A.M. Nelson and Green, Green Jackson, all of Jackson, and Moody Johnson, of Indianola, for appellant.
Removal to district court was wrongfully denied.
Pitts v. Miss. Power Light Co., 177 Miss. 288, 170 So. 817; 28 U.S.C.A., sec. 71, notes 401, et seq., especially 411, 565; Harrison v. Harrison, 5 F.2d 1001; Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; 28 U.S.C.A., Sec. 71, note 566.
Under second removal petition, jurisdiction vested in district court.
Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 380; 4 Hughes Federal Procedure, 262; Powers v. Chesapeake O.R. Co., 169 U.S. 100, 42 L.Ed. 676; Hercules Powder Co. v. Sistrunk, 145 Miss. 299, 110 So. 674; Bankers Securities Corp. v. Insurance Eq. Corp., 85 F.2d 859; Travelers' Protective Assn. v. Smith, 71 F.2d 511; Ayres v. Watson, 113 U.S. 598, 28 L.Ed. 1095; Powers v. C. O.R.R., 169 U.S. 99, 42 L.Ed. 675; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862; Yazoo M.V.R. Co. v. Adams, 77 Miss. 194, 28 So. 956, 180 U.S. 1.
When plaintiff's cause of action in contract was remanded solely as to the non-resident defendant, the Power Company, a non-resident was entitled to remove.
Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 380; Yulee v. Voss, 25 L.Ed. 355, 99 U.S. 546; 85 A.L.R. 803, note; Gurley v. Southern Power Co., 173 N.C. 447, 92 S.E. 262; Powers v. C. O.R., 169 U.S. 99, 42 L.Ed. 675; Lathrop v. Interior Const., etc., Co., 215 U. S. 246, 54 L.Ed. 177; American Car Foundry Co. v. Kettelhake, 236 U.S. 311, 59 L.Ed. 594; Johnson v. Computing Scale Co., 139 Fed. 344; Riggs v. Clark, 71 Fed. 560; Twin Hills Gasoline Co. v. Bradford Oil Corp., 264 Fed. 440.
Verdict should have been directed for appellant.
Restatement, Law of Contracts, sec. 33; Pitts v. Miss. P. L. Co., 177 Miss. 288, 170 So. 819; Section 3347, Code of 1930; Vicksburg Waterworks Co. v. Petroleum Co., 86 Miss. 84, 38 So. 302; Lusk v. Universal Credit Co., 164 Miss. 693, 145 So. 623; Wachenfeld v. Favre, 152 Miss. 1, 119 So. 911.
The verdict is excessive.
It was error to strike out defendant's notice under general issue.
Warriner v. Fant, 114 Miss. 174, 74 So. 822; Quitman County v. Miller, 150 Miss. 841, 117 So. 262; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A. (N.S.) 785; Rea v. O'Bannon, 171 Miss. 824, 158 So. 916.
The petition to remove was not filed too late. The cause on reversal and remand, of course, stands for trial de novo, but, as we understand, there is no necessity for the defendant to file additional or new pleadings, but the original pleadings stand as they were on the first trial, unless, of course, the plaintiff makes a new cause of action or a different cause of action as was attempted to be done here by the notice of the intention to amend. When we had notice of this intention to amend, until such amendment was actually effected by an order of court, the original declaration and pleadings stood with a demand solely and only for breach of contract against the Mississippi Power Light Company, claiming damages for ten thousand dollars.
Even after the amendment has been allowed to the declaration the original pleas to the original declaration are not thereby suspended.
Parisot v. Helm, 52 Miss. 617.
In filing the second petition for removal (the first petition, bond, etc., are now made a part of the record in the Supreme Court in this case), the defendant seeking to remove did so as promptly as was possible under the facts of the case and before there was any change in the pleadings to reduce the jurisdictional amount, and by specific terms of this petition there was a renewal of the original petition to remove. As soon as we found the record in the circuit court was one that presented a removable controversy we presented our petition and bond, and after they were presented the court attempted to make the cause not removable by allowing amendments to the pleadings. Thereby we followed the rule stated in Powers v. Chesapeake O.R. Co., 169 U.S. 92, 18 Sup. Ct. 264, 42 L.Ed. 673, and as announced by our own court in Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 380.
Waite v. Phoenix Ins. Co., 62 Fed. 769.
