*1 1927} Creamery United IRON Works v. Ioe & 125 Co. Vordick, 281 285; v Mo. Light l. c. Scheurich v. 183 Co., Mo.
499; Wade, 600-601; Heman v. 141 Mo. Agency Garlichs Co. v. Anderson, 284 Mo. Under also, these authorities not for 204.] is indulge conjectures this court to as to the actual or market value of these upon stock the mere shares statement in the record that par subject $100 value of each. dispute appeal sixty-one is cannot, say of said shares. We upon conjecture, greater par their actual value than their value, that the total $7,500, is in excess of now, and neither can we after the submission here, permit counsel, by stipulation, of this case upon to confer this jurisdiction court juris when the record not affirmatively does show diction. Jurisdiction cannot be stipulation. conferred thus [State Thompson Pugh inf. ex 298 Bright, 335; ex rel. v. Mo. Bennett v. Bennett, 243 cases, S. W. l. c. In several we have said that 769.] jurisdiction since cannot be conferred by consent, this court will jurisdiction examine the record and determine its cause; over the though jurisdiction questioned by party. [Berniger either Moving O’Brien, Co. v. 234 W. 240 481; S. S. W. Burns v. 680; Co., Prudential Insurance 295 Mo. State ex rel. Lamm v. Mid Co., 878; City 264 state Serum S. W. of St. Louis ex rel. Brick Co. Ruecking 887; 212 Letcher, v. Construction S. W. In re Mo. 269. “On the record in state of the the court of the'first instance 147.] question depends as to which one two appeal,, of.the courts of the.
supreme appellate court, jurisdiction. or the have Hence, the should parties showing must see to it in trial court that the full wish ’’ rely regard case, the future course is made. Tinsley Rombauer, Tobacco Co. Mo. State ex [Addison Gill, Light rel. v. 107 Mo. Also see State ex rel. Electric &Power 44.] Reynolds, The cause therefore is transferred.to Appeals for the St. Louis Court of its determination. Seddon Ellison, GC., concur. opinion foregoing adopted Lindsay, J.,
PER CURIAM: The opinion judges as the of the court. All of the concur. City Creamery Ap Twin
United Iron Works v.
Ice &
Company,
pellant.
Division Delayed Delivery: Speculative Damages: 1. SALE: Counterclaim: Loss Business. A vendor be fails to who furnish for a new use cannot compelled compensate profits might the vendee for the vendee have delivery had made within the time mentioned in made been the contract. Supreme Vou. 317. Missouri, Coubt oe Anticipated only interruption can be recovered for an in an estab- business, only- and then can ren- the amount of actual lished loss reasonably by competent otherwise, proof; anticipated dered or certain expected profits uncertain, speculative permit are too remote to recovery. Where the seller sued for-the to due under balance of an ice *2 be used for manufacture ice, by 8th, March delivered of which was to be delivered but was not fully July May 17th, until the until vendee' cannot recover profits for it its counterclaim ice been the loss of would have made on the sale of July theoy machinery 17th, 1st that on the had the between according agreement plant delivered the the would have been fully by May 1st, equipped operation delay and in and that it the profits deprived plant of of and the it have made from was the the use its would days. Although during sale ice two months and seventeen of those creamery business, proffer proof the vendee had an established of that the purpose supply ice, new of the was to the trade with as th'e knew, delay delivery and that vendor well the in the of the caused during that time a loss ten it the vendee of thousand dollars which would ice, made sale at have from of its fair reasonable market value, rejected, authorizing be instruction return should refused, anticipated a verdict in the for such loss be because the should prospective plant use of the ice the manufacture of sale remote, conjectural were uncertain to constitute a reason- too basis for of such able and-rational special the-ascertainment determination damages. --: -: -: Idle Reimbursement. vendee 2. cannot value of Workmen: damages as an- element recover from the vendor of reasonable expectation employed of the services workmen him delivery a sold the vendor use the manufacturing delivery where, delay notwithstanding plant, a in'the beyond delivery, employed agreed date of the workmen so they shipment, kept awaiting at kept were work in idleness were not period something the most of the time about at delayed performed they no work shipment, at all. machinéry installing after service, in their and no increase Conceding delivery would not have been the workmen was made. shipment anticipation except of the engaged -the vendee' contract, shows where vendee cannot specified recover ' delay. resulting from the loss nor neither Specific A verdict re- Mention. Omission Counterclaim: VERDICT: given a- definite credit which defendant sponsive the issues counterclaim, damages mentioned in its every allowable item amount therein, is determinative
although is not used “counterclaim” the word presented counterclaim. by the 3 Ko ? SS-s- C? Koy tí J «-I ~ o Ul o¿¡ F ' CJI -jit,' a1? ir®®ob to"*S’® F5-'3 [03] «o So - F-g$ V § Gi n h>. <1 £ ~ *? w u®°M 3 g 00 F^a u 5- roí? SIS’"»£?§ I p pM A? O «-( Sg M (cid:127) “ 8ss~‘ SOsf. yJ -3 M «5®» oo 05 O <x> Judge. Bearing, E. M. Court. —Hon. Circuit from Jefferson Appeal Affirmed. GreaMery Ioe & IRON Works v. United appellant. Terry for
