Minn. Thresh. Mach. Co. v. Bradford. Defendant offered to show that he told the agent that fourteen farmers had met and engaged him to thresh their wheat consisting of about 500 acres; that the farmers in another neighborhood had also had a meeting and engaged him to do their threshing, and certain other farmers had privately contracted with him to do their threshing; that he also told plaintiff he had these jobs and if he took the outfit at all it had to be ready for delivery by the time wheat threshing season opened, and he gave the order upon the agreement that the outfit would be on hand. The outfit came, but instead of there being a Heineke Feeder, plaintiff sent a Garden City Feeder instead. Defendant, having contracted for a Heineke Feeder and the order for the threshing outfit being one entire transaction for one complete threshing appliance of which the feeder was a necessary part, refused to accept the outfit. Thereupon the local agent put defendant in telephonic communication with plaintiff's superintendent in Kansas City and the defendant was assured that the Heineke Feeder would be sent in a few days. Defendant at that time also told plaintiff that he had the different jobs of threshing above mentioned and unless he could get the feeder within the next three or four days, he would not sign the chattel mortgage or notes; that if the feeder did not come within that time, he would sustain big damages, he would lose all these jobs and then could not afford to buy the machine. There was no offer at any time to lend him the Garden City Feeder but only an offer to sell it to him at a price demanded by plaintiff. Defendant was assured he would get the Heineke Feeder not later than the 17th of June, 1919, which was the beginning of the threshing season; and upon this promise and on this condition he, on June 16, 1919, executed the chattel mortgage and notes, the former describing and covering a Heineke Feeder, and took the outfit, except the feeder which, as stated, had not come. Thereafter, from day to day, promises were made that the feeder would arrive, but it did not come, and finally plaintiff, Minn. Thresh. Mach. Co. v. Bradford. in about 12 or 15 days, notified defendant that it could not send that kind of a feeder; whereupon defendant ordered one elsewhere and it came about a month after the receipt of the other machinery bought of plaintiff, so that defendant was prevented from doing any threshing from the 17th day of June, until the 16th day of July, 1919, or twenty-six working days in that period. Defendant offered to show that his own crop of wheat, consisting of fifteen acres, was ready to thresh on June 16, 1919, and to avoid damage should have been threshed not later than June 25, 1919; that he was unable to get such wheat threshed and it was totally destroyed. He further offered to prove that he lost the jobs of threshing he had secured, and also offered to prove the amount and extent thereof, what he would have received therefor, less what it would have cost him to do the work, that 24 of the 26 working days, in which he was prevented from threshing, were clear days in which such threshing could have been done and offered to prove the amount of threshing he could have done and the amount of loss he had sustained by reason of his being prevented on account of plaintiff's breach of contract. The court excluded defendant's evidence on the ground that he was attempting to prove loss of profits and that such cannot be shown as consequential damages for breach of contract. While such, no doubt, is the general rule, broadly speaking, yet there are exceptions, and this, we think, is one of them. Many cases can he found denying recovery for loss of profits, but it will be found that such denial is based on one or both of the following grounds, namely, 1, because the profits were uncertain, conjectural, or speculative in character and not susceptible of being reasonably ascertained; 2, because they were not deemed to have been within the contemplation of the parties to the contract. On the first ground, such damages are refused because they are not susceptible of definite proof, and on the second, they are denied because they are outside the legitimate scope of the breached contract. But does either of these two Minn. Thresh. Mach. Co. v. Bradford. classes of conditions exist in the case at bar? Here the threshing outfit was bought for a special purpose to be delivered at a particular time and place in view of certain contracts and conditions. And all of these things were made known to the vendor. If now, the only measure of damages is the difference between the contract price and the market value, then defendant is wholly without compensation for the loss he has sustained. But the general rule of damages for a breached contract is that compensation should be equal to the injury, subject to the condition that the damages be confined to those naturally and proximately resulting from the breach and are not within the two classes above specified. [Sutherland on Damages (4 Ed.), p. 187.] The same work on page 228, after stating the grounds upon which the