Fidelity & Deposit Co. of Maryland v. Jones
| Citation | 256 Ky. 181 |
| Parties | Fidelity & Deposit Co. of Maryland v. Jones et al. (two cases). |
| Decision Date | 09 November 1934 |
| Court | United States State Supreme Court (Kentucky) |
1. Appeal and Error. — Appellant, presenting in his brief only three grounds for reversal, must be regarded as having waived all other questions.
2. Appeal and Error. — Rejected pleading should be embodied in bill of exceptions, unless made part of record on appeal by court order and identified by clerk's certificate.
3. Appeal and Error. — Tendered amendment of answer cannot be regarded as part of record on appeal, nor trial court's rejection thereof as ground for reversal of judgment for plaintiff, where not made part of record by court order or bill of exceptions.
4. Continuance. — Application for continuance is addressed to sound discretion of trial court, who is not bound to accept mere statement of counsel requesting continuance or supporting affidavit as to ground therefor.
5. Appeal and Error. — Trial court's action on application for continuance will not be disturbed by Court of Appeals, unless trial court's sound discretion was abused.
6. Continuance. — Defendant's motion for continuance was properly overruled, even if counsel's mere statement that plaintiffs' testimony showed variance from petition were sufficient basis for motion, in absence of showing of defendant's diligence in discovering facts asserted as variance.
7. Damages. — Parties to contract may agree on definite sum to be paid party alleging and establishing violation of agreement as damages.
8. Damages. — Party sustaining no damages because of another's violation of contract cannot recover liquidated damages provided for thereby, but may recover only nominal damages.
9. Damages. — Law aims at just compensation for injury resulting from breach of contract, and parties will not be permitted to set aside such principle by express stipulation for liquidated damages.
10. Damages. — Whether sum stipulated in contract should be allowed as liquidated damages for breach thereof is question of law.
11. Evidence. — No evidence dehors written contract can be received on question whether parties intended that sum stipulated as liquidated damages for breach thereof should be accepted as compensation.
12. Damages. — Damages for breach of contract will usually be considered liquidated, where extent and amount, not proper measure thereof would be wholly uncertain and incapable or very difficult of being ascertained, except by mere conjecture, independently of stipulation for such damages.
13. Damages. — Court will look to see whether sum stipulated in contract as damages for breach thereof is reasonable and, if not, require assessment of damages as if no sum were stipulated.
14. Mines and Minerals. — Oil leases and lessee's bonds for performance of obligations thereunder must be construed according to parties' intention, as expressed therein, in determining character thereof.
15. Damages. — Whether lessee's bonds for performance of his obligations under oil leases call for liquidated damages or penalty for breach thereof must be determined according to circumstances at time of their execution.
16. Damages. — It is unnecessary to show in every action for breach of contract providing for liquidated damages that substantial damages resulted.
17. Damages. — Parties' entire agreement, evidenced by oil leases and lessees' bonds for performance of their obligations, must be considered in connection with its subject-matter and purpose and parties' intention in determining whether amount of bonds constitutes liquidated damages or penalty for breach of leases.
18. Mines and Minerals. — Principal and surety, not inserting, in bonds for performance of principal's obligation under oil leases to drill stated number of wells within time fixed by bonds, provision permitting test of leased premises by drilling wells outside thereof, cannot rely on such implied covenant nor declare bonds unenforceable or defeat recovery thereon by alleging and proving that drilled wells in vicinity showed that there was neither gas, oil, nor salt in paying quantities on leased premises.
Appeal from Jefferson Circuit Court
BRUCE & BULLITT for appellant.
A.J. CARROLL and CARROLL & McELWAIN for appellees.
Affirming.
These actions were tried as one in the circuit court, and these appeals are prosecuted as one. The issues and the questions of law involved in them are identical; therefore, we shall dispose of them in one opinion.
They were instituted on bonds executed and delivered by the Jefferson Lake Oil Company, Incorporated, principal, and the Fidelity & Deposit Company of Maryland, surety, by which they obligated themselves unto J. Lyle Bayless, Lawrence Jones, and Leodis Leblanc "in the full amount of Twenty-five Hundred ($2,500.00) Dollars, payment of which well and truly to be made," on the condition that the Jefferson Lake Oil Company "shall well and truly perform and keep" its obligation set forth in a certain lease described in each of the bonds.
Claiming that the Jefferson Lake Oil Company had wholly failed to perform, or attempted to perform, its obligations as set out in the leases, Jones, Bayless, and Leblanc, the beneficiaries of the bonds, instituted these actions in the Jefferson circuit court against the Fidelity & Deposit Company of Maryland to recover as compensation, as per the terms of the bonds, the amount of each bond because of the Jefferson Lake Oil Company's breach of the lease contracts.
In the preparation and the trial of the actions, it was conceded that the Jefferson Lake Oil Company had utterly failed to perform or attempted to perform, the obligations imposed upon it by the conditions, provisions, and terms of the leases.
"The [trial] court ruled that as the wells had not been drilled as provided for by the terms of the bonds that the face amount of the bonds was liquidated damages and refused to let the Fidelity and Deposit go into the question of proof to show the improbability of damage to Jones" et al.
"Jones [et al.] did not offer proof to show probability of damages."
"The court excluded the evidence offered by the Fidelity and Deposit Company," that et al.
The Fidelity & Deposit, during the progress of the trial, received the impression that Jones et al. agreed with the Jefferson Lake Oil Company "to extend the time to commence drilling the well six months after the date upon which the commencement of the drilling was guaranteed in the bond of June 28th, 1929." Its counsel "moved for a continuance on the ground of surprise, in that the testimony showed a variance by showing the extension agreement beyond the date of the breach as set out in the petition." Its motion was overruled. Also, before the commencement of the trial, the Fidelity & Deposit tendered an amended answer and counterclaim which the court refused to allow to be filed.
At the conclusion of the evidence of both parties, the court peremptorily directed a verdict for Jones, Bayless, and Leblanc.
The Fidelity & Deposit is here presenting in its brief the questions stated above, for review and grounds of reversal. Since it has confined its right to reversal to the three grounds, none other will be considered. All other questions which might be presented are now and shall hereinafter be regarded as waived by it.
Taking up these questions in reverse order, we shall first dispose of the question of the right of the Fidelity & Deposit to have considered the ruling of the court refusing to allow the amendment to its answer to be filed. The record discloses that on entering its motion to file the amendment, the plaintiffs objected to the motion. Thereupon the court overruled its motion to which the Fidelity & Deposit reserved an exception; and the parties, by their counsel, and the court, proceeded to impanel the jury to try the case and no other or further order appears in the record concerning this amendment.
The Fidelity & Deposit Company did not request, and the court did not by an order direct, or permit, the amendment to be made a part of the record for any purpose.
The applicable rule where an amended pleading is not permitted to be filed, as in this instance, is aptly stated in Newman's Pleading and Practice (Revised Edition of 1907, sec. 675), as follows:
The text is supported by Hortsman v. C. & L.R.R. Co., 18 B. Mon. 223; Young v. Bennett, 7 Bush, 476; Bramel v. Bramel, 62 S.W. 529, 23 Ky. Law Rep. 11; Lewis' Adm'r v. Bowling Green Ry. Co., 147 Ky. 461 ]; Commonwealth v. P., C., C. & St. L.R. Co., 163 Ky. 546 ; Grigsby v. Smith, 174 Ky 819, 192 S.W. 856.
The tendered amendment not being made a part of the record, either by an order of court, or the bill of exceptions, the Fidelity & Deposit is not now entitled to have it regarded as a part of the record, or urge the ruling of the court thereon as a...
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