Terry v. Eslava

By Mr. Justice Thorn-ton : This was an actios of trespass on the case, brought by writ of error from the’Circuit Court of Mobile county; and the error presented for our consideration, is the charge of the court as contained in the bill of exceptions, respecting the [276] criterion of damages. These are alleged to have accrued • from the breach of a parol contract, whereby the plaintiff in ’ error, inter alia, bound himself, in consideration of a certain sum of money, which seems to have been paid, not to use, or permit to be used, certain presses for compressing cotton, in the city of Mobile. It was assumed by the court below, that the consideration paid was the proper measure of damages, in case the jury should believe that the contract had been violated. Now, the consideration of a contract may, or may not, be the amount which a party is entitled to recover, in caso of its breach. Where the contract provides by way of stipulated damages, that the consideration shall be the amount recoverable, those damages, thus ascertained, will not be disregarded, although in point of fact, they may be greater or less than the sum thus agreed upon. In the case presented, we do not consider that there has been any stipulation, regulating the amount of damages which the plaintiff in error shall pay, in the event of a breach on his part; and, however, from the nature of the subject matter of the contract, the ascertainment of them may be difficult; yet that difficulty cannot be overcome or obviated by a resort to the consideration, as ■ their just criterion. There surely was a benefit proposed to accrue to the defendant in error from the non-user of the cotton presses by the plaintiff. The actual benefit which might accrue, would of course, depend upon a variety of contingent circumstances ; so, the injury which he has sustained, is to be estimated, in the absence of any express stipulation, by a reasonable consideration of all the circumstances appertaining to the matter. And although there may be difficulty in determining on the damages ensuing from the breach, it is intrinsic in the subject about-which the parties have chosen thus loosely to contract. The caséis not so moulded by the pleadings, as to present the question of a rescission of the contract; in which case, to reduce the parties staiuoquo, the consideration paid would be sought tobe recovered back; but damages alone are demanded, for an alleged breach of an unrescind277 ed contract; which, as we think, may be either greater or less, according to the circumstances proved, than the consideration paid by the defendant in error. - For these reasons the judgment is reversed, and the cause remanded.