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Lawskills.com Georgia Caselaw
KINGSTON PENCIL CORPORATION v. JORDAN.
42557.
Action on account. Jasper Superior Court. Before Judge Carpenter.
JORDAN, Judge.
1. No harmful error against the plaintiff is shown by the ruling of the trial judge in admitting a check which the defendant identified as showing payment to a third party for expenses incurred in repairing machinery returned by the defendant and in obtaining work which the plaintiff had agreed to do, nor in his comment on his ruling in the presence of the jury, that the check was admissible merely to show that the defendant undertook to minimize her damages.
2. The evidence, including testimony of lost profits, is sufficient only to support the verdict and judgment in favor of the defendant for $61.74 instead of $4,000.
2. This leaves for consideration the first enumerated error, the issue being whether the evidence is sufficient to authorize the verdict and judgment of $4,000 for the defendant. The plaintiff's credit manager, as its sole witness, testified that the amount of $1,257.24 as shown by the verified statement in the petition was the correct balance due from the defendant which the plaintiff had been unable to collect despite repeated demands by letters and telephone calls. The defendant, testifying as the sole witness in her behalf, told of various disputes with the plaintiff regarding proper credits to her account, and of continued delay in supplying her customers with imprinted materials which the plaintiff had agreed to produce and supply for her, and of efforts on her part to obtain compliance by the plaintiff. As to the $1,318.97 which defendant claimed as credit against her account under the pleadings, it appears that she determined this amount by claiming various credits against the account, including overcharges, freight charges the plaintiff agreed to pay, and misplaced glass dies, which total $751.60, plus lost profits of $567.38 from two jobbers who canceled orders due to the plaintiff's delay.
As to other lost profits, the defendant failed to carry the burden of showing that such profits were capable of definite ascertainment. In spite of some testimony as to the number of accounts that she had and the volume of monthly business, the defendant's answers on direct and cross examination as to the specific amount of her lost profits show only such generalizations as "we lost over half of our customers," "well, I imagine he caused me to lose at least $10,000," we "usually make around 40 to 30 per cent," and "our profit is about as much as we pay the supplier."
These generalized statements only point to the possibility of lost profits attributable to the plaintiff's acts, and fail to provide specific guidelines whereby the jury could determine that she was entitled to a verdict of $4,000. In general, unless the lost profits are capable of definite ascertainment, and are traceable directly to the acts of the other party, they are not recoverable. See Code 20-1406; Findlay Brick Co. v. American Sewer Pipe Co., 18 Ga. App. 446 (89 SE 535); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 (2) (76 SE2d 536); Globe Motors, Inc. v. Noonan, 106 Ga. App. 486, 489 (127 SE2d 320); Carter v. Greenville Service Co., 111 Ga. App. 651 (1) (143 SE 2d 1).
We think that the evidence authorized the jury to apply credits to the defendant of $751.60 and $567.38 in lost profits against the claim of the plaintiff for $1,257.24, and to this extent a verdict of $61.74 for the defendant was authorized. The judgment of the trial court is affirmed on condition that the defendant write off so much of the judgment as exceeds $61.74, with legal interest and costs; otherwise the judgement is reversed.
Judgment affirmed with direction. Bell, P. J., and Pannell, concur.
D. D. Veal, for appellee.
Weston D. Baxter, Jr., Robert F. Morgan, for appellant.
ARGUED JANUARY 6, 1967 -- DECIDED MARCH 2, 1967.
Friday May 22 19:26 EDT


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