BIGELOW-SANFORD CARPET COMPANY, INC. v. GOODROE et al.
37150
SEPTEMBER 22, 1958
REHEARING DENIED OCTOBER 21, 1958
214 Ga. 394
Nolan B. Harmon, Dudley B. Magruder, Douglas Mitchell, Jr., contra.
In the cross-action, the defendants alleged that on or about November 15, 1956, they were indebted to the plaintiff in the sum of $142,790.65 for merchandise purchased from the plaintiff, and of that amount $78,814.40 was due on said date; that on that date a representative of the plaintiff met with the defendant Charles Goodroe and entered into an agreement, the substance of which was that the plaintiff promised to ship and sell to the defendants 50,000 pounds of Hartford rayon staple per week, and that the defendants agreed to accept and purchase the staple and to manufacture it into Hartford rayon yarn exclusively at their mill and to pay for said staple at the specified price per pound; that as a part of the agreement, the plaintiff promised not to bring legal action against the defendants on the indebtedness until January 1, 1957, and not to bring it at that time if the defendants’ account with the plaintiff was current, and defendants promised to have said account current by that date; that as a part of the agreement, the defendants agreed to convert their mill at Villa Rica, Georgia, to rayon production rather than cotton, and they alleged that they did convert the
The defendants alleged (par. 24) that before the plaintiff caused their mills to be shut down, the mills were running at a net profit of approximately $3,000 per month and capable of running at a profit of approximately $8,000 per month, and that they have been deprived of the eаrnings of the mills since they were shut down; that (par. 25) the mill business in Douglasville was reasonably worth $125,000 before it was shut down, but only worth $70,000 afterwards, and that the mill business in Villa Rica was reasonably worth $140,000, but worth not more than $100,000 after it was shut down; that (par. 26) defendants were forced by the plaintiff into a financial position where they were unable to pay their debts; that their earning power has been destroyed; their credit reputation damaged to the extent that they are unable to borrow money, all to the extreme hurt, chagrin, dismay and inconvenience of the defendants, and that the general reputation of the defendants has been grieviously damaged by the acts of the plaintiff and that they are entitled to recover compensatory damages in the
The plaintiff orally moved to strike paragraphs 24, 25, 26, 27 and 28 of the petition on the ground that the damages set forth therein were not recoverable in the cross-action, and moved to dismiss the cross-action on the ground that it failed to set forth a cause of actiоn.
It appears from the additional record sent to this court that the Honorable Oscar W. Roberts, trustee in bankruptcy for the parties named as defendants in error, intervened in the court below for the purpose of defending and prosecuting the action, and that his motion to intervene was granted by the trial court on October 8, 1957. It further appears that he was represented by the same counsel who represent thе other defendants and upon whom service of all motions and pleadings in the court below and upon whom service of the writ of error in this court and all briefs in this court have been perfected, and who appeared by brief and oral argument for the named defendants in error. The bill of exceptions, however, failed to name the said Oscar W. Roberts as a defendant in error and counsel for the defendants in error have made a motion to dismiss the writ of error on the ground that it failed to name a necessary party as defendant in error. Counsel for the plaintiff in error have made a counter-motion to amend the bill of exceptions and to add the said Oscar W. Roberts, Jr., as a party defendant in this court. The motion to dismiss the writ of error is not meritorious under authority of
The defendant contends in this court that these motions were properly overruled by the trial court since they sought to attack individual paragraphs of the cross-action rather than the cross-action as a whole, and that the proper method of attacking the individual paragraphs of the crоss-action is by special demurrer, which must be in writing and must be filed within 15 days after the cross-action is filed.
The oral motion of the plaintiff to strike the various allegations of dаmages from the defendants’ cross-action and the exception to the order overruling those motions raise for this court‘s consideration the question of whether the various items of damages set forth in the cross-action are recoverable; and, finally, whether the cross-action itself stated a cause of action. Paragraph 24 of the cross-action alleges as an item of special damages that the defendants’ mills were earning $3,000 per month, of which earnings the defendant has been deprived because of the acts of the plaintiff, and paragraph 25 alleges that the worth of the two mills has been diminished by a total of $95,000 on account of their ceasing to operate as a result of
Irrespective of whether it can be said that, under a proper allegation of fact, the profits to be realized by a manufacturing concern were within the contemplation of the parties to a contract of this nature (
The defendants rely on Levy Bro. & Co. v. Allen, 53 Ga. App. 246 (185 S. E. 369); Walker v. Jenkins, 32 Ga. App. 238 (5) (123 S. E. 161); Haas & Haas v. Marks, 158 Ga. 267 (123 S. E. 109); Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483 (60 S. E. 279). Each of these cases involved special facts where the profits which were the fruit of the contract could be said to have been within the contemplation of the parties in making the contract and where the damages by way of lost profits resulting from the breach could be said to have been the direct result of the breach. Each of these cases involved special circumstances such as a violation of a contract of employment or the violation of a lease contract for a specific piece of property and involving a long established and successful business where the facts alleged showed that there was nothing that the plaintiff failed to do to minimize his damages. These
The fact that the defendants had an exclusive contract to manufacture the plaintiff‘s rаyon fibers into yarn did not justify the defendant‘s failure upon the breach of the contract by the plaintiff to take steps to minimize their damages by going into the market and obtaining other suitable fiber to manufacture into yarn. For these reasons, the oral motions to strike paragraphs 24 and 25 of the cross-action were meritorious and should have been granted by the trial court.
