
    Studdard et al. v. Carter.
    [82 South. 70,
    Division B.
    No. 20721.]
    1. Loos and Logging. Contract for sawing logs. Election to treat contract as breached.
    
    Where a contract by which plaintiff was . to saw logs at a stated price for defendant provided, that in case the market should become dull, so that defendants could not dispose of their lumber without loss, plaintiff should close down his mill. In such case plaintiff could elect to treat the contract as breached where defendants failed to supply logs for nearly a year after the lumber could have been sold at a profit, and the bringing of suit was such an election.
    2. Logs and Logging. Breach of contract. Damages. Amount.
    
    Under the evidence as set out in this case which was an action for breach of contract to furnish logs, which were to be sawed by plaintiff for defendants at a certain price per thousand feet, the court held that the jury was warranted in finding a larger verdict than forty-five hundred dollars.
    3. Damages. Speculative damages.
    
    Evidence is not speculative which shows the cost of each item with reasonable certainty as the law only requires reasonable certainty and not mathematical certainty.
    4.' Damages. Duty to mitigate. Who may invoke the rulé.
    
    Where the contract obligated plaintiff, the owner of a saw-mill, not to buy timber from- others without defendant’s consent during the time he was employed to cut timber for them, and defendants breached the contract by failing'- to furnish timber, they are not in a position to invoke the rule that the plaintiff should be charged with such sums as he could have earned by taking other contracts; where defendants did not notify plaintiff that they wer,e willing for him to contract for timber with others.
    5. Appeal and Ebroü. Verdict approved by chancellor. Conclusiveness.
    
    While the chancellor has the power to set aside a jury verdict in cases where a jury trial is not granted by statutes and decide it in accordance with his own conception of the truth of the facts in issue, he will ordinarily not'do so, unless in his judgment the jury’s finding is manifestly wrong and where a jury’s verdict is approved by the chancellor, by rendering judgment thereon, the supreme court, on appeal, will not reverse for misdirection of the jury, unless it could say that the facts did not support the verdict, or unless the court was convinced from the whole record that the chancellor misconceived the law applicable to the ease.
    Appeal from the chancery court of Warren county.
    Hon. E. N. Thomas, Chancellor.
    Action by M. S. Carter against John E. Studdard and others. From a judgment for plaintiff, defendants appeal.
    The facts are fully stated in the opinion of the court.
    
      J. C. Bryson and Holmes & Holmes, for appellants.
    
      Dabney & Dabney, for appellee. ,
   Ethridge, J.,

delivered the opinion of the court.

This is the second appeal in this case. The first case is reported in 118 Miss. 345, 79 So. 225, where the contract involved is set out in full..

The contract may he briefly summarized here by stating that appellee, Carter, and appellants, Studdard and White, entered into a contract reciting that Stud-dard and White were the owners of certain timber situated in Warren county, Mississippi, and that the appellee was the owner of a sawmill located at the time of the making of the corftract in Fulton, Tenn., and tlaat appellee agreed to move his mill to Mississippi at his own expense, making two sets upon the land upon which the timber was growing. The appellants agreed to deliver to the appellee logs on the yard skidway at their expense, and the appellee agreed to saw into lumber the logs from twelve inches in diameter and up, manufacturing the same into the best widths and standard thicknesses as directed by appellants. For the cutting of the timber and lumber the appellants agreed to pay appellee at the rate of five dollars per thousand feet for oak, poplar, cottonwood,' and lynn, and five dollars- and fifty cents per thousand feet for hickory, but 'no lumber under No. 2 common to be paid for except as thereinafter provided. Settlements were to be made for the cutting on. au estimate, of the amount of lumber cut and stacked at the end of every two weeks, less five per cent., and the final settlement for the manufacture of the lumber -to be based on, and made •from, the sale of the lumber, after deducting the cost-of manufacture, selling, and loading on cars, collection for the lumber, and adding to this cost stumpage value at five dollars per thousand feet for the-oak and poplar and six dollars for the hickory lumber, for all grades except No. 2 common, which should be charged for, stumpage value, at the rate of two dollars per thousand feet; the cottonwood and' lynn at three dollars and fifty cents per thousand for ■ all grades except No. 2 common, which should be charged for at. the rate of two dollars per thousand feet, stumpage value, which charges were to be retained -by the said appellants; and from the amounts received from the sale of the lumber, over and above all expenses, the appellants were to have two-thirds and the appellee‘one-third; said one-third to be for services rendered by appellee in the scaling of logs, loading cars, measuring lumber, and looking after the interest of the appellants in the most profitable manner. The- appellee was to furnish sticks and foundations and to stack the lumber at a price not to exceed fifty cents per thousand; and to keep the lumber cleaned up from the yard and put into stacks promptly, so it would not be damaged from the weather or being in bulk in the yard; and to make weekly reports by mail giving approximately the amount, kinds, and grades of lumber; and to look after the scaling, cutting, and loading and measurements of lumber, and to keep account of the amount each man hauled. The appellee further agreed to saw any lumber from any additional timber the appellants might purchase from time to time at the same prices and conditions as on the tract here involved. Clause 14 of the contract then provided: ' .

