# Feeney & Bremer Co. v. Stone > Oregon Supreme Court · March 19, 1918 · 89 Or. 360 URL: https://www.frixlaw.com/law-library/cases/6906377 ## Case - **Full name:** FEENEY & BREMER CO v. STONE - **Court:** Oregon Supreme Court - **Decided:** March 19, 1918 - **Citations:** 89 Or. 360; 171 P. 569; 1918 Ore. LEXIS 132 - **Precedential status:** Published - **Opinion:** On rehearing by Burnett - **Judges:** Benson, Burnett, Harris, McBride - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6906377 ## Opinion text Former opinion sustained July 30, 1918. On Rehearing. ( 174 Pac. 152 .) In Banc. On rehearing. Former opinion sustained. For appellant there was a brief submitted by Messrs. Johnson & Handley. For respondent there was an oral argument by Mr. H. T. Batts. BURNETT, J. — The principal error assigned by the plaintiff was the admission of testimony about the loss of profits which the defendant claimed he might have made in furnishing gravel to the Arenz Construction Company and Tillamook County if the hoist in *377 question had performed as the plaintiff contracted it should. The former opinion reversing the judgment was framed in part upon the assumption that the bill of exceptions contained all of the evidence in the case. The petition for rehearing points out that this is erroneous and that although the stipulation attached to the bill declares that it is a correct statement of the testimony of the defendant, as well as a true statement of the objections opposed thereto, yet it does not indeed give all the testimony in the case, and the argument is that we should presume that other evidence was received at the trial upon which the verdict properly could be founded. Because of depending on this mistaken hypothesis we awarded a rehearing. A careful re-examination of the case leads us to the conclusion that the defect in the defendant’s case is more deep-seated than in the mere testimony. 13,14. The answer says that the hoist “completely broke down” on August 24,1915, and that the defendant procured other machinery to operate his plant at an expense of $403.95. In other words, he equipped himself with other machinery at that cost. Respecting the loss of profits the averment of his answer is as follows: “That the defendant has further been damaged by failure of the said machine so furnished by plaintiff to perform the work agreed in that solely by reason of the incapacity of the said hoist to properly perform, the defendant lost the sale of 500 yards of gravel which he could have sold during the month of August, 1915, to Arenz Construction Company, a corporation, and defendant would have sold at a profit of 50(5 per yard, and the quantity of 340 yards of gravel which defendant could and would have sold during said period to Tillamook County, Oregon, at a profit of 20(5 per yard.” *378 By this quoted allegation he seeks to add to the cost of the machinery and so increase his damage. He does not say that either the Construction Company or the county applied to or contracted with him to take gravel, nor does he show but that it was while he was using the substituted plant he lost the sales mentioned. His statement on that'feature is a mere conclusion and does not by averment of facts connect the loss of sales with the failure of the hoist. His mere expectation that the county and the other party would apply to him for gravel manifestly would not be a basis for damages. He must go further and show that they actually contracted to buy from him a specified quantity of that material at a stated price, or that in good faith they offered to make such an agreement and that he was compelled to decline the offer because the hoist in question would not do the work. Besides this, if at that time he had procured the new machinery his loss of profits on a deal with the parties could not be attributed to the defect in the hoist furnished by the plaintiff. He could make the same profits by using the substituted machinery. In brief, the answer discloses that the, defendant is keeping the hoist which the plaintiff sold him, yet trying to collect the price of a substitute as well as damages for loss of profits, without showing that he had any contract or offer to contract in good faith whereby he could have realized any gain. As he states his case in that feature, the loss of profits is too remote to be considered as an element of damage. In Hoskins v. Scott, 52 Or. 271, 277 ( 96 Pac. 1112 ), the plaintiff sought to recover for loss of profits he would have made during the threshing season with his machine if the defendant had performed its agreement to furnish Mm a competent engineer and a suitable engine with which to supply power to his thresher. He gave evidence that there *379 were large areas of grain in the neighborhood where he operated, which he conld have threshed if he had had the engine agreed upon, hut did not show that he had contracted with any particular persons, and the Court, speaking by Mr. Commissioner King, said: “Enforceable contracts should have been shown from which the quantity of grain he would probably have threshed, including probable losses, with reasonable certainty could have been estimated. Otherwise, the damages sought were too speculative to be entitled to consideration.” In Dose v. Tooze, 37 Or. 13, 16 ( 60 Pac. 380 ), Mr. Justice Moore used this language: “General damages are such as a party necessarily sustains from the wrong of which he complains and such as the law presumes would inevitably result from the act or omission of the adverse party causing the injury, and are recoverable under an averment in the complaint of plaintiff’s pecuniary loss, without stating their particular nature: * * Special