American Steel & Wire Co. v. Copeland

Allen, J. The contention of the defendants is that the-entire contract between them and the plaintiff was in parol, and that the order given for the car of wire, which was shipped, was in part execution of the contract, while the plaintiff contends that there was no agreement outside of the written order. It was competent for both parties to introduce evidence in support of their contentions, and the rule excluding parol evidence which adds to or varies a written contract has no application. The evidence of the defendants as to the conversation with the agent of the plaintiff was not strictly competent at the time it was offered, because it was a declaration after the. event; but it appears that the deposition of the agent was on file, in which he denied the contract as contended for by the defendants, and that this deposition was introduced by the plaintiff, and the declaration of the agent was competent to contradict his evidence contained in the deposition. His Honor could have permitted the introduction of the evidence out of its order, in the exercise of his discretion; and if his ruling was not on this ground, it is not reversible error., because the evidence was made competent by the introduction of the deposition. This brings us to the consideration of the principal question debated between counsel, and that is, whether the agreement, as proven by the defendants, is wanting in mutuality or is so uncertain that it cannot be enforced. ¥e have said at this term, in Elks v. Insurance Co., post, 619, that a contract must be definite and certain, or capable of being made so; and the plaintiff contends that under this rule an agreement on its part, if made, to furnish all the wire the defendants might want, would be too indefinite to create an en-forcible contract. *561 The authorities are not in harmony on this question; some sustaining in whole or in part the contention of the plaintiff, as in Bailey v. Austrian, 19 Minn., 535; Tarbox v. Gotzion, 20 Minn., 139; Drake v. Vorse, 52 Iowa, 419; R. R. v. Bagley, 60 Kan., 425; Harrison v. L. Co., 45 S. E. R., 731 (Ga.) ; while others hold to the contrary view. A contract was sustained in Furniture Co. v. Manufacturing Co., 110 Ill., 427, to supply all the pig iron which the party should need, use, or consume in his business; in Cooper v. Wheel Co., 94 Mich., 272, to furnish such quantity of wheels as he may require during a certain season; in Smith v. Moore, 20 La. Ann., 220, to furnish all the ice they might require for two hotels for five years; in L. Co. v. Coal Co., 160 Ill., 85, to furnish the coal company its requirements of coal for a certain season; in Doiley v. Cam, Co., 128 Mich., 591, to furnish all the tin cans that plaintiff might use in his factory for a stated time; and in Wells v. Alexander, 130 N. Y., 642, to furnish the coal needed for steamers during one year. These authorities would justify us in sustaining the agreement as a valid contract, binding between the parties, at the time the agreement was made; but it is not necessary to go- so far, as it appears that after the shipment of one car, the defendants ordered another, which the plaintiff refused to deliver, ■ and the evidence as to the amount of damages was directed to the loss of sales from this car, and his Honor restricted the recovery to the profits that would have been made on sales to customers who applied for the wire and could not get it. In any event, the agreement constituted a continuing offer to sell, on the part of the plaintiff, which when accepted, before the withdrawal of the offer, became effective as a contract, and the order for the second car was an acceptance of the offer pro tanto. This was decided in R. R. v. Witham, 9 C. P., 19, and is approved in Clark on Contracts, 119-120; 1 Page Con., sec. 307; Bish. Con., sec. 78. The case from the Court of Common Pleas is summarized in Bishop, supra,, as follows: “In one case parties agreed that one of them should supply the other during a designated period with certain stores, as the latter might order. *562 He made an order, which was filled; then made another, which was declined; and on suit brought the defendant rested his case on the lack of mutuality in the contract, which, he contended, rendered it void. Plainly it stood, in law, as a mere continuing, offer by the defendant, but, when the plaintiff made an order, he thereby accepted the offer to the extent of the order, and it was too late for the other to recede. So judgment went for the plaintiff.” ' ' We are also of opinion that the defendants were entitled to recover profits. This question has been discussed so' clearly and elaborately by Justice Walker in Machine Co. v. Tobacco Co., 141 N. C., 284, and by Justice Hoke in Wilkinson v. Dunbar, 149 N. C., 22, in which the leading authorities are reviewed, that we need do no more than refer to those cases. In the first the Court says: “Generally speaking, the amount that would have been received if the contract had been kept, and which will completely indemnify the injured party, is the true measure of damages for its breach. Where one violates his contract he is liable for such damages, including gains prevented as well as losses sustained, which may fairly be supposed to have entered into the contemplation of the parties when they made the contract — that is, such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed. It is the rule last stated which principally raises the doubt as to whether profits of the future should be included in the estimate of damages. They may be necessary to completely indemnify the injured party, and they may also answer the other requirement, in that the loss of them may naturally be expected to proximately result from a breach of the contract; but there still remains another important element to be considered, and that is whether there is any reliable standard by which they can be ascertained, for we have seen that the damages must be certain, and this certainty which is required does not refer solely to their amount, but also to the question whether they will result at all from the breach. It is clear that whenever profits are rejected as an item in the calculation of damages, it is be *563 cause they are subject to too many Contingencies and are dependent upon the fluctuations of markets and the ebances of business to constitute a safe criterion for an estimate of damages. ... It will be seen, therefore, that the earlier rule which excluded profits altogether, as an element of damages, as being in their very nature too uncertain to be considered (Hale on Damages, 72), has been modified so as to permit their inclusion in the assessment if they are proximate and certain.” And in the second: “It is well established that where there has been definite and absolute breach of a contract which is single and entire, that all damages, both present and prospective, suffered by the injured party, may and usually must be recovered in one and the same action, and when prospective damages are allowed, they must be such as were in reasonable contemplation of the parties, and capable of being ascertained with a reasonable degree of certainty. This requirement as to the certainty of damages recoverable is frequently said to exclude the idea of profits, but this statement must be understood to refer to the profits expected by reason of collateral engagements of the parties, or the profits of a going concern to arise from current sales and bargains which are yet to be made, and dependent, to a great extent, on the uncertainty of trade and fluctuations of the market. . . . But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements, something stipulated for, the right to the enjoyment of which is just as clear and plain as to .the fulfillment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed, perhaps, the only inducement to the arrangement. The parties may indeed have entertained different opinions concerning the advantages of the bargain, each supposing and believing that he had the, best of it; but this is mere matter of judgment going to the formation of the contract, for which each has shown himself willing to take the responsibility, and must, therefore, abide the hazard. Such being the relative position of the contracting *564 parties, it is difficult to comprehend why, in ease one party has deprived the other of the gains or profits of the contract by refusing to perform it, this loss should not constitute a proper item in estimating the damages.” In the case before us profits were within the contemplation of the parties. The defendants were merchants and supplied their customers with wire; they had five hundred customers and sent their names to the plaintiff; they were not buying for their own use, but for sale, and the plaintiff knew of these facts. Nor were the profits difficult of ascertainment, as the cost and selling prices were fixed. It is not at all certain that his Honor, on all the facts, would not have been warranted in submitting to the jury the question of damages on the whole agreement, but as he did not do so, and limited the right of recovery, we find no error of which the plaintiffs can complain.' No error.