Delta Table & Chair Co. v. Yazoo & Mississippi Valley Railroad Co.

• Decision Date: 27 October 1913
• Docket Number: 16,110
• Citation: 63 So. 272,105 Miss. 861
• Parties: DELTA TABLE & CHAIR CO. v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO
• Court: Mississippi Supreme Court

63 So. 272

105 Miss. 861

DELTA TABLE & CHAIR CO. v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO

No. 16,110

Supreme Court of Mississippi

October 27, 1913

APPEAL from the circuit court of Yazoo county, HON. W. A. HENRY Judge.

Suit by the Delta Table & Chair Company against the Yazoo &amp Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

E. L Brown and Campbell & Campbell, for appellant.

It has long been settled that profits may be recovered, as the measure of damages for the simple breach of a contract, if such profits were within the contemplation of the parties at the time the contract was made, and the loss thereof was the result of the breach. Railroad Co. v. Ragsdale, 46 Miss. 458; Express Co. v. Jennings, 86. Miss. 338.

The anticipated profits of an established business, saw-milling may be recovered, upon a simple breach of contract to deliver logs. Leatherberry v. White, 82 Miss. 103.

Damages to cattle being fed for market, due to delay in the transportation of feed for them, the railroad company having been given, at the time of the shipment, notice that such damages would ensue, are recoverable. Railroad Company v. Jones, 87 Miss. 489.

When the books speak of profits, as not recoverable because speculative and uncertain, they have reference to the question of whether the loss of profits was the result of the breach, and not whether the amount of the damages was certain. It is only necessary that the "nature and cause" of the damage be certain. Railroad Co. v. Hubbard, 85 Miss. 480, 8 Enc. of Law (2 Ed.), 614.

Evidence of past profits of a business is admissible, as is evidence of the nature and magnitude of the business, whether there be entire loss of the business, or merely an impairment, though such evidence is not the. strict measure of recovery. 8 Am. & Eng. Enc. of Law (2 Ed.), 626.

In case of delay in the shipment of drummer's samples until after the season for which they were suitable, profits from probable sales therefrom are recoverable, if notice of the purpose for which the goods were intended was given the carrier at the time the contract was made. 8 Enc. of Law (2 Ed.), 594, note 4.

Where samples are shipped for exhibition at a fair or show, and, on account of delay in transportation, they do not arrive in time for exhibition, recovery of anticipated profits and increase of custom may be had, if the carrier, at the time the shipment was made, had notice of the purpose for which it was made. This proposition is announced as an illustration of the principle, cited above that it is not uncertainty as to the amount, but uncertainty as to whether damage resulted from the breach, which forms the basis of a denial of the recovery of profits as an element of damages. 8 Enc. of Law (2 Ed.), 616 and 615, note 5.

The agent of defendants, at the time the shipment was made, was advised of the purpose thereof; he, therefore, then contemplated, as did the plaintiff, that loss of sales and the profits thereon would ensue, if the shipment was not made with reasonable dispatch; the goods were in transit nineteen days, being from eleven to fourteen days longer than the time reasonably required for the transit; the plaintiff did not receive the goods until the market was about over, and then made sales of twenty-three hundred dollars, as compared with sales of fifteen thousand dollars, on the same market in July before; the bill of lading stipulated for a delivery within a reasonable time; the plaintiff was damaged twenty-five per cent of the sales it could have made, which its manager believes would have amounted to twenty thousand dollars; there was no chance for the plaintiff to make sales to keep its mill going, after that market closed; and it must recover, unless we go back to the antiquated and oft-repudiated notion that loss of profits do not afford ground for a recovery of damages, occasioned by breach of contract.

Mayes & Mayes, for appellee.

Let us first consider the question of whether or not the trial court acted properly in refusing to allow the jury to award the appellant damages to compensate it for its alleged lost profits.

We think this action of the trial court was unquestionably correct. And we think that it was correct for two reasons: First, because the lost profits which the appellant is here seeking to recover, are so remote, uncertain and speculative that they cannot form the basis for a judgment; second, because, at the time this contract of carriage was made, the appellees were not told, and they did not know, that the loss of profits, which were special damages, would result from a breach of the contract.

Now, let us discuss the first one of the above two reasons why the action of the trial court in refusing to allow the jury to award damages for these alleged lost profits was correct.

As we have already said, damages for these alleged lost profits cannot be awarded, because these damages, if they existed at all, were too remote, too uncertain, and too speculative.

In awarding damages, the courts have for their aim the allowance of just compensation for the injuries sustained. But it is well settled that these injuries must be shown by reliable facts, and they cannot be shown by vague theories, because the courts will not dip into the realm of speculation. 116 Tenn. 624; 78 Ala. 243; 67 Md. 503; 84 Ins. 347; 61 Mo. 534; 26 Ill.App. 580; 9 Ex. 341; 77 Ala. 148; 64 Miss. 458.

In support of its contentions that these alleged lost profits can be recovered, appellant cites and relies upon the case of White v. Leatherberry, 82 Miss. 103. But the case cited does not at all support appellant's contention. There are several marked differences between the Leatherberry case and the case at bar.

The first one of those differences is that in the Leatherberry case the plaintiff's ability to sell his lumber was never denied. In that case plaintiff was not dependent upon a limited market, nor did he have to sell within any limited time.

In the Leatherberry case it was made plain that if the plaintiff could not sell his lumber at one time or place, he could hold it and sell it at another time, and place. It was perfectly manifest that sooner or later plaintiff could have sold his lumber; and, therefore, the court was justified in assuming that at some time, and at some place, that plaintiff would have reaped a profit.

The second marked difference between th...