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or conclusions of law, but rendered judgment for defendant for the costs of the action, and its judgment was based upon the fact that the defendant, after all the damages claimed to have been sustained were sustained, made a payment to the plaintiff of about $4,000 upon the contract, and in its letter transmitting the same stated that the balance due on the contract of $3,500 was by it held satisfied because of damages sustained in the failure to comply with the contract for supplying the machinery at the time agreed upon for delivering the same, which balance is the $3,500 in litigation in this action. Motions for a new trial were filed by both parties, which were by the court considered and overruled, and exceptions allowed to such order and judgment, and the case comes to this court by casemade.

Flynn & Ames, for plaintiff in error. Blake, Blake & Low, for defendant in error.

GILLETTE, J. (after stating the facts). The defendant in error in its brief says: "The trial court found generally for the oil mill and assessed its damages at $3,500 and interest. We cannot tell whether it was for loss of use of mill, or for seed spoiled, or expense incurred, or for all these things in part. By its finding the oil mill was adjudicated favorably as to all. If any one of them is right, no reversal can be had." We are unable to agree with this contention in view of the record in this case. The evidence was addressed to each of the items of damage specified, and objections thereto made, on the ground that such item was not provable, were overruled, and exceptions allowed. To say now that there is any presumption that testimony so received was not considered in finding a general verdict, or in a general judgment by the court without findings of fact upon which it was based, is equivalent to saying that immaterial and prejudicial evidence received over objections thereto will be held immaterial if there was any competent evidence sustaining the judgment, when it is impossible to say upon what evidence the judgment is founded. It is the better rule to hold, in a case of this kind, that the trial court in its general judgment based the same upon all the evidence, by it held to be competent of consideration, because without special findings it is impossible to determine otherwise, and in such cases the judgment debtor is entitled to his exception to the admission of prejudicial proof of his liability. See Richardson v. Millish, 3 Bing. 334, 336, cited approvingly by the Supreme Court of the United States; Parks v. Turner et al., 53 U. S. 39, 13 L. Ed. 883; Maryland v. Baldwin et al., 112 U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822.

This brings us to an examination of the question as to whether or not, upon the specifications of damage set out in the defend

Mr.

ant's answer and counterclaim, there was evidence admitted over the objections of plaintiff that could not properly be considered and taken into account in finding the amount of damages sustained by defendant. In such examination our attention is challenged by the first item of damage in defendant's answer stated. To a more complete understanding of this item of damage let it be understood that the defendant was defending against an admitted liability of $3,500 upon the grounds that the plaintiff, having on May 8, 1902, agreed to furnish it certain mill machinery by the last days of July, failed and neglected to furnish the same until September 20th, a period of 40 working days, and this delay defendant says caused it damage in the sum of $15,984.82. To prove this damage the defendant offered proof, over objections of plaintiff, that the rental value of defendant's mill for the 40 days it was compelled to remain idle by reason of the act of plaintiff in failing to deliver it the machinery contracted for at the time it was contracted to be delivered was $15,984.82. The proof so offered was the testimony of officials of defendant. Wooten testified in part as follows: "Q. You say the rental value of that property in the beginning of the season for 40 days was $16,000 and a little over? A. I calculated that; yes, sir. Q. Has the property ever been rented? A. No, sir. Q. Did you ever know of an oil mill in that vicinity being rented? A. No, sir. Q. Did you ever know of an oil mill in Oklahoma or Indian Territory being rented? A. No, sir. Q. How did you arrive at the rental value of the property? A. By what it is worth to me." Mr. R. J. Latting testified: "Q. Did you ever know of the mill being rented? A. No. sir. Q. Over what states has your oil mill business and your experience in the oil mill business extended? A. Mississippi, Tennessee, Texas, and Indian Territory. Q. The fact is, Mr. Latting, mills are not rented, isn't it? A. As a rule; I don't know of any of them having been rented." Mr. Wilhelm testified: "Q. What do you mean, Mr. Wilhelm, by saying that you know the rental value of that mill? A. Well, I know it by what I could have made out of it with good seed at that time. Q. You could have made a profit of $4 a ton if you could have bought your seed right and sold your products right? A. Yes, sir."