P. S.'
damage is recov
sneb
of contract
(1)
“In an action
breach
arising- natu
reasonably
considered
be
fairly and
erable as
things,
usual course
rally,
is, according- to the
within the
to have been
-may
reasonably supposed
breach or such
contract,- as the
made
contemplation
parties when
of both
App.
181 Mo.
Th'irry Hogan,
it.”
v.
probable
breach
result
742;
159;
C. J.
App. 149,
Telegraph Co., 150
6-1;Fitch v.
Railroad,-171 Mo.
287;
Hyatt
App.
19 Mo.
Howell’v.
Railroad,
Harvesting Machine
Implement Co.
App. 92,
Weber
all
(2)
rule,
party
a
is entitled
general
268 Mo.
“As
follow the
to flow from or
legitimate expenses
may be shown
appears that such ex
legitimate
providing
breach of
consequences
reason
penses
of such breach
were the natural
particular case.”
able, having regard to all
the circumstances
‘‘
in giv
law
general
can
'doubt that the
intention
There
be no
party
ing damages
place
complain
in an action on contract is to
*3
good
ing,
by money,
far
so
as this can be done
the same
position
performed.
had
he would have been
contract
been
’’
This,
especially
so
all' the
are known to
defendant.
where
facts
Cyc.'61;
Railroad,
102;
13
App. 92,
Howell v.
171 Mo.
Paper
Graham
v. Newspaper Association,
1006;
Witte,:
Co.
193 S.
81
W.
Chalice v.
91;
244;
App.
Neiswanger,
App.
v.
18
Mo.
Shousé
Mo.
Morrow v.
Railroad,
212;
(3)
App.
general
140 Mo.
17
800.
J.
“As a
rule
C.
party
legitimate
a-
expenses
is. entitled to all'
that he
show have
been incurred
him in an
damáges
honest
-endeavor
reduce the
flowing
following
from
wrongful
applies equally
act. This rule
to actions ex delicio and actions ex
17
806';
coniractu.”
C. J.
Mitchell
v. Yiolette,
220;
203 S. W.
Brewing.
v.
Co.,
Gilwee
195
App.
Mo.
487; Smith
Railroad,
App.
127
168;
Implement
Mo.
Co.
Weber.
v..
v. Harvesting
Co.,
(4)
128 Missouri, case it is bound.in might delay, case ensue consequences that proxi naturally and damages as special delay for such negligent contempla reasonably within which were therefrom mately result special dam with charge the defendant Notice to parties. tion of does bind the will delay, as negligent ages in case of circumstances only such facts information, but positive require situation on same ordinary caution person of put a that will sufficient knowledge or truth are will lead to inquiry that wtell-recognized And a ex defendant. brought to the properly home business general a commercial is too remote rule that ception to the interruption from the is, that the loss speculative Railroad, Morrow may be recovered.” v. business ’established p. 788; Cole, v. 24 Green S. W. 17 J. App. 212; 140 sec. Mo. C. 310; v. App. 96 Frankenthal, Mo. Rhodes 1058; Wolff Co. v. Shirt 6Co., App. v. Shirt Mo. 315; Golman Co., App. 105 Mo. Lumber 491; & Lorton v. Tele App. Eerns Surety 169 Mo. 495; Co., Hicks v. Ocerstolz, App. Mo. v. 90 439; graph Co., App. Gildersleeve Mo. Sherman, 60 App. 21; Brandt v. 65 Mo. 525; Patton, v. Stewart failed to the issues (6) the court determine App. 73. “Where Mo. findings and record counterclaim, it is apparent on on raised pass failed to the issues presented that court or pleadings, this -action con stated both all the causes of action Armstrong, App-. Marshall v. Mo. reversible error.” stitutes 1; App. Baughan, Hitchcock v. 238; Davis, 74 Mo. Henderson v. 1006; Millowick, 203 W. Thresher v. App. 42; S. Gawk Storage & F'uel 170 Mo. Speak, App. 167 Mo. Disbrow App. respondent.
Clyde
John
Williams and
Goshorn
F.
(1)
wages paid
To
to recover
while
entitle defendant
laborers
awaiting
installed,
*4
the arrival of the
be
such laborers
necessity
pay
during
must of
have been under
and idle
awaiting
machinery.
the arrival of the
Morrow v.
