Mackey v. Boswell

• Citation: 162 P. 193,63 Okla. 20,1916 OK 1054
• Decision Date: 26 December 1916
• Docket Number: 6262.
• Parties: MACKEY v. BOSWELL ET AL.
• Court: Oklahoma Supreme Court

162 P. 193

63 Okla. 20, 1916 OK 1054

MACKEY v. BOSWELL ET AL.

No. 6262.

Supreme Court of Oklahoma

December 26, 1916

Concurring Opinion Jan. 2, 1917.

Syllabus by the Court.

Where the answer states a defense to plaintiff's cause of action, it is error to render judgment for plaintiff upon the pleadings and opening statement of defendant's counsel to the jury.

Loss of profits in being unable to plant, cultivate, and harvest a crop, if within the contemplation of the parties at the time a contract is made, and was such a loss or damage as flowed directly or proximately from the breach of such contract, and is capable of accurate measurement or estimate, is recoverable in an action for damages for the breach of such contract.

Error from District Court, Grady County; Frank M. Bailey, Judge.

Action by D. B. Boswell and another against C. A. Mackey. There was a judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Sharp and Thacker, JJ., dissenting in part.

Riddle & Hammerly, of Chickasha, for plaintiff in error.

Wm Stacey, of Chickasha, for defendants in error.

HARDY J.

Plaintiff in error was defendant, and defendants in error were plaintiffs, in the trial court, and for convenience parties will be referred to as they there appeared.

This was an action to recover upon an account for goods, wares and merchandise. Defendant filed an amended answer which alleged that about the ______ day of April, 1911, he made a contract with plaintiffs to furnish him with groceries and other necessary provisions to run him during the full crop season, spring, summer, and fall, and until the crops were gathered, including sufficient supplies for a man working for defendant upon shares, and that plaintiffs took a note for $479.84 to secure the payment of which defendant executed a mortgage upon his crop for 1911; that defendant owned eight head of work stock in addition to the stock furnished his share cropper and had 300 acres of land in cultivation, 200 acres of which had been sowed in oats; that the oat crop failed, and it was defendant's intention to plant said land in kaffir corn and milo maize, of which fact plaintiffs were advised, and that had defendant planted said crops said lands would have netted him $5 per acre; that defendant had employed two hands to help him through the crop season, but that during the month of May plaintiffs breached their said contract and refused to furnish him with provisions, and that by reason thereof defendant was unable to procure such provisions anywhere else except for cash; that he did not have sufficient money with which to pay his said hands and buy provisions necessary to carry on his work, and was compelled to discharge his said hands and to pay cash for provisions he was required to have and was unable to plant his fall crops as he had intended to do; that plaintiffs knew of these facts at the time and knew defendant's circumstances, and knew that he would be unable to buy provisions elsewhere except for cash, and knew that he was unable to pay cash for his provisions and keep said hands that, by reason of plaintiffs' breach of said contract he was compelled to discharge his said hands, was left with two teams in his possession, which were required to remain idle for 90 days; that the usable value of said teams, had he been able to retain said hands in his employment and use said teams in his crop, was $2.50 per day each; and in addition to said loss was compelled to incur an extra expense per team per day for 90 days, of 50 cents--for all of which he prayed judgment. Reply was filed, and when the case came on for trial, after the jury had been regularly impaneled and after respective counsel had made their statements to the jury, plaintiffs moved the court for judgment on the pleadings and opening statement of counsel, for defendant, for the reason that said answer and opening statement constituted no defense to plaintiffs' cause of action. This motion was sustained, to which action exceptions were saved, and judgment thereupon rendered in favor of plaintiffs for the amount prayed.

It was error for the court to sustain the motion for judgment on the pleadings and opening statement of counsel if the allegations of defendant's answer constituted a defense. Mascho et al. v. Johnson, 153 P. 630.

