Firestone Tire & Rubber Co. v. Shore
121 S.E. 709
Ga. Ct. App.
1924
Check Treatment
Jenkins, P. J.

Thе plaintiff sued for damages consisting of alleged profits lost and expenses incurred on account of the defendant’s failure to comply -with its contract to sell and deliver to the plaintiff сertain tires, wheels, and automobile accessories, for the purpose of re-equipping with pneumatic tires his truck, which had been equipped with- solid rubber tires. The amended petition allеged: that in the operation of plaintiff’s sawmill it was necessary for this truck to transport the manufactured product a distance *645of seven miles to the nearest railroad station; that on aсcount of the sandiness of much of the road the truck had proved inadequate for this purpose; that plaintiff therefore contracted as alleged, with the defendant through its representаtive, who, at the time was fully informed of the difficulties and conditions and saw the truck at the railroad station; that the contract provided for delivery “at once,” and 10 days was a reasonable timе therefor; that notwithstanding repeated promises, the defendant failed to make delivery, until finally the plaintiff, after thirty more days, purchased another truck, which could transport his full manufactured product; that he did not previously make such purchase because of his reliance on the defendant’s agreement; that during the period preceding this purchase of the new truck he was аble to cut and manufacture only one half of the normal output of his mill, on account of having to use his four logging teams to haul the manufactured lumber for a part of the day over the sandy portion of the road, the original truck being unable to come nearer than four miles to the mill; that he “had standing continuous orders for the entire output of the mill during all of said time, and that the only condition whiсh prevented ‍‌‌‌‌‌‌​‌​‌​‌​​‌​​‌​‌​‌​‌‌​​​​​‌​‌​​​‌​​‌​​​‌​​‌‌‍the manufacturing of the lumber to the extent of the entire capacity of the mill” was the condition alleged; that at the time the plaintiff bought the new truck, to do the work which his original truck equipped as contracted for would have done, “there was no one on the market able or willing at that time to furnish the wheels and pneumatic tires and other equipment necessary tо convert” the truck into such a vehicle as would do the work required; and that when he bought the second truck “it was the only thing which petitioner could have done to meet the situation and to stop the damage and loss which the plaintiff was suffering by reason of the failure of the defendant to furnish said equipment.” He therefore claimed as damages the expense incurred in purchasing the new truck; that is, the difference between the cost of the new truck, after receiving a credit for the exchange of the old truck to the seller, and the contract cost of the tires and equipmеnt agreed to be paid to the defendant; and further, the alleged actual net profits lost by the fifty per cent, inactivity of the mill, the averments being: “that said mill averaged 9,000 feet of manufactured products per day, or 216,000 feet per month, which fact was made known to the said . . agent *646of the defendant at the time said contract was made,” and “that the net profits to petitioner of said manufactured products at that time was $7 per thousand feet, $1512 per month as a result of the normal output of said mill) and that by reason of the fact that petitioner was able to deliver to the rаilroad only 50 per cent, of said 216,000 feet per month, actual net profits for the above-mentioned month was only $756, or a loss of $756 to petitioner.” By amendment it was shown that this loss arose, not after the lumber had been actually cut, but by reason of the plaintiff’s failure to cut the percentage stated, on account of the use of his logging teams for a portion of the day in transporting thе manufactured product to the station. The defendant demurred both generally and specially to the petition, both generally and particularly attacking each of the items of damage claimed, as being remote, speculative, not in contemplation of the parties, an improper measure of damages, and demurred to the expense item of buying the new truck, as inсurred without any notice or knowledge of the defendant. The trial court sustained the demurrers with reference to the purchase of the new truck, and overruled the others. The defendant, by direct bill, excepts to the overruling of the latter; and the plaintiff, by cross-bill, excepts to the sustaining of the demurrer as to the expense item.

