Harmon v. Frye

Kirby, J., (after stating the facts). It is contended that the loss of profits was not in contemplation of the parties when the contract was made, and that the damages are so remote, speculative and contingent that no recovery can be had. It is undisputed that the building and picture show apparatus was leased to appellee for the purpose of operating a moving picture show, and the jury have found that he was wrongfully evicted therefrom and deprived of machinery, making it impossible to operate the show for a period of twenty days. The undisputed testimony shows further the actual receipts and expenses of the business during the nine days it was operated, and that appellee was making therefrom a daily average profit of more than $11, when he was compelled to quit business. “A recovery of profits as in the case of damages for the breach of contracts in general depends upon whether such profits were within the contemplation of the parties at the time the contract was made; and if they are such as grow out of the contract itself, and are the direct and immediate result of its fulfillment, they form a proper item of damages. 13 Cyc. 53-54. Such damages “must be certain both in their nature and in respect to the cause from which they proceed. It is against the policy of the law to allow profits as damages, where such profits are remotely connected with the breach of contract alleged, or where they are speculative, resting only upon conjectural evidence or the individual opinions of the parties or witnesses.” 13 Cyc. 53. Spencer Medicine Co. v. Hall, 78 Ark. 336; Beekman Lbr. Co. v. Kittrell, 80 Ark. 232; Hurley v. Oliver, 91 Ark. 433. It is not questioned that the building and motion picture apparatus were rented for the purpose of exhibiting motion picture shows therein by appellee, with the expectation of receiving gain; and necessarily the profits arising therefrom were reasonably within the contemplation of the parties at the time the contract was made, and the damages assessed by the jury are not speculative, resting only upon the individual opinion of the parties or witnesses, but based upon the facts of the daily receipts and expenditures of the eight days prior operation of the business, which would have been continued but for the wrongful act of appellant. The jury, under proper instructions as to the amount of credit which should be allowed appellant in assessing the damages according as they should find whether appellee agreed to pay $50 rent, or $50 and the $30 Siegel debt, additional, as claimed by appellant, assessed the damages at $80, and the evidence is sufficient to support the verdict. If there was an exception saved to the instruction relative to assessing the damages for the twenty days, which is doubtful, we do not think the instruction open to appellant’s objection; and, if¡it was defective, the defect should have been reached by specific objection, which was not made. Finding no error in the record, the judgment is affirmed.