The question of fact is one to be determined by the Federal District Court on a motion to remand and not by the state court.
Hercules Powder Co. v. Sistrunk, 145 Miss. 299, 110 So. 764.
Under the rule in this state a mere offer to amend or a motion to amend without an order entered on the minutes permitting such amendment is wholly without effect.
Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153.
Cooper Thomas, and B.B. Allen, all Indianola, for appellee.
The order of the Supreme Court in the case of Pitts v. Miss. Power Light Co. and the Leland Ice Cold Storage, 170 So. 817, was to dismiss the case as to the Leland Ice Cold Storage and to remand the case for a new trial as to the Miss. Power Light Company. There was, therefore, an involuntary dismissal by order of the court of the resident defendant.
The mandate of this case was received and filed in the circuit court on December 29, 1936. The next regular term of circuit court convened on Monday, March 15, 1937, two and one-half months later.
On January 9, 1937, the plaintiff filed a motion to amend his declaration to conform to the Supreme Court ruling and to reduce the amount sued for $3000.00 and at the same time gave to opposing counsel a copy of the motion to amend and a copy of the proposed amended declaration, which proposed amended declaration was filed with the motion to amend. It was judicially determined that such notice and copies were given to opposing counsel in the order allowing the amendment.
The plaintiff received no notice of an intention to file petition to remove until a few moments before 2:00 p.m. on Wednesday, March 17, more than two days after the return day of the March Term, and the petition to remove was filed almost instantaneously on the same date.
At 2:00 p.m. on March 17th, when we received the first notice of an intention to file a petition to remove, there was then pending a motion to amend, with copy of amended declaration, both of which had been on file since January 9th, and opposing counsel had had notice with copies of said motion and amended declaration since that time. They likewise had our consent at their request not to take up the motion in their absence. Under these circumstances then the petition was filed, two and one-half months after the March Term began.
The petition to remove was filed too late. Whenever a case is reversed and remanded for a new trial, such trial is de novo.
Peoples Bank v. Pennington, 102 So. 386; Pickford v. Ladner, 107 So. 658; Wailes v. Johnson, 25 Miss. 421; Haines v. Haines, 54 So. 433, 98 Miss. 830; Gilbert v. Glenny, 106 So. 517; Craig v. Winston County, 166 So. 402.
Therefore, when this cause was remanded to the circuit court for trial as to the Mississippi Power Light Company and when the mandate was filed in the circuit court, the defendant Power Company was then under a duty and had the power to file either a demurrer to the declaration on the ground that it did not state a cause of action against it, or might have filed a motion to strike the allegations in the original declaration in accordance with the opinion, or might have filed plea thereto setting up its defense of election of remedies which it later filed. Under the rules of pleading, whatever it had a right to file the time limit for filing such was on or before the return day of the March term. This it did not do and the Power Company waited until after the expiration of the return date to give any notice or file its petition to remove.
The filing of amended petition to remove does not relate back to the filing of the original petition so as bring the application within the limitations as to time for filing petition to remove.
Brigham v. C.C. Thompson Lbr. Co., 55 Fed. 881; Frisby v. C. O.R.R. Co., 59 Fed. 369.
The same rule would apply as to the filing of a second petition to remove.
The petition to remove does not state the necessary jurisdictional facts.
The general rule is that the plaintiff may amend his declaration before a petition to remove is filed and thereby prevent a removal.
28 U.S.C.A., sec. 701, note 201.
Likewise, where a motion to amend is pending and cannot under rule of the court be acted on and the plaintiff has done all that he legally can to effect the amendment, such prevents a subsequent removal of the cause.
Lake Erie R.R. Co. v. Huffman, 97 N.E. 434; Waite v. Phoenix Ins. Co., 62 Fed. 769; Shelton v. Wolfe, 200 S.W. 901.
The plaintiff may amend his complaint before a petition and bond for removal are filed, so as to demand less than the jurisdictional amount, and thereby defeat a removal.
McGinnity v. White, Fed. Cas. No. 8,802; Maine v. Gilman, 11 F. 214; Anderson v. Western Union Tel. Co., 218 F. 78; Lake Erie W.R. Co. v. Huffman, 97 N.E. 434, 177 Ind. 126, Ann. Cas. 1914C 1272; Munnss v. American Agricultural Chemical Co., 103 N.E. 859, 216 Mass. 423; McCulloch v. Southern Ry. Co., 62 S.E. 1096, 149 N.C. 305. New England Tire Sales Co. v. Kelly-Springfield Tire Co., 210 N.Y.S. 243, 214 App. Div. 58.
