Brigham & Co. v. Carlisle, 78 Ala. 243

Brigham & Co. v. Carlisle

78 Ala. 243 | Ala. | 1884

CLOPTON, J.

It may be conceded, that, at common law, a defendant can insist upon the benefit of the statute of frauds, by plea of the general issue. Under our statute, which provides, that, “ in all suits whet'e the defendant relies on a denial of the cause of action as set forth by the plaintiff, he may plead the general issue, and in all other cases, the defendant must briefly plead specially the matter of defense,” the statute of frauds must be pleaded, or it will be considered as waived. — Ritch v. Thornton, 65 Ala. 309; Petty v. Dill, 53 Ala. 641. No plea of the statute of frauds having been interposed, the validity of the contract, because not in writing, can not be raised by a charge.

If the statute had been pleaded, the contract, as set out in the bill of exceptions, does not come within its inhibition. It was made in September, 1881, and, as testified by the plaintiff, was to commence on the first of October, and continue at least eight months, and longer if mutually desirable at the end of that time. By its terms, it was capable of performance within a year. The statute applies to contracts which, by express stipulation, are not to be performed within one year from the making thereof, and not to contracts which by their terms are determinate within that period, but may be continued longer at the option of the parties. — Heflin v. Milton, 69 Ala. 354.

The third charge requested by the defendants based their right to abandon the contract on the naked fact, unexplained, that the plaintiff did not commence the performance of the contract until January 1, 1882. The violation of a contract by one of the parties, or when he is unable to perform the acts or services stipulated, may be sufficient to authorize the other party to abandon it. Sickness of the plaintiff for a protracted period, such as would probably have disabled him from making sales during the appropriate season, as contemplated *247and intended by the contract, might, perhaps, have authorized ■ the defendants to abandon the contract; but there was no implied condition, that the plaintiff would continue in health. Its abandonment, in such case, is at the election of the defendant ; and they will be held to have waived their right to renounce the contract, when-, after the delay has terminated, they regard and treat it as continuing and in force. — Stewart v. Cross, 66 Ala. 22. The charge requested by the defendants ignored the material facts : the detention of the plaintiff by sickness in New York until near the end of November, the letter of the defendants of December 12th, in reply to one from the plaintiff, in which they stated samples would be furnished him during the week, and cautioning him as to the credit of certain firms, and samples having been actually sent to him late in December ; which facts there was evidence tending to prove. Whilst a party has the right to require an instruction as to the legal effect of the evidence, when, conceding all adverse inferences from the conflicting evidence, the undisputed facts establish a legal conclusion in his favor ; a charge is properly refused, which asserts a legal proposition, based on certain specified facts, but ignores other facts, which there is evidence tending to prove, showing the incorrectness of the legal conclusion asserted in the charge.

The burden of proof is on the party having the affirmative of the particular issue. Pleas of payment and set-off were filed by defendants, and the onus of establishing their truth was on them. The legal effect of the second charge, requested by the defendants, is to instruct the jury, if they found the evidence in equilibrium on any or all the issues presented, which included the issues of payment and set-off, to find for the defendants. Being calculated to mislead, it was properly refused.

The material question is the measure of damages. The primary purpose of awarding damages is, actual compensation to the party injured, whether by a tort, or by breach of a contract; though there are exceptional cases, in which exemplary or punitive damages are allowed. Owing to the ever-occurring differences in the circumstances, and in the special conditions of the contracting parties, it has been found difficult, if not impossible, 'to lay down general and definite rules as to the measure of damages, applicable to all cases of a class. From a. misconstruction of expressions of eminent jurists, not sufficiently guarded for general use, but adapted to the case in hand, the applications of rules, commonly recognized, have been as various as the cases. The proposition, that all damages are recoverable which are in the contemplation of the parties, is not strictly correct. The primary rules are, the damages must be the natural and proximate results of the wrong complained of, anfi *248must not be merely speculative, or conjectural. These must concur, though founded on different principles, and are distinct and independent of each other. The law presumes that a party foresees the natural and proximate results óf a breach of his contract or tort, and hence these are presumed to be in his legal contemplation. Eor such damages, as a general rule, the party at fault is liable.

