Opinion
39600.
DECIDED SEPTEMBER 7, 1962. REHEARING DENIED SEPTEMBER 26, 1962.
Breach of contract, etc. Berrien Superior Court. Before Judge Lott.
Franklin, Barham Coleman, W. D. Knight, E. R. Smith, Sr., O. W. Franklin, Jr., Ed. G. Barham, Jr., for plaintiff in error.
Elsie H. Griner, Edward Parrish, contra.
There was insufficient evidence to authorize the jury to find any definite amount of damages suffered by the plaintiff and it was error for the court to overrule the motion for new trial on the general grounds.
DECIDED SEPTEMBER 7, 1962 — REHEARING DENIED SEPTEMBER 26, 1962.
The plaintiff (defendant in error) filed a petition and declaration in attachment against the defendant (plaintiff in error) alleging that he had been damaged by the defendant's breach of contract by his refusal to use a truck leased to the defendant under a written contract and by his failure to pay the plaintiff under the agreement the full amount for past use of the truck. The plaintiff's amended petition alleged substantially as follows: That the lease contract dated May 28, 1959, provided for a three months' lease period and thereafter from month to month, with a provision that either party could cancel by giving notice of such cancellation 10 days before the end of a monthly period; that the defendant was to pay the plaintiff 58% of the revenue from hauling done by the truck for trips up to 30 miles one way and 17 cents per mile for trips over 30 miles; that on March 30, 1960, without notice to the plaintiff, the defendant breached this contract by his plant supervisor's informing the plaintiff that he had no further use for the plaintiff's truck since he already had trucks idle on the yard; that at the defendant's request the plaintiff had purchased another truck to be used for hauling by the defendant under a verbal agreement with the same terms as the written lease contract and, due to defendant's breach of the contract, this truck had to be sold for $1,200 less than the purchase price; that the plaintiff lost anticipated income in the amount of $5,472.48, based upon the average past use of the truck, for the 26 working days from the date of the breach of the contract until the defendant could have terminated the contract by notice as provided therein; that the plaintiff was not paid for hauling a total of 4,152 miles at the agreed rate of 17 cents per mile, or a total of $705.84; that the total sum due the plaintiff by the defendant is $7,378.32.
The defendant renewed its demurrer to the plaintiff's amended petition and alleged in its answer that plaintiff had first breached the contract by his failure to follow defendant's instructions to operate the trucks out of Jacksonville and by quitting his job. The record does not disclose what disposition was made of the demurrers. After all the evidence had been submitted, the defendant moved for a directed verdict, which motion the court overruled. The case proceeded to trial before a jury, which returned a verdict of $3,200 for the plaintiff. The defendant's amended motion for new trial and motion for judgment n.o.v. were overruled, to which judgments the defendant excepts.
1. The court did not err in overruling the motion for a judgment n.o.v. The motion was not in due form and prayed for a judgment in accordance with the motion for new trial.
2. The court erred in overruling the motion for new trial because the evidence did not furnish the data necessary to a reasonable and definite conclusion as to the amount of the plaintiff's damages. As to the amount alleged to be owed by the defendant for deficiencies in mileage calculation there was no evidence whatsoever that there were 4,152 miles not paid for @ $.17 per mile. A number of ledger sheets were introduced in evidence but they were not identified or explained so that the jury could arrive at the conclusion contended for by the plaintiff. The exhibits are utterly meaningless as to this item of damages so far as the total of miles not paid for is concerned. There is also a deficiency in the evidence as to how many trips would probably have been made by the plaintiff himself and how many by his three drivers for the period in question. Testimony that defendant in error averaged 16 to 17 trips per week over a one-year period (approximately) is not sufficient to show the number of trips made during the 26-day period involved in this case. Another deficiency in the evidence is as to proof of the damage suffered by plaintiff in the loss on the second truck rented to defendant. The evidence showed only that he paid $8,000 for the truck, paid an indefinite amount on the purchase price and turned it in for the balance due. There is no evidence as to the reasonable value of the truck when it was turned back to the seller. (The court does not mean to intimate that a loss on the truck would be a proper measure of damages, but there was no demurrer on this subject and no objections to evidence on the subject.) Most of the other items of damages proved were on the border line as to definiteness but were perhaps as close as could be given in such matters, for instance, cost of repairs, gasoline, taxes, etc.
The court erred in overruling the motion for new trial on the general grounds.
Judgment reversed. Bell and Hall, JJ., concur.