The contract contained the following provisions under which the defendant contends that its action in removing
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the hogs and terminating the contract were justified: "Should Radio determine that the hogs placed with the producer are not being properly fed or cared for in accordance with the prescribed management program, Radio shall have the right to terminate this agreement and take immediate possession of the hogs and remove them from the farm if it deems such action necessary” and "Radio may at its option terminate the agreement and take possession of the hogs without notice, court action or liability upon the happening of any one of the following: . . . any other reason or event which Radio in the exercise of a reasonable discretion deems itself insecure or that the hogs are in danger of misuse.” The defendant contends that this amounts to a contractual agreement that performance must be judged solely by the satisfaction of the defendant, that its right to terminate is absolute so long as not exercised fraudulently or in bad faith, and that the trial court erred in withdrawing from jury consideration a requested charge substantially to this effect in the language of
Atlanta Realty Co. v. Campion,
The question of whether Little had in fact breached the contract was properly left for jury decision. The evidence was in sharp conflict. Under that offered by Radio it appeared that the death rate of newborn pigs was inordinately high due to lack of properly constructed pens, lack of water facilities, failure to give medication, lack of sanitation and inadequate supervisory care. The plaintiffs testimony attributed the high death rate to disease inferably resulting from failure of Radio to provide proper feed, an increased number of sows necessitating facilities Little had not been required to provide, and so on. Since there was evidence sufficient to authorize a verdict either way on this defense, it will not be disturbed by this court.
2. Enumerations of error 7, 8 and 9, as well as the general grounds, raise a question of proof of damages, and the charges relative thereto. The rule of course is that where, in a suit for damages for breach of contract, the plaintiff fails to present evidence supplying data sufficient to enable the jury to estimate with reasonable certainty the amount of his loss traceable to the breach, he is not entitled to judgment in his favor.
Bennett v. Associated Food Stores,
In the present case, the plaintiff, using the payment schedule set out in the contract, must offer proof which would allow a jury to reasonable conclude both the gross payment and the expenses of earning it if he is to base his recovery on lost future profits. The plaintiffs expenses, after his original investment in readying the pens for use, was one for services. All of the testimony shows that while food, medicine, cartage and so on were the responsibility of
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the defendant, the care of the animals, feeding, attendance at farrowing time, cleaning, castrating, and other procedures demanded fairly constant attendance. While he had agreed to obtain the services of a full time adult prior to the time the hogs were reclaimed, he had not been able to do so. He himself had a full time job, and the operation had been in charge of his 16 year old son and another boy. He is basing recovery of lost profits on a premise that he would sell back to Radio between 7 and 8 pigs per sow litter, but his average for the seven months of his operation was 2.7, which, under his own cost figures, amounted to an overall loss. He has therefore completely failed to show, experientially or otherwise, any loss of profit on future litters which is not completely speculative and conjectural. Code § 20-1406. Without having some indication of the plaintiff’s ability to keep down the infant mortality rate, it cannot be said that his projected profits are capable of exact or even reasonably probable computation. "A distinction is drawn between claims for profits derived from a new business venture and those derived from a going concern. The general rule is that evidence of expected profits from a new business is too speculative, uncertain, and remote to be considered, and does not meet the legal standard of reasonable certainty. Accordingly, recovery for lost profits is not generally allowed for injury to a new business with no history of profits.” 22 AmJur2d 245, Damages, § 173. While we have found no Georgia case involving the future sale of unborn livestock, we have a solid body of law involving the future sale of ungrown crops, to the effect that on a breach of contract to supply seed, fertilizer, and the like which has a deliterious influence on the raising of the crop, loss of prospective profits resulting therefrom is too remote and speculative to be recoverable, and the measure of damages must be limited to the necessary expense which the aggrieved contracting party incurred in complying therewith.
Butler v. Moore,
Judgment reversed and remanded for new trial.