“The said second party (appellee) agrees not to negotiate for or to purchase from any one any timber, either standing or in logs, from parties during the time he is employed by the said first parties (appellants) to cut the timber from these one thousand, three hundred and seventy acres, or any additional timber the said first.parties may purchase on adjoining land. It is understood that, where the timber is offered to the .said second party by owners, he is first to submit such offers to the said first parties, and if purchase is made by’the said second party; it must be made by the direction of the said first party.”

It was further agreed that if for any reason the first parties shall fail to keep enough logs on skidways or yard, and the second party was compelled to close down his mill for any reasonable time, in that event the second party will not be entitled to pay for the loss of time; and it was further agreed that in case the lumber market “should become dull and the- said first parties could not'dispose of their lumber without loss, the said second party shall close down his mill without any expense to the said first parties until such conditions shall have improved, to enable the said first parties to sell tbeir lumber without a loss.”

'The second party, further, was to sell to the local trade for cash such lumber as mill culls at the best prices obtainable. It was further agreed that in the event the said second party should die or become disabled before completing this contract,--the said first party should have the right to take charge of and operate the mill outfit, paying to the estate of the said second party one dollar per thousand feet rental for all lumber cut on his mill. .

The contract was signed on the ,29th day of May,. 1914, and the .appellee proceeded to move his mill from Tennessee to Mississippi, obtaining* some advances from appellants for this purpose, and set up the mill upon the land in question, dug a pond to furnish water for the operation of the mill, and reported in July, 1914, that he was ready to begin operations. The appellants did not proceed to log the mill, and in August of that year the. great war in Europe began, and the lumber .market became disorganized, and remained so, at least until the latter part of the fall of that year.

Carter was situated upon said lands- about twenty miles out from Vicksburg, Miss., and, there was considerable correspondence between the parties and so'me advances made by appellants to Carter during this period of time. In the spring of 1915 Carter found that some lumber was being sold, and notified them he was ready to cut the lumber according to the contract. The appellants had been writing Carter that the market was in such condition that he could not operate, and lie seems to have accepted their statement of - the condition. It appears, however, from the proof that from the latter part of 1914 lumber could have been sold at some profit. Carter remained upon the premises until December 15, 1915, at which time he sued out this attachment in the chancery court for his losses resulting from breach of the contract by ■ appellants. The appellants had made negotiations for the sale of their timber to other parties, and had promised Carter in the event they did sell that his contract would be taken care of. Carter introduced proof by competent timber estimators of the amount of timber of the various kinds named growing upon the land, and evidence from experienced loggers what it would cost, situated as it was, to log the mill; evidence by experienced lumber haulers of the cost of hauling lumber to the railroad and loading it on the cars; evidence of the cost of operating his mill, and the capacity of his mill to saw the different kinds of lumber; competent evidence of experienced men as to the amount of lumber of the various kinds called for in the contract which said timber would produce; and evidence of the market value of such lumber in different markets during the different, months embraced in the period between the dates he was ready to begin" operations and the date of the bringing of the suit, showing that said lumber could be sold at a profit, and the amount of profit at which could be sold the various kinds of lumber involved, and at the various periods involved.

On the first trial the chancellor held the evidence insufficient, and on motion of the defendants struck out the evidence, and-decreed for the appellants, who were defendants in the court below. This court reversed the chancellor, and remanded the cause for a new trial. When the case came on for trial, on .motion of complainant, a jury was impaneled, and the case was submitted to the jury on the evidence and instructions, and the jury returned a verdict for the complainant for four thousand, “five hundred dollars from which judgment the present appeal is prosecuted. ' •

Various instructions given to the jury are assigned for error, and it is argued here that it was particularly error not to instruct the jury as- to the time the contract was breached, and' to measure the cost of operations, and prices, and damages as of the date of the breach. It is also urged that the evidence is not sufficiently certain and definite to sustain a verdict for the complainant, and especially for the amount found by the jury. The evidence shows that from about November, 1914, on to. the date the suit was filed the price of lumber was advancing, and that it would take about eight months for the timber to have been sawed if it had been furnished according to the contract.. The appellants’ brief admits that, under, some of the evidence before the jury, the jury could have found for more than the verdict rendered, but insists that it could not.be sustained if the breach was treated as being made at certain dates. The correspondence between the parties , shows that the contract had not been definitely abandoned by the appellants, or at least they had not disclosed to the -appellee their intention to abandon the contract at any date earlier than the beginning of the suit. We think the appellee had a right to elect to treat the contract as being breached, and that the •bringing of the suit was such election.

