Betts Co. v. Mims , 14 Ga. App. 786 ( 1914 )

Wade, J.

(After stating the foregoing facts.) The first three grounds of the motion for a new trial are the usual general grounds, and require no extended comment, as there was ample evidence to sustain the verdict. The fourth ground objects to a long extract from the charge of the court, consisting of code-section 4395, of several paragraphs stating- the contentions of the plaintiff, and of the following instructions: “If you believe that the plaintiff is entitled to recover, and in an effort to mitigate the damages did sell a number of teams for a less amount than the teams would have been worth at the expiration of the contract, then the defendant would be liable to the plaintiff for the difference, if any, of the value of the teams so sold at the time fixed for the expiration of the contract and the time of the actual sale of the same; provided you believe that the plaintiff, in making the sale, was under the expense of the care and feeding of the teams, and got the highest price obtainable.” “Plaintiff claims that several of the teams he could not sell, and he was forced to the expense of feeding and caring for said teams from the breach of the contract until the time the contract would have expired.” “If you believe, from all the evidence- submitted to you in this case, that the plaintiff is entitled to recover, and that the plaintiff, after the breach of the contract, used care and diligence to lessen the damages caused by the breach (if you believe there was a breach of the contract), by trying to sell the teams or procuring work for them, and failed to do so, and was forced to feed and maintain such teams, he would be entitled to recover the'actual cost of the feed and the maintenance of such teams until the date of the expiration of the agreement between the parties.”

This latter excerpt from the charge of the court is objected to for the following reasons: (1) “Because the same is contrary to law upon its face.” This assignment of error can not be considered, since it makes no attempt to show how or in what manner the charge is contrary to law. (2) “Because the same instructs the jury to the effect that the plaintiff, if entitled to recover at all, was entitled to recover the amount that he would have earned from the date’ of the alleged breach of the contract to the date of its expiration, less expenses of carrying out the contract, and also the difference between the amount received upon the sale of the teams and the amount the same would have been worth at the expiration of the contract, and also the cost of feeding and taking care of the teams pending an effort to sell them.”' The movant insists that the plaintiff could in no event “recover more than his net earnings from the date of the alleged breach to the date that he claimed the contract expired.” This objection is not well founded, in view of the decision heretofore rendered by this court, mentioned supra, in which the court said: "If by the exercise of ordinary care and diligence the plaintiff could have employed his teams profitably in other work, it was his duty to do so. But it was alleged that when the breach occurred it was a time of the year when other work was not available. The plaintiff was confronted with the proposition as to whether it would be more economical to keep the teams and continue to feed them until work could be obtained, or to dispose of them at a loss. It was his duty to act under the circumstances as an ordinarily prudent man would have acted. He alleges that it was more economical to sell them. If so, the loss thus incurred is an element which may properly enter into the calculation of damages.” From this and from what follows in the same .opinion, it is clear that this objection to the charge of the court is not well founded. (3) It is complained that the instructions were mixed and confusing; but the movant failed to set out in what way or manner the charge lacked clearness; and, taking into consideration the complicated nature of the action, it appears to us that the instructions of the pourt were perhaps as clear as the nature of the case permitted. (4) It is objected that the instructions were not consistent with the rule laid down in the former «decision by this court (9 Ga. App. 718, 72 S. E. 271). We take the contrary view, and see no material variance between the rule heretofore enunciated by this court, and the measure of damages suggested by the trial judge.

The fifth special ground of the motion for a new 'trial complains that "the court failed to instruct the jury, as to the contract and legal measure of damages to apply in this case, in the event the ■jury determined that the plaintiff should recover.” In the sixth special ground it is complained that the court failed to give the jury proper and legal instructions to "guide them in determining the amount of the net earnings” that the plaintiff would be entitled to recover, etc. In the seventh special ground it is contended that the court failed to give the jury proper and legal instructions "to guide them in determining the amount to be deducted from the amount of net earnings to be recovered by the plaintiff,” etc. It does not appear that any timely written request for a fuller or more specific charge than that given by the court was made at the trial, nor does it appear, from these last three exceptions, wherein the court failed to properly instruct the jury or charge the law; and since no specific assignments of error are therein made, we can not know why the charge was considered insufficient, especially since the charge as a whole appears to cover all of the material contentions of the parties.

In the eighth ground of the motion for a new trial it is complained that the court erred in charging the jury therein set out, but it is not stated how or in what manner the court so erred; and therefore, as has been often ruled, the assignment of error can not be considered. The same may be said of the ninth and tenth special grounds of the motion for a new trial. What the movant may have had in mind, or for what reason the movant objected to the charge complained of in the eighth, ninth, and tenth special grounds of the motion, it is impossible for this court to determine from anything that is set out and declared in these grounds themselves; and since it is neither proper nor admissible for this court to analyze, weigh, and measure excerpts from the charge of a trial judge, in order to discover a possible error not specifically and directly singled out and complained of by a bill of exceptions or a motion for a new trial (as the case may be),.and since the charge as a whole seems to have fairly and impartially stated the various contentions of the parties, we can not give consideration to these exceptions. Judgment affirmed.

Roan, J., absent.