United Iron Works v. Twin City Ice & Creamery Company

• Citation: 295 S.W. 109,317 Mo. 125
• Decision Date: 24 May 1927
• Docket Number: 25546
• Parties: United Iron Works v. Twin City Ice & Creamery Company, Appellant
• Court: United States State Supreme Court of Missouri

295 S.W. 109

317 Mo. 125

United Iron Works v. Twin City Ice & Creamery Company, Appellant

No. 25546

Supreme Court of Missouri

May 24, 1927

Appeal from Jefferson Circuit Court; Hon. E. M. Dearing Judge.

Affirmed.

P S. Terry for appellant.

(1) "In an action for breach of contract such damage is recoverable as may fairly and reasonably be considered as arising naturally, that is, according to the usual course of things, from such breach or such as may be reasonably supposed to have been within the contemplation of both parties when they made the contract, as the probable result of the breach of it." Thirry v. Hogan, 181 Mo.App. 48, 61; Fitch v. Telegraph Co., 150 Mo.App 149, 159; 17 C. J. 742; Hyatt v. Railroad, 19 Mo.App. 287; Howell v. Railroad, 171 Mo.App. 92, 101; Weber Implement Co. v. Harvesting Machine Co., 268 Mo. 363. (2) "As a general rule, a party is entitled to all legitimate expenses that may be shown to flow from or follow the breach of a legitimate contract, providing it appears that such expenses were the natural consequences of such breach and are reasonable, having regard to all the circumstances of the particular case." "There can be no doubt that the general intention of the law in giving damages in an action on contract is to place the party complaining, so far as this can be done by money, in the same or as good a position as he would have been if the contract had been performed. This is especially so where all the facts are known to the defendant." 13 Cyc. 61; Howell v. Railroad, 171 Mo.App. 92, 102; Graham Paper Co. v. Newspaper Association, 193 S.W. 1006; Chalice v. Witte, 81 Mo.App. 91; Shouse v. Neiswanger, 18 Mo.App. 244; Morrow v. Railroad, 140 Mo.App. 212; 17 C. J. 800. (3) "As a general rule a party is entitled to all legitimate expenses that he may show to have been incurred by him in an honest endeavor to reduce the damages flowing from or following the wrongful act. This rule applies equally to actions ex delicto and actions ex contractu." 17 C. J. 806; Mitchell v. Violette, 203 S.W. 220; Gilwee v. Brewing Co., 195 Mo.App. 487; Smith v. Railroad, 127 Mo.App. 168; Weber Implement Co. v. Harvesting Machine Co., 268 Mo. 363. (4) "In an action for breach of contract damages cannot be denied merely because the exact amount is impossible of ascertainment, it being only the measure which must not be uncertain. All that can be expected in any case is that the relevant facts tending to show the extent of the damages be placed before the jury to enable it to make such an intelligent estimate of the same as the circumstances of the case will admit. The manner of measuring the damages having been ascertained impossibilities in proving the same are not required, but only that the best evidence be adduced of which the nature of the case is capable; in other words, the degree of certainty of proof is dependent upon the character of the proceeding." Kennett v. Katz Const. Co., 273 Mo. 279, 202 S.W. 561; Couch v. Railroad, 252 Mo. 34; Brokerage Co. v. Campbell, 164 Mo.App. 20. (5) "In an action for breach of contract where a party enters into a contract with the full notice of the consequences that might ensue in case of delay, it is bound in case of negligent delay for such special damages as naturally and proximately result therefrom which were reasonably within the contemplation of the parties. Notice to charge the defendant with special damages in case of negligent delay, as will bind the defendant, does not require positive information, but only such facts and circumstances that will put a person of ordinary caution in the same situation on inquiry that will lead to the knowledge or truth are sufficient when properly brought home to the defendant. And a well-recognized exception to the general rule that a commercial business is too remote and speculative is, that the loss of profits from the interruption of an established business may be recovered." Morrow v. Railroad, 140 Mo.App. 212; 17 C. J. sec. 113, p. 788; Green v. Cole, 24 S.W. 1058; Wolff Shirt Co. v. Frankenthal, 96 Mo.App. 310; Rhodes v. Lumber Co., 105 Mo.App. 315; Golman v. Shirt Co., 6 Mo.App. 495; Hicks v. Surety Co., 169 Mo.App. 491; Kerns & Lorton v. Telegraph Co., 174 Mo.App. 439; Gildersleeve v. Ocerstolz, 90 Mo.App. 525; Stewart v. Patton, 65 Mo.App. 21; Brandt v. Sherman, 60 Mo.App. 73. (6) "Where the court failed to determine the issues on the counterclaim, and it is apparent from the findings and record presented that the court or jury failed to pass on the issues raised on all the causes of action stated in both pleadings, this action constitutes reversible error." Marshall v. Armstrong, 105 Mo.App. 238; Henderson v. Davis, 74 Mo.App. 1; Hitchcock v. Baughan, 44 Mo.App. 42; Gawk v. Millowick, 203 S.W. 1006; Thresher Co. v. Speak, 167 Mo.App. 470; Disbrow v. Storage & Fuel Co., 170 Mo.App. 587.

