Brown v. Bradford

Hart, C. J., (after stating the facts). The judgment of the circuit court was correct. This court has held that the probable profits to a lessee from the cultivation of demised land is not the true measure of his damages resulting from the breach of a covenant for possession, and cannot be considered in determining the amount of such damages. Rose v. Wynn, 42 Ark. 257; Thomas v. Croom, 102 Ark. 108, 143 S. W. 88; and Reeves v. Romines, 132 Ark. 599, 201 S. W. 822, and cases cited. To attempt to measure the general damages by the probable profits to be had from a performance of a contract like the one in question involves too many uncertain factors, such as the fluctuation in the price of labor and the price of the crop, the weather, and other matters affecting the yield. Any estimate of the quantity and value of the crop must necessarily be conjectural, and the uncertainties in the matter make it very difficult to estimate the profits in cultivating a! farm-. Under the allegations of the original complaint, the plaintiff was to furnish the teams and tools, and cultivate the crop and receive a part of it. The amount of profits which he might receive, on account of the conditions mentioned above, could not even be approximated. The crop might be large or small, depending on the cost of labor and the price of the crop lafter it was raised; and, as we have already seen, this might fluctuate greatly. After the court sustained a motion to make the complaint more definite and certain, the plaintiff filed an amended and substituted complaint in which, in varying form, he made substantially the same allegations, as were contained in his original complaint. It is evident from the allegations of his amended and substituted complaint that his measure of damages would necessarily be the profits to be made in raising the crop, since the ■ rent which he was to pay was a part of the crop, and since he was to receive a part of the crop as his compensation for raising it. The allegation that the rental value was fifteen dollars per acre more than he contracted to pay did not add any element of certainty to the contract. After all, the loss of his bargain depended upon the amount of the crop which he might raise and the price he might receive for it. In the complaint the plaintiff also asked for the recovery of special damages. Now, if his complaint had contained any definite allegation that lie had suffered special damages in any certain amount on account of the expense he had been put to in moving on and off the place and in preparing the land for cultivation, he would, under the authorities above cited, be entitled to recover such amount. He does not allege any certain amount which he suffered in special damages, and would therefore only be entitled to recover nominal damages. His complaint does contain a definite allegation that he and his sons and other members of the family lost sixty days’ work, which was worth $5 per day, but this was not an element of special damages. He should have alleged that he suffered damages in a definite sum on account of the expense he was put to in moving on and off the place and in preparing the land for cultivation. As we have already seen, under the allegations of the complaint he would only be entitled to nominal damages in this respect, and a new trial will not be granted for a failure to assess nominal damages where no question of a permanent right is. involved. The reason is that it is the settled rule of this court not to reverse a judgment unless for prejudicial error, and no prejudice could have resulted to the plaintiff in this action. The court gave him permission to make his complaint more definite and certain either in respect to general damages or special damages alleged to have been suffered by him, and he refused to do so. Therefore the judgment will be affirmed.