SMITH, C. J., dissenting. The plaintiff being indebted to the defendant by a judgment for about $2,300, wrote to defendant on 29 April, 1871, who was a large dealer in corn and meal, as follows : Dear Sir — I am without means now, of paying the Oldham, Denmark Co. claims (alluding to said judgment) and I propose to liquidate the claims with means at my command, and they are these, viz., to grind all the meal you want, on the following terms — for every 56 pounds of good clean corn furnished, I will return fifty pounds of bolted meal, sewed up in your sacks and delivered to your store, (you deliver corn to mill,) and you credit O. D. Co's. old account with eight cents per bushel. Hoping this liberal proposition may meet your approbation, I am, etc. (Signed by plaintiff).
The defendant accepted this proposition as is shown by his sending corn to plaintiff's mill and crediting plaintiff with the price of the grinding according to its terms, until 1 September, 1871, when he ceased sending corn to plaintiff's mill for about two weeks. On 20 September, the plaintiff wrote to defendant a second letter, which is not material to be set out here, and on the next day the defendant resumed sending corn to plaintiff's mill, and continued to do so until 15 October, when be notified plaintiff that he would not send any more corn, and demanded payment of the balance due on the judgment, and issued execution thereon, which was levied on the property of plaintiff. The plaintiff afterwards paid the said balance. The defendant sent no corn afterwards.
The defendant endeavored to prove that plaintiff had released him from liability on the contract above stated, but the jury found against defendant upon that issue, and we do not concern ourselves with it here.
The judge presented several questions to the jury, and they (109) found the contract to have been in substance :
1. That defendant should deliver to plaintiff, corn to be ground, enough in quantity to pay off the said debt of plaintiff at eight cents per bushel of meal delivered to defendant, and plaintiff agreed to grind all corn delivered to him under the contract at that price, and upon the other terms of the contract, which are not material to be noticed here.
2. That the difference between the eight cents per bushel which defendant agreed to pay for grinding, and the actual cost of grinding, to the plaintiff, was five cents per bushel.
3. That the quantity of corn which the defendant ought to have *Page 93 delivered according to his contract, and failed to deliver, was 20,430 bushels.
4. That plaintiff had sustained damages by defendant's breach of his contract to the amount of $1,021.50, which included interest from 20 September, 1872, to the time of the trial.
Before considering the questions which are made on the merits of the case, it will be convenient to dispose of some which are collateral: The defendant asked the Judge to submit an additional issue "was getting payment of the judgment the defendant's sole inducement for making the alleged contract?" — and the Judge refused to do so. We think the Judge was clearly right. What was the inducement or motive of the defendant to making the contract, as distinct from the consideration, was immaterial; and evidently the getting his corn ground on the terms proposed, was the consideration of his contract, and at least a part of his inducement to make it. The submission of such a question to the jury would only have embarrassed them.
The defendant prayed the Court to instruct the jury, "that the profits which plaintiff would have made if the contract alleged in the complaint had been fully carried out, are not the proper measure of damages; that plaintiff is only entitled to actual damages; that having offered no proof of any such, is entitled to only nominal (110) damages." The Judge refused, and although some part of the prayer was correct (as will be seen), yet as a whole it was erroneous, and the Judge was justified in refusing it.
The defendant also prayed the Court to instruct the jury that the contract was nudum pactum or at least, that it was so if eight cents per bushel was a fair price for grinding. The Judge declined to do so, and in our opinion rightly. There was a consideration for the defendant's contract, to wit, the agreement of plaintiff to do the work; and it was not the less a consideration because it was to be done at a fair price.
