55 Neb. 429 | Neb. | 1898
The plaintiffs in error were at one time owners of certain property in Sutton adapted to use as a hotel. The defendant in error, or his wife, owned hotel property in another part of the town. An exchange was effected whereby the hotel property of plaintiffs in error was conveyed to Mrs. Mollyneaux and that of Mollyneaux conveyed to plaintiffs in error. The deed conveying the latter contained the following: “The same not to be used for hotel purposes for two years from this date,” the deed being dated June 11, 1889. Mollyneaux sued, alleging that'he had continuously from the transfer operated a hotel in the property conveyed to his wife, and that the plaintiffs in error, the defendants below, had in .geptem-
On the trial the plaintiff called as witnesses certain persons who had been employed as clerks at the hotel, which was operated by one Shope, who had purchased from the defendants. They identified certain books as registers, kept during their respective periods of service, wherein guests entered their names on arriving. The only entries made by the witnesses were such letters as “D” and “L,” indicating the time of arrivals. The books did not show how' long the subscribing guests remained at the hotel, and there was no proof whatever that the names therein written were true entries of Iona fide guests. They were admitted in evidence over the objection of defendants, and we think their admission was erroneous. They proved, on the foundation laid, simply that certain persons had, at certain times, signed their names on the books. They afforded no proof of the real number of actual guests, that the persons were paying customers or the duration of their stay, and so of the extent of patronage the Shope hotel enjoyed. The error was accentuated by refusing to permit the defendants to cross-examine on these points. It must be borne in mind that this action is against plaintiff’s immediate grantees, not for operating themselves the hotel, but for selling to another and permitting him to operate it. The books were not kept or controlled in any way by the defendants, but were books of a stranger, which might, under proper circumstances and on proper preliminary proof, perhaps, be admitted as entries made, in the course of business, or which might be used to refresh the memory of a witness, but which could not, without a foundation and supplementary evidence, which were not here admitted, be used to prove the issue in this case.
As the case must be retried it is proper that we should now consider certain other questions which will inevitably again arise. It is insisted that the operating of the
The rule of damages is much discussed, and it is argued that only nominal damages could in such case be recovered. It is said that there can be no recovery for profits prevented. The former opinion voiced the difficulty of proof in such cases, but did not hold that substantial damages could not, as a matter of law, be recovered in such case. A doubt was- expressed as to the practicability of proving them. In French V. Range, 2 Neb. 254, it was not held that recovery could never be had for a loss of profits, but that the circumstances of that case forbade proof to that degree of certainty which the law requires. It has since been held that the party injured by a breach of contract is entitled to recover for
Reversed and remanded.