Lacour v. Mayor — 10 N.Y. Super. Ct. 406

Majority

p. 406

Michael Lacour v. The Mayor, &c., of the City of New York.

Headnote

A municipal corporation is liable in damages to any person who may sustain injury from an improper, negligent, or wrongful exercise of its legitimate powers, when those powers .become ministerial

Every corporation, in the exercise of its powers over its own property, is as much bound so to manage and use its property as not to produce injury to others, as an individual owner.

Held, therefore, that the defendants were bound to make good to the plaintiff the damages which his property had sustained from an excavation on Thirty-second street, in the city of Hew York—it being proved-that the excavation was ordered by the defendants, and that the damages were the necessary result of the performance of the work at the time and in the manner which they had directed.

Held, also, that the plaintiff was entitled to a compensation for the loss of profits, during the suspension of his business as a manufacturer, it being proved that the suspension was a necessary consequence of the injuries to his property for which the defendants were liable, and that the profits claimed would certainly have been realized.

Judgment for plaintiff, with costs.

(Before Dues, Boswobth, and Siosson, J.J.)

May 15;

May 27, 1854.

Ttttr was au action brought to recover damages for the injuries which a factory and other buildings belonging to the plaintiff, situate at the corner of the Second avenue and Thirtieth street in the city of New York, were alleged to have sustained in consequence of an excavation in Thirtieth street which the defendants, it was charged, had wrongfully and unlawfully directed to be made. The plaintiff also claimed to recover

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damages for the loss of profits in his business resulting from the unlawful conduct and acts of the defendants.

The defence substantially was, that the excavation in Thir- • tieth street had been directed and made by the defendants in the lawful exercise of their corporate powers, and was directed to be made, and was in fact made, with all proper care, diligence, and skill.

The cause was tried upon the issues made by the pleadings before Duer, J., and a jury, in Rovember, 1853.

The following are the material facts presented upon the trial:—

On the 26th of March, 1850, the defendants entered into a written contract with one Terence Keon, binding him to furnish the labor and materials for grading Thirtieth street, and setting the curb and gutter stones therein, from the Second to the Third avenues. The work was to be completed on or before the 27th of May, 1850. It was not in fact completed until August or September, 1851.

On the 1st of February, 1851, the defendants contracted with one Daniel Gallagher, to furnish the materials and labor to regulate and grade Second avenue, from Twenty-eighth street to the northerly line of Fifty-third street, and to re-set curb and gutter stones therein from Twenty-eighth street to Forty-second street, and to re-lay the flagging on the easterly side-walk of the avenue between Twenty-eighth and Thirty-first streets.

The work to be commenced without delay, and to be completed on or before'the 1st of Rovember, 1851.

The work, in both instances, was to be done in conformity with the established grade, and to be under the inspection of the surveyor, or such person as might be appointed by the Street Commissioner, and to be conformed to such directions as should be given by that officer, and the whole to be approved by the Street Commissioner, Superintendent of Pavements, or such person as should be appointed to superintend the work.

Both contracts were made in pursuance of ordinances of the Common Council; that for regulating and grading Thirtieth street, having been passed December 1, 1849, and that for regulating and grading Second avenue, September 30th, 1850.

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Edwin Smith, City Surveyor, had charge of the grading of Thirtieth street, under the defendants’ appointment, and the work was done by Keon, in conformity with his directions, and he accepted the work for the defendants, and certified to them its completion.

After Keon commenced his work, the grade of Thirtieth street was changed. When he commenced, the grade was a straight line, descending from Second avenue to Third avenue, which would have caused the water to flow from the Second to the Third avenue. It was then altered, by making the crown of the street midway between the two avenues, thus turning the water from that point towards Second avenue. When the street was completed, there was an embankment of eight or ten feet at Second avenue, and a similar one at the north side of the street.

The Second avenue was not graded till after Thirtieth street was completed.

The plaintiff was owner of several lots at the south-westerly corner of Second avenue and Thirtieth streets, on which was erected an extensive establishment for the manufacture of matches—the corner building being partly occupied as a dwelling-house. A large number of employees were engaged under him in the business.

The plaintiff’s wall, on Thirtieth street, was commenced in January, 1851, and finished in the middle of the following March, and while the street was being excavated.