The charge of the Judge as to the compromise and release of the plaintiff's claim seems to have been fair and correct. [The issue in respect to this was — "were the causes of action alleged in the complaint compromised and settled between the parties upon sufficient consideration? Answer, No." And the instruction on it was — "that the jury must say whether the plaintiff agreed with defendant's attorney to surrender his right of action for the alleged breach of contract, and if plaintiff did so agree in consideration of receiving the forbearance on the execution, as testified to, then this was a sufficient consideration binding on plaintiff and the jury must find the issue in the affirmative; that a contract is the assent of two minds to the same thing in *Page 94 the same sense, and that they must consider all the testimony on the point and say whether the plaintiff did agree to compromise as alleged; that the plaintiff was not barred from recovering in this action by reason of his agreement in regard to any matter other than the cause of action which he now sues on, and if in the conversation with said attorney, the plaintiff did not understand him as referring to the cause of action sued on, then the jury must find the issue in the (111) negative."] If two parties in bargaining do actually misunderstand each other, if their language is equivocal, and one is meaning to speak of one subject, and the other of another, it is clear that there is no contract; for there is not that aggregatio mentium necessary to make one. If the words are clear and unequivocal, neither party can say that he understood them in a different sense from what they plainly bear; and if either party knows that the other understands him as speaking of one object, or with one meaning, he will not be allowed to say that he had in his mind another object, or intended a different meaning. But the question as to whether the plaintiff did agree to release the claim sued on or not, was fairly left to the jury and decided by them in the negative.
These observations meet all the questions which appear to have been raised up on the trial, or which appear from the written argument of the defendant's counsel filed in this Court, to have been presented here. It is agreed, I believe, by all the members of the Court that on all these questions the position of the defendant is untenable, and that the Judge committed no error in his rulings on them.
We can proceed now to consider such objections to the judgment in favor of the plaintiff as bears the merits of the case: The Judge told the jury that the measure of damages was the difference between the cost of grinding, and the contract price; and the jury, as has been seen, found this difference to be five cents per bushel. We think it is now well established that the profits which a plaintiff would have made if the contract had been complied with is the measure of damages for its breach, in cases like the present. There are of course cases not within the rule, as where the profits are speculative and incapable of accurate ascertainment, or, so remote that they can not be supposed to have been within the contemplation of the parties, or, where they depended on facts of which the defendant had no notice, and which therefore could have not been in their contemplation.
(112) Where a defendant had covenanted to teach a slave a trade, and failed to do so, the owner was held entitled to recover the sum which would have been added to this value, if he had been taught. Bell v. *Page 95 Walker, 58 N.C. 43. In Spiers v. Halstead, 74 N.C. 620, the damages were held to be the profit which the plaintiff would have made upon selling the goods, if they had arrived in due time. To a like effect are Mace v.Ramsey, 74 N.C. 11, and Clements v. The State, 77 N.C. 142.
It is suggested, however, that the instructions of the Judge as to the measure of damages, though correct as far as they went, were erroneous, in this, they ought to have stated that the actual loss sustained by defendant's breach of contract was the true measure of damages, and if the plaintiff after defendant's refusal to deliver corn to be ground under the contract, did receive from other persons employment more or less lucrative, for such part of this machinery as would have been occupied in performing his contract with the defendant, or by reasonable effort on his part might have received such employment, the profit that was, or might have been thus made must be deducted from the profit he would have made, had defendant performed his contract, in order to ascertain the actual damage. We think the instructions given would not have been erroneous with this or some equivalent addition, and that they would have been positively erroneous without it, if there had been anything in the evidence to which such a doctrine was applicable.