From the testimony it is apparent that the witnesses were not testifying from their knowledge of the rental value of any like property, or from their experience as oil mill men looking as best they could into the future and judging its rental value from a fair average of what the use of such property is worth one year with another, but were in fact, at the time of the trial, looking backward to conditions as they had existed at a particular time, and which conditions were admittedly the most favorable. Such testi

mony, we think, cannot be accepted as a fair measurement of rental value under the circumstances of this case. The contract was made on the 8th day of May (1902). Time was not made of the essence of the contract, and its provisions in no way provided for a measurement of damages in case of a failure to comply with the terms. The damages that are recoverable under such circumstances are such only as may be fairly considered within the contemplation of the parties at the time of entering into the contract. That they contemplated, at the time this contract was entered into, the subsequent crop conditions of that year, the amount of the crop, the price that they were afterwards able to buy the cotton seed for, the price and supply of labor, and the favorable condition of the market for the sale of their products, could not be assumed in the absence of some proof to that effect; but all of this was in contemplation of the witnesses when upon the trial of the case they testified as hereinbefore set forth, and when, as shown in the testimony of Manager Latting, the reasonable average profit was $4.50 per ton of the seed consumed, and that that was a fair rental value of the property. We quote from Mr. Latting's testimony in chief the following to show the manner in which the rental value of the property was arrived at: "Q. What would have been a reasonable average of ordinary profits in the operation of your mill during this 40 days that you were enforcedly idle? A. $4.50 per ton; 85 tons for 41 days would make $15,682.50. Q. Why did you mention 85 tons a day? A. Our mill was 85 tons' capacity. It was possible to run 100 tons a day, but 85 tons was the average. Q. Mr. Latting, what in your judgment would have been a fair rental value for the Chickasha Oil Mill plant for the first 40 days of the season of 1902? A. $4.50 per ton. Q. What would be the daily rental value of such a plant during that time? A. Something like $300 per day. I will tell you more definitely. It would be $382.50 per day." From this it will be seen that under the guise of rental value the damages resulting from the idleness of the mill were estimated upon the profits that the mill might have made during that time under the conditions which then existed. If such a method of measuring rental value may be accepted, as correct, then, in an action of this kind it is only necessary to wait until the season has passed, determine the profits that could have been earned, and declare that to be the rental value of the property. Such a proposition is fallacious upon the face of it. The rental value of a mill in May cannot be determined upon the basis of a crop and market in September following, without such testimony being the subject of a speculation and guesswork to such an extent as that courts generally exclude it in measuring damages for a breach of a contract.

It is true that the provisions of statutes enter into and form a part of the conditions and liabilities of parties under their contract, but we have no statute authorizing speculative damages to be recovered. The only statute of Oklahoma touching this subject-matter is as follows: "For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract, which are not clearly ascertainable in both their nature and origin." Wilson's Rev. & Ann. St. 1903, § 2730. This statute is only declaratory of the common-law rule of measuring damages, and in no way changes or enlarges the damages which the defendant might recoup under the common law for the delay in furnishing the machinery and performing its contract by the plaintiff, or the rule by which such damages are to be ascertained and measured. All the evidence in the case was addressed to the amount of profits which, under the most favorable conditions, might have been made by the oil mill during the period of delay, and was not of a nature to disclose or determine the rental value of the mill during such term. By the great weight of authority, profits, or what might be made out of the use of such machinery, do not constitute the true rule for the measure of damages in this class of cases. The following authorities fully sustain this position: Howard v. Stillwell et al., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147; Globe Refining Co. v. Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171; Choctaw, Okl. & Gulf R. R. Co. v. E. A. Jacobs (Sup. Ct. Okl., Sept. term, 1905) 82. Pac. 502; Taylor Mfg. Co. v. Hatcher & Co. (C. C.) 39 Fed. 440, 3 L. R. A. 587; Griffin v. Calver, 69 Am. Dec. 718; Fleming v. Bock, 48 Pa. 309; Allis v. McLean, 48 Mich. 428, 12 N. W. 640.

