Contract, What constitutes. Damages, In contract. Evidence, Opinion, Of profits. Practice, Civil, Exceptions. Witness, Examination.
In an action by a grocer against a trading stamp company for the breach of an alleged contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed rate for exclusive distribution in connection with sales on a certain street of a certain city, there was evidence that the daughter of the plaintiff, who was his bookkeeper, acting in behalf of the plaintiff and the defendant's manager acting in behalf of the defendant signed an agreement in writing containing the terms of the alleged contract and naming the district in which the distribution was to be made, and that, after the contract was signed, the defendant's manager took it away saying that he was going to have printed on the back of it a statement that the plaintiff was to have the exclusive right to distribute the trading stamps on a certain street, which constituted, or was in, the district named in the contract, and that he would return the contract to the plaintiff in a few days, but that he did not return it, and that, after the plaintiff had used one thousand trading stamps which he bought from the defendant under the terms of the contract, the defendant refused to sell him any more. The jury, by their verdict under the instructions given them, found that it was the understanding of the parties that the contract as signed should become operative and binding upon the parties at the time of the signing, irrespective of the time when the indorsement should be printed upon the back of it. Held, that the question whether there was a completed contract was one of fact for the jury, and that their decision of it could not be said as matter of law to be unwarranted.
In an action for a breach of contract the plaintiff may be allowed to recover as damages a loss of prospective profits, where it appears that such loss was the natural, primary and probable consequence of the breach, that the profits arising from the performance of the contract and the loss likely to result from its non-performance were within the contemplation of the parties and that the anticipated profits are not so uncertain or contingent as to be incapable of reasonable proof.
In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, upon the question of damages there was evidence that the plaintiff before his contract with the defendant had been carrying on a retail grocery business in a small way, that his sales were small in amount and mostly on credit, that after he began to use the trading stamps his sales increased greatly in amount with a greater proportion of cash sales, that this change continued during the time that he distributed stamps purchased from the defendant under the contract, and that, when the defendant in violation of the contract refused to sell him any more stamps, his sales returned rapidly in amount and kind to the condition in which they had been before the contract. There also was evidence that the consideration held out by the defendant to induce the plaintiff to enter into the contract was that by the distribution of stamps the plaintiff's business would be more profitable, and that the plaintiff entered into the contract with that expectation and for that purpose. Held, that upon this evidence the jury had the right to find, in the absence of evidence of any other sufficient cause, that the sudden rise in the amount of sales was due to the distribution of stamps and the sudden fall was the natural, primary and probable consequence of the breach of the contract, and that such a loss was within the contemplation of the parties as likely to result from the non-performance of the contract.
Where in an action for a breach of contract the plaintiff seeks to recover a loss of anticipated profits, he does not lose his right to recover such damages merely because he fails to prove with precision the whole amount of the profits which he would have made if the defendant had performed his contract. If the plaintiff can show by reasonable proof that he certainly has lost some profits by reason of the defendant's breach of the contract and that a fairly accurate estimate can be made of the portion thus lost, he is entitled to have such loss of profits included in the damages.
In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, where it appeared that the plaintiff had made a purchase of trading stamps from the defendant under the contract and had used them while they lasted and that the defendant then had refused to sell him any more of the stamps, there was evidence that before the plaintiff made the contract with the defendant his sales were small in amount and mostly on credit, that after he began to use the trading stamps his sales increased greatly in amount with a greater proportion of cash sales, and that when the defendant refused to sell him any more stamps his sales returned rapidly in amount and kind to the condition in which they were before the contract, and a finding was warranted that the sudden rise in the amount of the plaintiff's sales was due to the distribution of the stamps and that the sudden fall was the natural, primary and probable consequence of the breach of the contract and was contemplated by the parties as likely to result from its non-performance. It did not appear that, in order to attend to the increased sale caused by the use of the trading stamps, the plaintiff had hired any additional employees or had incurred any additional expense, and there was testimony that in the grocery business the profit upon the sales "if you give trading stamps" is "about fifteen per cent." Held, that it could not be said that the anticipated profits which the plaintiff sought to recover were so far conjectural or contingent that the question of their amount should not be submitted to the jury or that the jury were bound to confine themselves to giving nominal damages.
In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, where it appears that, after the plaintiff had made a purchase of trading stamps from the defendant under the contract and had used them to the great advantage of his business while they lasted, the defendant refused to sell him any more of the stamps, the daughter of the plaintiff, who was the bookkeeper in his grocery, may testify as to the effect of the distribution of the stamps upon the trade in the store and as to "the result [she] observed of lessening or increasing the number of customers after the stamps were exhausted," these being facts and not matters of opinion.
An objection of form to an answer of a witness as not being responsive to the question or as being in the nature of hearsay must be made specially. In the absence of any such special objection, an objection to the answer of a witness will be taken to relate only to matters of substance.
In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, where it appears that, after the plaintiff had made a purchase of trading stamps from the defendant under the contract and had used them to great advantage in his business while they lasted, the defendant refused to sell him any more of the stamps, and the plaintiff seeks to recover damages for the loss of the profits reasonably anticipated from the use of the stamps, the plaintiff may show that the profit upon the sales in the grocery business "If you give trading stamps" is "about fifteen per cent," this being one way and a proper way of estimating the profits of the plaintiff.
HAMMOND, J.
