Voorheis v. Fry

• Decision Date: 10 June 1899
• Citation: 52 S.W. 580
• Court: Texas Court of Appeals
• Parties: VOORHEIS et al. v. FRY.<SMALL><SUP>1</SUP></SMALL>

52 S.W. 580

VOORHEIS et al. v. FRY.¹

Court of Civil Appeals of Texas.

June 10, 1899.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action by Voorheis, Miller & Co. against Dan T. Fry. From a judgment allowing a cross claim, plaintiffs appeal. Reversed.

Lumpkin & Alexander, for appellants. Robertson & Robertson and Word, Dillard & Word, for appellee.

STEPHENS, J.

Appellants declared upon an account for goods sold appellee, who admitted the cause of action, but reconvened for damages. This appeal is from a verdict and judgment allowing him the damages so claimed. The true measure of his recovery is the real question at issue, as will be seen from the following quotation from the court's charge, to which the fifth error is assigned: "The court instructs you that if you believe from the evidence that the defendant and the plaintiff entered into a contract with each other in January, 1897, whereby plaintiff agreed and promised to sell to defendant all the amount of clothing which he (defendant) might order at various times in said year, and to give defendant a credit on the same until the 1st of November, 1897; and shall further believe that, in compliance with said contract, plaintiff did sell and ship to the defendant the goods sued for in the petition, and that afterwards the defendant made another order on plaintiff, in May, 1897, for certain summer and fall clothing, amounting in the aggregate to the sum of $1,099; and shall further believe from the evidence that plaintiff refused and failed to ship to defendant any of the goods so ordered, if any; and shall further believe from the evidence that the defendant, in anticipation of receiving said goods, had made a contract with one hundred persons, separately, to sell to each of them certain suits which he had ordered from the plaintiff; and shall further believe that said persons had agreed to take, and would have taken, the goods they had contracted for (if you find they had made any contract), provided the defendant had the goods to furnish them; and shall further believe from the evidence that the net profits of the defendant, if any, would have amounted to the sum of $4 on each suit,—then you will find for the defendant, as damages, the net profit, if any, he would have realized on the sale of said one hundred suits." Other assignments raise the same question. We are of opinion that this charge did not submit the true measure of damages. It is well settled that the damages recoverable for breach of contract include no more than may be fairly presumed to have been contemplated by the parties at the time of making the contract; and where it is claimed, as in this instance, that the circumstances show that a special...