Sargent v. Frank Cram & Sons

• Decision Date: 14 March 1922
• Docket Number: 34416
• Citation: Sargent v. Frank Cram & Sons, 194 Iowa 152, 186 N.W. 916 (Iowa 1922)
• Parties: E. O. SARGENT, Appellee, v. FRANK CRAM & SONS, Appellants
• Court: Iowa Supreme Court

186 N.W. 916

194 Iowa 152

E. O. SARGENT, Appellee, v. FRANK CRAM & SONS, Appellants

No. 34416

Supreme Court of Iowa, Des Moines

March 14, 1922

REHEARING DENIED SEPTEMBER 23, 1922.

Appeal from Polk District Court.--F. D. LETTS, Judge.

ACTION for damages to the amount of $ 3,000 for breach of a contract. There was a general denial by the defendant, and a counterclaim for damages for $ 4,000 for alleged breach of the same contract by the plaintiff. There was a trial to a jury, and a verdict for the plaintiff for $ 1,000. Judgment was entered thereon, and the defendants appeal.

Affirmed.

Clark Byers & Hutchinson, for appellants.

H. S Thomas, for appellee.

EVANS, J. STEVENS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

EVANS, J.

The contract in suit was as follows:

"This agreement made and entered into this 11th day of April, 1918, at Des Moines, Iowa, by and between Frank Cram & Sons of Des Moines, Iowa, and E. O. Sargent of Des Moines, Iowa, hereafter designated as the party of the second part; whereas the party of the second party agrees to haul sand and gravel for the party of the first part at the rates given below:

Hauls of 1 mile or less

$ .40 per yd. of 3000

" " 2 miles

.55 " " " "

" " 3 "

.70 " " " "

" " 4 "

.85 " " " "

" " 5 " for sand

.90 " " " "

" " 5 " for gravel

1.00 " " " "

over the even mile to be classed as the nearest quarter mile and for each quarter mile over the even mile to be rated at an additional four cents per yard up to the five-mile haul when each quarter mile will be rated at five cents per yard above the five-mile rate.

"The party of the first part agrees to make payments for hauling each week to the party of the second part at above rates.

"The party of the second part does hereby agree to haul one thousand yards of sand or gravel each month for six consecutive months or more beginning with May 1, 1918, and the party of the first part agrees to supply at least one thousand yards each month for the time mentioned above.

"The party of the first part further agrees to have six hundred yards of the one thousand yards of sand or gravel in the four or five-mile hauls or a ton mileage equal to above amount.

"The party of the first part further agrees to keep the private road from the sand and gravel bins to the main public road in condition for heavy hauling and also agrees to arrange that all sand and gravel will not have to be handled by hand.

"It is further agreed by both parties hereto that the hauling of the sand and gravel to the new Savery Hotel job or the storage pile for same shall not be over the five-mile rate nor less than five-mile rate."

At the time this contract was entered into, the plaintiff was the owner of a Denby 2-ton truck, and was negotiating for the purchase of another truck, known in the record as the Masters 6-ton truck, which purchase was later completed. These two trucks constituted the plaintiff's equipment for carrying out the contract entered into.

It appears that there was a section of private road extending from the public highway to the defendant's sand bins. The condition of this road furnishes the nub of the controversy. The defendant undertook by the contract to keep this section of road "in condition for heavy hauling." This road was located on the river flats, and was peculiarly susceptible to weather conditions. The plaintiff made a start about May 15th upon the performance of his contract, and presented himself with both trucks at the sand bins for that purpose. His large truck, after being loaded, mired down upon the road in question, and had to be unloaded. A day or two later, a further attempt was made, with practically the same result. The evidence is sufficient to show that the road was not in a suitable condition to carry a 6-ton load; and that it was not put in such condition, if at all, for a considerable period of time. Overflows of the river followed a short time later, which naturally deferred all efforts at putting the road in condition. After the two attempts here noted, and before any substantial repair of the road had been made by the defendant, the plaintiff declared a breach of the contract, and abandoned it. He sues for the breach, and claims as his measure of damages the profit which he would have made upon the contract if he had been permitted to perform it.