1. As to liability. There was evidence that a paper writing was signed by the parties, in the plaintiff's store, on October 3, 1908, and that after it was signed Demmon the agent of the defendant took it away, so that he might "print on the back of" it a statement that the plaintiff was "to have exclusive right on Daniels Street," in the Cleghorn district. The question, whether it was the understanding of the parties that the contract as signed should then and there at the time of the signing become operative and binding upon them irrespective of the time when the indorsement should be printed upon the back, arose and was submitted to the jury under instructions which permitted them to find for the plaintiff only in case they should find such an understanding. The verdict therefore shows that they found in favor of the plaintiff on this question. Upon a careful reading of the record we are of opinion that the question was one of fact for the jury, and their decision cannot be said as matter of law to be unwarranted. In view of the manner in which the case was thus sent to the jury and of their decision upon the crucial question submitted to them, it is manifest that the first, second, third and fifth rulings requested by the defendant were properly refused, — the first because there was evidence of a breach of the contract, the second and third because immaterial, and the fifth because there was evidence of a complete and binding contract.
2. As to damages. The law as to loss of profits as an element of damages for breach of contract is now quite well settled, yet sometimes difficulty is experienced in applying it to the cases as they arise. The loss of prospective profits may be allowed as an element of damages in an action for breach of contract where it appears that the loss was the natural, primary and probable consequence of the breach, that the profits arising from the performance of the contract or the loss likely to result from its non-performance were within the contemplation of the parties, and that the profits are not so uncertain or contingent as to be incapable of reasonable proof. Fox v. Harding, 7 Cush. 516. Magnolia Metal Co. v. Gale, 189 Mass. 124, and cases cited. Hadley v. Baxendale, 9 Exch. 341. United States v. Behan, 110 U.S. 338. Howard v. Stillwell Bierce Manuf. Co. 139 U.S. 199. Masterton v. Mayor of Brooklyn, 7 Hill, 61.
There was evidence that the plaintiff was carrying on a retail grocery business in a small way; that his sales were small and mostly on credit; that after he began to use the trading stamps his sales greatly increased in amount, with a greater proportion of cash sales; that this change in their amount and nature continued during the few weeks in which he distributed stamps, and that when by reason of the defendant's breach of contract he could not procure stamps and continue the distribution his sales rapidly changed in amount and kind to the condition in which they were before the contract. There was also evidence that the consideration held out by the defendant to induce the plaintiff to enter into the contract was that by the distribution of stamps the plaintiff's business would be more profitable, and that the plaintiff entered into the contract with that expectation and for that purpose. Upon this evidence the jury had the right to find, in the absence of any other satisfactory cause, that the sudden rise in the amount of the sales was due to the distribution of stamps; that the sudden fall was the natural, primary and probable consequence of the breach of the contract, and that such a loss was within the contemplation of the parties as likely to result from the non-performance of the contract.
It is urged however by the defendant that the profits likely to arise from the breach of the contract in this case are so uncertain and conjectural that no estimate can be made of them. There can be no doubt, as said by Bradley, J., in United States v. Behan, 110 U.S. 338, that "in order to furnish a ground of recovery in damages, they [profits] must be proved." It is not necessary however that the whole amount should be proved with absolute precision. The jury can go no further than the proof. So far as the plaintiff can show by reasonable proof that he has lost profits he can have them included in the damages, and that is so even if there is beyond that line a penumbra which he cannot clear up. And the real question on this part of the case is not whether he has proved all the profits which it may be conjectured he might have made, but whether he has shown by reasonable proof that at least he certainly has lost some profits by the breach and that a fairly accurate estimate may be made of this portion.
In addition to what has been hereinbefore stated as to the general nature and extent of his business and the cause of its rise and decline, it does not appear that in order to attend to this increased sale he hired any additional help or incurred any additional expense in any way or made any general change in his business. It fairly may be inferred from the evidence that he bought his stock in substantially the same way as before, and sold at substantially the same profit as before, less perhaps the money paid for the stamps; and there was testimony that in the business the profit upon the sales "if you give trading stamps" was "about fifteen per cent."
On all the evidence we think it cannot be said that the anticipated profits were so far conjectural or contingent that the question of the amount was erroneously submitted to the jury, or that the jury were bound to confine themselves to a merely nominal amount. There was no error in the manner in which the judge dealt with the rulings requested on the question of damages. So far as they were not covered by the change they were properly refused.
3. Some questions as to evidence remain for disposition. The evidence of Laura Gagnon in answer to the question as to the effect of the distribution of the stamps upon the trade in the store was properly admitted. It was in the nature of a statement of facts rather than of opinion. The evidence of the same witness as to "the result . . . [she] . . . observed of lessening or increasing the number of customers after the stamps were exhausted" was also properly admitted. Here also she was giving facts and not opinions. The objection that she was stating some things on hearsay we do not think is now open to the defendant. It made no specific objection on that ground when the testimony was given, and the general objection to the introduction of evidence as to profits must be held to apply only to the substance of the answer. If the defendant had any objection to the form of the question, or to the answer as not being responsive to the question, or as being in the nature of hearsay, it should have made this special objection known. In the absence of any such special objection both the judge and the plaintiff had the right to assume that only the general objection was relied upon by the defendant. The evidence as to what percentage of the receipts in the grocery business was profit was properly admitted. It is plain that this was only one way of estimating, not the profits of another, as contended by the defendant, but simply the profits of the plaintiff.
Exceptions overruled.