Black v. Hogsett
| Decision Date | 27 September 1920 |
| Docket Number | 133 |
| Citation | 224 S.W. 439,145 Ark. 178 |
| Parties | BLACK v. HOGSETT |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.
STATEMENT OF FACTS.
This is an action in replevin by J. F. Black against R. H. Hogsett and Mrs. R. H. Hogsett to recover a soda fountain, two gas tanks, some show cases, and other articles mentioned in his complaint.
The defendants denied that the plaintiff was entitled to the possession of said property and by way of cross-complaint asked for damages for the wrongful taking of it by the plaintiff under his writ of replevin.
According to the testimony of the plaintiff, Black, he conducted a grocery and confectionery store at Chester, Arkansas, and in connection therewith operated a soda fountain. He sold his stock of goods to Mrs. Hogsett and rented to her the soda fountain and the store fixtures. It was agreed between them that in the event of a sale of the soda fountain and store fixtures, Mrs. Hogsett should have the option to purchase them. Subsequently the plaintiff had an opportunity to sell the fixtures at a stipulated price and notified Mrs. Hogsett so that she might exercise her option to purchase. She declined to purchase the articles and Black sold them to another person. Mrs. Hogsett refused to surrender the possession of the property to the purchaser, and Black brought this suit to recover the possession of the same.
According to the testimony of Mrs. Hogsett, she purchased the confectionery store from Black during the first part of August, 1918, and conducted it until the 9th of August, 1919 at which time Black took possession of the property in controversy under his writ of replevin in this case. At the time Mrs. Hogsett purchased the confectionery store from Black it was agreed that the soda fountain and other store fixtures should be rented to her by him. Some months after this they made another verbal contract under which Black rented to her the property in controversy during the cold drink season of 1919. Pursuant to this contract in July 1919, Mrs. Hogsett paid to Black's agent the rent on the property in controversy for two months or up to September 15 1919. The cold drink season usually ended about the middle of September, but in 1919 it ran up to the first of October. The profits from the sale of the cold drinks by Mrs. Hogsett were greater than that derived from the sale of the groceries and confectioneries by her. Mrs. Hogsett testified that her average daily sales were about fifty or sixty dollars for the two weeks previous to the time the property was taken under the plaintiff's writ of replevin, and that her sales would have continued this large, on through the season.
In rebuttal, evidence was introduced by the plaintiff tending to show that Osborn, who received the rent from Mrs. Hogsett from July 15, 1919, to September 15, 1919, was not authorized to receive it, and that when Osborn transmitted the same to him he declined to accept it. After this time Mrs. Hogsett never offered to pay him any further rent.
The plaintiff also introduced evidence tending to show that Mrs Hogsett did not make the profits testified to by her.
Other evidence will be stated or referred to under appropriate headings in the opinion.
The jury returned a verdict for the defendants, and from the judgment rendered the plaintiff has appealed.
Judgment affirmed.
Sam R. Chew, for appellant.
Defendants were not entitled to recover at all, but if they were, the evidence is not sufficient to support the verdict on the cross-complaint. The evidence is vague, indefinite, uncertain and speculative. The only damages recoverable for the breach, if any, are only those incidental to and directly caused by the breach and may reasonably be presumed to have entered the contemplation of the parties and not speculative profits or consequential losses. 53 Ark. 434. There is no proof to show with certainty what appellee's sales would have been from August 8 to September 15, 1919, nor the character of goods they would have sold or the profit that could have been made, and the verdict is wholly without legal evidence to sustain it; it was the result of mere speculation. The court failed to instruct the jury as to the measure of damages and the court's instruction on its own motion was prejudicial and reversible error. The evidence of Mrs. Hogsett as to how long the sales and profits would have continued were mere guess work and inadmissible and there was no legal proof to support the verdict.
E. L. Matlock, for appellees.
The jury heard all the evidence and found for appellees on the question of damages under proper instructions of the court and the verdict should be sustained, as there was no error of law and the verdict is conclusive.
OPINIONHART, J. (after stating the facts).
It is insisted by counsel for the plaintiff that the defendants are not entitled to recover at all; and that, if they are entitled to recover, the evidence is not sufficient to support the verdict. We can not agree with counsel in this contention.
The principle touching the question of profits as an element of damages is well settled. The rule is that where one party to a contract is prevented from performing the same by the fault of the other party, he is entitled to recover the profits which the evidence makes it reasonably certain he would have made, had the other party carried out his contract. The rule that damages which are uncertain or contingent can not be recovered, does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover. Streudle v. LeRoy, 122 Ark. 189, 182 S.W. 898, and Harmon v. Frye, 103 Ark. 584.
It is shown by the record that the plaintiff owned and operated a confectionery store and cold drink stand in a small town in Crawford County,...
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