
    William N. Dickinson, Resp't, v. James H. Hart, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    1. Contract—Breach.
    ° Defendant, who was a jeweler, agreed to furnish plaintiff with a show case and shelving to conduct a stationery business in defendant’s store for five years; but after two years moved out and leased the store to two persons, for a dyeing establishment and a second-hand clothing store, with a partition in the middle. Held, a breach of the contract.
    2. Same—Damages.
    The payment for the privilege to be made by plaintiff was to be determined by his sales. Held, that the case was one where the loss of profits was the proper measure of damages.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action for alleged breach of contract.
    
      James & Thomas H. Troy, tor app’lt;
    
      Chas. J. Patterson, for resp’t.
   Barnard, P. J.

At the time of the execution of the agreement between the parties the defendant was a jeweler at 313 and 315 Fulton street, Brooklyn. His lease expired the 1st of May, 1892. The agreement to furnish the plaintiff with a show case and shelving to conduct a stationery business in the defendant’s store was absolute and required the furnishing of the same in that store and under the then existing condition until the end of the privilege, which was from April 6, 1887, to May 1, 1892. The two businesses manifestly fitted each other and it was a breach of the agreement for the defendant to lease out the store to two people, one part for a dyeing establishment and the other part for a second-hand clothing store with a partition in the middle of the same or nearly so. The businesses were incongruous with that of plaintiff’s and the store size was reduced. Evidence given to establish that the substituted businesses were not fitted to the plaintiff’s, was immaterial and did no harm. Ho evidence was needed. The payment to be made by the plaintiff for the privilege was to be determined by the sales of the business. It was to be five per cent of gross sales made by plaintiff up to May 1, 1888, and ten per cent of such gross sales from May 1, 1888, to May 1. 1892.

It was made an issue whether the plaintiff consented to the termination of the privilege, but the jury have found against the defense as not being the fact. The only remaining question is as to the rule of damages in case of a breach by the defendant. Proof was given as to the gross sales for the two years of the existence of the unbroken contract, and the amount paid defendant for rent, five per cent was $333.07, and the second year ten per cent was $584. The gross sales for the two years was $12,500, and after paying the rent and the clerk hire, the profits of the two years was $5,993. The sales of the second year were larger; nearly double the second year than the first. The plaintiff was entitled to recover the value of his loss. The case is one where the loss of profits is the proper measure of damage. Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y., 205; White v. Miller, 71 id., 118; Schile v. Brokhahus, 80 id., 614.

There was evidence sufficient to sustain the finding of the jury of a loss, excluding any charge for plaintiff’s services for a much larger sum.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  