Union Cotton Co. v. Bondurant

• Decision Date: 25 May 1920
• Parties: UNION COTTON CO. v. BONDURANT.
• Court: Kentucky Court of Appeals

222 S.W. 66

188 Ky. 319

UNION COTTON CO. v. BONDURANT.

Court of Appeals of Kentucky.

May 25, 1920

Appeal from Circuit Court, Fulton County.

Action by C. T. Bondurant against the Union Cotton Company. From judgment for plaintiff for the recovery of damages, and from judgment sustaining attachment on defendant's property and adjudging sale of it to satisfy the money judgment defendant appeals. Judgment for recovery of damages affirmed judgment sustaining attachment reversed, and cause remanded.

Robbins & Robbins, of Mayfield, for appellant.

W. J Webb, of Mayfield, for appellee.

HURT J.

In this action there has been an appeal from two judgments of the circuit court, one by which the appellee, C. T. Bondurant was adjudged to recover from appellant, Union Cotton Company, the sum of $1,200, and the other was a judgment which sustained the attachment upon the property of the appellant and adjudged a sale of it to satisfy the judgment.

The appellee, C. T. Bondurant, brought this action against the appellant, Union Cotton Company, averring that the latter had broken a contract between him and it by which he had leased from it a cotton gin and appurtenances for a term beginning July 1, 1916, and ending June 30, 1917, and for which he had agreed to pay it the sum of $1,200. The negotiations between the parties had commenced by parol, but were completed by an exchange of letters, and culminated in the making of a contract which was reduced to writing and subscribed by each of the parties. The writing contained a clause as follows:

"The Union Cotton Company agrees to put the cotton gin machinery and scales in good working condition, said work to be inspected and accepted by C. T. Bondurant as soon as repairs are completed, not later than August 1, 1916."

The written memorial of the contract was prepared in duplicate and subscribed by appellant and forwarded by mail to appellee, who in turn subscribed the copies, and, retaining one, returned the other to appellant, and about the same time forwarded to it three negotiable promissory notes by which he promised to pay the rental in three equal installments, October 1st, January 1st, and April 1st following. The appellant accepted the notes, and before either of them became due assigned them to another. While it is insisted by appellant upon this appeal that the contract, by reason of a letter from appellee which accompanied the return of the written contract to appellant and the reply thereto by appellant, was that the appellee should make any repairs necessary after the 1st of August, and after repairs had been made by appellant, previous to that time, and at his own cost. This contention does not appear in the pleadings, which admit the contract touching the duty of putting machinery of the gin and the scales in good working condition to be as stated in the above-quoted clause of the writing subscribed by both parties, and besides neither party appears to have ever accepted the construction placed upon this clause of the writing by the other in the letters referred to, but to have proceeded under the contract as written and subscribed.

The breach of the contract upon which appellee relied for the recovery of damages was the alleged failure by appellant to put the machinery of the gin, which was greatly in need of repair, into good working condition, either before August 1st or at any time thereafter, and hence that, under the terms of the contract, the repairs had never been in such a state of completion as to require him to accept them as having put the plant in a good working condition, and that on that account he had never done so, and that, although appellant had in the first days of July placed workmen in repairing the plant, it had never so repaired it as to put it in good working condition, and that he had so notified the agent of appellant in charge of the work that he would not accept the repairs as made as putting the plant in the condition required by the contract, and thereafter appellant never complied with its covenant to make the necessary repairs, and appellee did not know that the plant was not in good working condition until he undertook to operate it after the ginning season for 1916 had commenced, when he found that the plant was entirely unfit for ginning purposes and not in working condition, and this was at so late a period in the season that he was not able to secure or provide himself with other means of ginning during that season, nor to have repaired the appellant's gin, if he had desired to do so, and because of that fact he lost profits which he could and would have made in ginning cotton during the season which amounted, as he claimed, to the sum of $1,800. Upon the other hand the appellant denied that it failed before August 1st, to put the plant in good working condition, and claimed affirmatively that it did put the machinery of the gin and the scales in such condition and had them in such condition by the 14th day of July, at which time the appellee accepted the plant as having been put in the condition required by the contract. The appellant denied all the averments of damages made by the appellee, and also set up a counterclaim for damages, based upon the stipulation in the contract that appellee, at the end of the term of the lease, would return the property to appellant in as good condition as he received it, ordinary wear and damages from fire excepted, and then, in violation of the stipulation, he had negligently permitted it to become greatly injured and damaged in the sum of $1,000. The affirmative allegations of appellant's answer was by agreement, controverted upon the record.

The issues raised by the pleadings were determined by the jury under instructions which submitted the theory of each party to it, and resulted in a finding for appellee in the sum of $1,200 and a judgment of the court accordingly.

The Union Cotton Company appeals from the judgment, and urges that the court erred in overruling its motion for a directed verdict at the close of the evidence for appellee and at the close of all the evidence upon two grounds. The first of the grounds relied upon is that the damages sought, and for which the appellee recovered a judgment, were on account of the loss of profits, which character of recovery is not allowed because the evidence of such recovery is uncertain, contingent, and speculative. It may be conceded that the only element of damage which appellee, by his petition, sought to recover, was the profits which he could and would have realized from the ginning of cotton during the ginning season, within the terms of the lease, if the plant had been put into good working condition by appellant, and which he lost by the failure of appellant to comply with its contract in that respect. He also averred that, when the contract was made for the lease of the property, appellant knew his purpose in procuring the lease was to...