Plaintiff in error was defendant, and defendants in error were plaintiffs, in the trial court, and for convenience parties will be referred to as they there appeared.
This was an action to recover upon an account for goods, wares, and merchandise. Defendant filed an amended answer which alleged that about the _____ day of April, 1911, he made a contract with plaintiffs to furnish him with groceries and other necessary provisions to run him during the full crop season, spring, summer, and fall, and until the crops were gathered, including sufficient supplies for a man working for defendant upon shares, and that plaintiffs took a note for $479.84, to secure the payment of which defendant executed a mortgage upon his crop for 1911; that defendant owned eight head of work stock in addition to the stock furnished his share cropper and had 300 acres of land in cultivation, 200 acres of which had been sowed in oats; that the oat crop failed, and it was defendant's intention to plant said land in kaffir corn and milo maize, of which fact plaintiffs were advised, and that had defendant planted said crops said lands would have netted him $5 per acre; that defendant had employed two hands to help him through the crop season, but that during the month of May plaintiffs breached their said contract and refused to furnish him with provisions, and that by reason thereof defendant was unable to procure such provisions anywhere else except for cash; that he did not have sufficient money with which to pay his said hands and buy provisions necessary to carry on his work, and was compelled to discharge his *Page 21 said hands and to pay cash for provisions he was required to have and was unable to plant his fall crops as he had intended to do; that plaintiffs knew of these facts at the time and knew defendant's circumstances, and knew that he would be unable to buy provisions elsewhere except for cash, and knew that he was unable to pay cash for his provisions and keep said hands; that, by reason of plaintiffs' breach of said contract, he was compelled to discharge his said hands, was left with two teams in his possession, which were required to remain idle for 90 days; that the usable value of said teams had he been able to retain said hands in his employment and use said teams in his crop, was $2.50 per day each; and in addition to said loss was compelled to incur an extra expense per team per day for 90 days, of 50 cents — for all of which he prayed judgment. Reply was filed, and when the case came on for trial, after the jury had been regularly impaneled and after respective counsel had made their statements to the jury, plaintiffs moved the court for judgment on the pleadings and opening statement of counsel for defendant, for the reason that said answer and opening statement constituted no defense to plaintiffs' cause of action. This motion was sustained, to which action exceptions were saved, and judgment thereupon rendered in favor of plaintiffs for the amount prayed.
It was error for the court to sustain the motion for judgment on the pleadings and opening statement of counsel if the allegations of defendant's answer constituted a defense. Mascho et al. v. Johnson, 49 Okla. 646, 153 P. 630.
The sole question briefed by counsel for both sides is whether the allegations of defendant's answer presented any defense to the plaintiffs' action. Plaintiffs contended that said answer was insufficient: (1) Because the damages claimed were in no way connected with the contract or subject-matter of the suit and were not in contemplation of the parties when they entered into the contract; and (2) that the damages claimed are purely speculative and too remote and uncertain to create any liability because of the alleged breach of contract.
In Ft. Smith Western R. Co. v. Williams, .30 Okla. 726,121 P. 275, 40 L. R. A. (N. S.) 494, the following is quoted from a Kansas case with approval:
"It is well settled in this state that damages based upon prospective profits which would have been realized had the contract been performed may be allowed, providing they are fairly within the contemplation of the parties, or the direct natural consequence of the breach of the contract, and are susceptible of being ascertained with reasonable certainty."
This language was quoted with approval in case of First State Bank of Mannsville v. Howell et al., 41 Okla. 216,137 P. 657, which was an action to recover certain property covered by chattel mortgage, given by one Howell to J.B. Wall, a merchant, and by him assigned to plaintiff. One of the errors assigned was the action of the court in refusing to sustain a demurrer to the seventh paragraph of defendant's answer, which charged in substance that, at the time Howell executed the notes and mortgage in controversy, Wall had agreed to furnish Howell out of his store such supplies as would enable Howell to make a crop during the year 1909; that Wall failed and refused to do so, on account of which failure Howell was compelled to work out for $1 per day when he should have been in his crop; that the services of himself and teams in his crops during such time were worth $3 per day; that, on account of the fact that his teams and other personal property were mortgaged to Wall, he was prevented from obtaining credit elsewhere, all of which was known to Wall at the time the notes and mortgages were executed; and that, as a direct and proximate result of such failure and refusal on Wall's part to comply with the terms of his said agreement and furnish Howell the supplies necessary to enable him to plant and care for his crop, he was compelled to and did neglect planting it for two months, and the same was damaged and his profits thereby reduced in the sum of $250, and thus there was squarely presented the question whether damage to a crop such as was charged and proven in that case could be recovered in an action for the breach of the contract between Howell and Wall. After citing Ft. Smith Western R. Co. v. Williams, supra, and noting the fact that the general rule in these cases is that the true measure of damages where the seller fails to deliver goods sold, where the purchase price had not been paid, is the difference between the agreed price and the market price at the time and place of delivery with interest, it was said:
"But, when this cannot be done, the rule does not apply. Such is the condition in the case at bar" — and such is alleged to be the situation here.
