Finnegan v. Allen

Mr. Justice Waterman delivered the opinion of the Court. The finding of the court, as to a loss of anticipated profits, is as follows: 66 The court further finds that the said defendants had made a contract with Wm. McGregor & Co., in and by %vhich said contract the defendants had agreed to deliver to the said Wm. McGregor & Co. one hundred tons of castings, to be delivered at the rate of eight tons per month, at the price of $40 per ton for castings known as “ grate castings,” and $50 per ton for castings known as “ machinery castings,” for which the said Wm. McGregor & Co. had agreed to pay the said defendants the above named prices, and that by the wrongful suing out of the said injunction the said defendants were prevented from delivering the said castings to the said Wm. McGregor & Co.; that the said defendants could and would have made a profit of $15 per ton on each ton of castings thus contracted to be delivered, which profit they did not and could not make because of the wrongful suing out of the injunction herein, by reason of which the said defendants were damaged to the amount of ten hundred and eighty dollars.” As a general rule the expected profits of a business can not be proved and therefore can not be recovered. They might have been made, and they might not. Instead of profits there might have been losses. High on Injunctions, Sec. 1663; Consumers' Pure Ice Co. v. Jenkins, 58 Ill. App. 511; Olmstead v. Burke, 25 Ill. 86; Green v. Williams, 45 Ill. 200; Hadley v. Boxendale, 26 Eng. Law & Equity 398. There may be found cases in which courts have allowed proof of the profits which might have been made under contracts of which the wrongdoer who prevented their performance had notice. Without commenting upon such authorities, it is sufficient to say that there is no evidence that complainants in error were aware of the contracts the defendants are shown to have had. Moreover, there is no evidence that the defendants could not have carried out the contracts they had at some other place or hired other parties to have manufactured the castings. We think that the evidence fairly sustains the conclusions of the master that the defendants paid the rent of the premises, which they were enjoined from using, although the lease thereof ran to the Allen Machine Works. It is urged that H. M. Allen and his wife were not partners, and therefore the allowance to him as surviving partner is improper. The existence of a partnership is largely a question of intention between the alleged partners. H. M. Allen and his wife seem to have considered themselves partners, and to have acted as if they were such. The right to collect debts and to sue for demands due the firm devolves upon the surviving partner; and against him. actions for firm liabilities may be brought. The action against the plaintiff in error did not abate because of the death of Mrs. Allen; if she did not see fit to bring in her personal or legal representatives, she can not now be heard to "complain that the . decree entered after her death is erroneous. Lindley on Partnership, Vol. 1, p. 341. The damages awarded for the dissolution of this injunction, being firm property, were recoverable by the surviving partner. The obligation of H. M. Allen and his" wife to pay the attorneys by them employed to procure a' dissolution of this injunction was joint and several; the partnership debts are joint and several. Doggett v. Dill, 108 Ill. 560. The allowance of the attorneys’ claim against the estate of Mrs. Allen did not discharge H. M. Allen from his obligation to pay it, or forbid an award of damages in this action of the amount necessarily incurred in employing attorneys to procure a dissolution of the injunction. The decree of the Superior Court awarding $1,080 for expected profits is reversed, and the decree awarding $525 as damages on account of loss of use of the premises and for attorneys’ fees is affirmed. The complainant in error will recover costs in this court. Affirmed in part and reversed in part.