Pae.
Mo.
Ry. Co.,
(2)
general
recovery
SEDDON, C. The .is and substance-, plaintiff defend- petition alleges, count at- of which (a copy verified ant entered into written contract whereby exhibit) February petition 10; to as an on tached agreed buy agreed defendant, and defendant plaintiff to sell to production machinery equipment for the plaintiff, and certain application refrigeration, plant equipment, known as an ice and $6,280, payable and four in- price at and for an sum of times; specified ma- $1,570 stallments of each at certain said plaintiff chinery equipment and delivered to defendant -- day March, and was received defendant and Crystal Missouri; City, that defendant made aggregating $3,140, provided first payments, two as con- said tract, $3,140 pay but has failed and due refused to the balance payable contract; wherefore, plaintiff and under the terms of said prays judgment against $3,140, the sum in- with costs, judgment and and adjudged terest that said declared machinery upon a first lien described’ in said contract, and that lien be foreclosed machinery the.
equipment be petition sold thereunder. The second count- of the quantum, whereby plaintiff valebat, seeks to recover sum alleged $40, goods to be the value reasonable of certain and mer- by plaintiff chandise sold’ and delivered defendant at defendant’s request. instance and is, making The answer admits the contract, the written t petition,
basis first count of the and that defendan agreed pay price the contract therein, mentioned but plaintiff denies that machinery. delivered the -equipment March, 1920.- an The- alleges that, swer further inducement buy to defendant said and equipment, essence of said and. - plaintiff agreed ship all of said and. on or before March that defendant told that said ma chinery used', was to be being purchased purpose being used, for the season beginning 1, 1920, ending 1, 920; October knew, and was so informed by that said would have to be *5 delivered and installed and for use on or before May 1, 1920, 317'Mo.—9. op Vol. Supreme Missouri, plaintiff understanding, and notwithstanding agreement
but, said 8, March or before machinery ship, failed to said same; that ship to long thereafter 1920,‘and for a time failed required to which it was material plaintiff to furnish certain failed compelled to was whereby defendant contract, under said furnish charges freight elsewhere; buy that defendant the same that cer machinery equipment; shipments two of said specified dimensions machinery of the size and tain of was not required take down contract, whereby was defendant machinery; plant in order to install the said rebuild the walls of its machinery was appreciable that no amount of said shipped May defendant, under terms of said 4, 1920; until contract, employed workmen, were held readi furnished and who ship 1920, 8, ness to install the March the date provided by whereby contract, compelled ment defendant pay expend large wages workmen, out and amounts for of such awaiting delivery machinery; while the arrival and of said wages meantime, causing pay had increased in the defendant to large out sum because of the increase in of the workmen employed by it machinery; that, to install said at the time of the making contract, of said plaintiff knew, and was informed defend ant, that the fair and reasonable net of defendant’s business for the season May between and October 1920, would amount to $20,000; the sum that, by reason of failure plaintiff ship said on or before March 1920, in accordance with said deprived defendant was of the use thereof for season of particularly between July 1 20, 1920; that, by plaintiff’s reason of perform failure to said contract according to its terms and provisions, defendant suffered actual in the sum of $20,000, for which amount by way of counterclaim, prays judgment against plaintiff. The sec ond petition count of the is not controverted the answer. reply general is a denial, plea -with the that whatever delay, if any, there was in delivery and equipment, or in the- installation of same, was due to the inability procure labor, materials parts, delays due of com- mon beyond carriers the control of plaintiff, for all of plain- tiffstates it is not in damages. liable The execution of the written contract of sale was admitted parties on the trial and the put contract was evidence plain- tiff.' lengthy contract is and consists of several parts, designated, respectively, as a “Proposal,” “Acceptance and Chattel Mort- gage,” and “Specifications.” By the “Proposal,” (called seller) proposed to furnish to (called buyer) certain machinery and production for application *6 '' Creamery CO T—1 T—i Ice & IRON Works United at- thereto “Specifications” tbe refrigeration, as described “De- paragraph: following The'“Proposal” contains tached. accidents, abil- strikes, contingent upon is livery under this contract delays of car- parts, or or materials ity procure labor seller to beyond the control of character delays or rier, of like different or occasioned liable shall not be seller, and the seller “Proposal” of the concluding paragraph any canses.” The such agreements under- promises, no that provides: “It is understood In of the specified.” consideration except as standings exist herein part seller, of the on agreements the contract contained'in buyer agreed (plaintiff) sum (defendant) pay to to seller acceptance $6,280, twenty-five per cent cash when -as follows: cash by buyer; twenty-five per cent when proposal signed of the is twenty-five per machinery ship; cent equipment- to is railway destina- cash and arrives at per days tion; twenty-five thirty said cent cash after railway “Specifications,” at The equipment arrives destination. (defendant) part buyer forming contract, provide that said freight advances, drayage, shall all cash make labor, skilled men and and such other as otherwise disbursements would have to made be seller connection with the erection and ‘‘ plant equipment, installation said all such advances made any agreement item or items for which seller is liable under this by buyer payment to be deducted from last due in cash.” [are] seller, obligated The under pay the terms of the all freight' charges buyer obligated pay and the drayage charges. all ' ‘ ’ ‘‘ ’ ’ ’ caption Shipping Under Instructions, Specifications pro- “Shipments vide: of material and on this contract shall consigned City to Twin Creamery shipment Ice & Company, to be 8, acceptance made on or before March 1920.” proposal of the by defendant herein is February 10, 1920, dated acceptance and the writing was approved by plaintiff February. 