Jones v. Griffin

• Decision Date: 10 February 1930
• Docket Number: 28239
• Citation: 157 Miss. 256,126 So. 35
• Court: Mississippi Supreme Court
• Parties: JONES v. GRIFFIN

126 So. 35

157 Miss. 256

JONES v. GRIFFIN

No. 28239

Supreme Court of Mississippi

February 10, 1930

Division A

Suggestion of error overruled June 9, 1930.

APPEAL from circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by E. M. Griffin against J. M. Jones. Judgment for plaintiff and defendant appeals. Affirmed.

Affirmed.

Luther A. Whittington, of Natchez, for appellant.

Where two clauses are so repugnant that they cannot stand together, the first will be retained and the second rejected, unless the inconsistency is so great as to avoid the instrument for uncertainty--but where the language admits of but one meaning and the different clauses are plainly contradictory, they mutually destroy each other, and render the instrument void.

13 C. J., par. 497, p. 536.

Conditions in a contract, which are insensible or impossible are void, and the obligation remains absolute, if it be not for the doing of an illegal thing.

Merrill v. Bell, 6 S. & M. 730.

An uncertain and indefinite contract will not support an action for its breach.

Ingram-Day Lumber Company v. Rodgers, 62 So. 230.

Mutuality of obligation is an essential element of every enforcible agreement.

13 C. J. 331.

Losses of profits in a business cannot be allowed unless the data of estimation are so definite and certain that they can be ascertained reasonably by calculation.

Vicksburg & M. R. R. Co. v. Ragsdale, 46 Miss. 483; Crystal Ice Co. v. Holliday, 64 So. 660; Y. & M. V. R. R. Co. v. Consumer's Ice & Power Co., 67 So. 657.

This case must be reversed because of the action of the lower court overruling the objection made by defendant to the evidence offered and given by the Plaintiff touching his alleged profits.

Consumer's Ice & Power Co. v. Y. & M. V. R. R., 67 So. 658.

D. C. Bramlette, of Woodville, for appellee.

In estimating damages for breach of contract: (1) The proximate and natural consequences of the breach must always be considered; (2) such consequences as, from the nature and subject-matter of the contract, may be reasonably deemed to have been in the contemplation of the parties at the time it was entered into.

White v. Leatherberry, 82 Miss. 103; Ragsdale case, 46 Miss. 483; Campbellsville Lumber Co. v. Bradlee et al. (Ky.), 29 S.W. 314; Sedgwick on Damages, sec. 734; Trigg v. Clay (Va.), 13 S.E. 435, 29 Am. St. Rep. 723; Wood's Mayme, Dam., p. 82; Masterton v. Mayor, etc., 7 Hill, 62, 42 Am. Dec. 38; Morrison v. Lovejoy, 6 Minn. 39; Fox v. Harding, 7 Cush. 516; McAndrews v. Tippett, 39 N.J.L. 105; Kendall Bank Note Co. v. Commissioners of the Sinking Fund, 79 Va. 563; Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; Miss. Boom Co. v. Prince (Minn.), 24 N.W. 346; Cockburn v. Ashland Lumber Co. (Wis.), 12 N.W. 50-53; Beach v. Johnson, 102 Miss. 419, 59 So. 800, Ann. Cas. 1914D, 33, Syllabus 3; Robertson v. Cloud, 47 Miss. 208; Blagen v. Thompson, 213 Ore. 239, 31 P. 647, 18 L.R.A. 315; 8 Am. & Eng. Ency. Law, page 622; Crystal Springs Ice Co. v. J. A. Holliday, 106 Miss. 714; Railroad v. Ragsdale, 46 Miss. 458; White v. Leatherberry, 82 Miss. 103, 34 So. 358; Beach v. Johnson, 102 Miss. 419, 59 So. 800; Burrell case, 14 Mich. 34; Elizabethton & P. R. Co. v. Bettinger, 10 Bush. 185; 8 Am. & Eng. Ency. of Law (2 Ed.), 622, note 1; 1 Sutherland on Damages (3 Ed.), sec. 45, page 135; Taylor v. Bradley, 39 N.Y. 129; Guerini Stone Co. v. P. J. Carlin Construction Co., 240 U.S. 264, 36 S.Ct. 300, at page 307; Allied Silk Mfrs. v. Ernstein, 168 A.D. 283, 153 N.Y.S. 976; Scheele v. Lafayette Bank, 120 Mo.App. 611, 97 S.W. 621; Vaughan v. Reddick, 106 S.W. 292, 32 Ky. 531; Doolittle v. Murray, 134 Iowa 536, 111 N.W. 999; Hadley v. Baxendale, 9 Exch. 341, 156 Reprint 145, 5 E. R. C. 502; Murphy v. Hanna, 37 N.D. 156, 177, 164 N.W. 32, L.R.A. 1918B, 135; 17 Corpus Juris, 788, par. 113.

No more definite or certain method of estimating the profits could well be adopted than to deduct from the contract price the probable cost of furnishing the materials and doing the work.

Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, 344, 14 L.Ed. 157, 173; Hinckley v. Pittsburgh Bessemer Steel Co., 121 U.S. 264, 275, 30 L.Ed. 967, 970, 7 S.Ct. 875; Anvil Min. Co. v. Humble, 153 U.S. 540, 549, 38 L.Ed. 814, 817, 14 S.Ct. 876.

Parties have a right to try their case on evidence which is not of the quality or character required by law, and where such evidence is admitted without objection it is the right and duty of the court or jury to give it the same consideration as if it were legal evidence.

