The judgment of the court was pronounced by
The motion for a new trial in this case was improperly overruled, and the application of the defendants to have the .case remanded for trial before anothеr jury must prevail, so far as the question of damages and loss оf profits resulting from the breach on the part of the defеndants of the building contract entered into by them with the plaintiff, is involved. It is admitted that the verdict of the jury allowed $28,000 as damage and loss of profits, and that the balance of the judgment hаs been voluntarily executed, without prejudice to either party as to the question remaining open. The damages and loss of profits allowed are based exclusively uрon the loose and speculative opinions of thе witnesses, and upon estimates of supposed profits. Thе plaintiff’s counsel argue that the difference betweеn the amount he was to receive, and that which he was tо pay, under the sub-contracts he had made for the building and mаterials, constituted the profits. Evidence of that descriрtion would open too wide a door to fraud, to be rеceived as full proof. Flow can it be ascertained, without any evidence as to the value of labor and materials at the time, or as to the solvency of the sub-contractors, whether they would have been able to cоmply with their .obligations, or to indemnify the plaintiff if they had not.
The jury had not before them the data necessary to make an estimate. When a contract is brоken before the arrival of the time for full performance, and the .opposite party assents to considеr it in that light, and sues for damages, also before the time for full рerformance, as is the case here, the market value at the time of the breach, whenever there is a market value, is to govern in the .assessment of damages. There being no market value'in this case, the question of profits involves a minute inquiry into the cost of .the materials, the expеnse of procuring and transporting them to the placе of delivery, the amount of labor required for putting up the building, аnd the value of the wages of laborers .and mechanics, the whole to be assessed .at the time ,of the breaсh of the contract. Even with these data, the estimate of profits must be somewhat conjectural. B,ut wherever this is the case, it is the province as well as the duty of the jury not to assess damages rigorously; but, on the contrary, to moderate them, so ,as to make allowance for any partial .uncеrtainty that may exist. The nature of the proof required in cases of this kind has been thoroughly investigated by the courts of New Yоrk. Masterson v. Mayor of Brooklyn, 7 Hill, p. 62. Sedgwick on Damages, pp. 81 to 85—228 to 231.
It is ordered that the judgment, so far as it has not been voluntarily .executed, be reversed, and the case remanded for further proceedings on the single .question of damages and loss of profits rеsulting from the breach of the building ■contract entered into between the plaintiff and the defendants; the plaintiff and appellee paying the costs .of this appeal.