Malone v. Reynolds

105 So. 891, 213 Ala. 681, 1925 Ala. LEXIS 455

• Court: Supreme Court of Alabama
• Decided: October 15, 1925
• Docket: 2 Div. 875.
• Status: Published

Opinion

MILLER, J.

This is a suit by J. G. Reynolds and V. S. Reynolds against A. R Malone for damages for the breach of a written contract entered into by them for hauling logs. There were 15 counts in the complaint as amended, numbered from 1 to 15, inclusive. The counts numbered from 1 to 10, inclusive, were withdrawn by plaintiff, and the cause was submitted on counts 11, 12, 13, 14, and 15. The defendant pleaded general issue to each of them, with leave to give in evidence any matter that might be specially pleaded, and that plaintiffs may give in evidence any matter that might be set up in special replications. The cause was tried by the court without a jury. Judgment was rendered in favor of the plaintiffs on the oral testimony and documentary evidence, and from it this appeal is prosecuted by the defendant.

The court overruled demurrers to counts 11, 12, 13, 14, and 15 of the complaint as amended. These rulings of the court are assigned as error No. 4, as follows:

“(4) The court erred in overruling defendant’s demurrer refiled to counts 11, 12, 13, 14, and 15 to the complaint as amended, and separately and severally to said counts of the complaint.”

By this assignment five rulings of the court are jointly assailed, and it cannot avail the defendant if any one of the counts was not subject to the demurrers of defendant. Cable v. Shelby, 203 Ala. 28, headnote 1, 81 So. 818; Beason v. Sov. Camp, W. O. W., 208 Ala. 276, headnote 3, 94 So. 123; Roach v. Wright, 195 Ala. 333, headnote 1, 70 So. 271; Jordan v. Rice, 165 Ala. 650, 51 So. 517; Hall v. Pearce, 209 Ala. 397, headnote 6, 96 So. 608.

We will consider count 14, which states the contract between the parties, shows it was in writing, and is made a part of the count by copy attached to it. By the contract defendant agreed to pay plaintiffs $5 per 1,-000 feet for hauling the logs to the mill. It avers it was breached by the defendant and that plaintiffs were damaged thereby. The contract appears in the report of the case. The facts alleged show plaintiffs had purchased the necessary teams and equipment and were performing their part of the contract when breached by the defendant; that they had the necessary teams to do so when the contract was breached, and they were ready, willing, and able to continue to perform their part of the contract, and were prevented from doing so by the defendant. This count (No. 14) appears in the -report of the case. It states- a cause of action against the defendant, and the averments therein that plaintiffs were ready, able, and willing to perform their part of the contract do not render the count demurrable as stating a conclusion and not facts by the pleader. The facts alleged sufficiently show a compliance by plaintiffs with the terms of the contract applicable to them, and a readiness, ability, and willingness to continue to do so when the contract was breached by the defendant, and when he refused to allow them to continue to perform their part of it. Griffin v. Ogletree, 114 Ala. 345, 21 So. 488; Bonifay v. Hassell, 100 Ala. 269, 14 So. 46; Danforth v. Tenn. & Coosa R. Co., 93 Ala. 614, 11 So. 60; Id., 99 Ala. 331, 13 So. 51; Id., 112 Ala. 90, 20 So. 502; Varner v. Hardy, 209 Ala. 575, 96 So. 860; McCord v. Rogers, 211 Ala. 76, 99 So. 794.

The trial court did not err in overruling the demurrers to count 14, and this renders it unnecessary for us to consider the other rulings of the court under this assignment of error numbered 4. Hall v. Pearce, 209 Ala 397/ headnote 6, 96 So. 608, and other authorities cited supra on this subject.

The defendant filed motion to strike separately from counts 12, 13, 14, and 15 certain portions or elements of damages mentioned. He makes separate motion as to each count to strike certain damages claimed, therein from it, and embodies all the motions in one general motion. The court overruled these motions. These rulings of the court are assigned as error No. 5, as follows:

"(5) The court erred in overruling the defendant’s motion to strike certain portions of counts 11, 12, 13, T4, and 15 of the complaint as amended.”

