Wilkinson v. Dunbar

• Decision Date: 05 November 1908
• Citation: Wilkinson v. Dunbar, 149 N.C. 20, 62 S.E. 748 (N.C. 1908)
• Court: North Carolina Supreme Court
• Parties: WILKINSON. v. DUNBAR.

62 S.E. 748

149 N.C. 20

WILKINSON.

v.DUNBAR.

Supreme Court of North Carolina.

Nov. 5, 1908.

1.Damages (§ 28^*)—Grounds of Compensation — Prospective Damages — Breach of Entire Contract.

Where there has been an absolute breach of an entire contract, all damages, both present and prospective, suffered by the injured party may, and usually must, be recovered in one action.

[Ed. Note.—For other cases, seeDamages, Cent. Dig. §§ 69, 70;Dec. Dig. § 28.*]

2.Damages (§ 40*)—Grounds of Compensation—Pecuniary Losses—Loss of Profits.

Profits, as an element of damages for breach of contract, are not excluded because of anything inherent in their nature, but usually because they are remote and contingent, as in case of anticipated profits from collateral engagements of the parties, or from current sales dependent on the uncertainty of trade and fluctuations of the market; but where profits may be determined with certainty, or are the direct or immediate results of the contract, so that they may be fairly said to have been in contemplation of the parties, they are recoverable.

[Ed. Note.—For other cases, seeDamages, Cent. Dig. § 76;Dec. Dig. § 40.*]

3.Damages (§ 184*)—Nature—Certainty as to Extent.

In an action for damages, while plaintiff must prove the amount of his loss, absolute certainty is not essential, and substantial damages may be recovered though plaintiff only shows his loss proximately; but both the cause and the amount of loss must be shown with reasonable certainty.

[Ed. Note.—For other cases, seeDamages, Cent. Dig. § 502;Dec. Dig. § 184.*]

4.Damages (§ 28*)—Grounds of Compensation — Prospective Damages — Breach of Contract.

Under an agreement to pay at a certain rate per thousand feet for cutting timber and delivering it at a certain place, on a breach thereof before all the timber was cut, prospective, as well as present, damages could be recovered, within the rule requiring prospective damages to be shown with reasonable certainty.

[Ed. Note.—For other cases, seeDamages, Cent. Dig. §§ 69, 70;Dec. Dig. § 28.*]

5.Damages (§ 120*) — Measure—Breach of Contract—Entire Contract—Prospective Damages.

On a breach of an agreement to pay a certain sum for cutting and hauling timber, while the measure of the damages accruing up to the time of the breach would be the difference between what was agreed to be paid and the cost of performance, where it appeared that the contract would have required some years after its breach to complete performance, theproper measure of the prospective damages arising after the breach would be the present value of the difference between the contract price and the cost of performance.

[Ed. Note.—For other cases, seeDamages, Cent. Dig. §§ 291-305;Dec. Dig. § 120.^2-*]

6.Damages (§ 120*)—Ground of Compensation — Prospective Damages — Breach of Entire Contract.

There can be but one recovery for present and prospective damages arising from breach of an entire contract, based on the values as they existed at the time of breach, but, in fixing the amount of a present recovery for prospective damages, allowance should be made on account of fluctuations likely to occur.

[Ed. Note.—For other cases, seeDamages, Dec. Dig. § 120.*]

7.Damages (§ 175*)—Evidence—Admissibility — Breach of Contract — Prospective Damages.

In an action for present and prospective damages arising from breach of an entire contract, evidence of changes in the market values or the cost of materials, etc., after the breach is inadmissible; the recovery being based on the values at the time of the breach.

[Ed. Note.—For other cases, seeDamages, Cent. Dig. §§ 409-471;Dec. Dig. § 175.*]

8.Evidence (§ 498*) — Opinion Evidence — Conclusions and Matters of Opinion— Value.

In an action for breach of a contract to pay defendant so much per thousand feet for cutting and hauling timber, where witnesses had stated the estimated cost per thousand feet of cutting and delivering the timber, their testimony as to the profits per thousand feet, though stated in the form of an opinion, was, in effect, an estimate of the difference between the cost of performance and the contract price, and was admissible within the general rule admitting opinion evidence.

[Ed. Note.—For other cases, seeEvidence, Cent. Dig. § 2289;Dec. Dig. § 498.*]

9.Evidence (§ 474*) — Opinion Evidence — Special Knowledge as to Subject-Matter—Value—Profits.

