82 So. 70 | Miss. | 1919
delivered the opinion of the court.
This is the second appeal in this case. The first case is reported in 118 Miss. 345, 79 So. 225, where the contract involved is set out in full..
The contract may he briefly summarized here by stating that appellee, Carter, and appellants, Studdard and White, entered into a contract reciting that Stud-dard and White were the owners of certain timber situated in Warren county, Mississippi, and that the appellee was the owner of a sawmill located at the time of the making of the corftract in Fulton, Tenn., and
“The said second party (appellee) agrees not to negotiate for or to purchase from any one any timber, either standing or in logs, from parties during the time he is employed by the said first parties (appellants) to cut the timber from these one thousand, three hundred and seventy acres, or any additional timber the said first.parties may purchase on adjoining land. It is understood that, where the timber is offered to the .said second party by owners, he is first to submit such offers to the said first parties, and if purchase is made by’the said second party; it must be made by the direction of the said first party.”
It was further agreed that if for any reason the first parties shall fail to keep enough logs on skidways or yard, and the second party was compelled to close down his mill for any reasonable time, in that event the second party will not be entitled to pay for the loss of time; and it was further agreed that in case the lumber market “should become dull and the- said first parties could not'dispose of their lumber without loss, the said second party shall close down his mill without any expense to the said first parties until such
'The second party, further, was to sell to the local trade for cash such lumber as mill culls at the best prices obtainable. It was further agreed that in the event the said second party should die or become disabled before completing this contract,--the said first party should have the right to take charge of and operate the mill outfit, paying to the estate of the said second party one dollar per thousand feet rental for all lumber cut on his mill. .
The contract was signed on the ,29th day of May,. 1914, and the .appellee proceeded to move his mill from Tennessee to Mississippi, obtaining* some advances from appellants for this purpose, and set up the mill upon the land in question, dug a pond to furnish water for the operation of the mill, and reported in July, 1914, that he was ready to begin operations. The appellants did not proceed to log the mill, and in August of that year the. great war in Europe began, and the lumber .market became disorganized, and remained so, at least until the latter part of the fall of that year.
Carter was situated upon said lands- about twenty miles out from Vicksburg, Miss., and, there was considerable correspondence between the parties and so'me advances made by appellants to Carter during this period of time. In the spring of 1915 Carter found that some lumber was being sold, and notified them he was ready to cut the lumber according to the contract. The appellants had been writing Carter that the market was in such condition that he could not operate, and lie seems to have accepted their statement of - the condition. It appears, however, from the proof that from the latter part of 1914 lumber could have been sold at some profit. Carter remained upon the premises until December 15, 1915, at which time he sued out this
On the first trial the chancellor held the evidence insufficient, and on motion of the defendants struck out the evidence, and-decreed for the appellants, who were defendants in the court below. This court reversed the chancellor, and remanded the cause for a new trial. When the case came on for trial, on .motion of complainant, a jury was impaneled, and the case was submitted to the jury on the evidence and instructions, and the jury returned a verdict for the complainant for four thousand, “five hundred dollars from which judgment the present appeal is prosecuted. ' •
Various instructions given to the jury are assigned for error, and it is argued here that it was
Taking the evidence in the record as to prices and cost as of this date, the jury would have been warranted in finding a larger verdict than it did find, and the appellants cannot complain of any error in not submitting to the jury the question as to when the contract was breached. The evidence ip not speculative, because the evidence, shows the cost of each item with reasonable certainty, and the law only requires reasonable certainty and not mathematical certainty. , The rule was stated in Beach v. Johnson, 102 Miss. 419, 519 So. 800, Ann. Cas. 1914D, 33, as follows:
“If complete performance of a contract is prevented by either party, the other, who is willing and. able to perform, must be compensated in damages to the*253 extent of making Mm whole. Robertson v. Cloud, 47 Miss. 208.
“The rule that damages which are uncertain or contingent cannot be recovered does not apply to an uncertainty as to the value of the benefit or gain to he derived from performance, hut to an uncertainty or contingency as to whether any such gain or benefit would be derived at all.”
In the present case the damages logically arise from the breach of the contract. The extent and amount of the damage is shown with reasonable certainty, and in no sense can it be said that the damages are speculative or uncertain within the meaning of the law upon that subject.
Again, it is insisted by the. appellants that the ap-pellee should have been charged with such sums as he could, with reasonable diligence, have earned by taking-other contracts, and that he should not only be charged with such sums as he did earn, but with such as he might have earned. It will be seen from seption 14 of the contract, set out above, that the appellants oW ligated the appellee not to buy timber either standing or in logs from parties during the time he was employed by the first party to cut for them, and that, if the timber was offered to the appellee, he must first submit such offer to the appellants, and that, if such purchases were made, they were to be made by the direction of the appellants. This clause has a material bearing upon this contention, and it was the duty of the appellants, if they were willing for the appellee to make such contracts,. to give him notice to that effect, and, in the absence of their doing so, they are not in position to invoke this rule. Besides this, however, the proof before the court showed that appellee could not have obtained such contracts without putting himself in a position to breach his contract with the appellants.
In regard to the errors, earnestly argued, in the instructions to the jury, we think the appellants cannot complaip of these instructions, because there is no statute giving the parties the right to a jury trial in this class of cases in the chancery court, and it was discretionary with the chancellor whether he would submit the issues to a jury or decide them himself. Pittman v. Lamb, 53 Miss. 594. In this case Justice Campbell, speaking for the court, said:
“The two grounds of error assigned, as to the action of the court on the trial by the jury, and in refusing to grant a new trial, are disposed of adversely to the appellant by a consideration of the fact that in such a case as this it is entirely discretionary with the chancellor to refer an issu.e to a jury, or to try it himself ; and that after he has made an order of. reference he ujay revoke it before it is tried; or disregard the finding of the jury when made. Being discretionary, his action in reference to the issue before the jury cannot be pronounced erroneous. Cook v. Bay, 4 How. (Miss.) 485; Dunn v. Dunn, 11 Mich. 285; 2 Dan. Ch. Pl. & Prac. (3d Am. Ed.) 1115. The only question to be considered is, whether upon the whole record the final decree denying relief and dismissing the bill is correct. ’ ’
Under this authority we must hold that when the chancellor approves the finding pf the jury as to the facts, and when, from consideration of the whole record we are unable to say that the judgment is wrong, it
The judgment will therefore be affirmed.
Affirmed.