An allowance for damages cannot be based on guesswork."DeJong v. Stern, 162 Ga. App. 529 (1), 530 ( 292 S.E.2d 115), citing Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) ( 232 S.E.2d 169); Hip Pocket v. Levi Strauss Co., 144 Ga. App. 792, 794 ( 242 S.E.2d 305). Plaintiffs had the burden of showing that there was some diminution in the value of Mrs. Stewart's estate that would have caused injury to them as beneficiaries of her estate as a result of the use of her jointly owned certificates of deposits as collateral. That evidence not having been offered, the trial court properly granted defendant's motion for directed verdict thereon.
As explained in Cooper v. Nat. Fertilizer Co., 132 Ga. 529, 535 ( 64 S.E. 650) (1909), "[t]he profits of a commercial business are dependent on so many hazards and chances, that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant's wrongful act, they are too speculative to afford a basis for the computation of damages." The policy is succinctly stated in Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) ( 232 S.E.2d 169) (1977): "Where a party makes a claim for a monetary sum, though it be by counterclaim, it is incumbent upon him to present evidence showing the amount of loss in a manner in which the jury can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guesswork.
See Ayers v. Mobley, 163 Ga. App. 239, 240-241 (2) ( 293 S.E.2d 470). The question of damages cannot be left to speculation, conjecture and guesswork. See Smith v. Barfield, 157 Ga. App. 231, 233 ( 276 S.E.2d 899); Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 ( 232 S.E.2d 169). The defendants having moved for judgment notwithstanding the verdict because no damages were proven, the same was meritorious requiring a reversal here. 2.
Bobo v. Gebhardt, 154 Ga. App. 436, 437 ( 268 S.E.2d 699). Accord, Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) ( 232 S.E.2d 169). The jury must be able to calculate the amount of loss from the data furnished, and will not be placed in a position where an allowance of the loss is based on guesswork. Studebaker Corp. v. Nail, 82 Ga. App. 779, 785 ( 62 S.E.2d 198). "`The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. In other words, the person injured is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed.
An allowance for damages cannot be based on guesswork." Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) ( 232 S.E.2d 169) (1977); see Radlo of Ga. v. Little, 129 Ga. App. 530 (2) ( 199 S.E.2d 835) (1973). "Loss of anticipated profits which is completely conjectural is not recoverable.
Moreover, since plaintiff did not present any evidence of her litigation expenses, the trial court erred in charging the jury that plaintiff could recover such expenses upon their finding that defendant exhibited bad faith in its dealings with plaintiff. Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 ( 232 S.E.2d 169); Davis v. Fomon, 144 Ga. App. 14 ( 240 S.E.2d 581). See generally Altamaha Convalescent Center, Inc. v. Godwin, 137 Ga. App. 394 ( 224 S.E.2d 76).
See CPA §§ 8 (a) (1) (B); 8 (e); 8 (f) (Code Ann. § 81A-108 (a) (1) (B); 108 (e); 108 (f), establishing forgiving rules of pleading in general; CPA § 9 (g) (Code Ann. § 81A-109 (g)), singling out special damages as the only item of damages requiring specific statement; CPA § 15 (b) (Code Ann. § 81A-115 (b)), allowing amendment of pleadings to conform to the evidence; and CPA § 54 (c) (Code Ann. § 81A-154 (c)), directing that "every final judgment [except default judgments] shall grant the relief to which the party in whose favor it is rendered is entitled even if the party has not demanded such relief in his pleadings..." There are other cases applying a similar rule in upholding the direction of a verdict for failure to prove damages (e.g., Andrews v. Commercial Credit Corp., 129 Ga. App. 294 ( 199 S.E.2d 383) (1973); Queen v. Harrell, 131 Ga. App. 666 ( 206 S.E.2d 578) (1974); Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 ( 232 S.E.2d 169) (1977); Lingo v. Kirby, 142 Ga. App. 278 ( 236 S.E.2d 26) (1977)), but in those decisions the issue of nominal damages was not considered by the court. See Kloville, Inc. v. Kinsler, 239 Ga. 569 ( 238 S.E.2d 344) (1977), where the Supreme Court affirmed the denial of the injunctive relief sought but nevertheless remanded "for possible consideration of reformation" which does not appear to have been prayed for; Kirk v. First Ga. Investment Corp., 239 Ga. 171, 174 ( 236 S.E.2d 254) (1977), affirming the denial of defendant's motion for summary judgment in a specific performance case "because it does not appear beyond doubt that the [plaintiff] can prove no set of facts in support of a claim for damages," which do not appear to have been prayed for; Daughtrey v. C D Sportswear Corp., 239 Ga. 482 ( 238 S.E.2d 37) (1977), a reversal of a directed verdict for defendant which had been granted by the trial court on the ground that special damages had not been properly prov
2. Cases cited by appellee (see, e.g., Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) ( 232 S.E.2d 169) and cits. therein) do not require a contrary result. Aside from any other distinguishing factors, if any, in those cases the issue of nominal damages was not raised and was not before the court.
[Cits.]" Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 ( 232 S.E.2d 169). As with most rules, however, there is an exception to that stated above.
There was evidence which would authorize a jury to find that the defendant had been stubbornly litigious. But there was no evidence produced to guide the jury in determining the amount of damages to be awarded as expenses of litigation or attorney fees. Since an allowance for damages cannot be based on guesswork ( Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 ( 232 S.E.2d 169) (1977)), the plaintiff failed to make out a proper case for these damages, and the award was not supported by the evidence. Judgment affirmed with direction that the plaintiff write off from the judgment the amount allowed as attorney fees; otherwise, the judgment stands reversed.