C. W. Kettering Mercantile Co. v. Sheppard

• Decision Date: 22 August 1914
• Docket Number: No. 1630.,1630.
• Citation: 19 N.M. 330,142 P. 1128
• Parties: C. W. KETTERING MERCANTILE CO.v.SHEPPARD ET AL.
• Court: New Mexico Supreme Court

19 N.M. 330

142 P. 1128

C. W. KETTERING MERCANTILE CO.

v.SHEPPARD ET AL.

No. 1630.

Supreme Court of New Mexico.

Aug. 22, 1914.

Syllabus by the Court.

An instruction to the jury “that the plaintiff has established his right to recover $65 for the purchase price of the insulating material,” being based upon conflicting evidence, would be a comment on the weight of the evidence, and erroneous under section 2994,Comp. Laws 1897.

Loss of profits, growing out of a breach of contract and resulting to an unestablished business, is of too uncertain a character to constitute a basis for the computation of damages for the breach.

Additional Syllabus by Editorial Staff.

Since damages of an uncertain and speculative nature cannot be considered to have been within the contemplation of the contracting parties, they cannot be recovered, in an action for breach of contract.

Appeal from District Court, Sierra County; M. C. Mechem, Judge.

Action by the C. W. Kettering Mercantile Company, a corporation, against W. A. Sheppard and others, doing business as Sheppard & Bolander.From judgment for less than claimed, plaintiff appeals.Reversed and remanded, with directions.

This is an action, as set out in the complaint, to recover for an ice box sold appellees at the contract price of $515, insulating material to be used in connection therewith at a price of $65, and freight prepaid by appellant from the factory at Waterloo, Iowa, to Omaha, Neb., in the sum of $20.30, making an aggregate sum of $600.30, for which the complaint prays recovery.

An instruction based on conflicting evidence that plaintiff was entitled to recover a certain amount held properly refused as a comment on the weight of the evidence, in violation of Comp.Laws 1897, § 2994.

The defendants, by their answer, admit an agreement to purchase an ice box or cooler and sufficient material to insulate certain pipes in connection therewith, but deny liability for freight charge, and further set up that the ice box or cooler, together with insulating material, was to be furnished for a consideration of $515, defendants to pay freight from Omaha, Neb., and that a failure to conform to specifications resulted in damages to the amount of $250.

Defendants put in a counterclaim of $1,450, based upon damages for alleged breach of a contract between the same parties for the installation of certain ice and refrigerating apparatus, which contract, it was asserted, had been broken in divers and sundry respects.At the trial the item for freight, referred to in the complaint, was eliminated, and no appeal taken from the court's ruling in that respect.

The court instructed the jury that it must find for plaintiff for not less than $515, but might deduct from this amount damages up to $40 for faulty blueprints, damages not exceeding $50 for loss of profits caused by delay in the shipment of ice making plant, and damages not exceeding $117 for failure of the ice plant to make ice as stipulated, as to time and quantity, in the contract.

The jury returned a verdict giving the defendants the maximum damages mentioned in the court's instructions and findings that plaintiff was entitled to recover from the defendants the sum of $308.From the judgment for said sum of $308, in favor of plaintiff, plaintiff sued out this appeal.Other facts are stated in the opinion.

Edward D. Tittman, of Hillsboro, for appellant.

H. A. Wolford, of Hillsboro, for appellees.

HANNA, J.(after stating the facts as above).

[1] Our attention is first directed to an alleged error in the refusal of the trial court to give plaintiff's requested instruction No. 2, which was: “That plaintiff has established his right to recover $65 for the purchase price of the insulating material.”There was a conflict of evidence upon this issue in the case, and the instruction would therefore have been a comment upon the weight of the evidence and objectionable as violating section 2994, C. L. 1897.Douglas v. Territory, 17 N. M. 108, 124 Pac. 339.

[2] The second and third assignments of error raise substantially the same question, viz.: The admission of evidence to show damages in the loss of profits of an unestablished business was of too remote a character to be considered as the proper measure of damages for alleged breach of a contract by failure to deliver machinery within time specified in the contract.It was sought to measure the damages by proving what the profits were after the business was established, without proof of contingent sales during the time of the...