Frazier v. Clark

JUDGE PBYOB delivered the opinion of the court. It is alleged in the petition oí the appellees that they entered into a contract with the appellant Frazier, to saw for the latter all the timber on a certain tract of land into merchantable lumber, for which they were to be paid at the rate of thirty-three and one-third cents for every hundred feet. They were to begin sawing on a certain day, and continue until they had — 262 — completed their contract; and also, were to saw exclusively for Frazier until the timber was exhausted. They allege they purchased the saw-mill, and offered to perform their contract, but Frazier refused to permit them to go upon his land or comply with their agreement. That they could have sawed not less than two million feet of lumber, and claim that, by'reason o~E the breach on the part of the appellant, they were damaged in the sum of two thousand dollars. There is much conflicting testimony on the issue as to whether any such contract was made as is alleged, but the testimony for the appellees conducing to establish such a contract, and the jury so finding, the principal question arising in this case is as to the measure of damages. The details of the contract are not all given, but only so much as is necessary to determine the legal question involved. The action was instituted within three weeks from the date at which the execution of the contract was to begin. The court below, in instructing the jury, said that as the appellant had admitted that the timber would have produced two million of feet, that quantity at thirty-three and one-third cents per hundred feet is the basis of recovery, and after deducting from it the cost of sawing and stacking the lumber, as provided by the contract, the remaining sum is the amount the appellee should recover. It is made to appear from the testimony that the appellees were running their mill for others prior to and at the time at which the contract with the appellant was to begin; and further, that their mill was provided with all the timber it could saw, from the time — 263 — the appellees bought it until sold by them, paying as much as Frazier’s contract would have paid them. The mill was idle about three weeks and no longer, and continued sawing after it was sold. No loss of work or sawing has been alleged or proven, but, on the contrary, the testimony tends to show that the appellees have sustained only nominal damages. The case is thus presented by the proof: The appellees employ appellants with their mill to go upon his land and saw two million feet of lumber, and not to saw for others until the contract is completed. The appellant refuses to permit appellees to enter and perform their contract. The services of the appellees and their mill were, in violation of the contract, dispensed with, and the appellees, as their own engineer and witness testifies, operated the mill from May preceding the first of June, when the work for appellant was to begin, until Christmas of the same year, and the sawing was as profitable as it would have been if running under the contract with appellant. If, therefore, the appellees are permitted to recover the entire profit that could have been realized on the contract with the appellant, and have run their mill continuously with the same profit for others, they are permitted to recover or make double profits. The amount of recovery in a case like this is the actual damages sustained. Suppose the appellees had brought their action after the time for the performance of the contract on their part, and it had been made to appear from the testimony that they had, by the use of their mill and their own services in running it, made more profit than they could have — 264 — realized from the contract with appellant; will it be insisted that the appellees could recover more than nominal damages. If charged with the profit that could have been made during the period,, it would be just and equitable that appellant should be credited by the value of the use of the mill by the appellees for the same time, and if, in summing up the profits, the appellees have lost nothing, there has been no injury. The instruction given in this case makes the offer to perform equivalent to actual performance, when the appellees were only entitled to the actual damage. They had equally as profitable employment in the same county and neighborhood, and, therefore, lost nothing, looking to their own testimony. The criterion of recovery for the sale and delivery of personal property, where there is a breach, is the difference between the price to be given and the value of the property at the time and place of delivery; but the case presented here is not within that class, and in ascertaining the actual loss sustained, if the appellees, with their personal services connected with the operation of their mill, have sustained no damage, there is no reason for making the appellant pay the profit they have already received, for all the complaining party is entitled to is a just recompense for the actual injury sustained. The principle governing this case is similar to that in regard to contracts for personal service, as in the case of Whittaker v. Sandifer, 1 Duv., 261. Whittaker was to serve Sandifer for one year as an overseer on his farm for a fixed sum. Sandifer discharged him — 265 — after Whittaker had been in his service for some months, and the result was an action to recover the price agreed to be paid for the year’s labor, in which it was held by this court that he was entitled only to the actual damage sustained, and determining, in effect, that if he had equally profitable employment after his discharge, the damages would be nominal. In the case of Petrie v. Lane, 58 Mich., 527, the plaintiffs owned a saw-mill, and agreed to saw 4,000,000 feet of logs, to be delivered by the defendant in a certain year, the plaintiffs to be paid a fixed price for sawing. The logs were not delivered, and the plaintiffs sued for the loss of profits, and insisted that, as a matter of law, they were entitled to all the profits they could have made on the contract, regardless of the actual damage they had sustained. Their mill was not closed, but working all the time sawing other lumber to its fullest capacity, upon which they made like profits, and by giving them the same profits against the defendants, they were doubling the capacity of their mill as well as their profits. As the right of recovering actual damages in that case was disclaimed, the judgment for the defendant was affirmed. This is a much stronger case against the recovery than the case cited. Here the appellant had contracted for the service of the appellees, in connection with the operation of their mill, for such a time as would enable them to saw the timber on his farm, the use of the mill to be applied to the sole purpose, and no other, without the consent of the appellant. There was a breach of the contract by the defendant, and the appellees, with their mill, proceeded at once to saw for others, running contin — 266 — ually for the period of seven months, and until sold by the appellees, making as much or more profit than would have been made if the contract had not been violated by the defendant. There was no sale of the timber to the appellees, or such stipulations in the contract as would bring the case within the rule as to the measure of damages when applied to a breach for the failure to deliver personal property, or in the case of ordinary contracts for the refusal to permit the execution of specified work. The machinery must be used, and not allowed to remain idle that the owner might speculate on the probable profits to be derived from the particular undertaking. If A, with his machine, undertakes to thresh the grain of B on a named day, at a fixed price per bushel, and B declines to permit the work to be done, it does not follow as a matter of law that A can recover the contract price, less the costs of his hands, as his damages. If he should employ his machine in threshing a like quantity of grain for others on the same day, with no loss of time or inconvenience by reason of B’s conduct, the injury is nominal only. In this case there was no allegation of any extra expense, loss of time, of any special injury alleged or proven by the appellees, nor their failure to obtain like employment with like profits, or, if ■ obtained, for less profit than that to 'be realized from the contract with appellant, but a general averment that actual damages had been sustained to the amount of two thousand dollars, when the proof shows that no actual injury had been sustained. Nominal damages should have been awarded. The judgment is reversed, and cause remanded, — 267 — with directions to set aside the verdict, grant the appellant a new trial, and for proceedings consistent with this opinion. Under this view of the case we have not considered the other questions raised. If the appellees can amend their petition, the answer can then controvert the amount of lumber that is alleged could have been made from the timber, etc.