Malone v. Reynolds

• Decision Date: 15 October 1925
• Docket Number: 2 Div. 875
• Parties: MALONE v. REYNOLDS et al.
• Court: Alabama Supreme Court

105 So. 891

213 Ala. 681

MALONE v. REYNOLDS et al.

2 Div. 875

Supreme Court of Alabama

October 15, 1925

Rehearing Denied Nov. 12, 1925

Appeal from Circuit Court, Greene County; Fleetwood Rice, Judge.

Action by John G. Reynolds and another against A.R. Malone. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

J. F Aldridge and E. F. Hildreth, both of Eutaw, and R. B. Evins of Birmingham, for appellant.

Counts 11 to 15, inclusive, were subject to the demurrer interposed thereto. Deslandes v. Scales, 187 Ala. 25, 65 So 393; Brigham v. Carlisle, 78 Ala. 243, 56 Am. Rep. 28; Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Sou. Ry. v. Coleman, 153 Ala. 266, 44 So. 837; Nichols v. Rasch, 138 Ala. 372, 35 So. 409; Reed Lbr. Co. v. Lewis 94 Ala. 626, 10 So. 333; Moulthrop v. Hyett, 105 Ala. 493, 17 So. 32, 53 Am. St. Rep. 139; Street v. Sinclair, 71 Ala. 110; Young v. Cureton, 87 Ala. 727, 6 So. 352; Beck v. West, 87 Ala. 213, 6 So. 70; Danforth v. T. C. I. Co., 93 Ala. 614, 11 So. 60; Id., 99 Ala. 331, 13 So. 51; Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428; I. C. v. Brothers, 12 Ala. App. 351, 67 So. 628; 17 C.J. 790; McCormick v. Badham, 191 Ala. 339, 67 So. 609. The court erred in rendering judgment for plaintiffs. Bixby-Theisen Co. v. Evans, 174 Ala. 579, 57 So. 39. Counsel argue other questions, but without citing additional authorities.

Harwood & McQueen, of Tuscaloosa, for appellees.

The amended complaint states a good cause of action and is not subject to the demurrer, interposed. Varner v. Hardy, 209 Ala. 575, 96 So. 860; Griffin v. Ogletree, 114 Ala. 343, 21 So. 488; Bonifay v. Hassell, 100 Ala. 269, 14 So. 46; Baxley v. Tallassee & M., 128 Ala. 183, 29 So. 451; Tenn. & C. v. Danforth, 112 Ala. 80, 20 So. 502; Danforth v. T. C. I. Co., 93 Ala. 614, 11 So. 60; Id., 99 Ala. 76, 99 So. 794, Birmingham W. W. Co. v. Martini, 2 Ala. App. 652, 56 So. 830. There was no error in overruling defendant's motion to exclude certain elements of damage. Vandiver & Co. v. Waller, 143 Ala. 411, 39 So. 136; Adam Mach. Co. v. Sou. St. L. Co., 2 Ala. App. 471, 56 So. 826; Bigbee Fert. Co. v. Scott, 3 Ala. App. 333, 56 So. 834; 3 Sutherland, Damages (3d Ed.) § 704; 13 Cyc. 37.

Miller J.

This is a suit by J. G. Reynolds and V. S. Reynolds against A. R Malone for damages for the breach of a written contract entered into by them for hauling logs. There were 15 counts in the complaint as amended, numbered from 1 to 15, inclusive. The counts numbered 1 to 10, inclusive, were withdrawn by plaintiff, and the cause was submitted on counts 11, 12, 13, 14, and 15. The defendant pleaded general issue to each of them, with leave to give in evidence any matter that might be set up in special replications. The cause was tried by the court without a jury. Judgment was rendered in favor of the plaintiffs on the oral testimony and documentary evidence, and from it this appeal is prosecuted by the defendant.

The court overruled demurrers to counts 11, 12, 13, and 15 of the complaint as amended. These rulings of the court are assigned as error No. 4, as follows:

'(4) The court erred in overruling defendant's demurrer refiled to counts 11, 12, 13, 14, and 15 to the complaint as amended, and separately and severally to said counts of the complaint.'

By this assignment five rulings of the court are jointly assailed, and it cannot avail the defendant if any one of the counts was not subject to the demurrers of defendant. Cable v. Shelby, 203 Ala. 28, headnote 1, 81 So. 818; Beason v. Sov. Camp, W. O. W., 208 Ala. 276, headnote 3, 94 So. 123; Roach v. Wright, 195 Ala. 333, headnote 1, 70 So. 271; Jordan v. Rice, 165 Ala. 650, 51 So. 517; Hall v. Pearce, 209 Ala. 397, headnote 6, 96 So. 608.

