Anderson v. Hilton & Dodge Lumber Co.
| Decision Date | 27 January 1905 |
| Citation | 49 S.E. 725,121 Ga. 688 |
| Parties | ANDERSON v. HILTON & DODGE LUMBER CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where proceedings are brought to enforce rights arising under a contract required to be in writing, failure to allege in the pleadings that such contract was in writing cannot be taken advantage of by demurrer. The silence raises no presumption that the contract exists only in parol.
2. An allegation that the plaintiff sold to the defendant standing timber to be sawed into lumber, and that after the defendant had moved and located his mill for the purpose of cutting the timber the plaintiff stopped and prohibited the defendant from cutting the timber, whereby he was compelled to shut down his mill and lose the profits, was not demurrable on the ground that the damages were remote or speculative.
3. The profits sued for were not those which were dependent on some other business or enterprise entered into because of the contract, but the defendant was asserting a right for damages occasioned by his being prevented from making the profits which would have been the immediate fruit of the very contract by which the plaintiff granted the right to the defendant to enter upon the land, operate a mill, and sell the lumber. Civ. Code 1895, § 3798.
4. Profits being net earnings after the payment of all expenses the defendant was not entitled to a recovery of the profits as damages, and likewise for the expense of moving and removing his mill.
5. The allegations in the plea were not sufficient to state a cause of action for damages because of the plaintiff's failure to comply with the promise to lend money to the defendant.
Error from Superior Court, Laurens County; H. G. Lewis, Judge.
Action by the Hilton & Dodge Lumber Company against H. K. Anderson. Judgment for plaintiff, and defendant brings error. Reversed.
T. L Griner and James K. Hines, for plaintiff in error.
Dessau Harris & Harris and De Lacy & Bishop, for defendant in error.
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, 27 S.E. 745.
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 cannot be taken advantage of by demurrer. Taliaferro v. Smiley, 112 Ga. 62 (3), 66, 37 S.E. 106; Draper v. Macon Company, 103 Ga. 661, 30 S.E. 566, 68 Am.St.Rep. 136.
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 or 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 plaintiff's 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. Civ. Code 1895, § 3798; Stewart v. Lanier Co., 75 Ga. 582; Waycross Co. v. Offerman Co., 114 Ga. 731, 40 S.E. 738; Kenny v. Collier, 79 Ga. 744, 8 S.E. 58.
4. Of course, the defendant 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...
To continue reading
Request your trial