
    Theodore Moss, App’lt, v. Eugene Tompkins, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 12, 1893.)
    
    Contract—Breach—Evidence of damage.
    In an action for breach of contract to produce a new play with defendant’s company at plaintiff’s theatre, the court ruled out an offer by plaintiff to show, by the previous receipts of the theatre and proof of the success of the play elsewhere than in New York, that the receipts during the term of the contract would have been greater than the amount actually received by plaintiff from other sources during the same period. Held, that the ruling was correct, as the proposed elements were speculative and insusceptible of anything like certain proof; that increased profits could not be predicated of the success of the play in other cities before it had acquired a general or established reputation.
    APPEAL from a judgment entered upon a verdict at circuit allowing the plaintiff six cents damages and awarding costs to the defendant.
    
      Stephen H. Olin, for app’lt; A. J. Dittenhoefer and David Gerber, for resp’t.
   Barrett, J.

The action was for breach of contract. The plaintiff is the lessee of the Star Theatre in this city. The defendant is a Boston theatrical manager. The parties entered into what is known as a “ sharing terms agreement,” wherebj the plaintiff was to furnish his theatre, orchestra, attendants and equipment for a given period, and the defendant was to furnish a new play called “The Soudan,” together with a dramatic company. The gross receipts were to be divided between the parties, each week, in certain specified proportions. Some months before the date when the first performance was to be given the defendant notified the plaintiff that he would not produce the play at the Star Theatre, and he has since persisted in that refusal. Upon the trial, the breach being conceded, the plaintiff offered to show by the previous receipts of his theatre, and by proof of the success of the play elsewhere than in New York, that the receipts during the term of the contract would have been greater than the amount actually received by him from other sources during the same period. The latter amount was specified in the bill of particulars as $13,600. This offer was objected to and the objection was sustained. The plaintiff excepted to the ruling, and the exception presents the sole question upon this appeal.

We think the ruling was correct. The plaintiff could, of course, have proved the amount which he actually received for his theatre during the term of the contract, but it would have been impossible for him to prove what the receipts from the defendant’s play would have been during the same period. His offer specified two elements, namely, the previous receipts of the Star Theatre from other attractions, and, second, the success of the defendant’s attraction elsewhere than in New York. The first element could have had no possible bearing upon the question of damages. The theatre did not draw people because of its attractiveness as a building. Each entertainment there stood upon its own merits. The second element was equally uncertain. Profits, that is, the certainty of receipt beyond what the plaintiff actually took in during the contract term, could not be predicated on the success of the play in other cities before it had acquired a general or established reputation. The play was new, and it was entirely untried in this city. No one could possibly know, therefore, how it would succeed here. The defendant’s dramatic company was not shown to include artists of such exceptional and well-known talent as to guarantee, apart from the play, audiences of reasonably certain numbers. Nor was any special attraction of the latter kind contemplated by the contract The proposed elements were, therefore, speculative, and insusceptible of anything like certain proof. The language of Bradley, J., in Bernstein v. Meech, 130 N.Y., 359; 41 St. Rep., 700, is directly in point, and, we think, controlling. The latter case does not conflict with Wake-man v. The Wheeler & Wilson Manufacturing Co., 101 N. Y., 205. The doctrine there held was that where particular damages are the certain result of the breach, their uncertainty in amount will not prevent a recovery. But here it is by no means certain that any damages, such as the plaintiff claims, resulted from the breach. It is, in fact, entirely uncertain whether the receipts from the defendant’s play would have exceeded the amount which the plaintiff actually received during the contract term. The reasonable certainty that there would have been some receipts from the play, therefore, involved no certainty that damages on that line were caused by the breach.

The plaintiff did not offer to show, as did the plaintiff in Bernstein v. Meech, any expenses which he had incurred in preparing for the contemplated performances. This was, doubtless, because there were here no such expenses, as the plaintiff was notified, months in advance of the first performance, that the defendant would not produce the play in the Star theatre.

The generality of the plaintiff’s offer at the close of the trial was clearly in the line of the two elements which he had previously specified. The “ whole line of testimony ” which the court excluded was the whole line in these two directions. If the plaintiff intended to offer anything else, he should have specified it.

We think that the offer, as made, was properly ruled upon, and that the judgment should be affirmed, .with costs.

Van Brunt, P. J., and Follett, j., concur.  