Plaintiff-appellant urges that the court is without power to direct a verdict after dispersal of the jury, and that without a verdict signed by one of the jury there can be no directed verdict. Whether, prior to the adoption of the Civil Practice Act, there could have been the direction of a verdict after dispersal of the jury does not appear to have been decided. However, there was no statute requiring that the verdict be signed, even when returned by the jury without direction.
Southern Express Co. v. Maddox,
The same language is to be found in Rule 50 (a) of the Federal Rules of Civil Procedure, and concerning it Professor Moore states: “It has long been recognized that the directed verdict was a means of removing a case from the province of the jury. The continuation of the requirement for a jury verdict in accord *713 anee with the command of the judge was an anomaly that contained the possibilities of serious problems. The anomaly was eliminated in 1963 by the addition of the last sentence to Rule 50 (a) which reads: ‘The order of the court granting a motion for a directed verdict is effective without any assent of the jury.’ The useless act of asking for jury assent is thus eliminated.” 5 Moore’s Federal Practice 2331, § 50.02 (3). 1
*714 The only question remaining is whether a direction of the verdict was demanded by the evidence. If so, an affirmance must result.
While the court is bound to consider the evidence in the light most favorable to the party against whom the verdict is asked to be directed
(Everett v. Miller,
Where the evidence relied upon to support his case is from the party himself these rules must yield to the rule that if his testimony is vague, contradictory or evasive, it is to be construed against him, and unless he presents other evidence tending to establish his right to recover he is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.
Steele v. Central of Ga. R. Co.,
Plaintiff does not sue on the contract to recover the rentals to which he may have been entitled; he alleges a breach of the contract by defendant and sues for damages alleged to arise from the breach.
It is pertinent, therefore, to consider the measure of the damages to be applied. “Damages growing out of a breach of contract, in order to form the basis of a recovery, must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach.”
Sanford-Brown Co. v. Patent Scaffolding Co.,
“Where property was leased for hire, the measure of damages for the lessee’s breach of contract is the cash value of the contract less any saving which may accrue from the breach.” 8 AmJur2d 1217, Bailments, § 330. This principle has been declared in Electrical Products Consolidated v. Sweet, 83 F2d 6 (6), and Rentways, Inc. v. O’Neill Milk & Cream Co.,
*716
The burden is on the plaintiff to show both the breach and the damage
(James v. Emmco Ins. Co., 71
Ga. App. 196 (
With these rules before us we move to a consideration of whether, under the evidence submitted, a verdict for the defendant was demanded. The contract, a copy of which was attached to the petition, discloses the amount of the weekly rentals which Associated agreed to pay for the several items of trucking equipment and the term of the rental. The 80 weeks remaining after the alleged breach at $164 per week, amounted to $13,120. This was the amount of specific damage sued for. But, as we have seen, this is not the measure of recovery. It would have been the amount of
gross
weekly rentals if the contract had been fully performed, but gross receipts and net profits are quite different things. What was his gain or profit? To be deducted was the cost of servicing and maintenance. Past records on these items might have afforded a reliable guide and basis for making a determination as to what the total of the costs would have been to the end of the term. Plaintiff admitted that he had kept records on these items and that at the time of filing suit he had them, but asserted that he had destroyed them prior to trial. “Spoliation of evidence raises a presumption against the spoliator.”
Greer v. Andrew,
He was asked about his net profit, or the net profit that he would have made if the contract had been fully performed, and could give no figures, saying “I don’t know how much profit was in it and I don’t know how much loss was in it.” He produced no figures as to the taxes paid on the vehicles or the cost of the license plates, or the sales taxes, or of what these might have been expected to be for the remainder of the lease term. He had insurance costs and financing charges which he admitted should be deducted in determining a net profit, but those figures were not produced. He became evasive and equivocal concerning the matter of depreciation, and many of his answers were stricken because not responsive to the questions asked of him. Finally, when asked whether he could tell how much the sum total of depreciation would have been on all of the pieces of equipment he answered, “No, sir. I can’t tell you in dollars. Q. But they would have depreciated in some amount? A. Yes, sir. They would have. Q. Each year that went by, simply because of the passage of that year, the equipment would have been worth less — is that correct? A. Yes, sir.” How much less? It was not proven, and the jury could not know.
There was no evidence on the matter of damages except that of the plaintiff. In this situation he had failed to carry the burden of demonstrating or showing by data sufficient to enable the jury with reasonable certainty to arrive at the amount of his expected net profit, or of the gain which he had lost by rea *718 son of the breach. He might have proven his case by showing a substantial profit in the contract — but he did not, and he had the burden of doing so before he could be entitled to any recovery.
Cases relating to damages claimed for personal injuries and the like have no relevance on the matter of what must be proven to authorize a recovery for the breach of a contract. The rules are wholly different.
The direction of a verdict for the defendant was proper.
Judgment affirmed.
Notes
It will be recalled that when, during the reign of Charles II, William Penn and William Mead were indicted for collecting some 300 people on the street and preaching to them the doctrine of what was to become known as Quakerism, in violation of a law prohibiting the congregating of people in or on the streets, the jury returned a verdict of not guilty; whereupon the judge, conceiving the evidence to demand a contrary result directed the jury to return a verdict of guilty, which it refused to do. The jury was then held in contempt of court, fined and imprisoned. On habeas corpus, it was held that the judge was without power to direct what verdict a jury should return. Bushell’s Case, Vaughan, 135, 143 (124 Eng. Rep. 1006, 1010). This was so, because the jurors, chosen from the vicinage, were supposedly familiar with the facts and were generally used as witnesses to establish them, while the judge was generally a total stranger. As was pointed out, this lack of power existed both in civil and criminal cases. With a change in the manner of selecting jurors, however, the rule changed also; indeed, jury trials in England have all but disappeared save in criminal matters.
The power of the court to direct verdicts in the courts of both the state and federal systems of this country is well established, with some variations in the various jurisdictions as to when it may be done. Penn. R. Co. v. Chamberlain,