Anderson v. Hilton & Dodge Lumber Co. , 121 Ga. 688 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) The objections raised by the special demurrer could have been cured by amendment. The parties have argued only the controlling question. It would be unprofitable to consider each of the many special grounds of the demurrer. We shall therefore consider only the points which the bill of exceptions indicates were involved in the decision by the trial judge. Moss v. Fortson, 99 Ga. 496.

1. A party is not obliged to set out in his pleadings the evidence on which he relies. The failure to allege that a contract is in writing raises no presumption that it exists only in parol. It is now well settled in this State, that, where proceedings are brought to enforce’ rights arising under agreements required to be in writing, the failure to allege that the contract was in writing can not be taken advantage of by demurrer. Taliaferro v. Smiley, 112 Ga. 62 (3), 66; Draper v. Macon Company, 103 Ga. 661.

2, 3. The plaintiff agreed to sell certain timber to the defendant at a certain price. It also agreed to buy from him lumber cut therefrom at a certain price. The damages arising from the breach of the contract to sell Q|, the breach of the contract to buy were recoverable, and the measure of damages in such cases is clearly defined. But treating the counter-affidavit as pleading, seeking to set up a cause of action for the damages resulting from the plaintiffs refusal to permit the defendant to operate the mill and cut the timber sold for that purpose, it was not demurrable. Anderson was not suing to recover profits which were dependent on some other enterprise entered into because he* happened to have this contract. He sued for the profits which would have been the immediate result of his operating a mill which the plaintiff had agreed he might operate when it stipulated that he should cut the trees and saw them into lumber for purposes of sale. He was suing for damages in contemplation of the parties when the contract was made. Civil Code, § 3798; Stewart v. Lanier Co., 75 Ga. 582; Waycross Co. v. Offerman Co., 114 Ga. 731; Kenny v. Collier, 79 Ga. 744.

4. Of course, the plaintiff is not entitled to recover for the profits and also, the expenses in conducting the business. Moving "the mill to the land or removing the mill from the land were not expenses incurred in carrying out a contract between two parties, such as those included in Civil Code, § 3806. Nor are they expenses to which a party was put by reason of a tort referred to in Civil Code, §3908. But the expenses of moving and removing the mill were a necessary part of the cost of conducting defendant’s business and by the expenditure of which he expected to make the profit for which he sued. They are no more recoverable than would be the expenses of paying his employees while the mill was actually in operation.

5. The mortgage did provide that the property thereby con- , veyed should be security for any advances thereafter made to the defendant by the plaintiff. It is alleged, that an agreement to lend was violated, and that the defendant was damaged by the company’s failure to advance money as agreed. But the defendant does not state enough to warrant a recovery on the ground that there had been damage to his credit by failure to pay the check. Nor does he allege enough to entitle him to recover for a breach of the agreement to lend. There have been cases in which such suits have been maintained, but they are extremely rare, and, in' view of the nature of money, must be. One dollar in legal tender is worth no morq|than another. The price of money is the principal and the legal or contract rate of interest. Hence' the circumstahces must be peculiar in which a person is entitled to damages because of a failure to lend as promised. No injury will flow from such a breach the same amount can- be borrowed from another on the same terms. If there is a mere contract to lend, and no date is. named for the maturity of the loan, repayment is due immediately. Damages for failure to receive that which would have to be at once returned would be nothing; though the circumstances might be such as to change this rule if the lender knew that the money was intended for some purpose which precluded the idea of immediate repayment. But it is evident that the nature of the transaction is such as to afford no room for the implications which so often supply the omitted terms in many other contracts. There must be something definite. The contract must be supported by a consideration. It must be mutual. Swindell v. Bank, 121 Ga. post. And it must be made to appear that the borrower had been unable to obtain a like sum upon like terms. It would further be necessary to show definitely and distinctly that the damage (other than that arising from having to pay a higher rate of interest) was in comtemplation of the intending lender at the time he made the agreement to lend. The counter-affidavit in the present case did not state a cause of action for the alleged breach of the contract to lend money or make advances. Blue v. Capitol Bank, 145 Ind. 518; Gooden v. Moses, 99 Ala. 230; McGee v. Wineholdt, 63 Pac. 571; Kelly v. Fahrney, 97 Fed. 176; Equitable Loan Co. v. Ware, 26 S. W. 276 (2, 3); Lowe v. Turpin, 37 L. R. A. 233.

Judgment reversed.

All the Justices concur.