290 S.W. 1052 | Ky. Ct. App. | 1927
Reversing.
This is the second appeal of this case. The first opinion is reported in
On the first trial the court gave a peremptory instruction in favor of defendant upon the theory that the contract was verbal and was within the statute of frauds because it was not to be performed within one year from the time of its making, and also upon the ground that the local superintendent, Stevens, had no authority, actual or apparent, to bind his principal by entering into any such contract. Both points were decided in the first opinion adversely to defendant, and upon a second trial there was a verdict and judgment in favor of plaintiffs for the sum of $2,500.00, and this appeal is prosecuted by defendant to reverse that judgment after its motion for a new trial was overruled.
A number of errors are relied on in brief of counsel for appellants, but we conclude that none of them, except the one hereinafter discussed, possesses sufficient merit to require our consideration, and for that reason we will pass them without further notice. The former opinion properly held that this was not an action to recover *100 for the value of services under a contract to perform them, but was essentially an effort on the part of plaintiffs to recover the profits they would have realized had they been permitted to carry out the contract pursuant to its terms.
Only one of the plaintiffs (Ross) testified in the case, and in stating what he claimed were the profits which he and his coplaintiff were entitled to recover, he testified that each of them was an experienced and active miner, and that during the remaining seven months of the unexpired life of the contract they could have each mined 12 1/2 tons of coal per day, or 25 for the two, and counting 20 days' actual work in each month, which was customary, they would have mined by their own services 500 tons per month, which at the contract price would have been $235.00, or $1,645.00 for the remaining seven months as gross profits, and that "shooting material" would have cost them three cents per ton and the remaining 44 cents was claimed as profits which the jury was authorized to and did return in its verdict. Like testimony permitted recovery for the personal services of plaintiffs in opening up the entry and the air course. In other words, the case as tried authorized the jury and it did return a verdict including as profits compensation to plaintiffs for their personal labor or services in carrying out the contract, which, we are thoroughly convinced, was error.
Mr. Sutherland in the fourth edition of his work on Damages, volume 3, page 2695, in stating the rule as to the measure of damages in a contract like this, says: "In an action upon the contract against the employer for preventing complete performance the contractor is entitled to recover the contract price for the work done and, in the absence of other damages, the difference between that price and what it would cost to perform the contract as to the residue. This rule contemplates a detailed inquiry into the actual necessary cost of completing the work covered by the agreement." In other words, the profits for measuring the damages for a breach of this kind of contract for the unperformed period consists in the difference between the contract price and the costs and expenditures of the performer in carrying it out if he had not been prevented from doing so by the breach of the other party. See also Kreamer v. Irwin,
In the case of People v. Savings Union,
In the more recent case of Langstoff-Orm Manufacturing Co. v. Wilford,
It is admitted by plaintiffs as well as their counsel that to arrive at the recoverable profits for such portions of the contract as would be performed by their employes, the wages of the latter should be deducted; and we can discover no reason why the same should not be done to, the individual labor of the plaintiffs. Such labor is necessarily a part of the producing expenses, but if plaintiff's are correct and they were entitled to recover the value of their services as wages as a part of the profits they would have earned in finishing the contract, then every plaintiff who performed personal services in carrying out such a contract could recover for his reasonable future wages upon the ground that they were profits he would have earned, although they may have exceeded the contract price; for, if plaintiffs' wages are included in the term "profits" as an element of recovery in such a case, then they are nevertheless recoverable regardless of what plaintiff would or would not have realized from the performance of the contract above or below the value of his wages.
We, therefore, conclude that the value of plaintiffs personal services in fulfilling and carrying out the contract upon which they relied, should have been deducted from the contract price of the portion of the labor they performed, and their recovery measured by the difference, if any; and for the error in failing to do that by both the court and the jury the judgment is reversed, with directions to grant the new trial, and for proceedings consistent with this opinion.