Opinion
March 7, 1919.
Arthur F. Driscoll of counsel [ O'Brien, Malevinsky Driscoll, attorneys], for the appellant.
Saul E. Rogers of counsel [ Rogers Rogers, attorneys], for the respondent.
The action was brought to recover damages for a breach of a contract in writing, executed by the parties on the 1st day of February, 1916, by which the defendant engaged the services of the plaintiff as leading lady in his stock company at the Holyoke Theatre, Holyoke, Mass., for the period of four weeks commencing on or about May 1, 1916, with a provision for renewals for like periods "until the beginning of the legitimate season," provided the average gross receipts for each period of four weeks should exceed $1,300.
The defendant abandoned the project of presenting plays at the theatre by a stock company, and used the theatre for vaudeville performances in which the plaintiff did not appear. According to the testimony presented in behalf of the plaintiff, the defendant in the month of March, 1916, without her consent and against her protest, repudiated and assumed to cancel the contract and unequivocally announced to her that he would not so engage her services and offered her another contract, which she definitely refused to accept; but according to the testimony presented by the defendant, the contract, at the suggestion of the plaintiff, was canceled by mutual consent in said month of March. That issue of fact the jury resolved in favor of plaintiff, and the evidence is sufficient to sustain the verdict thereon.
It remained, however, for the plaintiff to show her damages which, prima facie, would be measured by the amount she would have received had the contract been performed, subject to deductions for any amount which defendant might be able to show she could have received in like employment during the period covered by the contract, after she knew that the defendant had definitely repudiated and abandoned it. The plaintiff resided in the city of New York. She was to receive her transportation to Holyoke and "her legitimate expenses" there and, "as her legitimate salary," fifty per cent of the surplus gross receipts for each week after deducting therefrom one thousand two hundred dollars. She testified, and the defendant did not deny it, that it was subsequently agreed that she should receive as her "legitimate expenses" seventy-five dollars a week, which was to include her living expenses and her disbursements for a maid, whose services would be necessary, and for cleaning her costumes, the cost of which would average from three to thirty dollars a week. The contract having been terminated in advance, she did not go to Holyoke or employ a maid. There is no evidence with respect to the expenses to which she would have been subjected for a maid's services or as to whether her living expenses at New York would have been wholly or to any extent saved. The evidence, therefore, affords no definite or reasonably definite basis with respect to her damages for the loss of the seventy-five dollars per week for expenses; but it is evident that it was susceptible of more definite proof.
Whether she would have received anything for salary depended on the amount of the gross receipts per week, if the enterprise had been carried out. On that point the only evidence received and submitted to the consideration of the jury is with respect to the gross receipts per week received at the same theatre during three weeks in August, 1914 — nearly two years before — when plaintiff was similarly employed in a stock company under another management, but in which gross receipts the defendant was interested under a contract with the company which employed the plaintiff and presented the plays.
The evidence with respect to those gross receipts consists solely of the testimony of the defendant with respect to his recollection thereof from reports made to him. He says that the gross receipts for the first week were about $800, for the second week about $1,100, and for the third week $1,875. The defendant, in negotiating the contract with plaintiff, referred in a letter to said gross receipts of $1,875 for the one week of her former engagement at said theatre, and expressed the opinion that the gross receipts of the contemplated performances should be from $1,500 to $1,800 per week. The court did not leave that estimate to the jury as evidence; but as she only claimed damages for the first four weeks, and the verdict was $600, it is quite probable that the jury, disregarding the instructions, took the defendant's minimum estimate, which would leave a surplus of $300 each week, to one-half of which plaintiff would be entitled. But however that may be, the verdict cannot be supported by the evidence with respect to the gross receipts of the former performances under a different employment and management. The rule in Wakeman v. Wheeler Wilson Mfg. Co. ( 101 N.Y. 205) would authorize proof of the gross receipts from the plays presented by the stock company, if the defendant, after breaching his contract with plaintiff, had proceeded with the enterprise, but he did not. The court in that case adhered to the rule that recoverable damages "must be not merely speculative, possible and imaginary, but they must be reasonably certain, and such only as actually follow or may follow from the breach of the contract."
The principal difficulty with the evidence in this case is that it does not show or tend to show, with any degree of certainty, that the enterprise would have been profitable or that there would have been profits in which the plaintiff would have been entitled to share. ( Bernstein v. Meech, 130 N.Y. 354; Cutting v. Miner, 30 App. Div. 457; Moss v. Tompkins, 69 Hun, 288; affd., 144 N.Y. 659; Todd v. Keene, 167 Mass. 157; K. R. Film Co., Inc., v. Brady, 104 Misc. Rep. 667.)
When it is certain that damages have been sustained, and the only uncertainty is with respect to the amount thereof, such amount may be determined "approximately upon reasonable conjectures and probable estimates," but if they are "so uncertain, contingent and imaginary as to be incapable of adequate proof, * * * then they cannot be recovered because they cannot be proved." ( Wakeman v. Wheeler Wilson Mfg. Co., supra. See, also, Witherbee v. Meyer, 155 N.Y. 446; Stevens v. Amsinck, 149 App. Div. 220, 230.)
It may be that the plaintiff, who made this contract, leaving her compensation wholly to be determined by the profits of the venture, cannot show substantial damages for loss of salary depending on profits; and if not she will only be entitled to nominal damages therefor; but as she may be entitled to recover part of the allowance of seventy-five dollars for her expenses she is entitled to a new trial.
These views render it unnecessary to consider the other questions with respect to whether the evidence adduced by defendant does not sufficiently bear his burden of showing that the plaintiff could have secured similar employment, as was her duty, by which her damages would have been minimized. (See Howard v. Daly, 61 N.Y. 362; Johnson v. Meeker, 96 id. 93; Fuchs v. Koerner, 107 id. 529; Hamilton v. McPherson, 28 id. 76; Griffin v. Brooklyn Ball Club, 68 App. Div. 566; Ruland v. Waukesha Water Co., 52 id. 280.)
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
CLARKE, P.J., DOWLING, SMITH and MERRELL, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.