Walter Box Co. v. Blackburn

RICE, J. This suit was brought by appellant against Wm. D. and Nathaniel T. Blackburn, as independent executors of the estate of Annie L. Blackburn, deceased, to recover damages in the sum of $957 on account of a breach of a rental contract, alleging that they had entered into a written contract with said parties, whereby they leased to it for a period of one year, beginning May 1, 1911, a certain storehouse for the purposes of conducting a mercantile business in the city of Taylor, and that possession was withheld from it of said building from the 1st of May, 1911, to the 6th day of July, 1911, during which time plaintiff sustained a net loss in profits to the amount of $700, together with $220 it was compelled to pay its manager, McKinzie, as well as $37 moneys expended by it for storage, drayage, and demurrage. The appellees answered by general demurrer, special exception, addressed to the claim for special damages on account of loss of profits, a general demurrer, and further that if they were liable at all the Hoch Hardware Company, a private corporation, was liable to them for a like amount, asking that said company be made a party, and for judgment over against it in the event that appellant recovered against them, and also for an offset against appellant for rents on said building, which had not been paid. The Hoch Hardware Company answered adopting the demurrers of appel-lees to plaintiff’s petition and by general denial. There was a nonjury trial, resulting in a judgment in favor of appellant against appellees for $37 and interest thereon from May 1, 1911, to date of judgment, and in favor of appellees for a like amount against the Hoch Hardware Company, and in favor of appellees against appellant for $464 for rents from July 6, 1911, to May 1, 1912, adjudging costs equally against appellant and the Hoch Hardware Company, from which judgment appellant prosecutes this appeal alone against the appellees. A special exception was sustained to that part of plaintiff’s petition seeking to recover damages for loss of profits pending the time the building was withheld from plaintiff, on the ground that the damages claimed were uncertain and speculative, and therefore not recoverable. As a basis therefor, the petition set out facts showing that plaintiff, two years before it had rented the building, had conducted a similar business in the city of Taylor, and that, before making the present contract, its president had talked with many of his friends and old customers who had promised their patronage, and that the building so rented was as well located as the one in which appellant had formerly conducted its business, alleging that it would have realized a net profit of $700 during said time, if it had not been denied possession of said storehouse. It further alleged that, after plaintiff did get possession of said storeroom on the 6th of July, it realized net profits from its business between that time and the 6th of October in the sum of $1,500. [1] We think this demurrer was properly sustained, for the reason that such profits were uncertain and speculative, and the facts pleaded did not warrant their recovery. It appears from the allegations of the petition that appellant had no established business at the time. There was nothing upon which to base an estimate of the profits that it would have made, nor is it certain that it would have made any profits. It is said in Eraser v. Echo Mining Co., 9 Tex. Civ. App. 210, 28 S. W. 714, that “damages in the nature of lost profits cannot be recovered for delay in furnishing material for a smelter, where it is not shown with certainty that the smelter could have been operated at a profit.” [2] Where the loss of profits can be shown with reasonable certainty, the rule seems to be that they are recoverable; but in the present case it does not appear that if plaintiff had conducted the business during said period of time it would have made any profits whatever. The uncertainty does not depend upon the difficulty of proof as to the exact amount of damages in such cases, but upon the determination of ' the fact as to whether or not there would have been any profits at all. In the present case it is entirely problematical as to whether appellant could have operated such business at a profit or loss for the period it was deprived of the building. It had no going or established business upon which to predicate such a claim for profits, as was the basis of recovery in American Const. Co. v. Caswell et al., 141 S. W. 1013. It is true that it alleges that two years before it had conducted a similar business as the one proposed in the same town, and it alleges that it had talked with and obtained assurances from former customers that they would again favor it with their patronage ; but it is not alleged nor