Syllabus by the Court.
1. Where a contract is alleged to have been breached and suit is brought for dam
ages alleged to consist in the loss of profits which would have been earned directly under the contract except for the alleged breach the petition will be held good as against a general demurrer if the loss is such as was within the contemplation of the parties at the time of entering into the contract and if the damages are the legal and natural result of the breach, such damages not necessarily being too remote or speculative merely because they are to some extent contingent.
2. Where an amendment to a petition is ordered allowed and filed without provision that it be subject to demurrer and no exception pendente lite is filed to the allowance of the amendment nor any error assigned in the main bill of exceptions upon the allowance of the amendment, there is no question raised by the record for determination by this court upon this point.
3. The petition was not subject to demurrer upon the ground that it showed upon its face that the plaintiff had breached the contract.
4. The power to form a partnership is not one of the powers common to all corporations and unless its charter confers such power upon it a corporation has no authority to enter into such a relationship with another, nor will such authority be presumed in the absence of an allegation that the charter did confer such authority.
5. On general demurrer, a petition setting out a cause of action as to some of the damages claimed should not be dismissed because some of the damages sought may not be appropriate. This is a matter for special demurrer, and a special demurrer being a critic itself must be perfect and point out with particularity which of the damages sought are objectionable and for what reason.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Action for damages for alleged breach of contract by Louis L. Battey Post, etc., American Legion, against Louise Hoffman and another. To review the judgment, the defendants bring error.
Affirmed.
The Louis L. Battey Post No. 4 of the American Legion, a corporation, at Augusta, Georgia, entered into an agreement with Louise Hoffman and Ed. F. Hoffman, doing business as the Hoffman Three-Ring Circus, to put on a circus in Augusta. The performances were a financial failure and the Legion sued out an attachment against the defendants, alleging it had been damaged in the sum of $5,000, which, according to the declaration filed, was due to the defendants' breach of the contract attached to the declaration. The provisions of this agreement material to an adjudication of this case are as follows:
"1. That the parties of the second part [Louise Hoffman and Ed. F. Hoffman] do hereby agree to give five circus performances at Augusta. * * * Night performances commencing at 8:00 o'clock P. M., on November 22, 23, and 24, 1944; matinee performances commencing at 3:00 o'clock P. M., on November 23, and 24, 1944. * * * 2. The parties of the second part agree to furnish and bring with them tents, company, and complete equipment to give said circus performances. Said performances to consist of 68 circus acts, including complete 3-ring circus, consisting of aerial acts, trapeze acts, horse acts, trained domestic and wild animal acts, etc. * * * All the performances given by the parties of the second part shall be first-class performances in keeping with the performances at Paris Island, S. C. and at other camps and locations of the various armed forces. 3. The party of the first part agrees to pay to the parties of the second part from the advance sale of sponsors' tickets a sum of money up to $4,500, if the advance sale of tickets equals this amount. If this amount is not received from the advance sale of sponsors' tickets, then sufficient money will be taken from the receipts when the performances start to make up the unpaid balance of $4,500. This amount may be paid by the party of the first part from the advance sale of tickets in such multiples and such amounts as sales will permit. From said sum of $4,500 the parties of the second part will pay all salaries, railroad fares, transportation, feed-bills, and other expenses connected with the bringing of the circus to
the City of Augusta, Georgia, and expenses of every character or description while the circus is in the City of Augusta, Georgia, and shall also include the payment of the premium by the parties of the second part of the premium on the appearance bond hereinafter referred to. All of said expense shall be borne entirely by the parties of the second part, with no claim made or to be made on the party of the first part. [Emphasis by the court.] It is understood that the payment of the said sum of $4,500 is to be made by the party of the first part to the parties of the second part out of the net proceeds from the advance sale of sponsors' tickets, or from sales made at the door, and the party of the first part shall be under no obligation to pay the same except from the sources set out above. [Emphasis by the court.] 4. Upon the payment by the party of the first part to the parties of the second part, of as much as $500 of the said $4,500, then the parties of the second part agree to procure and have delivered to the Commander of the Louis L. Battey Post as set out above an appearance bond in the sum of $9,000, with surety acceptable to the attorney of the party of the first part, conditioned for the appearance of the parties of the second part, and the giving of the performances as set out above. 5. After the payment by the party of the first part to the parties of the second part of said sum of $4,500 (from the net sales of sponsors' tickets, or if the sale of sponsors' tickets should fail to produce the sum of $4,500, then the balance from the receipts from the performances) there shall be paid, as herein enumerated, a budget, which shall be taken from the proceeds from the sales of tickets or from the performances, which budget shall consist of the following items:
"a. Ground rent or cost of location
"b. Licenses, if any
"c. Costs of labor or salaries incurred by the party of the first part in connection with the giving of the circus performances
"d. Cost of printing sponsors' tickets
"e. Cost of newspaper and radio advertizing, an amount to be agreed upon by the parties, not to exceed $500 "f. Cost of band which will be procured by the parties of the second part, not to exceed $275
"g. Publicity as may be agreed upon between the parties
"h. Cos: of premium on indemnity bond. * * *
6. If the sale of sponsors' tickets and door tickets, etc., shall fail to equal the stipulated amount of $4,500 plus the amount of the budget, then the expenses set out in the budget shall be shared equally by both parties to this contract, so that the only liability that can possibly be-half of the unpaid portion of the buincurred by the party of the first part is onedget. * * * 10. At all times the money shall be in the hands of the Finance Officer of the Louis L. Battey Post No. 4 * * * subject to the joint control of the party of the first part and the parties of the second part, until the said sum of $4,500 is paid in full, after which time the funds shall remain in the exclusive custody and control of the Legion Finance Officer until the same is disbursed, first to pay the items constituting the budget, and next to make distribution of one-half to each party to this agreement. * * * The parties to this contract covenant and agree that at no time during the giving of these performances shall any member of the Legion Post give any orders or directions to any member of the circus organization. This shall be entirely under the control of the parties of the second part. All questions of policy shall be determined by the party of the first part, but all orders directions or requests in reference to the circus performances, or circus personnel, shall be transmitted through * * * the managing director of the circus."
The declaration alleges that the defendants breached the contract in the following particulars: gave no performance the first night as required under the terms of the contract; gave only 16 circus acts at the performances given instead of the agreed 68; gave no juggling or balancing acts as agreed upon, except one tight-rope act; failed to give any wild animal acts; failed to bring complete equipment in that they did not bring a lighting plant; failed to
furnish "all necessary publicity material and never at any time put up posters within a radius of fifty miles of Augusta"; the performances were not first-class performances as stipulated; put on only a two-ring circus whereas it was agreed that it should be a three-ring circus; the handbills distributed by the defendants deceived the public, causing discontent among those who attended the first performance thereby incurring a consequent decline in future attendance; the defendants advertised a circus parade and none was given, causing the populace to feel that the advertisements were untrustworthy and causing great numbers of people who would have otherwise attended to stay away from the performances.
The plaintiff alleged also that had the contract been carried out they would have realized reasonably a net profit of $2,544.70. It is alleged further that since the defendants had no credit in Augusta that it was necessary for the plaintiff to guarantee to the local merchants the payment of the expenses provided for in the budget and certain other expenses incurred by the defendants, and the plaintiff was, therefore, forced to pay these expenses thereby damaging the plaintiff in the sum of $610.47, which is one-half of the budget, and further damaging the plaintiff in the sum of $602.85 for the other expenses paid. Further, it is alleged...