16, shipment evidence'tends show that of a of the machin ery equipment:was and' made'oh March 20, 1920, shipment the remainder was made on shipments originating both plaintiff’s factory Springfield, at Missouri. The failure, or refusal, pay 'to defendant the last two installments of the purchase price, aggregating $3,140, is not controverted defendant. The evidence' shows paid furnished for certain .and flanges, asphalt, insulation, and other necessary materials for the proper installation of the equipment, paid freight and other charges, all which should have been furnished and plaintiff under the written contract. Plaintiff admitted, on trial, the furnishing of such items and the making of such advances de You, SupReme Missouri, (cid:127) which $1,030.14, aggregate, amount-thereof fendant, that tbe contract. chargeable properly under
sum is salesman, plaintiff’s- testimony .to show tended Defendant’s measurements plant took defendant’s Bodine, one came to of the manager location with thereof, and discussed defendant’s Bodine, salesman, returned machinery; plaintiff’s ice-making other measurements January, 1920, took- to defendant’s factory manager plaintiff’s went plant; that defendant’s 1920, and' discussed the matter Springfield, Missouri, February, plaintiff’s with purchase of manager, Daily. Schramm, manager, defendant’s testified: one Mr. Daily Springfield there. I-told “I went to and saw him.-that *7 Mr. needing quickly possible, as as I the and needed it was shape get season, I it in to run for- the I wanted to talked to Mr. and the foreman the master mechanic. Mr. Bodine country plant Bodine seemed to be familiar with the ice business. undoubtedly opened He knew when the seasons closed. . . . I gentlemen plant ready operation told those I wanted the ice. May not later than I 1st. told Mr. Bodine that. I -asked if them they hand, they had the material told me had the mate- rial exception on hand with They of the tank steel. said' might have it within a time, short but I can’t recall the exact time. I then told I accept them could’not sign the order and the contract in They this condition. then showed me some old I tank-steel and- asked them that used, investigated could be it, and we and I in- spected it and decided that it could be used it, and decided to take provided they could furnish the other . material. . . The ice usually season begins about the first of locality. this Ordi- narily it thirty wouldn’t days take over plant to install a like this ’’ one, taking into consideration the condition building. of the old Daily, plaintiff’s Mr. factory manager, testified: met Mr. “I. Schramm manager] [defendant’s about the- 10th of February in-my office. That was the time him signed. the order was I told we had the tank. I don’t him making remember a statement he wanted plant operation begin the ice season of 1920. He said he wanted it as soon get as he could it. The tank was the- important thing he was in, interested and we have didn’t the raw steel and we told him that, but I told him we had sufficient-amount of second- hand steel to make this tank and him told we could make an allow- ance price between of new steel and the value of the old steel. agreed He to take steel, the- old because he get could quicker. it X told ; him get we would steel out 8th of March. My .... understanding was getting he was engage in the ice business. We sold him in order might that he engaged become in ice business. At the time we sold it to him we knew it was for Ceeameey & Ioe Ieon Woeks United- know don’t I creamery business. engaging purpose begins creamery business ice and year the time wfhat runs all places it In some State. in this counties year around.”' “I saw Solomon, testified: engineer, Mr. refrigeration Plaintiff’s Mr. Schramm February 10, Springfield about Sehfamm Mr. I there and was salesmen, of our Bodine, one Mr. conversing with was brought Bodine Mr. business. attending some other at the time close the about to he was told me office and into the Mr. Schramm fur said he had Bodine Mr. with Mr. Schramm.' and that he tank material Mr the second-hand nish Schramm thought I we were early delivery. I told him get an very anxious to take the con away if he would right tank a-position to build this get early it as very anxious to him he Mr. told Schramm tract. would be able to furnish thought we him we possible and we told all that I that was part March. believe latter to him subject that time.” was said on ' equip- to show that Defendant’s evidence tended July plant until defendant’s complétely ment was to the effect that it had em- offered evidence 17, 1920. Defendant kept and had them in readi- to'install the ployed workmen delivery eight weeks, awaiting arrival and for some six ness manager testified equipment. However, defendant’s employed engaged during said time in other workmen so any had not that defendant work *8 actually performed by had workmen, said nor defendant work not any for time which such workmen were idle. There wages during in such was no evidence of an increase labor- employed by prove, by Defendant to ers were defendant. offered way special damages, anticipated profits of from the use of the plant equipment May 1, had the been installed on July 17, 1920, that, by delay instead of on and reason of in the delivery equipment, of had the defendant suffered a loss of aggregate $10,000. proof spe- sum of of Defendant’s offer of rejected damages by objections upon cial was trial court, the the plaintiff ground thereto, on the that the offer of did not con- proper damage stitute a element of based upon conjec- was mere speculation. -Plaintiff, objections ture over the defendant, in- tending delay troduced evidence to show that the shipment in of the inability plaintiff procure due to the material, and to an interruption railway traffic, by caused a strike of rail- way embargo and an by railway switchmen shipments, carriers on less than car-load lots. admitted,
Defendant trial, delivery plaintiff on the by the of the goods and merchandise mentioned in the second count of the petition, Missouri, Yol. 317. SUPREME fair and reasonable charged is the price of therefor .$40 merchandise.
