
    HUBBARD N. MITCHELL, Plaintiff, v. THOMAS CORNELL, et al., Defendants.
    Contract, damages fob breach thereof.—Charter of steamboat, &c.
    In the case of the charter of a steamboat to be used in the excursion business on the Hudson River, and other specified waters, at a specified sum per week, a breach thereof was alleged and established as against the owners, the defendants, wl»o took possession of the steamboat and deprived the plaintiffs of the same.
    
      Held, as to the question of damages, that unearned and speculative profits cannot be included as a part of the damages to be recovered (Wehle y. Haviland", 69 B. T. 451).
    The rule of damages in favor of the plaintiff in this case is,
    1. The market value of the charter, with its limitations and conditions for its unexpired term.
    3. Or the difference (if any) between the price named in the charter and the price that plaintiffs would have to pay in order to hire another equally good steamboat for the business, with a suitable compensation for the plaintiffs’ time, trouble and expense in obtaining such other boat.
    3. Or the difference between the price to be paid by plaintiffs under the charter, and the market value of the use of the boat, through the unexpired term of the charter for the excursion business, if there was such a value (Blanchard y. Ely, 31 W. 343; Clark y. Maugha, 1 Den. 317; Griffin ®. Colen, 1617". T. 491; Rogers v. Beard, 36 Barb. 31; Cassidy a. Le Fever, 45 B. T. 563; Allen v. Fox, 51 Id. 563).
    The offer of plaintiffs to prove what would have been the profits of an excursion business, carried on with the steamboat in question, on objection, was properly overruled.
    The offers of plaintiffs to prove, 1. That there were opportunities to charter the boat for excursions, &c. 3. What was the market value of a boat of that kind for excursions, &c.; and in connection with this testimony to show the daily expense of running the boat, claiming that the evidence thus offered would show profits, &c., were improperly excluded; because this evidence would have properly established the market value of the use of the boat for the unexpired term of the charter.
    
      Before Curtis, Cli. J., Sedg-wick and Freedman, JJ.
    
      Decided January 6, 1879.
    Exceptions ordered to be heard at general term, in the first instance, complaint being dismissed.
    The complaint alleged that the parties entered into an agreement in writing whereby the defendant chartered the steamboat the William, Coólc, her engine, &c., unto the plaintiff for ninety-two days, from June 8, 1875, to Septen^er 7, 1875, the said boat to be used in the excursion business on the Hudson River and other specified waters, the plaintiff to pay $130.43 for each day, payments to be made on Monday of each week; paying forthwith $1,000 as a guarantee against loss by defendants : and further it was agreed that in case of failure to pay the charter money on every Monday the defendant might at their option take possession of said steamboat on the following day after such failure, and that the plaintiff should be responsible for all damages to said steamboat, except breakage of machinery, and all damages to other vessels or the property of other parties, unless such damages should result from the management or action of the pilot or captain ; that the plaintiff went into possession of the boat and performed the agreement on his part; that on July 15, 1875, the defendants “unlawfully and wrongfully dispossessed the plaintiff of said steamer and took possession of the same, against the wishes and protest of plaintiff, and converted the same to their own uses and purposes ; thereby depriving the plaintiff of all authority or power whatsoever over the said boat, involving the utter ruin of his business, and subjecting him to great pecuniary embarrassment and loss. By reason whereof the plaintiff has been subjected to damages amounting at least to $7,000 and upwards.”
    
      The answer denied the unlawful and wrongful dispossession and conversion, and alleged that the defendants took possession of the boat by virtue- of the agreement, the plaintiff having omitted to make the payment provided.
    On the trial the plaintiff proved the charter, and taking possession of the boat; he also gave evidence tending to prove that he made payments in accordance with a verbal arrangement with the defendants, which entitled him to remain in possession of the steamboat, but that the defendants believing that due payment had not been made, took possession of the boat on July 15, 1875, and kept him out of possession thenceforward.
    Certain questions were asked and offers made, in reference to the damages, which were the basis of the exceptions noticed in the opinion of the court. The plaintiff giving no other proof of damage, the complaint was dismissed and the exceptions were ordered to be heard at general term in the first instance.
    
      A. J. Yanderpoel and A. JY. Weller, for plaintiff.
    
      Benedict, Taft & Benedict, for defendants.
   By the Court.—Sedgwick, J.

