67 F. 222 | U.S. Circuit Court for the District of Eastern Missouri | 1895
(after stating the facts). The ehiei subject of contention upon this motion for a new trial is as to the proper measure of the damages. The jury was told that they •could only allow such a sum as would be a fair compensation to the plaintiff for the reasonable value of his services from and after that date, when the defendant, by its reasonable efforts, ought and ■could have obtained permission to do business in the territory allotted to him up to the date upon which this suit was brought. The jury have found a positive contract to have been made on the 17th of January, 1894. Suit was brought the 17th of the ensuing March, and the jury awarded the plaintiff the sum of $238.26.
The plaintiff contends that the legal rule for the computation of his damages as given to the jury was too limited and narrow; that if not entitled to recover the full value of his contract, as for a complete and indivisible breach, he should, at least, have been entitled to recover such damages as had accrued down to the time of the trial. The rule of law to be applied to the estimate of damages for a rescission or breach of contract may differ according to' the varying terms of each particular agreement. The end- to be attained by juridical inquiry is compensation to the aggrieved party,—a compensation based upon reasonably proximate, clear, certain, and demonstrable consequences, not upon speculation or possibility or indefinite probability. Either one of the rules invoked by the plaintiff may be just when an appropriate state of facts exist for their befitting application. But there are confessedly many cases in which they could not at all be utilized with any degree of justness or advantage.
Let us take the first of the two rules claimed by the plaintiff,— namely, that the entire contract was broken, and he was entitled to have its full value awarded in damages,—and see how it would work with the particular facts of this case. The contract has no definite duration of time for its continuance, no fixed period for its expiration. By its terms it might be concluded by either party upon 30 days’ notice. Neither party up to the time of the trial had given such notice, unless we hold the bringing of the suit to be the equivalent of such notice,—a matter to which we shall give some attention later on. In order to calculate the value of the contract, we must have, as one of the essential factors for computation, a definitive term of duration. Without it the result would be speculation, pure and simple. Upon the supposition that the contract might continue for two or three years, an award might be made of its value fpr that time; and, rightfully and according to the very letter of the contract, the defendant could, conclude its operation 30 days after the trial. The very character of the agreement precludes the application of that principle. With not less force does the want of proof of the nature of the injury repel its application. The plaintiff did no work under the contract of an extent and character that would afford an index or reasonably definite criterion by which to measure the profits he would derive under the workings of the contract It not only devolves upon the claimant to establish the violation of the agreement, but he musí
The engagement in this case was evidently prospective, anticipating that the defendant would with reasonable industry proceed to obtain the legal permits to do insurance business in the specified territory. The contract was therefore of an executory nature, and the most'that can be claimed for the failure of the defendant in respect of its neglect to obtain license is that it was notice of refusal to perforin the undertaking. We doubt whether this much can be claimed for it under the facts in evidence, but, inasmuch as the defendant has not complained of the verdict, it is unnecessary to analyze the transaction to determine its accurate legal effect. The plaintiff then invokes the much-contested rule that where one of the parties to a contract of an executory character, before the time for performance, renounces it, or places himself in an attitude ‘of impossibility of performance, the other naav treat such action as a breach, and sue at once as for a breach of the entire contract, although the time when he might require performance had not'yet arrived. This view rests upon the reasoning and precedent of the case of Hochster v. De la Tour, 2 El. & Bl. 678, and lias never been approved or followed by the supreme court of the United States. All the intimations of that court are in opposition to such a rale.
Thus, in Smoot’s Case, 15 Wall. 36-46, Mr. Justice Miller, speaking for the court, said:
“As between individuals, the impossibility which releases a man from the obligation to perform his contract must be a real impossibility, and not a mere inconvenience. And, while such an impossibility may release the party from liability to suit Cor nonperformance, it does not stand for performance, so as to enable the party to sue and recover as if he had performed.”
In the subsequent case of Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, the disposition of the court, though not deciding the question, appears to be strongly in sympathy with the views of the supreme court of Massachusetts, so ably expressed in Daniels v. Newton, 114 Mass. 530, upon a careful consideration of the more prominent of the preceding cases. The views of the Massachusetts court in ihe case supra appear to me to be more consonant with reason and the spirit of the law, and would in this case preclude any recovery by the plaintiff, upon the idea of a recovery as for a breach of the entire contract.
What has been said upon this branch of the plaintiff’s contention applies with equal force to his claim for damages down to the date of the trial. This additional observation may here be made: While the contract provided that either party might determine it upon 30 days’ notice, this mode is not exclusive of all others, or, if exclusive, would not preclude either party from waiving it and accepting another in its stead, or as its equivalent. The plaintiff
Under no aspect of this case, in my opinion, was plaintiff entitled to an ampler rule for the assessment of damages than that given to the jury. If error was committed in the charge, it was against the defendant, not now complaining, and not the plaintiff. A review of the case has persuaded me that the plaintiff should have been nonsuited on the issue of a breach of the contract, to demonstrate which is now unnecessary, or, having proven the breach, his damages should have only been nominal.
