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Action on contract. Before Judge Lowe. Fulton Civil Court. January 22, 1953.
The petition as amended, seeking only the recovery of special damages from the defendant for an alleged breach by it of a contract between the plaintiff and the defendant, and none of the items of special damage sought being properly recoverable under the law and the facts alleged, the amended petition failed to allege a cause of action and should have been dismissed.
Floyd L. Evans brought suit against The Darlington Corporation in the Civil Court of Fulton County to recover $1,148, which the plaintiff alleged was due him by virtue of the breach of a contract of employment between himself and the defendant. The petition as amended alleged as follows: The defendant corporation operates the Darlington Apartments on Peachtree Road in Fulton County, same being a large apartment building wherein numerous tenants of the defendant reside. L. A. Sifford, Jr., on February 28, 1952, and at all times herein mentioned, was the defendant's agent and engaged in the management and operation of said apartment building for the defendant. On said date, the defendant, through said agent and manager, employed the plaintiff to operate the boiler in said apartment building and to pay him therefor $200 monthly and also to furnish to him and his family an apartment in said building. It was agreed that the plaintiff was to begin performance of the duties of his employment on March 10, 1952, and said job was to be permanent. At the time the said Sifford employed the plaintiff for the defendant, he desired that the plaintiff go to work immediately, and the plaintiff explained to him that he owned a farm near Monroe, Georgia, and some cows and other personalty that be would have to dispose of and make arrangements about, and it was agreed that the plaintiff would actually begin work on March 10, 1952, but that he could move into the apartment at any time that suited his convenience. The plaintiff also informed the defendant's said manager that he was a painter by trade and had two houses under contract to be painted. The said Sifford thereupon told the plaintiff to go ahead and make the necessary arrangements about his farm and cows and other property and cancel his agreements to paint the two houses. The plaintiff thereupon, in order to get ready to commence work by March 10, 1952, disposed of his personalty at much less than the market price and also canceled the two contracts he had to paint two houses. Thereafter, on March 8, 1952, the plaintiff, having disposed of his personalty and canceled said contracts, informed the defendant's said manager that he was ready to move into the apartment immediately and to commence work on Monday, March 10, 1952, as they had agreed. The said Sifford thereupon informed the plaintiff that the defendant would let him know when for him to begin work, and on said date some other man had been engaged by the defendant and was then actually discharging the duties for which the plaintiff had been employed by the defendant. The plaintiff was ready to go to work March 10, 1952, and has at all times since then been ready, willing, and able to do said work and enter upon said employment. The defendant, through said Sifford, its manager, refused and now refuses to permit the plaintiff to discharge the duties of operating said boiler at The Darlington Apartments, for which the defendant employed the plaintiff. As a result thereof the defendant has injured and damaged the plaintiff in the following manner and in the following sums: Plaintiff sold three cows worth $375 for $275, sustaining a loss of $100; and sold a dining-room suite worth $250 for $25, sustaining a loss of $225. Plaintiff sold draperies from his living room worth $50 for $10, thereby sustaining a loss of $40. Plaintiff canceled the two painting contracts, on which he would have made $600, thereby sustaining a loss of $600. Plaintiff made 3 trips to Atlanta and his time is worth $15 daily, thus losing $45.
Plaintiff obtained a fireman's license from the City of Atlanta, and paid therefor $3. Plaintiff sold miscellaneous lumber and fertilizer on hand worth $150 for $15, thereby sustaining a loss of $135. All of said items of damage resulted directly because of the breach by the defendant of its contract with the plaintiff, and the defendant knew that the plaintiff was selling said property under distress circumstances, and the losses sustained by him were within the contemplation of the parties.
On May 5, 1952, the defendant demurred to the foregoing petition generally and also to paragraph 12 as alleging conclusions, and to paragraph 16 as alleging a conclusion in stating that the items of damage resulted directly because of a breach of the contract.
The defendant answered and denied liability. Thereafter, the plaintiff amended his petition by setting out that it was agreed that the plaintiff's employment would be permanent, and also that on March 8, 1952, the defendant employed some other person to discharge the duties which the plaintiff was to perform. Thereupon, on June 12, 1952, the defendant demurred to said amendment and to the petition as amended generally, and also demurred to paragraphs 10 through 16 of the original petition as not setting forth the correct measure of damages. The defendant also demurred to the allegations of paragraph 2 of the petition as amended, in that the petitioner has not set forth the correct measure of damages.
The trial court on June 13, 1952, overruled the defendant's demurrers, stating that the petition as amended set forth a cause of action against the defendant. The court disallowed the defendant's "special demurrers filed this date numbered 2, 3, 4, 5, 6, 7, 8, and 9 [which] are all special demurrers to the plaintiff's petition as originally filed, and are untimely as being filed this date, are therefore disallowed, since any or all of them should have been filed at the first term of court."