Clyde Williams and John F. Goshorn for respondent.

(1) To entitle defendant to recover wages paid laborers while awaiting the arrival of the machinery to be installed, such laborers must of necessity have been under pay and idle during the time they were awaiting the arrival of the machinery. Morrow v. Mo. Pac. Ry. Co., 123 S.W. 1038. (2) The general rule as to the recovery of anticipated profits is that they are too remote, speculative, and too dependent upon changing circumstances to warrant a judgment for their recovery. The exception is the loss of profits from the interruption of an established business, and in such cases it is indispensable that proof of the expenses and income of the business for a reasonable time anterior to and during the interruption of the business be produced to sustain a lawful judgment for damages for a loss of anticipated profits. Morrow v. Mo. Pac. Ry. Co., 123 S.W. 1039; Taylor v. Maguire, 12 Mo. 313. The mere loss of opportunity to try to make profits is too uncertain to be compensated in damages. Sloan v. Paramore, 164 S.W. 667. (3) Where it is apparent from the verdict and record presented that the jury considered and passed on the issues raised on each cause of action stated by the pleadings, it is not reversible error for the jury to fail to make a specific finding on each cause of action, and the finding of the jury for either party without mention of the petition or counterclaim, as the case may be, necessarily shows a determination of the cause of action which the jury did not mention. Cosgrove v. Stange, 183 S.W. 692.

Seddon, C. Lindsay, C., concurs; Ellison, C., not sitting.

OPINION

SEDDON

The petition herein is in two counts. The first count of the petition alleges, in substance, that plaintiff and defendant entered into a written contract (a verified copy of which is attached to the petition as an exhibit) on February 10, 1920, whereby plaintiff agreed to sell to defendant, and defendant agreed to buy from plaintiff, certain machinery and equipment for the production and application of refrigeration, known as an ice plant equipment, at and for an agreed price and sum of $ 6,280, payable in four installments of $ 1,570 each at certain specified times; that said machinery and equipment was delivered by plaintiff to defendant on the day of March, 1920, and was received by defendant and installed in its plant at Crystal City, Missouri; that defendant made the first two payments, aggregating $ 3,140, as provided in said contract, but has failed and refused to pay the balance of $ 3,140 due and payable under the terms of said contract; wherefore, plaintiff prays judgment against defendant for the sum of $ 3,140, with interest and costs, and that said judgment be declared and adjudged a first lien upon the machinery and equipment described in said contract, and that the lien be foreclosed and the machinery and equipment be sold thereunder. The second count of the petition is upon quantum valebat, whereby plaintiff seeks to recover the sum of $ 40, alleged to be the reasonable value of certain goods and merchandise sold and delivered by plaintiff to defendant at defendant's instance and request.

The answer admits the making of the written contract, which is the basis of the first count of the petition, and that defendant agreed to pay the contract price mentioned therein but denies that plaintiff delivered the machinery and equipment in March, 1920. The answer further alleges that, as an inducement to defendant to buy said machinery and equipment, and as the essence of said contract, plaintiff agreed to ship all of said machinery and equipment on or before March 8, 1920; that defendant told plaintiff that said machinery and equipment was to be used, and was being purchased for the purpose of being used, for the season beginning May 1, 1920, and ending October 1, 1920; that plaintiff knew, and was so informed by defendant, that said machinery and equipment would have to be delivered and installed and ready for use on or before May 1, 1920, but, notwithstanding said agreement and understanding, plaintiff failed to ship said machinery and equipment on or before March 8, 1920, and failed for a long time thereafter to ship the same; that plaintiff failed to furnish certain material which it was required to furnish under said contract, whereby defendant was compelled to buy the same elsewhere; that defendant paid the freight charges upon the two shipments of said machinery and equipment; that certain of the machinery was not of the size and dimensions specified in the contract, whereby defendant was required to take down and rebuild the walls of its plant in order to install the said machinery; that no appreciable amount of said machinery and equipment was shipped until May 4, 1920; that defendant, under the terms of said contract, furnished and employed workmen, who were held in readiness to...