Porter & McMillan v. Burkett, Murphy & Burns
1886 Tex. LEXIS 673
Tex.
1886
Check Treatment
Willie, Chief Justice.

The petition set forth a good cause of action, as it alleged a breach of contract on the part of the appellees, without default of the appellant; and, under its allegations, the latter were entitled to recover some damages for the injury they had thereby suffered. 2 Suth. on Dam., 521; Black v. Woodrow, 39 Md. 194.

We do not think, however, that the measure of damages claimed in the petition is correct. A person who is stopped in the performance of a contract, by the default or direction of his employer, is entitled to compensation for the losses he sustains;. but he is entitled to compensation only, and not to the gross amount he would have received from his employer had the contract been fulfilled. Masterton v. Brooklyn, 7 Hill 62. He may recover the natural and probable profits his contract would have yielded him, when they are certain and not contingent, speculative or remote, but he must not receive, when the work is not done, the same amount of money he would have received had the contract been fully executed. Here the petition claims for the sixty-nine days which elapsed after the work had been stopped, the exact amount the appellants would have received had the contract been performed. Ho allowance is made for the expenses they would have incurred in performing the contract. To arrive at the profits, we must deduct all reasonable outlays and expenses from the price to be received for executing the work. It has been held that a further deduction should be made for the less time engaged, and for release from care, trouble, risk and responsibility attending a full execution of the contract. U. S. v. Speed, 8 Wall 77.

As to the twenty-one days during which the appellants were engaged in working in black, waxy soil, their damages will depend upon the circumstances under which the work was done. If they voluntarily undertook to work in this kind of soil, when they were not obliged to do so, and treated the work done by them as performed *387in accordance with the contract, and accepted the $421 in payment for such work, they may not be entitled to recover any further sum upon that portion of their work. But if appellees, after inducing them to remove their wagons, teams and laborers, from Mexico to Tyler county, would give them no other work, and for this reason they were bound to labor in this character of soil, they can recover the reasonable value of their work done, less the sum received upon it. The latter case seems to be the one intended to be made by the petitioner, though the averments upon the subject are not as clear as they should be. The contract price cannot, under this state of the case, govern in making the estimate of compensation for the twenty-one days. There was no contract for work in black soil, and an estimate of what such work is worth, must be made without reference to the contract as to a different character of soil. Hence, the claim to receive more than twice as much for the twenty-one days’ work as had been paid them, cannot be sustained, unless this was the reasonable value of that work. We think, therefore, that, under the allegations of the petition, the plaintiffs were entitled to recover no more than the reasonable value of the twenty-one days’ work done by them, and the profits they would have made under the contract, during the remainder of the ninety days; these profits to be estimated as heretofore stated. But, as the plaintiffs below alleged a good cause of action entitling them to damages, and erred only in the amount claimed, the petition was certainly not subject to a general demurrer.

As to the special exceptions, it was not necessary to allege that the plaintiffs could not have saved themselves from the consequences of the default of defendants by obtaining work elsewhere. If it were shown on the trial that they could, by this means, have reduced their losses or saved themselves harmless, it would have been a good defense, in whole or in part, to the action. A plaintiff is not bound to negative everything that might defeat his action. If the damages he shows he has incurred aré to be reduced from any cause not necessarily occurring, in all such cases this must be shown by the opposite party in defense.

The objection that the damages claimed are too speculative or remote has been, in effect, already disposed of. .We hold the claim made in the petition, to be incorrect, not for this reason, but because it is for too much. The plaintiffs would have been entitled to recover for the sixty-nine days of the contract had they credited the defendant with outlays, expenses, etc., as heretofore mentioned in this opinion. But, admitting that the special exceptions were well taken, and the plaintiffs refused to amend to meet the objections contained in *388them, their ease is not thereby prejudiced, as the general demurrer was also sustained. What does it avail a plaintiff to fortify his petition against a special exception, when the court, in effect, holds that if he does so it is still bad on general demurrer? There can be no use in amending a petition in one particular, when, after amendment, it shows upon its face no cause of action.

We are of opinion that the court erred in sustaining the demurrer and exceptions to the petition. The judgment will therefore be reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered January 29, 1886.]