To this judgment the defendant excepted pendente lite. The case proceeded to trial before a jury, and a verdict was rendered in favor of the plaintiff for the full amount sued for, $1,148. The defendant moved for a new trial on the general grounds and by amendment added certain special grounds. The trial court overruled the defendant's motion for a new trial, as amended, and to this judgment the defendant excepted, and assigned error also on its exceptions pendente lite.
1. It is true, as contended by the plaintiff's counsel, that special demurrers to the plaintiff's petition must be interposed at the first term and that, where they are filed subsequently, they will not be considered. Code 81-1001, 81-1002, as amended by Ga. L. 1946, pp. 761, 775 (see Rules 15 and 16 of Procedure, Pleading and Practice in Civil Actions). The revision of Code 81-1001, 8-1002, by the Act of 1946, was necessitated by the substitution of an appearance day for an appearance term. See Rule 3 of Procedure, Pleading and Practice in Civil Actions (Ga. L. 1946, pp. 761, 767), amending and revising Code 81-111. The rule that special demurrers must be interposed at the first term is not changed or abolished. "As to defects of form, we understand it now is, and has ever been, the rule that advantage of them must be taken by a special demurrer at the first term." Richmond &c. R. Co. v. Mitchell, 95 Ga. 78, 83 (22 S. E. 124). Such demurrer is properly overruled where not filed in time. Smith v. Ice Delivery Co., 8 Ga. App. 767 (70 S. E. 195); Brown v. Georgia &c. Ry. Co., 119 Ga. 88 (46 S. E. 71). A special demurrer is not amendable after the first term by adding new and independent grounds. Central of Ga. Ry. Co. v. Motz, 130 Ga. 414 (61 S. E. 1). In City Council of Augusta v. Lumbard, 101 Ga. 724 (28 S. E. 994), it was held that, where a defendant at the first term filed a general demurrer to a petition, he could not at the second term amend such general demurrer by adding thereto grounds of special demurrer. See also Ford v. Fargason, 120 Ga. 708 (48 S. E. 180). It is also true, if the plaintiff seeks to recover the wrong measure of damages in an action for breach of contract, the petition is subject to special but not general demurrer. "If the petition sets forth the wrong measure of damages, this may be reached by a proper special demurrer; but the wrong measure of damages does not subject the petition to a general demurrer. . . If the allegations of the petition entitled the plaintiff to recover only nominal damages, the action would not be subject to dismissal." Elwell v. Atlanta Gas Light Co., 51. Ga. App. 919 (6) (181 S. E. 599); Atlanta Plow Co. v. Bennett, 49 Ga. App. 672 (6) (176 S. E. 822); Koch Co. v. Adair, 49 Ga. App. 824 (3) (176 S. E. 680). However, where a petition in an action for breach of contract does not seek to recover general or nominal damages, but only seeks to recover of the defendant for its alleged breach of the contract sued on certain items of special damages, and none of these items are properly recoverable, the petition does not set out any cause of action and is subject to be dismissed on general demurrer. Where the petition does not allege damages which are recoverable of the defendant, the same fails to state a cause of action for the relief sought and is therefore subject to general demurrer. See Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (6) (70 S. E. 2d, 734). Where the petition cannot be construed as asking for general or nominal damages, but is expressly limited to a prayer for special damages only, and these are not recoverable, the suit is not maintainable, and is subject to be dismissed on demurrer." Truitt v. Rust & Co., 25 Ga. App. 62 (2) (102 S. E. 645). This is not a case of a mere erroneous statement of the measure by which the amount of the damages is to be determined, but is one where the plaintiff seeks special damages only and such damages are not recoverable. The rule that in every case of breach of contract the other party has the right to recover nominal damages does not apply where only special damages are sued for and same are not recoverable. Hadden v. Southern Messenger Service, 135 Ga. 372 (69 S. E. 480); Bush v. Addison, 40 Ga. App. 799 (3) (151 S. E. 526); Neal v. Medlin, 36 Ga. App. 796, 797 (138 S. E. 254). "The petition alleged no recoverable damages, and was subject to the general demurrer interposed." Ryals v. Livingston, 45 Ga. App. 43 (163 S. E. 286).
The contract involved in the present case was one whereby the defendant agreed to employ the plaintiff at $200 monthly, furnishing a place to live, and was for no definite period of time. The plaintiff was to begin work on March 10, 1952. In order to be ready to commence the performance of his duties on that date, the plaintiff disposed of certain personal property he owned at a sacrifice and sustained a loss between the reasonable market value of same and what he received for the property sold. The plaintiff had two contracts to paint houses. He canceled these contracts and sustained a loss of what he would have made thereon had he painted the houses. The plaintiff came to Atlanta and conferred with the defendant's agent about the job on three occasions, his time was worth $15 a day, and he lost $45 by reason thereof. The plaintiff obtained a fireman's license from the City of Atlanta at a cost of $3, so he could do the work for the defendant. When the plaintiff reported to the defendant on March 8, 1952, and stated that he was ready to begin work on March 10, the defendant's agent informed him that he need not commence work on March 10, but he would be informed when to commence work. The plaintiff did not seek any damages save the losses sustained as above set forth. He did not seek damages for loss of wages for any period of time. The contract was terminable at will. The plaintiff did not commence the performance of the contract. He merely got ready to perform the same on his part and went to the above expense and sustained the above losses in getting ready to be able to carry out the agreement and work for the defendant.