But there are damages, which are in the contemplation of the parties at the time of making the contract, and are the natural and proximate results of its breach, which are not recoverable. The parties must necessarily contemplate the loss of profits as the direct and necessary consequence of the breach of a contract, and yet all profits are not within the scope of recoverable damages. . There are numerous cases, however, in which profits constitute, not only an element, but the measure of damage. While the line of demarcation is often dim and shadowy, the distinctive features consist in the nature and character of the profits. When they form an elemental constituent of the contract, their loss the natural result of its breach, and the amount can be estimated with reasonable certainty, such certainty as satisfies the mind of a prudent and impartial person, they are allowed. The requisite to their allowance is some standard, as regular market values, or other established data, by reference to which the amount may be satisfactorily ascertained. Illustrations of profits recoverable are found in cases of sales of personal property at a fixed price, evictions of tenants by landlords, articles of partnership, and many commercial contracts. -

On the other hand, “ mere speculative profits, such as might be conjectured would be the probable result of an adventure, defeated by the breach of a contract, the gains from which are entirely conjectural, and with respect to which no means exist of ascertaining even approximately the probable results, can not, under any circumstances, be brought within the range of recoverable damages.” — 1 Suth. on Dam. 141. Profits speculative, conjectural or remote, are not, generally, regarded as an element in estimating the damages. In Pollock v. Gantt, 69 Ala. 373, it is said: “ What are termed speculative damagbs— that is possible, or even probable gains, that it is claimed would have been realized, but for the tortious act or breach of contract charged against a defendant — are too remote, and can not be recovered.” The same rule has been repeatedly asserted by this court.' — Culver v. Hill, 68 Ala. 66 ; Higgins v. Mansfield, 62 Ala. 267 ; Burton v. Holley, 29 Ala. 318 ; White v. Miller, 71 N. Y. 118 ; French v. Ramge, 2 Neb. 254 ; 2 Smith’s Lead. Cases, 574; Olmstead v. Burke, 25 Ill. 86. The two following cases may serve to illustrate the difference between profits recoverable and not recoverable. In Ætna Life Ins. Co. v. Nox*249son, 84 Ind. 347, an insurance agent, who had been discharged without cause before the expiration of his contract, was allowed to include in his recovery the probable value of renewals on policies previously obtained by him, upon which future premiums would, in the usual course of business, be received by the company, on the ground, that the amount of compensation, due on such renewals, can be ascertained with requisite certainty by the use of actuary’s life-tables and comparisons, and that the basis of the right to damages existed, and was not to be built in the future. In Lewis v. Atlas Mu. Ins. Co., 61 Mo. 534, which is cited with approval in the other case, the same rule as to the probable value of renewals was held, but it was also held, that an estimate of the probable earnings of the agent thereafter, derived from proof of the amount of his collections and commissions before the breach of the contract, in the absence of other proof, is too speculative to be admissible.

'Profits are not excluded from recovery, because they are profits ; but, when excluded, it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the adjudications of courts, and the findings of juries should be based. The amount is not susceptible of proof. In ■ 3 Suth. on Dam. 157, the author discriminatingly observes : “ When it is advisedly said, that profits are uncertain and speculative, and can not be recovered, when there is an alleged loss . of them, it is not meant that profits are not recoverable merely because they are such, nor because profits are necessarily speculative, contingent, and too uncertain to be proved ; but they are rejected when they are so; and it is probable that the inquiry for them has been generally proposed when it must end in fruitless uncertainty ; and therefore, it is more a general truth than a general principle, that a loss of profits is no ground on which damages can be given.” When not allowed because speculative, contingent and uncertain, their exclusion is founded, by some on the ground of remoteness, and by others, on the presumption that they are not in the legal contemplation of the parties.

The plaintiff, by the contract, undertook the business of travelling salesman for the defendants. The amount of his commissions depended, not merely on the number and amounts of sales he might make, but also on the proportional quantity of the two classes of goods sold, his commissions being different on each. The number and amounts of sales depended on many contingencies — the state of trade, the demand for such goods, their suitableness to the different- markets, the fluctuations of business, the skill, energy and industry with which he prosecuted the business, the time employed in effecting different sales, and upon the acceptance of his sales by the de*250fendants. There are no criteria, no established data, by reference to which the profits are capable of any estimate. They are purely speculative and conjectural. Besides, the evidence is the mere opinion and conjecture of the plaintiff, without giving any facts on which it was based. The bare statement, uncorroborated by any facts, and without a basis, that “the reasonable sales would have been fifteen thousand dollars, and that the net profits on that amount of sales would have been four 'hundred and fifty dollars,” is too conjectural to be admissible.— Washburn v. Hubbard, 10 Lans. 11.

Reversed and remanded.