104 N.W. 573 | Minn. | 1905
1. Whether or not the defendant ever entered into the contract with the plaintiffs for the breach of which this action was brought, was *3
fairly a question for the jury upon the testimony. The written agreement produced in evidence was under the corporate seal of the defendant, and was therefore prima facie its contract. Emerson v. Pacific Coast
Norway Packing Co.,
2. The contract was not so peculiar in its nature as to deprive the plaintiffs of all damages upon proof of its breach. The facts in this case do not bring it within the rule that where a contract is optional on one side, and not mutual, it wants of sufficient consideration and is not binding. Bailey v. Austrian,
3. The real question in this case concerns the rulings of the trial court upon profits as damages. The defendant's principal contentions in this connection are, first, that profits are not recoverable as damages upon a breach of a contract to sell upon commission; and, second, that evidence of sales made by the principal after the breach of the contract by its repudiation or the discharge of the salesman is not admissable to show the extent of gains prevented.
The subject of profits as damages is a vexed and confused one in the current law. The decisions and text-books abound in loose generalizations *4
that as a rule future profits are not proper basis for a judgment in damages for an admitted legal wrong, but that in certain cases there are exceptions to the rule and profits may be recovered as damages. Even a casual examination of the authorities as a whole satisfies that it is exceedingly difficult to determine, as between the allowance and denial of profits as damages, which is the rule and which is the exception. Nor is it especially significant which conclusion on this point be reached. No presumption for or against the award has been established. It is also doubtful whether the current general formula of the courts is not too indefinite and uncertain to be of much practical avail. A frequently quoted statement of the rule is that of Justice Lamar, in Howard v. Stillwell-Bierce Mnfg. Co.,
Four principal considerations have been recognized and applied by the courts in determining when future profits are to be allowed as damages and when they are to be denied, namely: First, how far the contract under consideration specifically provides for the award of damages for prevented gains upon its breach, or reasonably implies such an award as a necessary effect of a natural construction of its terms; second, the degree of certainty with which the harm can be traced to the wrongful conduct complained of as its legal cause; third, the extent to which the inherent difficulties and uncertainties of calculation of amount of prevented gains renders the measure of damages speculative and untrustworthy; fourth, the possibility of applying to the controversy some more satisfactory standard of compensation. In the light of these considerations, the courts have weighed the evidence adduced in fact and possible in the nature of things to be proved.
A fruitful source of at least apparent judicial inconsistency on this subject is the failure to note and apply the obvious distinction between *5
cases of torts and cases of contracts. In the former the damages are not the results of a violation of an agreement. They are, logically, irrespective of any actual or of any implied contemplation of the parties. In the latter they are in a measure based upon mutual consent, expressed or implied. Moreover, there is often a radical difference in the remedies which are available to parties to an agreement, as distinguished from parties to a tort. There may be instances in which the actual damages may be substantially the same in both cases. Cincinnati, S-L Gas I. Co. v. Western S-L Co.,
But the difficulty is as conspicuous, as it is important in legal effect, when profits are the very object of the contract itself and are clearly within the necessary purview of the parties making the agreement. A number of the cases cited by appellant denying the right to recover profits involve such actions ex delicto as to have little bearing on the present controversy. It would be naturally consistent to allow damages for prevented gains in this case, as the trial court has done here, and deny them, as this court did, in cases of wrongful seizure by an attachment (Casper v. Klippen,
Confusion has arisen also because in the early discussions of the subject, before the multiplication of authorities upon particular classes of cases, decisions just as applied to the state of facts presented by the respective records became unjust when distorted by application to different circumstances involving different issues and considerations. Adjudications that no sufficient evidence of profits was in point of fact adduced have been treated as cases holding that there could be no recovery upon any state of proof. In view of the superabundance of specific cases applying admitted general principles to particular and similar states of facts, it would seem to be a work of supererogation, as well as a source of misconception, to undertake to consider or reconcile or deduce much from the enormous number of cases on the general subject of profits as damages. An excellent collocation and *6 classification of authorities on the general subject will be found in a note to Wells v. National Life Assn., 53 L.R.A. 33.
The leading cases denying the right to recover as damages profits on sales made after the discharge of an agent selling upon commission, or after repudiation of the contract and before expiration of the term of employment, are to be found in the Alabama Reports. In Union v. Barton,
There can be no doubt, however, that the trend of authority and the weight of reason have established that an agent selling on commission upon breach of his contract by his employer without just cause is entitled to the profits, past and future, he would have realized if the defendant had performed his contract, and that evidence of sales made by the defendant within the unexpired period is admissible and should be considered by the jury, upon proper caution by the court to avoid excess or speculation, to show the proper extent of plaintiff's recovery.
The transition of opinion on this subject from the Alabama and some of the earlier cases in other courts to the present rule is well illustrated in Iowa. In Howe v. Bryson,
In New York (Washburn v. Hubbard, 6 Lans. 11) estimates of probable sales during the unexpired term were held inadmissible as evidence of future profits. The case did not lay down the rule, as seems to have been thought in Union v. Barton,
The rule in the federal court corresponds. In Wells v. National Life Assn., 99 Fed. 222, it was held that a life insurance agent, discharged before the expiration of his term without just cause, was entitled to have the jury consider as an element of his damages his commissions upon the amount of new business written by the defendant within his period through a new agent for the unexpired term. And see Taylor Mnfg. Co. v. Hatcher (C. C.) 39 Fed. 440; Moore v. Lawrence (C. C.) 16 Fed. 87; Anvil Mining Co. v. Humble,
The letter and spirit of many other authorities are to the same effect. Mueller v. Bethesda,
The reasoning by which this conclusion is reached is sound. The measure of damages must have relation to the contract itself. Such a contract as the one here under consideration furnishes the measure of damages, namely, profits. Profits were necessarily within the actual contemplation of the parties. They are, therefore, proper basis for the award of damages. 8 Am. Eng. Enc. (2d Ed.) 622, subd. "b." No question has been raised, nor, it would seem, could well be raised, as to the connection of the loss of profits as the proximate result of defendant's breach. The principal contention of the defendant is that the damages are conjectural and speculative. The uncertainty does not reside in the nature of the business. Deep-sea fishing is not more speculative than mining, for breach of contract with respect to which future profits have been allowed as damages. Anvil Mining Co. v. Humble, supra. And see Dennis v. Maxfield, 10 Allen, 138. Nor is there any uncertainty as to the existence, but only as to the extent, of the profits. See Taylor v. Bradley,
The precise question as to the admissibility of evidence of sales made by the defendant through another agent subsequent to the breach of the contract and within the period covered by agreement with the plaintiffs has not been before fully decided by this court. It is the rule of this court that the damages are not a mere matter of discretion of the jury. Emerson v. Pacific Coast N. P. Co.,
4. There were other assignments of error in the admission of evidence, the merits of which it is unnecessary to determine. We do not regard them as being of sufficient importance to invalidate the verdict, if it be conceded that they involve erroneous rulings.
Order appealed from is affirmed.
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