Where a case is not removable when the time for its removal prescribed in the statute expires, but subsequently becomes so by amendment or other action, the filing of a petition for removal must be done within a reasonable time.
Guarantee Co. of North Dakota v. Hanway, 104 F. 369, 44 C.C.A. 312; Davies v. Marine Nat. Bank, 24 F. 194; Yarde v. Baltimore, etc., R. Co., 57 F. 913; Cookerly v. Great Northern R. Co., 70 F. 277; Tremper v. Schwabacher, 84 F. 413; Speckart v. German Nat. Bank, 85 F. 12, 98 F. 151, 21 S.Ct. 688, 181 U.S. 405, 45 L.Ed. 926; Bailey v. Mosher, 95 F. 223; Cuyler v. Smith, 78 Ga. 662, 3 S.E. 408; Danvers Sav. Bank v. Thompson, 133 Mass. 182; Yawkey v. Richardson, 9 Mich. 529, 81 Am. Dec. 769; Houston, etc., R. Co. v. State, 39 S.W. 390, 68 S.W. 777, 95 Tex. 507.
If opposing counsel take the position that they could not plead because the amendment had not been made to the declaration, then we respectfully submit that the limitation as to time within which the petition for removal should relate to the new pleadings of the plaintiff and if you consider the new pleading of the plaintiff the cause is not removable because it is for $3000.
Higson v. North River Ins. Co., 184 Fed. 165.
A majority of the decisions passing upon the question hold that even an extension of time to plead by an order of the court beyond the time when the pleading would be due under a statute of the state or under the general rules of practice of the state court does not extend the time for applying for removal.
Hurd v. Gere, 38 F. 537; Austin v. Gagan, 39 F. 626, 5 L.R.A. 476; Delbanco v. Singletary, 40 F. 177; Spangle v. Atchison, etc., R. Co., 42 F. 305; Rock Island Nat. Bank v. J.S. Keator Lbr. Co., 52 F. 897; Brigham v C.C. Thompson Lbr. Co., 55 F. 881; Ruby Canyon Min. Co. v. Hunter, 60 F. 305; Tracy v. Morel, 88 F. 801; Garrett First Nat. Bank v. Appleyard, 138 F. 939; Williams v. Wilson Fruit Co., 222 F. 467; Waverly Stone G. Co. v. Waterloo, etc., R. Co., 239 F. 561; Collins Mfg. Co. v. Wickwire Spencer Steel Co., 11 F.2d 196; Midland Val. R. Co. v. Hoffman Coal Co., 91 Ark. 180, 120 S.W. 380; Security Co. v. Pratt, 65 Conn. 161, 32 A. 396; Howard v. Southern R. Co., 122 N.C. 944, 29 S.E. 778; Mecke v. Valleytown Mineral Co., 122 N.C. 790, 29 S.E. 781; Bryson v. Southern R. Co., 141 N.C. 594, 54 S.E. 434; Burton v. Smith, 132 S.E. 605, 191 N.C. 599; Malloy v. Marshall-Wells Hardware Co., 173 P. 267, 99 Or. 303; Northwestern, etc., Hypotheek Bank v. Suksdorf, 15 Wn. 475, 46 P. 1027; Beyer v. Soper Lbr. Co., 76 Wis. 145, 44 N.W. 750.
It is likewise true that weight of authority is to the effect that a stipulation of the parties extending the time to plead does not extend the period in which an application for removal of the cause can be made.
28 U.S.C.A., sec. 72, note. 57; 4 Hughes Federal Practice, sec. 2512.
We, therefore, respectfully submit that the filing of the motion to amend and copy of proposed amended declaration and giving copies of these to opposing counsel on January 9, 1937, had the legal effect of thereafter preventing a removal from state court in Mississippi, wherein the plaintiff has thus done all within his power to effect the amendment. Even though no amendment was thus sought, the failure of the defendant to file his petition to remove on or before the return day precluded any effort to remove thereafter. The time for pleading when a cause is remanded is on or before the return day of the succeeding term of the lower court and defendant cannot sit down and wait until the pleadings are revamped before he pleads, because if he does the cause is certainly not removable after the amended declaration is made.
