Bixby-Theisen Co. v. Evans

• Decision Date: 28 November 1911
• Citation: 174 Ala. 571,57 So. 39
• Parties: BIXBY-THEISEN CO. v. EVANS.
• Court: Alabama Supreme Court

57 So. 39

174 Ala. 571

BIXBY-THEISEN CO. v. EVANS.

Supreme Court of Alabama

November 28, 1911

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by Milton H. Evans against the Bixby-Theisen Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 1 was as follows: "Plaintiff claims of defendant $1,900 damages for the breach of a contract whereby defendant promised to loan plaintiff enough money to erect certain improvements upon certain lands belonging to plaintiff, not exceeding $2,000; that the consideration of this promise was that plaintiff should tear away certain improvements already standing on said lands, and should erect certain new improvements, and after their completion should do certain work for defendant at agreed prices; that in pursuance of said contract plaintiff did tear away said improvements already on said land; that defendant broke its contract, in this: That it failed and refused to loan said money to defendant. And plaintiff avers that he has been damaged in this especially: He tore away the improvements on said land which were of great value, to wit, $500; he expended much money for labor in tearing the same away, to wit, $250; he was unable to obtain said loan elsewhere, and was unable to erect new improvements, and he has been damaged on account of the loss of the rent on such premises and improvements for a long time, to wit, 12 months; that the rental value, when completed, would have been a large sum, to wit, $50 per month; that the value of said premises would have been great had said new improvements been erected, to wit, $3,500 whereas, they are not now worth over $500; that, relying on defendant's promise, plaintiff purchased material for the purpose of erecting said new improvements, of great value, to wit, $1,000, but that on account of defendant's refusal to furnish said money, and the delay on account thereof, said material had greatly deteriorated in value, to wit, $500 that, relying upon the promises of defendant, the plaintiff was put to great expense and loss of time in making preparations to erect said new improvements, of great value, to wit, $300, all of which has been lost and rendered worthless to plaintiff. And plaintiff avers that the several elements of special damages above set out were all within the reasonable contemplation of the parties at the time of making said contract and at the time of its breach by defendant."

Count 2: "Plaintiff claims of defendant the sum of $1,900 for the breach of a contract entered into between them, whereby for a valuable consideration defendant agreed to furnish and deliver at plaintiff's sawmill logs to be sawed by plaintiff as lumber at specified prices per M. feet, board measure, to the amount of, to wit, $6,000, and in addition thereto did agree to pay plaintiff the sum of 30 cents per M. feet, board measure, for stacking said lumber; and defendant did agree to loan plaintiff the money necessary to erect and equip said mill, not exceeding $2,000, and that defendant had broken its said contract, in this: It refused to loan plaintiff said money, and thereby prevented plaintiff from complying with said contract, and defendant failed to furnish and deliver said logs, whereby plaintiff has been unable to saw said logs and stack said lumber, and because thereof plaintiff has lost a large profit, which he would have made on the sawing of said logs and stacking said lumber, to wit, the sum of $1,999, and plaintiff avers that he has at all times been ready, able, and willing to perform his part of the said contract, if defendant would perform its part of the contract, which was necessary in order to enable plaintiff to perform."

John A. Lusk, for appellant.

Street & Isbell, for appellee.

SAYRE J.

There was no error in the court's rulings on the pleadings. Bixby v. Evans, 167 Ala. 431, 52 So. 843, 29 L. R. A. (N. S.) 194, 140 Am. St. Rep. 47.

The court overruled defendant's motion to strike from the complaint certain items of damages claimed. The rule here is not to predicate error of such rulings for the reason that the defendant may protect himself against injurious results, in case of error, by objections to the evidence, by exceptions to the court's oral charge authorizing recovery, and by special charges. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Southern Ry. Co. v. Coleman, 153 Ala. 266, 44 So. 837.

Appellee was permitted, over appellant's objection, to adduce evidence of conversations between himself and the president of the defendant company prior to the formal execution of the contract. So far as these rulings related to questions of time and place, without calling for the contents of those conversations, if erroneous, they were entirely lacking in prejudicial effect upon defendant's case, and cannot avail for a reversal.

It was competent for the plaintiff to show that in the course of the negotiations leading up to the contract he had communicated to the representatives of the defendant information of the fact that he would be unable to get money elsewhere. Defendant's notice of this special circumstance was a condition upon which plaintiff's right to the recovery of substantial damages depended. Bixby v. Evans, supra.

When this case was here on the first appeal, after stating in a general way the contract between the parties, and the breach alleged by plaintiff, we said that actual damages shown might be recovered, but that profits such as the plaintiff may have expected to realize from the operation of the mill in its improved form could not be recovered because remote and incapable of that clear and satisfactory proof which the law requires to constitute recoverable damages. Perhaps it would have been better to discriminate somewhat with reference to the different circumstances under which the profits claimed were to be earned, though nothing of that was intimated in...