16 N.M. 302 | N.M. | 1911
OPINION OP THE COURT.
This is the third time this case has been before this court: Di Palma v. Weinman, 13 N. M. 226; 82 Pac. 360; 103 Pac. 782, 15 N. M. 68. The caso was reversed the last time because of a lack of evidence to prove loss of net profits, loss on damaged goods and for an erroneous instruction as to interest. 103 Pac. 782; 15 N. M. 68. 1. On tire question of lack of evidence to establish loss of profits this court said: “There is, however, no evidence of loss of profits, except the bald statement of the witness, Ruppe, as to the net profits per month during-the time he occupied the Weinman building premises, and at the location to which he moved his stock after the wall fell. True, the record shows that he referred to some memoranda to refresh his memory; but it nowhere appears what the memorandum was, nor when or by whom it was made, nor does it state that he knows, or even believes, it to be correct. This being true, it was error to submit the question of loss or profit to the jury, there being no sufficient evidence to sustain a verdict, for such loss.” At the-trial, from which this appeal is taken, the witness Ruppe produced a cash book; several day books, a soda fountain book and a lodger kept by plaintiffs in the regular course of their business, and from these books, and especially from the cash book, the plaintiff Ruppe stated what were the cash receipts of the business of plaintiffs, for six and one-half months they occupied the Weinman building, and for the remainder of the term of their lease from Weinman, in the locations to which they were compelled to move. The witness Ruppe testified that he had been a pharmacist for thirty-five years and for over thirty years had been engaged in that profession in Albuquerque and that he and Di Palma had been partners in the retail drug business there since 1894. In reply to a question as to what his gross profits on sale in the retail drug business had been, he said: “A good many oí the medicines came with the prices marked thereon; others we figured the cost and what they were worth at retail is marked thereon; prescriptions are compounded and the profit is figured on the drugs and the time used in preparing the same. Certain goods such as sundries and articles of luxury are generally figured at a percentage rauging from fifty to one hundred per cent; prescription compounding must bring more than one hundred per cent; patent medicine profits range all the way from 25 to 35 qier cent; in my experience as a druggist in figuring profits that I have made in my business, I figure .that my business produced me on the average of 40 per cent, gross.” As to the monthly expenses of the business, the witness testified that plaintiff’s expenses were $434.00 per month. This he stated from memory and on cross-examination said that he had no record of any kind of the monthly expenses, but could and did state the same from memory solely. The defendants claim that.these books, for various reasons, furnish no basis for an intelligent estimate, of profits derived from the business and cannot poss’ibly corroborate the testimony of the witness. Their reasons are (a) the books contain no stock account; (b) they contain no account of Richard,Di Palma and B. Ruppe as partners; (c) they contain no showing of the amount of capital invested; (d) they contain no account from which a bookkeeper could ascertain the percent of profits' realized; (e) or how much merchandise was bought; (f) nor what the expense of conducting the business was.
In the case of Shepherd v. Milwaukee Gas Light Company, 15 Wis. 349, 82 Am. Dec. 679, on the point of how damages on account of loss of-profits should, be estimated, it is said: “And it seems to me that the profits of an established business are quite as capable of being ascertained .with reasonable certainty as the profits to arise from a single contract or adventure. There is, in the ease of such business, the experience of the past to serve as a lest. And the rule suggested by Jervis, V. J., in Flecher v. Taylour, 33 Eng. L. & Eq. 187, that the damages should be estimated ‘according to the average precentage of mercantile profits/ could readily be applied and would seem just and reasonable.” And the court in the same case, speaking further on the same point, said: “It is well established that an action exists in many cases for an injury to a person’s trade. Actions for slandering one in his trade or profession are of this character; and the damages are based upon the assumption that such slander injures the party’s business by diminishing it. But how does that damage him? Clearly, only by depriving him of the profits he would have made by the business, of which he had been wrongfully deprived. So also of private actions for a nuisance, the only injury being a diminution of the plaintiff’s business. * * * * In Marquart v. La Farge, 5 Duer. 559, the defendant had wrongfully broken up the plaintiff’s business in a restaurant. The plaintiff gave evidence of the extent of the business. ‘And that one half of the receipts were profit.’ The Court held the evidence was admissible. It said: ‘Now, it was certainly competent to prove in some way, the nature and extent of the injury, and the value of the business was a proper subject of estimate for the jury.’ They then said: ‘It may be that the calculation of possible or probable profit, in view of the ordinary uncertainties of business, would not be allowable.’ If by this the Court meant to exclude all consideration of the profits that would have resulted to the plaintiff according to ordinary course of business, it seems to me repugnant to what had previously been expressly allowed. They had allowed evidence of what the profits had been; they had said that the jury must estimate the value of the business, in arriving at the amount of the damages. Now, I think it is impossible for any judge or jury to do this without considering the profits of the business.”
4. As to the objection to the evidence as to †!->« «ros? profits; the witness did not testify as to an opinion, but as to a fact within his knowledge, i. e., that the goods sold by the linn were sold at an advance of 40% above* their cost. Iiis evidence was admissible and competent and it was for the jury to say what weight was to be given it.
9. The following special questions were put to the jury and answered as follows: No. 1. “Did the plaintiffs have reasonable grounds for apprehension that the wall of the building occupied by them might fall as the result ■of the excavation being made on Lot 1?” A. “No, sir.” No. 2. “Could the plaintiffs by the use of means reasonably within their reach have protected themselves from damage by the falling of the wall of the building occupied by them?” A. “No, sir.” No. 3. “What, if anything, did the plaintiffs do 'towards protecting themselves from the loss or damage to their property by the falling of the wall of the building occupied by them?” A. “No, sir.” No. A “Ought the plaintiffs as reasonable men have anticipated the fall of the wall of the building occupied by them?” A. “Yes, sir.” /.
Counsel for defendants have argued other points in their brief which we do not deem it necessary to discuss, as they have been disposed of by this court in former opinions. If the plaintiffs will file a remittitur of $770.00, being $500.00 on account of plaintiffs’ claim of that amount for damaged goods and $270 interest thereon, the judgment of the lower court will be affirmed; if not it will be reversed.