23 C. J. 39, par. 1783; Paine v. Wilson, 146 F. 488, 77 C. C. A. 44; Birmingham R. Co. v. Wildman, 119 Ala. 547, 24 So. 548; Mushet v. Fox, 6 Cal.App. 77, 91 P. 534; Leonard v. Mixon, 96 Ga. 239, 23 S.E. 80, 51 Am. St. Rep. 134; Woddail v. Austin, 44 Ga. 18; Danville Citizen's Nat. Bank v. Fender, 21 Ga.App. 229, 94 S.E. 90; Yeager v. Wright, 112 Ind. 230, 13 N.E. 707; Earnhart v. Robertson, 10 Ind. 8; Iowa Business Men's Bldg. Assoc. v. Fitch, 142 Iowa 329, 120 N.W. 694; Jagga v. Plunkett, 81 Kan. 565, 106 P. 280; Chesapeake Brewing Co. v. Goldberg, 107 Md. 485, 69 A. 37, 15 Ann. Cas. 879; Maryland Farmer's Bank v. Duvall, 7 Gill. & J. 78; Hanson v. Marion, 128 Minn. 468, 151 N.W. 195; Western Land Security Co. v. Daniels-Jones Co., 113 Minn. 317, 129 N.W. 587; Metz v. Chicago R. Co., 88 Nebr. 459, 129 N.W. 994; Modlin v. Jones, 84 Nebr. 551, 121 N.W. 984; Schibley v. Nelson, 84 Nebr. 393, 121 N.W. 458; Sherwood v. Sissa, 5 Nev. 349; Condit v. Blackwell, 19 N.J.Eq. 193, 196; Witwork v. New York El. R. Co., 149 N.Y. 393, 44 N.E. 78; Crane v. Powell, 139 N.Y. 379, 34 N.E. 911; Flora v. Carbeau, 38 N.Y. 111; Hubbard v. New York R. Co., 183 A.D. 470; Dorendinger v. Tschechtelin, 12 Daly 34; Anschwitz v. Greenstein, 98 Misc. 593, 163 N.Y.S. 180; American Writing Mach. Co. v. Bushnell, 9 Misc. 462, 30 N.Y.S. 228; Faso v. La. Cerdese Commedore Vito LaManitia Soc., 156 N.Y.S. 1090; Walter v. Rock, 18 N.D. 45, 115; Lippert v. Page, 13 Oh. Cir. Ct. (N.S.) 105; Dave v. Bennett, 51 Okl. 684, 152 P. 347; Jones v. Citizens' State Bank, 39 Okl. 393, 401, 135 P. 373; Weckley v. Cyer, 11 Serg. & R. 35; McCullough v. Wallace, 8 Serg. & R. 181; Durham v. Luce (Cir. A.), 140 S.W. 150; Crebleen v. Farmers Nat'l. Bank, 50 S.W. 402; Yukon Electrion case, 37 Cm. S. C. 495.

Engle & Laub, of Natchez, for appellee.

After the court has read this record it will conclude with us that this whole case was an issue of fact; that there was evidence on both sides supporting the contentions of both parties and that the case was a typical case for a jury to decide the facts, and that this court will not hearken to the cry of the appellant to invade the province of the jury and upset this verdict.

Argued orally by L. A. Whittington, for appellant and by S. B. Laub and D. C. Bramlette, for appellee.

OPINION

Smith, C. J.

This is an appeal from a judgment for damages alleged to have been sustained by the appellee because of the alleged breach of a contract by the appellant. The declaration alleges:

"That the plaintiff entered into a contract with the said J. M. Jones, who is doing business under the name of J. M. Jones Lumber Company, by which there was contracted to plaintiff at the price of ten ($ 10) dollars per thousand to be paid by the said J. M. Jones the work of cutting and logging all merchantable timber on certain lands in Wilkinson county, Mississippi, purchased by said J. M. Jones from Homochitto Development Company, the said tract containing about seventy-nine hundred (7,900) acres, and the said timber being estimated at about fifteen million (15,000,000) feet, and the said plaintiff was to have furnished to him by the said defendant bolts and spikes and all necessary railroad tools, cars and equipment, together with engine, loader and steel angle bars, and the said plaintiff was to build a railroad track for the getting out of the timber on said lands and was to receive ten ($ 10) dollars per thousand for all logs delivered at Black Hill landing on the Mississippi river in Adams county, Mississippi, and the said J. M. Jones, defendant, was to furnish all necessary money for the construction of said railroad track and bridges and to be entitled to hold out two ($ 2) dollars per thousand feet on logs delivered at said Black Hill landing until the construction account was paid out, and the said J. M. Jones was to deliver all railroad equipment in first class condition at said Black Hill landing and the same was to be returned by plaintiff in good condition, wear and tear excepted. The said plaintiff started to work under said contract to build a railroad through the timber of the defendant and to cut and log said timber, and the said defendant commenced to furnish money for construction of said railroad to the plaintiff, and after the plaintiff had been at work on said contract for a considerable time and had built a considerable portion of the railroad and a number of bridges, the said defendant agreed not to deduct the two ($ 2) dollars per thousand until the said plaintiff in his railroad building had crossed what is known as East Prong of Homochitto river which was done about the 5th day of February, 1928."

The declaration then alleges in substance that, after the plaintiff had constructed the greater part of the railroad necessary to enable him to transport the timber to the Mississippi river, the defendant declined to further comply with his contract to furnish money with which to construct the remainder of the railroad, and refused to permit the plaintiff to continue with the performance of the contract that the defendant would have made a profit of forty-eight thousand dollars, had he been permitted to perform his contract, and in addition he was...