Gilley v. Pennington , 241 S.W. 202 ( 1922 )

The damages which appellee by the allegations in his answer sought to recover, and did recover, of appellant on account of the breach by the latter of the contract between them, were for (1) time appellee consumed in finding another farm to move to; (2) expense he incurred in having to pay a sum as a "bonus" for the farm he secured; (3) expense he incurred in moving to the place he secured in excess of that he would have incurred in removing to the place he rented of appellant; and (4) a sum representing the value of the place appellant rented to him above the value of the place he secured. Appellant, by exceptions, questioned the sufficiency of the allegations in the answer to show a liability on his part for the damages claimed, on the ground that same were special, and it did not appear from said allegations that he knew at the time he entered into the contract that such damages would accrue to appellee from a breach thereof as charged against him. The court overruled the exceptions, and his action in doing so is attacked by appellant as erroneous.

Appellee, without alleging such knowledge on the part of appellant, was entitled to recover, if appellant breached the contract, such damages as might —

"fairly and reasonably be considered as arising naturally — that is, according to the usual course of things — from such breach of contract itself, or such as might reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." 1 Suth. of Dam. § 50.

But he was not entitled to recover damages not naturally arising, or not reasonably contemplated by him and appellant, at the time they entered into the contract, as likely to arise from a breach of it, without alleging and proving knowledge on the part of appellant of the special circumstances producing such damages. 17 Cyc. 746.

Applying the rules stated to the damages claimed and recovered by appellee, we think the trial court did not err when he overruled the exception to the allegations seeking a recovery on account of time consumed by appellee in finding another farm, and are inclined to think the exception questioning appellee's right to recover anything on account of expense he incurred in moving to the place he secured, in excess of that he would have incurred in moving to the place he rented of appellant, also should have been overruled. Reasonably, we think, appellant should have contemplated, when he entered into the contract, that if he breached it appellee would lose time in finding and securing another place, and that he might incur a greater expense in moving to the place he secured than he would incur in moving to the one covered by the contract. But it is clear, we think, that if appellee in any event would be entitled to recover anything on account of the sum he paid as a "bonus" for the farm he secured, or on account of the difference between the rental value of that farm and the one appellant rented to him, it would only be after he had alleged and proved knowledge on the part of appellant of the special circumstances with reference to those matters which made the payment of a bonus necessary, and which prevented him from securing a place as valuable as the one appellant agreed to let him have. As appellee neither alleged nor proved that appellant had knowledge of such circumstances, the judgment is erroneous, so far as it was for such damages.

Therefore it will be reversed, and the cause will be remanded to the court below for a new trial.