A & P Bakery Supply & Equipment Co. v. Hawatmeh, 79-1406
| Citation | 388 So.2d 1071 |
| Decision Date | 23 September 1980 |
| Docket Number | No. 79-1406,79-1406 |
| Court | Court of Appeal of Florida (US) |
| Parties | 30 UCC Rep.Serv. 199 A & P BAKERY SUPPLY & EQUIPMENT COMPANY, a Florida Corporation, Appellant, v. Salameh K. HAWATMEH, Appellee. |
Greenfield & DuVal and Harvie S. DuVal, North Miami, for appellant.
Penzick & Parker, Rohan & Rohan and Lawrence J. Rohan, Miami, for appellee.
Before HENDRY, NESBITT and BASKIN, JJ.
The parties entered into discussions regarding the sale to appellee of a damaged commercial oven owned by appellant. A jury found that those discussions culminated in a contract, which appellant breached by his sale of the oven to a third party. We are not disposed to reverse the findings of the jury in that regard. However, we reverse that portion of the verdict pertaining to appellee's damages award, and remand for new trial on that issue.
When appellant sold the defective oven, and thereby breached his contract for sale to appellee, appellee covered his loss shortly thereafter by the purchase of a used oven for less than one quarter of the price which he had negotiated for the purchase of appellant's equipment. It appears, and it is not disputed, that the oven ultimately purchased by appellee is the functional equivalent of the more expensive model.
Although the trial judge warned the jury that their damages award should not be based upon speculation or conjecture, he allowed, with that caveat, their consideration of the issue of lost profits stemming from appellant's breach. This was error.
The law regarding damages for loss of profits has been clearly fixed: Although
(t)he well-recognized general rule in this state is that anticipated business profits are too remote, speculative and contingent to warrant a judgment for their loss, . . . .
Touchette v. Bould, 324 So.2d 707 (Fla. 4th DCA 1975), nevertheless,
(i)n Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936), the Supreme Court held that (Emphasis supplied)
Welbilt Corp. v. All State Distributing Co., 199 So.2d 127 (Fla.3d DCA 1967).
Appellee's business venture was in its inception at the time of appellant's breach, and therein lies the trial court's error: Proof of profits for a reasonable time anterior to the breach is required to establish lost profits. New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718...
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