166 Ind. 123 | Ind. | 1905
—Action by appellee against appellant for breach of contract in failing to deliver 10,000 sets of wheels. A trial by the court resulted in a finding and judgment for appellee.
The threshold question is whether the court below erred in overruling a demurrer to the complaint.
It is alleged in said pleading, in substance, that on November 15, 1900, appellant was engaged in the manufacture, on an extensive scale, of wheels designed for use in the manufacture of buggies, carriages and phaetons; that on said date appellee was the owner of an extensive plant, consisting of buildings, boilers, engines, iron and woodworking machines, tools and other fixtures and appliances necessary to constitute an efficient plant for said work, and that it then had 300 operatives engaged in said business; that during the year 1900 appellee ran its said plant up to or near its maximum capacity, and that it was not more than able to supply its solvent and desirable customers; that the business of said years was very profitable, and on said date the prospects for an increased demand in said line were good; that appellee determined to continue said busi
In his authoritative work on the measure of damages, Mr. Sedgwick states: “Wherever there is an interference with, or withholding of property, or breach of contract, or commission of a tort, the gain prevented, if provable, may be recovered. As a general rule, the expected profits of a business can not be proved and therefore can not be recovered. They might have been made, and they might not.” 1 Sedgwick, Damages (8th ed.), §174. In another section of the same work it is said: “A party who claims compensation for an injury done him must show, as part of his case, not only that he has suffered a loss on account of the injury, but also what is the amount of the loss; and the burden of proving both these things is upon him. He is to show, with that reasonable certainty required by law, just the amount of damages which should be allowed him as compensation; no damages can be recovered for an uncertain loss.” 1 Sedgwick, Damages (8th ed.), §170. In the leading American case of Griffin v. Colver (1858), 16 N. Y. 489, 69 Am. Dec. 718, the facts involved were that there had been a failure to deliver a steam-engine, with boilers, etc., on a certain day, whereby the defendants lost
In Western Gravel Road Co. v. Cox, supra, where there was involved the sufficiency of a counterclaim based on the loss of tolls from the failure to complete a road, this court said: “The amount of tolls that would have been received could not have been ascertained with any degree of certainty, but must have been left to the merest conjecture. The amount would have depended upon the number of persons who might have traveled over it, the distance travelled by each, and the character of the vehicles and number of horses used, etc. All this is too vague and conjectural to form a proper basis for damages.”
The case of Acme Cycle Co. v. Clarke, supra, presented in a clear-cut form the right to recover contingent profits. Dowling, J., delivering the opinion of the court, said: “The only damages alleged to have been sustained by the appellant consisted in the loss of future, contingent, speculative, and imaginary profits. The appellant asks us to assume that, if it had received from the appellee a piece of machinery for manufacturing a small, though essential, part of a complicated article consisting of many members, everything else required for the construction of that article could easily have been procured at reasonable prices, and without delay; that the appellant would have been provided with all necessary shops, and warehouses, and workmen; that customers would have been found for its increased product; and that a large profit would have been realized by it upon the sale of every bicycle. But all this is merely gpeculative, and the allegations of the counterclaim furnish
It was said in Griffin v. Colver, supra: “Where the amount of the damages may be estimated in a variety of ways, * * * the law * * * adopts that mode of estimating the damages which is most definite and certain.”
12. There may, in some instances, under the principle of Hadley v. Baxendale (1854), 9 Exch. 341, which occupies such a unique place in the law of special damages as applied to contracts, be a recovery for something more than direct damages, at least where the evidence warrants the conclusion that the contract was to some extent based on the special circumstances out of which the injury arose. 1 Sedgwick, Damages (8th ed.), §157 et seq.; Acme Cycle Co. v. Clarke, supra. Whether, by its complaint, appellee brought itself within this rule we shall not inquire. It is enough to condemn the theory of damages now in question to state that even if appellee were authorized to recover such special damages, the damages should have been assessed on the reasonable value of the use, and not on the basis of a possible loss of profits. It was said in Wolcott, Johnson & Co. v. Mount (1873), 36 N. J. L. 262, 271, 13 Am. Rep. 438: “It must not be supposed that under the principle of Hadley v. Baxendale [1854], 9 Exch. 341, mere speculative profits, such as might be con
market price of the sets of wheels not delivered. It is contended that this makes the rulings on the evidence which are complained of moot questions. As the finding was general, we are not authorized to consider the statement therein contained as to the basis on which the damages were assessed. Jacobs v. State (1890), 127 Ind. 77. See, also, Terre Haute, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 438; Muncie Pulp Co. v. Davis (1904), 162 Ind. 558. Judgment reversed, and a new trial ordered.