Beach v. Johnson , 102 Miss. 419 ( 1912 )

Reed, J.,

delivered the opinion of the court.

The appellee entered into a verbal contract with appellant " during the first week in May, 1910, whereby appellee rented to appellant a blacksmith shop on the land of appellee at Holly Ridge, Miss., for a term from the first week in May, 1910, to the last day of April, 1911, at a monthly rental of ten dollars, and agreed to sell to appellant all of the blacksmith tools and materials then on hand in the shop, to be paid for in twelve equal installments, the value to be shown by an inventory and appraisement. It is also stated that appellee agreed to give appellant his custom and good will as a plantation owner. Appellant took possession of the shop and its contents, and the tools and materials were duly appraised. He remained in possession under the contract, doing his work as a blacksmith, until June 1, 1910, when appellee, without the consent of appellant, took possession thereof.

The suit by appellant is for his loss of profits and advantages from the breach of the contract and his being prevented from using the shop and continuing his work as a blacksmith therein. He also seeks to recover on open account amounting to sixteen dollars and fifteen cents for work done for appellee and for two other parties at the instance and request of appellee. Upon the trial of the case, appellant testified that just before he entered into the contract with appellee he had occupied .a blacksmith shop on appellee’s plantation about one .and one-half miles from the Holly Ridge shop, under an agreement with appellee whereby the profits of said shop should be divided between them, and that such profits amounted to at least one hundred and thirty dollars per month; that when the contract was made in May appellee was in a position to know the probable profits per month of the shop, and that the revenues derived from the Holly Ridge shop from the first week in May until it was closed amounted to one hundred-and twenty-three •dollars and forty cents.

The trial judge would not permit appellant to testify .as to the amount, according to his estimate, he would make out of the contract with appellee, had he been allowed to complete it, nor to testify that he could have made a profit of seventy-five dollars per month. The testimony of appellant regarding the contract made with .appellee prior to the first week in May, the profits he would have made out of the business which was being conducted at Holly Ridge shop, had he been permitted to complete the contract, and as to the amount made in the shop during the month of May, was excluded. The court instructed the jury to find for appellee, except as to the sum of five dollars and fifteen cents, the amount of work claimed to have been done by appellant for appellee ; this item being left to the discretion of the jury.

The question in this case is as to the correctness of the ruling of the trial court in excluding all testimony regarding the profits which could have been made by appellant ont of the business at the Holly Ridge shop, and in giving the instruction for appellee which limited his liability to the item of five dollars and fifteen cents for work done for him by appellant. The contention by appellee is that appellant is not entitled to any damages consisting of profits to be derived from the use of the shop and the conduct of his business therein to the end of the contract term.

The principle touching the question of profits as an element of damage is fairly well settled, but it must be applied to each case arising. In the present instance the party sustaining the loss is a blacksmith, who had already had business relations with appellee, a plantation owner. The operation of such business transactions proved profitable to both parties, and following these transactions another business opportunity was offered to him in the agreement by appellee, the plantation owner, to rent him another blacksmith shop in the same neighborhood, and to sell him upon easy terms the materials and tools therein, and to assist him in his business by giving him work to do. The amount made by the blacksmith in his shop consisted in a large measure of the earnings from his own labor. The contract was entered into and continued for a sufficient portion of the time to show that appellant would derive a reasonable net amount from his earnings and profits, and that the business undertaking would inure to his advantage, and that he would realize a fair revenue therefrom. At this point it is shown that this promising business undertaking was interrupted by the act of appellee, who prevented appellant from continuing the occupancy of the shop and completing his contract. In other words, the agreement was broken by the act of appellee. Surely, under these conditions, appellant is entitled to some damages for the loss he has sustained in being deprived of the use of the shop and the continuation of his business and work therein as a blacksmith. It also seems clear that he should be permitted to present testimony in this case showing all of the relevant facts which would aid a jury in fixing the damages which he has properly sustained. It is shown by his testimony that he endeavored to reduce the damages as far as possible in obtaining work and employment elsewhere, and it appears that the suit is for the difference between the amount which he would reasonably have made out of the Holly Ridge shop and the amount earned by him. It has been stated-that, “if complete performance of a contract is prevented by either party, the other, who is willing and able to perform, shall be compensated in damages to the extent of making him whole.” Robertson v. Cloud, 47 Miss. 208.

“The rule that damages which are uncertain or contingent cannot be recovered does not apply to an uncertainty as to the value of the benefit or gain to be derived from performance, but to an uncertainty or contingency as to whether any such gain or benefit would be derived at all.” Blagen v. Thompson, 23 Or. 239, 31 Pac. 647, 18 L. R. A. 315. It is also stated that, “where a party sustains a loss by reason of a breach of a ’contract, he shall, so far as money can do it, be placed in the same situation with respect to damages as if the contract had been performed.” Messmore v. Neio YorK Shot & Lead Co., 40 N. Y. 422.

It is claimed in this case that profits were the very object of the contract. It will be noted that the profits in the present case would have largely consisted of the earning's by appellant in the shop by his labor as a blacksmith. “In many cases, profits are the very object of and inducement to the contract, and so understood by both parties, and then, therefore, they are not only recoverable, but constitute the true and exclusive measure of damages, to the extent to which they may be ascertained. Thus, where two parties enter into a contract by which one undertakes to do certain work for the other, and the latter refuses to permit the contract to be performed, there may be a recovery in damages of such an amount as the former would have made out of fulfillment.” Am. & Eng. Ency. Law, vol. 8, page 622. “It has been held that, when the defendant refused to allow the contract to be executed, the jury should allow the' plaintiffs as much as the contract would have benefited them — profits or advantages which are the direct and immediate fruits of the contract entered into between the parties, and part and parcel of the contract itself, entering into and constituting a-portion of its very element, something stipulated for, and the right to the enjoyment of which is just as clear and plain as the fulfillment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed, perhaps, the only inducement to the arrangement.” White v. Leatherberry, 82 Miss. 103, 34 South. 358.

The earnings and profits which appellant expected to make were the very objects and inducements to the contract, and this was surely understood by both parties. In such case, the appellant should have been permitted to introduce testimony to show the amount of such earnings and profits which he failed to receive by reason of appellee’s refusing to permit the contract to be per-, formed. The jury should have been allowed to consider the testimony offered. The trial court erred in not permitting the appellant to testify concerning the damages sustained by him, consisting of the amount of earnings and profits which he could have made in the shop, if the ■contract had been completed, and in excluding appellant’s testimony on the same subject.

Reversed and remanded.