An election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election is made. Hence the fact that a party misconceives his right, or through mistake attempts to exercise a right to which he is not entitled, or prosecutes an action based upon a remedial right which he erroneously supposes he has, and is defeated because of such error, does not constitute a conclusive election and does not preclude him from thereafter prosecuting an action based upon an inconsistent remedial right.
20 C.J., page 19, sec. 16, and page 21, sec. 17.
In order that there may be an election of remedies confining the party to the remedy first chosen, and precluding a resort to another, the two remedies must be inconsistent with each other, and not analogous, consistent and concurrent. No act is decisive so as to constitute a conclusive election, unless the remedial right upon which such act is based is irreconciliable with the remedial right which the subsequent action or suit is brought to enforce.
20 C.J., page 26, sec. 18; Henderson Tire Rubber Co. v. Gregory, 16 F.2d 589, 49 A.L.R. 1503; Miller v. Phipps, 137 So. 479.
We were pursuing a remedy which did not exist and were unsuccessful in that pursuit. There was not in fact two or more co-existing remedies, because the remedy being pursued was not successfully maintained.
A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. It is necessary, that the claim or position previously asserted or taken should have been successfully maintained, that it should be actually inconsistent with the position presently taken, and that it should not have been taken through the fault of the adverse party. It is essential also that the party claiming the estoppel should have been misled by his opponent's conduct, that he should have acted in reliance thereon, and that his rights would be injuriously affected if his opponent were permitted to change his position. When no wrong is done a change in position should and will be allowed. The rule has no application where the knowledge or means of knowledge of both parties is equal nor in case of mistake. Also the rule has no application to change of position with respect to matter of law.
21 C.J., page 1223, sec. 227, and page 1229, sec. 233; 10 R.C.L., page 699, sec. 27; Clark v. Heath, 101 Me. 530, 64 A. 913, 8 L.R.A. (N.S.) 144; Todd v. Interstate Mortgage Bond Co., 71 So. 661.
The cause of action proceeding in tort under the trust and combine statute was not inconsistent with the cause of action now presented in contract. There is nothing inconsistent about the two remedies as to make it inequitable that a proceeding on the one should in justice bar a proceeding on the other theory. The two were concurrent remedies and not inconsistent, and, therefore, the rule of estoppel is not applied.
The defense of equitable estoppel of election of remedy presented in said notice under the general issue was already settled adversely to the Power Company in the overruling of the suggestion of error on the former appeal.
Pitts v. Miss. Power Light Co. 170 So. 817, 177 Miss. 288.
Appellant contends that lower court erred in failing to grant a directed verdict to it. We submit that the case made this time against the appellant is the same case made on the former trial in the case of Pitts v. Miss. Power Light Co., 170 So. 817. This court then held that the case should have gone to the jury to determine whether or not there was a contract and what damages, if any, did appellee receive.
In the case of Economy Stores Inc. v. Moran, 172 So. 865, the Supreme Court of Mississippi held that where a tenant continues to occupy premises after the expiration of the lease, which was a ten-year lease with an option to renew for another five-year period, and such continued occupancy was without objections from the landlord and with his knowledge and acquiescence, that the very act of continued possession gave the tenant the right to occupy the building for the five years contained in the option.
Crenshaw-Gary Lbr. Co. v. Norton, 111 Miss. 720, 72 So. 140; Hamilton v. Federal Land Bank, 167 So. 644; Pitts v. Miss. Power Light Co., 170 So. 820.
A notice to quit is waived by the landlord by the subsequent acceptance or recovery of rent accruing after the expiration of the notice, but not by the subsequent acceptance of accruing prior to the time of the termination of the tenancy.
24 Cyc. 1334; Richardson v. Neblett, 84 So. 695; Wachenfeld v. Favre, 119 So. 911; Thomas Hinds Lodge v. Presbyterian Church, 103 Miss. 130, 60 So. 66; Love v. Law, 47 Miss. 596; Tonkel v. Riteman, 141 So. 344; Hamilton v. Federal Land Bank, 167 So. 642; 35 C.J., page 957, par. 21, and page 959, par. 22; Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003.
