Wallace v. Tumlin & Stegall

Lochrane, C. J. The main question in this case arises upon the' charge of the Judge in relation to the rule for the ascertainment of damages. Section 2888 of the Code declares, if a contract be entire, but one suit can be maintained for breach thereof. Where money is to be paid by installments, an action will lie for breach, but all the breaches occurring up to the commencement of the action must be included therein. Section — 471 — 2893, speaking of the damages which are allowed for breach of contract, includes the profits which are the immediate fruit of the contract. 2d Curtis, C. C., determining what damages plaintiff was entitled to recover, lays down what we conceive to be a reasonable and just principle by which the jury should be governed. “ He was entitled,” says the Court, “to recover the contract price of the work, deducting the cost of finishing the work.” In the case of the Philidelphia & Baltimore Railroad vs. Howard, 13th H., 344, it is said: “ It is insisted that only actual damages, and not profits were in that event to be allowed by the jury. It must be admitted that actual damages were all that could lawfully be given in action of covenant, even if the company had been guilty of fraud; but it by no means follows that profits were not to be allowed. Understanding, as we must, the term profits in this instruction as meaning the gain which the plaintiff would have made if he had been permitted to complete his contract, actual damages clearly include the direct and actual loss which the plaintiff sustains propter rem ipsurn non habitam; and in case of a contract like this that loss is among other things, the difference between the cost of doing the work and the price to be paid for it. This difference is the inducement and real consideration which causes the contractor to enter into the contract; for this he expends his time, exerts his skill, uses his capital and assumes the risks which attend the enterprise, and to deprive him of it, when the other party has broken the contract and unlawfully put an end to the work, would be unjust. There is no rule of law which requires us to inflict this injustice.” The soundness and justice of this principle cannot be controverted. Where parties enter into contracts they must, in good faith, fulfil them; and when they refuse to carry out contracts into which they have entered, the party injured may pursue his remedy for damages, and the measure of the damages for such breach will be computed by ascertaining the profits of the enterprise, after deducting the legitimate cost, of its execution. — 472 — Another question to be noticed is the newly discovered evidence. Was the letter of Spullock to Tumlin such material testimony as would probably have produced a different verdict. As a general principle we may remark, applications for new trials on account of newly discovered evidence, are not favored by the Courts of justice; and several things must concur to justify a new trial on this ground: First, that the evidence has come to his knowledge since the trial ; second, diligence; third, materiality; fourth, that it is not cumulative; fifth, a new trial will not be granted to impeach a witness. It appears from the testimony of Tumlin and Stegall and Spullock that the contract for a supply of water was separate and distinct, and the letter discovered may be true and yet not inconsistent with this evidence, and would not have changed the verdict of the jury thereon. We lay down as a proposition that where newly discovered evidence is reconcilable with the other proof in the case, a new trial will not be granted: 26th Georgia, 223. On motion for a new trial, if the newly discovered evidence will not change the result, or if there appears on the whole sufficient evidence to support the verdict, the Court will not interfere: Meade vs. Coustaus, Minnesota Reports, 171. In the opinion we entertain of the facts of this case we feel satisfied that there is sufficient evidence, as to the contract for the supply of water*, to sustain the verdict, and the admission of this letter is reconcilable and consistent with the facts testified to by the witnesses; and, besides, the only question raised by such proof would be to the effect that the plaintiffs were to have kept up a wood and water station at Stegalls, which would be cumulative of the testimony of Mr. Dooley, which would be no ground, by unbroken current of authorities, to have granted a new trial. The contract set up by Tumlin as made with Spullock, was to the effect that he, in connection with Stegall, were to supply water at Shanghai station, at the fixed compensation of one — 473 — dollar per day. He proved this by bis own oath; Stegall proved it; Spullock proved it, and the fact itself of the building of the rams, the placing of the pipe and furnishing of the road at that point with water for two years, proved it. Superadded to this, the railroad built a tank at the station. And all this proof, grouped together, made such a mass of incontrovertible evidence as demonstrates its truth, and outside of all other considerations, upon the testimony submitted to the jury and the refusal of the Judge below to grant a new trial, we do not think that there is sufficient in this case to invoke from us a reversal of that judgment. Judgment affirmed.