Whiting v. Dodd

• Decision Date: 09 April 1957
• Docket Number: 6 Div. 396
• Citation: 39 Ala.App. 80,94 So.2d 411
• Parties: Harry H. WHITING, d/b/a National Sales System, v. Mack DODD, d/b/a Dodd Furniture Company.
• Court: Alabama Court of Appeals

Page 411

94 So.2d 411

39 Ala.App. 80

Harry H. WHITING, d/b/a National Sales System, v. Mack DODD, d/b/a Dodd Furniture Company.

6 Div. 396.

Court of Appeals of Alabama.

April 9, 1957.

Bill Fite, Hamilton, for appellant.

Elliott & Jackson, Jasper, for appellee.

CATES, Judge.

Whiting brings appeal here from a nonjury judgment of the Marion Circuit Court in an action for breach of contract brought by him against Dodd. The court held that there was a valid and subsisting contract between the parties, that the defendant breached such contract, and that the plaintiff sustained only nominal damages as a result of such breach. It consequently awarded a recovery of $1 and costs.

The defendant, Dodd, wanted to close out his furniture business and retire. On November 21, 1953, Whiting, through his agent, Mr. L. L. Gore, entered into an agreement with Dodd reading as follows:

'Dodd Furniture Co. of Winfield, Ala. being the owner and manager of a stock of Furniture & Appliances located at Winfield, Ala. hereby contracts with the National Sales System for a sale, and the National Sales System hereby agrees to supply them with a capable sales manager to manage and conduct a special sale of such stock, said specialist to arrive on Jan. 4 or 11-1954, open the sale of Soon as Ready and to remain with This Store until and including Four Weeks. I will pay for this service a fee of Three Hundred ($300.00) Dollars per week, said fee to be paid each Saturday a. m. by certified check drawn only to the order of the National Sales System and to be delivered to the sales manager in charge, and the National Sales System agrees that said sales manager will conduct such sale on the above terms and will be throughly equipped therefor, will draft all copy for advertisements, signs and cards, will display merchandise to the very best selling advantage both in stores and windows and will assist in management and supervision of the sale. 200 accts. about $6,000 accts Rec.

'(a) Collection service is included without further charge except for printing and postage. (If desired check here) /

'(b) Option on sales manager's service is granted for additional weeks at the same rate per week. (If desired check here) / 'Under this arrangement Mr. Dodd or His representative Reserves the right to set prices on all merchandise, regulate advertising expense, approve of all advertising copy and handle all cash receipts.

'This Agreement is not subject to cancellation except by mutual agreement of both parties.

'The merchant or store, contracting with the National Sales System under this agreement hereby agrees not to re-employ the sales manager who is sent to render the service stipulated in this contract, at any time in the next five years in any capacity, directly or indirectly, as an agent or as an individual, except as a representative of the National Sales System under contract with the National Sales System and if said merchant or store should do so, such merchant or store hereby confesses damages to the National Sales System in the sum of $1,000.

'The National Sales System will use their best endeavor to give absolute satisfaction in the sale and to bring the sale to a satisfactory termination.'

Sometime before December 12, 1953, Mr. Dodd wrote the plaintiff that he thought the four weeks to begin January 4 or 11, 1954, was a poor time to sell out at retail, and requested that the agreement be called off. This was not acceptable to Whiting, and, accordingly, Dodd's attorneys notified Whiting on January 4, 1954, that the agreement would not be performed by the defendant.

Mr. Gore, the southeastern representative of Whiting's firm, was the only witness for the plaintiff. His testimony, in effect, was that Whiting had suffered a loss of $600 by reason of the breach. The $600 was the anticipated profit lost since it would have cost Whiting $600 (the sales manager's salary) to have performed the contract. This deducted from the $1,200 called for under the agreement gave the estimate of loss therein provided.

The defendant introduced testimony to show that the time for the sale was inauspicious, and that, accordingly, the value of the services called for under the agreement would have been negligible to the defendant; and that inasmuch as the plaintiff had held himself out as somewhat of an expert in the field of 'business analysis,' the written agreement was the product of misrepresentation on plaintiff's part. However, Dodd, on the witness stand, admitted that he did not consider that Gore, in negotiating the contract, had misrepresented the prospects of selling out his stock of goods.

The appeal being taken by the plaintiff, without cross appeal by the defendant, the defendant cannot complain of the court's finding that the agreement was valid and binding, and that defendant had breached it. Both by assignment of errors and argument, the parties have narrowed the consideration on appeal to one main problem and others subsidiary thereto, i. e., what is the proper measure of damages for the breach of an agreement of this sort.

The appellant urges on us that the trial court was in error in not awarding damages for the profits Whiting could have made, and in support thereof cites Peck-Hammond Co. v. Heifner, 136 Ala. 473, 33 So. 807, and George v. Cahawba & Marion R. Co., 8 Ala. 234. The appellee's position is that the plaintiff's evidence as to loss of profits is insufficient, and that the profits claimed are speculative, conjectural or remote.

In Anderson & Co. v. Brammer, 4 Ala.App. 596, 58 So. 941, 942, this court said:

'* * * the proper measure being the contract price less the cost of completion, the profit that would accrue...