Montgomery Ward & Co. v. Hutchinson

• Decision Date: 11 March 1935
• Docket Number: 31603
• Citation: 173 Miss. 701,159 So. 862
• Parties: MONTGOMERY WARD & CO. v. HUTCHINSON
• Court: Mississippi Supreme Court

159 So. 862

173 Miss. 701

MONTGOMERY WARD & CO. v. HUTCHINSON

No. 31603

Supreme Court of Mississippi

March 11, 1935

Division B

1. PRINCIPAL AND AGENT.

Salesman in charge of tire department in retail store had authority to give buyer assurance that tire purchased would reach a certain point at a certain time where salesman had authority to wire for filling of order to another store of corporate owner where the tire was in stock.

2 DAMAGES.

Rule as to uncertain or speculative damages does not apply to uncertainty as to amount of profits which would have been derived, but to uncertainties as to whether loss of profits was result of the wrong, and whether such profits would have been derived at all.

3 DAMAGES.

Party breaking contract cannot escape liability because of difficulty of finding perfect measure of damages; it being enough that evidence furnishes sufficient data for approximate estimate of the amount of damages.

4. APPEAL AND ERROR.

Where verdict in civil case is sustained by reasonable probabilities growing out of evidence, judgment is not to be defeated by showing there are possibilities pointing to contrary verdict.

5 SALES.

Where store owner was informed of special circumstances at time owner of truck, used in hauling logs, sought to purchase tire, evidence of employment of truck in following three months at a fixed compensation for hauling logs and other conditions held to justify recovery of damages of two hundred dollars per month for failure to deliver tire as promised as against contention that damages were speculative.

6. SALES.

Owner of truck held not entitled to recover damages from store owner for failure to deliver tire at time and place ordered for months following subsequent three months' period due to truck owner's loss of employment under contract to haul logs, where employment of truck owner for such period was attended with so many difficulties and hazardous contingencies as to make assessment of damages highly speculative.

HON. C. L. HESTER, Special Judge.

APPEAL from circuit court of Hinds county HON. C. L. HESTER, Special Judge.

Action by T. P. Hutchinson against Montgomery Ward & Co. Judgment for plaintiff, and defendant appeals. Affirmed, with remittitur.

Affirmed, with remittitur.

R. H. and J. H. Thompson, of Jackson, for appellant.

Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.

Vicksburg & Meridian R. R. Co. v. Ragsdale, 46 Miss. 458; 17 C. J., sec. 86, page 753, sec. 112, page 785 and sec. 118, page 797; Wright v. Petrie, 1 S. & M. 282.

Where the evidence does not afford a sufficient basis for a direct estimation of profits, but the breach is one that prevents the use and operation of property from which profits would have been made, damages may be measured by the rental value of the property or by the interest on the value of the property.

American Law Institute's Restatement of the Law of Contracts, sec. 331, subdivision 2.

Any reasonable man would be bound to know that a mere clerk would not be invested by his principal with such enormous powers and any reasonable man seeking such a guarantee against loss would certainly apply for such guarantee to some superior officer of the company with which he was dealing.

2 C. J., sec. 203, page 561, sec. 204, page 562, and pages 665 and 690; Halle v. Brooks, 96 So. 341; Fairly v. Nash, 70 Miss. 193; Planters Lbr. Co. v. Sibley, 130 Miss. 26; Becker Co. v. Clardy, 96 Miss. 301; Savings Bank v. Grocery Co., 123 Miss. 443; Gruner v. Bank, 143 Miss. 454; Milling Company v. Baking Co., 124 Miss. 205; Sumrall v. Kitselman, 101 Miss. 783; White v. Lee, 97 Miss. 493; Lumber Co. v. Posey, 115 Miss. 854; Howze v. Whitehead, 93 Miss. 578; Colt Co. v. Black, 110 So. 443.

Ross R. Barnett, Arden Barnett, P. Z. Jones, Jr., and D. C. Enochs, all of Jackson, for appellee.

If the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of the contract under these special circumstances so known and communicated.

Chapman v. Fargo, 223 N.Y. 32, 119 N.E. 76.

This court has held that the uncertainty which defeats a recovery of lost profits as damages for breach of contract is an uncertainty as to whether the loss resulted from the breach, and not an uncertainty as to the amount of damages.

Delta Table & Chair Co. v. Yazoo & M. V. R. R. Co., 105 Miss. 861, 63 So. 272; Beach v. Johnson, 59 So. 800.

The one responsible for the delay is held responsible for such damages as are fairly attributable to the delay. If he is served with notice before entering into the contract that failure to deliver by a certain date will likely cause the loss of another contract with a reasonable estimate of the losses fairly attributable thereto, then he, if he breaches his contract and thereby causes the loss to the other party to his contract, must be held responsible, as was done in the present case.

W. T. Adams Machine Co. v. South State Lbr. Co., 56 So. 826.

Where the third person has ascertained the general character or scope of the agency, he is authorized to rely upon the agent having such powers as naturally and properly belong to such character, and in the absence of circumstances putting him upon inquiry, is not bound to inquire for secret qualifications or limitations of the apparent powers of the agents.

2 C. J., pages 555, 564, 566, and 568, note 18.

Where private instructions are given to a special agent, respecting the mode and manner of executing his agency, intended to be kept secret, and not communicated to those with whom he may deal, such instructions are not to be regarded as limitations upon his authority and notwithstanding he disreards them, his act, if otherwise within the scope of his agency, will be valid and bind his employer.

Hatch v. Taylor, 10 N.H. 538, 549; Cohen v. Goldstein, 128 N.Y.S. 69.

Ordinarily the contracts of an agent made on behalf of his principal are binding between the principal and a third person when within the apparent scope of the agent's authority, but the rule is one of necessity, intended for the protection of the innocent. It has no application where the person dealing with the agent has actual knowledge of the agent's powers.

Francis v. Spokane Amateur Athletic Club, 54 Wash. 188, 189, 102 P. 1032; 2 C. J., page 569, note 22, page 570, arts. 210-11, page 662, art. 311, and page 561, sec. 203.

In the case at hand, appellee had no knowledge of any limitation of the authority of Sudduth, the company's agent, and there were no circumstances of the case such as to put appellee upon inquiry as to the authority and good faith of the agent.

Argued orally by J. H. Thompson, for appellant, and Arden Barnett and D. C. Enochs, for appellee.

OPINION

Griffith, J.

One Adams had a contract with a lumber company to haul ordinary pine saw logs, which was being performed in part by the use of trucks. He had fallen behind with his deliveries, and found it necessary to use an additional truck and driver. He employed appellee for the job with the understanding, or rather upon the condition, that appellee would put his truck in good repair and equip it with good tires and would report for work not later than at noon on Monday, October 2, 1933. Appellee immediately had his truck overhauled and repaired at considerable expense, and on Saturday morning, September 30, 1933, went to appellant's mercantile establishment in Jackson to procure the two heavy nonskid tires necessary to complete the equipment of the truck for the work to be performed.

Appellant's Jackson store had only one of the tires desired by appellee and the salesman in...