Opinion
31333.
DECIDED SEPTEMBER 5, 1946.
Complaint; from Worth Superior Court — Judge Eve. April 29, 1946.
W. C. Forehand, E. L. Smith, for plaintiff in error.
Ford Houston, J. H. Pate, Williamson Crowe, contra.
1. The measure of damages for the breach of a contract in refusing to permit a lessee or tenant to go into possession at the beginning of the term is the excess in value of the term over the amount stipulated as rent.
( a) The value of the term for one year, where the contract is for the rental of land for farming purposes, is the difference between the gross value of the products of the farm less the cost of production.
2. In a suit to recover damages for the breach of a contract by which the defendant agreed to rent to the plaintiffs a farm for one year for a stipulated sum, the gross expenditures made by the plaintiffs in purchasing mules and equipment and in securing employees to work on the farm can not be recovered, where it is not alleged that the plaintiffs suffered any loss by reason of such expenditures.
3. No harmful error is shown by the exceptions taken to the overruling of the other grounds of special demurrer.
4. The evidence on the trial should be adjusted to the pleadings of the case; consequently, it was error to admit testimony, over proper objection, that the plaintiffs lost $100 by reason of having purchased 4 mules, when there was no pleading in the case to authorize the introduction of such testimony.
5. Under the pleadings of this case, it was not error to allow the plaintiffs to testify as to the different varieties of crops which they planned to cultivate on the land in question, the number of acres in each crop and the estimated reasonable yield and value thereof, and the estimated reasonable costs of production, where the court instructed the jury that such evidence was admitted solely for the purpose of enabling the jury to arrive at the difference between the value of the term and the amount stipulated as rent.
6. In an action for damages for breach of a contract to rent farm lands for the term of one year, the solvency or worldly circumstances of the defendant are not an issue in the case.
( a) Consequently, in such an action, the court erred in requiring the defendant to testify, over proper objection, that he had sold the farm to his brother since the institution of the action for damages.
7. As the case is being reversed, it is not necessary to determine whether or not the verdict was authorized by the evidence.
8. The trial judge erred in overruling the special demurrer, as dealt with in division 2 of this opinion, and in overruling special grounds 4 and 6, as dealt with in division 4 and 6 of this opinion.
DECIDED SEPTEMBER 5, 1946.
C. L. Burkett and O. L. Dorminey sued E. C. Shiver in the Superior Court of Worth County for damages for the alleged breach of a contract. The petition alleged in substance: That the defendant, on November 12, 1942, rented and leased to the plaintiffs land lot No. 456 of the 7th land district of Worth County for the year 1943 for farming purposes: that the plaintiffs agreed to pay $1200 as rent for said lands and executed and delivered to the defendant their rent note for this amount, which the defendant accepted; that they advised the defendant that they would immediately begin preparations to operate the farm for the year 1943 by securing necessary equipment, supplies, and employees; that they made a considerable outlay in money and services, which was a part of the necessary and reasonable preparations for operating the farm; that on December 7, 1942, the defendant returned their note to them by mail, with the following notation written across the back of the note: "Mr. Dorminey, I have tried to get something to build a house and can't get [it], so I am sending your note back as we will have to call off the trade. So I am returning your note marked canceled;" that the plaintiffs went to the defendant and offered him the note and told him they would not accept the note or consent to a rescission of the renting agreement; that on December 8, 1942, the plaintiffs went again to the defendant and told him of the obligations and expenses they had incurred before receiving notice of his intention to rescind the contract and notified him of their insistence upon the contract, and they tendered him the note, which he refused to accept; that the note was filed in court as a continuous tender; that the plaintiffs, after delivery of the rent note to the defendant and before his effort to return it to them, had incurred certain specified expenses and obligations as part of the reasonable and necessary preparations to operate the farm during the year 1943; that by operating the farm during the year 1943, the plaintiffs could and would produce certain specified crops, which would reasonably be worth the sum of $5000 over and beyond the costs of producing them; and that the defendant was insolvent. The prayers of the petition were for specific performance of the contract, or that the plaintiffs have judgment for their loss and damage; that the defendant be restrained and enjoined from renting said lands to anyone else for the year 1943, and for such other and further relief as might be just.
