88 P. 544 | Kan. | 1907
The opinion of the court was delivered by
Twenty-five assignments of error have been presented. Those not relating to the measure of damages raise questions of fact which have been settled by the verdict and findings of the jury, and cannot be reviewed here.
The defendants insist that in any view of the case the plaintiff could recover nominal damages only. The measure of recovery adopted by the court is stated in instruction 15, which in part reads:
“If you find from the evidence in this case that after the execution of the contract introduced in evidence*156 the plaintiff entered upon the performance of his part of said contract; that he spent money in advertising the merits of said Geuda Springs mineral water; that he expended money in purchasing the necessary equipment so as to carry out the provisions of his part of said contract; that he spent his time and his labor in introducing said mineral water so as to supply the trade of Wichita, and incurred other expenses under the provisions of said contract up and until the time-that said defendants refused to ship said water — had complied with all the terms of said contract, then the-defendants would not have the right to terminate said contract, and if they did so it was a violation of their part of said agreement and thgy would be liable to the-plaintiff in damages for the amount of such expenditures expended in good faith in reliance upon said contract, less profits, if any, you find accrued to him during the time that said contract was being carried out. by said plaintiff. And in this connection you are instructed that the value of plaintiff’s time and labor expended in introducing said mineral water and in carrying out his part of said agreement is to be considered' by you as legitimate element of expense, which is recoverable the same as money actually expended, if you find for the plaintiff as herein instructed. . . . And you are further instructed that if he was unable-to enter a like business or employment at Wichita, Kan., and that he made a reasonable effort to enter-such like business or employment, . . . you may allow him such reasonable compensation for lost time-after the contract was canceled to the time he was able to secure other employment or engaged in business as you may find he is entitled to under the evidence. .. . . You may take into' consideration the loss, if' any, sustained by the plaintiff in being compelled to dispose of personal property which he had purchased for the purpose of carrying on said business and which after said contract had been broken by said defendants, was no longer useful or necessary to the plaintiff.”
We do not think this instruction erroneous; the-measure of damages therein stated is correct as applied to this case. The plaintiff, in order ta carry out the-contract, was compelled to go to the city of Wichita to-live. It was necessary for him to provide proper equipment for carrying on the business, and to incur ex
His time was taken from other enterprises which might have yielded remunerative returns. Money was expended which might have been otherwise invested, all upon the faith and expectation of profits to be realized after a permanent trade had been established. If he had been permitted to prosecute the business during the time stipulated in the contract he alone would have been responsible for the results. But after the plaintiff had made the sacrifice and expenditures necessary to the initiation of this new enterprise the defendants wrongfully cut off all the expectations of growth and development entertained by the plaintiff, and left him without business, with useless equipment on hand, with no compensation for the time and effort expended, and his entire investment a failure.
Under such circumstances it seems but .fair and reasonable that the defendants should reimburse the plaintiff for all the direct losses sustained by him on account of their wrongful acts. We do not think the instruction of the court overstates these losses. No future profits are included; the inquiry is limited to the actual loss sustained. The rule applicable to such cases was thus stated by Mr. Justice Bradley, in United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L, Ed. 168:
“When a party injured by the stoppage of a contract . . . elects to go for damages for the breach of the contract, the first and most obvious damage to be shown is the amount which he has been induced to expend on the faith of the contract, including a fair al*158 lowance for his own time and services.” (Page 345.) “Unless there is some artificial rule of law which has taken the plaee of natural jqstice in relation to the measure of damages, it would seem to be quite clear that the claimant ought at least to be made whole for his losses and expenditures. So far as appears, they were incurred in the fair endeavor to perform the contract which he assumed.” (Page 344.) “If he chooses to go further, and claims for the loss of anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed. It does not lie, however, in the mouth of the party who has voluntarily and wrongfully put an end to the contract to say that the party injured has not been damaged, at least to the amount of what he has been induced' fairly and in good faith to lay out and expend, including his own services.” (Page 345. See, also, 8 A. & E. Encycl. of L. 637; Bulkley v. United States, 86 U. S. 37, 22 L. Ed. 62.)
The general verdict was for $2500; according to the special findings it might properly have been $2889. The court entered judgment in favor of the plaintiff for the.lesser amount. This is claimed to be erroneous, but being favorable to the defendants they are not prejudiced thereby, and have no occasion to complain. There are other errors suggested in argument, but they are principally questions of fact which have been settled by.the verdict and findings of the jury, and cannot be reviewed here.
We have been unable to find error in any of the matters complained of, and the judgment is affirmed.