We will consider count 14, which states the contract between the parties, shows it was in writing, and is made a part of the count by copy attached to it. By the contract defendant agreed to pay plaintiffs $5 per 1,000 feet for hauling the logs to the mill. It avers it was breached by the defendant and that plaintiffs were damaged thereby. The contract appears in the report of the case. The facts alleged show plaintiffs had purchased the necessary teams and equipment and were performing their part of the contract when breached by the defendant; that they had the necessary teams to do so when the contract was breached, and they were ready, willing, and able to continue to perform their part of the contract, and were prevented from doing so by the defendant. This count (No. 14) appears in the report of the case. It states a cause of action against the defendant , and the averments therein that plaintiffs were ready, able, and willing to perform their part of the contract do not render the count demurrable as stating a conclusion and not facts by the pleader. The facts alleged sufficiently show a compliance by plaintiffs with the terms of the contract applicable to them, and a readiness, ability, and willingness to continue to do so when the contract was breached by the defendant, and when he refused to allow them to continue to perform their part of it. Griffin v. Ogletree, 114 Ala. 345, 21 So. 46; Danforth v. Tenn. & Coosa R. Co., 93 Ala. 614, 11 So. 60; Id., 99 Ala. 331, 13 So. 51; Id., 112 Ala. 90, 20 So. 502; Varner v. Hardy, 209 Ala. 575, 96 So. 860; McCord v. Rogers, 211 Ala. 76, 99 So. 794.

The trial court did not err in overruling the demurrers to count 14, and this renders it unnecessary for us to consider the other rulings of the court under this assignment of error numbered 4. Hall v. Pearce, 209 Ala. 397, headnote 5, 96 So. 608, and other authorities cited supra on this subject.

The defendant filed motion to strike separately from counts 12, 13, 14, and 15 certain portions of elements of damages mentioned. He makes separate motion as to each count to strike certain damages claimed therein from it, and embodies all the motions in one general motion. The court overruled these motions. These rulings of the court are assigned as error No. 5, as follows:

'(5) The court erred in overruling the defendant's motion to strike certain portions of counts 11, 12, 13, 14, and 15 of the complaint as amended.'

There was no motion as to count 11. By this assignment four rulings of the court are jointly assigned as error, and to be available to the defendant all four of the rulings must be erroneous. If one ruling is correct, then, under this one assignment of error, it will be unnecessary to consider the other rulings of not 6, 96 So. 608; Cable v. Shelby, 203 Ala. 28, headnote 1, 81 So. 818, and authorities supra, on this subject.

We will consider the motion as to count 14. The motion states as to this count:

'And the defendant moves to strike from count 14 the claim for lost profits as an element of damages.

This presents one of the real, practical, questions in this cause. Count 14 contains the following averment:

'That there was a large profit to the plaintiffs in hauling said logs at the price specified in the said contract, to wit, two dollars and fifty cents per thousand feet for all logs so hauled, all to the damages of plaintiffs, as aforesaid; hence this suit.'

The plaintiffs look to this count to recover the profits they would have realized by performing the balance of the contract which they were ready, able, and willing to perform, but were prevented in so doing without fault on their part by the defendant.

The principles and rules of law applicable were concisely stated by this court in Danforth v. Tenn. & Coosa R. Co., 93 Ala. 620, 11 So. 62, as follows:

'Where one party, in compliance with his contract, enters upon its performance, and is wrongfully forced to abandon it before its completion, without fault on his part, he is entitled to recover damages for its breach. If profits formed a constituent element of the contract, their loss the natural and proximate result of the breach, and such as was reasonably certainty, such certainty as satisfies the mind of a prudent and impartial person, they are recoverable as damages. On the other hand, if profits are merely speculative, conjectural, or too remote, they are not allowable. P. W . & B. R. Co. v. Howard [Pennsylvania v. Wheeling & B. Bridge Co.], 13 How. 526 ; Beck v. Carlisle, 78 Ala. 248 ; Bell v. Reynolds, 78 Ala. 513 ; 1 Sedgwick on Measure of Damages, 134-136 and note. ' If the breach consist in preventing the performance of the contract, without the fault of the other party, who is willing and able to perform it, the damage of the latter consists in two distinct items, namely: First, what he has already expended towards performance, less the value of the materials on hand; secondly, the profits he would realize by performing the whole contract.' U.S. v. Behan, 110 U.S. 344 [4 S.Ct. 81, 28 L.Ed. 168]; [Masterton v. Mayor, etc., of City of Brooklyn], 7 Hill, 69 .

'Where the proof fails to show that a profit would have been realized, the recoverable damages consist in the reasonable expenditures made, and loss of time, less the value of the material on hand. If the proof shows that profits would have been realized, had the party not been prevented from performing the contract, they are recoverable, and the measure of profits as damages is the difference between the cost of doing the work and the price agreed to be paid. In estimating the cost of doing the work, the less time engaged, a release from the care, trouble, risk and responsibility attending a full execution of the contract, should be considered and included in the estimate.'

It was approved with clearness again by this court in Varner v. Hardy, 209 Ala. 575, 96 So. 860.

The contract sued on shows defendant was running a sawmill near his Lamb place,...