Tirry v. Hogan , 181 Mo. App. 48 ( 1914 )

REYNOLDS, P. J.

(after stating the facts). — In Hadley v. Baxendale, 9 Exch. 341, 26 Eng. L. & Eq. 398, l. c. 402, it was announced as the rule to be adopted in assessing damages for the breach of a contract that “where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be, either such as may, fairly and reasonably, be considered either arising naturally, that is, according to the usual course of things, from such breach of contract itself, or, such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.” That rule has often been followed and applied in this country. [See Sedgwick on Damages (9 Ed.), secs. 144-148.] Our courts have always recognized it, as see Strahorn-Hutton-Evans Com. Co. v. Western Union Tel. Co., 101 Mo. App. 500, 74 S. W. 876. We think the learned trial court recognized it as the correct rule as to the measure of damage flowing out of the breach of the original contract between the parties here. During the progress of the •trial the court admitted, over the objection of defendants, testimony as to the cost of removing the sawmill from Illinois to Missouri, but it will be noticed that this item is not included in the instructions as an element of damage. In point of fact when the evidence as to that item was offered, while overruling the objection to its admission and allowing it to be given in evidence, the court announced that it did so subject to further ruling.

The evidence is without contradiction that the contract between tine parties was that respondents were to be furnished with sufficient logs to cut at least 240.000 feet of lumber of specified dimensions and for this they were to receive $5 a thousand feet. This contract was breached by failure to deliver that quantity of logs. The evidence is that the cost of sawing was $2.50 per thousand. o Plaintiffs were furnished with sufficient lumber to cut 61,000 feet, and no more. So they lost the profit which would have accrued to them if- furnished with enough logs to cut the remaining 179.000 feet. That profit would have amounted to $447.50. Clearly that difference between the agreed amount and the amount realized measured the damages arising naturally and according to the usual course of things from the breach of the contract.

The fourth instruction given by the court at the instance of plaintiffs, however, while including this loss as an element of damage, went further. It authorized the jury to return a verdict covering the expense of plaintiffs during the time the mill was out of logs, and the expense of going back to their homes and returning, and evidence was admitted covering these items. Ordinarily plaintiffs could not recover for these expenses. [Hadley v. Baxendale, supra; Brown et al. v. Cowles, 72 Neb. 869, 101 N. W. 1020.] But the evidence tends to show that the trips back and forward were made by the express direction of the defendant John J. Hogan. True, this was after entering into the original contract, and undoubtedly not contemplated at the time that contract was made, but we think under the facts in evidence in this case that it was not error to include these items in the damage to which plaintiffs were entitled, not for breach of the original contract, but for extra services performed by them outside of the contract and at the instance and request of defendant John J. Hogan; that is, they are to be distinguished from the damages arising from the breach of the original contract and as arising from agreements made outside of that between the parties. So they are pleaded.

In giving this fourth instruction, the court said,, in effect that in estimating the damages plaintiffs could be allowed to recover the reasonable value for railroad fares and traveling expenses for themselves and their men while traveling to and from their homes to defendants’ place at all times, “as you may, from the-evidence, find that plaintiffs had good reason to believe that such expenses and loss of time were reasonably necessary to the proper performance of plaintiffs’' part of the aforesaid contract, and which defendants, by their having failed to furnish sufficient logs or water, had occasioned (if you do, in fact, find that the defendants did so fail).” This part of the instruction italicized is error, as it apparently leaves the-question of the value of these trips and of the reasonable necessity for them to the judgment of plaintiffs. Notwithstanding this language, and for that matter,, notwithstanding the court instructed the jury that they might return damages for extra men employed and for traveling expenses, no injury resulted to appellant therefrom, for the amount of damages which the-jury awarded is much less than the actual loss to plaintiffs arising directly out of the breach of the contract. That was, according to the undisputed evidence-in the case, $447, whereas the verdict and judgment against defendant John J. Hogan is for but $300. We have concluded that giving effect to section 2082, Revised Statutes 1909, which provides that judgments of any court shall not be reversed by the appellate court,, “unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action,” that this judgment before us should not be reversed for this error in this instruction.

It is argued by learned counsel for appellant John J. Hog’an, that the action having' been brought against John J. Hogan and M. E. Hogan, as partners, and proof of partnership having failed, recovery could’ not he had against one of the partners alone, the other partner having been discharged by the verdict of the jury. That point has been settled adversely to the contention of the learned counsel for appellant by the decision of our Supreme Court in Bagnell Timber Co. v. Missouri, K. & T. Ry. Co., 242 Mo. 11, l. c. 20, 145 S. W. 469, and in Hutchinson v. Richmond Safety Gate Company et al., 247 Mo. 71, l. c. 109, 152 S. W. 52, construing sections 2769 and 2772, Revised Statutes 1909. So our own court has held in several cases, as see WoodsEvertz Stove Co. v. Grubbs & Co., 135 Mo. App. 466, 116 S. W. 5; Laumeier v. Dolph, 145 Mo. App. 78, 130 S. W. 360, s. c. 171 Mo. App. 81, 153 S. W. 510.

The judgment of the circuit court is affirmed.

Nortoni and Allen, JJ., concur.