We are familiar with the doctrine that it is necessary to show actual damages before punitory damages are recovered, but the courts hold that it is only necessary to show the breach of a duty and that the certainty of damages proved refers to the certainty of the breach and not to the exactness of calculating injuries that flowed as a result of the breach.
17 C.J., page 756, sec. 90, and pages 759, 760, 761, sec. 91, and pages 910-913, sec. 199.
Where a regular and established business is injured, interrupted, or destroyed, the measure of damages is the diminution in value of the business by reason of the wrongful act, and in order to establish the diminution in value, it is necessary to show the usual profits from the business. Hence the rule has been announced that, where an established business has been interrupted, the measure of damages is the loss of profit, together with such expenses as continue while the business is interrupted.
17 C.J. 914, sec. 200; Delta Table Chair Co. v. Y. M.V.R.R. Co., 105 Miss. 861, 63 So. 272.
While we think that this was unquestionably a case of punitory damages, yet no punitory damage instruction was given. But one was authorized under the law in the following cases:
Y. M.V.R. Co. v. Consumer's Ice Power Co., 109 Miss. 43, 67 So. 657; Lay v. Great Southern Lbr. Co., 79 So. 822; 17 C.J. pages 977-979, sec. 273, and pages 974-976, sec. 271; 1 C.J. 1040; Waters v. M. O.R. Co., 21 So. 240; N.O.J. G.N.R. Co. v. Hurst, 36 Miss. 275; Isaacs v. Herman Moss, 49 Miss. 176; Home Ins. Co. v. Tate Mercantile Co., 78 So. 709, 117 Miss. 760; Ross v. Louisville N.R. Co., 172 So. 752.
We respectfully submit that the $3000 awarded by the jury in this case was well supported by the law and in fact.
1. REMOVAL OF CAUSES.
An order of federal court remanding cause to state court is not reviewable by state court.
2. REMOVAL OF CAUSES.
Whether the federal court was in error or proceeded upon an erroneous view of law in ordering cause remanded to state court is matter which state court cannot consider.
3. REMOVAL OF CAUSES.
When case is remanded by federal to state court, the state court proceeds with the case according to its own views of the law and the facts, without regard to what views the federal court had on remand, and without regard to what views of the law were urged by any of the parties on the motion to remand.
4. ELECTION OF REMEDIES.
In order that a party shall be bound by an election, he must actually have two inconsistent remedies.
5. ELECTION OF REMEDIES.
Where plaintiff had only remedy of action for breach of contract, his original mistaken conception that he had remedy by action in tort and his mistaken pursuit of an action in tort did not bar him from maintaining action in contract.
6. ESTOPPEL.
The fact that plaintiff on motion to remand cause to state court contended that action was one solely in tort and induced federal court to take that view did not estop plaintiff thereafter from urging contract feature in state court.
7. ESTOPPEL.
The doctrine of estoppel has reference to factual matters and not to contentions upon the law as applied to a given state of facts.
8. ESTOPPEL.
Where both parties are equally in possession of all facts pertaining to matter relied on as an estoppel, and the position taken in respect thereto involves solely a question of law, there can be no estoppel.
9. APPEAL AND ERROR.
Arguments in the alternative upon a given state of facts are permissible.
10. TRIAL.
The court decides a case according to any of the alternatives urged that the court thinks tenable, or according to view of law not argued at all, or even on points which counsel for both sides contend has nothing to do with the case.
11. APPEAL AND ERROR.
Where trial court determined that plaintiff had no case either in tort or in contract, and Supreme Court reversed and remanded as to the contract feature, upon the new trial plaintiff was entitled to adjust his position to that allowed by the Supreme Court, regardless of his previous position.
12. JUDGMENT.
The pleadings and the facts developed within the pleadings and not theories of parties control courts in determining rights of parties.
13. PLEADING.
A plaintiff has a right to reduce his demand at any time.
14. PLEADING.
The entry of an order allowing plaintiff to reduce his demand is purely formal, since it involves matter solely for plaintiff to determine.
15. REMOVAL OF CAUSES.
Where plaintiff filed motion to amend declaration by reducing amount of demand to $3,000 and served copy of proposed amendment on defendant before defendant presented petition to remove cause to federal court, the declaration was required to be considered as having been amended, so far as concerned the amount of the demand, as of the time when the motion to amend was filed, so that the cause was not removable at the time the petition for removal was presented.
