Helphenstine v. Downey
7 App. D.C. 343
D.C. Cir.
1895
Check Treatment
Mr. Justice Morris

delivered the opinion of the Court:

1. As we have indicated, there are five assignments of error, of which the first and second are substantially the same, and may be considered together. They are ad*348dressed to the matter of the value placed by the parties at the time of the sale upon the patronage of the Portland store, which practically meant the same as the good will of the business. We do not understand that the testimony to which objection was made was sought to be introduced for the purpose of varying the written contract, as we might infer was understood or supposed at the time by the attorney for the defendant in view of the character of his objection ; nor do we understand that it was intended thereby to establish that value as the measure of damages for the violation of the agreement — although there might well be cases where it could properly serve that purpose. The testimony was clearly admissible for the purpose of showing the value of that which had been injured, if injury there was, by the unlawful action of the defendant. Possibly it was not entitled to much weight in the determination oí the issue; but that was for the jury. It was evidently the element of the patronage of the Portland store, or the good will of its business, that was measured in the contract of the parties, in whole or in part, against the covenant of the defendant that he would not engage in a rival business, that would have the tendency to destroy it, and the value of the one was undoubtedly a proper preliminary to be shown in the investigation of the damage done by the other. The case does not greatly differ "in principle from one of trespass upon property, where it is proper to show the value oí the property before and after the trespass, so as to determine the pecuniary equivalent of the damage done by the trespass.

We are of opinion that these exceptions are not well taken.

2. The third error assigned by the appellant is the refusal of the trial court to direct a verdict in his favor. We cannot regard that refusal as error. The theory of the appellant’s motion must necessarily have been, either that the plaintiffs had wholly failed to adduce any testimony that tended to show that the defendant had directly or in*349directly engaged in business in violation of his contract, or else that 'they had proved no damage therefrom to themselves. But both positions are untenable.

An appellate tribunal should always be reluctant to revise the decision of a trial court in submitting testimony to a jury. It will certainly not interfere with that decision unless a very clear case is shown for its intervention ; for the matter of the mere preponderance of testimony is not for an appellate court. But we think the court below was entirely right in refusing the appellant’s motion and submitting the issues to the jury.

The gist of the declaration was that the appellant had indirectly engaged in the drug business in violation of his contract. It is not to be supposed that he would have engaged in business openly in his own name in flagrant and avowed violation of his agreement. If it was his purpose to engage in business in opposition to the contract, he would naturally have sought to do so indirectly, and to accomplish his purpose by some such scheme as that which is outlined in this record. Direct proof in such cases is generally difficult, often impossible. It is indirection that was charged here ; and of indirection very generally the only available proof is that by inference from circumstantial evidence. No one, perhaps, of the circumstances adduced in the case against the appellant was sufficient, standing alone, to justify the conclusion that he was the real owner for his own benefit of the new drug store in the Cochran Hotel; but when they are taken altogether, while reasonable men may differ as to the inference to be drawn from them, that very fact necessitates that they should be submitted to the arbitrament of a jury. And if there was sufficient evidence to go to the jury upon the question whether the appellant had engaged in business in violation of his contract, the appellant’s motion to direct a verdict should not have been allowed, even if there had been no proof whatever of actual damages. For in the event that the jury should find, as they actually did find, that he had so en*350gaged in business, the plaintiffs were necessarily entitled in any case to nominal damages.

We do not think that the third assignment of error can be sustained.

3. Nor do we find the fourth and fifth assignments any more tenable.

The defendant’s eighth prayer for instruction to the jury, upon the refusal of which the fourth assignment is based, contemplates that the plaintiffs, before they can be entitled to any damages on account of the loss of customers, must show specifically and by name what customers were actually lost to them. We know of no foundation in reason or in authority for such an instruction.

It is quite true, in this class of cases, as in all others, that to justify a verdict for actual damages, actual damages must have been alleged and must have been proved. In the third and fourth counts of the declaration in this case loss of customers to the extent of one hundred was alleged. Of course, it was not necessary to prove that precise number, or any other specific number; but to sustain the allegations some proof of loss of custom was necessary. That proof might well be by showing a diminished number of customers at the Portland store after the opening of the new establishment and in consequence of that establishment. But to point out specifically the customers who were lost might be impossible. Several were actually pointed out by the plaintiffs in their testimony; but the element of damage, after all, is the number of customers and the amount of custom lost, and the names of the customers are a matter of no consequence in the final determination of the issue. Nor, if the finding of the juiy was right, that the appellant did engage in business in violation of his contract, can he justly complain of the indefiniteness almost of necessity incidental to the subject-matter of the controversy ; for it is to his own action that it is due.

The ninth prayer for instructions requested by the defendant is wholly without merit. The alleged failure of *351performance of the contract by the plaintiffs to which it refers, is their refusal, long after this suit was begun, to pay the last promissory note given by them for the purchase money of the Portland store. It is conceded by the appellant that the mere failure to pay the note would not terminate the contract; but it is suggested that a refusal to pay it on the ground that the contract had been broken by the other party put an end to the contract as to both parties. This point, however, is not seriously pressed ; and we cannot think that it requires any consideration from us. We find no error in the rulings of the court below; and the judgment must be affirmed, with costs. And it is so ordered.