Traywick v. Southern Ry. , 71 S.C. 82 ( 1905 )

OPINION. March 11, 1905. The opinion of the Court was delivered by The first question for consideration is, whether his Honor, the presiding Judge, erred in allowing the plaintiff to introduce testimony, showing loss of profits, by reason of the fact that the public carried their rice elsewhere to be hulled, on account of the delay mentioned in the complaint.

The general principles relating to the recovery of damages, may be said to have been definitely settled since the leading case of Hadley v. Baxendale, 9 Exch., 341. The difficulty arises when it becomes necessary to apply the general principles to the facts of the particular case. The principles indicated in the case of Hadley v. Baxendale are thus succinctly stated in section 14 of Wood's Mayne on Damages: "First. That damages which may fairly and reasonably be considered as naturally arising from a breach of contract, according to the usual course of things, are always recoverable. Second. That damages which would not arise in the usual course of things from a breach of contract, but which do arise from circumstances peculiar to the special case, are not recoverable, unless the special circumstances are known to the person who has broken the contract." This language is quoted with approval in Sitton v. McDonald, 25 S.C. 68.

The case of Mood v. Tel. Co., 40 S.C. 524, 19 S.E., 67, shows that special damages are not recoverable unless expressly alleged, and that those damages are special that do not necessarily result from the wrongful act. In the case ofHays v. Tel. Co., 70 S.C. 16, it was decided that profits were recoverable, when they "may fairly be supposed to have entered into the contemplation of the parties when they made the contract — that is, must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed." In speaking of the notice disclosed by the telegram in that case, the Court uses this language: "In the case now under consideration, the telegram which defendant undertook to transmit indicated on its face the purpose to give information of the price of live stock by size, for the word `hand,' as the term of measurement, is not usually applied otherwise. Such a message also gives notice that it will be used as a basis of business action or non-action, and that loss or profit is liable to result. Indeed, the sole purpose of such telegrams is obviously to make profit by purchase and sale, and this purpose was within the understanding of the plaintiffs and the telegraph company when it undertook to deliver the message."

We proceed to apply these principles to the facts of the case under consideration. A rice huller may be purchased for various purposes. For instance, it might be bought for private use, or for sale, or for making profit by hulling rice for the public. The case of Hays v. Tel. Co., 70 S.C. 16, decided that when the object is to make profit, the party committing the act of wrong must, in some manner, have notice of this fact. This testimony, under the pleadings, was, therefore, inadmissible and the presiding Judge erred in allowing it to be introduced.

We will consider whether his Honor, the presiding Judge, erred in ruling that there was evidence of notice on the part of the defendant. His ruling was based upon the fact that the huller was shipped to W.H. Gibbes Co., with a bill of lading at Copes, instead of Columbia, S.C. the usual place of business of said firm. His view was that the defendant was bound to consider this fact in determining the purpose for which the huller was to be used by the plaintiff, as the real party in interest, and the transferee of the bill of lading. We do think this testimony tended to show that the plaintiff purchased the huller for the purpose of making profit by hulling for the public. This ruling was likewise erroneous.

The last question is whether there was error in refusing to strike out the words, "and caused a number of persons who had engaged the plaintiff to hull their rice to take it elsewhere," in paragraph 6 of the complaint. The object in alleging that fact was to enable the plaintiff to prove special damages. The plaintiff failed to allege notice of this fact on the part of the defendant. Therefore the allegation should have been struck out as the plaintiff could derive no benefit from it, without the further allegation of notice on the part of the defendant.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.