Opinion evidence will be admitted, where the witness has personally observed the facts and conditions testified to, though it is not strictly expert testimony, it being in the nature of expert testimony on the facts; and, on a claim for breach of contract to pay a certain sum for cutting and delivering timber, experienced lumbermen, having personal observation and knowledge of the facts and conditions, can give their opinions as to the profits per thousand feet in doing the work.

[Ed. Note.—For other cases, seeEvidence, Cent. Dig. § 2219;Dec. Dig. § 474.*]

10.Appeal and Error (§ 1177*) — Disposition of Cause—Reversal—New Trial.

Where, in an action for breach of contract, the questions of liability and of the amount of recovery were submitted in the same issue, the instruction as to the latter being incorrect, a new trial will be ordered on the entire issue.

[Ed. Note.—For other cases, see Appeal and Error.Cent. Dig. §§ 4597-4598;Dec. Dig. § 1177.*]

Appeal from Superior Court, Hyde County; O. H. Allen, Judge.

Action by W. H. Wilkinson against W. H. Dunbar.From a judgment for defendant on his counterclaim, plaintiff appeals.Reversed and remanded for new trial.

Plaintiff instituted suit against defendant, and declared on four causes of action for alleged breach of different contracts on part of defendant, and claiming damages therefor in amounts varying from $500 to $100.Defendant answered, denying the allegations of the complaint, and alleging, by way of counterclaim, breach of contract on part of plaintiff, under which plaintiff had contracted and agreed to pay defendant $3.50 per thousand feet to cut and haul the timber from two certain tracts of land, the timber amounting to several million feet.Plaintiff replied, denying the alleged counterclaim.On issues submitted there was a verdict for plaintiff on his first cause of action, the jury assessing plaintiff's damages at $428.99, with interest from May 19, 1902.And there was verdict for defendant on his counterclaim for $4,000.Objection was made to the ruling of the court which allowed defendant and some other witnesses, known to be familiar with the tract of land, and lumbermen of experience, to give their opinion as to the cost of cutting the timber and delivering same to the tugboat pursuant to the stipulations of the contract, and the profit per thousand feet to accrue according to the contract price.Exceptions were also made to allowing the jury to award prospective damages, the plaintiff contending that, under the terms of the contract and the attendant facts and circumstances, these damages were too indefinite, and uncertain to be made the basis of legal demand, and excepting further to the rule laid down by the court under which such damages were to be admeasured.There was judgment on the verdict for defendant, and plaintiff excepted and appealed.

S. S. Mann and Small, MacLean & McMullen, for plaintiff.

Ward & Grimes and W. M. Bond, for defendant.

HOKE, J.(after stating the facts as above).It was chiefly objected to the validity of defendant's recovery that the profits of the contract claimed and allowed as damages on defendant's counterclaim, involved too many elements of uncertainty to be made the basis of a legal award of prospective damages, and the same should have been rejected, on the ground that they are "speculative" and "contingent, " but we are of opinion that the objection cannot be sustained.It is well established that, where there has been definite and absolute breach of a contract which is single and entire, all damages, both present and prospective, suffered by the injured party may, and usually must, be recovered in one and the same action and, when prospective damages are allowed, they must be such as were in reasonable contemplation of the parties, and capable of being ascertained with a reasonable degree of certainty.This requirement as to the certainty of damages re-coverable is frequently said to exclude the idea of profits, but this statement must be understood to refer to the profits expected by reason of collateral engagements of the parties, or the profits of a going concern to arise from current sales and bargains which are yet to be made and dependent to a great extent on the uncertainty of trade and fluctuations of the market.Accordingly it has been held that profits of an old established business may sometimes be allowed as damages, when they can be ascertained with a reasonable degree of certainty, and, under like circumstance, the prospective profits to arise directly from the contract declared on are also recoverable.The doctrine is stated in Hale on Damages, as follows: "In an action for damages the plaintiff must prove, as part of his case, both the amount and the cause of his loss.Absolute certainty, however, is not required, but both the cause and the amount of the loss must be shown with reasonable certainty.Substantial damages may be recovered, though plaintiff can only give his loss proximately."Hale on Damages, p. 70, quoted with approval bythis court in Bowen v. King, 146 N. C. 385, 59 S. E. 1044.And, further, on page 71: "A difficulty arises, however, where compensation is claimed for prospective losses in the nature of gains prevented, but absolute certainty is not required.Compensation for prospective losses may be recovered when they are such as, in the ordinary course of things, are reasonably certain to ensue.Reasonable certainty means reasonable probability.Where the losses claimed are contingent, speculative, or merely possible, they cannot be allowed."On this...