And after citing section 2852, Rev. Laws 1910, and calling attention to the fact that the contract alleged in the answer was not denied by reply or otherwise, and that the jury, as it had a right to do, had found, according to the contention of the defendant, that such a contract was made as alleged, said:
"Therefore we are bound to say that the parties, at the time they made the contract, had in mind the profits that would arise from *Page 22 the making of a crop. That was, and of necessity must have been, in contemplation of the parties at the time the mortgage was executed, for the mortgage covered all the crops to be grown by Howell as well as the mules in question. This being true, we have no hesitancy in saying that the rule fixing the measure of damages heretofore announced is not only supported by reason and authority, but by the statute above quoted" — and in support of this statement cites the following cases: "Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Rice v. Whitmore, 74 Cal. 619, 16 P. 503, 5 Am. St. Rep. 479; Joyce on Damages, sec. 1374."
The court then determined the purpose for which said evidence was competent in that case, and continued:
"Of the correctness of the foregoing position, we do not think there can be any question. It is undisputed that there was such contract made, as alleged in Howell's answer that its terms were broken by Wall; that Howell was damaged as alleged in his answer. The testimony was amply sufficient to sustain the verdict, which warrants us in finding that Howell's story is true, wherein he says that he could not get supplies from Wall; that, in order to support his family, he had to work away from home by the day, when his services, with the team, were required in his * * * crop, and were worth at least $2 per day; that thereby his crop was planted late, and was caught by the drought; that he had 25 acres, of corn that made only 5 bushels per acre, while his neighbors, with the same labor, on the same quality of land, made 25 bushels per acre, which was worth 50 cents per bushel. On this basis he showed a damage of $250 in testimony wholly undisputed. Thus his damage was ascertainable by the plainest, easiest, and most accurate measure possible, by showing the loss of property, occasioned by the damage done the crop. Making a crop was one of the principal thoughts the parties had in mind when the contract was made. It was for that purpose he made the contract. Had he wanted to work out by the day, there would have been no necessity for the contract and mortgage; but, if he made a crop, he must needs make provision for the sustenance of his family and team while doing so, and, when he made the contract with Wall (the principal contract between them evidenced partially by the notes and mortgage), it was in the contemplation of their minds that no crop could be made unless the supplies were furnished, and that to fail to furnish the supplies at the time they were needed could result only in damage to Howell, and therefore the allegation and proof to support the same were properly presented to the jury in order to make defendants' legitimate defense."
See At. B. Air Line R. Co. v. Brown, 158 Ala. 607, 48 So. 73; Skagit R. L. Co. v. Cole, 2 Wash. 57, 25 P. 1077.
The opinion seems to be decisive of this case. It is specifically alleged that plaintiffs and defendant entered into a contract by which plaintiffs agreed to furnish defendant with groceries and other provisions necessary to run him during the full crop season, spring, summer, and fall, and until crops were gathered, and, inasmuch as the motion of the plaintiffs for judgment must be treated its admitting this allegation to be true, we must assume that there was a contract to furnish supplies to defendant during the entire crop season and until all the crops were gathered; and assuming such a contract was to have been made, it was clearly one of the principal objects of the parties in entering therein to enable defendant to make a crop or crops during that crop season and to provide himself with the provisions necessary for carrying on his work, and as said in Bank v. Howell:
"It was in the contemplation of their minds that no crop could be made unless the supplies were furnished, and that to fail to furnish the supplies at the time they were needed could result only in damage."
And we are bound to say that the parties had in mind the profits that would arise from the making of a crop; that was and of necessity must have been in Contemplation of the parties at the time the mortgage was executed, for the mortgage covered the crops to be grown by defendant during that year.
In addition to the loss of the crop, there is a specific allegation that defendant owned eight head of work stock besides that used by his share cropper, which he was unable to employ for a period of 90 days in the work of cultivating his crops, and that said teams were of the reasonable usable value of $2.50 per day for said time, and that he was, in addition thereto, compelled to incur an extra expense of 50 cents per day during said period, and an item of this character was involved in the Howell case and held to be a proper item of recovery. The objection that the damages claimed are too remote and speculative was also considered in the Howell case and held to be not well taken.
The action of the court in directing a verdict for plaintiffs, without giving defendant an opportunity to offer evidence in support of the allegations of his answer was error, and the cause is, accordingly, reversed and remanded for a new trial in accordance here-with.
All the Justices concur, excepting SHARP and THACKER, JJ., who concur except in the rule announced in the first paragraph of the syllabus.