An Auctioneer may be Entitled to Damages if s/he can Prove the cause in fact of Damages with “Reasonable Certainty” or "Probability"

An auctioneer can claim damages for loss in an auction sale if s/he can prove the cause in fact with reasonable certainty.  The Oregon Supreme Court in Continental Plants Corp. v. Measured Marketing Service, Inc., 274 Ore. 621(Or. 1976) held that the standard for proving the cause in fact of damages to an auctioneer is a qualified one of ‘reasonable certainty’  or ‘probability.’
 
In this case, the Plaintiff auctioneer entered into a contract with defendant to mail advertising brochures relating to the sale of certain metal fabricating machinery.  The contract was to mail the brochures to prospective purchasers in Category 3400 of the National Business List.  However, the defendant company mailed around 5,750 brochures to Category 2400, which contained only wood fabricators.  The auctioneer conducted the auction, but only few people attended the auction.  The auction was a failure and the auctioneer was damaged as a result.  Subsequently, the Plaintiff filed a suit against the defendant company for breach of contract and claimed damages. 
 
efendant argued that the plaintiff did not produce evidence of any potential buyer who would have purchased the machinery if s/he was given the notice of sale. Id. at 625. Therefore, the plaintiff failed to prove with reasonable certainty that the auction failure was because of the defendant's fault in mailing the brochures to the right business category. Id. 
The court held that the law does not mandate such exactitude of proof. Id.  In analyzing the meaning of “reasonable certainty," the court referred to the discussion of the term in McCormick, Damages 100, § 27 (1935).  Accordingly, “* * * [I]t appears that the epithet 'certainty' is overstrong, and that the standard is a qualified one, of 'reasonable certainty' merely, or, in other words, of 'probability." Id.
The court stated that the very purpose of the auctioneer’s agreement with the defendant was to inform businesses, who were dealing with certain type of machinery, of the plaintiff’s auction sale. Plaintiff was to auction similar type of machinery. Id. The purpose of the contract was to notify them of the sale and to create in them an interest to attend the auction and buy the machinery. Id. The court found that there was sufficient evidence for the finder of facts to arrive at the conclusion that the failure to mail the brochures to the proper businesses was the probable cause of the failure of the auction sale and the plaintiff was damaged as a result. Id. 
Therefore, the court affirmed the trial court’s judgment and found that the defendant breached the contract resulting in damages to the auctioneer. Id.