*1 is some whether there evidence finding, jury’s viewing the evidence in finding. most favorable Bennett, (Tex. v.
Williams
1980); Fire Ins. County National Mutual Wallace, (Tex.App.— v. 673 S.W.2d
Co. writ). Here, Dist.] [1st evidence that re
there some Monroe truthfully questions con
sponded application: she indicated that
tained veins, from varicose varicose
she suffered
ulcers, hernia, phlebitis, or and also that physician treated for a on application. listed
condition not responding, placed American
so Monroe on notice that she had been treated
States inquired other
for a condition than
about. judgment.
We affirm the trial court’s
MISTLETOE EXPRESS SERVICE OF CITY, OKLAHOMA,
OKLAHOMA
Appellant,
v.
Phyllis LOCKE, Freight Paris d/b/a
Company, Appellee.
No. 9641. Texas, Appeals
Court
Texarkana.
Nov. 1988.
Rehearing Denied Nov. McCracken, McCracken, Taylor &
H.C.
P.C., Carrollton,
appellant.
Nelson,
Flanary, Paris,
appellee.
Bill
*2
CORNELIUS,
placed
Chief Justice.
to be
in
position
he would have
in
been
had the
performed,
contract been
appeals
Service
and therefore
only
Locke could
recover the
adverse
in a breach of con-
profits
she lost
reason of the breach.
tract suit.
Phyllis Locke, doing business as Paris
general
It is a
rule that the victim
Freight Company, entered into a contract
of a breach of contract should be restored
18, 1984,
with Mistletoe on October
which
position
he would have been in had
provided
perform
pick-
a
performed.
Determining
up
delivery
and
service for Mistletoe at
position
finding
involves
what addi
in
various locations
Texas. The contract
injured party’s
tions to the
wealth have
year
1,
term was one
from October
prevented by
and
breach
what
term,
At
expiration
of the initial
subtractions from his wealth have been
agreement would continue on a month-to-
caused
it. 5 Corbin on Contracts
party
basis until either
terminated requires
Where the contract
§
by thirty-day written notice.
capital
a
parties
investment
one of the
perform
contract,
order to
it was
perform,
in order to
party’s
reasonable
necessary for Locke to make certain invest-
expectation
profit
recouping
includes
ments and
In uncontrovert-
capital
expending
investment. The
party
testimony,
spent
she stated that she
good
would not
in
as
as if the
$8,500.00 for materials to build a steel and
contract had been
if he is not
pipe ramp
$1,000.00
and
for dirt work. She
i.e.,
afforded the opportunity,
the full con
also borrowed
with which she
term,
tract
recoup
to
his investment.
$9,000.00
two vehicles for
and
Publishing
Chronicle
Co. v.
$6,000.00
paid
starting-up expenses.
for
Trucklease, Inc.,
McNair
Mistletoe’s sole contention is that the element of granted should have it a recover as directed damages judgment notwithstanding verdict or his in reliance. verdict, may because there is He choose to no evidence to do this ... in the case jury losing which the of a award- one under which he gist ed. The is that the would have had a loss rather than a victim of a contract profit. case, however, breach In that open it is Justice, GRANT, concurring. prove the breach the extent that he fundamen This case seems violate the certainty un- do so with can reasonable injured that an tal tenet law der the standard stated put not be in a better party should *3 injured par- have it subtracted from the contract had than if the added.) damages. ty’s (Emphasis Farnsworth, E. Contracts See §§ rules, the entitled to Under these Locke is damages for (1982). of The usual measure per- expenditures she incurred in order to is neces the amount a breach tes- her contract. Her uncontradicted form financial plaintiff the in a sary place prove of timony exhibits the amounts would equivalent to that which she damages. these fully if the contract had been have had Mistletoe’s parties. Darling Little both have must show what Inc., (Tex.Civ. Ald, Corp. v. could at the earliest time the contract writ). no The outcome App.—Dallas misplaced. is legally have been terminated surprising case is of present of the rules, recover her the cited she can Under had con Phyllis testimony Locke’s that she de she was reliance because money each under the sistently lost recoup those prived opportunity of an projection and there was no Moreover, not Mistletoe is that she would have made show to have Locke’s losses deducted during last the contract. the months of recovery, the because Mistletoe Thus, appeared amount, prove any, if the burden to might money have saved terminat (Sec not do so. and it did ing early.1 ond) (1981). comment of under past projected If total loss the evidence, however, There is no equaled the contract had or exceeded the fig of That award costs, Phyllis unrecouped reliance then resale ure includes both loss from the to a not have been entitled Locke would purchased of the vehicles which with were However, damages. recovery for the loan and the of the current balance showing the figures record contains loan. Locke’s reliance were calcu- Phyllis loss or how Locke ($15,000.00), amount of the loan less the correctly the majority the loss. As lated recovered of the amount from the sale out, party has the breaching points loan property with proving The of loss. burden ($6,000.00). resulting should figure loss ception would be when the be added to cost of the dirt work fault of the available because of the not ($1,000.00) and the materials loss from the suffering The record loss. Furthermore, ($3,000.00). for the not that the loss present case does show receiving recovery Locke would a double figure not available. the amount was Since if recovers of the also the full amount unknown, used to the loss is it cannot be of paid on the interest loan as well as negate damages. reliance judg interest prejudgment allowed ment. stated,
For the reasons
the trial court is reformed to award Locke $13,000.00, plus
damages in the sum of days, interest for 910
prejudgment thereon attorney’s fees
plus as award- reformed, original judgment. in the As is affirmed. may prevent wrongdoer. a loss as 5 Corbin on Contracts 1. A breach prevents one. well as cause Insofar as it amount will be in favor of the credited