Strawn v. Brothers

• Citation: 1925 OK 38,109 Okla. 184,235 P. 476
• Decision Date: 20 January 1925
• Docket Number: Case Number: 14997
• Parties: BAKER & STRAWN v. MILLER & JONES BROS.
• Court: Oklahoma Supreme Court

1925 OK 38

235 P. 476

109 Okla. 184

BAKER & STRAWN v. MILLER & JONES BROS.

Case Number: 14997

Supreme Court of Oklahoma

Decided: January 20, 1925

Syllabus

¶0 1. Damages--Contract--Breach -- Damages Recoverable.

Damages claimed for breach of contract cannot be recovered unless they are clearly ascertainable, both in their nature and origin, and it must be made to appear that they are the natural and proximate consequence of the breach of the contract, and not speculative and contingent.

2. Same--Statute--"Clearly Ascertainable"--Remote Profits--Contract to Drill Oil Well.

The words "clearly" and "ascertainable," used in section 5976, Comp. Stat. 1921, taken together, mean without obscurity, obstruction, confusion, or uncertainty, and the damage claimed must be made reasonably certain, and where, as in the instant case, the profits sought to be recovered are dependent upon the happening of certain contingencies and are dependent upon luck or chance, they are too remote, speculative, and uncertain to entitle plaintiffs to recover.

Commissioners' Opinion, Division No. 5.

Error from District Court, Carter County; Asa E. Walden, Judge.

Action by Miller & Jones Brothers, a copartnership, against Baker & Strawn, damages for breach of contract. Judgment for plaintiffs. Defendants bring error. Reversed.

Fitzpatrick & O'Dell and J. A. Bass, for plaintiffs in error.

Cruce & Potter, for defendants in error.

THOMPSON, C.

¶1 This action was commenced in the district court of Carter county, Okla., by Miller and Jones Brothers, a copartnership, defendants in error, plaintiffs below, against Baker and Strawn, a copartnership, plaintiffs in error, defendants below, to recover damages for breach of contract to drill two oil and gas wells in Carter county.

¶2 The parties will be referred to in this opinion as plaintiffs and defendants, as they appeared in the lower court. In the original petition it is alleged that under a written contract the plaintiffs were to drill two oil and gas wells to the depth of 2,250 feet each, for which they were to be paid the sum of $ 4.25 per foot; that they drilled one well and were paid therefor, and that defendants refused to permit them to drill the second well under the contract, although they were ready and willing to drill the same, and that they were damaged thereby in the sum of $ 4,000 for loss of time and the rental value of their drilling machinery, and that they were damaged in the additional sum of $ 4,500 loss of profits by virtue of breach of the contract by the defendants' refusal to permit them to drill the second well or in the total sum of $ 8,500.

¶3 Defendants, by their pleading, compelled the plaintiffs to elect upon which cause of action they would seek to recover, and the plaintiffs, in open court, elected to rely solely upon the count alleging damages of $ 2 per foot, or a total of $ 4,500 as profits, which they claimed they would have realized if they had been permitted to drill the second well, and dismissed as to the other count, alleging damages in the sum of $ 4,000 for delay in the use of the drilling outfit.

¶4 The defendants answered, admitting the making of the contract, but claim that, by mutual consent and agreement, the time for the drilling of the second well was extended to a later time on account that the unfavorable condition of development and of the oil market would not justify the drilling of the same.

¶5 The plaintiffs filed their reply in the nature of a general denial.

¶6 Upon these issues the cause proceeded to trial and at the close of the testimony on part of the plaintiffs, the defendants demurred to the sufficiency of the evidence in that they had not established a cause of action against the defendants, and that the proof did not establish the proper measure of damages, which demurrer was overruled by the court, and exception reserved by the defendants.

¶7 The defendants introduced their evidence and at the close of all the evidence in the case, the defendants requested the court to instruct a verdict in favor of the defendants, and against the plaintiffs, which request was refused. Then, the defendants further requested the court to charge the jury that loss of profit, under the testimony in the case, was not the true measure of damage, which was also refused. To both refusals of the court the defendants reserved exceptions.

¶8 The trial resulted in a verdict in favor of the plaintiffs in the sum of $ 4,000. The defendants filed a motion for judgment notwithstanding the verdict, which motion was overruled, and exception reserved.

¶9 Motion for new trial was filed, heard, and overruled, and judgment pronounced upon the verdict of the jury in favor of the plaintiffs and against the defendants in the sum of $ 4,000, with interest from November 1, 1923, until paid, and for costs, and the cause comes regularly upon appeal by defendants from said judgment.

¶10 The attorneys for the defendants set up nine assignments of error for reversal of the judgment of the trial court, but content themselves with presenting argument upon said assignments under the following general heads:

"1. Damages must be clearly ascertainable both in their nature and origin before they will support a verdict and judgment.

"2. When the plaintiff's evidence shows only prospective and speculative damages, such evidence is not sufficient to support a verdict and judgment in favor of the plaintiffs.

"3. When there is no legal evidence reasonably tending to support the verdict of the jury, the verdict should be set aside.

"4. When the court bases his charge on an incorrect theory of the case, the verdict and judgment are erroneous, and should be set aside."

¶11 At the very beginning of this action the defendants contended that the plaintiffs should elect which measure of damage they would stand upon, and the court sustained their contention, whereupon plaintiffs elected to sue for loss of profits, and the attorneys for defendants, in their brief, say:

"Waiving other grounds for the relief sought, the defendants here rely upon the error of the trial court in allowing the case to be tried on the theory that the loss of profits was the measure of damage. Defendants at every stage of the litigation have insisted, and now insist, that the rental value of the tools and machinery during the period of idleness, for which defendants were responsible, is the true measure of damage and that the loss of profits under a contract of this nature are not clearly ascertainable in their nature and origin, and, therefore, not the measure of damages."

¶12 And the attorneys for plaintiffs, in their brief, state the matter to be decided by this court as follows:

"Plaintiffs in error made no serious defense to their action in breaching the contract, but contended

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