There was no motion as to count 11. By this assignment four rulings of the court are jointly assigned as error, and to be available to the- defendant all four of the rulings must be erroneous. If .one ruling is correct, then, under this one assignment of error, it will be unnecessary to consider the other rulings of ■the court. Hall v. Pearce, 209 Ala. 397, headnote 6, 96 So. 608; Cable v. Shelby, 203 Ala. 28, headnote 1, 81 So. 818, and authorities supra, on this subject.

We will consider the motion as to count 14. The motion states as to this count:

“And the defendant moves to strike from ■count 14 the claim for lost profits as an element of damages.”

This presents one of the real, practical, questions in this cause. Gount 14 contains the following averment:

“That there was a large profit to the plaintiffs in hauling said logs at the price specified in the said contract, to wit, two dollars and fifty cents per thousand feet for all logs so hauled, all to the damages of plaintiffs as aforesaid; hence this suit.”

The plaintiffs look to this count to recover the profits they would have realized by performing the balance of the contract which they were ready, able, and willing to perform, but were prevented in so doing without fault on their part by the defendant.

The principles and rules of law applicable were concisely stated by this court in Danforth v. Tenn. & Coosa R. Co., 93 Ala. 620, 11 So. 62, as follows:

“Where one party, in compliance with his contract, enters upon its performance,“1 and is wrongfully forced to abandon it before’its completion, without fault on his part, he is entitled to recover damages for its breach. If profits formed a constituent element of the .contract, their loss the natural and proximate .result of the breach, and such as was reason,ably in contemplation of the contracting parties, and the amount can be estimated with reasonable certainty, such certainty as satisfies the mind of a prudent and impartial person, they are recoverable as damages. On the other [hand, if profits are merely speculative, conjectural, or too remote, they are not allowable: P. W. & B. R. R. Co. v. Howard [Pennsylvania v. Wheeling & B. Bridge Co.], 13 How. 526 [14 L. Ed. 249]; Beck v. West, 87 Ala. 218 [6 So. 70]; Brigham v. Carlisle, 78 Ala. 248 [56 Am. Rep. 28]; Bell v. Reynolds, 78 Ala. 513 [56 Am. Rep. 52]; 1 Sedgwick on Measure of Damages, 134-136, and note. ‘If the breach consist in preventing the performance of the contract, without the fault of the other party, who is willing, and able to perform it, the damage of the latter consists in two distinct items, namely: Eirst, what he has already expended towards performance, less the value of the materials on hand; secondly, the profits he would realize by performing the whole contract.’ U. S. v. Behan, 110 U. S. 344 [4 S. Ct. 81, 28 L. Ed. 168]; [Masterton v. Mayor, etc., of City of Brooklyn], 7 Hill, 69 [42 Am. Dec. 38].

“Where the proof fails to show that a profit would have been realized, the recoverable damages consist in the reasonable expenditures made, and loss of time, less the value of the material on hand. If the proof shows that profits would have been realized, had the party not been prevented from' performing the contract, they are recoverable, and the measure of profits as damages is 'the difference between the cost of doing the work and the price agreed to be paid. In estimating the cost of doing the work, the less time engaged, a release from the care, trouble, risk and responsibility attending a full execution of the contract, should be considered and included in the estimate.”

It was approved with clearness again by this court in Varner v. Hardy, 209 Ala. 575. 96 So. 860.

The contract sued on shows defendant was running a sawmill near his Lamb place, which contained 460 acres and. had timber on it. He desired all timber to be manufactured into -lumber, and agreed to cut the timber down, saw it into logs, and to pay the plaintiffs $5 per 1,000 feet to haul these logs to his sawmill; and defendant agreed to cut down and saw into logs this timber in such amount to furnish ample logs to keep plaintiffs busy with teams hauling the logs from this place to his mill. The plaintiffs agreed to haul the logs so cut by defendant from this land to the mill, and to keep three teams busy hauling them, and to continue to haul the logs until all the timber cut from this property was delivered at the mill.

