93 Ala. 614 | Ala. | 1890
— Where one party, in compliance with his contract, enters upon its performance, and is wrongfully forced to abandon it before its completion, without fault on his part, he is entitled to recover damages for its breach. If profits formed a constituent element of the contract, their loss the natural and proximate result of the breach, and such as was reasonably in contemplation of the contracting parties, and the amount can be estimated with reasonable certainty, such certainty as satisfies the mind of a prudent and impartial person, they are recoverable as damages. On the other hand, if profits are merely speculative, conjectural, or too remote, they are not allowable.' — P. W. & B. R. R. Co. v. Howard, 13 How. (U. S.) 526; Beck v. West, 87 Ala. 218; Brigham v. Carlisle, 78 Ala. 248; Bell v. Reynolds, Ib. 513; 1 Sedgwick on Measure of Damages, 134-6, and note. “If the breach consist in preventing the performance of the contract, without the fault of the other party, who is willing and able to perform it, the damage of the latter consists in two distinct items, namely: first, what he has already expended towards performance, less the value of the materials on hand; secondly, the profils he would realize by performing the whole contract.” United States v. Behan, 110 U. S. 344; 7 Hill, 69.
Where the proof fails to show that a profit would have been realized, the recoverable damages consist in the reasonable expenditures made, and loss of time, less the value of the material on hand. If the proof shows that profits would have been realized, had the party not been prevented from performing the contract, they are recoverable, and the measure of profits as damages is the difference between the cost of doing the work and the price agreed to be paid. In estimating the cost of doing the work, the less time engaged, a release from the care, trouble, risk and responsibility attending a full execution of the contract, should be considered and included in the estimate.— U. S. v. Speed, 8 Wall. 84; Masterson v. Brooklin, 7 Hill, 62, supra; 13 How. 343; Sutherland on Damages, 525; McMaster v. State of New York, 108 N. Y. 556; Hunt v. Oregon Pac. R. R. Co., 36 Fed. Rep. 481; George v. C. & M. R. R. Co., 8 Ala. 234.
The contract sued upon in the present case specifies with great particularity the price to be paid for excavation of earth,
When a party has in part performed his contract, and is wrongfully discharged or forced to abandon the work, he may sue upon the contract, and recover the price agreed to be paid, for the work already performed, and may in the same suit declare for damages sustained by the breach of the other party in forcing him to abandon the work before its completion. By the terms of the contract, plaintiffs were to be paid monthly, less ten per cent, reserved until the completion of the contract, payable on the 10th day of each month, for the work performed the preceding month. Upon being wrongfully forced to abandon the work, without fault on their part, the plaintiff's were entitled to recover for the work done, including the ten per cent, reserved, at the contract price, and could declare in different counts for damages sustained by reason of the breach of the contract, and recover as profits whatever the proof would show they would have realized from the unfinished work.
It was competent for the defense to show payment and satisfaction for work done, and the receipts and transfers of claims to William Richardson were admissible for this purpose. These receipts did not cover the profits in the work which remained to be performed.
The contract provides that no work shall be sub-contracted without the written consent of the engineer in chief. This provision was intended for the benefit of the defendant. It was entirely competent to show the defendant waived this right or benefit, and for this purpose it was proper to prove by the chief engineer that he knew sub-contractors of plaintiff's were at work; that he, as chief engineer, directed them when and where to work, and that he estimated the work of the sub-contractors, and gave the estimates to plaintiffs, knowing that it had been done by sub-contractors for 'plaintiffs; and it was competent to show the president of the company was apprised of all these sub-contracts, and permitted the work to be done by them without objection. — Badders & Britt v. Davis, 88 Ala. 367.
Although the bill of exceptions treats the 5th count as hav
Where two suits are pending for the same cause of action, the proper mode is to plead in abatement to the second suit the pendency of the other suit, and not by motion to strike the cause from the docket. Count No. 4 was not objectionable for the reason assigned in the motion to strijce it from the file, and the court should not have disallowed it, for causes specified in the motion. We would not be understood as intimating that it was unobjectionable for other causes.
The measure of damages for the failure to pay money on the day it is due, is the interest which acordes thereafter. 11 Amer. & Eng. Ency. Law, 383; 104 U. S. 771.’
Plea No. 3 is not, and does not purport to be, an answer to the whole declaration, but only to so much thereof as seeks to recover for work and labor done. To this extent the plea is good, and the demurrer thereto was properly overruled.
Plea No. 4 is not clearly drawn. If it was intended to present a defense to a recovery of profits claimed by plaintiff for unfinished work on that part sub-contracted to Thomas Joseph & Co., and to Wentz & Purple, it is bad; for it only presents a defense to a recovery for the work done and profits thereon, and not to such as plaintiffs might be entitled to recover for the work he was prevented from performing. The demurrer to this plea as drawn ought to have been sustained.
To notice each assignment of error would lengthen this opinion unnecessarily. The court erred in the exclusion of testimony, as indicated in the opinion. The principles of law declared will be sufficient on another trial.
Reversed and remanded.