Mount Pleasant Stable Co. v. Steinberg, 238 Mass. 567

238 Mass. 567 | Mass. | 1921

Carroll, J.

The parties entered into a written contract dated June 25, 1914, by which the plaintiff was to furnish at an agreed price, single and double teams to do the defendants’ trucking. There was evidence that after the parties had operated under the contract for a few months the defendants broke the contract. The auditor found that at the time of the breach the contract had four hundred and fifty days to run; that the defendants were using during the period on an average “ four and one half teams per day,” and that the profit to the plaintiff would be $1 for each team, making the total profit $2,025. He also found that the plaintiff purchased for special use in the defendants’ business, two “ Chest ” horses for which it paid $625 and sold them for $485, sustaining a loss thereby of $140. The defendants contend that the plaintiff is entitled to damages, only from the time the work under the contract was discontinued to the date of sale; that the rule of damages is the same as in a contract for personal services, and it is the duty of the party claiming damages for the breach of such contract, to make all reasonable efforts to secure another contract. In the Superior Court the case was heard on the auditor’s report. The judge found for the plaintiff in the sum of $2,025 for damages, and interest from the date of the writ, and the case was reported to this court on the question of damages only, on the pleadings and the auditor’s report.

The auditor found that eight days after the contract was broken, the plaintiff sold all its horses, caravans and other equipment at public auction; that at this time there was a demand for horses and caravans, and it could have found a ready market for their use at a price equal to that which it was to receive from the defendants; that the plaintiff could have found use for its horses and wagons, had it made any real effort to do so, at the contract price; and that if the plaintiff was entitled to damages only from the time of the breach, to the time of the sale, it is entitled to recover $36.

The rule that when a contract calls for the personal services of a party, he is required, in case the contract is broken by the other party, to use reasonable efforts to obtain other employment reasonably adapted to his abilities, thereby lessening the damages, Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 6, Hussey v. Holloway, 217 Mass. 100, has no application to the case at bar. The auditor found that the contract did not require on the part of the plaintiff, any special skill and could be performed by its employees. In Dixon v. Volunteer Co-operative Bank, 213 Mass. 345, the plaintiff was hired by the defendant to act as its attorney for one year. His work was to examine titles to land offered to the bank as security. Before he was discharged he had the right to do additional work without accounting to the defendant for the profits received. It was held that this was not lessened by the defendant’s breach of the contract, that the plaintiff’s time did not belong to the defendant under his contract and he was not its servant and not bound to minimize the damages suffered by him, and that the rule of damages which is applicable when a contract for personal service is broken, did not apply. The same rule governs the case at bar. Wolf v. Studebaker, 65 Penn. St. 459. Allen v. Murray, 87 Wis. 41, 47, 48. The contract did not preclude the plaintiff from carrying on as many other contracts as it saw fit. Its time did not belong to the defendants and the contract did not call for personal services on the part of the plaintiff. The defendants having broken the contract became liable to the plaintiff for all damages which would compensate it for its loss and such as the parties,were supposed to have contemplated would result from its breach. The plaintiff was entitled to recover damages measured by the difference between the contract price and what it would have cost it to have performed the contract, or, as found by the auditor, a profit of $1 on each team from the time the contract was broken until its expiration according to its terms. Olds v. Mapes-Reeve Construction Co. 177 Mass. 41. Hanson & Parker, Ltd. v. Wittenberg, 205 Mass. 319. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 21. Dixon v. Volunteer Co-operative Bank, supra. Nelson Theatre Co. v. Nelson, 216 Mass. 30, 34. Pipolo v. Fred T. Ley & Co. Inc. 216 Mass. 246.

The auditor found that the plaintiff bought two “ Cliest ” horses specially for use in connection with the defendants’ business, for which he paid $625 and sold them at a loss of $140. The plaintiff contends it is entitled to recover this amount in addition to the profits on the contract. If the plaintiff had completed the contract, it could recover only the contract price. This expenditure for preliminary outlays could not be received in addition, and by recovering the profits on the contract, full compensation is given for its loss. See Holt v. United Security Life Ins. & Trust Co. 47 Vroom, 585, 597, 599; Worthington & Co. v. Gwin, 119 Ala. 44, 51. It is not necessary to decide in this case, if a contract is broken, what damages should be recovered for expenses in preparing for its performance, where the profits cannot be determined. See Pond v. Harris, 113 Mass. 114, 121, 122.

The plaintiff is entitled to interest from the date of the writ. Cormier v. Brock, 212 Mass. 292. Jackson v. Brockton, 182 Mass. 26. Speirs v. Union Drop Forge Co. 180 Mass. 87.

According to the report, judgment is to be entered on the findings.

So ordered.