Raynor v. Valentin Blatz Brewing Co.

100 Wis. 414 | Wis. | 1898

Winslow, J.

The verdict in this case justifies the judgment for the plaintiff, and we have discovered no substantial error in the case save upon the question of the .measure of damages. This was undoubtedly a case within the rules laid down in Poposkey v. Munkwitz, 68 Wis. 322, where the law authorizes the recovery of anticipated profits of a business as damages. The loss of such profits in the present case must clearly have been within the contemplation of the parties, and they are not too remote or conjectural, and are capable of being ascertained with reasonable certainty, because the plaintiff had been transacting the same business for years in the building. The evidence, therefore, showing the plaintiff’s previous annual profits in this very building while transacting the same business, was properly received as a basis for ascertaining the profits which he might reasonably anticipate during the balance of the year after his practical eviction. But the profits of an unlawful business cannot be any proper basis for the estimate of damages. This would seem to be too clear for argument. The profits made on week days may properly form such basis; but the profits made on Sundays, resulting from a criminal violation of the Sunday law, cannot form any legal basis for the estimate of damages. As well might it be claimed that the profits resulting from operating a gambling hall or a house of ill fame could be used as a basis for damages. To state the proposition is to answer it. The defendant attempted, by cross-examination of the plaintiff, and by a question proposed to be submitted in the special verdict, to ascertain what part of the anticipated profits were based upon the Sunday business ; but it was held by the court that the inquiry was immaterial, and we regard the question as properly raised by the exceptions taken to these rulings. Nor was it necessary to raise the question by pleading. The defendant was not required to anticipate that the court would allow evidence of improper elements of damage to be received and go to the jury. It is a question of evidence, and not of pleading. It seems quite certain that the jury took into account the Sunday profits of past years in their estimate of the profits to be anticipated. Certainly, the rulings of the court practically required them to do so. Hence there must be a new trial.

By the Court.— Judgment reversed, and action remanded for a new trial.