16. APPEAL AND ERROR.
The opinion of the Supreme Court on former appeal that declaration disclosed a cause of action for breach of contract was the "law of the case."
17. DAMAGES.
In action for loss of profits resulting from breach of contract, the experiences of previous years, when fairly well shown, may be considered as basis upon which to base judgment for loss of profits, where business was an established one in a staple line.
18. DAMAGES.
A party who has broken his contract cannot escape liability because of the difficulty in finding a perfect measure of damages, it being enough that the evidence furnishes sufficient data for an approximate estimate of the amount of damages.
19. DAMAGES.
Evidence would sustain judgment of $2,500 damages to ice dealer for loss of profits in ice business resulting from breach of contract to furnish ice to dealer.
20. DAMAGES.
In ice dealer's action for breach of contract to furnish ice to ice dealer resulting in loss of profits, dealer could not recover amount spent on equipment and other preparations for the year involved, since he would have had the same expense had the contract not been breached.
Griffith, Jr., delivered the opinion of the court.
When this case was before us on the former appeal, Pitts v. Mississippi P. L. Co., 177 Miss. 288, 170 So. 817, it was urged by the power company that because Pitts had contended in the federal district court, on his motion to remand to the state court, that the action was one solely in tort and had procured the federal court to take that view, whereby the power company, as it is alleged, was deprived of its right to a trial in that court, he was estopped thereafter from urging in the state court any contract feature; that he had elected to proceed solely in tort.
We did not discuss those contentions in our former opinion, because it has so long been settled as to be beyond the range of further discussion that an order of remand by a federal court is not reviewable by a state court. Whether the federal court was in error or proceeded upon an erroneous view of the law in ordering the remand is a matter with which the state court can have no concern. When remanded, the state court proceeds with the case according to its own views of the law and the facts, without regard to what views the federal court had on remand, and without regard to what views of the law were urged by any of the parties on the motion to remand.
And it is equally well settled that, in order that a party shall be bound as by an election, he must actually have two inconsistent remedies. Here he had only one remedy, and his original mistaken conception that he had another and his mistaken pursuit of that other does not bar him from the one that he had. The doctrine of estoppel is not available, because that doctrine has reference to factual matters, and not to contentions upon the law as applied to a given state of facts. There can be no estoppel where both parties were equally in possession of all the facts pertaining to the matter relied on as an estoppel, and the position taken in respect thereto involved solely a question of law. 21 C.J. p. 1231.
Precisely the same declaration was before the federal court when it made its order of remand that was before the state court when the case was subsequently tried in the latter court. In the trial in the state court, and here on appeal, Pitts continued to urge that his action was one in tort, but argued in the alternative that, if mistaken in this, he was at least entitled to recover a smaller sum in contract. Arguments in the alternative upon a given state of facts are permissible and are heard every day in all our courts, and, in the interest of the law, rightly so. And the courts decide according to any of the alternatives they think tenable, or may decide according to a view of the law not argued at all, or even upon a point or points which counsel for both sides contend has nothing to do with the case.
The trial court in the first trial was of the opinion that Pitts had no case either in tort or in contract, and gave a peremptory instruction against him. This court held on appeal that the trial court was correct so far as any tort feature of the case was concerned, but reversed and remanded as to the contract feature. It follows from what has already been said that upon the new trial Pitts was entitled to adjust his position to that allowed by the appellate court, regardless of his previous position, and to proceed with the case as the appellate court has allowed to be done. The whole matter may be summed up in the statement that it is the pleadings and the developed facts within the pleadings that courts are obliged to follow and to which the parties and counsel must be held; not arguments.
When the cause was remanded by us as a result of the first appeal, the mandate from this court was filed in the circuit court on December 29, 1936. On January 9, 1937, Pitts filed in the circuit court his written motion to amend his declaration, and a copy of the motion and amendment was at the same time delivered to the power company. This amendment proposed to reduce the amount of the demand to $3,000. The circuit court was then in vacation; its next regular term convened on Monday, March 15, 1937. No order of the court allowing the amendment could be made until the court came on in term. On the third day of the term, and before the entry of the order allowing the amendment, the power company presented its petition and bond for removal to the federal court; notice of said application having been served the same day. The petition for removal was denied by the court.