damages, however, do not necessarily result from the wrongful act or omission of the adverse party, but are such as may follow from them as'a natural and proximate consequence caused by his negligence or design, and as the law does not presume that such an effect will inevitably follow, it is incumbent upon the plaintiff to allege specifically in the complaint the facts constituting his special damages in order that the adverse party may have notice thereof and be prepared for trial. ’ ’ In Blagen v. Thompson, 23 Or. 239 ( 31 Pac. 647 , 18 L. R. A. 315), the plaintiff had an actual contract for the purchase of some land the value of which he sought to enhance by engaging the defendants to build a car line to it, with a view to making it more accessible to the City of Portland and hence more desirable for suburban residences. All this the defendants knew and it was all averred in the pleadings. There was a *380 stated certainty that some damage, however uncertain in amount, would result from failure to build the road, and the court there said: “The rule that damages which are uncertain or contingent cannot be recovered, does not embrace an uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but an uncertainty or contingency as to whether such gain or benefit would be derived ait all. It only applies to such damages as are not the certain result of the breach and not to such as are the certain result, but uncertain in amount.” In the instant ease, however, while a certain amount of loss of profits is mentioned, the statement leaves it uncertain whether there would have been any damage, for want of any covenant on the part of the county or the Construction Company to buy the defendant’s gravel, or any valid offer on their part to purchase, which the defendant was unable to accept because plaintiff’s hoist would not operate as represented. If he would recover from plaintiff upon this score, the defendant’s relation to those from whom he would have realized gain must be as clearly shown as that to the plaintiff by whose default he claims to have been prevented from making a profit. It is not enough that he had prospects, of contracting with the parties named. He must have had hold enough upon them to give rise to some degree of certainty within the meaning of the cases cited. His allegation of the contract and the breach of it entitles him to general damage, nominal or more, as the evidence may disclose. But if he would go further and recover special damage for loss of profits he must aver facts to which that measure of damages may be applied. This defect in the pleading could not be raised by general demurrer, for there is enough in the answer to show a contract and a *381 breach, thereof from which accrue at least nominal damages. In this connection, in Sunnyside Land Co. v. Willamette Bridge Ry. Co., 20 Or. 544 ( 26 Pac. 835 ), Mr. Justice Bean used this language: “If the allegations of the complaint in which plaintiff seeks to lay down the rule by which the damages are to be estimated are insufficient or irrelevant, the defect cannot be reached by demurrer, so long as the other parts of the complaint contain a sufficient statement. If these damages are sought to be recovered at the trial, the defendant may then object to the evidence. An erroneous claim of damages does not make a claim demurrable.” The bill of exceptions discloses that the plaintiff pursued this course, objecting to the introduction of testimony about profits on the ground, among others, that they were too remote, bringing them within the reason of the rule laid down in the excerpt from Hoskins v. Scott, 52 Or. 271 ( 96 Pac. 1112 ), and the objection should have been sustained under the then state of the pleadings. 15. Beyond all this, and also conceding for the moment that he had contracts with the company and the county, it is not shown that the defendant lost his gravel. Pie still has that property and for aught that appears could have sold it in the market to other persons at possibly an increased price. It is not like a contract for services which the complaining party was prevented from performing. Without having parted with the commodity, he is in a situation, so far as damages are concerned, analogous to that of a seller whose buyer refuses to take the goods for which he contracted. At least the defendant here could not recover more damage from the plaintiff on the score of lost profits than he could obtain from one to whom he had agreed to sell the gravel but who, having agreed to *382 buy, refused to take it at the time stipulated for delivery. “The general rule is that the measure of damages when the buyer repudiates the contract and refuses to receive and accept the goods is the difference between the contract price and the market value of the goods at the time and place of delivery”: 35 Cyc. 592. The supposed case and the one stated by the defendant here are alike in the feature that in each the owner has been prevented from making sale of his goods and still has them on hand for all that appears. In either instance what would make him whole would be the difference between the agreed price, if he had a contract, and the lesser market value at the time and place of delivery: Hockersmith v. Hanley, 29 Or. 27 ( 44 Pac. 497 ); Krebs Hop Company v. Livesley, 59 Or. 574 ( 114 Pac. 944 , 118 Pac. 165 , Ann. Cas. 1913C, 758); Russell Miller Milling Co. v. Bastasch, 70 Or. 475 ( 142 Pac. 355 ). If he would recover on that score, the defendant should frame his pleading accordingly. For these reasons, we adhere to our former conclusion. Former Opinion Sustained. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6906377. Public record. Not legal advice.