general rule excluding profits is founded, says: "Cases arise, however, in which loss of profits is said to be clearly within the contemplation of the parties, although not provided for by the terms of the contract, and where such profits are not open to the objection of uncertainty or remoteness. An instance of the latter kind is where the contract is entered into for the purpose, in part at least, of enabling the party to fulfill a collateral agreement from which profits would arise, of the existence of which he informed the other party prior to the making of the contract. In such cases the loss of profits from the collateral agreement is clearly within the contemplation of the parties, and is not remote or speculative." The earlier decisions excluding profits altogether have been abandoned under the more modern practice, and the right to recover profits, in actions for breach of contract as well as in tort, is now generally determined by the same rules as govern the recovery of other damages. [8 R. C. L. 501.] So that "lost profits are a proper element of damage when such loss is the direct and necessary result of the defendant's acts, or where, in cases involving a breach of contract, the loss of profits may reasonably be supposed to have been within the Minn. Thresh. Mach. Co. v. Bradford. contemplation of the parties when the contract was made, as the probable result of its violation, and where in both classes of cases, such profits can be shown with a reasonable degree of certainty. Subject to these principles, a recovery may be had for the loss of profits which would have been realized had the contract been complied with." [8 R. C. L. 502.] "Loss of profits growing out of an existing collateral or subordinate agreement may be recovered where they are within the contemplation of the parties when the original contract was made; but, as in other cases of special damage, the defendant must have had notice of the existence of such collateral contract at that time." [8 R. C. L. 506.] It is reasonably clear that damages may be recovered for loss of profits caused by a breach of contract, and that they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent. [Wilson v. Wernwag, 217 Pa. St. 82, 93; See, also, Wakeman v. Wheeler, etc., Co., 101 N. Y. 205; Guetzcow, etc., Co. v. Andrews & Co., 92 Wis. 214, 217, 218; Industrial Works v Mitchell, 114 Mich. 29; Central Trust Co. v. Clark, 92 Fed. 293; Illinois, etc., R. Co. v. Cobb, 64 Ill. 128; Carpenter v. First National Bank, 119 Ill. 352. In Chalice v. Witte, 81 Mo. App. 84, it was held that the ordinary rule of difference between the contract and market price would fall short of compensating plaintiff for a breach of contract and that defendant should be held liable for such damages as would naturally result under the special circumstances known to the parties at the time of the contract and which were reasonably within the contemplation of the parties. [See, also, Mark v. Williams Cooperage Co., 204 Mo. 242, 265; Martin v. Bunkerculler Lumber Co., 167 Mo. App. 381; Sloan v. Paramore, 181 Mo. App. 611; Gourley v. American Minn. Thresh. Mach. Co. v. Bradford. Hardwood, etc., Co., 185 Mo. App. 360; Shouse v. Neiswanger, 18 Mo. App. 236.] It is true, in the last cited case, the damages were not called profits but were denominated under one general head as "rental value" of the building, but the principle is the same, and in the other cases the damages sustained were in fact lost profits even though not strictly so termed. [See, also, 35 Cyc. 643, 644, 646; Skagit R. Co., v. Cole, 2 Wash. 57, 73; Richardson v. Chynoworth, 26 Wis. 656, 660; Stewert v. Power, 12 Kan. 596; Ramsay v. Tully, 12 Ill. App. 463; Neal v. Pender-Hyman, etc., Co., 122 N. C. 104; Abbott v. Hapgood, 150 Mass. 248; Griffin v. Colver, 161 N. Y. 489.] It will also be observed that in this case the use of the threshing outfit and the ability to perform the definite jobs already obtained was the inducement to defendant to enter into the contract, and of this the plaintiff was explicitly informed; and where this is the case, the loss of such profit is the measure of damages. [8 R. C. L. 505.] We do not mean to hold that plaintiff would be liable for any and all profits which defendant might be able to make by going out threshing for whomsoever he could secure as an employer. The profits arising out of that would be too uncertain and the success of such a venture would depend upon too many unknown and conjectural elements. But, in view of plaintiff's knowledge of the special circumstances of the case and the fact that defendant had already obtained the job of threshing a definitely ascertainable number of customers with a definite amount of wheat to thresh, why should he be deprived of the damages arising from the loss sustained by the plaintiff's breach of the contract merely because the money he would have obtained for the same, less his expenses, may be denominated profits and cannot be stated in terms of "rental value" of the outfit, since there is no system of renting such machines and therefore the rental value cannot be given in such market terms? |