It was proved, that by the excavation a large amount of water was collected in the street, against the plaintiff’s wall, which so injured it as to crack it inside and out, and cause it to bulge and tip over, so that the work in the factory had to be suspended for twelve or fourteen days, to afford time to repair the wall, and re-set the steam boilers used in the building for the purposes of the plaintiff’s business, and which rested against this wall.

The plaintiff’s witnesses all agreed that a drain or culvert made from the end of Thirtieth street to the sewer in Second avenue would have drawn off the water, and that such a drain could easily have been made. This testimony was not contradicted.

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It was proved by Mr. Dodge, formerly Street Commissioner, that if Second avenue had been cut down in the same proportion with Thirtieth street, or had it been graded at the same time, the difficulty would not have' arisen. The deepest excavation required to bring Second avenue to the amended grade, was at Thirtieth street.

On the question of the amount of damages which the plaintiff sustained, there was much contradictory testimony.

When the testimony was closed, and the counsel had summed up, the judge charged the jury, that if they believed the injury to the plaintiff’s wall was caused by the standing of the water in Thirtieth street, against the wall of the plaintiff, and that such water would not have stood there had Second avenue been excavated cotemporaneously with Thirtieth street, or had a drain been made to carry off the water from the excavation in Thirtieth street, then the defendants were liable, and the plaintiff entitled to recover.

That the excavation in Thirtieth street, and that in Second avenue necessary to be made, to bring the street and avenue to grade, were to be considered as one work or act, and that it was, as matter of law, negligence for the defendants to contract the grading of Thirtieth street, to be completed before the completion of Second avenue adjoining to Thirtieth street; when, from the situation of the ground, the result must be to make a deep excavation in Thirtieth street, into which water must flow without any possibility of escape.

The court also charged, that the plaintiff was entitled to recover as part of his damages, the loss of profits during the suspension of his business to repair.

The defendants’ counsel duly excepted to the charge of the judge, and to each and every part thereof.

The counsel for the defendants requested the court to charge the jury, that if they believed the excavation in Thirtieth street, and the bringing the same to the grade fixed by the proper department, was done in a proper and skilful manner, and that the standing of the water in the excavation thus made, must of necessity result from the doing of the work, the plaintiff could not recover of the defendants for injury resulting therefrom.

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That the defendants had the right to select their own time for the grading of Second avenue, and that if such grading was properly done, the inevitable injury resulting from the 'doing of that work would not entitle the plaintiff to recover.

That the jury should consider only the work in Thirtieth street, for which negligence is charged to the plaintiff, and not couple together the work in Thirtieth street with that in Second avenue.

That the profits, as such, of the plaintiff during the suspension of the work, could not constitute' an item of damages for which the plaintiff could recover.

The court declined to charge otherwise than as above set forth, and the counsel for the defendants duly excepted to the refusal.

The court directed the jury to find, specially, how much profit it was proved the defendants would have made during the suspension of the work.

The jury found a verdict for the plaintiff, and assessed the damages at §1,276.

In answer to the question: What portion of the sum of damages so found is profit? the jury said $200.

The court thereupon ordered the verdict to be entered, subject to the opinion of the court, upon the exceptions of law, to be heard in the first instance at the general term.

The cause was now heard upon a case containing the proceedings had and the exceptions taken on the trial.

A. J. Willard, in moving for judgment upon,the verdict for plaintiff, relied upon the following points and authorities.

I. The jury have found that the defendants have been guilty of negligence in causing Thirtieth street to be excavated in such a manner, that water flowing in the street, having no outlet, gathered in the vicinity of the plaintiff’s premises, and stood against his walls and buildings, doing damage thereto. This presents a clear case of liability. (Furze v. The Mayor, &c., of N. Y., 3 Hill, 612 ; Bailey v. The Mayor, &c., of N. Y., 3 Hill, 531 ; Adsit v. Brady, 4 Hill, 630 ; Hutson v. Mayor, &c., 5 Sand. S. C. R. 289.)

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II. The court and jury having viewed the premises, the verdict cannot be disturbed for any misdirection in regard to the admission or rejection of evidence describing the nature and extent of the injury done.

m. The wrongful acts of the defendants having occasioned the suspension of plaintiff’s business, he is entitled to claim for the profits of Ms business lost, especially where his expenses continued during the period of interruption. ( White v. Mosley, 8 Pick. 356 .)

