Opinion
October 19, 1931.
January 28, 1932.
Evidence — Contract — Breach of — Proof of damages — Burden of proof — Unreliable estimates — Failure to use available means to determine loss.
In an action of assumpsit on a written contract by a sub-contractor to recover for the hauling of certain earth excavated by the defendant and for damages for breach of contract, there was evidence that the defendant had a contract with a municipality for the removal of certain earth and that he contracted with the plaintiff to haul the earth at a fixed price per cubic yard. The plaintiff alleged that he hauled certain earth without receiving payment but he was unable to testify with any reasonable accuracy as to the cubic yards so hauled. He failed to use available means of determining the amount of earth removed and relied wholly on estimates which amounted to mere conjectures. The plaintiff further alleged that the defendant employed others to remove some of the earth and that by reason thereof he sustained a loss of profits. His testimony, however, as to the quantity of earth removed by others was also unreliable.
Held: (1) That it was the plaintiff's duty to use available means to determine, with reasonable accuracy, the amount of earth removed, (2) that the court below erred in submitting the plaintiff's claim to the jury where his estimates were mere conjectures and (3) that a judgment entered for the plaintiff will be reversed.
Proof of a breach of a contract will not warrant a recovery of more than nominal damages unless there is affirmative evidence of actual damage and it is the duty of the complaining party to fix his actual loss with a fair degree of certainty by witnesses having knowledge of the facts.
Appeal No. 15, April T., 1931, by defendant from judgment of C.P., Cambria County, June T., 1928, No. 322, in the case of William F. Schoenberger v. Frank L. James.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Reversed.
Assumpsit for breach of contract. Before EVANS, P.J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $916.85 and judgment entered thereon. Defendant appealed.
Error assigned among others, was the dismissal of defendant's motion for a new trial.
Frank P. Barnhart, for appellant.
J. Earl Ogle, Jr., for appellee.
Argued October 19, 1931.
The plaintiff, a subcontractor, sued the defendant, to recover a balance alleged to be due under a contract whereby he was to haul earth excavated by the defendant, who had a principal contract with the borough of Westmont. The contract provided that the plaintiff was to haul and remove the earth for the price of 24 cents per cubic yard, and dump it at points designated by the borough engineer. He was "to be paid when the party of the first part has received his estimate from the borough engineer."
The plaintiff claimed that he hauled, under this contract, 20,872 cubic yards of earth and received payment for only 14,000, and sued for the difference and loss of profits on approximately 2,000 cubic yards of earth hauled after the defendant broke his contract, together with several items for extra hauling, etc. The defendant filed a setoff and counterclaim, alleging that the plaintiff was indebted to him in the sum of $1,325.22. A verdict was rendered in favor of the plaintiff in the sum of $916.85. This appeal was taken from the refusal of the court below to grant a new trial.
The assignments of error have to do chiefly with the insufficiency of the plaintiff's evidence to sustain the verdict. The plaintiff, to support his statement that he hauled 20,872 cubic yards during the months of July and August, said that he kept account of the truck loads hauled for several days, which varied from 65 to 70 loads per day, but he was unable to state how much earth was on each truck, which were of different capacities, and the length of the haul varied. He testified: "Q. You don't know how much those trucks contained, do you? A. I based my claim on this: that I know just exactly how much that steam shovel can move. I know that the job wasn't held up at any time. Q. Oh, then your real basis, as I understand you, the real basis is how much the steam shovel can move? A. Oh, no, no. Q. Then I want to get it. What else was there? By the Court: Q. How was this dirt to be measured, in solid in the ground, or loose, to make a settlement? A. In the solid, I suppose, as it was engineered by the borough engineer." It is a matter of practical knowledge that the work a steam shovel will do depends upon conditions that change from day to day. Such an estimate is not dependable. It is conceded that neither he, nor anyone in his behalf, made any measurements on the ground. No weights were taken of the loads or a record kept of the number of loads hauled each day, nor were other plans used to obtain reliable estimates. It is clear that the plaintiff was only making a very rough approximation of the amount of material that he hauled. Plaintiff alleges that after hauling two months, and before the work was completed, the defendant told him that he would have no further use for his trucks until a later date and that he would inform him when he was to continue with the hauling, but was never called back. Thereafter, 2,000 cubic yards approximately were removed by other persons, for which he claims a loss of profits. The testimony was equally unreliable as to the amount of earth hauled after the alleged breach of contract. Plaintiff depended upon the testimony of the shovel operator, who roughly estimated from observation that 2,000 cubic yards were removed after the plaintiff ceased hauling.
The appellant contends that the written contract binds the plaintiff to the estimates of the borough engineer. We think that the contract was not sufficiently clear to hold that the estimate of the borough engineer was conclusive. If, however, this plaintiff did not intend to be bound thereby, it was his duty to use other available means of determining, with reasonable accuracy, the amount of earth removed. He did not employ well known methods to obtain this information but relied upon estimates which amounted to but mere conjectures. That was not sufficient. It was not such trustworthy testimony as the circumstances afford. He was the complaining party and it was his duty to fix his actual loss with a fair degree of certainty by witnesses with knowledge of the facts, as damages are not presumed: Beck v. B. O.R.R. Co., 233 Pa. 344, 349; Vogler v. Harrisburg Rwys. Co., 85 Pa. Super. 483, 487; Crowley v. Snellenburg, 89 Pa. Super. 263, 265; Cantor v. Lempert, 89 Pa. Super. 408, 411; Frances v. Monon. Rwy. Co., 92 Pa. Super. 129, 136. As was said in Greenlee v. West, 71 Pa. Super. 468, a proof of the breach of the contract will not warrant a recovery of more than nominal damages unless there is affirmative evidence of actual damage and a measure established to ascertain fairly the amount. The plaintiff failed to comply with the proper standards of proof which could be substantially relied upon in the measuring of his damages. Especially is this true in view of the testimony of the borough engineer.
The appellant maintains, and the learned court below seems to be of the opinion, that the only figures given by the borough engineer based upon actual measurements were those showing the total amount of earth excavated and removed. We find in referring to his testimony that he expressly stated not only once, but several times, that on the 1st of September, 1926, there was excavated 15,879 cubic yards, and overcast or deposited on the sides 2,906 cubic yards; that there had been hauled in trucks 12,973 cubic yards. Those figures were obtained by actual measurements on the ground by cross-sectioning and checking back. It was on those calculations that James, the principal contractor, was paid. We think that the attempt of the plaintiff to recover more than the principal contractor was paid ought not to prevail in view of the plaintiff's unreliable calculations: Lalor v. City of New York, 102 N.E. 558.
We are all of the opinion that the court fell into error in submitting to the jury for their consideration that portion of the plaintiff's claim based on the amount of earth he hauled, as well as the amount removed after the alleged breach of contract.
Judgment is reversed with a venire.