All Star Amusement, Inc. v. Jones, WD
| Decision Date | 14 April 1987 |
| Docket Number | No. WD,WD |
| Citation | 727 S.W.2d 930 |
| Parties | ALL STAR AMUSEMENT, INC., Respondent, v. James M. JONES and M.R. Brand, Inc., Appellants. 38722. |
| Court | Missouri Court of Appeals |
Gregory O. Grounds, Ennis, Browne & Jensen, Kansas City, for appellants.
W. Dudley Leonard, Independence, for respondent.
Before TURNAGE, P.J., and SHANGLER and MANFORD, JJ.
All Star Amusement, Inc. initiated this action for breach of contract and obtained a jury award of $39,150 in damages for lost profits. James M. Jones and M.R. Brand, Inc. contend All Star proved only a loss of gross profit but not net profit. Reversed and remanded.
This suit arose from the following set of circumstances: Jones, acting for M.R. Brand, entered into a three-year contract with All Star. Under the contract, All Star was granted the exclusive right to place coin-operated amusement, music and vending devices on the premises of a bar, known as The Point, owned by M.R. Brand. In return, The Point was to receive a percentage of the revenues generated by the devices. In accordance with the contract, All Star installed pool tables, video games, a pinball machine, juke box and cigarette machine at The Point. After a period of some eight months, Jones, dissatisfied due to equipment failures and service problems, terminated the contract and told All Star to remove its equipment from the premises.
Over a 30-week period while the agreement was in force, the various devices yielded average gross revenues of $675 per week. The contract provided that, for the first 26 weeks it was in effect, The Point would retain 60% of the revenues generated. For the remainder of the contract period the income from the devices was to be shared equally by the businesses. Therefore, testimony on All Star's behalf was that it could expect to receive average weekly revenues of $337.50 (50% of $675) for the remaining 116 weeks of the contract for a total of $39,150--the precise amount awarded by the jury.
Anticipated profits of an established business are recoverable "only when they are made reasonably certain by proof of actual facts, with present data for a rational estimate of their amount; ..." as shown by "proof of the income and expenses of the business for a reasonable time anterior to its interruption, with a consequent establishing of the net profits during the previous period." Coonis v. Rogers, 429 S.W.2d 709, 714 (Mo. 1968). In the case at bar, All Star's evidence, which establishes only the amount of average gross revenues while the contract was in effect, clearly fails to rise to this level. There was no evidence whatsoever of any offsetting expenses from which a net profit figure could be derived nor, although such is All Star's contention on appeal, was it shown that there would have been no appreciable costs of performance under the contract. See ...
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