Quite a volume of evidence has been devoted to the suitability of the large truck for use in the performance of the contract. Because it was large, it was to some degree unwieldy. It was a so-called semitrailer truck: that is to say, a two-wheeled trailer was attached to the main chassis of the truck, and the load was distributed over the wheels of the trailer and over the rear wheels of the truck proper. Because of the two pivots which were rendered necessary by such a combination, the truck was unwieldy for the purpose of backing into position at the bins. It is contended also that a 6-ton weight was beyond the contemplation of the defendant in entering into the contract, because trucks of such weight-carrying power were not in general use. We have no occasion to dwell upon the details of this feature of the controversy. The evidence for the plaintiff was sufficient to show that the defendant knew of his negotiations for this truck at the time the contract was entered into, and that he signed the plaintiff's note given for such truck at the time of its completed purchase. The very language of the contract, with its reference to "heavy hauling," is corroborative of plaintiff's testimony in that regard. Sand hauling is heavy hauling in its very nature, even with a 2-ton truck or less. There was no occasion for the quoted expression in the contract unless something beyond the ordinary was in contemplation. Under the instructions, the finding by the jury in favor of plaintiff was a finding that the contract was entered into with a view to the use of this truck upon such road. Twenty-two grounds of error are assigned by appellant. Though we give consideration to all of them, we shall confine our discussion to those which are emphasized in the argument.

I. One of the principal points urged is that the damages claimed are remote, speculative, and uncertain, and are for that reason not recoverable. The general nature and scope of the evidence of the plaintiff on the question of damages consisted of proof of the number of loads which he could haul per day, with reference to the various distances and the ordinary and probable expense to which he would be put in the making of such haul. Manifestly, whatever haul he could be reasonably expected to make, built up the credit side of his account. The debit side was made up of the expense of power, lubrication, driver, wear, tear, depreciation, and repair. Was this kind of evidence so indefinite and uncertain as to forbid its acceptance as proof of damages? The defendant is subject here to the argument ad hominem. In the course of the trial, he disclosed his conception of a proper method of proof of damages, in support of his counterclaim for alleged breach of the same contract. He put on an expert witness of much experience, by whom he proved that the reasonable cost of performing such contract by the plaintiff would have amounted to 13 1/3 cents per ton per mile more than the contract price, whereby a profit of just that amount would have inured to the benefit of the defendant, and a corresponding loss would have resulted to the plaintiff. In arriving at such a result, his cross-examination shows that the expert took account of substantially the same data as were resorted to by the plaintiff in proof of his damages. The difference between the respective computations was that, whereas Snoddy, the defendant's expert, estimated that the plaintiff could make only 7 or 8 of the 4-mile hauls per day, the plaintiff and his witnesses estimated that he could make 10 of them. The debit side was larger under the estimates of Snoddy than under the estimates of plaintiff's witnesses.

As an abstract legal proposition, loss of profits does afford a proper basis for the measure of damages for breach of contract, provided that the profits claimed are not remote, and are of such a nature as are capable of proof by reasonably certain evidence, and provided further that the evidence given in proof thereof is reasonably definite and certain. Hichhorn, M. & Co. v. Bradley, 117 Iowa 130; Rule v. McGregor, 117 Iowa 419, 90 N.W. 811; Gibson v. Fischer, 68 Iowa 29, 25 N.W. 914; Taft v. Tiede & Co., 55 Iowa 370, 7 N.W. 617; Huntington v. Haish Co., 190 Iowa 1197, 181 N.W. 480.

The authorities relied on by the appellant (Morgan v Sutlive Bros., 148 Iowa 318, 126 N.W. 175; Howard v. Brown, 168 Iowa 410, 148 N.W. 987; Howe Mach. Co. v. Bryson, 44 Iowa 159; Winne v....