Givens v. North Augusta Elec. & Imp. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: HYDRICK, J.
• Citation: Givens v. North Augusta Elec. & Imp. Co., 74 S.E. 1067, 91 S.C. 417 (S.C. 1912)
• Decision Date: 23 May 1912
• Parties: GIVENS v. NORTH AUGUSTA ELECTRIC & IMPROVEMENT CO.

74 S.E. 1067

91 S.C. 417

GIVENS v. NORTH AUGUSTA ELECTRIC & IMPROVEMENT CO.

Supreme Court of South Carolina

May 23, 1912

Appeal from Common Pleas Circuit Court of Aiken County; R. C. Watts Judge.

"To be officially reported."

Action by John M. Givens against the North Augusta Electric & Improvement Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Boykin Wright and Geo. T. Jackson, both of Augusta, Ga., and J. B Salley, of Aiken, for appellant. Sawyer & Williams, of Aiken for respondent.

HYDRICK J.

This is an action for damages for the breach of a contract whereby defendant agreed to furnish plaintiff with "all required electricity, not to exceed 100 horse power," for power and other purposes, for the period of two years, commencing September 1, 1906. Plaintiff wanted to use the current in the operation of his dairy farm and in the refrigeration of the products thereof, in the manufacture of ice, in the running of a public ginnery, and for propelling other machinery in connection with his farming operations and other business enterprises. The complaint is very long, and it would incumber this opinion too much to set it out in full. It is sufficient to say that it states in detail the various business enterprises in which the plaintiff was engaged, and the various purposes for which he intended to use the electricity contracted for in the conduct of his business; that defendant knew the nature of his business, and all the facts and circumstances detailed, and the special damages that would result to plaintiff by a breach of the contract. It also alleges that defendant willfully and wantonly broke the contract.

The defendant moved to strike out certain allegations of the complaint as irrelevant and redundant. The grounds of the motion were, in substance, that the allegations sought to be stricken out set forth the plaintiff's business, the purpose for which he intended to use the electricity contracted for, and the special damages resulting to him from the failure of defendant to furnish the electricity, according to the contract, without alleging that defendant knew of these things when the contract was made, and that he contracted with reference to such special damages, also on the ground that some of the damages alleged are not recoverable because they are remote and speculative.

The motion was properly refused because it is plainly and unequivocally alleged in every paragraph of the complaint in which special damages are alleged that defendant knew all the facts and circumstances out of which such damages arose, and that defendant knew also that such damages would result from its breach of the contract. While it is not alleged in so many words that defendant knew all this when the contract was made, it is, by reasonable intendment, to be gathered from the complaint, construed as a whole, that defendant did know it at that time.

But, if there was any uncertainty as to that, the defendant's remedy was by motion to make the complaint more definite and certain by alleging when the defendant acquired knowledge of the facts and circumstances out of which the special damages arose, and not by motion to strike out the other material allegations which constitute the plaintiff's cause of action.

It is not necessary to allege in a complaint for special damages that defendant contracted with reference to such damages. It is sufficient to allege knowledge, at the time of contracting, of the special facts and circumstances out of which the special damages arose. From these it may be determined whether or not such damages were in the contemplation of both parties to the contract, and whether they contracted with reference thereto, which is ordinarily a question of fact for the jury unless the evidence is susceptible of only one reasonable inference, and then it is for the court. The rule as to the recovery of special damages for breach of contract is stated in the leading case of Hadley v. Baxendale, 9 Exch. 353: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, and as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most could only be supposed to have had in his contemplation the amount of injury which would arise generally and in the great multitude of cases not affected by any special circumstances from such a breach of contract."

The complaint does contain some allegations of remote and speculative damages, and, if the motion to strike out had been directed exclusively at these, it is probable that it would have been granted. But we find on examination of the notice that defendant sought to strike out as irrelevant and redundant allegations of special damages, which may be recovered, if proved, along with the allegations of remote and speculative damages. The ruling upon this matter becomes immaterial, as a new trial is granted upon other grounds.

The defendant's motion made at the trial to strike out the allegation that it broke the contract willfully and wantonly was also properly refused, first, because it was not noticed within the time allowed by rule 20 of the circuit court, to wit, before demurring or answering, and within 20 days from the service of the pleading; second, because it should have been embraced in the first motion to strike out. Such motions are necessarily of a dilatory nature, and successive motions on different grounds will not be tolerated where all the objectionable matter can be disposed of at once.

It does not follow, however, that,...