Hyperlawhypertext legal database Ellsler v. Brooks 54 N.Y. Super. Ct. 73

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Ellsler v. Brooks

54 N.Y. Super. Ct. 73 22 Jones & S. 73 Court N.Y. Super. Ct. Decision date 1886-12-17 English

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EFFIE ELLSLER, Appellant, v. JOSEPH BROOKS, et al., Respondents.

Headnote

Damages for breach of contract—opinions of witnesses as to, and profits derived from prior contract, inadmissible on question of—Costumes, fact of purchase of, does not prove damages—Nominal damages, effect of right to, on dismissal of complaint.
The opinions of witnesses as to the damages resulting from a particular transaction are not evidence, although the witnesses may have knowledge of the subject matter; nor are the opinions of' experts as to what the plaintiff could have made if allowed to fulfil the contract, such opinions being unsupported by any facts.
Evidence as to the receipts by plaintiff under an agreement made with a third party four or five years prior to the one "with the defendants which required the rendition by her of services similar to those to be rendered under the contract with defendants, is inadmissible on the question of damages for the breach of her contract with defendants.
The fact that plaintiff purchased certain costumes to be used by her in the business to be carried on under the contract between her and the defendants, it not appearing from the agreement that she was under any obligation to make the purchase, or that she suffered any loss from such purchase—is not an element of damages.
That the plaintiff is entitled to nominal damages is not cause for reversing a judgment dismissing the complaint.
Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
Decided December 17, 1886.
Appeal from judgment entered on the report of a referee, dismissing the complaint on merits.
The action was brought by the plaintiff to recover damages claimed to have been sustained by her by reason of an alleged breach by the defendants of a contract, by the terms of which they agreed to employ the plaintiff as an actress for the period of three years from September, 1883.
Under the agreement the plaintiff was to receive in place of a fixed salary, one half of the general profits
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of the business, in addition to her hotel and travelling expenses, and the salary and hotel and travelling expenses of a maid. The evidence showed that after making the agreement the plaintiff and the defendants, in compliance with the agreement, presented certain plays at different places in this country at a loss ; that after a few weeks the defendants refused to proceed further under the agreement.
It appeared in the evidence that Bartley Campbell had an engagement in 1877 with plaintiff, by which she was to sustain leading characters and he was to receive fifty per cent, of the profits, under which engagement they played in Cleveland, and one week in Detroit and two weeks in Philadelphia, which ended the season.
Marshall P. Stafford, attorney and of counsel for appellant, on the questions considered in the opinion, argued :
I. Plaintiff’s evidence established that she sustained damages by the breach of the contract. (a) The mere breach of the contract entitled the plaintiff to damages in some amount, in addition to any special or exact damage susceptible of proof in precise figures (Wakeman v. Wheeler & W. Co. 33 Abb. L. J. 166). The fact that no profits were made in the business up to the time of the breach is immaterial (Gifford v. Waters, 67 N. Y. 83 ).
II. The referee erred in excluding evidence offered to prove damages. Three witnesses who had been engaged in theatrical business for many years and were familiar with its profits and hazards, stated that they could estimate the value of the plaintiff’s interest in the contract. When asked to make such estimate and state such value, their evidence was objected to and excluded as guess work, to which ruling plaintiff excepted. This was error (White v. Miller, 71 N. Y. 118 ; Taylor v. Bradley, 39 Ib. 144). The plaintiff herself was not incompetent to express her opinion of the value of the contract because of being a party to the suit (Nourry v.
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Lord, 3 Abb. Ct. 392 ; Dickinson v. Fitchburg, 13 Gray, 555 ). The prospective value of a contract like the one now under consideration is a matter for expert testimony. In such a case it is allowable for experts to give opinions as to value (Brill v. Flagler, 23 Wend. 354 ; Teerpenning v. Corn Ex. Ins. Co. 43 N. Y. 282 ). In effect and purpose, the contract was one to secure to defendants the professional services of plaintiff. The value of such services is peculiarly a matter for expert evidence, and in giving such evidence it is entirely competent for experts to express an opinion as to value (Clark v. Baird, 9 N. Y. 183 ; Reynolds v. Robinson, 64 Ib. 594).
The witnesses whose evidence was excluded were competent experts. They were not asked as to the amount of damage sustained, but as to the value of such a contract. Their evidence on this point was competent, and its exclusion was error. It is only by evidence of this kind that it is possible to furnish any facts from which the damage caused by a breach of such a contract can be estimated or approximated. Such a case forms an exception to the general rule as to the admissibility of a witness’s opinion of value and renders such evidence competent (Teerpenning v. Corn Ex. Ins. Co., 43 N. Y. 281 ; Taylor v. Bradley, 39 Ib. 144 ; Scattergood v. Wood, 79 Ib. 265).
Howe & Hummel, attorneys and of counsel for respondents :
On the question of the admissibility in evidence of opinions of experts as to what might have been the earnings of a star actress, cited Hamilton v. McPherson, 28 N. Y. 72 ; Cassidy v. LeFebre, 45 Ib. 562 ; Medbury v. N. Y. & E. R. R. Co., 26 Barb. 564 ; Freeman v. Clute, 3 Ib. 424; Homer v. Wood, 16 Ib. 386 ; Skinner v. Tinker, 34 Ib. 333 ; Sanders v. Fisher, 5 Lans. 236 ; Washburn v. Hubbard, 6 Ib. 11; Ferry v. N. Y., 8 Bos. 504; Academy of Music v. Hackett, 2
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Hilt 217; Greene v. Waggner, 2 Ib. 297; Cook v. Soule, 56 N. Y. 420 .
On the question as to reversing a judgment of dismissal of the complaint on the ground that plaintiff was at all events entitled to nominal damages, they cited Stevens v. Wider, 32 N. Y. 351 ; Cady v. Fairchild, 18 Johns. 129 .

