157 Ind. 271 | Ind. | 1901
The appellees sued the appellant upon an account for goods sold and delivered. The answer was a general denial, and a plea of payment. The appellant, also filed seven paragraphs by way of counterclaim for damages in the sum of $15,000. A demurrer 'to the fourth paragraph of the counterclaim was sustained, and on motion of the appellees the fifth paragraph of the counterclaim was stricken out. A reply in denial of the second paragraph of the answer and answers in denial of the remaining paragraphs. of the counterclaim were filed by the appellees. The cause was tried by a jury, and a verdict in favor of the appellees was returned.
The errors assigned and discussed by counsel are the rulings of the court, upon the demurrer to the fourth paragraph of the counterclaim, upon the motion to. strike out the fifth paragraph of counterclaim, and upon the motion for a new trial.
The fourth paragraph of the counterclaim stated in substance that the appellees sold and agreed to deliver to the appellant, on or before September 20, 1895, one complete hub plant, consisting of one Bardons & Oliver hub machine, and one number four machine fitted up for the second oper
. The sole ground of the appellant’s claim for damages is the alleged loss of contingent anticipated profits. The basis upon which they were estimated was the general demand for bicycles, the scarcity of hubs for these machines, and its belief that with a machine which would manufacture 125 front hubs or 75 rear hubs in a day, it would be able to man
Before passing to the consideration of the rule of damages to be applied in this case, it is to be observed that the complaint is silent in respect to certain facts of much importance even in the view of the law taken by appellant’s counsel. We find nothing in the paragraph to indicate that at the time the hub machines were to be delivered the appellant was prepared to manufacture more than five bicycles in a day, or, say, 125 in a month. This seems to have been the limit of its capacity when the contract was made. It was then using machines which could turn out only five front hubs, and five rear hubs in one day. It is not stated that the appellant was manufacturing, or was prepared to manufacture, more bicycles than it had the capacity to make hubs for. If it did SO', it must have purchased all of its hubs in excess of those manufactured by its own plant. But, if it had a plant of sufficient capacity to manufacture more than five bicycles in a day, that fact is nowhere stated. It cannot be supposed that a small establishment, capable of turning out only five bicycles in a day, or 125 in a month, could suddenly expand, without considerable additions to its buildings, power, and other machinery, to a capacity of twenty-five bicycles in one day, or 625 in one month. If the appellant had so extensive a plant, or if in anticipation of the great increase in its business it enlarged its works after ordering the hub machines from the appellees, the complaint ‘ should have said so. As nothing of this kind is claimed, we must assume that the appellant made no change in its plant before the hub machines were delivered, and that, in fact, it waited to see what the new machines would do, and whether the demand for bicycles would justify it in enlarging its works. If this was the plan of the appellant, and if the
The rule refers (1) to such damages as may fairly and reasonably be considered as arising according to the usual course of tilings from the breach, and (2) to such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. In this case, the loss of profits on the bicycles which the appellant might possibly have manufactured and sold cannot fairly and reasonably be considered as damages arising naturally from the breach of the contract to deliver the hub machines at the time fixed by the contract. If the appellant had provided buildings, machinery, and materials with which to manufacture the additional 500 bicycles per month and if, by the failure of the appellees to deliver the hub machines, it had been deprived of the use, or the opportunity to use such buildings, machinery, and materials, by the default of the appellees, the reasonable value of such use during the period of delay might have been fairly and reasonably considered as damages arising naturally from the breach of the contract to
It is not necessary to pursue this subject further. This case is easily distinguishable from all those in which it has been held that the party in default is liable for the loss of future profits. Here there was no outlay, no' deprivation of the use of property, no loss upon contracts previously entered into by the appellant. The only damages alleged to have been sustained by the appellant consisted in the loss of future, contingent, speculative, and imaginary profits. The appellant asks us to assume that, if it had received from the appellee a piece of machinery for manufacturing a small, though essential, part of a complicated article consisting of many members, everything else required for the construction of that article could easily have been procured at reasonable prices, and without delay; that the- appellant would have been provided with all necessary shops, and warehouses, and workmen; that customers would have been found for its increased product; and that a large profit would have been realized by it upon the sale of every bicycle. But
(2) The fifth paragraph of counterclaim was substantially the same as the fourth, except that it claimed damages for the loss of profits on bicycle hubs. Eor the reasons already set out with inference to the fourth- paragraph, the 'fifth, if demurred to, must have been held insufficient. This paragraph was stricken out on motion of the appellee, and the ruling is assigned for error. While motions to strike out pleadings are not regarded with favor, yet when the pleading contains nothing but immaterial matter, no sufficient cause of action being disclosed, and a correct result is reached, a judgment will not be reversed because of such a ruling. Carver v. Carver, 44 Ind. 265; McGrew v. McCarty, 78 Ind. 496; Harris v. Randolph Co. Bank, ante, 120.
(3) The remaining questions which the appellant attempts to present relate to the admission of certain evidence over the objection of the appellant, and the misdirection of the jury. An effort has been made to reserve some of these questions by a special bill of exceptions under §642 Bums 1901. The bill, however, contains no statement that the evidence embraced in the special bill was all of the evidence given in the cause upon the subject referred to in the questions and answers set out in the bill. The statement “that neither party had given any evidence of, or concerning, any machines other than those so sold and delivered by Hie plaintiffs to the defendant,” does not necessarily imply that no- evidence was given concerning the machines sold by the plaintiffs to the defendant, to which the testimony set out in the special bill might not properly apply. The substance of the evidence admitted by the court was, that the appellee
For like reasons, we cannot determine the question of tho correctness of the fifth instruction asked for by the appellant. The evidence may have been such that the modification made by the court was proper.
The other questions raised by the appellant relate to other rulings of the court upon the evidence, and to instructions given and refused. The decisions complained of are such as can be presented to this court for review only by bill of exceptions. But the bill in this case was signed by the trial judge June 22, 1899, and was not filed after it had been so signed. The filing on June 8, 1899, by'the stenographer before it was signed by the judge was not sufficient. As the evidence and the instructions are not in the record, we cannot consider the alleged errors predicated of them. Judgment affirmed. Baker, J., did not participate in this decision.