value close of plain- evidence at the to the Defendant offered demurrer evidence, all the which again at close of case-in-chief, tiff’s The'court, at the re- by trial-court. demurrers were overruled jury that, if believed and.found quest plaintiff, instructed the and, .agreed sell,, plaintiff defendant the evidence that mentioned; first buy, count in. by shipped and petition, of the and that the same was .delivered plaintiff to and was received defendant Crystal City, Missouri,-then.the jury in its s'hould.find plaintiff petition issues plain- for on the first count of .the and assess damages $3,140, .amounts, any, tiff’s if at the sum of “less such ad- paid by freight express vanced telephone or defendant charges, amounts, any, and less such if disbursed defendant buying furnishing character, materials of kind and .which by plaintiff plaintiff the contract were to be furnished and which furnish, failed to .any, and less such amounts, defendant .which compelled pay altering out and material in labor walls building of the changing any equipment, alteration .the or. which change necessary by plaintiff’s was made failure furnish ma- chinery proper size and character.’’ Defendant asked give (hereinafter the court to two instructions referred to opinion), presenting theory recovery defendant’s upon its counterclaim, which instructions were refused the trial court. returned, following verdict “We, form: jury in cause, the above-entitled find plaintiff issues the-first petition count of its in the sum of $3,140, less the sum of $1,030.14 to which credit, is entitled to and we therefore first, find the plaintiff on- petition count of its and. we assess its net on said count at sum $2,109.86. And we further find the issues for the on the second count of its petition in -(Italics of $40.” ours.) sum Judgment was entered for $2,109.86 the net sum of upon the first count of the petition, and in sum upon $40 second count of the petition, in accordance verdict, with- said motions for new trial and in judgment-were arrest duly filed Upon defendant. overruling of said motions, defendant was al- appeal lowed an to the St. Louis Court of Appeals, court, *9 its own motion, transferred the upon cause to this court ground that the amount in dispute, costs, exclusive of jurisdic- exceeds the tion of the of Appeals.
I. Appellant makes a number assignments of of error. Several assignments, however, by not briefed appellant,' and we will Creamery Ice IRON & Works UNITED confining op.in-. our abandoned, as assignments treat such therefore and, are briefed assignments which those rulings herein to ion assigns Appellant appeal. on this upon by appellant clearly relied offer,of proof; defendant’s rejection by trial court of error .plant of ice the use the. profits from prospective, anticipated, of plain-. delivered.,by equipment been equipment had the use on Anticipated have been installed time to tiff in Profits. 1920, of July 17, date 1920, instead of on counsel on defendant’s proof, as made installation. offer prove “I offer now trial, out in the record: set thus manager, that, Mr. ih this witness Schramm] addition- [defendant’s making: (defendant)- company making business, as this ice a profit on a and reasonable if cream, ice and with fair its.business 1920, on the May, and' not plant had on the 1st of this been installed installed; they-lost a busi-: day 1920, it was July, 17th ’’ thousand dollars. ness, value, at fair market of ten a and reasonable assigns trial court of also the refusal Appellant error de- upon the requested A, hypothesized Instruction which was fendant’s parties plant equip- ice agreed that the. facts that between season for. ment was for use the ice to be in time year so' 1920; ship said that- season it could be installed and used for 1920;- plant 8) to ship failed said ice on or before March plant ship reason of failure to so said ice that,, plaintiff’s deprived equipment, use of said defendant was instruction, year refused the ice season for hypothesized jury, would if found the facts have authorized the against plaintiff, true, to be to find the issues for defendant equal value, any, “in an amount as the counterclaim such will plant beginning the use of said ice “In- season of until said ice was installed!” assignments single error are asmuch as two to be ruled principle, law, assignments will to- rule, we consider the two - single gether involving question but a of error. ground
Appellant, foregoing assignments error, as the principles or rule of in 1854 relies law announced English Hadley Baxendale, l. case Exch. c.