shown wheth [222] er such former business was conducted at a loss or profit, nor does it appear from the petition that similar conditions existed as when such former business was conducted. It is true, it is alleged that for three months after it obtained possession of the building it made a profit, stating the amount; but this was at a different season of the year— during the fall — and, as a matter of common knowledge, business is much better then than at any other season. [3] As said by the Supreme Court of Maryland in Lanaham v. Heaver, 79 Md. 421, 29 Atl. 1038: “The profits claimed must be free from speculation and must be sufficiently certain to be capable of adequate proof; they must not depend on the chances of trade, but upon the market value and other facts which are susceptible of definite proof.” In Fraser v. Mining Co. supra, among other things, it is said, quoting from United States v. Behan, 110 U. S. 344, 4 Sup. Ct. 81, 28 L. Ed. 168: “Damages may be so uncertain, contingent, or imaginary as to be incapable of adequate proof; and there they cannot be recovered, because they cannot be proved. But when it is certain that the damages have been caused by breach of contract, and the only uncertainty is as to the amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach.” Further, the court, quoting with approval from Wakeman v. Manfg. Co., 101 N. Y. 209, 4 N. E. 264, 54 Am. Rep. 676, says: “The rule that damages which are uncertain or contingent cannot be recovered, does not embrace an uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but an uncertainty or contingency as to whether such gain or benefit would be derived at all.” See, also, the following cases: Graves v. Brownson, 120 S. W. 560-563; Alamo Mills Co. v. Hercules Iron Works, 1 Tex. Civ. App. 683, 22 S. W. 1097; Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S. W. 448; De La Zerda v. Korn, 25 Tex. Supp. 188-194; 13 Cyc. 36, par. E, Profits; 13 Cyc. 59. [4] By its second assignment it is insisted that the court erred in refusing to render judgment for plaintiff for the sum of $220 for money paid to McKinzie, its manager, from May 1 to July 6, 1911, because the proof showed that plaintiff was entitled to recover for such amount. Plaintiff alleged and proved that it had paid McKinzie $220 as manager during the time that it was kept out of the use of the storeroom; that this amount was reasonable and necessary; that appellees at the time the building was rented knew that the business would be conducted by employSs, as shown by their written contract. It was further shown that appellant employed McKinzie immediately after making the lease contract with appellees and ordered its goods, which arrived on the 1st of May; that McKinzie could not obtain other employment for the reason that he, from time to time, was promised the use of the building by appellees, and was continually expecting to get it. Appellant was therefore compelled to pay McKinzie under his contract, for which it received no benefit or return, and this was brought about by ap-pellees’ failure to furnish the building in accordance with their contract. We sustain this assignment and hold that the court erred in not rendering judgment in behalf of appellant on this item in the sum of $220, with interest. [5, 8] It is insisted that the court erred in rendering judgment against plaintiff for one-half of the costs in this case, and in not stating in the' record the cause therefor, for the reason that the plaintiff, being the successful party, and there being no judgment rendered in favor of the defendant Hoch Hardware Company, no part of the costs should have been adjudged against the plaintiff. We overrule this assignment, because appellant did not make the Hoch Hardware Company a party to this appeal. Besides, it does not appear from appellant’s brief that this matter was called to the attention of the court below, either by motion to retax the costs, or in any other way, without which it cannot be made the subject of review. See Valentine v. Sweatt, 34 Tex. Civ. App. 135, 78 S. W. 385; Hoskins v. Velasco Nat. Bank et al., 48 Tex. Civ. App. 246, 107 S. W. 598; De Cordova v. Rodgers, 67 S. W. 1042; Bridge v. Samuelson, 73 Tex. 522, 11 S. W. 539. The remaining assignments have been considered and are regarded not well taken. Believing that the court erred in not rendering judgment in favor of appellant for the sum of $220, as above indicated, its judgment is now here so reformed as to give judgment for appellant for said amount, which should be subtracted from the amount of the judgment recovered against it by appellees, leaving judgment to stand in favor of appellees for the sum of $244, with 6 per cent, interest thereon from the 25th day of April, 1912, and, as so reformed, the same will in all things be affirmed. Reformed and affirmed.