Taking the evidence in the record as to prices and cost as of this date, the jury would have been warranted in finding a larger verdict than it did find, and the appellants cannot complain of any error in not submitting to the jury the question as to when the contract was breached. The evidence ip not speculative, because the evidence, shows the cost of each item with reasonable certainty, and the law only requires reasonable certainty and not mathematical certainty. , The rule was stated in Beach v. Johnson, 102 Miss. 419, 519 So. 800, Ann. Cas. 1914D, 33, as follows:

“If complete performance of a contract is prevented by either party, the other, who is willing and. able to perform, must be compensated in damages to the extent of making Mm whole. Robertson v. Cloud, 47 Miss. 208.
“The rule that damages which are uncertain or contingent cannot be recovered does not apply to an uncertainty as to the value of the benefit or gain to he derived from performance, hut to an uncertainty or contingency as to whether any such gain or benefit would be derived at all.”

In the present case the damages logically arise from the breach of the contract. The extent and amount of the damage is shown with reasonable certainty, and in no sense can it be said that the damages are speculative or uncertain within the meaning of the law upon that subject.

Again, it is insisted by the. appellants that the ap-pellee should have been charged with such sums as he could, with reasonable diligence, have earned by taking-other contracts, and that he should not only be charged with such sums as he did earn, but with such as he might have earned. It will be seen from seption 14 of the contract, set out above, that the appellants oW ligated the appellee not to buy timber either standing or in logs from parties during the time he was employed by the first party to cut for them, and that, if the timber was offered to the appellee, he must first submit such offer to the appellants, and that, if such purchases were made, they were to be made by the direction of the appellants. This clause has a material bearing upon this contention, and it was the duty of the appellants, if they were willing for the appellee to make such contracts,. to give him notice to that effect, and, in the absence of their doing so, they are not in position to invoke this rule. Besides this, however, the proof before the court showed that appellee could not have obtained such contracts without putting himself in a position to breach his contract with the appellants.

It seems to us that inasmuch as the appellee was idle fbr ahont fifteen months, and inasmuch as he could have sawed timber within eight' or nine months, and inasmuch as he was charged with what he really earned during this period,, and said amounts, deducted from his losses recoverable against the appellants, that they got all that they could ask for under the facts of this record.

In regard to the errors, earnestly argued, in the instructions to the jury, we think the appellants cannot complaip of these instructions, because there is no statute giving the parties the right to a jury trial in this class of cases in the chancery court, and it was discretionary with the chancellor whether he would submit the issues to a jury or decide them himself. Pittman v. Lamb, 53 Miss. 594. In this case Justice Campbell, speaking for the court, said:

“The two grounds of error assigned, as to the action of the court on the trial by the jury, and in refusing to grant a new trial, are disposed of adversely to the appellant by a consideration of the fact that in such a case as this it is entirely discretionary with the chancellor to refer an issu.e to a jury, or to try it himself ; and that after he has made an order of. reference he ujay revoke it before it is tried; or disregard the finding of the jury when made. Being discretionary, his action in reference to the issue before the jury cannot be pronounced erroneous. Cook v. Bay, 4 How. (Miss.) 485; Dunn v. Dunn, 11 Mich. 285; 2 Dan. Ch. Pl. & Prac. (3d Am. Ed.) 1115. The only question to be considered is, whether upon the whole record the final decree denying relief and dismissing the bill is correct. ’ ’

Under this authority we must hold that when the chancellor approves the finding pf the jury as to the facts, and when, from consideration of the whole record we are unable to say that the judgment is wrong, it cannot be reversed. Mobile the chancellor has the power to set aside a jury verdict in cases where jury trial is not granted by statute, and decide-it in accordance with his . own conception of the truth of the facts in issue, he will ordinarily not do so unless in his judgment the jury’s finding is manifestly wrong; and, whére a ¡jury’s verdict is approved by the chancellor by rendering" judgment thereon, this court will not reverse for misdirection of the jury unless we could say that the facts did not support the verdict, or unless we were .convinced from the whole record that the chancellor misconceives the law applicable to 'the case.

The judgment will therefore be affirmed.

Affirmed.  