There can be no question as to the right of the plaintiff to recover some damages for the breach of the agreement. Loss in a legal sense may be sustained though performance would have been a positive injury to plaintiff (Chamberlain v. Parker, 45 N. Y. 569 ).

The only difficulty in the case is as to the amount of the damages. Under the agreement entered into between the plaintiff and the defendants, the plaintiff was to receive in lieu of a stated salary, a sum equal to one half the profits of the undertaking, after deducting all the expenses.

The measure of damages for dissolving a partnership before the time fixed in the articles of co-partnership is the prospective profits (Bagley v. Smith, 10 N. Y. 489 ). The usual way of showing these prospective profits is by showing what profits have already actually been made in the undertaking.

In this case there was no evidence of any past profits. The plaintiff attempted to show her loss by producing witnesses who were theatrical managers, and by asking them generally, from their experience as theatrical managers and from their knowledge of the business, what they would say would be a fair valuation of the plaintiff’s half interest in the contract entered into between, the plaintiff and the defendants. This evidence was incompetent; the opinions of witnesses as to the damages resulting from a particular transaction are not evidence although the witnesses may have knowledge of

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the subject matter (Teerpenning v. Corn Exchange Ins. Co. 43 N. Y. 279 ).

This was not a question that called for the opinion of experts. The loss sustained by the plaintiff was to be ascertained as a fact. The opinions of experts as to what plaintiff would have made if she had been allowed to fulfill her contract, unsupported by any facts are immaterial and irrelevant (Wakeman v. Wheeler & Wilson Manf’g Co., 101 N. Y. 206 ).

Neither was it error to exclude the evidence of one of the witnesses as to what the receipts by the plaintiff from her half interest in an agreement entered into with one Bartley Campbell, some four or five years prior to the making of this agreement, had been. This is not evidence from which the profits under this contract could be fairly estimated. Gifford v. Waters ( 67 N. Y. 80 ), is not like this case. The plaintiff in that case was to receive a certain portion of the profits of the business as salary. It was also agreed that he should receive on account of his "salary, thirty-five dollars per week. All he recovered on the trial was this thirty-five dollars per week. There was no proof of profits. The court of appeals held that as the damages could not be based upon proof of profits, and as the contract fixed the minimum estimate of the value of plaintiff’s services, this furnished a criterion from which plaintiff’s damages could fairly be estimated. In the case at bar no such means of judging plaintiff’s loss are furnished.

Plaintiff proved that she purchased certain costumes to be used by her in the business mentioned in the agreement between the parties hereto. It does not appear from that agreement that she was under any obligation to make such purchase; but even if she were she did not prove that she suffered any loss from such purchase.

At the most, plaintiff is only entitled to nominal damages, and it is well settled that a judgment will not be reversed simply to give the plaintiff nominal damages

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(Reading v. Gray, 37 Super. Ct. 79 ; McConihe v. N. Y. & Erie R. R. Co., 20 N. Y. 495 ).

Judgment is affirmed with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.

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