40 N.Y.S. 87 | N.Y. App. Div. | 1896
The question as to whether the agreement was made, as testified to-by plaintiff,- was one of fact for the jury. The only,question as to the agreement itself is, whether an agreement to conduct'the business- “ on shares ” was in effect one providing that the plaintiff .and defendant should share equally in the net profits of the business. N o such question as this was suggested in express terms at the trial.. It was not suggested that there- was any variance between the agreement sworn to- by. the plaintiff and the one alleged in the complaint. The learned trial court submitted to the jury the question of fact whether .the agreement upon which the action was based was entered into. Nothing was said by him as to the meaning of the words “ on shares,”' as used by the parties, and there was no request by .the defendant upon that subject. If there had been such suggestion made,-it would very likely .have been .a question .to be determined-by. the jury, under all the circumstances, what the intention of the parties was in the use of the’ phrase “ on shares,” .and we think .the jury would have been justified, then, in finding that the meaning of the phrase 'in the contemplation of the parties was “ equal shares.”’ The .defendant cannot now. complain, in the .absence of any request on the subject, that .the question as to the meaning -of the phrase was not specifically submitted to the jury. The, jury, under
We think the meaning of the phrase, within the intention of the parties, was “ equal shares ” of the profits of the business. There were various exceptions taken to the admission of evidence upon the question of damages, and to the charge and refusals to charge upon this subject.
In Bagley v. Smith (10 N. Y. 489), which was an action brought to recover damages for- the breach of an agreement of co-partnership by one of the co-partners, in terminating the co-partnership before the expiration of the term agreed upon, it was held that the damages recoverable were- the loss of the plaintiff’s share of the profits which the co-partnership would have made had it continued to the end of the term. And while it was conceded that there were difficulties in ascertaining and estimating such prospective profits, yet the court held that it would not refuse to make the inquiry as to such profits, especially as it was the misconduct of the defendant that rendered the inquiry necessary.
In Devlin v. The Mayor (63 N. Y. 8-25), which-was an action to recover damages for the breach of an executory contract for street cleaning in the city of New York, it was said: “ The measure of damages * - * * is too well settled by authority to require discussion, and the rule adopted by the courts commends itself for its simplicity, as well as equity and good sense. It secures to the injured party as a compensation only such advantages as the parties must be deemed to have had in their minds in making the agreement, and-excludes all contingent and uncertain profits, every thing that may not reasonably be supposed to have been within the contemplation of the contracting parties, and would not naturally follow the breach. The party who has been wrongfully deprived of the gains and profits of an executory contract may recover as an equivalent,-and by way of damages, the difference between the contract-price, the amount which he would have earned and been entitled to recover on performance, and the amount which it would have cost him to perform the contract.”
And in Wakeman v. Wheeler & Wilson Mfg. Co. (101 N. Y. 205, 209, 210), which was an. action to recover damages for the
The court reviewed the authorities in this State, and elsewhere bearing upon this subject, and the -rules laid down in this case have never since, been questioned,
We think the case we-are considering was tried and submitted to
The evidence on the. part of the defendant showed an entirely different estimate of net profits. The charge- for- rooms and board was put at five to nine dollars per week, and it was said that the rooms would not have been full all the time, and that the season was practically from June first to September first. In connection- with this evidence some idea of the defendant’s estimate of the earning capacity of the house was afforded by the consideration that he asked $2,500 per year rent for the property.
The verdict of the jury was $450, which was. in effect arrived at on the: basis of the net profits for the three months, or thirteen weeks,
- The judgment and order appealed from should he affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment and order affirmed, with costs.