Had the order allowing the amendment been entered prior to the filing of the petition to remove, clearly the latter would have been too late. The question is, therefore, whether the filing of the motion to amend and the service of the copy of the proposed amendment on the power company, before the presentation of the petition to remove, operates to the same effect as had the order allowing the amendment been entered prior to the petition to remove.
Inasmuch as a plaintiff has a right to reduce his demand at any time, this being a matter solely for him to to determine, the entry of the order allowing such a reduction in demand becomes purely formal; a matter merely of routine. The order so allowing is one which the court had no right to refuse; and hence, looking to substance rather than form, the declaration must be considered as having been amended so far as concerns the amount of the demand, as of the time when the written motion so proposing was filed in the circuit court. Waite v. Phoenix Ins. Co., C.C., 62 F. 769; Lake Erie R. Co. v. Huffman, 177 Ind. 126, 97 N.E. 434, Ann. Cas. 1914C, 1272; New England, etc., Co. v. Kelly-Spring-field Tire Co., 214 App. Div. 58, 210 N.Y.S. 243. Hence the cause was not removable at the time the petition therefor was filed.
In the former appeal we held that sufficient facts were averred in the declaration to disclose a cause of action for breach of contract against the power company. These facts were sufficiently set out in the former opinion. On that point the former opinion became the law of the case. All that is left for inquiry now, is whether the proof has been sufficient to sustain the allegations on that point, and we are of the opinion, upon an examination of the present record, that this question must be answered in the affirmative.
The damages sought on the second trial were for the loss of profits in the ice business of Pitts for the year, March 31, 1934, to March 31, 1935. This was an established business, in a staple and not unusual line, and had been in existence in the same territory since 1928. In such a case the experiences of the previous years, when fairly well shown, have been generally considered as a sufficient basis upon which to support a judgment for loss of profits. The general rule in regard to such matters was summarized in Montgomery Ward Co. v. Hutchinson, 173 Miss. 701, 707, 159 So. 862, 863, as follows: "Under our jurisprudence, the rule as to uncertain or speculative damages does not apply to uncertainty as to the amount of the profits which would have been derived, but to uncertainties or speculation as to whether (1) the loss of profits was the result of the wrong, and (2) whether any such profits would have been derived at all. . . . A party who has broken his contract cannot escape liability because of the difficulty in finding a perfect measure of damages. It is enough that the evidence furnishes sufficient data for an approximate estimate of the amount of the damages. . . . When a verdict is sustained by the reasonable probabilities growing out of the evidence, the judgment is not to be defeated by showing that there is this or that or the other possibility which would point to a contrary verdict."
It is shown by the record that for the year preceding the breach, that is, for 1933, Pitts bought from the power company 980 tons of ice at $3.75 per ton, and that he sold this ice at an average of $8 per ton, and that his expense was $1,692, which would leave him a profit of $2,473. His books showed a net profit for the year of $2,397.19. For the year 1932, he was working under a different contract, and, therefore, that year furnishes no applicable data. For the year 1931, Pitts preserved no books or records, and was unable to say whether his ice business, as apart from the coal and feed business, was or was not profitable. For the year 1930, his books showed a net profit of $3,637.14, and for 1929, of $4,225.36 in the ice division; but the details as to how these totals were arrived at are almost entirely missing from the record; and no data is given for 1928, except the general assertion that there was a profit that year.
The evidence for the years previous to 1933, and apart from that year, does not furnish an adequate basis for fixing an amount in a verdict, but does show that the business had been sufficiently successful to survive the years of general business depression; and, taken with all the other evidence, we think it can be safely said that, as a reasonable probability, the business for the year in issue would have been as good as the next previous year and that, therefore, a verdict of $2,500 would be justified.
The verdict was for $3,000. We think it probable, looking to the course of the examination and to the argument made here, which we may assume was made also before the jury, that the jury took into consideration and added to the amount of its verdict the $500 which Pitts testified he spent upon his equipment and other preparations for the year in issue. He would have had this same expense had the contract not been breached; whence it follows that this item is not to be added to the recoverable damages. If Pitts will remit this $500, the judgment will be affirmed; otherwise, it will be reversed and the cause remanded.
Affirmed, with remittitur.
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