principle has seemingly England well become rooted the case-law of America, that, parties to the effect “where two have made a. broken, contract which one of has- them which the other’ party ought respect receive in breach of contract should be such may fairly reasonably such as arising be considered either nat according i. urally, e., of things, the usual course from such breach may reasonably itself, supposed of contract to have been contemplation parties, both made the con *10 op 'Supreme Missouri, Yol. Appellant contends breach of it.” of1 probable result tract, in law, principle of foregoing falls within case instant that to show herein 'evidence tends asmuch as' defendant’s purchasing the defendant was by defendant, that knew, and was told and that the season ic'é-plant for the by May 1, in time to be shipped and must delivered be would lose season, otherwise beginning of the ice season, or at least during such the ice use of installed, could be the' part of the season until weight' hand, that, contends Respondent, for use. on the other spec anticipated profits remote, prospective are too authority,- contingent' proper ulative; to constitute a element uncertain1 damage recovery, and, no -hence, that the trial court committed rejecting proof error in and in defend defendant's offer refusing requested ant’s A aforesaid. Instruction general rule, As-a expected anticipated profits of. a commer uncertain, speculative permit- cial business are too remote recovery subject rule, a general however, loss. This their exception recognized profits interruption that loss recovered, provided established business be the amount of ac reasonably proof; loss rendered competent certain tual but seems-that all such appear it must be made cases the business which is claimed to interrupted have been one, was an established and that successfully such business had been and profitably con ducted, and had established, such a trade' -length- such of time anterior to interruption anticipated profits business that the interruption may such reasonably be ascertainable. C. J. [17 795, 796.] court,
This in Weber Implement Company v. Harvesting Machine Co., 268 Mo. 363, while recognizing principle the rule or of law stated in Hadley v. Baxendale, supra, and contended appellant here in, clearly announced that such rule speculative does not include profits, or consequential accidental or losses, problematical or the profits of bargains. future Likewise, in Railway Morrow v. App. Mo. Springfield Court Appeals anticipated held that profits are only recoverable when they are reasonably made certain by proof present of actual facts which data for a rational estimate amount, of-the profits, such -and, in-order to recover such'antici pated -profits, proof must expenses show the and income of the business for a reasonable time anterior to the interruption of such business, or facts equivalent import, without which indispensable basis, showing there no -rational by which a reliable estimate of profits future can be made, and without such anticipated d expecte profits merely conjectural are speculative. So, Sloan v. Paramore, 181 App. 611, the St. Louis Court of Appeals, Creamery &Ice IroN Works v. United busi profits of a commercial recognizing probable the rule that while damage their extent legitimate where element can ness constitute that, certainty, ruled where nevertheless shown with reasonable contingent conjectural, no speculative, purely - and, furthermore, respect them, recovery with can be had *11 . try profit opportunity to make a is of too the mere loss of an early compensated damages. in In the case of uncertain value to Taylor in Taylor 313, Maguire Maguire, 12 Mo. v. wherein sued Taylor way assumpsit building hull, sought, by a boat anticipated' profits counterclaim, claimed to have been recover Maguire to deliver'the- boat hull until lost because failure ‘delivery, in contract specified months such two after damages 'be special this that such were not recoverable court ruled cause, cause, specu under in that too remote opinion Taylor Maguire, supra, approv The in v. cited lative. was ingly by Callaway Mining Manufacturing in Company this court & Clark, 305, wrongful v. 32 which was an action for the seizure and detention of a steamboat under an attachment which was dis - charged, jury, determining and it held in that that- was case in damages, -permitted speculate could not be as what-might, might not, earnings profits have been the of the boat period of detention. appears It ice-making from the record herein equipment, which contracted to furnish to original new use, was furnished for a new and repairs from previously existing made to distinguished which had been in use in an Sedgwick, established business. in his recognized (9 Damages Ed.) 183, text on sec. announces this rule: (vendor) “Where fails to furnish machinery for a use, new compensate -plaintiff (vendee) he cannot be held to profits might he Corpus have made.” In 17 Juris the rule slightly in thus stated different form:’ “Where a new business or enterprise damages by way floated and profit are claimed for interruption its prevention, they will be denied for the reason that an adventure, distinguished’ business is from an established business, profits and its speculative are remote, existing only anticipation.” foregoing announcements of the appar- rule are ently amply supported by adjudicated cases. Manufacturing In Howard v. 139 U. S. action
plaintiff to recover from price defendants the contract for furnish installing ing new mill, defendants’ flour it was anticipated ruled that profits, resulting from grinding wheat into selling flour and the same had the been installed at specified date in could not be recovered under defend ants’ counterclaim, alleged special damages arising from delay op StjpRemb Missouri, Yol.
