Bass v. Carpenter

• Court: Georgia Court of Appeals
• Writing for the Court: SHULMAN; DEEN; CARLEY; DEEN; Shulman's; CARLEY
• Citation: Bass v. Carpenter, 262 S.E.2d 578, 152 Ga.App. 298 (Ga. App. 1979)
• Decision Date: 14 November 1979
• Docket Number: No. 58158,58158
• Parties: BASS v. CARPENTER.

Page 578

262 S.E.2d 578

152 Ga.App. 298

BASS v. CARPENTER.

No. 58158.

Court of Appeals of Georgia.

Submitted July 2, 1979.

Decided Nov. 14, 1979.

Malcolm F. Bryant, Jr., Vidalia, for appellant.

D. Duston Tapley, Jr., Vidalia, for appellee.

SHULMAN, Judge.

Plaintiff brought suit against defendant for breach of a purported lease agreement, wherein plaintiff had allegedly agreed to rent 101 acres of farm land from the defendant (for the purpose of growing corn) at the price of $26 per acre. From a judgment awarding plaintiff $1,000 in damages, defendant appeals. We affirm.

1. Appellant contests appellee's recovery of damages, as based on lost profits, claiming that under the circumstances of this case lost profits are too remote and speculative to be recoverable. We cannot agree.

"The general rule that the loss of expected profits cannot be recovered does not apply where evidence of such loss is shown with reasonable certainty. (Cit.) 'The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.' (Cits.)" Farmers Mut. Exchange v. Dixon, 146 Ga.App. 663(5), 247 S.E.2d 124.

Plaintiff presented evidence as to the approximate number of bushels of corn he would have been able to harvest from the rented land. Through testimony of his own experience as a farmer and by the testimony of a neighboring farmer (who had farmed corn at approximately the same time of year), plaintiff presented evidence as to the expenses involved in farming corn and the sale price of a bushel of corn. Thus, the plaintiff produced evidence estimating the net profit he would have made had defendant honored the purported lease agreement.

We find, therefore, in accordance with Wideman v. Selph, 71 Ga.App. 343(1, 2), 30 S.E.2d 797, that damages of lost profits were not too remote or speculative to be recovered in the case at bar. This enumeration of error is without merit.

2. Defendant submits that the court erred in instructing the jury on nominal damages, contending that plaintiff's petition alleged only special damages. However, since plaintiff amended his original complaint to include a prayer for nominal damages, we find no error in the court's charge.

3. In his last enumeration, appellant urges that, as a matter of law, there was no evidence of consideration for the purported lease agreement. We cannot agree.

The agreement, signed by both parties, stated that as consideration of, and in exchange for, payment to the defendant of $26 per acre, defendant agreed to lease to plaintiff certain of defendant's land. Contrary to defendant's contentions, the fact that she did not receive payment at the time she signed the agreement does not render the agreement void for lack of consideration. Kirkland v. Odum, 156 Ga. 131, 135, 118 S.E. 706; Nelson v. Woods, 205 Ga. 295(2), 53 S.E.2d 227.

The foregoing enumerations of error being without merit, the judgment of the court below is affirmed.

Judgment affirmed.

QUILLIAN and McMURRAY, P. JJ., and SMITH, BANKE, BIRDSONG and UNDERWOOD, JJ., concur.

DEEN, C. J., concurs specially.

CARLEY, J., dissents.

DEEN, Chief Judge, concurring specially.

Judge Shulman's majority opinion appears to me to be correct. Judge Carley's dissent would of course make it impossible ever to collect damages based on profits to be made from use of land where the landlord thereafter refuses entry prior to the commencement of the lease.

I do not understand that this is what Kenny v. Collier, 79 Ga. 743, 745, 8 S.E. 58 (1887) (on which Judge Carley relies) holds. Further, that case was distinguished in Shiver v. Burkett, also cited in the dissenting opinion (74 Ga.App. 195, 199, 39 S.E.2d 431 (1946)) stating that "the evidence is sufficient to authorize the jury to make as fair and as just an estimate of the damage . . . as the necessities of the case will allow." It is obvious that if this were not the case no damages could ever be proved where there is a contract for an agricultural use. In point of fact, Wideman v. Selph, 71 Ga.App. 343, 30 S.E.2d 797 (1944), followed by Judge Shulman relies on the later Supreme Court case of Anderson v. Hilton etc., Lumber Co., 121 Ga. 688, 691, 49 S.E. 725 (1904) which, being a seven-judge case, must take precedence over Kenny, a three-judge case. Anderson holds that the appellant was correct in suing for "the profits which would have been the immediate result of his operating a mill which the plaintiff had agreed he might operate (on the land) when it stipulated that he should cut the trees and saw them into lumber for purposes of sale." Here, as in Wideman, the lessee seeks damages which would have been the immediate result of his operating a farm which the plaintiff had agreed he...