Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-05-18

much ovgH your house to have msde? This was
obj icted to oy Douglas; but the Court permited
the Wines TO answer, and he said: His house or
IaheV, 9 house with the capital OF his ought to |
have made IS 900 40 900 dollars wear and that
his haase met Win DO reyerses in toe years 1882
g. aud 5. AMI this answer Was allowed to 10 10 !
the jury as evidence Ct the NEE urs Of the plain
IFS dsnsges-she defendant excepting to ihs !
evidence. l. vas prsFsd b. Gsd-asu. that ths |
busiu s. of the house of & Dluglsss 4 Co
for the three years iD 'e-tien, promised rraz.
$50 600 year for The Junior partaer: 'ha, is. the
winners "a ceeted them % make that anOun'--6ut !
did not know Inc exPects'ian q DINERS. nor Was
,here any campu sliOn among hem in reference TO
l.. g far as he knew Thtre Is NJ provf beyond
What has already been stated IS the va ne 4 the
offer made BY he NJ -mphis -use OF hos far i en-
seeded whas the business Of Ii = D. Dug IS & C1I
promi ed.
the Court, in substance, charged the jury mat
il they fund the contract as made sna 'eso
tfec the pisIbtif e0titled TO IVsr from the
def he difference between what be reeeIrsd rom
the firm of II & Douglas Co, snt what De
could haze received from he firm OF Cosseti, hli 8
Co., and they would ascertain that from the psooS,
locking to the actual nett profits of each house.
Tue Court. among her things, said the legal tf
Of the contract beieg that tse defender Wss'o
make the Ell ustisn # The plaintiff in the Douglas
house rs profitable as it wOu.d have been IN the
house Of Cosstt, Hill & Co.
The jury, on lhe 1870 of May 1889 rerdsred .
verdict in favor Of New nirler S4 262 81 Ding
las moved TOR 9 new Trial. whoa Was ovs-ful- /
d. sDd took b bill Of exceptions and proseeuIes
an appeal in the nature Of writ OF error to this
Court.
We do not agree with the Circuit Judge in bis |
cons ruction of this contract Ia his vIew if the /
d ugIas b. use as it ia called, had by some bad FIR /
tune or i'll luck made nothing. Douglas vas bound /
to nav :W oiTter the entire amount OF 70 pr cent
# the pr, 6 of the Mem, his house. And, on the /
other hand il the share OF McMhirt in the |
pr 6is Of the Douglas use proved TO De eq 4si To-
or 10 exceed what ne would nave receiV'd 10 the
Memphis b. use D .uglss' eOetrSet vas saved and /
he owed him uothing. In other words, the actual |
rs,,,h or profit in the Business OF the Two houses
constituted the data or basis upon WnIeh TOE par
ties we're to settle. This insured Mc"hirter toe
cbsncss "a the labor and skill Of bo frms. Ifhis
own failed and the other succeeded, he was safe
If thew beth succ eeded-but the ether house beyond
his-he vas at all events, to have his part 81 the
excess. CerssiDly, they might have made suea
contract But have they do0e so
Douglas might have said 10 McWhirteT, when tbs
business Of the two firms Is over snd the actual
profits Of each knowA, if what you get from my
house is net equal to 20 Per cent Of the prohs Of
the other house will make 1t so But the language
of the vriing is very different, and in our opinion
conveys no such idea. what then was mt sa'i
D,ugjss said to New hirter have before you two
oHefs-ope in my house and one IN the Memphis
house; the business Of my house bldg iAlr-Juoging
fruun the mas. a, The sddi nal cspIttt to 60 In
TO make so InHeh--snd that OF the memphis mouse,
Judging by uba' Cosse,t says) TO make SO much;
ycu think the offer OF the Memphis mouse Is tne oe
ter one Of the tEo, SO d. |. We lave compared the
TWO ofers and oompu ed their vslue; and We now /
suppose the ofFsr of the Memphis house TO be the
more valuable by from dsllar TO three thousand
dollars, if you will give up the Memphis oter and
become partner in ny house | VIII pay you me
difference in the value Of the Ohers so Boon IS
the oefssl sung can be arrived at. We have now in
our minds come data or rule by which this is to be
reached, and to which, as soon ss We ean' We VIII
resort to settle it.
This va Iske TO be the legal effect Of the writing
Tbev did not intsnd 10 wait or look to the aetusl
sn,t of the business Of these two firms, are
ne nsrmirted to do 50. They bad, already, al thS
tins of t6s ,OTifing estimated, within certain limits.
