Hurley v. Oliver

• Decision Date: 12 July 1909
• Citation: 121 S.W. 920,91 Ark. 427
• Parties: HURLEY v. OLIVER
• Court: Arkansas Supreme Court

121 S.W. 920

91 Ark. 427

HURLEY v. OLIVER

Supreme Court of Arkansas

July 12, 1909

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

C. F Greenlee, for appellants.

1. It was error to strike out from the answer the 6th paragraph. If plaintiff rendered himself incapable by reason of intoxication of performing the duties resting upon him under the contract, defendants had the right to take the property away from his management and control. He thereby first violated the contract. 85 Ark. 596, 599.

2. Damages for breach of contract cannot be measured by the loss of expected profits where the latter are uncertain and speculative and depend upon so many contingencies that their loss cannot be traced with reasonable certainty to the breach. 12 N.W. 640; 11 N.W. 828; 111 F. 96; 57 Ark. 203; 69 Ark. 210, 222.

Manning & Emerson, for appellee.

1. It was proper to strike out paragraph 6 from the answer. This was not a contract for employment of appellee by appellants to work for them in any capacity or to handle property for them, but a contract under which he was to sell them oak heading at a certain price and to buy their machinery at a certain price. It stated no defense to the action. But, if it was a defense, all the legal testimony tending to prove the allegations of the paragraph was admitted without objections and the court's instructions likewise treated such allegations as in issue.

2. Loss of profits on account of a breach of contract is a proper measure of damages. 1 Sutherland on Damages, 113; 9 Exch 341; 4 N.E. 264; 147 F. 65, 71. In this case the expected profits can not only be traced to the breach of the contract, but are a part of it and arise from and grow out of the provisions of the contract itself. 91 Mich. 156; 51 N.W. 930; 16 N.W. 232; 29 N.W. 711; 68 Mich. 312; 36 N.W. 88; 106 Mich. 542; 64 N.W. 474; 78 Ark. 336; 110 Mich. 6; 67 W. W. 976; 114 Mich. 34; 26 Mich. 239; 112 N.W. 820; 61 N.W. 273; 95 N.W. 757; 47 So. 332; 153 U.S. 540; 71 Ark. 408; 78 Ark. 336; 80 Ark. 228.

OPINION

HART, J.

This is an action on contract brought by W. W. Oliver against F. W. Hurley and J. W. Ross, doing business under the firm name of Hurley & Ross, to recover damages for profits which he alleges he was prevented from earning by the defendants' breach of the following contract:

"This agreement, made this eighth day of February 1907, by and between Hurley & Ross, of Brinkley, Monroe County, Ark., and W. W. Oliver, also of Brinkley, Monroe County, Arkansas.

"Witnesseth that, in consideration of the sum of $ 2.50 per cubic cord, the said Oliver agrees to saw, cull, split, sap and stack on yard oak heading; said work to be done in first-class manner in every respect, same as is customary at Ross' factory, and as Hurley & Ross may from time to time direct. The said Hurley & Ross agree to furnish the machinery to do said work. It is hereby understood that the said Oliver is to purchase said machinery from Hurley & Ross at its cost price, including freight and expenses of getting saws in place to saw by allowing 50 cents per cord to be credited every two weeks on the purchase of said machinery. Hurley & Ross agree to furnish the money every two weeks to pay off said Oliver's men from the amount due said Oliver in excess of the 50 cents per cord credited on purchase price of the machinery, as hereinbefore agreed. Hurley & Ross agree to furnish a man to look after timber, each party to this contract to pay one half of this timberman's wages. Said Oliver agrees to keep said machinery in good repair, excepting ordinary wear and tear, and to furnish all supplies. This contract to be effective during one year beginning with this date. Now, if the said Oliver does not faithfully perform his part of within contract, it is agreed he will forfeit to Hurley & Ross what payments may have been made on said machinery at the time of said failure, and that the machinery is the property of said Hurley & Ross until fully paid for by said Oliver in the manner as agreed above.

"Hurley & Ross, pr. F. W. Hurley.

"W. W. Oliver."

"Fitch Jones, witness."

Defendants admitted making the contract, but denied having committed a breach thereof, and denied that plaintiff could have made any profit therefrom. Among other defenses they interposed the following, which is called paragraph 6th:

"Defendants state that plaintiff, after entering into said contract, rendered himself incapable of the duties resting upon him by its terms by becoming intoxicated and continuing so on intoxicating liquors, his condition being such that a reasonable, prudent person would not entrust one in such condition with control and management of his property."

The facts, briefly stated, are as follows: Hurley & Ross are manufacturers of lumber at Brinkley, in Monroe County, Arkansas. Oliver had been engaged as a sawyer of tight barrel heading by Hurley & Ross and their precedecessors in business for a period of 22 years. Hurley & Ross made an examination of the oak timber supply near Penter's Bluff in Independence County, Arkansas, and, wishing to obtain this timber and have it sawed into heading, made the contract which is the foundation of this action. Both Oliver and Hurley & Ross believed the mill could be operated without a line shaft, and the mill was equipped accordingly. After a trial, this was found to be impracticable, and the line shaft, pulleys and belts were ordered and directed to be shipped to Penter's Bluff to be placed on the mill. After the line shaft and pulleys had arrived and were put in their proper place for the operation of the mill, and about the time the belt arrived, but before it had been attached to the mill, Hurley & Ross, over the objections of Oliver, took the mill out and moved it away. They claim that they did this on account of the continued intoxication of Oliver. They say he became and continued intoxicated to such an extent as to render it unsafe and impracticable to leave him in charge of the mill. Oliver says they moved the mill because they found the freight rate on heading from Penter's Bluff was too high, and denies that he was intoxicated. Oliver claims that the average run of the mill would have been 20 days per month. That he could average sawing 12 cords per day, and that the expense of running the mill would not have been more than $ 15 per day. He based his estimate on his past experience as a sawyer. He also testified that there was sufficient timber accessible to run the mill at Penter's Bluff for one year, which was the life of the contract. Hurley & Ross adduced testimony tending to show that his profits at best could not have been more than the wages of a sawyer, which he could have saved by doing that work himself. Hurley & Ross were to pay for the timber.

There was a jury trial, and a verdict for plaintiff in the sum of $ 1,000. From the judgment rendered thereon the defendants have appealed.

In his motion for a new trial counsel for defendants set out numerous assignments of error, but in his brief only two questions are presented for our determination; and the remainder will be considered as waived or abandoned.

The first is that the court erred in sustaining plaintiff's motion to strike paragraph 6 from defendant's answer upon the ground that the same constituted no defense to the cause of action set forth in the complaint.

The second is that the court erred in submitting the question of profits as the measure of damages to the jury. We shall consider them in the order named.

1. In response to the contention of counsel for the defendants that the court erred in striking out paragraph 6 of their answer, counsel for plaintiffs say that all legal testimony offered by defendants to prove the allegations made in paragraph 6 of their answer was admitted without objection, and that this amounted to a reconsideration by the court of its former ruling in striking out that paragraph.

In the case of Roach v. Richardson, 84 Ark. 37, 104 S.W. 538, it was held: "Where, without objection on plaintiff's part, defendant directed his evidence to an issue not raised by the answer, and the trial court treated the issues as thus joined, the answer will be treated on appeal as amended to correspond with the proof."

Again in the case of White River Railway Company v Batesville & Winerva Telephone Co., 81 Ark. 195, 98 S.W. 721, it was held: "Appellant can not complain because the court refused to permit it to amend its answer if the court had already...