McGinnis v. Hardgrove

• Decision Date: 01 April 1912
• Parties: McGINNIS v. HARDGROVE.
• Court: Missouri Court of Appeals

145 S.W. 512

McGINNIS v. HARDGROVE.

Springfield Court of Appeals. Missouri.

April 1, 1912.

1. DAMAGES (§ 189*)—SUFFICIENCY OF EVIDENCE—RE-ENGAGING IN BUSINESS.

The amount of damage to the purchaser of an established livery business from the seller's breach of his contract not to engage in a competitive business is not shown with reasonable certainty by evidence only of what the receipts in the business were at its best without competition, and what they were, at its lowest, with competition, without any showing as to the difference in the expenses of the business at the two periods.

2. DAMAGES (§ 225*)—AMOUNT OF RECOVERY —SUCCESSIVE ACTIONS.

A buyer of a business suing for breach of the seller's contract not to engage in a competitive business can recover only the actual damages up to the commencement of such action; the cause of injury not being necessarily permanent, and successive actions being necessary for any subsequent damages.

Appeal from Circuit Court, Oregon County; W. N. Evans, Judge.

Action by John W. McGinnis against Franklin C. Hardgrove. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Geo. M. Miley, of Thayer, and L. P. Norman, of Alton, for appellant. S. M. Meeks, of Thayer, and E. P. Dorris, of Alton, for respondent.

NIXON, P. J.

This is an action for breach of contract, in which it is claimed that the plaintiff was damaged by the defendant setting up a competitive livery business in the town of Alton, Mo. Plaintiff obtained judgment for $500, and defendant has appealed.

The evidence tended to show that plaintiff bought the livery business of the defendant and his partner, and had an understanding with them that they would not again engage in said business in the town of Alton as long as plaintiff remained in said business in that town, but that shortly afterwards defendant again started in the livery business in said town and run the same in competition with plaintiff's business from about April 1, 1910, continuously up to the time of the filing of this suit on January 12, 1911. Plaintiff took charge of the business which he bought from defendant about March 16, 1910, and remained in said business thereafter continuously to the date of bringing this action. Plaintiff testified that along about the time defendant started in the livery business again as plaintiff's competitor his business was running fairly well and at its best paid from eight to ten dollars a day; that, before defendant started up again, plaintiff made some money, but that for quite a while since that time the business had not cleared expenses. Plaintiff's evidence tends to show that the town of Alton is small, and will not profitably support two livery barns. He paid the defendant $910 as the purchase price for the equipment and business complete, and he testified that he would not have purchased it but for defendant's agreement not to again engage in the livery business in that town.

Plaintiff testified as follows concerning his damages: "Q. State how the business run after you took hold of it. A. The business for a while was rather dull. I did not know how it ought to run, but later on it picked up considerable. After I got opened up right, I was doing a fairly good business. Q. State if you can the difference in your business after Hardgrove opened up again and clear on down to the time of this suit. A. I think he got something like one-half of the driving. Q. State if you can the damage to you since Hardgrove went back into the livery business. A. I don't hardly know. I saw the boys driving with him; several of my customers that had been driving with me. Q. From the business you have been conducting what do you think Hardgrove has made? A. My business for quite a while had been running from $8 to $10 per day, and I think Mr. Hardgrove has gotten fully one-half of the business. Before he went in, I made some money, but for quite a while my barn has not more than cleared expenses. Q. How does your business run by the day or month? A. It has run very light for a good long while. Q. Well, about how has it run? A. I know for quite a while it has only made expenses—maybe $4 or $5 per day, maybe $4 a day on the average." Cross-examination: "Q. When did you take possession of that barn? A. On the 16th day of March, 1910. Q. You say the business was dull for a while after you got it? A. Yes, sir. Q. How long did it stay dull? A. Probably a month it was not good. Q. About how long was it before it opened up? A. Booker said it was getting better than he ever saw it along after spring opened up. Q. Well, two months afterward? A. Maybe a little longer than that. Q. And you say Hardgrove stayed out of business two months? A. I don't think it was that long. Q. Then, according to that, your business has been better since Hardgrove opened than it was before? A. I don't know what the business was when I went in, but I saw after he opened that the boys were driving with him, and that my business was not what it ought to be." Plaintiff also stated in the course of his testimony that he did not know how much his business ought to run if he had had no competition, and that he could not state what damages he had sustained since the defendant went back into the livery business. When asked to state the amount he had been damaged by the rival livery business, he said he hardly knew; that his business at first had been running from $8 to $10 per day, but that defendant afterwards got one-half of his business; that, before defendant again started in business, plaintiff had made some money, but afterwards for quite a while his business had no more than cleared expenses, and that at that time it was running only $4 or $5 a day. This was the data from which the jury were required to estimate the plaintiff's loss of profits.

The basis of respondent's calculation of the amount of profits lost is that his business run $8 or $10 a day without appellant's competition, but with said competition it run only $4 or $5 a day, and...