Willamette Quarries, Inc. v. Wodtli

• Decision Date: 05 October 1988
• Citation: 761 P.2d 1356,93 Or.App. 306
• Parties: WILLAMETTE QUARRIES, INC., an Oregon corporation, Appellant, v. Allen WODTLI and Ruth L. Wodtli, husband and wife, J.C. Compton Contractor, Inc., an Oregon corporation, dba J.C. Compton Contractors, and Morse Brothers, Inc., an Oregon corporation, Respondents, and Cascade Crushing, Inc., an Oregon corporation, Defendant. 84-1138; CA A42921.
• Court: Oregon Court of Appeals

Page 1356

761 P.2d 1356

93 Or.App. 306

WILLAMETTE QUARRIES, INC., an Oregon corporation, Appellant, v. Allen WODTLI and Ruth L. Wodtli, husband and wife, J.C Compton Contractor, Inc., an Oregon corporation dba J.C. Compton Contractors, and Morse Brothers, Inc., an Oregon corporation, Respondents and Cascade Crushing, Inc., an Oregon corporation, Defendant.

84-1138; CA A42921.

Court of Appeals of Oregon.

Argued and Submitted Jan. 22, 1988.

Decided Oct. 5, 1988.

Ray Fechtel, Eugene, argued the cause and filed the briefs for appellant.

Thomas J. Reuter, Lebanon, argued the cause for respondents Wodtli. With him on the brief were Kevin J. Freeman, and Morley, Thomas, Kingsley, Reuter & McHill, Lebanon.

Dean M. Quick, Albany, argued the cause for respondents J.C. Compton Contractor, Inc. and Morse Brothers, Inc. With him on the brief was Weatherford, Thompson, Brickey & Quick, P.C., Albany.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiff initiated this action against Allen and Ruth Wodtli (the Wodtlis) for breach of contract, against the Wodtlis, J.C. Compton Contractor, Inc., and Morse Brothers, Inc. (Morse), ¹ for trespass and conversion and against Morse for intentional interference with a contract. ² At the close of plaintiff's case, the trial court granted both the Wodtlis' and Morse's motions for directed verdict, and judgment was entered in their favor. Plaintiff appeals, contending that there was sufficient evidence on each of its claims to present jury questions. We affirm in part and reverse in part.

We will recite the facts in the light most favorable to plaintiff, giving it the benefit of every reasonable inference supported by the record. Foster v. Schnell Refrigeration Co., 280 Or. 411, 414, 571 P.2d 497 (1977). On March 31, 1966, the Wodtlis entered into an agreement with plaintiff which granted plaintiff the exclusive right to sever and remove revetment and riprap rock from a 40-acre tract of land which was described in the agreement. ³ The agreement provided that plaintiff was to pay a royalty of ten cents per cubic yard for all rock removed from the premises. Plaintiff paid royalties to the Wodtlis of $5.00 in 1978, $11.00 in 1981 and $225.76 in 1984. The agreement expired on March 31, 1986. ⁴

On July 2, 1981, Morse entered into an agreement with the Wodtlis which permitted Morse to remove rock and gravel from the same property. Between 1981 and 1983, Morse removed over 100,000 yards of rock which was crushed by Morse before its removal. Morse did not remove all of the riprap and revetment rock on the premises. In the spring of 1984, plaintiff discovered that the rock had been removed.

Plaintiff assigns as error the trial court's granting of defendants' motions for directed verdict. Plaintiff's first claim was for breach of contract against the Wodtlis. It contends that, by entering into a contract with Morse allowing the removal of rock, the Wodtlis breached their agreement giving plaintiff the exclusive right to remove revetment and riprap rock from the premises. The Wodtlis argue that the directed verdicts were proper, because their contract with plaintiff was not valid. ⁵ They argue that plaintiff was granted the right to establish a quarry to remove revetment and riprap rock from a five-acre tract within the 40-acre tract owned by the Wodtlis and that the five-acre tract is not sufficiently described in the agreement to comply with the Statute of Frauds. We do not agree. Plaintiff was granted the exclusive right to quarry and remove revetment and riprap rock from the entire 40-acre tract, which was described in the agreement as:

"The Northeast Quarter of the Southeast Quarter of Section 26, Township 13 South, Range 1 West of the Willamette Meridian, in Linn County, Oregon, containing 40 acres, more or less."