The defendant in error relies upon the case of Livermore Foundry v. Machine Com-pany (Tenn.) 58 S. W. 270, 53 L. R. A. 482, which was an action to recover the rental value of a cotton compress forced to remain idle during the season because, first, on account of the failure of machine company to make repairs within the time contracted for; and, second, because of repairing its engine in such defective manner that the head of the cylinder blew out, destroying the plant to such an extent that it lost the season's work. The case was tried to a jury, which found one item of damages, among others, of $3,000 for loss of rental value of the compress. We are unable to determine from the case as reported how the rental value of the compress was ascertained. The court places its judgment upon the fact that the rental

value of the compress was proved, and we think there is no question but that, if rental value of property can be fairly ascertained, that is a correct measurement of damages for its enforced idleness. But the court in that case does not question the rule we herein state, and in its opinion uses this language: "In neither case is he liable for loss of profits; for fluctuation in in business, changes in the price of labor, and unforeseen accidents to machinery make this as a measurement of damages too uncertain." And the court in that case further stated, in commenting upon the case of Clifford v. Richardson, 18 Vt. 620: "The defendant put machinery into plaintiff's mill in an unskillful manner, whereby he lost the use of his mill for a long space of time, and was put to great expense in repairing his machinery, It was held that both the loss of the use of the mill and the expense of repairs were to be compensated for in damages. In this case, though, the court seemed to allow, as competent, evidence of what the mill could have earned. On this last point we are not to be understood as approving its holding." In this language we find the Tennessee court holding that the enforced idleness of the mill is recoverable in damages, but holding, further, that evidence of what the mill could have earned was not competent proof of such damages. This brings us back to the question we have here under consideration and to the testimony of Mr. R. J. Latting, defendant's manager, above quoted. From this and other testimony of like import, it is apparent that the rental value attempted to be shown in this case is simply estimated profits on the capacity of the mill for the period complained of, a proposition that is denied by the Tennessee court in Livermore F. & M. Co. v Union F. & C. Company, above referred to, as well as other authorities cited. In commenting upon the decision of the Tennessee court we feel that it would not be trespassing to note the distinction of the case it had under consideration from the one we are here considering, for the reason that within common knowledge there is a marked distinction in this: that the business of a compress is not dependent for its profits

upon an open market for its products, as is the case with an oil mill. In the first its earning capacity is fixed by a specific charge for compressing a bale of cotton, while at oil mill's earnings are largely dependent up on the market for its products.

There is in the consideration of this question another proposition we think deserving of notice. It appears from the testimony that an oil mill does not operate the year around; the period of its operation being approximately 130 to 150 days, dependent somewhat upon crop conditions. If it starts late in the fall, it may run correspondingly late in the spring following, until the cotton seed which has been stored has been all used or disposed of. In this instance the mill started in November, when, but for the delay of plaintiff in supplying the machinery, it might have started the latter part of September. After starting it ran until the company's seed was all consumed. Under such conditions we are of the opinion that it is not a correct measurement of damages to show what the earning capacity of the mill was at the ordinary beginning of the season's work, for the length of time it was delayed; but it would rather be the difference between doing its work at that time, and doing it at the close of that season's business, and what. if any, difference there may be in the expense of so conducting its business. We can readily conceive of losses in this respect, as the price of oil and the value of seed may change between September and June following, which might cause specific damage. This phase of the case we do not care to discuss, as we cannot determine upon what theory evidence may be presented upon a retrial of the case.

Having reached the conclusion that there was material error in the introduction of testimony touching the measure of damages upon the trial. the judgment of the lower court is reversed, and the cause remanded to the district court of Canadian county, with instructions to vacate the order of that court overruling the motion for a new trial, and to grant the same. All the Justices concurring, except IRWIN, J., who presided in the court below, not sitting.

2

(15 Wyo. 97)

WYOMING COAL MINING CO. et al. v. STATE ex rel. KENNEDY.

(Supreme Court of Wyoming. Nov. 14. 1906.) 1. CORPORATIONS - BY-LAWS-STOCKHOLDERS -INSPECTION OF BOOKS.

Where the by-laws of a corporation provided that the books and papers in the office or custody of the secretary and treasurer should be open at all times during business hours to the inspection of stockholders, such by-law was effective to extend the stockholders' common-law right to the examination of the corporation's books, without any allegation or proof of fraud or mismanagement on the part of the officers of the corporation.

