American Oil Co. v. Byrd

Smith, C. J., delivered the opinion of the court. This is an appeal from adjudgment for damages for an alleged breach by the appellant of a contract alleged to have been made by it with the appellee. The appellant is a corporation engaged in the sale of gasoline, lubricating oil, and other petroleum products, and the appellee sued it for the breach of a contract which he claims and which we will assume for the sake of the argument, that he made with it to sell for it gasoline, lubricating oil, and other petroleum products at Amite City, La., for a stipulated commission on the quantity thereof sold by him. The appellee went to Amite City, and incurred certain expenses on the faith of his alleged contract, but the appellant declined to ship any products to him or otherwise to carry out the contract. Afterwards, and during the period for which the contract was to run, the appellee entered into a similar contract with a Texas oil company which contract he assigned to another, receiving therefor the sum of two thousand five hundred dollars, which the court below directed the jury to deduct from the amount of damages they might find that he had sustained because of the breach by the appellant of its [463] contract with him. The damages claimed are the expenses alleged to have been incurred by appellee on the faith of his contract' with the appellant and the commissions on the sale of petroleum products which he claims would have earned under the contract had the appellant complied therewith. The sales agency which, under the contract, the appellant and the appellee would have established at Amite City, La., was a new one, and the evidence in support of the appellee’s claim'of the quantity of petroleum products which he would have sold had the contract been complied with was his own estimate thereof, and that there were several dealers in such products at Amite City who had promised to give him a portion of their business and who themselves testified and stated in effect that other things being equal, if the quality of the products were equal to that supplied by other dealers and the price therefor no greater than that charged by them, they would have given the appellee a portion of their business, some of them estimating what the amount thereof would have been. All of this evidence may have been true, but non constat it does not appear therefrom with any sort of certainty that any sales whatever would have been made by the appellee—certainly the quantity of petroleum products he would have sold cannot be ascertained therefrom. Any estimate thereof on this evidence must be the result of a mere guess; consequently, the appellee is not entitled to recover for this element of his alleged damage. Railroad v. Ragsdale, 46 Miss. 458; White v. Leatherberry, 82 Miss. 103, 34 So. 358; Crystal Springs Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658; Railroad v. Consumers’ Ice & Power Co., 109 Miss. 43, 67 So. 657; 3 Sutherland (3d Ed.), section 694, at page 2095. The case of Beach v. Johnson, 102 Miss. 419, 59 So. 800, Ann. Cas. 1914D, 33, relied on by the appellee, is not in conflict herewith. In that case damages were allowed for the breach of a contract for the carrying on of a blacksmith shop which had been run for about a month be [464] fore the contract was broken, and in addition to the evidence of the business done for that month, it was shown that the parties to the contract had conducted a similar business immediately prior thereto in the immediate neighborhood of the place where the shop in question was located. The business done under thp contract sued on prior to its breach, and that under the former contract between the parties thereto, furnished a sufficiently definite basis for estimating the amount of business that would have been done under the contract sued on had it been 'carried out. Assuming for the sake of the argument that the appellee is entitled to recover the expense incurred by him under the contract sued on, that element is more than covered by the two thousand five hundred dollars realized by him from the sale of his contract with the Texas oil company, which contract he could not, of course, have entered into without breaking the one here in question had it remained in force. The judgment of the court below will be reversed, and a judgment will be rendered here for the appellant. Reversed, and judgment here.