R. J. Dillon, for defendants, made and argued the following points.

I. The court erred in instructing the jury: “That, if they believed the injury to the plaintiff’s wall was caxxsed by the standing of the water in Thirtieth street, against the wall of the plaintiff, and that such water would not have stood there had Second avenue been excavated cotemporaneously with Thirtieth street, or had a drain been made to carry off the water from the excavation in Thirtieth street, then the defendants are liable, and the plaintiff entitled to recover.” And for the reason stated in the second division of the first point; and also, because the defendants are not liable for omitting to construct a drain. (Rochester White Lead v. City of Rochester, 3 Comst. 463.)

II. The court erred in charging the jury: That the excavation in Thirtieth street, and that in Second avenue, necessary to be made, to bring the sti’eet and avenue to gx-ade, were to be considered as one work or act, and that it is, as matter of law, negligence for the defendants to contract the grading of Thirtieth street, to be completed before the completion of Second avenue adjoining to Thirtieth street, when, from the situation of the ground, the result must be to make a deep excavation in Thirtieth street, into which water must flow without any possibility of escape. 1. Because the negligence charged by the Court, as matter of law, is made to consist in the terms .of the contract which the defendants made to grade Thirtieth street and Second avenue. The terms of the contracts, and the time when the respective works should be completed, are purely discretionary, and cannot constitute negligence “ as

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matter of law.” Legal negligence cannot be predicated of the exercise of a discretionary or judicial power. 2. Because the injury which the plaintiff necessarily sustained from the doing of the work (viz. the excavation in Thirtieth street), in pursuance of a contract which the defendants had a right to make," gives no right of action : it is damnum absque vnjuriá. (Rad cliffe v. Mayor, &c., 4 Comst. 195; Wilson v. Mayor, &c., 1 Denio, 595 ; 5 Barb. S. C. 79 ; Sedgwick on Damages, p. 31, p. 111, note.)

IH. The court erred in charging that the plaintiff was entitled, as part of his damages, to the loss of his profits, during the suspension of his business to repair. Prospective profits, as such, cannot be recovered as part of the damages in this action. (Vide cases vnfra.)

IV. The court erred in overruling the objection to the question, “ What was the amount paid to the hands employed in the factory during the period of stoppage ?” Because it was incompetent for the plaintiff to recover, as part of his damages, the wages he paid his hands during the suspension, or the loss he sustained by keeping them at unprofitable labor, as there is no proof that the plaintiff was under obligation to continue them in his employ, during the discontinuance to repair. Whether or not the hands would have found other permanent employ, and refused to return to the plaintiff, and whether the plaintiff could have found other hands, in case they did not, are questions too speculative to constitute a proper foundation for damages. (Sedgwick on Damages, 68 et seq., 79 et seq.; Giles v. O'Toole, 4 Barb. S. C. 261 .)

V. The court erred in refusing to charge as requested by the defendants’ counsel.

The defendants object to the plaintiff’s right of recovery mainly on two grounds :

1st. That the work of regulating and grading the street and avenue was a public work, lawfully undertaken by the defendants, at the solicitation and for the benefit of persons hiring and owning property on the line of the street and avenue, as well for the plaintiff as for the public generally, and under the authority vested in them by the laws of the State; and that the

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whole subject of the grading of the street, both as to the time when it should be done or contracted for, and whether with or independently of the grading of Second avenue, including also the terms of the contract, and the grade itself, was among the discretionary and legislative powers of the Corporation of the city; and that the defendants were not liable for the manner in which they exercised such powers.

2nd. That Keon and Gallagher, in the performance of their contracts, were in the exercise of an independent employment, and that they, and not the defendants, employed the workmen; and that the plaintiff’s remedy, if any, must be against them. Tills latter ground of defence was not, however, pressed on the argument. Nor do we think, under the facts of the case, and the authority of the cases hereafter cited, that it could have been urged successfully. The grading of the streets was done under the direction of the surveyor, Smith, acting under an appointment from the defendants, and the work was done by Keon in conformity with his directions, and he accepted the work for the defendants, and this power of supervision was reserved in the contract itself. Besides, it has been expressly held that the contractor stands in these cases in the relation of agent to the Corporation (Delmonico v. The Mayor, &c., 1 Sandford’s S. C. R. 222).

The defendants also insist that they are not liable for the loss of plaintiff’s profits during the period occupied in repairing his wall.

