60 So. 508 | Ala. Ct. App. | 1912
The complaint sets out a written contract whereby the defendant agreed to furnish gasoline to the plaintiffs on terms and for a period plainly specified, together with a Avritten statement evidencing its understanding of the amount of the commodity desired by the plaintiffs until otherwise directed and its undertaking to ship that amount each Aveek, and avers a breach by the defendant of its alleged agreement. It shoAVS Avith sufficient definiteness and certainty the existence of a contract obligation incurred by the defendant to the plaintiffs and the breach of that obligation. The demurrers to it were properly overruled.
As the defendant (the appellant here) did not question the sufficiency of the answers finally, and at a term preceding that at which the case was tried, made by the plaintiffs to the interrogatories propounded to them by the defendant, the latter is not in a position to sustain a claim that it could have been prejudiced by the action of the court in overruling its motion for a non-suit because of the failure of the plaintiffs to answer
The defendant contracted to supply to the plaintiff 'a specified amount of gasoline in weekly shipments. There were averments and proof to the effect that the contract was entered into with kri owledge on the part of the defendant that the commodity was contracted for by the plaintiffs for use by them in the operation of the cotton gin, and that such a supply as was contracted for was needed to keep the gin going. There also was evidence tending to show that the plaintiffs could not readily get, at the place to which the gasoline was to be .shipped, the required supply of it when the defendant failed to furnish it, and that the defendant’s failure to make the shipments according to the contract was likely to result in causing the suspension of the operation of the gin.
It may be assumed that the circumstances attending the making of the contract were such that the. plaintiffs cannot be held to the ordinary rule for measuring damages for a vendor’s failure or refusal to deliver goods •sold, by the difference between the contract price and the market price of the goods at the time and place of •delivery, with interest, as that rule does not apply when the purchaser cannot readily go into the market and ■supply himself with the desired goods by paying the ■difference in price, if any. — McFadden & Bro. v. Henderson et al., 128 Ala. 221, 29 South. 640.
Whether such items of damage as those just mentioned are recoverable on such a state of facts as that disclosed by the evidence in this case is not decided, as the pleadings in the case are not such as to present the question for decision. Certainly such damages would not in all cases ensue from a breach of a contract to supply gasoline for the operation of machinery. This being true, those items of loss were in their nature special damages, and, to authorize proof to be made of them, they should have been specially claimed in the
Exceptions were duly reserved by the defendant to the admission of evidence as to the gin being in- a location which was favorable for the business in which it was employed, as to indefinite arrangements with neighboring farmers to have cotton ginned there, as to parties bringing seed cotton to the gin and carrying it away when the gin was shut down because of the lack of gasoline required to run it, as to the daily capacity of the gin, the cost of its operation, the prices received for ginning, etc. This evidence went to show the value of the business and that loss was entailed upon the plaintiffs by the interruptions of it complained of. We cannot discover that this evidence had any other purpose or tendency than to furnish a basis for an estimate of the plaintiff’s loss of profits in consequence of such interruptions. It is not denied that the plaintiffs may have been damaged by losing profits which they might have made if they had carried on the business without interruption. But the conduct of such a business is necessarily subject to so many contingencies as to render it impracticable definitely to ascertain by proof what, if any, profits might have accrued from it during any given period when it was suspended, and to make
The trial of the case turned to such an extent upon evidence improperly admitted that it is not deemed necessary, for the purpose of another trial in which new issues may he presented, to pass upon other questions presented by the record.
Reversed and remanded.