In the law of master and servant the doctrine is established both on reason and authority, that if a servant be wrongfully discharged by his master during the time of service contracted for, he may treat the special contract as rescinded by the discharge, and sue immediately, in which case he would recover as upon a quantum meruit for the service rendered before the discharge, if he had not received (113) payment for that; and also, damages for the breach of contract in discharging him, though it seems that the rule by which this last damage is to be ascertained is not well settled (Brinkley v. Swicegood,65 N.C. 626; 31 Barb, N. Y., 81; Hilt, N. Y., 300), or, he may wait until the end of the term and recover the full price agreed to be paid for the term, subject to be diminished on proof by the master, that the servant did receive or might have received employment elsewhere. Hendrickson v.Anderson, 50 N.C. 246. This doctrine would be applicable in this case if there were facts to make it so. The contract of plaintiff to grind a certain quantity of corn for defendant, although it did not create strictly the relation of master and servant, yet did create an analogous one; and if it had appeared that plaintiff's mill had, after defendant's refusal to send corn, in fact received, or but for plaintiff's refusal would have received a quantity of custom sufficient to disable him in whole or in part from performing his contract with *Page 96 defendant, such a fact ought to have gone in diminution of plaintiff's damages; and the Judge ought, if requested by defendant, so to have told the jury. But he was not so requested; no such point in defence was made in the Court below or by counsel in this Court. It deserves consideration, whether it will promote the attainment of justice in a case, to allow apparent defects in the evidence of a particular fact in the case of a party successful below, to be first pointed out and excepted to in this Court by an appellant. The case is made out by the appellant subject to the revision of the Judge, upon objection by the appellee; but it is a substitute for, and is in the nature of a bill of exceptions upon a writ of error. Such a proceeding is regarded as a new suit in which the judgment below is taken to be right unless the plaintiff in error shows affirmatively some error therein, and that exception was taken on the trial to the proceeding or ruling alleged to be erroneous. The (114) defendant in error is in no case required to show affirmatively and upon the bill of exceptions, or case, that he was entitled to the judgment in his favor obtained below. His position is strictly defensive. The judgment below is assumed to be right until some specified error is shown. Still less is the appellee bound to show that he had a good case "to a certain intent in every particular," so as to exclude every supposition to the contrary, as in effect he will be held to do, if the appellee's claim or defence is supported in all respects by full proof. It is the rule of all Courts of appeal, and this Court has repeatedly said, that no more of the evidence or facts should be inserted in a case than is necessary to explain the exceptions of the appellant.
Hence, in this case it would be contrary to established practice to require the plaintiff to show from the case made out by the appellant that his claim was supported by evidence that his mill had not been so employed as to diminish his damages. It may be that the evidence to that effect was ample, but was omitted from the case as superfluous, because the want of such evidence was not excepted to. We think, however, that it does appear in the case that the plaintiff in fact proved all that was incumbent on him in this respect. The case states as a fact not apparently disputed "that plaintiff was ready, able and willing "to grind the whole amount of corn necessary to pay the judgment at the contract price. When the plaintiff proved a contract, its breach, and the loss of a certain profit resulting from the breach, upon all the authorities the burden lay on the defendant to prove anything in diminution of the damages.
In Hendrickson v. Anderson, supra, it was held that an overseer employed for a year and prematurely discharged, could recover the *Page 97 full stipulated wages, unless the defendant should misconduct, etc., (115) in diminution of damages. BATTLE, J., says: "But in a suit for the stipulated compensation, the defendant may show in diminution of damages, that after the plaintiff had been dismissed, he had engaged in other lucrative business. This, however, must be proved by the defendant,and must not be presumed." The case of Cortigan v. R. R., 2 Denio 609, is cited and fully sustains the positions that the burden is on the defendant; The Court say — "but first of all the defence set up should be proved by the one who sets it up. * * * The rule requires him to prove an affirmative fact; whereas the opposite rule would call upon the plaintiff to prove a negative. * * * He is the wrong doer, and presumptions between him and the person wronged should be made in the favor of the latter. For this reason, therefore, the onus must in all cases be upon the defendant." To the same effect are Walworth v. Pool, 9 Arm., 394; King v. Steien, 44 Penn., St., 99; Jones v. Jones, 2 Swan (Tenn.), 605.
In the present case the defendant introduced no evidence of the sort spoken of, and there was therefore nothing in the evidence to call for or justify the addition or qualification to the Judge's instructions, which has been suggested as proper, even if such addition or qualification had been asked for. The judgment below is affirmed.