Eastman Gardiner Hardwood Co. v. Hall

• Decision Date: 22 December 1924
• Docket Number: 24533
• Citation: 137 Miss. 354,102 So. 270
• Court: Mississippi Supreme Court
• Parties: EASTMAN GARDINER HARDWOOD CO. v. HALL. [*]

102 So. 270

137 Miss. 354

EASTMAN GARDINER HARDWOOD CO. v. HALL. ^[*]

No. 24533

Supreme Court of Mississippi

December 22, 1924

Division B

Suggestion of Error Overruled Jan. 26, 1925.

APPEAL from circuit court of Jones county, Second District., HON. R S. HALL, Judge.

Action by L. A. Hall against the Eastman Gardiner Hardwood Company. Judgment for plaintiff, and defendant appeals. Affirmed, with remittitur.

Judgment affirmed.

C. S. Street, for appellant.

This is a suit to recover lost profits by reason of the alleged breach of contract. The profit which is sought to be recovered is the difference between what it would have cost appellee to cut and haul the timber and the amount he was to receive for it after it was cut. The court refused to instruct the jury that the sums necessarily expended by appellee in getting ready to carry out the contract on his part should be deducted from the profits he would have made if the contract had been fulfilled. The first error assigned is that the court erred in allowing appellee to introduce in evidence the letters he had written to the appellant. The declaration averred that the contract between the parties was made by "various correspondence," and attached to it were copies of the letters written to the appellee by the appellant; but copies of the letters written by appellee to appellant were not attached to the declaration, nor did the declaration aver that he did not have copies, nor did it in anyway attempt to set forth the contents of such letters. It is submitted that the letters of appellee were as much a part of the contract as the letters of appellant and if it was proper, under the statute, to attach copies of the one, it was and is, also, necessary under the statute to attach copies of the other. Section 517, Hemingway's Code; Section 518, Hemingway's Code. The two statutes quoted are plain, and require that copies of the writings shall be annexed to or filed with the pleading. W. M. Flick & Co. v. Brewer et al., 96 So. 402.

Appellee could not recover for labor on ramps, when he had not sued for any such item, and did not amend or offer to amend his declaration, so as to include it. The testimony was incompetent for another reason, and that is, it was a part of the expense incurred by him in getting ready to carry out the contract. The court erred in overruling the motion of appellant to exclude the evidence of appellee and direct a verdict for appellant.

Before one can recover damages for breach of contract, he must prove--(a) His acceptance of all terms and conditions of the contract, and that such acceptance was communicated to the other party to the contract. Box Company v. Veneer Company, 96 So. 103; (b) that he was ready, willing and able to perform the contract. Leek Milling Co. v. Langford, 81 Miss. 728; (c) that he made reasonable exertion to prevent loss by obtaining other employment. Batesville-Southwestern R. R. Co. v. Vick, 99 So. 7; (d) that the business of plaintiff is an established one, otherwise he cannot recover alleged lost profits. White v. Leatherberry, 82 Miss. 103; Crystal Springs Ice Co. v. Holliday, 106 Miss. 714, and authorities there cited; (e) that the data or estimation of profits are so definite and certain that they can be ascertained reasonably by calculation, and even then the party at fault must have had notice, either from the nature of the contract itself, or by explanation of the circumstances at the time the contract was made, that such damages would ensue from non-performance. Ragsdale v. Railroad Co., 46 Miss. 483; Crystal Springs Ice Co. v. Holliday, supra.

The first and second instructions are wrong. The plaintiff was not entitled to a peremptory, and the second instruction (on the measure of damages) leaves out all elements of expense except "cutting, hauling and putting the timber on the cars at Crump Switch." Appellee's testimony was indefinite and uncertain as to the cost of cutting and putting the timber on the cars. This instruction leaves out of consideration the cost to appellee of keeping up the roads, which he himself estimated at twenty-five cents per thousand; and, on four hundred thousand feet, this amounts to one hundred dollars. The instruction, also, takes from the jury the right to deduct the sum of five hundred fifteen dollars which appellee swore he expended in getting ready to haul the timber, and leaves out any consideration of the one hundred thirty dollars, which he said, that he cleared by hauling a part of this same timber for the Bond Lumber Company. The court erred in refusing instructions 3, 4, 5, 6 and 7, and each of them, asked by appellant. Crystal Springs Ice Co. v. Holliday, supra.

