37 Fla. 134 | Fla. | 1896
This is the second appeal in this case. On the first appeal all questions of law presented by the case have been settled, except two matters now controverted between the parties.
The nature of the case will fully appear by reference to the reported opinion, and the statements of fact accompanying the same (26 Fla. 543, 8 South. Rep. 450). The suit was brought by appellees, hereafter called the plaintiffs, against appellants, hereafter called the defendants, for the breach of a contract, whereby appellees agreed to deliver to the testator of appellants all the logs of certain specified dimen- • sions and free from certain specified defects, growing upon certain described lands of said testator. The breach alleged to have been made by the defendants after the death of said testator was in refusing to receive the remainder of said logs, after a portion of the same had been delivered. From the evidence it appears that it would have taken appellees two years, or thereabout, from the time the contract was broken by appellants, to have completed the contract on their part by delivery of the other logs embraced within the provisions. of the same. After the appellants broke the contract by refusing to receive any more logs under the same, the appellees, -with some of the same teams that had been engaged in the work required for the performance of such contract, engaged in other' work of delivering logs under other contracts to other parties. The' appellants sought to prove what gains and profits were made by the appellees by their own labor and the use of such teams in such other work and contracts' during the time that it would have
It is urged by appellants that he plaintiffs, when they received notice that the defendants would not further comply with or perform the contract, should have done all that reasonably lay within their power to protect themselves from loss, by seeking other contract of like character, and that the plaintiffs having sought and obtained such a contract immediately after the breach sued upon, the defendants were entitled to have a proportionate amount of the profits applied in mitigation of the damages for which they were liable. Otherwise it is contended that the plaintiffs would
The contract which was broken in the present case was not one for personal services, nor one which the-parties contemplated should be performed with any special means or instrumentality. It was simply a contract for the delivery of certain logs at a certain place, and might have been performed by the plaintiffs with their own teams and personal labor, or by any other means or agency to which they might have seen fit to intrust the performance of the same. There is nothing in the contract to show that the execution of the same required all or any great portion of the time or personal attention of both or either of the plaintiffs; or that it was impracticable for plaintiffs to be engaged in other business and the performance of other contracts contemporaneously with the performance of the contract in controversy.- We do not think the rule-invoked as to mitigation of damages, by subsequent earnings and profits, applies to this case. A distinc
There was no legal obligation upon the plaintiffs in this case to enter upon the performance of other contracts for the benefit of the defendants. The Supreme Court of Wisconsin, in Cameron vs. White, supra, where a contention like that of appellants in this case was made, as we think, properly said: “As the plaintiffs could not enhance the damages against the defendant by their neglect to make the best of what they had on their hands, so they are not bound to lessen the •damages by making other contracts, and performing them, and giving the benefit of the performance of such •contracts to the defendant.” A very full exposition •of this subject, showing the difference in the rule applicable to contracts for personal service, and those for the doing of a specific act, can be found in Watson vs. Gray’s Harbor Brick Co., supra. This discussion is too lengthy to insert entire in this opinion. The gist of the whole matter, the conclusion of the court, citing Wolf vs. Studebaker, 55 Pa. St. 459, is thus stated: “The duty to seek employment is dependent upon the •original contract being one of employment or hire. It is not applicable go every contract. * * Ordinary •contracts of hire, and contracts for the performance of some specified undertaking can not be governed by the
Prom what has been said by us, and quoted with approval from the decisions of other courts, it follows that we are of the opinion that the Circuit Court did not err in excluding the testimony offered, and that the doctrine that one. who has been injured by the breach of a contract must do all that is reasonably within his power to mitigate the damages caused thereby, does not prevail to the extent that one who is injured by a violation of an agreement to do a specific act not necessarily involving personal services, must seek and perform other contracts for the benefit of one who, by breaking faith with him, has caused the injury.
The second matter, as already stated, is whether any interest is recoverable upon the amount of damages found by the jury against the defendants. The court instructed the jury that if they found a verdict for the plaintiffs, they should assess the damages, with eight per cent, interest, from whatever date the evidence showed the contract would have been completed. The jury in its verdict stated separately the amount of the damages assessed, and the interest thereon, and judgwas entered for the aggregate amount. These proceedings are claimed to be erroneous for the reasons alleged, (1) that no interest can be allowed in a recovery of unliquidated damages, and (2) that the evidence does not show any'date from which the jury might calculate the interest. It can not be doubted that the aneient rule is adverse to the assessment of interest upon
An examination of the authorities show that the principles quoted above are sustained by various decisions. In State vs. Lott, 69 Ala. 147, it is said: “Interest in this State has long been regarded, not as the mere incident of a debt, attaching only to contracts, express or implied, for the payment of money, but as compensation for the use or for the detention of money. Whenever it is ascertained that at a particular time money ought to have been paid, whether in satisfaction of a debt, or as compensation for a breach of duty, or for a failure to keep a contract, interest attaches as an incident.”
Without lengthening this opinion with farther quotations, we simply cite, as having a direct bearing upon the subject, the following cases: Van Rensselaer vs. Jewett, 2 Comstock, 135, S. C. 51, Am. Dec. 275; Schmidt vs. Louisville & Nashville R. R. Co., 95 Ky. 289, 26 S. W. Rep. 547; Brackett vs. Edgerton, 14 Minn. 174; S. C. 100 Am. Dec. 211; Boyd vs. Gilchrist, 15 Ala. 849; Whitworth vs. Hart, 22 Ala. 343; Adams vs. Fort Plain Bank, 36 N. Y. 255; Selleck vs. French, 1 Conn. 32, S. C. 6 Am. Dec. 185. This court has allowed interest on an unliquidated claim of damages in Jacksonville, Tampa & Key West Ry. Co. vs. Peninsular Land, Transp. & Manuf'g Co., 27 Fla. 1, text 140 et seq., 9 South. Rep. 661, and expressed its disapproval of Ancrum vs. Slone, 2 Spears (So. Ca.), 594, in which it was held that interest could not be allowed on unliquidated damages.
We do not think the objection well taken, that the evidence shows no date from which the jury could calculate the interest. The evidence shows sufficiently a date within which the plaintiffs could have completed their contract, viz: Two years from the time the defendants made a breach of it. This time was long after the action was brought. The amount of interest allowed shows that it was calculated from such date. The court told the jury to allow the interest “from whatever date the evidence shows the contract would have been completed,” and we think the proof sufficiently definite as to such a date. There was no reversible error in the instruction, or the finding of the jury. By this holding we do not intend to determine whether the interest could have been calculated only from the date sufficient for the completion of the contract, or whether it should have been estimated from the breach of the same, or from the filing of the writ in the suit. We only determine that there was no prejudicial error to the defendants in the record. If the rule varied at all from the true rule for calculation of interest, such variance was in defendants’ favor and lessened the amount of the recovery against them.
Let the judgment of the Circuit Court be affirmed.