The defendant filed general and special demurrers to the petition, and also filed an answer, wherein he set out that he had rented to the plaintiffs the cultivatable lands on said land lot, and denied that he had rented to the plaintiffs the houses located thereon or the entire land lot. He admitted that he had returned the plaintiffs' note to them on December 7, 1942, and alleged that this was done because the plaintiffs demanded possession of the houses located on the land, including the defendant's residence, which was not in accordance with their contract; that after the rental contract had been made, the defendant agreed to build a house on the premises if he could obtain the material, but that he could not obtain the material with which to build the house, and that this agreement was not binding on him. He admitted that he had refused the plaintiffs' offer to return the note to him; and he denied substantially all the other allegations of the petition.
The plaintiffs amended their petition by setting out the crops which they had arranged to plant on the land, the number of acres planned for each crop, the amount that each crop would reasonably be expected to produce, and the value of the same and the reasonable costs of production.
The defendant demurred to the petition as amended, on the ground that no proper measure of damages was set out in the petition, and demurred specially to several paragraphs of the amended petition. The demurrers were overruled and the defendant excepted pendente lite.
On the trial, the plaintiff Dorminey testified in substance: that he and Burkett had rented the entire farm from the defendant, including the four tenant houses and the residence of the defendant located thereon, and had given the defendant their note for the year's rent, in the sum of $1200; that the defendant said that he would move immediately when they told him that they would not rent the farm unless they were given possession of all of the houses located thereon, including the one in which the defendant lived; that later the defendant mailed their note back to them with a notation thereon that he could not build another house and was calling off the trade and canceling the note; that he carried the note back to the defendant, who refused to accept it and said that the plaintiffs would have to make other arrangements; that the plaintiffs had incurred certain specified expenses in preparing to cultivate the land; that 280 acres of the land was in cultivation and would have produced certain specified crops; and the witness gave the estimated value of the crops which they would have made and the estimated cost of producing them.
The clerk of the court testified that the original note had been left in his office but had been misplaced. A copy of the note, which provided that it was "for rent for the year 1943 of 490 acres all cultivatable land on lot of land No. 456 in 7th district . . of Worth County, Georgia," was placed in evidence by the plaintiffs.
The defendant testified in part: that he had rented the land to the plaintiffs "just like the note provided," but that he only rented them the land and did not rent them the houses thereon; that the plaintiffs later asked him for the house in which he was living, and he told them that he would see if he could obtain materials to build another house, but that he could not do so, and that he sent them the note with a notation thereon why he was returning it; that he worked the lands during the year 1943 and made certain crops and incurred certain expenses; that 1943 was a "wet farming season" and he lost nearly $2000 farming the place that year; that the note set out the acreage of the farm as shown by his deed to the place; that he had sold the farm to his brother, but he could not recall how much he received for it; that the deed to his brother would show the terms of the sale; and that this deed had been recorded. There was other testimony for the defendant. One witness testified that $1200 was a fair rental for the defendant's farm; that only about 60 percent of an average crop was made in 1943, due to bad farming conditions. Another witness testified that $5 an acre for the cultivatable land was a fair rental for the defendant's farm, while another witness testified that he had rented land in the same community as the defendant's farm for $150 "a plow," and that "a plow" was 30 acres.
The plaintiff Burkett testified in part that he had heard the testimony given by Dorminey, and that it was correct; that the defendant did not say anything at the time the note was given about reserving possession of the houses located on the rented lands.
The jury returned a verdict for the plaintiffs. The defendant filed a motion for a new trial, which he amended. The exception here is to the judgment overruling the defendant's demurrers and to the judgment overruling the amended motion for a new trial.
