12 South. 388; Watson v. Kirby & Sons, 112 [164]*164Ala. 439, 446, 20 South. 624; Bawley v. Tallassee & Montgomery R. R., 128 Ala. 183, 190, 191, 29 South. 451; Nichols v. Rasch, 138 Ala. 372, 377, 35 South. 409; Ala. Chemical Co. v. Geiss, 143 Ala. 591, 39 South. 355; So. Ry. Co. v. Coleman, 152 Ala. 266, 44 South. 837, 838; Byrne Mill Co. v. Robertson, 149 Ala. 274, 285, 42 South. 1008.
In Metzger v. Brincat, 154 Ala. 297, 45 South. 633, “the contract shows that the matter in contemplation of the parties was that the business of the apellee should not be inj ured by renting a portion of the house to another party, and the evidence shows that the damages were ascertainable with reasonably certainty.- — 154 Ala. 297, 45 South. 634.
The case of Nichols v. Rasch, supra, which is vigorously assailed by the brief of appellant’s counsel, is not contrary to the other decisions. The opinion states that, while “there are averments to show that the facts that plaintiff was under these contracts was known to the defendant,” yet “whether he had such knowledge when he made the contract with plaintiff is not averred.” 138 Ala. 376, 35 South. 411. It also states that the stopping of the mill, etc., was not stated as the basis of a claim for damages, and goes on to announce the recognized doctrine that such damages must not be merely speculative. 138 Ala. 377, 35 South. 411. See, also, Sutherland on Damages (3d Ed.) pp. 161-168, §§ 45, 52, Id. pp. 186, 187, § 59.
The allegations in the third and fourth counts of the amended complaint fall short of the requirements of the rule, in not alleging that the contracts which plaintiff claims to have made were made before or at the time of the making of the contract sued on, with full knowledge of the defendant, or that the same were within the contemplation of the parties in making the contract sued [165]*165on. They are also defective in not making specific averments as to said contracts, from which the court could judge whether the damages were sufficiently certain and easily ascertainable within the rule. Consequently there was no error in striking said portions of said counts.
As to the sustaining of the demurrer to said counts, while it is true that, when the objection is to a part of a count, the proper remedy is a motion to strike (Bessemer Sav. Bank v. Rosebaum Groc. Co., 137 Ala. 530, 534, 34 South. 609; McCleskey & Whiman v. Howell Cotton Co., 147 Ala. 574, 579, 42 South. 67; Byrne Mill Co. v. Robertson, 149 Ala. 274, 286, 42 South. 1008), yet, as nothing else material was claimed in said counts, no injury could occur to the plaintiff by the sustaining of the demurrer.
No injury could accrue to the plaintiff by striking from the complaint the words, “He refused to furnish sufficient feed to keep the teams.” Taken as a separate breach, it is too indefinite to raise a material issue, as it does not allege any injury to the plaintiff by reason of the failure. A man might not furnish sufficient feed for his own teams for their welfare, and still they might be able to do the work which he had contracted for them to do; and it would, at any rate, be but an argumentative inference tha,t they were not. Viewed in connection with the entire count, the gravamen of the count is that he refused to allow the teams to be used at all, and, if so, it was immaterial to the plaintiff whether the defendant did or did not furnish his own teams with a sufficiency of food.
The court erred in sustaining the demurrer to counts 5 and 6 of the amended complaint. The damages therein claimed are legitimate, and it was not necessary to itemized each matter of express. This was matter of evidence, which would come up in the trial. — Danforth & [166]*166Armstrong v. T. & C. R. R. Co., 93 Ala. 614, 11 South. 60; Worthington v. Gwin, 119 Ala. 44, 24 South. 739, 43 L. R. A. 382; Watson v. Kirby & Sons, 112 Ala. 436, 20 South. 624; U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 169.
If plaintiff could have minimized the damages, by employing his hands and himself, after ascertaining that defendant was not going to comply with his contract, that was matter in rebuttal, which might have been brought out in evidence.
The judgment of nonsuit is set aside, and the cause remanded.
Tyson, C. J., and Haralson and Denson, JJ., concur.