[Ed. Note. For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 674, 685.]

2. MANDAMUS SCOPE OF REMEDY ACTS OF CORPORATE OFFICERS.

Rev. St. 1899, § 4194, defines mandamus as a writ issued in the name of the state to an inferior tribunal, a corporation, board, or persons, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, and section 4197 provides that the writ must not be issued in a case in which there is a plain and adequate remedy in the ordinary course of law. Held that, where a by-law of a corporation entitled stockholders to an examination of the books of the corporation during the business hours, mandamus was the proper remedy to compel the corporation's acting secretary and treasurer, in possession of the books, to permit such an examination after his refusal so to do.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, § 264; vol. 12, Cent. Dig. Corporations, §§ 674, 685.]

Error to District Court, Sheridan County; Carroll H. Parmelee, Judge.

Mandamus by the state, on the relation of Stewart Kennedy, against the Wyoming Coal Mining Company and another. From an order in favor of relator directing the issuance of the writ, defendants bring error. Affirmed.

Lonabaugh & Wenzell, for plaintiffs in erW. E. Mullen and E. E. Enterline, for defendants in error.

SCOTT. J. This is a proceeding in mandamus, which was commenced in the district court of Sheridan county by the relator, Stewart Kennedy, against the respondents, plaintiffs in error, to compel the said company and Birkhaeuser, its vice president and acting secretary and treasurer, to permit the relator to inspect the books and records of the company. A demurrer to the petition was interposed by the respondents, on the ground that the facts stated therein were insufficient to constitute a cause of action against them. Upon a hearing the trial court overruled the demurrer, and the respondents elected to stand upon the demurrer and the ruling thereon. Judgment was rendered as prayed in the petition, and respondents bring the case here on error.

It appears from the petition: That the coal company is a corporation duly created and organized under the laws of Wyoming, engaged in mining coal and doing business 87 P.-22

at all times mentioned at Monarch, in Sheridan county. Wyo., where its principal office is located. That its capital stock is composed of 1,000,000 shares, of the par value of $1 each. That relator was during all times mentioned, and is now, a stockholder in said company, being the owner of 60.001 shares of the capital stock. That the company has. during the time it has been so engaged in mining, marketing, and selling coal, done so at large profit, but has never declared any dividend. That relator is unable to state the amount of the profits, owing to the fact that he was refused permission to examine the books, papers, and effects of the company, and that no financial statement has ever been made or furnished him by the company, or by any of its officers. That in and by the by-laws duly adopted by the company it is provided that the books and papers in the offices or custody of the secretary and treasurer shall be open at all times during business hours to the inspection of any stockholder. That in and by the by-laws the seeretary is required to record the proceedings of the board of trustees, make out stock certificates, keep a ledger containing full data as to the stock of the company, have charge of the corporate seal, and perform such other duties as from time to time may be imposed or required of him by the board of trustees. It is further provided that the treasurer shall have custody of the company's funds, pay out the same on order of the board of trustees, keep accurate accounts of the financial business and dealings of the company. make and render reports at the annual meetings of the financial business and dealings of the company. The fiscal year shall end on June 30th of each year, and the annual stockholders' meetings shall be held on the fourth Monday in July each year at 3 o'clock That the treasurer of said company failed to make any report at the last annual stockholders' meeting, or at any time. That respondent Birkhaeuser, under the provisions of the by-laws, holds the office of acting secretary and treasurer of the company. That relator has made frequent demands in writing upon said Birkhaeuser, the acting secretary and treasurer, for a financial statement of the business affairs and transactions of the company, which demands were refused. That on or about the 13th or 14th day of February, 1906, relator during business hours went to the principal office of the company at Monarch, and demanded of said Birkhaeuser, the then acting secretary and treasurer, permission to inspect the books, papers. and effects of the company in relation to its business affairs and transactions, and such permission was by the said Birkhaeuser refused, and is still refused, although the said Birkhaeuser, as acting secretary and treasurer, then and there had such books, papers, and effects in the said office in his possession and under his control. That relator's object and purpose was and is to secure the honest

and economical administration of the affairs of the company, and to take such measures as may be deemed necessary to accomplish that end, and thereby protect his own interests. Then follows the prayer in the usual form.

