Smith v. Hughey

Opinion by Mr. Chibe Justice McBride. 1, 2. There is no allegation of special damage and no allegation that plaintiff had incurred any expense in preparing to occupy the place, nor that he had any particular number of cows to put upon it. The only testimony on that subject is that the place would sustain a dairy herd of 50 cows, and that the value of the use under such circumstances would be somewhere between $4,000 and $5,000. The plaintiff had paid no rent and, so far as the. testimony indicates, had gone to [411] no expense in the matter of preparing to occupy the place. The value of the use and occupation of *the land was its actual rental value in the market, and the amount of plaintiff’s recovery would be that rental ralue, less the $600 which he had agreed to pay: Alexander v. Bishop, 59 Iowa, 572 (13 N. W. 714); Kenny v. Collier, 79 Ga. 743 (8 S. E. 58); Huiest v. Marx, 67 Mo. App. 418; Cannon v. Wilbur, 30 Neb. 777 (47 N. W. 85); Smith v. Phillips, 16 Ky. Law Rep. 615 (29 S. W. 358). The probable profits of a business not in actual operation depend so much upon the capacity of the party proposing to engage in it to conduct it successfully, and upon so great a variety of circumstances which make for success or failure, that evidence of that character is usually rejected as too speculative and remote. The plaintiff had leased the land for dairy purposes. By the act or mistake of defendants he had been prevented from using it for such purposes. The inquiry should have been confined to the rental value of the land for that purpose — what rent it would command in the market from persons seeking a farm for that purpose. Evidence showing the quality of the land, its ácreage, product and capabilities as a dairy farm, would be admissible as bearing upon its probable rental value and should have been confined to that purpose; but evidence as to what plaintiff or anyone else could have made upon it, as a basis for substantive damages, was inadmissible, and the instruction given that the measure of damages was what the plaintiff could reasonably have made off the place as a dairy farm was erroneous. 3. Defendants also offered evidence tending to show that plaintiff was notified of the mistake in defendants’ title in time to have enabled him to secure a simiJar farm and thereby protect himself from loss, which offer was rejected. In cases of this kind, testimony [412] that the injured party could have, by reasonable effort, minimized his loss is admissible: Hahn v. Mackay, 63 Or. 100 (126 Pac. 12, 991). The judgment is reversed and the case remanded to the Circuit Court with direction to retry it. Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.