DocketNumber: Appeal, No. 25
Citation Numbers: 71 Pa. Super. 501
Judges: Keller, Orlady, Porter, Trexler, Williams
Filed Date: 4/21/1919
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The assignments of error in this appeal raise the question whether the trial judge was correct in his instructions to the jury on the measure of damages for breach of contract relative to the sawing of all the timber on a certain tract of land, and also his right to calculate the amount which the plaintiff was entitled to recover and reduce the verdict to that sum, instead of granting a new trial, after he had become convinced
The contract between the parties provided that the defendant should cut the timber and furnish sufficient logs on the skidway to keep the mill in operation ten hours every day, unless prevented by fire, ice, flood, act of God or public enemy, or other happening beyond his control,' and that the plaintiff should saw the logs into lumber until all the merchantable timber on the tract was sawed out, unless prevented by fire, ice, flood, act of God, public enemy, or other happening beyond his control, for which he was to receive three 50/100 dollars for each one thousand feet of saleable lumber.
The verdict of the jury in favor of the plaintiff established the fact that the contract had been broken by the defendant, without fault on the part of the plaintiff, and that the latter was entitled to damages for such breach.
The plaintiff had testified that the fair average daily capacity of the saw mill was five thousand feet per day: “I sawed over on it and I sawed less on it”; and that the daily cost of operating his mill was $6.50 per day: “I paid Stackhouse $3 and the other men $1.75, it takes two men.” He also testified that his mill had been idle, on account of the failure of the defendant to furnish logs on the skidway, for one hundred and forty days, before he quit sawing and removed his mill from the tract. The defendant, although in his affidavit of defense. he 'denied that the actual output of the plaintiff’s mill averaged 5,000 feet a day and that the per diem expense of operation was only $6.50, offered no testimony on the subject. He did produce testimony, however, that the merchantable standing timber on the tract at the time the plaintiff removed his mill was about 244,293 feet.
The learned trial judge, in his charge to the jury on the question of damages, said: “He [the plaintiff] said that if the defendant had fulfilled his part of the agree
Upon the argument of a rule for a new trial and for judgment n. o. v., the trial judge became convinced that the per diem measure of damages was improper and excessive, because it allowed a recovery in excess of the standing timber left on the tract, and that the damages should have been based on the plaintiff’s net profit per thousand feet of lumber, sawed out of the timber standing on the tract when he removed his mill. Instéad of granting a new trial, however, he came to the conclusion that “we can arrive at the damages sustained by the plaintiff measured by the proper standard.” “Assuming that the jury would have found the amount of standing timber left after the sawing operations were abandoned at the figure given by the witness, Garrison, whose testimony is the only testimony on the subject and is undisputed and comes from a witness apparently qualified to estimate the amount, then the facts being found in favor of the plaintiff, the verdict might have been arrived at as follows: Capacity of mill, 5,000 feet per day at $3.50 per M. .$17.50. Cost of manufacture, $6.50. Profit on 5,000 feet, $11. Profit on 1,000 feet, — 1/5 of $11 or $2.20. Amount of timber left standing, 244,293 feet at $2.20, $537.44. Which with interest from the 1st day of May, 1914, at 6 per cent., equals $652.72. This would have been the verdict arrived at by the proper measure, if the proper measure of damage had been adopted. We will reduce the verdict' to this amount, and if the plaintiff refuses to accept t,he reduction, we will grant a new trial.” The plaintiff
The learned judge’s error seems to have been his conclusion that, because the plaintiff had testified that the average daily capacity of his mill was 5,000 feet and that his daily expense of operation was $6.50 and this was not contradicted by the defendant’s witnesses, if the plaintiff was entitled to recover at all, he was, per force, entitled to recover on that basis. He may have been entitled to recover on that basis, but not necessarily so. It was a matter of unliquidated damages, and the amount was for the determination of the jury, not the court: Cope v. Bangor & Portland Traction Co., 39 Pa. Superior Ct. 134. It was their duty carefully to consider the plaintiff’s testimony on the subject and give due weight to it; but they had a right, and it was their duty, to consider that his figures were only an approximation, an average; that, as in all such operations, there was the possibility of a break in the machinery, of a shut-down or slackening of work from sickness or absence of employees, or the many other annoyances and interruptions which, in the common experience of mankind, attend such operations. This was not a case where a fixed percentage of profit was provided for in the contract: Wilson v. Wernwag, 217 Pa. 82; nor where the work had been sublet at a definite figure: Smith v. Kaufman, 30 Pa. Superior Ct. 265; nor was it a case where a man contracts to sell goods at a certain price and on breach thereof the purchaser is compelled to go into the open market and buy them, fixing his damages, if his testimony is believed, with mathematical certainty. The damages were unliquidated and could not be liquidated with absolute certainty, nor was it necessary that they should be able to be so calculated. All that was required was, that they should be ascertainable with reasonable certainty: Clyde Coal Co. v. P. & L. E. R. R. Co., 226 Pa. 391; and the plain-, tiff’s evidence furnished the basis by which such dam
So when on consideration of the rule for a new trial the court came to the conclusion that the verdict was erroneous and excessive by reason of the adoption of the per diem measure of damages, the same error was repeated in the attempt to calculate what the verdict of the jury would have been if they had been instructed that the measure of damages was the plaintiff’s probable net profits if he had sawed the remaining standing timber on the tract.
. The second, third and fourth assignments of error are sustained. The judgment is reversed and a venire facias de novo is awarded.