The court charged the jury, “ that if they believed that the injury to the plaintiff’s wall was caused by the standing of the water in Thirtieth street, and that such water would not have stood there, had Second avenue been excavated cotemporaneously with the street, or had a drain been made to carry off the water from the excavation in the street, then the defendants were liable, and the plaintiff entitled to recoverand further, “ that the excavation in Thirtieth street and that in Second avenue, necessary to be made to bring the street and avenue to a grade, were to be considered as one work or act, and that it was, as matter of law, negligence for the defendants to contract the grading of Thirtieth street to be completed before the completion of Second avenue, adjoining to Thirtieth street, when

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from the situation of the ground, the result must be to make a deep excavation in Thirtieth street, into which water must flow without any possibility of escape.”

The court also charged, that the plaintiff was entitled to recover, as part of his damages, the loss of profits during the suspension of his business to repair.

1. That a municipal corporation, though clothed with many of the attributes of sovereignty, may be made liable, ci/oiliter, in damages, to any person who may sustain injury from an improper, negligent, or wrongful exercise of its legitimate powers, cannot be doubted, at least since the decision of our court of highest resort, in The Mayor of New York v. Bailey, 2 Denio, 433 ; The Rochester White Lead Company v. The City of Rochester, 3 Coms. 463 ; and Radcliff's Executors v. The Mayor of Brooklyn, 4 Coms. 195. See also the case of Delmonico v. The Mayor of New York, 1 Sand. S. C. R. 222.

The case of Wilson v. The Mayor of New York, 1 Denio, 595 , is in reality not in conflict with the cases above cited, the action being in that case for damages, for not constructing a sewer to draw off the water from plaintiff’s lot, upon which it was caused to flow by the grading of the street and avenue, effected by the defendants.

The question of negligence in effecting the grading itself, did not arise, but the action was founded upon the theory, that the Corporation was civilly liable in damages for not exercising one of their admitted powers, that of constructing sewers. The court held in that case, that for the omission or refusal to exercise a purely discretionary or judicial power, no civil action would lie against a public officer, even though the duty be an imperative one, though he might be liable to an indictment for a wilful violation of the duty; but the case expressly admits, that where the duty is a, ministerial one, though cast upon an officer whose chief functions are judicial, he is civilly amenable for the improper exercise of the power.

The point involved in the present case was expressly decided in the case of the Rochester White Lead Company, above cited, in which the distinction between judicial or discretionary duties, and those purely ministerial, was clearly taken. Up to the point at which a duty ceases to be one of the former de

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scription, a public officer is not amenable to an individual in a civil action for the exercise, or the refusal or neglect to exercise the duty, but the moment the duty ceases to be of this character, which it does when the election to perform it, is made, this immunity also ceases. The execution of the work itself is purely ministerial, and thenceforth the public officer becomes subject to the same rules which govern the liabilities of private individuals, and, like them, is liable in damages for the improper or negligent exercise of the duty. Thus, the ordinance of a city or municipal corporation, directing a public improvement to be made, is the exercise of a purely, judicial or discretionary function, and for such exercise, the corporation is not liable in a civil action; but the prosecution of the work itself, the carrying of the improvement into execution, is ministerial in its character, and the corporation are bound to see that it is done in a proper manner, or, like an individual, they will be responsible in damages.

We think this principle too clearly settled for doubt, and applying it to the case before us, there can be no question that the defendants derive no exemption from responsibility, for the manner in which they have performed or carried out the improvement or grading of Second avenue and Thirtieth street, by reason of their possessing, in respect to the improvement itself, a discretionary or judicial power; such discretion ceased to act as a shield of protection, when it reached its own limit, which was, at the passage of the ordinance for the improvement ; all, after that, was ministerial, and the only question is, whether they have so negligently performed the latter duty, as to work an injury to the plaintiff’s premises.

There is another principle which has been directly applied to municipal corporations possessing, like that of the city of New York, in respect to the public streets, a property in the subject of the improvement. In such cases, the sovereign character is lost in that of the individual owner, and the corporation is held liable, as any other owner of lands improved for the owner’s benefit, for the manner in which the improvement is effected. “ By the general principles of the common law,” says the Chancellor, in Bailey v. The Mayor, &c., 2 Denio, above cited at p. 445, “ the owner or occupier of premises was liable for any

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nuisances, on the ground that he was bound to control the use of his property, and to use it in such a manner, as not to produce injury to others,” and he placed his vote in favor of the affirmance of the judgment of the court below, expressly on the ground, “ that the dam was the property of the corporation, and that the corporation was bound to see that its corporate property was not used by any one, so as to become noxious to the occupiers of property, on the river below.”