The sole question briefed by counsel for both sides is whether the allegations of defendant's anrwer presented any defense to the plaintiffs' action. Plaintiffs contended that said answer was insufficient: (1) Because the damages claimed were in no way connected with the contract or subject-matter of the suit and were not in contemplation of the parties when they entered into the contract; and (2) that the damages claimed are purely speculative and too remote and uncertain to create any liability because of the alleged breach of contract.

In Ft. Smith & Western Ry. Co. v. Williams, 30 Okl. 726, 121 P. 275, 40 L. R. A. (N. S.) 494, it was stated:

"It is well settled in this state that damages based upon prospective profits which would have been realized had the contract been performed may be

allowed, providing they are fairly within the contemplation of the parties, or the direct natural consequence of the breach of the contract, and are susceptible of being ascertained with reasonable certainty."

This language was quoted with approval in case of First State Bank of Mannsville v. Howell et al., 41 Okl. 216, 137 P. 657, which was an action to recover certain property covered by chattel mortgage, given by one Howell to J. B. Wall, a merchant, and by him assigned to plaintiff. One of the errors assigned was the action of the court in refusing to sustain a demurrer to the seventh paragraph of defendant's answer, which charged in substance that, at the time Howell executed the notes and mortgage in controversy, Wall had agreed to furnish Howell out of his store such supplies as would enable Howell to make a crop during the year 1909; that Wall failed and refused to do so, on account of which failure Howell was compelled to work out for $1 per day when he should have been in his crop; that the services of himself and teams in his crops during such time was worth $3 per day; that, on account of the fact that his teams and other personal property were mortgaged to Wall, he was prevented from obtaining credit elsewhere, all of which was known to Wall at the time the notes and mortgages were executed; and that, as a direct and proximate result of such failure and refusal on Wall's part to comply with the terms of his said agreement and furnish Howell the supplies necessary to enable him to plant and care for his crop, he was compelled to and did neglect planting it for two months, and the same was damaged and his profits thereby reduced in the sum of $250, and thus there was squarely presented the question whether damage to a crop such as was charged and proven in that case could be recovered in an action for the breach of the contract between Howell and Wall. After citing Ft. Smith & Western Ry. Co. v. Williams, supra, and noting the fact that the general rule in these cases is that the true measure of damages where the seller fails to deliver goods sold, where the purchase price had not been paid, is the difference between the agreed price and the market price at the time and place of delivery with interest, it was said:

"But, when this cannot be done, the rule does not apply. Such is the condition in the case at bar"--and such is alleged to be the situation here.

And after citing section 2852, Rev. Laws 1910, and calling attention to the fact that the contract alleged in the answer was not denied by reply or otherwise, and that the jury, as it had a right to do, had found, according to the contention of the defendant, that such a contract was made as alleged, said:

"Therefore we are bound to say that the parties, at the time they made the contract, had in mind the profits that would arise from the making of a crop. That was, and of necessity must have been, in contemplation of the parties at the time the mortgage was executed, for the mortgage covered all the crops to be grown by Howell as well as the mules in question. This being true, we have no hesitancy in saying that the rule fixing the measure of damages heretofore announced is not only supported by reason and authority, but by the statute above quoted"-and in support of this statement cites the following cases: "Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Rice v. Whitmore, 74 Cal. 619, 16 P. 503, 5 Am. St. Rep. 479; Joyce on Damages, § 1374."

The court then determined the purpose for which said evidence was competent in that case, and continued:

"Of the correctness of the foregoing position, we do not think there can be any question. It is undisputed that there was such a contract made as alleged in Howell's answer that its terms were broken by Wall; that Howell was damaged as alleged in his answer. The testimony was amply sufficient to sustain the verdict, which warrants us in finding that Howell's story is true, wherein he says that he could not get supplies from Wall; that, in order to support his family, he had to work away from home by the day, when his services, with the team, were required in his * * * crop, and were worth at least $3 per day; that thereby his crop was planted late, and was caught by the drought; that he had 25 acres

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