Vischer v. Talbotton Branch Railroad

Walker, J. We do not propose to examine severally the various errors alleged in this chaotic, and unnecessarily voluminous record. We have carefully considered all of them, and will announce the general conclusions to which we have come. [1.] Complainants notified defendant to produce, to be used as evidence, the book of minuteshrept by defendant, of its proceedings. The book was produced, and complainants read various portions of it to the jury'; in one or two instances reading only a portion of the action of the board of directors as there recorded, although other portions of the proceedings of the same meeting related to the same stibject matter. In the argument of counsel of defendant, other portions of the book, not read by complainants, but relating to the same subject matter, were.read and insisted on as evidence already before the jury. This was obj ected to, and “ the Court ruled that the book having been produced on notice, and ¡portions of the same having been read to the jury by the complainants, that the whole of said book, so far as the same related to this matter, was already in evidence, and refused to exclude any part of the same. In Banks vs. Darden 18, Ga. R. 341, this Court says, “ when books are admitted in evidence, they are testimony before the jury, as to all entries a^pertaimwng to the same transaction; still, the party offering “them may select and read to the jury such portions as answer the purpose for which they were introduced by him, leaving it to the opposite party to submit any other part that he may see fit.” This would seem to prescribe the course pursued by the Court in this case. The argument of counsel, as we understand it, is, that only such portions of the book as had been read, was in evidence; [540] and that although the other portions relating to the subject matter in controversy might be read by defendant, yet this would make it the evidence of the defendant and give to plaintiffs the conclusion of the argument, and any othef right which they might have, growing out of the fact that this was the evidence of defendant and not of complainants. It is insisted that the facts in the Banks and Darden case, supra 325, show this to be the rule laid douui by this Court. It is a sufficient yepay to all this now, that no such point was made in the Court below, and this renders -a decision of it here unnecessary, if not improper. Most clearly the defendantshad the right, under the ruling of this Court, to read from the book “ all entries appertaining to the same transaction,” and that was, in effect, what the Court below ruled. If such reading gave complainants other rights, about which we express no opinion now, they should have insisted upon those rights at the proper time, and it is to be presumed would have obtained them. See, also, Wooten & Co. vs. Nall 18, Ga. R. 609. [2.] Was there a contract express or implied entered into between these parties for the construction of the road ? This was the controlling question in the case. Much testimony was before the jury fro and con, and while we are not prepared to say that we would have found the same verdict, yet we do not think it so “ strongly and decidedly against the weight of evidence,” as to require us, on that ground, to set it aside and grant a new trial. There was evidence on both sides, and where there is as much as there is in this case, and the law has been fairly submitted, we are unwilling to disturb the finding. Was the law fairly submitted? We have looked very carefully into all the requests to charge, and the charge as given, and we think the charge was as favorable for the complainants as, under the law, they could ask. The jury were properly instructed as to the amount of evidence necessary to overcome the answer of defendant. They were told that if there was a proposition made on the [541] one side, and accepted on the other, the contract was made ; that if the defendant first violated the contract, complainants were entitled to recover upon proof of the damage sustained by such violation ; and that if complainants, under the authority, or direction, or at the instance of defendant, or of defendant’s authorized agent, expended money and means in preparing to undertake said work, though no contract was ever made, the complainants are entitled to recover the money and means thus expended, upon proof thereof. We think this was submitting fairly to the jury the merits of the controversy. If there was no proposition made and accepted; if there was no breach of contract by defendant; if there was no outlay at the instance of defendant, in expectation of a contract which was not made, where is complainants’ cause of action ? The jury passed upon these issues : the Court below was satisfied with the finding, and we are not willing, under the circumstances, to disturb it. [3.] Much was said as to the proper measure of damages in the case; and it is claimed, especially, that the Court erred in ruling out Mr. Hull’s testimony, introduced for the purpose of showing the amount of damages complainants sustained, or rather what amount of profits they would have made if they had completed the work according to the stipulations of the alleged contract. The jury having found the facts against the complainants, renders it unnecessary to decide what would have been the proper measure of damages in case the finding had been otherwise. Mr. Hull, from a profile of the projected road, makes a calculation of the quantity of work to be done, an “ approximation ” rather, and says “ under ordinarily favorable circumstances some profit should be made on each of the “ items of work at the price proposed. He enumerates various circumstances which it would be necessary to include “ in order to estimate accurately the cost,” and adds, “ then, the weather would greatly affect the result, so that no exact calculation could be made until the job was finished.” “A good deal would depend on whether the hands were able to work, — much would depend [542] on whether they were well or sick, or runaway. If they were sick or runaway most of the time, the contractor would make nothing.” “Railroad contractors, when experienced, do get frequently mistaken, as to underground work, and they sometimes find it to their interest to abandon a contract, and do sometimes abandon them.” The proposition of complainants is to. ascertain, by this sort of testimony, how much money defendant shall pay them. In the Coweta Falls Manufacturing Company vs. Rogers, 19 Ga. R. 417, this Court decides that" prospective profits, which are speculative and conjectural, are usually too remote and uncertain to enter into the estimate of damages to be allowed for a breach of contract.” In delivering the opinion in this case, Lumpkin, O. L, says, “we are inclined to think that this whole testimony, as to the gains which the plaintiff would have derived from this contract, had he not been prevented from realizing them by the delinquincy of the defendant, should have been rejected as too contingent and speculative, and too dependent upon the fluctuation of the markets, the chances of business, and other casualties, as to enter into a safe or reasonable estimate of damages. And in lieu thereof a calculation should have been made of the loss actually sustained by the hire of hands, the interest on the investment, and solid data like these, as the criteria of loss by the detention of the machinery” — page 420. We aré' aware that this case is not, in its facts, like the one $t bar, but how very much alike in the uncertainty of the evidence by which the amount of damages is to be ascertained. Again, in the Water Lot Company vs. Van Leonard, 30 Ga. R. 561, this Court decides, “ that the measure of damages was the interest on the investment for the .time the machinery was not employed for want of water,” caused by the failure of the other party to perform his contract; and affirms the case in the 19 Qa. We are aware that some cases hold that the proper measure of damages is, the difference between the price to be paid and the actual cost of performing the contract. There may be cases where this may [543] be the correct rule, but tbe cases already cited show tbe strong tendency of this Court to discard “ speculative profits ” and be controlled by “ solid data” in estimating tbe amount of damages to which a party may be entitled for -a breach of contract. We do not intend to be understood as laying down a rule for ascertaining the amount of damages a party, for a breach of contract of this kind, would be entitled to. It will be time enough to do so when the case before us shall make it necessary. A, W. Hammond & Son, for plaintiffs in error. B. Hill, for defendants. Judgment affirmed.