The court instructed the jury, that it was, as matter of law, negligence in the defendants to contract for the grading of Thirtieth street, to be completed before the completion of Second avenue, adjoining that street, if the result was necessarily to cause the excavation in the street to be filled with water, without any possibility of escape, and that the excavation or grading of the street and avenue was to be considered as one work.

In this, we think the learned judge who tried the cause ruled correctly.

Although the defendants may have a discretionary power as to the time when a public improvement shall be effected, it is hardly sensible to say that they are at liberty to divide up the improvement, after- it is determined upon, into parcels, and to order one part to be effected at one time, and another at another, if the inevitable effect of such a parcelling out of the work, will be to work damage and injury to the adjoining property.

The grading of the street and avenue were necessarily cornponent parts of one and the same improvement, since neither would have been complete without the other, but on the contrary, either, finished before the other, would have rendered nugatory the improvement as far as it had gone, and would have converted it, as was abundantly shown in the present case, into a nuisance. It was therefore one work, one improvement, and to contract for a part to be finished before the other, or without reference to the other, if thereby inevitable injury would be caused, is as much negligence, as it would be so to contract for the performance of the entire work, as to render it, when completed, a necessary source of injury and damage to surrounding owners.

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Such a contract would be, in itself, conclusive evidence of negligence, assuming, as the proposition does, that its execution would be productive of inevitable injury. The question of whether such injury did in fact follow, may be a question for the jury (and in the present case was, in effect, submitted to them), but that fact once found or admitted, and the law affixes to the contract itself, the character of negligence, as a necessary consequence..

The contract for the street was, by its terms, to be completed on or before the 27th of May, while that for the avenue was not made until February following, and was not to be completed until the November succeeding its date; thus, by the very terms of the two, interposing an interval of eighteen months between the completion of the two works.

But if the learned judge was wrong in this ruling, which we think he was not, and if the two are to be considered as separate and independent improvements, he was clearly right in submitting to the jury the question, whether a drain might not have been constructed to carry off the water from the excavation in Thirtieth street; and in his ruling, that if they found that question affirmatively, the plaintiff was entitled to recover; and in his refusal to charge, as requested, that if the jury believed that the excavation in Thirtieth street, and bringing the same to a proper grade, was done in a proper and skilful manner, and that the standing of the water in the excavation thus made, must of necessity result from the doing of the work, the plaintiff could not recover of the defendants, for injury resulting therefrom.

When the question was put to the witness, whether it was possible to have constructed a drain to take the water off, the question was objected to, on the part of the defendants, on the ground that it was not incumbent upon the defendants to make drains.

The construction of drains and seiners, as an independent work, is one of the discretionary duties of the Common Council, for the exercise of which, or the omission or refusal to exercise which, they are not responsible; but the construction of a drain, as a part of the general plan or method of effecting a grading in a street, and as auxiliary to the principal work, is

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another thing, and its necessity or propriety, equally with that of any other portion or detail of the work, is properly to be taken into consideration in determining the question of negligence, as applicable to the manner in which the principal job is done.

Even if the two improvements (the grading of the street and avenue) are to be considered as separate undertakings, and not as one work, we hold that the- Corporation were bound to see that each was done properly,, and' in a way to prevent mischief; and that all precautions which could have been, should have been taken, against the danger- ©f damage to adjoining owners. The evidence is explicit, that a drain could have been constructed into the Second avenue- sewer, or by cutting through the avenue, by which the water would have been drawn off, and thus .all injury to the plaintiff’s premises prevented.

The true rule on this subject is-laid down in the case of The Rochester White Lead Company,, above cited: “ In the construction of a work like this (the construction of a eulvert), they (the Corporation of-the city of Rochester) were bound to exercise that care and prudence,, which a discreet and- cautious individual would or ought to use, if the whole loss or-risk were to be his alone.” And again, in the case of Bailey v. The Mayor, &c.: “ The degree of care- and foresight which it is necessary to use in cases of this description, must always be in proportion to the nature and magnitude of the injury that will be likely to result from the occurrence, which is to be anticipated and guarded against.”

