Tygart v. Albritton , 5 Ga. App. 412 ( 1909 )

Hill, C. J.

(After stating the foregoing facts.)

The objections raised by the special demurrer, where not controlled by the judgment on -the general demurrer, can in any event be cured by amendment. We deem it sufficient to consider only the judgment sustaining the general demurrer and dismissing' the ¡Detition.

1. We think the damages sued for in the first paragraph of the petition are recoverable. Plaintiff set out a distinct contract, by the terms of which he was to have a specified share of the profits resulting from the operation of the sawmill. His part of the work was prescribed, and his part of the profits fixed. The gross and net daily output of the mill are stated, with the value of the same, and the daily net share to which plaintiff was entitled by the expressed stipulations of the contract for his part of the work under the contract in cutting' the trees, sawing them into lumber, and hauling the timber to the railroad. We think the damages are not remote, speculative, or legally unceitain, but were clearly iu the contemplation of the parties when the contract was made. The profits on the contract sued for are “the immediate fruit of the contract,” and the loss thereof can be “traced solely to the breach of the contract.” Civil Code, §§3798, 3799; Mitchell v. Henry Vogt Machine Co., 3 Ga. App. 546 (60 S. E. 295); Anderson v. Hilton & Dodge Co., 121 Ga. 691 (49 S. E. 725).

2. Plaintiff can also recover the value of one half of the lumber cut from the 150 sawmill trees furnished by him to the defendant, which he alleges in his petition amounted to $225. This claim •seems to be outside of the contract, and is recoverable without reference to the breach thereof. But it arises on an implied contract by the defendant to pay it, and, being ex contractu, is properly joined in the same suit with the claim for damages arising from the breach of the express contract. The attorney for the defendant in error is mistaken in characterizing the suit as one sounding in tort. It is a plain suit for damages arising from breach of contract. It is usual and proper to join in the same suit damages of the same general character. Civil Code, §4944; Sams v. Derrick, 103 Ga. 678 (30 S. E. 668).

3. The items of damages claimed in paragraphs 2 and 3 of the petition are not recoverable. These were expenses incidental to the ■conduct of the business and to the making of the profits in the business under the contract. They were the plaintiff’s part of the •operating expenses. He can not recover both net profits and expenses incurred in making the net profits. Mitchell v. Henry Vogt Machine Co., supra; Anderson v. Hilton & Dodge Co., supra; Jester v. Bank, 4 Ga. App. 469 (61 S. E. 926). The petition set ■out a good cause of action as above indicated, and the judgment :sustaining the general demurrer and dismissing the entire petition was erroneous. Judgment reversed.