K. & R. Film Co. v. Brady

Pendleton, J. (concurring). What plaintiff lost was the benefit of his contract. The value of the contract was therefore the basis of his damages. The agreement provides that plaintiff should receive one-half of the gross receipts taken in at the theatre. The value of this contract necessarily involves the chance or opportunity of receipts, and any evidence from which a reasonable inference can be drawn as to the amount of such receipts is therefore competent, and it is a question of law for the court as to whether such reasonable inference may be drawn from any particular fact sought to be proved. The province of the jury is to determine in the particular ease what inference should be drawn from all the facts admitted in evidence. The character of the evidence must often depend on the nature of the issue involved, and when, as here, direct positive evidence of mathematical certainty is not available, considerable latitude is necessarily allowable as the best evidence attainable, and a corresponding increased responsibility -is thereby thrown upon the jury. That some element of uncertainty is thus involved is no sufficient reason for denying to a party all relief nor is it on the other hand a justification for admitting in evidence facts from which an inference relative to the matters involved cannot reasonably be drawn. While it is not always easy to define the line, there is a line nevertheless and I think it very clear that in the case at bar the receipts in small towns or one-day stands at prices fifty per cent lower with con 672 tinuous or numerous performances afford no fair basis for any reasonable inference as to what the receipts would have been under the contract now under consideration, and that the admission of such evidence was error. Especially is this true of the cases where the evidence shows the theatres are of an entirely different class from the one involved in this contract. It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.