Megert v. Bauman
| Decision Date | 08 July 1952 |
| Docket Number | No. 35058,35058 |
| Citation | 206 Okla. 651,246 P.2d 355 |
| Parties | MEGERT v. BAUMAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Loss of future or anticipated profits, if within the contemplation of the parties at the time contract is made and flowing directly or proximately from breach of contract, and capable of reasonably accurate measurement or estimate, is recoverable in an action for breach of contract.
2. A judgment will not be disturbed on appeal because of an erroneous instruction, unless it appears reasonably certain that the jury was misled thereby, resulting in a miscarriage of justice.
Meacham, Meacham, Meacham & Meacham, Clinton, for plaintiff in error.
Owen F. Renegar, Oklahoma City, for defendant in error.
Albert Bauman sued Oscar Megert in the District Court of Washita County for damages for breach of contract and to recover for services rendered in harvesting wheat belonging to defendant. The case was tried to a jury. which found for the plaintiff in the sum of $1,700, and the defendant has appealed. The parties will be referred to as they appeared in the trial court.
In February, 1948, plaintiff and defendant entered into an oral agreement to purchase a Massey-Harris combine for the purpose of engaging in custom harvesting operations, to begin each season at the south end of the wheat belt and to work through the harvesting season to the north end of the belt. Plaintiff agreed to furnish a car and defendant a truck to be used in their operations. They were to own the combine in equal shares, and to share equally the expenses and profits from cutting and hauling with the truck belonging to defendant. Plaintiff was to use his car in securing contracts for cutting and other purposes.
About June 3, 1948, they took their machine to Burkburnett, Texas, and made a profit of $465 cutting one field. Other fields were available there, but defendant decided to take the machine back to his farm in Washita County, where they cut his crop, and he paid plaintiff $300 as his half of the profits from this operation. They cut for certain neighbors and netted $180 on one job, $123 on another, and $140 on another. There being no further work in that vicinity, the plaintiff then went to Liberal, Kansas, where he contracted to cut a large crop; but defendant refused to go to Kansas, and refused to go farther north, claiming that he had learned by telephone that there was an excess of combines in that area and had been advised not to come to Kansas.
Near the beginning of the 1949 season, plaintiff secured an acreage in Tihman County, but defendant insisted that his own crop be harvested first. This was done at a net charge of $1,250, the plaintiff's hela being $625, which is one of the items sued for in this action. Defendant declined to do more cutting in the 1949 season because he had to return to his farming. Defendant testified that on account of a skin disease he had been advised to keep away from gasoline and oil, but offered to furnish a man in his place. Plaintiff denied the latter, and testified that defendant failed to assist him in going north with the machine. Nothing further was done in the 1949 season, the plaintiff being financially unable to take the machine north at his own expense.
When they failed to go north, they had a settlement. The defendant assumed and paid the balance of the Bauman note of $3,100 at the bank, and took over Bauman's half interest in the combine. He claims that this was a complete settlement, but plaintiff says that Megert still owes him $625 for his half interest in the profit from cutting defendant's 1949 crop.
Defendant relies upon two propositions. He claims that the evidence is insufficient to support the judgment, and that the court erred in giving instructions 2 and 3.
Sec. 21, Title 23, O.S.1951, provides that damages arising from the breach of a contract are generally
The argument of defendant under the first proposition is based largely upon the theory that the contract between the parties is so indefinite and uncertain as to be unenforceable. It is claimed that the duration of the contract is not certain; that it is lacking in certainty as to how long they would operate each season; and that plaintiff seeks to recover future or anticipated profits not sufficiently supported by any evidence to justify the judgment rendered.
There are cases holding that future profits may not be recovered, generally based upon the finding that such profits cannot be fixed with any degree of certainty. However, in the early case of Fort Smith & Western Ry. Co. v. Williams, 30 Okl. 726, 121 P. 275, 277, 40 L.R.A.,N.S., 494, this court recognized the rule that future profits may constitute the measure of damages for breach of contract, and announced the rule as follows:
'If the amount of earnings or profits can be estimated with a reasonable degree of accuracy, they then become the most just and adequate measure of damages.'
In Ash v. Charles F. Noble Oil and Gas Company, 96 Okl. 211, 223 P. 175, 176, it was said:
'A person damaged by a breach of a contract and thereby deprived of anticipated profits may recover such profits as damages where the same may be established with reasonable certainty and such profits were contemplated by the parties on the date of the execution of the breached contract.'
It is clear from the evidence that a profit from the operation of the combine was within the contemplation of the parties when they agreed to buy the machine for $6,200, all of which was borrowed from the bank. Plaintiff had no crop to harvest. Defendant had wheat of his own to be harvested. Their objective was to do custom cutting, from which they clearly anticipated a profit.
The testimony of plaintiff as to the profits made in 1948 was not disputed. He testified that in four or five days in Texas they made a net profit of $465; in about a day and a half they cleared $180; in another day and a half they cleared $123; and they made $140 profit in about another day and a half, or an average profit of from $70 to $120 per day.
W. O. Cannon, who operated a similar machine in 1948 and 1949 across the same grain belt intended to be crossed by plaintiff and defendant, made a profit of $3,026.50 in 1948, operating...
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