Crystal Springs Ice Co. v. Holliday

Smith., C. J., delivered the opinion of the court. This suit was instituted in the court below by appel-lee, a retail ice dealer at Hazlehurst, against appellant, a corporation engaged in the manufacture and sale of ice at Brookhaven, to recover damage alleged to have been sustained by him, by reason of the breach by appellant of a contract to sell him ice during the season of 1909. According to appellee’s testimony, appellant’s manager came to Hazlehurst during the month of January, 1909, in order to arrange for the sale to him of ice for the sea [719] son of that year. The contract alleged to have been executed is contained in the following questions and answers which appear in the testimony of appellant himself: “Q. I’ll ask you to explain to the jury how that contract was made, with whom it was made, and all the circumstances connected with it. A. Some time about the first of January, I don’t remember the date, I was at home, and Mr. Ñalty called me up over the telephone and told me that he was in Hazlehurst and wanted to see me, and I asked him to come out to my house; that I was sick and wasn’t able to g’o up in town. He said no, that he could arrange our business over the telephone just as well, and said he was out fixing up his contracts for that year’s business; that he had been to Crystal Springs and stopped .off there to see me. Q. That he had been to Crystal Springs and stopped off there to see you? A. At Hazlehurst to see me. And he wanted to know about my business and what I would want. I told him I would contract for twelve cars of ice of fifteen tons’ capacity, with the understanding that I would buy my entire supply from him, and that he would furnish me, in addition to the twelve cars,' all that I could sell at four dollars and twenty-five cents in fifteen-ton cars delivered in .Hazle-hurst, me to pay the freight and deduct that from remittance, and in less than full cars, I was to pay him five dollars and pay the freight.” Afterwards and prior to the alleged breach of the contract, which occurred in April following its execution, appellant made a number of small shipments of ice to appellee, aggregating about thirty tons. It then declined to ship appellee any more ice, assigning therefor reasons not necessary here to be set out. Nalty testified in behalf of appellant, denied making this contract, and stated that appellant had no contract whatever with appellee, but was simply selling him ice when ordered by him in the same manner that it did any other of its customers. Appellee sought to recover profits which he claimed he would have made, not only [720] oil the twelve cars of ice mentioned in the contract, hut on all of the ice which he claims he would have purchased during the season. The court, however, limited him to recovery of loss .of profits on the twelve cars. At the close of the evidence, appellant requested the court to exclude the same and to grant it a peremptory instruction. This motion was overruled and the instruction refused. The grounds of this motion and request for a peremptory instruction are: First, that the evidence hereinbefore set out discloses, if anything, a unilateral contract, that is, one by the terms of which appellant only is bound. Second, that the contract is void under section 4779 of the Code for the reason that it is for the sale of personal property of value greater than fifty dollars, is not in writing, and there was no delivery to ap-pellee of any part of the property contracted to be sold. There is no merit in either of these contentions. Ap-pellee’s testimony, if true, discloses a complete contract,, partly performed, in which he agreed to purchase, and appellant to sell, the ice therein referred to. Appellee testified that the thirty tons of ice delivered to him were delivered in part performance of this contract, and if that is true the contract is valid, and the truth thereof was a question for the determination of the jury. Stonewall Mfg. Co. v. Peek, 63 Miss. 342. Appellee, over the objection of appellant, was permitted to recover the profits which he claimed he would have made by a resale of the ice had it been delivered to-him by appellant according to the terms of the contract. It appears from appellee’s testimony that he purchased this ice with the knowledge of appellant for the purpose of reselling it in an established retail business for the purpose of making a profit thereby, and, if this is true, he was unquestionably entitled to recover whatever profit he would have realized by the resale of the ice. Railroad v. Ragsdale, 46 Miss. 458; White v. Leatherberry, 82 Miss. 103, 34 So. 358; Beach v. Johnson, 102 Miss. 419, 59 So. 800. [721] In order to establish. Ms alleged loss of profits, appel-lee introduced testimony showing that he entered the ice business in July of the preceding season; that during the months of July and August thereof he sold a certain number of cars of ice; that he had the best trade of the town; that he made during the last season a profit of thirty-five dollars per car; that he would have sold during the second season, the one covered by this contract, forty cars of ice and would have realized a profit thereon of forty dollars per car. The facts on which he based his estimate of profits made during the two seasons and of the number of cars he would have sold during the second season are not disclosed. Appellee’s opinion as to the number of cars he would have sold and the amount of profit he would have thereby realized is incompetent; the jury should have been given facts from wMch to form their own opinion. The remaining evidence was too vague and indefinite to enable the jury to ascertain the amount of his prospective profits with any sort of reasonable certainty. The rule governing recovery of profits lost by reason of breach of contract was long since announced in this state in the case of Railroad Co. v. Ragsdale, 46 Miss. 483, wherein it was held that “losses of profits in a business cannot be allowed, unless the data of estimation are so definite and certain that they can be ascertained reasonably by calculation, and then the party in fault must have had notice, either from the nature of the contract itself, or by explanation of the'circumstances at the time the contract was made, that such damages would ensue from nonperformance.” In addition to loss of profits, appellee introduced evidence showing, and was erroneously permitted to recover, the expense incurred by him in preparing to handle and sell the ice. Had he made the profits claimed, he would necessarily have incurred this expense, and his profits would have been the net amount after deducting from his gross receipts the amount which he paid for the ice plus the expense of carrying on his business. [722] For the reason that the court below permitted appellant to recover profits when the jury were given no data from which to calculate the amount thereof with any reasonable degree of certainty, and for the further reason that it permitted him to recover both profits and the expense he would have incurred in realizing the same, its judgment must be, and is reversed, and the cause remanded. Reversed and remanded.