Walker v. Jenkins

Bell, J. (After stating the foregoing facts.) Only the fifth and seventh headnotes require elaboration. Where a contract of the character set forth in the statement of facts is breached by the employer, and the salesman sues for damages alleged to consist in the loss of profits which he would have earned directly under the contract but for its breach, the petition will be held good on demurrer if it furnishes reasonable data for computation, and if the loss is such as must have been within the contemplation of the parties when entering the contract. Damages which are the legal and natural result of the breach are not necessarily too remote to be recovered merely because they may be to some extent contingent. Civil Code (1910), §4394; Baldwin v. Marqueze, 91 Ga. 404 (3), 411 (18 S. E. 309); American Chemical Co. v. Rhodes, 139 Ga. 495 (2) (77 S. E. 582); Gore v. Malsby, 110 Ga. 893 (3) (36 S. E. 305); Fontaine v. Baxley, 90 Ga. 416 (5) (17 S. E. 1015); Stewart v. Lanier House Co., 75 Ga. 582 (1); Western Union Telegraph Co. v. Fatman, 73 Ga. 285 (4); Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483 (2) (60 S. E. 279); Tygart v. Albritton, 5 Ga. App. 412 (1) (63 S. E. 521); McIntosh v. Patton, 12 Ga. App. 305 (3) (77 S. E. 6); Mimms v. Betts Co., 9 Ga. App. 718 (1) (72 S. E. 271). Where an agent selling on commission undertakes the sale of an article which is new to the trade, and which is being marketed by a manufacturer previously unknown, and actually solicits and obtains orders for such an article for a period of several months under a yearly contract, and where, the employer then breaches the contract approximately five months before its termination, the sales made during the period of time in which the salesman was actually employed may furnish a reasonable basis for estimating the profits which he would have realized under the contract during [244] tbe remainder of the term, provided the loss thereof arose naturally and according to the usual course of things and is such as the parties contemplated or reasonably might have anticipated when the contract was made, as the probable result of its breach. Civil Code (1910), §§ 4394, 4395; Baldwin v. Marqueze, supra; Chappell v. Western Railway of Alabama, 8 Ga. App. 787 (1) (70 S. E. 208). A salesman after working a certain territory for a considerable period may, in the absence o£ a change in conditions, reasonably anticipate that at least for a limited time in the future his sales may be measured by what he has done in the past. His efforts have resulted ’in sales in the past. Nothing else appearing, it is reasonable to assume that with the same efforts his sales will continue generally throughout the territory, within the period of ordinary human foresight, in the same volume. He cannot anticipate or allege that he might have made sales to any particular person or persons, for in the very nature of the business his orders will be received at uncertain times and from uncertain persons in his territory, depending on his diligence, competition, and other contingencies. The results of his efforts in the past will be some assurance of what he might accomplish in the future. We think that the petition was good as against a general demurrer, inasmuch as the damages which the plaintiff alleged included those which he might properly have laid on the basis of the profits which had been realized by him during the period of the contract in which he Was actually employed. We think, however, that paragraph 26 of the petition was subject to the special demurrer interposed. In this paragraph it is alleged that the plaintiff’s sales for the first month after his discharge would have exceeded those of the last month of his employment to the extent of 25 per cent., and that the sales of each month after his discharge would to the same extent have exceeded those of the preceding month. We think that the petition does not allege sufficient facts to warrant these conclusions as to the increase in the sales, but that here an element of uncertainty and speculation is improperly introduced into the computation of the damages claimed, and thus that the allegations of this paragraph, so far as they aver the corresponding increase in the profits which the plaintiff would have realized, are subject to the special demurrer that the alleged damage was speculative, prospective and [245] not capable of either accurate or just ascertainment. If the contract had been for a longer period, two years for instance, could the plaintiff claim that his sales and commissions would have increased in the alleged geometrical progression to the end of the term? Such a position would be utterly unreasonable, and the declaration does not disclose with sufficient certainty that such increase would have occurred during the approximately five months of the term which remained after his discharge. The reason for the increase in sales as limited by the petition is not such as to justify the conclusion drawn by the plaintiff in respect thereto. In our opinion, the averments in regard to such increase in the sales and resulting commissions during the time subsequent to the plaintiff’s discharge are insufficiently supported by alleged facts, under the ruling of the Supreme Court in American Chemical Co. v. Rhodes, supra, to the effect “that claims of damage under breach of contract that are speculative in character and that are incapable of reasonably exact computation cannot be the basis of a recovery; the mere opinion of an agent selling on commissions, as to what, sales he could have made but for the breach of the contract, does not afford sufficient certainty to be the basis of a recovery in damages.” See also Savannah &c. R. Co. v. Bonaud, 58 Ga. 180 (2); Smalls v. Brennan, 14 Ga. App. 84 (80 S. E. 339); 13 Cyc. 49; 1 Sutherland Damages (4th ed.), 257, §69. But if the defect in the petition may not otherwise be cured, it may be done by proper allegations for the recovery of damages on the basis of commissions on sales during the period, or intervals thereof, in which the plaintiff was actually employed. The question whether he should or should not be absolutely limited to a recovery upon such basis is not presented for decision. What we do rule is that the facts as now alleged in the petition fail to show that he is entitled to recover for the increase of commissions which it is averred he would have earned during the period following the breach. Furthermore, all that we have said is intended to relate to the sufficiency of a pleading, and not to the requisite proofs to sustain it. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.