1. The measure of damages for not letting a lessee or tenant into possession at the beginning of the term is the excess in value of the term over the amount stipulated as rent. Kenny v. Collier, 79 Ga. 743 ( 8 S.E. 58). The value of the term for one year, where the contract is for the rental of land for farming purposes, is the difference between the gross value of the products of the farm less the cost of production. Nicholson v. Williamson, 29 Ga. App. 692 ( 116 S.E. 321). In the present case, the plaintiffs in their amended petition alleged the kind of crops which they had planned to plant on the lands, the number of acres which they would have planted in each, and the yield which they would have made, the cost of producing the crops, and the net amount which they would have realized from the farm if they had been permitted to cultivate it for the term provided by their rental agreement. The amount of rent was listed as part of the cost of producing the crops. The defendant demurred to these allegations upon the grounds that they were irrelevant and were too speculative and remote to form the basis of any recovery against him, and the petition was demurred to on the ground that no proper measure of damages was set forth. The court did not err in overruling these demurrers. "While the value of the term when arrived at as above indicated is a matter of more or less speculation, yet such evidence is sufficient to authorize the jury to make as fair and as just an estimate of the damage sustained by the plaintiff as the necessities of the case will allow, giving due consideration to what the plaintiff himself, in the performance of his contract, might have actually produced upon the premises." Nicholson v. Williamson, supra. Also see Miller v. Townley, 57 Ga. App. 645 ( 196 S.E. 80); Williamson v. Payne, 30 Ga. App. 652 ( 118 S.E. 598); Wideman v. Selph, 71 Ga. App. 343 ( 30 S.E.2d 797).
The cases of Kenny v. Collier, supra, Miner v. Graham, 60 Ga. App. 189 ( 3 S.E.2d 211), and Palmer v. Ingram, 2 Ga. App. 200 ( 58 S.E. 362), cited and relied on by the plaintiff in error, are distinguishable on their facts from the present case, and do not authorize or require a ruling in this case different from the one herein made. In Kenny v. Collier, supra, the property was a storeroom and basement, and the court said in its opinion: "It nowhere disclosed what the plaintiff's business was, or that the defendant knew or had stipulated anything concerning it. The written contract was silent as to any business or any specific purpose for which the premises were let or were to be occupied and used." But in the present case it was alleged that the property was rented for farming purposes, and the allegations of the petition set out the kind of crops intended to be planted, the reasonable yield to be expected therefrom, and the costs of production and market value of the various crops which the plaintiffs had planned to plant on the rented lands. In Miner v. Graham, supra, the property rented was a cottage, and the damage alleged was "the amount of net profit which she [the plaintiff] would have made during the season at Savannah Beach, which extends from about May 15th to about September 10th;" and, while the petition alleged that the property was rented or leased to be used as a boarding-house, no facts were alleged to show that the actual value of the term was in excess of the stipulated rent, or that the plaintiff would have in fact made a new profit had she been allowed to operate a boarding house in said cottage for the term for which it was rented. In Palmer v. Ingram, supra, the court held that it was error "to allow as damages the difference in the stipulated rent and the gross value of the products of the farm for the year of the lease, without any deduction for cost of production." In the present case, the cost of producing the crops is deducted from the gross value of the products of the farm, and the net profit is alleged to show the excess in value of the term over the stipulated rent.
2. The defendant demurred specially to paragraph 7 of the petition which set out: "That, after delivery of said note to defendant, and prior to said effort to return it, and as part of reasonable and necessary preparation to operate said farm on said land during the year 1943, petitioners incurred the following expenses and obligations to wit: they paid out $798 for corn; they advanced $69.62 to induce one employee for 1943, Harry Only, to accept such employment on said farm; paid out $225 for two additional mules; incurred divers and other expenses; contracted for $37 worth of hay already; made truck trip worth $25 reasonably in order to move said employee, Harry Only, from Lakeland, Georgia, to Worth County; paid our $500 on purchase of a tractor, and became indebted for $600 additional on purchase-price of said tractor; and petitioners contracted with five employees to employ them on said farm and to provide houses for them and their families thereon during 1943; and it is impossible to compute the exact loss, damage, and liabilities which petitioners have incurred to and concerning said employees, if petitioners are wrongfully deprived of said farm during the year 1943 by defendant." The grounds of demurrer are that: "(a) such items are not proper items of damage to be claimed by the plaintiffs; (b) it is not alleged which, if any, of said items caused plaintiffs any loss; (c) the said plaintiffs fail to set forth what became of the corn, mules, hay, the employees, or the tractor referred to in said paragraph, and no allegation is contained in said paragraph or elsewhere in the petition that any loss occurred to plaintiffs in connection with the same."
