Smalls v. Brennan , 14 Ga. App. 84 ( 1913 )

Pottle, J.

The plaintiff sued in a justice’s court, for damages for breach of contract. The statement of the cause of action showed that he had purchased a certain quantity of bananas from the defendant, paid part of the purchase-price, and left the bananas in the defendant’s custody to be called for; that about a week after the sale was made the defendant sold the bananas to a third person, and offered to return to the plaintiff the amount paid on the purchase-price. The plaintiff alleged that the bananas were bought for the holiday trade, and by reason of the defendant’s breach of contract the plaintiff sustained a loss of profits in a stated sum. Held, that no cause of action was set forth, and the petition was properly dismissed on demurrer. Under the plaintiff’s allegations he would have been entitled to recover the difference between the purchase-price of the bananas and the market value at the time and place they should have been delivered to him, but, in view of the general nature of the allegations, and especially of the character of the property, the amount of damages he might have recovered on a resale is too remote and speculative, because it can not be áscertained with legal certainty that he could have sold the bananas at all, or what price he would have received for them. Code of 1910, § 4394; Georgia Railroad v. Hayden, 71 Ga. 518 (51 Am. R. 274); Seaboard Air-Line Ry. v. Harris, 121 Ga. 707 (49 S. E. 703) ; White v. Blitch, 112 Ga. 775 (38 S. E. 80) ; Red v. Augusta, 25 Ga. 390; Kenny v. Collier, 79 Ga. 747 (8 S. E. 58). Judgment affirmed.