By the Coin’t—Gilbert J.
The plaintiff was permitted to give evidence “ of the amount of profits which might have been made during the term of the agreement (seventeen years), based upon a calculation of the probable amount of sales of car springs during said term,” and the defendant excepted. We think the evidence was inadmissible, and the finding based thereon erroneous. Assuming that this is a case for the application of the rule of damages adopted by the referee, the amount thereof should have been ascertained by the testimony of witnesses competent to express an opinion on the subject. The question was, what was the value of the contract when the breach occurred 1 The form of proof prescribed in the *14case of Taylor v. Bradley (39 N. Y., 145) is the same which is adopted for the purpose of ascertaining the market value of goods on a particular day, and the value of a lease, namely; “ The judgment of men whose knowledge and whose experience in the same, or like matters, enables them to form a judgment on the subject.” The court in this case also say, “if it cannot be proved, then the plaintiff can only recover nominal damages.” Estimates of probable sales furnish no proper criterion for fixing damages. Actual damages and actual loss of profits only can be recovered. (Bagley v. Smith, 10 N. Y., 489.) In this case the only evidence on the trial on the subject of damages, was the amount of past profits. The court instructed the jury that this did not furnish a rule of damages, but that they should allow for the fluctuations of trade, and the effects of competition, and that the amount thus ascertained was subject to a further deduction of whatever the plaintiff actually made, or by reasonable diligence could have made, during the period for which the recovery was had. These instructions have been approved by the appellate court. If the rule of damages thus established is to-become permanent, great, strictness should be observed in applying it. Probable value or profits is neither a precise nor a safe basis for estimating damages.
For this error, without considering the other questions involved, the judgment must be reversed, and a new trial granted at the Circuit, with costs to ahí do. t.ho <wont_
Judgment reversed. ,