Taylor v. Howard

110 Ala. 468 | Ala. | 1895

HEAD, J.

This is the third appeal in this case.—Howard v. Taylor, 90 Ala. 241; s. c. 99 Ala. 450. After the cause was remanded the last time, the plaintiff amended his complaint by adding the common counts under which he seeks to recover the sum of $350, the amount invested by Howard in his license, which it was contemplated he would not further need or use, and which factor was considered by the parties in arriving at the price, to be paid by the purchaser under the contract, the seller agreeing not to engage in a similar business. The facts are not different from what they appear upon the former trials, as viewed in the light of the plaintiff’s version of the contract, which is the most favorable aspect for him presented by the record. The appoellant, under the rulings of the court, recovered only nominal damages, and in support of his appeal he urges upon us only two propositions. The first contention is thus stated by his counsel: ‘ ‘Our contention is, that in the absence of other proof, the plaintiff was and is entitled to recover of Howard the difference between the four hundred and fifty dollars, the value of the property actually bought by Taylor according to his evidence, and the one thousand dollars'paid by him to Howard.” We practically decided this question against the appellant on the first appeal. The contention misstates the contract between the parties as well as the sum paid, and is based upon a misconception of its real character. Taylor procured everything he purchased from Howard— the fixtures, stand,' and such benefits as naturally arise from the location. He did not and could not purchase the license, and whether Howard did or did not cancel or destroy that paper was of no consequence to him. His only real ground of complaint consists in Howard’s engaging in a competitive business in violation of his contract. For this breach he was entitled to recover such actual damages as he could show naturally and proximately resulted therefrom. Failing to furnish data from which the jury could properly estimate his actual damages, he could recover only a nominal sum.

The next contention is, that under the common counts, the appellant was entitled “to recover the value of the license paid Howard.” On the last appeal we practically declared this argument unsound. Taylor did not pay Howard “the value óf the license,” in the sense in which these words are used. The license had no value as far as Taylor was concerned. He did not and could not buy it. The expenditure therefor by Howard was merely considered by the parties in fixing ‘ ‘the value of the purchase plaintiff was negotiating for, and the price he agreed to pay,” and as an element entering into “the agreement defendant made not to again engage in the like business.”—Taylor v. Howard, 99 Ala. 450.

The difficulty of making proof from which the damages may be accurately computed, and the injustice of allowing the defendant to retain the full amount he received, while violating his agreement with apparent impunity, furnish a sufficient reason why the plaintiff might have sought injunctive relief in a court of equity, and obtained the specific performance of the contract, (Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 208; Angier v. Webber, 14 Allen, 211, s c. 92 Am. Dec. 748); but these circumstances do not justify us in relieving the plaintiff of the burden of the action he elected to bring, nor in declaring, for his benefit, a measure of damages not based upon sound principles of law.

We have stated the only questions argued in the brief of appellant’s counsel, and having reached a conclusion adverse to him, upon those propositions, we must affirm the judgment. The various rulings of the circuit court, however, have been examined and appear to be in strict conformity with the opinions of this court, on the former appeals in this case, to which we adhere.

Affirmed.