The court erred in overruling the motion for a new trial. And what has been heretofore said makes this assignment well taken, as well as the ninth assignment, that the verdict and judgment are contrary to the law and the evidence. The verdict is excessive. It is plain that the one hundred thirty dollars earned in hauling this timber for the Bond Lumber Company should have been deducted.

Collins & Collins, for appellee.

The jury was instructed by the court on behalf of the defendant not to consider the testimony with reference to the money expended in making preparations to carry out the contract, and although it was an oral instruction by the court, it was on the question of the competency of testimony, and the court excluded the testimony from the jury.

"Did the court err in allowing appellee to introduce in evidence the letters that he had written to appellant.?" It will be noticed by the court that those letters which were written by appellee to appellant were in the possession of appellant, and appellee had only the letters that he had received from appellant. A notice was given to appellant before the trial of the case to produce these letters on the trial of the case, or evidence would be introduced as to their contents. And on the trial of the case appellant produced the letters and they were introduced in evidence. The letters written by appellant to appellee were set out in the declaration, and were all that could be set out by appellee, and appellant had notice of the fact before the trial of the case in the circuit court that he must produce these letters. Now, the letters of appellant which are set out in the record constitute a complete contract with appellee within themselves. It will be seen from the record of these letters set out as exhibits to the declaration, and introduced in evidence that a complete contract is stipulated therein with appellee. Even if appellant is correct in his interpretation of section 517 and 518, Hemingway's Code, which we do not concede, this does not avail him anything in this case, because appellee has filed with his declaration a complete contract upon which he bases his claim for damages against appellant. And if this is a complete contract, as it is, within itself, then it was not necessary to file any copy of letters that appellee wrote to appellant as exhibits to his declaration. If appellant is correct in his contention that these statutes apply in this case and that appellee in filing his declaration failed to comply with the statute because he failed to file with his pleadings the letters, or the copy of letters written to appellant, then there would be no case in which recovery could be had where a contract was made by correspondence, if one of the contracting parties failed to keep a copy of the letters written to the other party. The letters written by appellee in this case were in possession of appellant. We do not believe that the legislature ever intended to lay down any such harsh rule. If it did, then it would force every man who made a contract by correspondence, before he could make it legal and binding, to keep a copy of his letters so that he could, in case of suit, file them with his declaration. The law does not contemplate and does not mean that a party filing a suit must file a copy of a letter, or a writing that is in the opposite parties' possession, and of which the declaring party has no copy. But the complete answer to appellant's argument is that the letters from appellee to appellant are not "the writing" contemplated in the statutes upon which appellee is relying in this case to recover, because the complete contract is contained in the letters from appellant to appellee, and which were filed with the declaration. The case of W. M. Finch & Company v. Brewer et al., 96 So. 402, is not in point in this case, because it does not refer to any "writing," but refers to the adequacy of an itemized statement.

"Did the court err in overruling appellant's objection to certain evidence shown by the stenographer's notes to have been objected to?" With reference to "labor in putting up ramps," it will be noticed that the court excluded all the evidence from the consideration of the jury with reference to expenses made by appellee in preparing to carry out the contract.

"Did the court err in failing to peremptorily charge the jury to find for appellant?" It will be noticed from the letters of appellee and appellant that the terms of the contract were accepted by appellee. Nothing was expected by appellant from appellee, nothing was required of him in the letter except to notify the company when he had some logs on. This he did by his letter. Appellant cites the case of Box Company v Veneer Company, 96 So. 103. But this case is not in point, for the reason that appellant in the Box Company case, supra, sent an order to appellee and expressly requested an acceptance of the order in writing and appellee did not reply. The record shows, and it is not disputed, that appellee had procured a Mr. Rutland and a Mr. Tew, to do the hauling for him,...