Border City Ice And Coal Co. v. Adams

• Decision Date: 13 April 1901
• Parties: BORDER CITY ICE AND COAL COMPANY v. ADAMS
• Court: Arkansas Supreme Court

62 S.W. 591

69 Ark. 219

BORDER CITY ICE AND COAL COMPANY v. ADAMS

Supreme Court of Arkansas

April 13, 1901

Appeal from Sebastian Circuit Court H. C. MECHEM, Special Judge.

Judgment affirmed.

Winchester & Martin, for appellant.

Evidence of prospective profits is not admissible to prove damages for breach of contract. 57 Ark. 203; 7 Hill, 61; 139 U.S. 169; 34 N.Y. 634; 71 N.Y. 133; 36 N.J.L. 262; 38 id. 496; 139 U.S 199; 78 Ala. 249; 16 N.Y. 489. The damage growing out of loss of profits was too remote, and the amount too contingent and uncertain, to admit of recovery therefor. 110 U.S. 238; S. C 28 Lawy. Ed. 198; 3 L. R. A. 587; 19 Ga. 416; 139 U.S. 199; S. C. 35 Lawy. Ed. 147; 30 Ga. 560; 47 Ark. 527; 34 Ark. 710; 48 Ark. 502-10; 55 Ark. 331; 16 N.Y. 489; 13 Mo. 517; 32 Mo 305; 78 Ala. 249; 94 Ala. 626; 106 Mich. 542; 58 Ill.App. 519; 86 Ill. 215; 49 Tex. 260; 56 Tex. 149; 8 Am. & Eng. Enc. Law (2 Ed.), 620; 1 Sedgw. Dam. 108; 1 How. 28; 100 U.S. 500, 507; 19 Wall. 37; 9 Ex. 341, 354, 356.

Hill & Brizzolara, for appellee.

The loss of profits was recoverable. 22 Kans. 374; 92 F. 293; 12 N.W. 640; 139 U.S. 199; 153 U.S. 540; 106 Pa.St. 237; 58 Ill.App. 519; 56 Kan. 614; 48 Ark. 502; 16 N.Y. 489; 71 N.Y. 118; 22 Kan. 374; 43 Kan. 267; 56 Ark. 309; 52 Ark. 246; 54 Ark. 216; 1 Sedgw. Dam. § 182; 42 P. 706; 33 S.W. 835; 49 Ill. 219; 52 N.W. 609; 11 Mich. 542; 62 Mo. 171; 43 Kans. 272; 12 N.W. 640; 14 Mich. 34; 52 N.W. 609; 101 N.Y. 205; S. C. 4 N.E. 269; 3 L. R. A. 587; 5 Laws. Rights, Rem. & Pract. § 2623; 8 Am. & Eng. Enc. Law (2d Ed.), 620-624.

OPINION

BUNN, C. J.

This is a suit for damages growing out of a breach of a contract for the sale and supplying of ice during the season of 1896, brought by the appellee, Adams, against the appellant, the Border City Ice and Coal Company, in the Sebastian circuit court, Fort Smith district, on the 7th day of October, 1897. Trial by a jury, and judgment for plaintiff for the sum of $ 422.10, with interest on $ 325 of same from October 1, 1896, and on the remainder, $ 97.10, from July 17, 1896, at 10 per centum per annum, and defendant appealed.

The suit was for a breach of the following contract, to-wit:

"March 28th, 1896.

"In consideration of receiving all of your orders for ice in car lots during the season of 1896, we agree to furnish your entire requirements of ice in fifteen ton shipments at four and no hundred dollars per ton delivered at Muskogee, I. T., and to keep you promptly supplied on thirty-six hours' notice. Should the general price of ice decline, or any bona fide competitors shade this price, we agree to give you the benefit of such lower price as prevails on purchases made while such lower price is in force.

(Signed)

"BORDER CITY ICE & COAL COMPANY,

"Per W. O. Caldwell, Mgr."

The contract made on the day named and on the terms set forth therein was performed by both parties up to the 17th day of July, 1896, when, by reason of an accident to its machinery, the appellant company ceased to fulfill its part of the contract, and never again offered or undertook to do so, the appellee having ceased to carry on the local ice business at Muskogee on the 20th August, 1896, having been forced to do so, as he claims, by the said failure of appellant to perform its part of the contract. The proof tends to show that the appellant was a manufacturer of and wholesale dealer in ice in the city of Fort Smith, Arkansas, and by the contract sued on had engaged to furnish ice, as stated in the contract, to the appellee, a local and retail dealer in ice, in Muskogee, in the Indian Territory; and that the former ceased to comply with its contract from and after the 17th day of July, and that, by making other temporary arrangements and purchasing elsewhere, the latter continued to carry on the local ice business until the goth August, 1896, when, as stated, by the default of the former, he was compelled to close out.

The contention of the appellee is that he was actually damaged from the 17th of July until the goth August in an amount equal to the difference of what he was compelled to pay for ice purchased from other parties and what he would have had to pay appellant had he continued to furnish him; that is, the contract price. The instructions of the court and also the findings of the jury sustained this contention, and there is no reason why the verdict and judgment on this part of the case should not be sustained.

As to the damages for loss of profits that would have accrued after the goth August and until October, 1896, when the contract season closed, a more difficult question is presented. The difficulty is not so much in determining whether or not the appellee has a cause of action for his damages by reason of loss of profits which he would have enjoyed had appellant fulfilled its contract, but rather in determining with any degree--that is the proper degree--of certainty the amount of such damages, and how to measure them.

In Allis v. McLean, 48 Mich. 428, 12 N.W. 640, the supreme court of Michigan, speaking by Judge Cooley, said: "We had occasion in McEwen v. McKinnon, 48 Mich. 106, 11 N.W. 828, decided at the last term, to pass upon a question much like the one which arises here. In that case, as in this, a mill-owner had contracted for machinery to be furnished by a specified day, and he sought to recover profits lost by reason of his mill lying idle, as damages for the failure to perform the contract in time. It seems reasonable that where profits are thus lost the defaulting party should make them good, for the machinery is purchased with a view to the profits, and the contract would not be entered into if the profits were not expected and counted upon. But the difficulty in measuring damages by profits is that they are commonly uncertain and speculative, and depend upon so many contingencies that their loss cannot be traced with reasonable certainty to the breach of contract. When that is the case, they are said to be too remote; and the damages must be estimated on a consideration of such elements of injury as are more directly and certainly the result of the failure in performance.

"But in some cases profits are the best possible measure of damages, for the very reason that the loss is indisputable and the amount can be estimated with almost absolute certainty. The case of a contract for the delivery of grain or any other article which at all times finds a ready sale at a current price is an instance; if the contract is not performed, the purchaser may recover the advance beyond the purchase price; and this, though not recovered under the name of profits, will be dependent upon the performance of another; and if the second contract is broken, the loss of definite and fixed profits is really nothing else. It often happens also that one contract, the performance of which will result in certain and definite profits, will be dependent upon the performance of another; and...