Hagestrom v. Sweeney

Opinion by Mr. Chief Justice Eakin. Defendants assign as error certain rulings of the court in the admission of evidence, which rulings we deem were not prejudicial, and they need not be further considered. They also assign as error the instruction given by the court to the jury as follows: “If you find that the plaintiffs were improperly discharged and not permitted to continue the work under the terms of the contract, then you may assess such damages, as would reasonably compensate them for the breach not to exceed $2,000”— which was duly excepted to, upon the ground that there was not any evidence before the jury upon which to predicate a verdict for damages. 1. There was no proof of specific damages arising out of the breach; the allegation of damages being that they were deprived of present and future work to their great damages in the sum of $2,000. Plaintiffs testified that they have been at work during the most of the time since being discharged from the job; that they have been continuously at work, which is an admission that no such damages resulted. [436] 2. Plaintiffs attempt to prove profits that would have resulted to them if allowed to complete the contract, but no proof was offered of facts from which profits could be estimated, such as the amount of rock or earth yet to be removed, or the probable expense of its removal. On the contrary, opinion evidence was offered without proof of any data upon which to base it, and therefore was not competent evidence of any damage. Upon breach of a contract, where loss of profit is the measure of damages relied upon, such probable profits must be established by proof of data from which the extent of the profit, if any, may be computed. 4 Ency. Ev. 5, 14, 21; 8 Am. & Eng. Ency. Law (2 ed.) 621, 622, and note; Douglas v. Railroad Company, 51 W. Va. 523 (41 S. E. 911); Ramsey v. Holmes Elec. Prot. Co., 85 Wis. 174 (55 N. W. 391); Lentz v. Choteau, 42 Pa. 435; Durkee v. Mott, 8 Barb. (N. Y.) 423. The only evidence offered to prove loss of profits is disclosed by the questions to witnesses as to their opinion as to what the profits would have been, and the offer was properly denied. This conclusion renders it unnecessary to consider further plaintiffs’ appeal, which related only to the damages remitted. The verdict was in favor of plaintiffs in the sum of $1,184.05 and the further sum of $1,000 damages, which, as stated, were reduced to $500. 3. As the damages are found in a separate item of the verdict, the amount erroneously found is fixed, and we may affirm the judgment on condition that plaintiffs remit from the judgment the amount of damages, namely, $500, following Gardner v. Kinney, 60 Or. 292 (117 Pac. 971). Therefore it is ordered that if the plaintiffs shall, within thirty days, remit the sum of $500 from the judgment of the lower court, the remainder of the judgment will be affirmed; otherwise, it will be reversed and remanded for a new trial. Defendants to recover costs in this court. Conditionally Affirmed.