the difference or as the Bri ing has ~ dsSrefsncy
between the VslUs Of the two prepo' h;ons,
and the certainly Of the sum Was 70 De HoTESa
out 81 coon 81 il could be correctly doLe 1t
vas to this estimate the parties referred ss the bs -
Of the contract and By it th , must &c held. we
are 10 u4ce ourselves their shoes at the time q
the contract and with the lights then btfoEs hen IS
TO the relative value Of the two oners-IrrtspeehVe
Of what was btualiy, the result OF the business
az the iva firms determine, il it be practicable, |
What ia due from Douglas 10 MeNhrter ufon the
contract The dlfi su ~ 10 This construction, sad
shicb We think, must of ecessiy De the trueoo
il to State grounds upon which dan &c can &c as |
se.sed uoon aug sound principle If ~; for II the
terms of the contract be such TO Ike 1t iDprte-
ieAhl consis emit Wiiu legal rules, To arrive a. sry
measure of d4msges tails alone Is fatsl to ne &C
tien or a. least the recovery OF more TIA n mi
usI damages NV, sccoTdIBg t. the VisS We nav
already taken Of the Gaze, it Is apparent upon ihs
face OF the contract, IhA, tie parties themselves COL
.,dered that some amonnt-rsUg ing ffom one dollar
~ three t. ussni dol WAS Que r. N DouSiss 70
MeWhirte- so that vi a more the pie milf Could /
q = be d sm, sed out, f Cdu-t; aud We aEfr herd |
unless it wa shoWa By proof slapois the ooLtratt
L. al hn mn - "a
cover substantial damsgs, aneij some snoant |
intermediate tbs one doIlsr sbd three u snd Col
.ars desisrstsd BY The parties Perhaps 10 sIch |
csse there being Legitimate prOof 81 all but t.e
writis it would be f. and Ist to sssums $1,000 |
with proper in crest az the true sun, ths /
uuon the principle that the parties thenseives hs1
he right 10 set = vsue upon ths contract IN d s.
uute and haviI done their owu rule Ct dam
ages will not b. al REGARDED BY the Court Men u
Va Reid, Bel 6S. Bat 81 mode Of arriving a. |
the exact damages sum due, the cor trsf cott N
- thst other de q or proof beside that Turn Sd
by the q trumsIt It's II, was to De resoF; ed 10; gu
what ,hA, was TO be cas- Il sboH IL he writing (
or else where in the record. Tnis being so. If W
attempt 10 enlarge the damages 'yoni the sum a.
ready stated as reasonably u be inferred treG q
terms Of the writing Itself, We are at once Il the
field of speculate n and eIDi eture. 10 siuP'e |
breaches of contract Wrst sIs called speculative
p-offs CT damages not alt wed Tor IN sucn |
case the nature Cf he ng adm ing the es' abli-n
ment Of certsiniy and precision, the Fl4lniln |
is not entitled to u@msEfsfer a. fsneied or prOea
ble Advantage be might have derived from his cen
tract. Thus where the defendant courrscied 10 |
70, air boat 90 ftiE for going doEn the river
an q trading VOYAGE the plaintiff not entitled to
damsgss for What he might have made ~ the lrsd-
iuK on breach of this cGnr c. what Il Tould |
take TO repair the boat is the ure of dsmsg's
Hendriek We. Stewart, Ten. Agate c'ied In |
Neias' Dig ALL To the same eff c. is Pettse w. |
Tenn Manufacture, Go q, / SDeed 3Sl-So9 where |
the principle is fully examined T9e deerine rests !
on two reasons: FIRST that otherwise the damages,
owing to their remotsness. would have no rei'reree
10 the particular thing Wtish is the object Of the
eoDtraet. and secondly, because OF their uucer- |
taintv they would be incapable Ct ascertsinnsnt oy
any sati factory ami known rule In the case IN
Snsed the Court ss!i II speculative Prohis or losses
OF interest upon capital are TO be taken into view
1 in the assessment Of dsmsges they should be ex-
pressly stipulated for in ths contract itself The
rule would Otherwise be too vogue and iodehnits.
and would hsvs reference to the particular thing
which is the Of ject of the contract, and unlimited
discretion would te left to the jury The sane
general doetfiue is to be found 10 MsstertoR VS..
| the Mayor, sc Of Brooklyn; Hill, 81. And if
the assessment OF rem to speculative damages is
claimed to be taken out Of the general rule BY rea
son of an express sipulstion TO that effect, We IN
drrstsn1 from the sulhnries that ell uncertainty,
bdh to the Object of the contract and the amount
of Iqzaages mus be removed by the eontrse itself
/ O.herWise the stipulation however vague will serve
1 out to destroy tie rule. They cannot be considered
unless capable of eompu alton With reasonable GER
| taibty aud precision. Remote and contingent dam
/ agea, depending the result of successive
1 schemes or investments, never allowed for
| the violation Of any contract. Such rule
| would be in the highest degree unfsyorable to
1 the interests of The community. The sub
| jsct would be involved ia utter uncertainty.
| It would be calculation upon cOrjecures and not
upeu facts. l Snetd, 3Sl, $685. Hill, 81, "a;
Bell ct ais vs.. Cunningham, Pet, SO, 50; Adder
ley vs. Dixon, Sim. s Stuart 607. Il is upon THIS
ground CoC't Of Equity d, crees the spec ned ger
Torrance Of an agresu ant for q partnership, the
profits being uncertain and incapable Of beng put
at any fixed amount, so that ct lay me dsnoses
might be nominal. i Sim. Stuart o0!; ClgSr
on Part 1913. But this is never done mere .ne
partnership might be dissolved BY the Psrlts
Tbs T. too urcsI,ain AID intangible 20 have
| US .uV0' ess - s0o - En;f1 II the difficulty