, 1891-12-28
THE LAST RESORT.
QUESTION OF AN AGENTS AU.
THORITY In CONTRACTS.
what the supreme Court has to
Say ON Damages Incurred ON
AnnMIled Contracts.


Say ON Damages Incurred ON
AnnnIled Contracts.
Concluded from Saturdays daily
The duty to seek employment Il d.
pendent upon the original contract being
one of employment or hire; it is not ann1if,'
cable to every contract. 1st Sedgwicll on
damages, p. SO.
It was held ~ the supreme court of
Pennsylyaniaain Wolf VS.. Studebalser.s az
Penn. st. 459, leading case decided II
1870, that ordinary contracts Of hire. and
contracts for the performance of some
specified undertaking cannot be governed
by the same rule. That in one case tbe
party can earn no more than the wages
and If he gets that his loss will be but nom,
inal: whereas, in the other ease. xtheg loss
OF the party is the loss of the benefit Of the
contract. The damage may be said to be
fixed by the law Of the contract the mo-
ment it is broken, and cannot be altered
by collateral circumstances independent Of
and totally disconnected from it and from
the party occasioning it. To plead the
doctrine of avOldable consequences to such
case, said the court, 'tWould necessarily in
yolVe proof OF everything great and small,
no matter how various the items, done by
tie plaintiff durinr the period Of the con
tract might be, an how much he made III
the meantime
The case at bar, is signal instance of
attempting to apply such rule to this
kind OF a contract, a voluminous mass of
evidence was submitted for the digestion
OF the jury concerning other contracts
performed by this plaintiff, how much
profit he made out of this contract, and
how much loss he sustained in that. the
condition under which he labored in other
contracts compared with the condition
under which he would have labored in the
performance Of the contract sued on, the
respective conditions of the soil in differ
ent locations, as to the relative amount Of
clay, gravel, sand, etc, showing conclu-
slveiy that it was an introduction of an
lmpractlcable element of proof, and had
no approximate relation to the contract it.
self. II the rule was to be observed that
the damages proven must be direct and
approximate, the same rule must be in
voked in the reduction Of damages Mr..
Sedgewick says 'That while the rule is Of
very general application, the circumstances
OF many contracts forbid its application. u
This, we think, is one of those cases. The
distinctions between contracts for piece
work and time contracts, according to the
pnraseology of Mr.. Greenleaf is recognized
Dy that author in his work on Evidence,
vol. 2, sec. 261.
Prevention by the employer gives the
right to damages for loss Of the profits
profits which are permitted to be
recovered are those which are the direct
and immediate fruits of the contract. These
are part and parcel of the contract itself,
entering into and constituting portion Of
its very elements, something STIMULATED for.
the right to the enjoyment OF which is
just as clear and plain as to the fulfillment
OF any other stipulation. They are pre-
sumed to have been taken into considera-
ton and deliberated upon before the con
tract was made, and formed, perhaps the
nT1x 0Ir0n tl,4 No.
an action upon the contract against the
employer for preventing the complete per
formance, the contractor is entitled to re-
cover the contract price for the work ac-
tually done, and, in the absence Of other
damages, the difference between the CON
tract price and what it would cost to per-
form the contract as to the residue. !.
Sutherland on Damages, vol. 2, %. 522.
In Myers VS.. Y. u Y. R. r.. Co., Curtis
~, 1T IS held that in an action of covenant
the plaintiff having been Wrongfully pre-
vented by the defendant from completing
the work, the measure of damages is the
difference between the price agreed to be
paid tor the work, and what it would have
cost the plaintiff to complete it. When
one contracts to perform work for another
at stipulated price, and is prevented by
him from entering upon the performance,
the measure OF damages is the difference
between the cost Of performing the work
by the party agreeing to do it, and the
price agreed to be paid for it; or, in other
words, the profits the party would have re
ceived.
George VS.. G. & M. R. R. Co., Ala. 234
this was special contract between plaintiff
and defendant by which he was to perform
certain work and labor on the road for GER
tain compensation to be paid him. 70 the
same effect is Richmond VS.. Dubuque 81
Sioux City R. r. Co.. 26 Iowa 1871. In fact.
u hot ,f l., ~.
rule Of profits is thoroughly established,
and as said by the supreme court of the
United States in Phil. & Bait. r. r. Co..
Us. Howard, l3 Howard 344, that "wher-
ever profits are spoken Of as not
subject OF damages, it will
be found that something contingent
upon future bargains or speculations, or
states of the market are referred to, and
not the difference between the agreed price
OF something contracted for, and its as
certalnable value or cost" In this case
the jury evidently acted under instruction
eight OF the court, and based the damages
on the expense incurred by the plaintiff in
preparing for the work, which we think
was not q proper measure Of damages. The
element Of profit was not submitted to
them, and we have no way Of knowing
whether they would have found for the
plaintiff on that question or not. For this
reason the Judgment must be reversed
The question of authority Of the agent and
ratification by the principal, was submit
ted to the jury, and as the evidence seemed
TO odisclose the case, which lies close to the
border line, the jury depending upon the
credlblllty of witnesses, and the local un-
derstanding, we would hardly feel justified
il disturbing their verdict on that ques-
ton for the errors mentioned. The iudg-
ment is reversed and the cause remanded.
DUNBAR, J.
We concur: Anders, G. J.; Scott, ] ];