United States Auto Co. v. Arkadelphia Milling Co.

HART, J., (after stating the facts). It is insisted by counsel for appellant that the court erred in giving instruction No. 10, which is as follows: “If you find for the plaintiff, the measure of damages will be the profits, shown to a reasonable certainty, which the plaintiff would have gained by virtue of carrying out the terms of their contract with the defendant, and by profits is meant the amount of the commissions on sales of cars, less the cost to plaintiff of effecting the sales.” (1) The subject of profits as damages is well recognized in the law and when the direct purpose of the contract is to enable one of the parties to earn commissions or profits, lie is entitled to recover profits actually lost as his damages for the breach of the contract by the other party. Uncertainty as to the amount of damages does not prevent recovery, but uncertainty as to whether any benefit or gain would have been derived at all does bar a claim for damages. Hurley v. Oliver, 91 Ark. 427; Alf Bennett Lumber Co. v. Walnut Lake Cypress Co., 105 Ark. 421; Wilkes v. Stacy, 113 Ark. 556, and Streudle v. Leroy, 122 Ark. 189. See also McGinnis v. Studebaker Corporation of America (Ore.), Ann. Cas. 1917 B and note. (2-3) A comprehensive statement of the rule and one much quoted is that of Justice Lamar in Howard v. Still-well, etc., Mfg. Co., 139 U. S. 199-206, 11 U. S. Sup. Ct. 501-503. “Profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness, or where from the express or implied terms of the contract itself, or the special circumstances under which it was. made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into.” In the case at bar the evidence for appellee tended to show that appellant had shipped it some cars under the first contract, which had been sold by appellee. Appellee had appointed T. B. Griffin as its agent in the sale of the cars. "When appellant canceled the contract with appellee it made a contract with Griffin to sell cars for it in the same territory as that allotted to appellee under the first contract. Griffin sold sixteen cars in that territory and the commissions which would have accrued to appellee, had the sale been made by it, would have amounted to $1,196. Under the provisions of the first contract it was to stand until further agreement by both parties. According to the testimony of appellee it never signed the second contract and never ratified it after-wards. Therefore, according to the evidence adduced in favor of appellee, the first contract was still in force and the court did not err in giving the instruction. (4) Counsel for appellant also assigns as error the action of the court in giving other instructions to the jury. We can not consider these assignments of error for the reason that counsel has not set out in full the instructions given by the court. This court has uniformly held that the instructions should always be set forth in full and that a failure to do it invokes the presumption that correct instructions were given curing those complained of, if they are curable. The object of the rule is to facilitate the work of the court. If each judge was required to explore the transcript to see if the instructions as set out are in the exact language in which they were given by the court, an unnecessary amount of time would be consumed, and a great delay in deciding the case and in preparing the opinion would result. Jacks v. Reeves, 78 Ark. 428; Harrelson v. Eureka Springs Electric Co., 121 Ark. 269, and Morris v. Raymond, 132 Ark. 449. The salutary effect of this rule is apparent in the present case. Counsel for appellant has not undertaken to set out all the instructions. He has only undertaken to set out the instructions of which he now complains. There does not appear to be any inherent defects in them, and under the rule stated above the presumption is that, if erroneous in any respect, the errors were cured by the other instructions given by the court. Counsel for appellant has not set out in full the instructions of which he now makes complaint, but has only set out what he considers the substance of them. In some instances counsel for a.ppellee claim that the instructions as given by the court are not susceptible of the meaning given to them by counsel for appellant in his brief. Hence the judges would have to explore the transcript in order to determine whether the language of the instructions was susceptible of the meaning claimed by appellant before they could proceed to a determination of whether or not the instructions complained of were correct. If the instructions had been copied in full, each judge in reading the brief could go at once to a consideration of the question of whether or not the instructions were correct, instead of waiting to explore the transcript to see if the language of the instructions warranted the meaning attributed to them by counsel for appellant. We find no prejudicial error in the record and the judgment will be affirmed.