105 Ky. 701 | Ky. Ct. App. | 1899
delivered the obinion oe the court.
On October 25, 1892, appellees entered into a written contract with appellant to furnish 150,000 quarter-barrel staves, at thirty-two dollars per thousand, and 150,-000 half-barrel staves, at forty-six dollars per thousand, “to be delivered between the date of the contract and the first day of January, 1894, in as nearly equal monthly shipments as possible.” 125,000 staves were delivered under this contract, and paid for by appellant. On July 25, 1893, appellant- addressed this letter to appellees: “G-entlemen: Your several favors twenty-fifth instant to hand, and noted. We wish to say that we do not want you to ship any staves at all for at least sixty days, as we will be unable-to receive them, so you had better save the hauling in and the freight, any way. Of course, we don’t hold yon to finish contract on 1 ime. As we have never pushed you when you were back on contract, we do not want you to push us now when we can not make use of the staves, and it is impossible to make collections. We do not want to give out any paper, and thereby get into a pinch, as we want to be on the safe side.” This was the last of a number of letters of the same tenor, beginning in the early part of July, and when the sixty days had expired appellant notified appellee that they would not take any more staves at any price. Thereupon this suit was instituted by appellees to recover damages for breach of contract, alleging thát, by the refusal of appellant to comply with the contract, they were damaged in the sum of $11.40 on each thousand staves which it refused to receive.
Appellant in its answer and counterclaim denies that appellees were damaged in the sum of $11.40 on the
It appears from the proof that under the contract appellees realized • a net profit of from eleven dollars to twelve dollars a thousand on the staves actually deliver
There was nothing speculative about the profit which appellees would have realized under their contract; the testimony reduced it to almost a mathematical certainty. In Thompson v. Jackson, Owsley & Co., 14 B. Mon., 114, this court said: “On failure to comply with a contract to
The general rule is that the measure of damages for breach of an executory contract includes loss of profits which grow out of the contract, and which would have been realized from its full performance, but not the loss of profits or other damages arising out of collateral undertakings entered into on the faith of the contract. It seems to us that the instruction given in this case lays down the true and correct measure for determining the amount appellee was entitled to recover, and the instructions fully and fairly submit the case on appellant’s counterclaim.
It is insisted for appellant that as, subsequently to the institution of this suit, Tate & Co. executed a deed of assignment, they can not maintain this action. The deed referred to purports to convey only certain specific articles, and does not include the claim sued on.
A number of other rulings are complained of, but do not appear to have affected the substantial rights of the appellant. It is evident, from the letters of appellant filed in