That description satisfies the Statute of Frauds. High v. Davis, 283 Or. 315, 584 P.2d 725 (1978).

The Wodtlis also argue that there was no consideration for the contract. However, before removing any rock, plaintiff was required to pay the Wodtlis $500. Although the payment was to be applied against any royalty payments to be made by plaintiff to the Wodtlis during the last year of the contract, it was non-refundable, even if plaintiff owed no royalty payments in the last year of the contract. That was consideration.

The Wodtlis also contend that the directed verdicts on the contract claim were proper, because plaintiff failed to prove damages. We agree. Plaintiff's breach of contract claim sought only damages for lost profits. In an action for lost profits, a plaintiff must prove with "reasonable certainty" that profits were lost and that the loss was a result of the breach. Buck v. Mueller, 221 Or. 271, 282, 351 P.2d 61 (1960); Hillstrom v. McDonald's Corporation, 88 Or.App. 444, 448, 746 P.2d 222 rev. den. 305 Or. 103, 750 P.2d 497 (1988). In Welch v. U.S. Bancorp, 286 Or. 673, 704, 596 P.2d 947 (1979), the Supreme Court addressed the meaning of "reasonable certainty":

"The real use of the term reasonable certainty seems to be to screen out an issue from the jury when the court has concluded that the evidence, taken as a whole, is clearly insufficient to establish the fact sought to be proved." (Emphasis supplied.)

Plaintiff contends that the profits which it lost as a result of the Wodtlis' breach can be calculated by multiplying the amount of revetment and riprap rock allegedly taken by Morse by the price that plaintiff would have received for the rock if it had been able to sell it. Plaintiff asserts that it would have been able to sell the rock for $1.80 ⁶ per yard, exclusive of the costs of production. The problem with the argument is that the the exclusive right to remove revetment and riprap rock did not secure the right to remove a specific amount of rock, but rather gave plaintiff an unlimited right to remove rock for a specific period of time which expired in March, 1986. Thus, even if plaintiff did present evidence that Morse removed a certain amount of rock which could have been sold at a certain price, it does not follow that it proved lost profits. There was no evidence that plaintiff would have been able to sell any rock. See Meader v. Francis Ford, Inc., 286 Or. 451, 458, 595 P.2d 480 (1979); Custom Harv. Oregon v. Smith Truck and Tractor, 75 Or.App. 274, 281, 706 P.2d 186 (1985); cf. Lawrence v. Underwood, 81 Or.App. 533, 726 P.2d 1189 (1986) (expert witness testified as to motel's lost profits on basis of actual operation of comparable motel in same town, financial data regarding motel industry and motel's financial history); VonRavensberg v. Houck-Carrow Corp., 60 Or.App. 412, 653 P.2d 1297 (1982) (plaintiff testified as to ice business' lost profits on basis of data regarding business' financial history). More importantly, there was no evidence that, between the time when Morse began to remove rock in 1981 and the expiration of plaintiff's right, plaintiff was prevented from completing a sale or furnishing a bid due to a lack of revetment and riprap rock. Additionally, there was evidence that revetment and riprap rock continued to exist in the quarry even after the expiration of plaintiff's contractual right to remove rock and that plaintiff was able to complete a sale of rock in 1984. Although plaintiff was not required to prove the exact amount of lost profit, there was no proof that it lost any profits. See Meader v. Francis Ford, Inc., supra.

The trial court also granted a directed verdict on plaintiff's claim against the Wodtlis and Morse for trespass. Plaintiff assigns this as error, arguing that the right to sever and remove revetment and riprap rock gave it a possessory interest in the rock on the Wodtlis' property and that, by removing rock, Morse and the Wodtlis trespassed on plaintiff's interests. We do not agree. Plaintiff's right to sever and remove rock from the Wodtlis' land was a profit a prendre. In Jackson County v. Compton, 289 Or. 21, 24, 609 P.2d 1293 (1980), the Supreme Court cited with approval the...