Paragraph 26 of the petition seeks to recover damages denominated as compensatory on account of the loss of the defendants’ earning power, their credit, and on account of their extreme hurt, chagrin, dismay, and inconvenience and on account of the injury to their reputation as the result of the deterioration of their credit rating. Under the rules of law announced in the preceding division of the opinion, such damages are too remotе to be recovered for the reason that they are not such as arise naturally and according to the usual course of things from the breach of the contract and therefore were not such as could be said to have been reasonably within the contemplation of the parties.
Paragraph 27 seeks the recovery of punitive damages and it is sufficient to quote
The final element of damages claimed in the cross-action is attorney‘s fees. Whether or not attorney‘s fees can be recovered in an action ex contractu is not necessary for us to decide here, since, under thе above holding that none of the other items of damages are recoverable, it necessarily follows that attorney‘s fees cannot be recovered. The court, therefore, erred in overruling the motion to strike paragraph 28.
Where the petition or cross-action, as the case may be, fails to allege any item of recoverable damages, a general demurrer thereto should be sustained unless the pleader amends
Another contention made by counsel for the defendants is that the cross-action here involved could be construed as one ex delicto and that some of the items of damages claimed would be recoverable in such an action. The allеgations of the cross-action, however, show that the sole basis for the defendants’ claims against the plaintiff was the violation of the agreement to sell and deliver rayon staple under the terms of the contract set forth. Nothing in the cross-action even purports to show the violation by the plaintiff of any public duty owing the defendants. American Oil Co. v. Roper, 64 Ga. App. 743, 749 (14 S. E. 2d 145). The mere characterization of the breach of the contract as being in bad faith would not be sufficient to convert the action from one ex contractu to one ex delicto. Dawson Cotton Oil Co. v. Kenan, 21 Ga. App. 688, 691 (94 S. E. 1037). The cross-action in this case clearly was not an action in tort, but was an action to recover damages for breach of contract.
It follows from what has been said above that the trial court erred in overruling each of the motions to strike the various paragraphs of the cross-action allеging the items of special damage claimed by the defendants. However, the failure to allege the proper measure of damages was an amendable defect, and it would not have been proper for the court to have dismissed the petition after sustaining the motions to strike the allegations of special damages, but the court should have, if it had sustained the motions to strike these allegations, granted the dеfendants leave to amend by setting up a correct measure
Judgment affirmed in part and reversed in part. Felton, C. J., Gardner, P. J., Quillian and Nichols, JJ., concur. Townsend, J., dissents.
TOWNSEND, Judge, dissenting. The majority opinion recоgnizes that where a petition shows a breach of contract with consequent damages, failure to minimize the damages is a matter of defense, and the petition is not subject to demurrer for this reason unless it affirmatively appears that the plaintiff did not take steps which he should have taken and which would have reduced his damages. The opinion then construes the cross-action as showing that the defendants failed to take necessary steps to minimize the damages, and states: “This construction of the cross-action is authorized by the fact that the allegations thereof fail to show what efforts, if any, the defendant made to obtain other and suitable fiber for manufacturing into yarn, and they fail to show that other suitable fiber was not available or obtainable by them or that if other suitable fiber was not available or obtainable by them, why it was not avаilable and why the defendants could not obtain it in the open market and continue to operate the mills.” The contradiction in terms is this: if a mere failure to allege what steps were taken to minimize damages results in an inference that no such steps were taken, then the rule that the burden is not on the pleader to allege what steps he has taken is done away with in its entirety. It cannot be inferred from mere failure to allege minimization of damages that all reasonable efforts in that direction were not made any more than it can be inferred from mere failure of a plaintiff in a damage action to allege that he was in the exercise of ordinary care that he was not in the exercise of such care. The presumption is, in such cases, that the required degree of care was used, and that the required effort to minimize damagеs was made. That is the whole meaning of rulings to the effect that such situations, if they exist, are matters for the defense to plead and prove.