1. “Remote or consequential damages are not allоwed whenever .they cannot be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are thе immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” Civil Code (1910), §§4394, 4395. “Damages which are the legal and natural ‍‌‌‌‌‌‌​‌​‌​‌​​‌​​‌​‌​‌​‌‌​​​​​‌​‌​​​‌​​‌​​​‌​​‌‌‍result of the act done, though to some extent contingent, are not too remote to be recovered, especially where they are such as may be fairly and rfeasonabty considered as arising either naturally from a breach of the contract itself, or as may reasonably be supposed to have been in contemplation of both the parties at the time they entered into the contract as the probable result of a breach of it.” Stewart v. Lanier House Co., 75 Ga. 582 (1 a), 598; Van Winkle v. Wilkins, 81 Ga. 93 (3) (7 S. E. 644, 12 Am. St. R. 299); Gore v. Malsby, 110 Ga. 893 (3), 902, 903 (36 S. E. 315); Waycross Air-Line R. Co. v. Offerman R. Co., 114 Ga. 727 (3), 731 (40 S. E. 738); Anderson v. Hilton & Dodge *647Lumber Co., 121 Ga. 688 (3), 691 (49 S. E. 725); Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483 (2), 489 (60 S. E. 279); Chappell v. Western Ry. of Ala., 8 Ga. App. 787, 790 (70 S. E. 208); Tompkins Co. v. Monticello Cotton Oil Co., 153 Fed. 817, 819-821. But parties will not, as a general rule, be held liable for the current profits of a going manufacturing concern, especially where, under the rule stated, they are neither the immediate fruit of the contract itself, nor would reasonably have been anticipated by the parties as naturally flowing from a breach. Upmago Lumber Co. v. Monroe, 148 Ga. 847 (2) (98 S. E. 498); Willingham v. Hooven, 74 Ga. 233 (3), 248, 249 (58 Am. R. 435); Ga. R. Co. v. Hayden, 71 Ga. 518 (2) (51 Am. R. 274); Consolidated Phosphate Co. v. Sturtevant Co., 20 Ga. App. 474 (2), 476, 477 (93 S. E. 155); Ralph T. Birdsey Co. v. Porter, 18 Ga. App. 391 (3) (89 S. E. 435); Albany Phosphate Co. v. Hugger, 4 Ga. App. 771 (3), 777, 778 (62. S. E. 533). In this case, irrespective of whether ‍‌‌‌‌‌‌​‌​‌​‌​​‌​​‌​‌​‌​‌‌​​​​​‌​‌​​​‌​​‌​​​‌​​‌‌‍or not the measure of damages claimed was the proper legal measure (see Thornton v. Cordell, 8 Ga. App. 588 (4), 70 S. E. 17), and whether or not the petition wаs defective in failing to show that the plaintiff had lessened his damages by the use of ordinary care and diligence, the profits here claimed were not the direct and immediate fruit of the contract, such as can reasonably be considered as having been in the contemplation of the parties when the contract was made. Civil Code (1910), § 4398; Betts Co. v. Mims, 14 Ga. App. 786 (82 S. E. 474); Mims v. Betts Co., 9 Ga. App. 718, 721 (72 S. E. 271); Ansley v. Jordan, 61 Ga. 483 (1). When the seller failed to deliver the tires аnd other equipment contracted for, which it is alleged were necessary for the operation of the purchaser’s truck in the business intended, the seller could not have reasonably an-' ticipated that the purchaser would thereupon stop in whole or in part the operations ‍‌‌‌‌‌‌​‌​‌​‌​​‌​​‌​‌​‌​‌‌​​​​​‌​‌​​​‌​​‌​​​‌​​‌‌‍of his sawmill, but rather would have naturally anticipated that other material, in the place of that contracted for, would be purchased, and that the purchaser, as his measure of damages, would charge the seller with the difference between the contract price and the market price at the time and place of delivery.

(a) “If there is no market at the place of delivery at the time fixed therefor, resort may be had to the nearest available markеt, with cost of transportation to the place of delivery usually added.” *648Twin City Lumber Co. v. Daniels, 32 Ga. App. 578 (2), 582 (96 S. E. 437). If the allegation of the instant.petition, that “there was no one on the market able or willing at that time to furnish the wheels and pneumatic tires and other equipment necessary to convert” the plaintiff’s truck from one carrying solid tires into one with pneumatic tires, could be taken as alleging that the tires, equipment, and work necessary to fit the same could not have been bought or obtained in any available market, rather than as an averment merely that they were not purchasable on the market аt the place of delivery, it still does not appear why the plaintiff purchaser did not use or could not have used other means of transporting his lumber to the railroad station without stopping or lessening his mill operations, or why, if the defendant ‍‌‌‌‌‌‌​‌​‌​‌​​‌​​‌​‌​‌​‌‌​​​​​‌​‌​​​‌​​‌​​​‌​​‌‌‍seller was in fact the only dealer in the equipment, the plaintiff could not have rented a suitable truck, or wagons, logging teams, or other practical method of transportation. The allegation that when the plaintiff bought the new truck “it was the only thing which petitioner could have done to meet the situation and to stop the damage and loss which the plaintiff was suffering by reason of the failure of the defendant to furnish said equipment,” as a general averment or conclusion of the pleader, is controverted by the further specifiс allegation in the petition that the plaintiff was in fact able to transport one half of the product of the mill to the station by using his four logging teams during a portion of the day for that purpose.

(6) Under the rules stated, it was error to overrule the demurrers to that portion of the petition which claimed profits lost on account of the decreased operations of the mill.

2. The court properly sustained the demurrer as to the item claiming as damages the amount expended in purchasing the new truck. It appears that the plaintiff acquired this truck as his own property, but it nowhеre appears that he did not receive value for. the amount expended, or that he incurred, any damage in paying the amount of the cost price.

3. Neither of the items of damagе claimed being recoverable: under the facts alleged, and no general or nominal damages being; sought, the petition should have been dismissed. Twin City Lumber Co. v. Daniels, supra.

Judgment reversed on main-bill of exceptions; affirmed on cross-bill.

Stephens and Bell, JJ., concur.