American Can Co. v. Funkhouser

Rehearing Denied May 1, 1922.

Horace Kent Tenney and A. D. Collins, both of Chicago, Ill., and Jas. A. Williams, of Spokane, Wash. (Danson, Williams & Danson, of Spokane, Wash., and Chickering & Gregory, of San Francisco, Cal., of counsel), for plaintiff in error.

F. A. Garrecht, of Spokane, Wash., for defendant in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

GILBERT, Circuit Judge.

This case differs from American Can Co. v. Garnett (simultaneously decided herewith) 279 F. 722, in that the court below awarded damages for future or prospective profits, holding that performance had so far progressed as to enable the court to see that the plaintiff would have fully performed the contract, except for the defendant's default, and that the profits which would accrue from such performance were substantial and ascertainable. We find no ground for disturbing the judgment of the court below, based, as it was, upon undisputed testimony which showed that the plaintiff had made extensive preparation to sell the motor sets, and had obtained numerous orders from prospective purchasers within the territory allotted to him, and that he could have sold and received payments for all the motor sets which he had ordered from the defendant under the terms of the contract, and for which he had made the advance payment ment of $2 for each motor set. Under this state of facts the profits were reasonably certain, and they are recoverable as damages. Port Blakely Mill Co. v. Sharkey, 102 F. 259, 42 C.C.A. 329; Northwest Auto Co. v. Harmon, 250 F. 832, 163 C.C.A. 146, Ann. Cas. 1918E, 461.

The judgment is affirmed.