Sullivan v. Mcmillan

• Decision Date: 18 February 1896
• Parties: SULLIVAN et al. v. McMILLAN et al.
• Court: Florida Supreme Court

19 So. 340

37 Fla. 134

SULLIVAN et al. v. McMILLAN et al.

Florida Supreme Court

February 18, 1896

Appeal from circuit court, Escambia county; W. D. Barnes, Judge.

Action by A. M. McMillan and C. L. Wiggins, copartners under the name of McMillan & Wiggins, against M. H. Sullivan and Emily S. Sullivan, executor and executrix of D. F. Sullivan deceased. Judgment for plaintiffs, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The rule that one who has been damaged by a breach of a contract should do all that reasonably lies within his power to protect himself from loss by seeking another contract of like character, the profits of which should be applied in mitigation of such damages, is correct as applied to some classes of cases, and has especial reference to contracts for personal services, or for the use of some special instrumentality, either with or without connection with such personal services.

2. The rule stated in the preceding headnote does not apply to a contract which is simply for the delivery of certain logs at a certain place, which might have been performed by the parties undertaking such delivery with their own teams and personal labor, or by any other means or agency to which they might have seen fit to intrust the performance of the same when there is nothing in the contract to show that the execution of the same required all or any great portion of the time or personal attention of such parties, or any of them.

3. The doctrine that a party who has been injured by the breach of a contract must do all that is reasonably within his power to mitigate the damages caused thereby, does not prevail to the extent that one who is injured by the violation of an agreement not necessarily involving personal services or the use of some special instrumentality, must seek and perform other contracts for the benefit of the party who, by breaking faith with him, has caused the injury.

4. The ancient rule is adverse to the assessment of interest upon unliquidated damages. More liberal ideas now prevail, and the distinction is practically obliterated between liquidated and unliquidated demands. Wherever a verdict liquidates a claim and fixes it as of a prior date, interest should follow from that date.

5. Whenever a definite time of default or tort feasance can be ascertained, interest should be allowed from that date. As soon as it is the legal duty of the defendant to pay, he is liable for interest. As the defendant must have been in default before the action is brought if the plaintiff recovers, and as his default consisted in withholding money due, it seems that he should be liable for interest at least from the date of the writ.

6. Interest is not the mere incident of a debt attaching only to contracts, express or implied, for the payment of money, but is compensation for the use or for the detention of money. Whenever it is ascertained that at a particular time money ought to have been paid, whether in satisfaction of a debt or as a compensation for a breach of duty, or for a failure to keep a contract, interest should be allowed thereon.

7. The evidence shows that the plaintiffs could have completed the contract at a certain time, viz. two years from the time that they were prevented from completing the same by the defendants. The action was brought long before the expiration of said two years. The jury were instructed to allow interest 'from whatever date the evidence shows the contract would have been completed.' The verdict shows that the interest was calculated from the date proven. There was no error prejudicial to defendants in the instruction or in the finding of the jury.

COUNSEL R. L. Campbell, for appellants.

W. A. Blount, for appellees.

OPINION

LIDDON, J.

This is the second appeal in this case. On the first appeal all questions of law presented by the case have been settled except two matters now controverted between the parties. The nature of the case will fully appear by reference to the reported opinion and the statements of fact accompanying the same. 26 Fla. 543, 8 So. 450. The suit was brought by appellees, hereafter called the plaintiffs, against appellants, hereafter called the defendants, for the breach of a contract, whereby appellees agreed to deliver to the testator of appellants all the logs of certain specified dimensions, and free from certain specified defects, growing upon certain described lands of said testator. The breach alleged to have been made by the defendants after the death of said testator was in refusing to receive the remainder of said logs after a portion of the same had been delivered. From the evidence it appears that it would have taken appellees two years, or thereabouts, from the time the contract was broken by appellants, to have completed the contract on their part by delivery of the other logs embraced within the provisions of the same. After the appellants broke the contract by refusing to receive any more logs under the same, the appellees, with some of the same teams that had been engaged in the work required for the performance of such contract, engaged in other work of delivering logs under other contracts to other parties. The appellants sought to prove what gains and profits were made by the appellees by their own labor and the use of such teams in such other work and contracts during the time that it would have taken them to perform the contract with the appellants' testator, and for the breach of which the suit was brought. The circuit court excluded such evidence. The proof upon the trial did show the value of the use of these teams, and what other teams could have been engaged for, and were taken into consideration in estimating the plaintiffs' profits upon which the verdict was based. The appellants claim that such evidence should have been admitted; that they were entitled to prove the amount of such gains and profits; and that such amount should have been deducted by the jury from the amount found to be due the appellees, under the rule for the measure of damages established by this court. 26 Fla. 543, 8 So. 450. The first of the matters controverted, above alluded to, is whether such gains and profits made by the appellees in subsequent contracts should be deducted from the general amount of damages which, under the measure of damages established as stated, could be recovered by them. The second is whether any interest should be recovered on the damages caused by the breach of the contract for which the action was brought.

It is urged by appellants that the plaintiffs, when they received notice that the defendants would not further comply with or perform the contract, should have done all that reasonably lay within their power to protect themselves from loss by seeking another contract of like character, and that, the plaintiffs having sought and obtained such a contract immediately after the breach sued upon, the defendants were entitled to have a proportionate amount of the profits applied in mitigation of the damages for which they were liable. Otherwise it is contended that the plaintiffs would make two profits for the same time, and with the same teams, and that speculation would be substituted for compensation, which is the basis of the law of damages for breaches of contract. These propositions are undoubtedly correct when applied to some classes of cases. They have special reference to contracts for personal services, or for the use of some special instrumentality, either with or without connection with such personal services. Thus, in a contract for teaching in a school, which was broken by a refusal to receive the services, it was held to be the plaintiff's duty to make reasonable exertion to obtain other like employment in the same vicinity, and thus mitigate the damages. Gillis v. Space, 63 Barb. 177; Benziger v. Miller, 50 Ala. 206. The same rule was laid down for a similar breach of a contract with an actress. Howard v. Daly, 61 N.Y. 362. Where the plaintiff, owner of a portable sawmill, agreed to remove it to the farm of the defendant, and to saw a stated number of logs, to be furnished by the defendant, during certain seasons of the year 1865, and the defendant, after furnishing a portion, broke his contract by refusing to furnish more of such logs, but during the time he (plaintiff) would have been engaged in sawing defendant's logs he was offered other employment of the same kind, so that his mill need not have been idle, it was held that the damages caused by the breach sued upon should have been mitigated. Heavilon v. Kramer, 31 Ind. 241. The facts in the case of Frazier v. Clark, 88 Ky. 260, 10 S.W. 806, and 11 S.W. 83,--a sawmill case,--very much resemble those of Heavilon v. Kramer, and the same point was likewise determined. In a case of a breach of a contract to furnish a cargo for a vessel it was held to be 'the duty of the master of a chartered vessel, on the failure or refusal of the charterer to furnish the cargo as agreed on, to avail himself of all ordinary means and proper opportunities to obtain another cargo; and if he neglect to perform this duty the owners cannot hold the charterer liable for the increased damages resulting from such neglect.' Murrell v. Whiting, 32 Ala. 54. A very similar case, and a very similar holding, is Shannon v. Comstock, 21 Wend. 457. In Hodges v. Fries, 34 Fla. 63, 15 So. 682,--a suit for violation of a contract for rent of a store building by refusing to put plaintiff in possession of same,--it was held to be the duty of the plaintiff to mitigate the damages by accepting another store in the same vicinity, and equally well suited for her purposes, which was tendered to her.

The contract which was broken in the present case was not one for personal...