World's Columbian Exposition v. Pasteur-Chamberland Filter Co.

Mr. Presiding Justice Windes delivered the opinion of the court. Appellant claims, first, that the advertising privilege for which a recovery is sought, is not susceptible of being measured in damages, and, second, that appellant was entirely warranted, under the evidence, in removing the signs. Under the first claim, it is argued that the trial court erred in the admission of the evidence of certain experts, two advertising solicitors, who testified as to the value of the spaces occupied by the signs in question as an advertising privilege, one testifying that these spaces were worth $5,000 per month, and the other $10,000 per month; that appellant did not sell advertising space, but permitted exhibitors, under certain conditions, to describe the goods they had on exhibition. Mo serious contention is made, nor could there be, that the witnesses were not qualified by special experience and knowledge, to give their opinions as to the value of the space. Counsel say, “ the vital objection to this testimony is, that it is an attempt to apply the wrong measure of damages,” and the court proceeded upon the theory that the question was the “market value of such advertising.” Whatever may have been the theory of the learned trial judge, we are of opinion there was no error in the admission of this evidence. Appellee had. the right, under its contract, to advertise its filter at each of the stations by signs, and the character of such signs was subject to the approval, of appellant. ' It had submitted the signs for that purpose to appellant, and they had been approved. It is true, on the matter of their approval there is a conflict in the evidence, but we are of opinion the weight of it is that the signs were approved. Mo useful purpose would be subserved by discussing it. Appellant wrongfully, as will be later seen, deprived appellee of the right to maintain these signs at the several stations for a period of more than two months of the fair, during which there was an attendance of more than 18,500,000 persons. Can appellant deliberately violate its contract and then say to appellee that because there is no way of proving the damages by reason of such breach, except by the opinions o.f experts as to the value of space for advertising purposes, it is without remedy? We think not, unless such is the inflexible rule of law. The opinions of experts are taken by the courts by reason of the necessity of the particular cases, in many matters of almost, if not quite, as great uncertainty as appellee’s damages in this case, viz., as to the market price or value of houses and goods destroyed by fire, the value of personal services in the varied employments of business and professional life, including those of ai’chitects, physicians, brokers and attorneys, the values of annuities and life estates dependent upon the habits, health, physical condition and' prospects of life of particular persons. .Rogers on Expert Test., Sec. 156, et seq.; 1 Wharton on Evid., Sec. 446, et seq. In Meylert v. Gas Consumers Benefit Co., 26 Abbott’s New Cases, 262, a physician was allowed to recover, on breach of a contract, what he might have earned as a physician during the time he was occupied in the performance of his part of the contract. Just what the evidence on which the allowance was based was, does not appear from the report of the case, except that it appeared he had averaged a certain income per month. This must have been for some past time, and was necessarily of an uncertain nature. The court said: “ The plaintiff is entitled to recover all such damages as are the certain result of the breach, even though such damage be uncertain in amount.” See also the cases cited in the opinion of the court, and especially Taylor v. Bradley, 39 N. Y. 129, 144, in which a recovery was allowed for the breach of a contract which allowed the plaintiff to occupy and work a farm for three years, each party to furnish certain stock, tools, etc., and the plaintiff to have certain spr jified supplies for his family, and all proceeds to be divided equally between the parties. It was held the value of the contract was the proper measure of damages, though it could not be told whether the plaintiff would realize anything by performing it. The court, after enumerating the difficulties of making the proof, say: “ The administration of justice frequently proceeds with reasonable certainty of accomplishing what is right, or as nearly right as human efforts may attain, in the face of similar difficulties, and it does so by making the experience of mankind, or rather, the judgment which is founded on such experience, the guide,” and hold the value of the contrdct may be proved by the opinions of persons of experience and observation given in view of all the uncertainties of the case, and that the credibility of such evidence may be tested by cross-examination. Of like import is Schell v. Plumb, 55 N. Y. 592, in which plaintiff was allowed to recover, for the breach of a contract to support her for life, damages for her future support and maintenance, which, of course, depended upon her age, health, probabilities of life, and numerous other uncertainties, including the value of such services as she might in the future perform. Also Rhodes v. Baird, 16 Ohio St. 573-81, in which it ivas held that the market value of the use of premises was the proper measure of damages for the breach of a contract to make a lease of the same for a peach orchard to be grown, subject to the performance of the contract by the plaintiff, and if it had no general market value, its value could be shown by persons whose skill and experience enabled them to testify to such value, in view of the hazards and chances of the business to which the land was to be devoted. Also in R. R. Co. v. Douthet, 88 Pa. St. 243, in which it was held there could be a recovery against the railroad company for the breach of its contract to .give plaintiff a free pass over its road for "himself and family for his lifetime; that the proper measure of damages was the value of such a pass. What the nature of the evidence to prove such value is, does not fully appear, but necessarily it must have been very uncertain. Also in Llewellyn v. Rutherford, 10 L. R. C. P. 456-68, in which, for the breach of a covenant in a lease of a public house, the value of the good will was held to be the measure of damages, and thatdt should be ascertained by the evidence of persons accustomed to the trade of valuing.. We regard the cases cited by appellant as to the recovery of possible future profits, as not applicable, and the case of Stevens v. Yale, 72 N. W. Rep. 5, on which special reliance is placed, is of the same nature. The court say: “ The injury suffered, if any, was a loss of such profits as would, have resulted from advertising.” The case at bar is to recover for the value of a space, which appellee had the right to use, of which appellant wrongfully déprived it. We conclude that the evidence, though to a degree uncertain, as is generally the case on most questions of value of property, was competent and properly admitted. As to the second contention of appellant, that ■ it was warranted in removing the signs, we have seen there was a conflict in the evidence as to whether they were approved by appellant* and that the weight of the evidence is that they were so approved. The only remaining question made is as to the right of appellee, under its contract, to have maintained the signs. We are clearly of opinion that appellant having approved the signs, could not revoke such approval, and that this gave appellee the right to maintain them, including the alleged objectionable parts. We are, moreover, of opinion that the alleged objectionable part of the signs was legitimate advertising of the Pasteur Filter, to which appellee was entitled under its contract, especially so after the signs had been approved, and therefore all appellant’s refused instructions, being based upon the theory that the objectionable words were a violation by appellee of its contract, were properly refused. The judgment is affirmed.