(55 South. 348.)

No. 18,512.

#### LONG v. CHARLES A. KAUFMAN CO., Limited.

(May 8, 1911.)

*(Syllabus by the Court.)*

Damages (§ 40*) — Breach oe Contract — Elements.

Where future profits are claimed as damages for the breach of a contract, the quantum must be established by full, clear, and definite proof. Where some of the expense factors of a delivery business are not proven, and others are controverted, the court will adopt the usual rate of profits derived from the conduct of such a business as the measure of damages.

[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.*)

Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.

Action by George W. Long against the Charles A. Kaufman Company, Limited. From the judgment, plaintiff appeals.

Reversed and amended.

See, also, 127 La. 764, 53 South. 984.

Solomon Wolff and Dinkelspiel, Hart & Davey, for appellant. A. A. Calongne, A. J. Peters, Woodville & Woodville, and James Wilkinson, for appellee.

LAND, J.

The plaintiff sued for damages for a breach of a contract with the defendant for the hiring of delivery wagons. The case was brought before this court on a former appeal from a judgment in favor of the plaintiff. See 122 La. 281, 47 South. 606. This court held that there was a contract and that it had been breached by the defendant, but reversed the judgment and remanded the case because the plaintiff had failed to prove actual damages. Id. On the last trial it was testified by Mr. McEvoy that, when the plaintiff was discharged in September, 1905, he was employed to do the same work at the price of $21 per week per wagon, while the price of $19 per week had been paid to the plaintiff. It is argued that it is not reasonable to believe that the defendant would have paid $21 per week for the same work that Long was under contract to perform for $19 per week. The bare circumstance that the defendant paid McEvoy a higher price than it had paid Long before, his discharge is no evidence of the absence of a contract between Long and the defendant. Our conclusion on the former appeal that there was such a contract, and that it had been breached by the defendant, is not shaken by the additional evidence adduced.

On the last trial the plaintiff obtained judgment for $2,365.50, with legal interest from September 4, 1905, until paid, for loss of profits resulting from the breach of the contract. Loss of profits may be recovered as damages when they can be fully proven. Schleider v. Dielman, 44 La. 462, 10 South. 934. In this case the amounts which the plaintiff would have received are fixed by the terms of the contract, and are therefore legally certain. Plaintiff was to receive $57 per week for the service of three delivery wagons, and the life of the contract was 83 weeks. Plaintiff’s demand is based on the proposition that his entire expenses would have been $9.50 per wagon, or $28.50 for the three, leaving a net profit of $28.50 per week. The only expenses allowed in this estimate are for hire of drivers and feed of horses. In his testimony plaintiff estimated the costs of shoeing and services of stableman and blacksmith at $2.74 per month for the three horses. Among the elements of expense do not appear plaintiff’s own time and services, depreciation or wear and tear, rent, repairs, taxes, and other factors that swell the expense account. It has been held that the plaintiff’s own time and labor should be charged as an expense, and that some allowance should be made for the uncertainty and contingency of. profits. 8 A. & E. Enc. Law (2d Ed.) p. 623, and notes.

Plaintiff operated other delivery wagons, *769and could not furnish an estimate of the net profits of his business as a whole. It appears that he reduced his business and finally sold out.

McEvoy was employed by the defendant to perform the same kind of delivery service immediately after the discharge of the plaintiff, and was paid $21 per week for each wagon. McEvoy, .who was engaged in a large delivery business, and kept a wholesale feed store, testified that he was glad to make from $2 to $3 per week on each team. Th'e expense items necessary to conduct a delivery business, according to his testimony, are much larger than estimated by the plaintiff. It was admitted that another witness would corroborate the testimony of McEvoy. Plaintiff figured out a net profit of $9.50 per week, or $494 per year, on each horse and wagon, worth from $200 to $250, employed in the delivery service. On the same basis, McEvoy should have earned a net profit of $11.50 per week on each team. Such enormous profits were hardly possible in a city where, as the plaintiff admits, the supply of delivery wagons was greater than the demand. Where future profits are claimed as damages, they must be established by clear and definite proof. Schleider Case, supra. In Jackson v. Doll, 109 La. 234, 33 South. 208, the court said:

> “The future profits of a business which has been interrupted are open to the objection of remoteness as well as uncertainty.”

> “Expected profits are in their nature contingent upon many changing circumstances, uncertain and remote at best. They can be recovered only when they are made reasonably certain by the proof of actual facts, with a present data for a rational estimate of their amount.” 13 Cyc. 49.

Plaintiff in his testimony underestimates some of the factors of expense, and is silent as to others. The testimony of the two witnesses for the defendant tends to show that the usual profits of the delivery business range from $2 to $3 per team per week. Considering that plaintiff appears to have conducted his business on a very economical basis, we deem it fair to adopt the higher rate. The other alternative is to dismiss the case as of nonsuit.

It is therefore ordered that the judgment below be reversed and amended, so as to condemn the defendant to pay to the plaintiff the sum of $9 per week, beginning September 4, 1905, and ending April 1, 1907, with legal interest on each installment from the end of the week, and that, as thus amended, said judgment be affirmed; costs of appeal to be paid by plaintiff.