138 anticipated machinery, such loss installing furnishing than direct speculative rather being to be remote profits held Company Mc v. Machine Likewise, Blymer Ice and immediate. v. Company Ice Pure 48 Ann. and Consumers’ Donald, La. in facts to similar in their quite App. 519, cases Jenkins, Ill. on the prevented breach of profits, case, anticipated stant machinery with ice-making and install furnish of the' vendor to by the vendee not recoverable stipulated are held to be in a time^ to constitute conjectural and remote, uncertain because are too of contract. vendor’s breach 'of occasioned the basis Manufacturing Company Rogers, like effect Coweta Falls To Smith, 60 Ill. 65 Kan. Frazer v. Durkin, 19 Ga. States Hoffman, 107 Company v. 145; and & Machine Winslow Elevator Mo. 621. special claim by appellant support of "proof offered
damages by prospective way anticipated use July -plant equipment- period 17, T920, for the remote, conjectural, opinion, in our too uncertain and to constitute *12 reasonable ascertainment and and rational the determina basis damages, trial special tion "of súch the court did not err in re jecting proof anticipated in refusing the offer of de A, purpose fendant’s Instruction the instruction was special submit the ascertainment and determination of such jury. assignments .to the aforesaid against error must be ruled appellant. Appellant assigns
II. by error in the refusal the trial court B, deféndant’s purpose Instruction of which was to submit jury, as damage recovery under defendant’s element counterclaim, the fact “that compelled defendant was keep, readiness, willing did keen workmen readv. and able Idle to install said at a time when defendant did Workmen. not may need the services of said workmen.” While it granted, be. under ruling our Beeson, in Hammond v. that, an action for contract, injured breach of party by the is entitled to recover, by way special breach damages, the reason able value of the services of employed workmen by him, while such workmen are necessarily idle because by breach of the contract opposite party, appellant nevertheless the has failed to show its, proof herein that the employed by workmen it to install the ice plant, kept were awaiting shipment idleness delivery of the equipment; neither there any proof herein of an increase of workmen the interim between the daté of engagement their and the date of delivery equipment. Oii the contrary, appellant’s manager kept testified he the work- Creamery Í39 Ioe & United IRON Wores idleness;” that them out of keep “to at work- around men ’’ ‘ that the workmen something; all the time ‘they worked most or service no work they performed paid any time when not were it seems proof, appellant’s being scope and extent .the .at all. Such it suf fact that establish the appellant failed to apparent to-us employment workmen damage by reason of any'loss .or fered ship plaintiff’s failure consequence as a Assuming that it specified contract. in the the time within workmen would reasonably appellant’s inferred from engaged they time were engaged by at the not have been being made shipment except expectation of- the specified nevertheless plaintiff within performed at all times 'workmen proof herein tends to show that the any appellant some service for also damage, any, if result Hence, loss or were idle. time ship within the ing plaintiff to from the failure of expenditure outlay time, respects defendant’s separable appellant’s under employed, is not measureable labor proof herein, required ascertain and determine such jury, and a only guess as to the amount damages, have hazarded mere could herein, scope appellant’s proof . In of the limited thereof. view rightly refused defendant’s Instruction think that the trial court we B aforesaid. Appellant assigns accepting
III. the trial error court Appellant rendering judgment verdict and in thereon. claims that specific' incomplete, verdict is in that it contains no affirmative finding upon counterclaim and fails to determine the defendant’s counterclaim; hence, presented Responsive responsive is- claimed that verdict is not to all the Verdict. rajse(j ^y pleadings, sues herein. It is true that the verdict does not appellation, mention the counterclaim name or but it pass does not follow therefrom that the did not *13 presented by determine the issues the counterclaim. On the other hand, quite it is apparent, think, viewing language we form and the of light pleadings the verdict ih proof the herein, the that jury pass upon the did by Consider and' all the issues raised the pleadings. Plaintiff, petition, pleads the first count of the the written contract parties February 10, 1920; made the on that, 'in furnishing consideration of equipment by the of the ice plaintiff, pay' defendant plaintiff aggregate to the sum of $6,280, in'four" $1,570 each; installments of that defendant made the first two payments, pay installment but balance, failed to the last two installments, amounting $3,140, plaintiff to for which sum prays judgment against defendant. The making answer the admits op Supreme Missouri, Yol. agreed to and that defendant petition, pleaded in the of tbe -and, petition, in the price plaintiff as mentioned the contract
