Podlaski v. Bender

Mr. Justice Freeman delivered the opinion of the court. It is apparent appellants’ contention that the trial court erred in admitting evidence as to appellee’s estimated profits during the fourteen days and the wages of his employes is well taken. The actual question to which appellants’ objection was overruled was, “Can you state what your profits were per day during the period that you were delayed by this furniture not having been delivered?” and the answer was “Eight dollars a day.” Clearly this question as put was entirely irrelevant from every point of view. It appears to have been assumed that the question was intended to ascertain what the witness supposed or believed his profits would have been had the fixtures been in place during that time. Giving it such an interpretation the evidence was still improper. On cross-examination appellee testified that he took in an average of $20 a day in September, 1904, upon which his profit was eight dollars a day after paying all expenses. In Green v. Williams, 45 Ill. 206, 209—an action on a covenant of a lease—it is said that a party “is not entitled to recover profits she might have made by conducting her business on the demised premises. Such damages are too remote, speculative and incapable of ascertainment.” In Chapman v. Kirby, 49 Ill. 211, 218—an action on the case and not on contract—evidence was admitted to show the extent of appellee’s business and profits during the six months previous to the act complained of, and it was held that compensation for such profits as would have been so made could be recovered in that form of action, although the precise extent of the damages could not “be shown by demonstration,” but could “be ascertained with a reasonable degree of certainty.” In Benton v. Fay, 64 Ill. 417, 422—a suit to recover damages for non-delivery of a machine—the court said that “no evidence should he received as to probable profits, as they would be purely speculative,” distinguishing the case from Chapman v. Kirby, supra. In Ill. & St. L. R. R. & Coal Co. v. Decker, 3 Ill. App. 135, 140—an action of tort—the profits of a month were adopted by the trial court as a basis for estimating the loss of profits the “appellee would have probably realized from his business if he had been permitted to carry it on to the extent of the lease.” The court said: “A month is adopted as a standard where but one has elapsed. Certainly this could not be adopted as a measure which could with reasonable certainty guide the jury in the calculation of profits,” and that the testimony in regard to profits should not have gone to the jury. And it was held that an instruction which told the jury “that in assessing damages they could take into consideration such profits as the appellee would have probably realized from his business if he had been permitted to carry it on to the extent of his lease” * * * “sent the jury into the fields of conjecture and speculation to determine the amount of damages they should give appellee.” We have referred to the above cases because appellee seems to rely upon them as supporting the judgment. We are of opinion that, as said in Central Coal & Coke Co. v. Hartman, 111 Fed. Eep. 96, 102, “the basis of this judgment is nothing but the guess of an interested witness,” mere conjecture and affords no substantial evidence justifying a judgment of such amount. The judgment of the Circuit Court will be reversed and the cause remanded. Reversed and remanded.