The complaint did not charge and the proof did not show, that the defendants’ act in taking possession of the steamboat was malicious. The measure of damages therefore was compensation to the plaintiff, assuming that he had a cause of-action, and unearned and speculative profits cannot be included as a part of the damages to be recovered (Wehle v. Haviland, 69 N. Y. 451). This is a specific rule to be followed here. This case is not one of trespass, the direct and immediate consequence of which was the breaking up of a business. There was no direct interference with the plaintiff’s excursions. If the boat had been taken by the defendants when he had upon it a large number of people, ready to make an excursion, and the excursion being on foot was directly broken up, a question not in the present case would have been presented. The plaintiff was deprived of the use of the boat for excursions. But there was no proof that he could not, for that reason, continue his business of gaining profits from organizing excursions. The presumption is, in a commercial port like New York, and it is a matter of common knowledge, that other boats could be hired, fitted for plaintiff’s purposes.

I am of opinion therefore that the plaintiff could have as damages (if the defendants’ act was wrongful), 1st, the market value of the charter, with its limitations and conditions for its unexpired time, if there were such a value; 2d, or the difference (if any) it would require to be paid to hire another equally fit boat, and a compensation to be fixed by the jury for the plaintiff's time and trouble in procuring another boat; 3d, or the difference between the price to be paid by plaintiff under the charter-party and the market value of the use of the boat through the unexpired time of the charter, for the purposes of excursions, if there were such a value (Blanchard v. Ely, 21 W. 342 ; Clark v. Marsiglia, 1 Den. 317; Griffin v. Colver, 16 N. Y. 491; Rogers v. Beard, 36 Barb. 31; Cassidy v. LeFevre, 45 N. Y. 562 ; Allen v. Fox, 51 Id. 562). The plaintiff was not entitled to evidence offered to show the probable future profits. They were uncertain and contingent, depending upon weather, the whim of people seeking pleasure, and other accidental facts.

In Durkee v. Mott, 8 Barb. 426, the court held that the plaintiff might recover what he would have made if the defendant had kept the contract and paid what, by the contract, he had promised to pay. This would have called upon the plaintiff to prove certain matters of expenses, viz.: labor, which are not uncertain and contingent so far as they affected the measure of damages in plaintiff’s favor. The damages had regard to the very subject-matter of the contract and not to a remote and only possible consequence of a breach.

In Bagley v. Smith, 10 N. Y. 489, the damages were held to be compensation for a loss of future profits, because the loss was a direct and immediate consequence of a breach of the contract, which Was made by both parties with reference to future profits.

In Marquart v. La Farge, 5 Duer, 565, it was assumed, on the facts of the case, that the immediate, direct, and necessary consequence of the defendant’s tort was a breaking up of plaintiff’s business, and that the value of the good-will of the business could be recovered. The court therefore sustained the admission of evidence as to the character of the business before the trespass, intimating that testimony being in substance a calculation of future or probable profits, would not have been allowed.

I am therefore of opinion that the plaintiff’s offer of testimony to prove what would have been the profits of a,n excursion business carried on with the boat was properly overruled. The testimony as to the profits immediately before the defendants took possession was irrelevant and immaterial, because the plaintiff was not entitled to a recovery for the breaking up of a business, for which the defendant was not liable.

But I am constrained, from the case as settled, to think, that certain evidence offered by plaintiff, as to the value of the use of the boat for the unexpired time of the charter-party was excluded, which should have been allowed.

While the plaintiff was on the stand he was asked on his own behalf, Were there opportunities after July 15, down to September 7, to charter the boat, the William Coolc, for excursions beyond those mentioned in a certain list that had been given in evidence, of excursions for which the boat had been taken by third parties ? Upon defendant’s objections the question was excluded. The plaintiff’s counsel then, in the words of the case, proposes to prove the market value of a boat of that kind, for excursions similar to those mentioned in the list, and in addition to that, offers to show the daily expenses of running the boat, and claims that the boat could be chartered for more than it would cost to run the boat and the rent of the boat. An objection to the witness not being competent to express an “opinion on the subject” had been waived. The testimony would have gone to show what was the market value of the use of the boat for the unexpired time of the charter. He should have been allowed to prove this, as the breach had directly deprived him of the use. There was nothing uncertain or speculative in that, or in the running expense which it was proposed to deduct.

I regret to come to this conclusion, for having tried the case once, and in considering what has been the nature of the real dispute between the parties, I am inclined to think that the plaintiff does not actually rest his claim to damages upon the kind of proof now in question, but the point was fairly made upon the trial, and here the plaintiff is entitled to a new trial, if the exception is good, as I think it is.

Later in the trial, the plaintiff was asked in his own behalf what it would have cost to hire a boat after the defendants took possession for the unexpired time, or a charter like the one in suit. The subject-matter of the inquiry was proper, but the question was properly excluded, as the defendants then took an objection that the witness had not sufficient knowledge or experience to answer the question, and in fact it appeared that he had not.

The exception as to the value of the use of the boat from July 15 to September 7 being sustained, there should be a new trial, with costs to abide the event.

Freedman, J., concurred.  