The nature and character of the claims sued on by the appellant, as well as the counterclaim of the appellee, is correctly stated in our former opinion herein. We may add, for the purpose of responding to the suggestion of error, that the sum of $1,137.85 was sued for as an amount past due and owing to the appellant for services actually rendered under an expresscontract in that behalf, and not on a quantum meruit basis. The sum was evidently allowed by the decree of the trial court upon the theory that the complainant had fully performed, on its part, the terms and conditions of the written contract, up to the date of April 12, 1943, when the same was breached and terminated by the defendant, upon the alleged ground that the complainant had failed to furnish the local station its radio news reports covering the Mississippi senatorial election returns in August, 1942, and had declined to compensate the defendant for the damages claimed by it to have been sustained on account of such failure.
The other claim sued on by the complainant, in the sum of $1,705.42, was denied by the trial court, as was likewise the counterclaim of the defendant under its cross-bill in the sum of several thousand dollars as damages for alleged failure of the cross-defendant to furnish the election returns.
It was the contention of the defendant that the election returns were not furnished because of its refusal to pay *Page 76 an extra assessment of $25 therefor, and where such extra charge was not provided for in the written contract between the parties. And on August 31, 1942, the complainant conceded in a letter that, "as for the charges involved, your contract of course does not provide for this," but that, "It is common Association practice to assess clients who use the special service a proportionate share" (of the extra cost of furnishing such returns). The complainant introduced proof to show that, in view of the manner in which its teletype machines were connected with the wires of the Telephone and Telegraph Company, it would have been physically impossible for the other stations, which it was serving as customers, to have received these returns without the defendant having also received them. It was nevertheless denied by the defendant that it received more than a meager portion of the bulletins shown to have been transmitted to the other stations. In other words, there was a conflict in the testimony as to whether or not the complainant actually furnished the returns, without regard to whether or not it was entitled to make the extra $25 charge therefor, and which was never paid.
There was no express finding of fact made by the trial court, nor does the record show that he was requested to make one, as to whether or not there was a failure to furnish the said election returns — the only breach of the contract which the defendant claims was committed by the complainant as a justification for its subsequent breach of the contract in April, 1943 — and in view of the fact that the court, in its final decree, dismissed the complaint of the defendant under its cross-bill in regard thereto, and failed to allow even nominal damages in favor of the cross-complainant, as for a failure to furnish such returns, it was stated in our former opinion herein that, "the finding by the chancellor, and supported by the testimony, implies that there was no breach by the association, and that although the latter was able and willing to *Page 77 continue the service contracted for, the station had unjustifiably cancelled and repudiated the contract."
In the absence of a finding of fact we are unable to determine why the claim for $1,705.42 was disallowed in favor of the complainant, since the proof clearly established without contradiction that this amount of anticipated profits had been lost by the complainant on account of the defendant's repudiation of the contract on April 12, 1943, as representing the difference between what it would have cost to continue furnishing the regular services provided for under the contract, and the amount that it would have received therefor, during the remainder of the term thereof. We cannot assume that the trial court was of the opinion that the complainant had breached the contract in failing to furnish the election returns, since the action of the said court in not allowing even nominal damag-under the cross-bill would imply that the complainant had not done so, especially in view of the fact that the court allowed it compensation for services rendered under the express terms of the contract, for several months after the election, and until April 12, 1943, and not on a quantum meruit basis.
The Court has carefully considered all the questions involved on the suggestion of error, and to that end we called for additional briefs thereon, and in our judgment the former opinion herein is correct, and the right conclusion was reached. The suggestion of error will, therefore, be overruled.
Overruled. *Page 78