Howard v. Taylor , 99 Ala. 450 ( 1892 )

HEAD, J.

When the court sustained several of the grounds of the demurrer to the original complaint, that complaint, not being amended, necessarily went out of court. The fact that the court overruled the second, third and sixth grounds of the demurrer can be regarded as no more than a suggestion to the parties that the objections specifically urged by those assignments were not well taken. The case was therefore tried on the new count which was filed by way of amendment. The overruling the three grounds of demurrer can not be assigned as error here.

There was no error in the first charge given by the court at the instance of the plaintiff. The complaint sets forth a good cause of action. This charge, in effect, asserts no more than that if the plaintiff has established, to the satisfaction of the jury, the material averments of the complaint, he is entitled to recover.

The second charge given for plaintiff was erroneous. The theory of the plaintiffs case is that he purchased the bar and fixtures and lease from defendant, together with the good will of the business defendant was then carrying on, and in consideration thereof paid him $1,400.00, and^defendant agreed not to engage in similar business in Decatur. In estimating the value of this purchase, and determining the contract price, it was considered that defendant had expended $350.00 for a license to engage in the business being disposed of, and allowance was made therefor, by way of addition to the value of the goods ; and, according to plaintiff’s contention, the license was to be cancelled and not to be used again. The transaction in reference to the license was no more than an element entering into, and considered by the parties in the determination of, the value of the purchase plaintiff was negotiating for, and the price he should agree to pay, and into the agreement defendant made, if he made such, not to again engage in the like business. There was no sale and purchase of the license. There could have been none. This is not an action for breach of a contract of sale of the license. No such action would lie. The case, from plaintiff’s stand point, is simply one of a purchase of the fixtures, &c. at the gross agreed price of $1,400, defendant agreeing to abstain from engaging in a competitive business. This is demonstrated by the complaint itself. The amount paid therefor can exert no influence upon the question of the extent and amount of damage plaintiff suffered by the breach of the agreement not to again engage in business. Those damages must be determined by other criteria.

The only evidence touching the measure of damage plaintiff sustained by reason of the alleged breaches, is contained in. his statement, as a witness, that “his business fell off very greatly after Howard opened up on the corner of Bank and Market Streets, and that Howard’s old customers followed him to that place and did not deal with the witness.” It is perfectly manifest that this furnishes no data by which the jury could possibly arrive at the amount of plaintiff’s damage. The proof must go further than this, in order to recover more than nominal damages. 1 Sedg. on Damages, (8th Ed.), §§ 182, 254. The first, fifth and eighth charges requested by defendant, should, therefore, have been given.

The second, third and fourth charges incorrectly state the rule as to burden of proof. They are efforts to state the general rule that where all the evidence which favors the plaintiff and all which favors the defendant are found, when considered together, to be equally balanced, the jury must find against the party on whom rests the burden of proof; but they fall short of it for reasons too obvious to require discussion.

Charge six requested by defendant was properly refused. There was no sale of the license.

Charge seven is tantamount to saying that, if defendant carried on the business which it is alleged he agreed not to carry on, the plaintiff can not recover. It was properly refused. If the plaintiff proved his case to the satisfaction of the jury he was entitled to recover nominal damages, there being no evidence of substantial damage.

We have recently decided, in several cases, that charge nine exacts too high a measure of proof. It was properly refused.

Charge ten pretermits all right of recovery by plaintiff for the alleged breach not to again engage in the business in Decatur, and was properly refused.

For the errors mentioned, the judgment is reversed and the cause remanded.