pay compelled pay to counterclaim, alleges that defendant way of telephone charges, freight and money for a sum of out considerable necessary for the insulating other material flanges, asphalt, and for labor equipment, machinery and proper installation the rebuilding walls of its taking down and used and material machinery, all of which install said plant in order to accomodate chargeable plaintiff under alleged to to be items or advances deprived of the contract; that and, furthermore, defendant therefrom, and the equipment, use beginning May 1, ending season, a on on money compelled pay large July 20, 1920, to out and was sums keeping employed in readiness to install the reason workmen machinery at plaintiff a time did not' have the on ground 'damage install, for all of which items of prays $20,000. judgment against plaintiff defendant in the sum of plaintiff proof concedes, shows, that the defendant made aggregate covering $1030.14, sum of certain advances items damage alleged counterclaim, in the properly items were chargeable plaintiff under the contract. The claim for loss of anticipated profits, ruled, as we have recoverable item of damage proof under herein; likewise, the claim for paid to employed workmen install the is not a recoverable item damage, the reason is no support there of loss to damage. Upon claim herein, only the record items of damage loss or recoverable defendant under its ag- counterclaim gregated $1,030.14. the sum of The. verdict “"We, jury reads: cause, the above entitled find the issues for on the first count petition of its $3,140, sum $1,030.14 less sum of which, credit, is entitled to and' therefore find the we. issues first petition count of its and we assess net on said count at the $2,109.86.” sum of The judgment follows verdict, in that it is adjudged and' ordered therein .that plaintiff, “the United Iron Works, Inc., a corporation, have-and recover of and from City Twin & .Creamery Ice Com- pany, a corporation, the first petition, count of its the sum of $3,140, the sxim $1,030.14, less making $2,109.86.” net sum It seems plain, and we think is irresistible, conclusion jury, by verdict, their allowed to defendant all of items loss damage which we find be recoverable under the counterclaim. doing, In so necessarily .upon determined passed .and all raised the pleadings, and expressed therefore the verdict the net result of findings their of the entire controversy. solution Where, from record, the whole the conclusion is irresistible *14 ' n v, -Laible Wells. presented the counter- jury did consider and determine tbe regarded responsive to al- should be the issues claim, the verdict though not mention the counterclaim name. it does [Nowell 232; Cosgrove App. Stange, App. 194 Mo. Mode, 132 Mo. analysis an
wherein is be found exhaustive review and of the subject.] cases on the
Finding herein, judgment no error the record reversible G., court the trial must be affirmed. It is Lindsay, so ordered.. concurs; C., sitting. Ellison, not PEE foregoing opinion CURIAM: The C., adopted is SeddoN opinion
as the of the court. All judges of the concur, except Gctyntt, J., sitting. not Margaret Laible, Appellant, v.
Elizabeth
Receiver
Wells,
Rolla
Railways
Company
United
of St. Louis.
Division Testimony. 1.ADMITTED CASE: Discussion Conflict plaintiff’s On appeal conflict judgment from a necessary for defendant alleged is to discuss testimony,- in the where defendant In its brief admits that the evi- dence behalf of jury. made a case for her for the Testimony Aged 2.PALL: Violent Jerk: conception Woman. The of a seventy-two years age just woman how the accident occurred she was thrown down in a street car not be as clear as that of one of age, easy any just less the ear is nor is it an matter for one to tell how he falls when suddenly violently jerked. Necessary STREET CAR: Violent and Unusual Jerk: Incident. To start jerk, give a street car with a violent and unusual or to a street cause car to jar, jerk jolt, speed moving a violent or unusual car passengers or or to accelerate the of a negligence, places a violent or unusual because either jerk, peril, passenger injury to a results therefrom the car- damages. jerk rier is liable for gence negli- Nor is such violent unusual less operator thought jerk because such violent and unusual neces- sary car, starting speed. toor the acceleration of its Contradictory: Necessary -: -: 4. two unusual Instruction: Incident. paragraphs .instruction, the-jury charges which in one that “an jerk jolt-is or violent not that character of movement which is ordinarily necessary operation car,” aof street and in another tells you “if find them that and -believe from the evidence that the movement of necessarily question only'such time movement the car car, operation though jar, jolt to the even it did amount to a incident your therefor, jerk, nevertheless, the defendant would not be liable defendant,” against in favor of the verdict must be inconsistent, misleading prejudicial. negli- properly first defines Besides, gence, second omits or violent.” second “unusual but.^the jars jolts erroneous, jerks, do paragraph not-ordinarily accompany “violent' or unusual” because starting car, nor are such violent or street