"Where a party seeks damages for the violation of a contract by the other party, the measure of his damages is not what he has suffered by performing his part, but what he has suffered by the failure of the other party." Pope v. Graniteville Mfg. Co., 1 Ga. App. 176 (2) (57 S. E. 949) and citations. "Losses which one may have sustained in complying with obligations devolving upon him in carrying out his undertaking under a contract, are not recoverable as damages, even though the contract may have been breached by the opposite party to the contract. Damages to either party to a contract, to be recoverable, must be the result of some act on the part of the other party, and the measure of such damages is the profit, if legally ascertainable, which would have accrued, had the contract been complied with." Jester v. Bainbridge State Bank, 4 Ga. App. 469 (4) (61 S. E. 926). Had the defendant corporation complied with its agreement with the plaintiff by permitting him to move into the apartment and enter upon the performance of his work firing the defendant's boiler in this building, what would the plaintiff have gained--what would have been his profit? This would not have prevented the sale by the plaintiff of his property at a sum much less than it was reasonably worth. He would still have canceled his contracts to paint the houses. His trips to Atlanta had already been made. His gain by the defendant's compliance would have been the receipt of his monthly wages and the moving into the apartment. The plaintiff does not seek to recover loss of wages for even one month. The damages set out in the petition and sued for cannot reasonably be held to have been within the contemplation of the parties, and to have flowed directly from the breach of the contract. The plaintiff sold this property and canceled these contracts to paint so as to be able, it is true, to perform the agreement with the defendant by moving to Atlanta and going to work for it on March 10, 1952. The petition alleges that the defendant knew that the plaintiff was going to dispose of the personal property, and that its manager told him to cancel the two painting contracts. However, it can hardly be said that the defendant knew that the plaintiff was going to practically give some of his personalty away.
Damages growing out of a breach of contract, in order to form a basis of recovery, must be such as could be traced solely to breach, be capable of exact computation, must have arisen according to the usual course of things, and be such as the parties contemplated as a probable result of such breach. Sanford-Brown Co. v. Patent Scaffolding Co., 199 Ga. 41 (33 S. E. 2d, 422). "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." 17 C. J. 847, quoted and adopted in Ga. Power Co. v. Fruit Growers Exp. Co., 55 Ga. App. 520, 527 (190 S. E. 669).
Properly construed, the contract involved, and for the breach of which the defendant is now sued, was an agreement under which the plaintiff was employed by the defendant for an indefinite term, as fireman of its boiler in the apartment building, at a fixed salary per month from a specified date. Such a contract of employment, being indefinite as to its duration, is to be deemed a hiring for the term of one month only; and after the expiration of that period it was the right of the defendant to terminate the employment at will. Odom v. Bush, 125 Ga. 184 (53 S. E. 1013). In that case the court held that the plaintiff was not entitled to recover damages in the way of loss incurred in resigning a lucrative position he held in South Carolina, loss resulting from the sale of his household goods at a great sacrifice, a like loss sustained in disposing of his Atlanta realty, expenses of moving from South Carolina to Columbus, Georgia, and loss of opportunity of securing lucrative positions open to him when the contract with the defendant was made. The plaintiff there, as here, did not seek to recover any damages for loss of salary. The defendants there demurred to the petition because the plaintiff did not set out any act of the defendants upon which he could base a recovery of damages and also upon his right to claim the specific items sued for. The court sustained all the grounds of demurrer and dismissed the petition. In that case the Supreme Court held the petition subject to general demurrer and affirmed the trial court.
Where it is sought to recover damages on account of breach of a contract "under the rule that damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of the breach . . . or on the ground that the contract was broken with the knowledge and for the purpose of depriving the party injured of its benefits . . . , the plaintiff should allege facts showing that the special damages claimed fall within one or the other of such rules." Montgomery v. Alexander Lumber Co., 140 Ga. 51 (3) (78 S. E. 413).
The petition here, as amended, only seeking special damages, and none of the items thereof being properly recoverable under the facts alleged, the trial court erred, as in Dixie Broadcasting Corp. v. Rivers, supra, in not dismissing the petition as amended, on general demurrer on the ground that it failed to state a cause of action. This rendered further proceedings nugatory.
Fraser & Shelfer, contra.
Grant, Wiggins, Grizzard & Smith, N. E. Parker, Jr., Wm. G. Grant, for plaintiff in error.
Saturday May 23 04:27 EDT

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