We think that the demurrer should have been sustained. The mere fact that the plaintiffs had purchased certain property in preparation to comply with the terms of the rental contract, without any facts alleged to show that the plaintiffs sustained a loss by reason of such purchase, does not show a proper item of damage for breach of the contract. The gross expenditures made by the plaintiffs in purchasing mules and equipment and in securing employees to work on the farm, it not appearing that the plaintiff actually sustained any loss thereby, were not proper items of damage for breach of the contract of rental. In this connection, see Price v. Burns, 43 Ga. App. 821 ( 160 S.E. 531); Bernhardt v. Federal Terra Cotta Co., 24 Ga. App. 635 (3) ( 101 S.E. 588); Harrell v. Southern Ry. Co., 14 Ga. App. 451 ( 81 S.E. 384); Palmer v. Hall, supra. The court erred in not sustaining the special demurrer to paragraph 7 of the petition and in not striking it.
3. No harmful error is shown by the exceptions to the overruling of the other grounds of special demurrer.
4. In special ground 4, the plaintiff in error contends that the court erred in allowing the plaintiff Dorminey to testify during the trial that he bought four mules for himself and lost $100 on them, over the objection that there was no allegation in the petition of any loss claimed to be due by reason of the purchase of mules. We think that this objection was well taken, and that the court erred in overruling it and in allowing the testimony. While the plaintiffs did allege that they "paid out $225 for two additional mules," there was no allegation in the petition of any loss sustained thereby. Irrespective of whether or not the demurrer to the above allegation should have been sustained, there was no averment in the petition setting up any loss in connection with the purchase of four mules, and the defendant was entitled to know by the plaintiff's pleadings what elements of damage were claimed by them in the court below. There being no pleadings in this case to authorize the introduction of testimony as to any loss by reason of the plaintiffs having purchased four mules, the objection to the testimony was good, and the court erred in overruling the objection and in allowing the testimony.
5. In special ground 5, the plaintiff in error contends that the court erred in allowing the defendants in error to show the different varieties of crops which they had planned to cultivate on the land in question, the number of acres in each crop and the estimated reasonable yield and value thereof, and the estimated reasonable cost of production. The objection to this testimony was that it was irrelevant, immaterial, and speculative. In ruling on the objection, the court instructed the jury: "The foundation of this action, of course, is the contract; and the plaintiffs in the case are suing for the difference in what they agreed to pay for the rental of the land [and] what the land's actual rental value was. Now it may be that in the course of the investigation they will inquire into the farming operations, or what might have resulted from their farming operations, but that evidence is admitted solely for the purpose of enabling you to arrive at what the actual difference [was] between the rental value and what they agreed to pay for the land." It was held in Nicholson v. Williamson, supra, that, "While the value of the term when arrived at as above indicated is a matter of more or less speculation, yet such evidence is sufficient to authorize a jury to make as fair and as just an estimate of the damage sustained by the plaintiff as the necessities of the case will allow, giving due consideration to what the plaintiff himself, in the performance of the contract, might have actually produced upon the premises." The evidence was not inadmissible for any reason assigned, and the judge did not err in overruling the objection and in allowing the testimony.
6. In special ground 6, the plaintiff in error contends that the court erred in requiring him, while on cross-examination, to answer the question, "Mr. Shiver, since this suit has been filed against you, you have rigged up a sale of the place to your brother, haven't you?" over the objection that it was irrelevant, immaterial, and highly prejudicial. In passing on this objection, the court ruled: "As this involves a suit for damages, I think the disposition of the property would be proper for the consideration of the jury." We think that the objection was good, and that the court erred in overruling the objection and in allowing the defendants in error to show that the farm had been sold by the plaintiff in error since the action had been filed. All equitable features of the case had been abandoned, and the action was tried as one at law for the recovery of damages for the breach of a contract to rent farm lands for the term of one year. The solvency or worldly circumstances of the plaintiff in error were not an issue of the case, and the evidence, that he had "rigged up a sale of the place to his brother" since the institution of the action for damages against him, was not illustrative of any issue of the case. See Georgia Railroad v. Homer, 73 Ga. 251, 257; Smith v. Satilla Pecan Orchard c. Co., 152 Ga. 538 (3), 545 ( 110 S.E. 303).
7. As the case is being reversed, it is not necessary to pass on the question whether the verdict was authorized by the evidence.
8. The trial judge erred in overruling the special demurrer, as set out in division 2 above, and in overruling special grounds 4 and 6, as dealt with in divisions 4 and 6 of this opinion.
Judgment reversed. Parker, J., concurs. Felton, J., concurs i the judgment.