Schermerhorn v. Sayles

• Decision Date: 17 January 1923
• Docket Number: 17492.
• Citation: 123 Wash. 139,212 P. 156
• Court: Washington Supreme Court
• Parties: SCHERMERHORN v. SAYLES.

212 P. 156

123 Wash. 139

SCHERMERHORN v. SAYLES.

No. 17492.

Supreme Court of Washington

January 17, 1923

Department 1.

Appeal from Superior Court, King County; A. W. Frater, Judge.

An action by Abe Schermerhorn against George Sayles. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

Guie &amp Halverstadt and Carroll B. Graves, all of Seattle, for appellant.

Jno. A Homer and William E. Froude, both of Seattle, for respondent.

BRIDGES J.

Suit for damages on account of the alleged breach of the covenants of a lease.

The lease was given by the defendant to the plaintiff, and covered a storeroom in a certain building in Seattle. It was dated September 20, 1919, and was to run for four years. This instrument provided that the lessor should be required to furnish 'heat and hot water at all seasonable times of the year without any charges to the lessee therefor.' It was understood at the time of the making of the lease that the premises would be used as a barber shop. In fact, we believe it is expressly so stated in the lease. The plaintiff went into possession some time in November 1919, and continued there until the commencement of this suit. In his complaint he claims that the defendant during much of the time failed or refused to furnish heat and such hot water as was necessary to the uses to which the premises were put. He asked for a mandatory injunction requiring the defendant to furnish heat and hot water, and also seeks to recover certain items of damage. The court, trying the case without a jury, refused to grant any equitable relief, but entered a money judgment in favor of the plaintiff in the sum of $1,945.08. This amount, as shown by the judgment, was intended to cover damages up to March 22, 1922. The defendant has appealed.

The trial court seems to have undertaken to determine the damages on the basis of lost profits. The appellant contends that in a case of this character the true and only measure of damages is the difference between the rental value of the property had the lease been complied with, and its rental value in the absence of any such compliance. The respondent, while admitting that the difference in the rental value is a proper measure of damages, claims that it is not exclusive, and that special damages may be recovered as well as loss of profits, where the same can be shown with reasonable certainty. This court has taken the position that in cases of this character the general rule is that the damages must be measured by the difference in the rental value, and that they cannot be measured by recovery of the loss of profits, except in special instances and under peculiar circumstances. Purcell v. Warburton, 70 Wash. 129, 126 P. 89; Matzger v. Arcade Bldg. & Realty Co., 102 Wash. 423, 173 P. 47. It is unnecessary for us here to enter into a discussion of this question. It is certain under all the authorities that, in a case of this character, loss of profits cannot be recovered unless they can be shown with that degree of certainty which the law requires, and, in the absence of ability to show the loss of profits, the correct measure of damages is as stated in Purcell v. Warburton, supra:

'The difference between the value of the use of the rooms as furnished by the plaintiff and heated as contemplated by the contract, and the value of their use as in fact heated by the defendants.'

Loss of profits must always be shown with a reasonable degree of accuracy.

'The testimony must be clear and free from taint of speculation or conjecture.' Matzger v. Arcade Co., supra; Brinnon Logging Co. v. Carlsborg Mill & Timber Co. (Wash.) 210 P. 945, and cases cited.

Conceding merely for the purposes of this case, that the respondent was entitled to recover his lost profits, his testimony falls far short of that degree of accuracy and certainty required by the courts as to what such losses are. Respondent's own testimony shows the wisdom of the rule heretofore laid down by this court that the measure of damage is the difference in the rental value, and shows the utter futility of attempting to prove the loss of profits under circumstances such as exist here. A number of witnesses, particularly barbers working for the respondent, testified to a lack of heat and hot water, and that such interfered with the work in the shop and that some patrons left because thereof. But, in the very nature of things, it was impossible for these witnesses to testify--and they did not undertake to...