88 Ky. 260 | Ky. Ct. App. | 1889
Lead Opinion
delivered the opinion of the court.
It is alleged in the petition oí the appellees that they entered into a contract with the appellant Frazier, to saw for the latter all the timber on a certain tract of land into merchantable lumber, for which they were to be paid at the rate of thirty-three and one-third cents for every hundred feet. They were to begin sawing on a certain day, and continue until they had
It is made to appear from the testimony that the appellees were running their mill for others prior to and at the time at which the contract with the appellant was to begin; and further, that their mill was provided with all the timber it could saw, from the time
The amount of recovery in a case like this is the actual damages sustained. Suppose the appellees had brought their action after the time for the performance of the contract on their part, and it had been made to appear from the testimony that they had, by the use of their mill and their own services in running it, made more profit than they could have
The instruction given in this case makes the offer to perform equivalent to actual performance, when the appellees were only entitled to the actual damage. They had equally as profitable employment in the same county and neighborhood, and, therefore, lost nothing, looking to their own testimony. The criterion of recovery for the sale and delivery of personal property, where there is a breach, is the difference between the price to be given and the value of the property at the time and place of delivery; but the case presented here is not within that class, and in ascertaining the actual loss sustained, if the appellees, with their personal services connected with the operation of their mill, have sustained no damage, there is no reason for making the appellant pay the profit they have already received, for all the complaining party is entitled to is a just recompense for the actual injury sustained.
The principle governing this case is similar to that in regard to contracts for personal service, as in the case of Whittaker v. Sandifer, 1 Duv., 261. Whittaker was to serve Sandifer for one year as an overseer on his farm for a fixed sum. Sandifer discharged him
In the case of Petrie v. Lane, 58 Mich., 527, the plaintiffs owned a saw-mill, and agreed to saw 4,000,000 feet of logs, to be delivered by the defendant in a certain year, the plaintiffs to be paid a fixed price for sawing. The logs were not delivered, and the plaintiffs sued for the loss of profits, and insisted that, as a matter of law, they were entitled to all the profits they could have made on the contract, regardless of the actual damage they had sustained. Their mill was not closed, but working all the time sawing other lumber to its fullest capacity, upon which they made like profits, and by giving them the same profits against the defendants, they were doubling the capacity of their mill as well as their profits. As the right of recovering actual damages in that case was disclaimed, the judgment for the defendant was affirmed. This is a much stronger case against the recovery than the case cited. Here the appellant had contracted for the service of the appellees, in connection with the operation of their mill, for such a time as would enable them to saw the timber on his farm, the use of the mill to be applied to the sole purpose, and no other, without the consent of the appellant. There was a breach of the contract by the defendant, and the appellees, with their mill, proceeded at once to saw for others, running contin
The judgment is reversed, and cause remanded,
Rehearing
To a petition for rehearing filed by counsel for appellee,
delivered the following response:
The silence of this court in regard to the questions raised in the last brief of counsel, was of itself sufficient to suggest that his brief filed on the appeal from the Superior Court, had not .been read or considered, and therefore some explanation is required why the questions raised were not disposed of. The case was appealed from the Superior Court to this court, and involved an interesting question in regard to the measure of damages. The question made and decided was certified by the Superior Court as novel, and of sufficient importance to be passed on by this court, and in the examination of the record, the briefs of counsel on each side were found attached to it, and were carefully read and considered on the hearing. The brief filed by counsel now complaining, and considered by this court, discussed the merits of the controversy arising on the evidence and the instructions, and with a full presentation of the questions ■certified by the Superior' Court, this court rendered the opinion reversing the judgment below, differing with the Superior Court as to the measure of damages.
The second objection is that the bill of evidence was not filed during term time, but in the clerk’s office under an order giving the appellant sixty days in which to prepare the- bill. It was signed by the judge, and there is no order showing that it was ever filed in court. These facts appear, but it still further appears that no motion was made in the Superior Court to strike the bill of evidence from the record, either because it was not filed in time, or for the reason that the motion for a new trial was not made within the three days. The case was then presented and heard on its merits, and the evidence discussed by counsel as being part of the record. Now, this court, instead of- deciding the important question involved, is called on to determine what parts of the record are to be considered, and, in effect, to dismiss the appeal if the pleadings sustain the judgment, without regard to the evidence or the instructions.