Feeney & Bremer Co. v. Stone

Decision Date30 July 1918
Citation89 Or. 360,174 P. 152
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

On rehearing. Former opinion sustained.

For former opinion, see 171 P. 569.

Johnson & Handley, of Tillamook, for appellant. H. T Botts, of Tillamook, for respondent.


The principal error assigned by the plaintiff was the admission of testimony about the loss of profits which the defendant claimed he might have made in furnishing gravel to the Arenz Construction Company and Tillamook county, if the hoist in question had performed as the plaintiff contracted it should. The former opinion reversing the judgment was framed in part upon the assumption that the bill of exceptions contained all of the evidence in the case. The petition for rehearing points out that this is erroneous, and that although the stipulation attached to the bill declares that it is a correct statement of the testimony of the defendant, as well as a true statement of the objections opposed thereto, yet it does not indeed give all the testimony in the case, and the argument is that we should presume that other evidence was received at the trial upon which the verdict properly could be founded. Because of depending on this mistaken hypothesis we awarded a rehearing. A careful re-examination of the case leads us to the conclusion that the defect in the defendant's case is more deep-seated than in the mere testimony.

The answer says that the hoist "completely broke down" on August 24, 1915, and that the defendant procured other machinery to operate his plant at an expense of $403.95. In other words, he equipped himself with other machinery at that cost. Respecting the loss of profits the averment of his answer is as follows:

"That the defendant has further been damaged by failure of the said machine so furnished by plaintiff to perform the work agreed, in that, solely by reason of the incapacity of the said hoist to properly perform, the defendant lost the sale of 500 yards of gravel, which he could have sold during the month of August, 1915, to Arenz Construction Company, a corporation, and defendant would have sold at a profit of 50 cents per yard, and the quantity of 340 yards of gravel which defendant could and would have sold during said period to Tillamook county, Oregon, at a profit of 20 cents per yard."

By this quoted allegation he seeks to add to the cost of the machinery and so increase his damage. He does not say that either the Construction Company or the county applied to or contracted with him to take gravel, nor does he show but that it was while he was using the substituted plant he lost the sales mentioned. His statement on that feature is a mere conclusion, and does not by averment of facts connect the loss of sales with the failure of the hoist. His mere expectation that the county and the other party would apply to him for gravel manifestly would not be a basis for damages. He must go further, and show that they actually contracted to buy from him a specified quantity of that material at a stated price, or that in good faith they offered to make such an agreement, and that he was compelled to decline the offer because the hoist in question would not do the work. Besides this, if at that time he had procured the new machinery, his loss of profits on a deal with the parties could not be attributed to the defect in the hoist furnished by the plaintiff. He could make the same profits by using the substituted machinery. In brief, the answer discloses that the defendant is keeping the hoist which the plaintiff sold him, yet trying to collect the price of a substitute, as well as damages for loss of profits, without showing that he had any contract or offer to contract in good faith whereby he could have realized any gain.

As he states his case in that feature, the loss of profits is too remote to be considered as an element of damage. In Hoskins v. Scott, 52 Or. 271, 277, 96 P. 1112, 1114 the plaintiff sought to recover for loss of profits he would have made during the threshing season with his machine, if the defendant had performed its agreement to furnish him a competent engineer and a suitable engine with which to supply power to his thresher. He gave evidence that there were large areas of grain in the neighborhood where he operated, which he could have threshed if he had had the engine agreed upon, but did not show that he had contracted with any particular persons, and the court, speaking by Mr. Commissioner King, said: "Enforceable contracts should have been shown from which the quantity of grain he would probably have threshed, including probable losses, with reasonable certainty could have been estimated. Otherwise, the damages sought were too speculative to be entitled to consideration."

In Dose v. Tooze, 37 Or. 13, 16, 60 P. 380, Mr. Justice Moore used this language:

"General damages are such as a party necessarily sustains from the wrong of which he complains, and such as the law presumes would inevitably result from the act or omission of the adverse party causing the injury, and are recoverable under an averment in the complaint of plaintiff's pecuniary loss, without stating their particular nature. * * * Special damages, however, do not necessarily result from the wrongful act or

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