115 Ga. App. 333 | Ga. Ct. App. | 1967
In the second and third enumerated errors the plaintiff complains of the admission in evidence of a check for $1,737.09 dated January 3, 1961, payable to a third party, and the comment of the trial judge in ruling it admissible merely to show that the defendant undertook to minimize her damages. According to the defendant, testifying in her own behalf, she was in the business of selling imprinted advertising merchandise such as bail-point pens and pencil sharpeners and had furnished the plaintiff specialized machinery to do the imprinting on pencil sharpeners to supply to her customers. When the plaintiff failed to do the imprinting and supply her customers on time, she requested the return of the machinery and received it in damaged condition which she attributed to improper crating by the plaintiff. She identified the check as one for payment to a third party for putting the machinery in order and imprinting 90,000 pencil sharpeners. She stated that $900 of the total was for getting the machinery in order. When the check was tendered in evidence and upon objection by the plaintiff the trial court ruled, “It is merely to show that she undertook to minimize her damages, and I let it in on that ground only.” The defendant, as a plaintiff in her cross action, was obligated to take reasonable steps to minimize her damages, if any, from a breach of contract (see Code § 20-1410) and the check, as admitted for the purpose stated, tends to corroborate her testimony. The evidence having been offered, and objection duly made, it was the duty of the court to rule on its admissibility (see Brock v. State, 206 Ga. 397, 400 (57 SE2d 279); Hotchkiss v. Newton, 10 Ga. 560 (5)), and his remarks limiting its consideration by the jury were proper to inform the jury of his determination of the extent to which the evidence could be considered. See Green, The Georgia Law of Evidence, §§ 9, 11. Under the instructions given, the jury could only consider the evidence in respect to whether the defendant took steps to minimize any losses she might otherwise prove. We see no merit in the second and third enumerated errors.
As to other lost profits, the defendant failed to carry the burden of showing that such profits were capable of definite ascertainment. In spite of some testimony as to the number of accounts that she had and the volume of monthly business, the defendant’s answers on direct and cross examination as to the specific amount of her lost profits show only such generalizations as “we lost over half of our customers,” “well, I imagine he caused me to lose at least $10,000,” we “usually make around 40 to 30 per cent,” and “our profit is about as much as we pay the supplier.”
These generalized statements only point to the possibility of lost profits attributable to the plaintiff’s acts, and fail to provide specific guidelines whereby the jury could determine that she was entitled to a verdict of $4,000. In general, unless the lost profits are capable of definite ascertainment, and are traceable directly to the acts of the other party, they are not recoverable. See Code § 20-1406; Findlay Brick Co. v. American Sewer Pipe Co., 18 Ga. App. 446 (89 SE 535); Atlanta
We think that the evidence authorized the jury to apply credits to the defendant of $751.60 and $567.38 in lost profits against the claim of the plaintiff for $1,257.24, and to this extent a verdict of $61.74 for the defendant was authorized. The judgment of the trial court is affirmed on condition that the defendant write off so much of the judgment as exceeds $61.74, with legal interest and costs; otherwise the judgment is reversed.
Judgment affirmed with direction.