Howard v. Brown

• Decision Date: 06 October 1914
• Docket Number: 29284
• Citation: Howard v. Brown, 168 Iowa 410, 148 N.W. 987 (Iowa 1914)
• Parties: R. J. HOWARD, Appellee, v. LOUIS P. BROWN, Appellant
• Court: Iowa Supreme Court

148 N.W. 987

168 Iowa 410

R. J. HOWARD, Appellee, v. LOUIS P. BROWN, Appellant

No. 29284

Supreme Court of Iowa, Des Moines

October 6, 1914

REHEARING DENIED TUESDAY, JANUARY 19, 1915.

Appeal from Polk District Court.--HON. LAWRENCE DE GRAFF, Judge.

ACTION at law to recover damages for an alleged breach of contract. Verdict and judgment for plaintiff and defendant appeals.

Reversed.

A. M Miller and Clark, Byers & Hutchison, for appellant.

Clifford V. Cox, for appellee.

WEAVER J. LADD, C. J., EVANS and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The plaintiff owns and operates a portable sawmill for the manufacture of logs into lumber. He claims that in the spring of 1911, he entered into an oral contract with defendant to set up his mill on defendant's farm and saw all the cottonwood logs thereon, for which service plaintiff was to receive $ 6.00 per thousand feet of lumber sawed and in addition thereto was to have and receive all the slabs and sawdust, and that defendant agreed to haul the logs to the mill as fast as they were needed. Plaintiff further claims that defendant did furnish and plaintiff did saw logs under said contract to the amount of 46,000 feet, for which he received full payment at the contract price; but although there were other logs on the farm to the amount of 254,000 feet cut and prepared and ready to be hauled, the defendant refused to haul or deliver them to the mill or allow plaintiff to saw them. He asks to recover as damages the full contract price to which he would have been entitled for sawing the logs had they been delivered, together with the value of the slabs and sawdust which would have been so produced, less only the actual sum which he would have expended in doing the work on his part. The defendant admits that he agreed to pay plaintiff $ 6.00 per thousand for the sawing and to give him also the slabs and sawdust, but denies that he undertook to furnish any particular amount or number of logs or that he agreed to haul them except only at such times when he could conveniently or reasonably spare his men and teams from other work on the farm. Defendant further alleges that plaintiff agreed that he would himself haul the logs and supply them to the mill with his own team whenever defendant was unable to attend to it and defendant agreed to pay therefor and if there was any failure in the supply of logs he avers plaintiff was himself responsible for it. It is also contended that the agreement between the parties was abandoned by mutual consent. By way of reply plaintiff denies the averments of the answer.

The jury found for plaintiff to the full extent of the claim above stated, to which was added the further sum of $ 89.00 upon an item of team hire over which there is no dispute.

I. Defendant pleaded by way of counterclaim that at the time of entering into the contract, plaintiff agreed to enter upon the performance thereof immediately; but in violation of such agreement he delayed the beginning of the work an unreasonable length of time, neglected to haul the logs needed to keep the mill in operation, removed his engine from the premises and used it in running a threshing machine for others and later took away the remainder of his outfit, on account of all of which defendant demands damages from plaintiff in the sum of $ 500.00.

At the close of the testimony, this counterclaim was withdrawn from the jury upon plaintiff's motion and upon this ruling error is assigned. Upon the record as made, the ruling was correct; for while there was testimony tending to sustain defendant's version of the contract and to show that plaintiff was himself the first to violate its obligation, defendant seems to have overlooked the necessity of proving that he sustained damage thereby.

II. Objection is made to the court's instruction upon the measure of plaintiff's damage, if any. On this subject the court told the jury:

"6. If you find that the plaintiff in this case is entitled to recover for the breach of the contract as claimed and alleged by the plaintiff in his petition you will allow him such sum as would equal the contract price of sawing the number of feet of logs if any which he was entitled to saw under the contract and for which plaintiff has not been paid and in addition thereto the reasonable value as shown by the evidence of the slabs and sawdust produced from sawing said logs if any and from this sum you will deduct such an amount as is disclosed by the testimony which measures the actual cost of operation of the mill and the sawing of such logs, if any as you find he was entitled to saw, and such sums if any the plaintiff received from the defendant in other work during the existence of the contract and from any other person for work done during the existence of the contract as shown by the testimony. "

If we assume that the work to be done under the contract was of a kind to justify a recovery of damages by plaintiff equal to the anticipated profits, such recovery could rightfully be had only by proof of facts upon which the prospective profits might be ascertained with some reasonable degree of certainty. Nothing should be left to mere conjecture. The contract affords no such measure, though it does afford one item or factor in the problem. Over against this must be set the many items of expense, cost and liability which performance of the contract involves on the part of the person claiming damages for its non-performance by the other party. In this case the plaintiff, under the contract even as he claims it, must be considered as required to furnish the mill he uses, as well as the engine, the fuel and the motive power, and to haul the outfit to and from the premises. He puts in his own time and labor in overseeing and managing the operation of the mill and, assuming him to be the expert which his testimony indicates, this must be a very material item. He employs all the needed help. There is inevitable wear and tear and depreciation. Repairs and supplies are a constant factor in the use of all machinery. Without considering all these elements, no comparison between contract price and cost or expense will produce anything like a true showing of profits; but concerning them the record shows nothing except a general statement by plaintiff that he employed three to five men to assist him in running the mill and that the cost of operating it was two dollars per thousand feet....