Marvell Light & Ice Company v. General Electric Company

• Decision Date: 11 February 1924
• Docket Number: 158
• Parties: MARVELL LIGHT & ICE COMPANY v. GENERAL ELECTRIC COMPANY
• Court: Arkansas Supreme Court

259 S.W. 741

162 Ark. 467

MARVELL LIGHT & ICE COMPANY v. GENERAL ELECTRIC COMPANY

No. 158

Supreme Court of Arkansas

February 11, 1924

Appeal from Phillips Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

Bevens & Mundt, for appellant.

The demurrer should have been overruled. It was a general demurrer raising only the question that the counterclaim did not state facts sufficient to constitute a cause of action. A complaint will not be set aside on demurrer, unless it be so fatally defective that, taking all the facts to be admitted the court can say they furnished no cause of action whatever. 159 Ark. 31. If a cause of action can reasonably be inferred from the allegations of the complaint, it is not subject to general demurrer. 93 Ark. 371. The proper mode of correction is by motion to make more definite and certain. 91 Ark. 400; 75 Ark. 64; 6 Ency. Pl. & Pr. 350; 31 Cyc. 289; 122 Ark. 141; 96 Ark. 163. Loss of profits as an element of damage has been approved by this court. 72 Ark. 275; 104 Ark. 215; 74 Ark 358. Full notice was given prior to the making of the contract that damages would result from delay. Where one is prevented from performing a contract by the fault of another he is entitled to recover the profits which the evidence makes it reasonably certain he would have made had the contract been carried out. 105 Ark. 421; 97 Ark. 522; 95 Ark. 363.

No brief for appellee.

OPINION

HUMPHREYS, J.

Appellee instituted suit in the circuit court of Phillips County against appellants, to recover $ 735.99 for machinery which it sold and delivered to them, to be used in the construction of an ice plant.

Appellants filed an answer, admitting the purchase of the machinery and the correctness of the claim, but, by way of counterclaim, alleged special damages of $ 1,000 in lost profits on account of delay in delivering said machinery. The counterclaim is as follows:

"Further answering, and by way of counterclaim, the defendants charge and allege that on the 28th day of August, 1919, they entered into a contract with the plaintiff for the purchase of the machinery for the purchase price of which the plaintiff now sues. That, under the terms of said contract, delivery of said machinery so purchased was to be made to the defendants on or before December 1, 1919. That, prior to the time of making said contract, the plaintiff was notified by the defendants of the purposes for which said machinery was bought, to-wit, to run an ice factory, and the reason why delivery by the said contract date was necessary and of the special damages which would ensue to defendants in event plaintiff should breach said contract by failing to deliver said machinery on or before December 1, 1919, as aforesaid. That plaintiff, with full notice and knowledge, as aforesaid of the special damages resulting to defendants for failure to deliver said machinery on the contract date aforesaid, and after an implied promise of plaintiff to defendants to assume liability for said special damages, the plaintiff wantonly and without reason or valid excuse, breached said contract by delaying shipment of said machinery, so that the same, instead of reaching defendants on December 1, 1919, did not reach defendant until the...