
    J. G. A. FRANK v. Thomas E. GAFFNEY.
    No. 2606.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 4, 1932.
    Rehearing Denied March 3, 1932.
    T. H. Cody,. Fulbright, Orooker & Freeman, and W. B. Bates, all of Houston, for appellant.
    W. P. Hamblen, Geo. D. Sears, and Williams, Lee, Hill, Sears & Kennerly, all of Houston, for appellee.
   PELPHREY, C. J.

This is the second appeal in this case. See 2 S.W.(2d) 885.

Upon the last trial an instructed verdict was again returned in the defendant’s favor after the evidence of both sides had been given.

The amendéd petition upon which the trial was had does not materially differ from the one stated in the opinion rendered upon the former appeal. We refer to that opinion for statement of the transaction between the parties out of which the controversy arises.

The propriety of the peremptory charge is the only question presented for review.

The evidence shows beyond dispute that no profits had been realized out of the enterprise in which the parties engaged up to the date of trial. Nearly all of the parties to whom appellant had made sales, under executory sales contracts, had defaulted and the lots surrendered to appellee. It is true a few lots remain unsold, hut it is wholly uncertain and conjectural whether any profit will ever be eventually realized out of the enterprise, and, if so, how much..

The evidence failing to disclose any profits upon the sales heretofore made, it was incumbent upon appellant to show with reasonable certainty of proof that the lots remaining unsold could be sold and a profit made and the amount of such profit likewise shown with reasonable certainty. Upon an examination of the evidence we think it fails to measure up to that decree of certainty which the law requires, and leaves the question of both possible future profits and the amount thereof uncertain and conjectural. Upon this view it follows the charge was properly given.

Affirmed.  