United Press Associations v. McComb Broadcasting Corp.

Appellant filed its declaration against appellee to recover the sum of $1,137.85, the alleged balance due under a contract to furnish the broadcasting station news reports. An additional sum of $1,705.42 was demanded for the loss of anticipated profits occasioned by the defendant's breach through cancellation and repudiation. The cause was transferred to the chancery court and the pleadings reformed. The bill on the equity side made the same demands as before. The defendant, hereinafter referred to as the station, filed demurrer, plea and answer, together with a cross-bill demanding the total sum of $27,000 as actual and punitive damages arising out of an alleged failure by the press association, hereafter so called, to furnish adequate news reports. Such also was the gravamen of the answer. The chancellor dismissed the cross-bill and decreed damages to complainant to the extent only of the principal balance past due and owing under the contract, to wit, $1,137.85. The association appeals. There is no cross-appeal. The errors assigned are 1) the failure of the trial court to include interest on the balance past due as of April 12, 1943, the date of the breach by the station; 2) failure to *Page 73 award damages for loss of profits; and 3) taxing complainant such costs as it had incurred. We are of the opinion that the account ought to bear and have added legal interest from and after April 12, 1943, computed to the date of the decree, and same is hereby so amended. Thompson v. Matthews, 56 Miss. 368; Stowell v. Clark, 152 Miss. 32,118 So. 370; Collins v. Carter, 155 Miss. 600, 125 So. 89; Code 1942, Sec. 36. We do not reproduce the testimony to sustain a breach by the station. The finding by the chancellor, and supported by the testimony, implies that there was no breach by the association, and that although the latter was able and willing to continue the services contracted for, the station had unjustifiably cancelled and repudiated the contract. The association was entitled to the net profits which it thereby lost, computed upon the basis of the unexpired term of the contract. Beach v. Johnson, 102 Miss. 419, 59 So. 800, Ann. Cas. 1914D, 33; Mississippi Power Co. v. Cochran, 167 Miss. 705, 147 So. 473; Engel v. Mahlen, 153 Minn. 1, 189 N.W. 422; Steelduct Co. v. Henger-Seltzer Co., 26 Cal.2d 634,160 P.2d 804; Star Chronicle Publishing Co. v. United Press Ass'n, 8 Cir., 204 F. 217; United Press Ass'ns v. National Newspapers' Ass'n, 10 Cir., 237 F. 547; Hale, Damages (2 Ed.) 103; McCormick, Damages (1935) Sec. 142; 25 C.J.S., Damages, Sec. 43; 15 Am. Jur., Damages, Sec. 148. Proof of anticipated profits was adduced by the southern division business representative of the association having supervision over the area in which the station was located. His testimony was uncontradicted that the gross rentals due the association were $45.85 per week, and that the expense of furnishing such services was $21.83 per week. Such expenses allocable to the station's services were broken down in detail. The net profit to accrue to the association was therefore $24.02 per week for 71 weeks, or $1,705.42. That such lost profits were properly computed, and should have been awarded, is sustained by established *Page 74 authority, typical examples of which are above cited. The attack upon the correctness of the award is directed to the failure to include in the expenses deductible from gross profits an allocated portion of the general overhead expenses of the association in maintaining and furnishing its services. Such attack is met by the requirement, born of practical considerations, that the defaulting party may not hold the promisee to more than a reasonable detail. Engel v. Mahlen, supra. In Star Chronicle Publishing Co. v. United Press Ass'n supra, the trial court, in considering this question in a case strikingly similar to the case at bar in all its phases, had instructed the jury to fix damages for anticipated profits, if found, upon the basis of the contract price and the cost of maintaining the office of the appellant. The appellate court stated: "The defendant contends that the profits were not the difference between what the plaintiff was entitled to receive under the contracts and what it cost to maintain the St. Louis office, but there should be deducted from what it would have received under the contracts, not only the expense of the St. Louis office, but a relative proportion of the expenses of the entire business of the plaintiff. We think the measure of damages, as stated by the court, the correct rule." The testimony of the association's representative was clear, concise, and certain. There was flat assertion that the deductions included the entire expense incurred or required to service the station. We therefore amend the decree to allow recovery of such lost profits. Finally, we notice the alleged error in taxing the association with the costs of court incurred by it. Such matter is of course ordinarily a matter of the trial court's discretion. It is reviewable, however, and his own findings as well as our own disclose an unwarranted imposition upon appellant who not only maintained a substantial portion of its demand but procured a dismissal of the defendant's cross-bill. Reinecke v. Gibbs,196 Miss. 247, 16 So.2d 853. *Page 75 The cause will be affirmed as to allowance of the balance due as of April 12, 1943, but reversed and here amended so as to allow legal interest thereon to the date of the decree, and to award to appellant the proven loss of anticipated profits. So ordered. Sydney Smith, C.J., did not participate in this decision.