Any other rule, would put it in the power of the Corporation, so to conduct .public improvements,, as to- ruin the citizen and leave him remediless. If it was no part of the duty of the defendants, in effecting the grading of Thirtieth street, to have taken precautions against the accumulation of water in the excavation, for which no outlet existed, then, if the grading of Second avenue was an independent matter, and they were not bound to order it, except at their own pleasure, this mischief might have been perpetual. Such a doctrine finds no support in reason or common sense. The true rule, we apprehend, is that laid down by the judge at the trial, that the two improvements are to be considered as one work or act; but in either

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aspect of the improvement, we think the plaintiff entitled to recover ; in the one, it was negligence in law, to have contracted as the defendants did contract, and in the other it was negligence in fact in the execution of the work, to have omitted the drain in question ; and to this latter conclusion the case of the Rochester White Lead Company is an authority in point.

2. The only remaining question is, whether the judge erred in charging the jury that the plaintiff was entitled to recover as part of his damages, the loss of profits, during the suspension - of his business, while the repairs were being made to his wall."

These were specially found by the jury to be $200.

The jury do not appear to have taken into account, the amount paid the workmen, during the suspension of the plaintiff’s business. The proof was positive, that at the time of stoppage, and on the resumption of the work, the plaintiff was making a profit of from $25 to $30 a day.

The price of matches was fixed at a certain per cent, advance upon the cost of manufacture, depending on the-quality, and the plaintiff was manufacturing, at the time- the- work was stopped, from 350 to 400 gross of boxes of matches per day, and had continued to manufacture at that rate,, when at work, down to the time of trial. The time during which the work was suspended, was from twelve to fourteen: daysthe amount of the verdict is, therefore, less than,, at the lowest computation, the plaintiff would have made, had there- been no-suspension of his business.

The question of,, how far profits-may be recovered,,as part of the damages, on the breach of an executory contract, is- one of very considerable difficulty- It is not contended that remote, or speculative, or merely contingent profits, would: form a proper element of damage, such as would- be the profits of a collateral speculation, or such as were the profits claimed in the case of Giles v. O'Toole, 4 Barb. S. C. 261 , to wit: the profits which the plaintiff might have made in carrying on his business on the premises which he had leased, had the lessor not refused to give him possession; and especially where such profits are established only by the opinion of witnesses; but profits which are the direct fruits of the contract, stand upon a different footing.

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In Masterton v. The Mayor of Brooklyn, 7 Hill, 61 , it was held, that the plaintiff was entitled to recover the difference between the contract price and what it would have cost him to furnish the marble according to the contract, taking into consideration, in determining such cost, the outlays and trouble, and the contingencies and risk, inseparable from the execution of the contract. Such difference would have been his certain profit, had the agreement been fulfilled.

In the case of Waters et al. v. Powers and Shirley, 20 Law and Eq. Rep. 410, the court held, that in an action for the nonfulfilment of a contract to furnish certain machinery, within a certain time, the plaintiffs were entitled to recover, as part of their damages, the profits which they would have made (had the machinery been furnished) from a contract which they had made with a third party, to supply him with so many gross-of bobbins per week, the supply of which was interrupted for 20 weeks by the defendant’s failure to furnish the machinery. The amount of such profits was agreed at a certain sum.

The same objection was taken-in that case as in this, that the damages were too remote; but the court said: “ The defendants undertook to perform a contract within a reasonable time, and failed to do so—the plaintiffs say, we should have made certain profits had the contract been performed—the jury are not bound to adopt any specific contract that may have been made; but if reasonable evidence is given that the amount of profit would have been made, as claimed, the damages may be assessed accordingly.” • ;

Applying the principle of these cases to that now before us, we think the profits, lost by the suspension of the plaintiff’s works, in consequence of the damage resulting from the negligence of the defendants, constituted a proper item of damage. They were a direct consequence of the injury. They were proved to as approximate a certainty, as any future event could be proved. They were profits in the principal business which was suspended by the injury, and not those resulting from some collateral or independent transaction, and they were proved, not by the opinion of outside witnesses, but by the positive testimony-of the plaintiff’s own foreman, who established conclusively a uniform daily profit of from $25 to $30, upon a fixed

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price for the matches, and that the amount manufactured was at the same rate, before and after the repair of the injury, down to the very day of the trial.

We think, on the whole case, that the judgment should be for the plaintiff.