94 P. 258 | Kan. | 1908
The opinion of the court was delivered by
Bailey & Kammerer agreed to drill six gas-wells for the Fredonia Gas Company, for which they were to receive eighty cents per foot. After drilling three wells the company ordered the work stopped. Bailey & Kammerer sued for damages arising from the breach of this agreement. A demurrer to the petition was overruled. An issue of fact was then made up, and tried by a jury. The plaintiffs having recovered, the company alleges error. It is argued that the petition was insufficient because the damages claimed were speculative, and that the evidence was insufficient for the same reason.
The petition alleged the making of the agreement, the readiness of the plaintiffs to perform, the breach by the defendant, and an averment of damages. A cause of action was stated, and the demurrer was properly overruled.
All the wells contracted for were to be on the same farm, and near together. Many wells had been drilled in the vicinity, and the average depth to the gas-sand was shown. The evidence tended to show that the average cost of drilling such wells was forty to fifty, cents per foot in that vicinity; that contracts for such work must be taken some time in advance; and that when this drilling was stopped no other work of the kind was immediately available. Witnesses of experience in such business were examined touching the probable cost of drilling such wells, who took into consideration the strata on that farm and in the vicinity, the liability to delay from accidents, and other conditions.
The defendant contends that damages in such cases are too uncertain and speculative; that the elements of profits and losses are so many and varying, such as the loss of time and labor, the breakage of machinery, the effects of storms, and other kindred difficulties, that no reasonably certain estimation can be made, and hence that there should be no recovery. This court has said:
“Damages for anticipated profits recoverable upon breach of a- contract must be established with a reasonable degree of certainty, must be the natural and proximate consequence of the breach, and be free from conjecture and speculation.
“Damages that are speculative, remote or contingent cannot form the basis of a recovery for the breach of a contract.” (Railway Co. v. Thomas, 70 Kan. 409 [Syllabus], 78 Pac. 861.)
In the opinion in that case it was observed:
“No fixed rule can be laid down which, when applied to the facts of a case involving damages for anticipated profits, will determine whether a recovery may or may not be had. Each case must be determined upon the facts peculiar to itself.” (Page 416.)
In that case the railway company had given' the right to Thomas to sell watches of a certain standard to its employees, the company to aid him in collecting the pay therefor. It was held that the damages claimed were too speculative. The company had not guaranteed the sale of any particular number of watches, and the profits depended not only on the cost of purchasing and handling the watches but upon the number that might
Where the business upon which profits are claimed is not new or untried, but has been established and carried on to such an extent that a safe basis can be found, the anticipated profits thereof, if shown with reasonable certainty, rñay be allowed. In this case the experience of the witnesses in drilling wells in the same vicinity, where the conditions were the same, covering a considerable period of time, afforded a reasonable basis upon which they might estimate the cost and expense of drilling the wells, taking into consideration the vicissitudes of the business as usually carried on. Absolute certainty was not possible, but reasonable estimates, it seems, could be and were made, upon which the jury awarded damages. Recoveries, have been allowed for gains prevented by the wrongful seizure of cattle, based upon their anticipated continued feeding and growth. (Hoge v. Norton, 22 Kan. 374.) In another case the reasonable anticipated profits arising from the use of cows not furnished as agreed were allowed. The court said:
“We have no doubt but that the experience of dairymen can furnish estimates of the profits of cows kept for that purpose, that can be relied upon with the same degree of certainty that attends the result of all other ordinary business transactions of life.” (Brown v. Hadley, 43 Kan. 267, 273, 23 Pac. 492.)
Where a merchant was induced to move his stock ánd business to a new town upon certain considerations, which failed, it was held that the jury might take into consideration the loss of profits in the business so broken up in awarding damages. (Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706.)- Where shocked corn was purchased to be fed to cattle and was wrongfully destroyed by the vendor, at a time when such feed could not be obtained in the vicinity, the wrong-doer was
We think this case falls within the rule allowing anticipated profits, as declared in these decisions; that the testimony was competent to prove such damages, and that the instructions- of the court were proper and the verdict reasonable. The judgment is therefore affirmed.