It is clear from the coutract that profits to plaintiffs formed a constituent element of the contract, and they were in contemplation of the parties when the contract was made. The loss of profits to plaintiffs was a natural and proximate result of the breach of the contract by defendant. Can the profits be estimated with reasonable certainty, such certainty as satisfies the mind of a prudent and impartial man? If so, then they are recoverable as damages. The number of thousand feet of timber remaining on the land can be estimated with reasonable certainty. The contract specifies the'price ($5) per 1,000 feet for hauling it to the mill. Thus the gross sum contracted to be paid by defendant could with reasonable certainty be calculated and estimated for hauling the balance of the timber to tbe mill. The.excess of the contract price for hauling the balance of the timber over the actual cost thereof to the plaintiffs would constitute the profits — the damages sought. The actual cost of the hauling can be estimated with reasonable certainty and with little difficulty. So under the authorities we must hold the court did not err in overruling the motion of defendant to strike from this count numbered 14 “the claim for lost profits as an element of damages.” Judge Walker, writing for the Court of Appeals in Adams, etc., Co. v. South State L. Co., 2 Ala. App. 471, 56 So. 826, wrote:

“A party who has broken his contract cannot escape liability because of the difficulty there may be in finding a perfect measure of damages. It is enough if the evidence furnishes data for an approximate estimate of the amount of damage.”

See, also, Griffin v. Ogletree, 114 Ala. 343, 21 So. 488; Varner v. Hardy, 209 Ala. 575, 96 So. 860; Bonifay v. Hassell, 100 Ala. 269, 14 So. 46; Baxley v. Tallassee, 128 Ala. 183, 29 So. 451, and authorities supra.

Errors assigned, numbered from 6 to 78, both inclusive,’ relate to rulings of the court adverse to the defendant on objections to-questions and motiohs to exclude answers to questions. These 73 rulings of the court are separately assigned as errors, but they are argued in bulk, as if presenting one assignment of error. If the ruling of the court as to one of the 73 assignments of error was proper, then the others will not be considered and discussed, when they are so briefed and argued by appellant. City of Montgomery v. Moon, 208 Ala. 472, headnote 3, 94 So. 337; Whitaker v. Hofmayer, 211 Ala. 160, headnote 5, 99 So. 911, and authorities supra on this subject. There alleged errors, as stated by appellant, present practically one question.

The court permitted plaintiffs to prove, over the objections of the defendant, the cost of feeding the teams per day, and the cost per day for drivers oí the teams to haul this timber in the shape of logs from this land to the mill. This data was competent and relevant to ascertain the amount of the cost of doing the hauling, which had to be paid by Xfiaintiffs, so it could be ascertained what, if any, profits the plaintiffs would have realized . by performing the balance of the hauling under the contract. Authorities supra.

The appellant insists the court erred in rendering judgment in favor of the plaintiffs. It is true there is a conflict in the evidence as to whether the contract was breached by the defendant or plaintiffs. There is a striking conflict in the amount of timber remaining on the land to be cut and hauled to the mill. However, there is ample

evidence in the. record to sustain the finding of the court, and the judgment rendered, together with the amount of the damages assessed. There is much testimony, if believed, which would entitle plaintiffs to a judgment against the defendant and for the damages assessed by the court. The court tried this cause without a jury. The witnesses were examined orally in his presence, and Ms finding of facts is subject to the same presumption as the verdict of a jury. The evidence was in direct conflict on the issues presented, and we cannot say the judgment was unsupported by evidence and wrong. McNaron v. McNaron, 210 Ala. 687, 99 So. 116; McClurkin v. McClurkin, 206 Ala. 513, headnote 3, 90 So. 917.

The judgment of the court below is affirmed.

Affirmed.

ANDERSON, O. J., and SAYRE and GARDNER, JJ., concur.