Taking everything alleged in the petition as true, it does not appear that the officers in charge of the business of the company have been guilty of fraud or mismanagement. It is earnestly contended that the absence of such an allegation renders the petition fatally defective. It does appear by allegation, which must be deemed and taken as true upon the demurrer, that the company was organized and a going concern in February, 1906; that its last annual meeting was held in July preceding, at which time a dividend was passed, and there was no financial statement, as required by the by-laws, made, and that during all that period the relator was a stockholder, and that as such stockholder he has been denied a financial statement of the business affairs of the company, although he has made written request therefor, and that he has also been denied access to, or an inspection of, the books and records of the company when application so to do was made at a reasonable time; and further, that such inspection was sought, not for mere idle curiosity, or to in anywise injure the corporation. The right of the relator as a stockholder, upon proper showing, to inspect the records and books of the corporation is well recognized at common law; indeed that right is so well established that it needs no discussion. There is no statutory enactment in this state declaratory of, nor in anywise changing or modifying, that rule, but we may deem the by-law as pleaded, and which was adopted by and in pursuance of the delegated power to the corporation, as declaratory and an enlargement of such common-law right. "When such right, under the common-law rule, is denied, the writ of mandamus will not issue to enforce the mere naked right, or to gratify mere idle curiosity. It is necessary and incumbent upon the relator to show some specific interest at stake rendering the inspection necessary, or some beneficial purpose for which the examination is desired." High on Extraordinary Legal Remedies, § 310: 2 Spelling on Extraordinary Relief, § 1612. Treating the by-law as having full force and effect, enacted pursuant to statutory authority, and not being in conflict with any statutory provision relating to and affecting the administrative affairs of the corporation, and granting to the stockholder an unconditional right, it enters into and changes the common-law rule as to the necessity of alleging or proving the purpose for which such examination is sought. Under this bylaw, if the object of the examination sought was mere idle curiosity or an illegitimate purpose, that would be a matter of defense. In construing a statutory provision to the same effect, it was said by the Supreme

Court of Alabama in Foster v. White, 86 Ala. 467, 6 South. 88: "The stockholder is not required to show any reason or occasion rendering the examination opportune and proper, or a definite or legitimate purpose. The custodian of the books and papers cannot question or inquire into his motive or purpose. If he has reason to believe that they are improper and illegitimate, and refuses the inspection on that ground, he assumes the burden to prove them such. If it be said this construction of the statute places it in the power of a single stockholder to greatly injure and impede the business, the answer is, the Legislature regarded his interests in the successful promotion of the objects of the corporation a sufficient protection against unnecessary or injurious interference. The statute is founded upon the principle that the stockholders have a right to be fully informed as to the condition of the corporation, the manner in which its affairs are conducted, and how the capital to which they have contributed is employed and managed." If the state can by legislative enactment make such a law to govern and regulate the affairs of corporate bodies, then there is no reason why those intrusted with the affairs of a corporation cannot make by-laws not in conflict with any statute or constitutional provision, and in furtherance of conducting the affairs and business for which it was organized, and affecting the relation and establishing the rights of those who have contributed to its capital. Section 4417, Thomp. Corp.

It is, however, urged that the remedy is not mandamus, but by injunction. Section 4194, Rev. St. 1899, is as follows: "Mandamus is a writ issued in the name of the state to an inferior tribunal, a corporation, board or persons, commanding the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station"; and section 4197, Rev. St. 1899, is as follows: "The writ must not be issued in a case when there is a plain and adequate remedy in the ordinary course of the law." It is not pointed out, nor do we understand, where there is a plain and adequate remedy in the ordinary course of the law upon the facts alleged in the petition. The cases cited where mandamus was denied relate to an attempt to compel the transfer of stock upon the books of a corporation, and it seems to us are inapplicable to the case before us, for in all such cases there is a remedy at law for damages, and the corporation, as such, is not charged by law with the specific duty to make such transfers. The distinction is clear between that class of cases and those where the duty is specially enjoined by law. As we have already held, the by-law pleaded and relied upon by relator as the basis of his right to maintain this suit is, so far as it affects the Wyoming Coal Company, its officers and stockholders, as legal and binding as though it were a general law enacted

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