The Montgomery County Union Agricultural Society v. Harwood

• Decision Date: 09 January 1891
• Docket Number: 14,743
• Citation: 26 N.E. 182,126 Ind. 440
• Parties: The Montgomery County Union Agricultural Society v. Harwood et al
• Court: Indiana Supreme Court

26 N.E. 182

126 Ind. 440

The Montgomery County Union Agricultural Society v. Harwood et al

No. 14,743

Supreme Court of Indiana

January 9, 1891

From the Montgomery Circuit Court.

Judgment reversed, with costs, with instructions to grant a new trial.

P. S Kennedy and S. C. Kennedy, for appellant.

H. D Hurley and M. E. Clodfelter, for appellees.

OPINION

Olds C. J.

This is a suit by the appellees against the appellant for breach of contract.

It is alleged in the complaint that the appellees rented of the appellant a small piece of ground for a huckster or candy stand during the fair, in September, 1888, and that it was a part of the agreement that there was to be no ground rented for competing stands within designated limits, and that this agreement was violated by the appellant by allowing competing stands within the designated limits.

The appellant answered the complaint by general denial. A trial was had, resulting in a verdict for the appellees in the sum of $ 200.

The evidence is not in the record, but the instructions are brought into the record by a bill of exceptions.

The only alleged error discussed is the giving of instruction No. 8, upon the measure of damages. The instruction is as follows:

"If you find that the contract was made as charged in the complaint, and was broken by the defendant, the plaintiff would be entitled to recover as damages such profits as they would have realized upon goods that they did not sell in consequence of the opposition of rival sellers permitted on the defendant's grounds in violation of their contract with the plaintiffs, and also for cost-price to them of such perishable goods as were provided by them for sale upon the grounds, and which goods they did not sell, but that spoiled in their hands, and which goods they might have sold but for the rivalry of parties selling the same goods within the prohibited limits, and the difference between the cost price to them and the amount realized by them on such perishable goods as they purchased for sale on said grounds and did not sell, but that became damaged, and which they were prevented from selling by reason of the said opposition of said vendors of the same goods within the prohibited limits on said grounds."

This instruction is erroneous. The profits which appellees would have realized upon goods that they did not sell in consequence of the opposition of rival sellers permitted on the appellant's ground in violation of this contract are merely speculative.

The appellees had no established business or trade at the place leased; they made a mere temporary lease of the ground for future occupancy for the purpose of conducting a candy or huckster stand during the fair. To enter into the question as to whether or not they would have sold a particular article if no rival stand had been erected within certain limits, or to endeavor to show that a certain person purchased a like article to that kept by the appellees at a rival booth, and would have purchased the same of appellees if the rival booth had not been erected within certain limits, would be entering into such a field of uncertainty and speculation as is not warranted by a court in the assessment of damages.

Profits are frequently taken into consideration in estimating and assessing the damages accruing by reason of the interruption or destruction of an established business, and proof in such case is admissible to show the amount of business done and profits realized prior to the interruption or stoppage of the business to enable the jury or court trying the case to arrive as nearly as possible at the actual damage sustained by the injured party. This affords some reasonable basis to reckon from, as, in case of an established business, it is reasonable to presume that, if pursued in the same manner, it will continue to yield a like profit. But in the case at bar there is no established business from which the appellees were deriving a...