
    (80 Hun, 412.)
    BENNER v. PHOENIX TOWING & TRANSP. CO.
    (Supreme Court, General Term, Second Department.
    July 27, 1894.)
    1. Action on Contract—Pleading and Proof—Variance.
    Defendant agreed to take a certain quantity of sand per month from plaintiff’s premises, at 10 cents per cubic yard, plaintiff first to improve the access to the property. Thereafter, defendant extended the time for the improvement, but before such time expired repudiated the contract. Held, that no action could be maintained thereon to recover for the amount of sand defendant agreed to remove, as defendant was not obliged to remove it until the improvement was made, and that plaintiff's real cause of action was for a breach of the contract
    2. Breach of Contract—Damages—Evidence.
    In an action for such breach, though plaintiff is entitled to recover what he lost by being deprived of his chance of profit, the burden is on him to prove the amount of his loss, and not on defendant to prove that it would have been less than the amount plaintiff would have realized had the contract been performed.
    Appeal from judgment on report of referee.
    Action by Charles Benner, trustee, against the Phoenix Towing & Transportation Company. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed on condition.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Henry H. Man, for appellant
    Henry C. Willcox, for respondent.
   BROWN, P. J.

On August 15, 1889, the parties entered into a written agreement whereby the plaintiff leased to the defendant, for a term ending April 1, 1892, the privilege to excavate and remove sand upon certain property situated upon Flushing bay. By the second clause of the agreement plaintiff agreed to improve the approach by water to the dock on said property so as to give a depth of eight feet at high water along said dock, and also to excavate to a channel 30 feet in width, extending 100 feet from said dock into Flushing bay. The defendant agreed—First, to pay 10 cents per cubic yard for all sand removed from said premises; and, second, to excavate and remove between April 1st and November 1st in each year of the term “an amount of sand not less than an average value of $250 per month at the rate above stated: * * * provided, however, that the period of said guaranty shall commence to run when the party of the first part [plaintiff] shall have first performed the covenants in the second clause of this agreement.” The complaint set forth two causes of action: First, to recover $108.20 for 1,082 yards of sand removed by the defendant in the year 1889; and, second, to recover $1,750 upon the guaranty aforesaid for the period between April and November, 1890. Upon the second cause of action plaintiff alleged that he had performed all the conditions of the contract upon his part, and the defendant had neglected to remove any sand during the year 1890. The defendant denied that plaintiff had performed his agreement, and alleged that he had failed to improve the approach to the dock, or excavate the channel to the bay, and that because of that fact it had in January, 1890, canceled the agreement. The referee found as a fact that plaintiff never performed his agreement in reference to improving the approach to the dock, but that defendant consented that such improvement be postponed until the spring of 1890, and that such performance, as a condition precedent to defendant’s obligation under said agreement, was waived by defendant; and that in January, 1890, without justification, it renounced and repudiated the contract, and that by reason of such renunciation plaintiff was damaged $1,750. From this statement of the case it appears that no recovery could be had by the plaintiff upon the second cause of action set out in the complaint, as the period of guaranty was not to begin to run until the improvement of the channel was complete; and that, while defendant could waive this provision of the contract, the waiver found by the referee was not absolute, but only extended the time of performance by plaintiff until April, 1890. But, although the plaintiff failed to establish the case made by his complaint, he has been permitted to recover upon a cause of action for a breach of the contract which was not pleaded. The power to amend pleadings upon the trial so as to conform them to the facts proved does not extend to changing the cause of action sued on. It can only be exercised when the amendment does not change substantially the claim or defense made. Code Civ. Proc. § 728. Ho amendment was made or requested in this case, and the complaint stands as originally served. The distinction between a cause of action based upon the existence of the contract and one for its breach is vital to the rights of the parties. If the contract is still in existence, plaintiff may sue upon the guaranty at the end of each month to which it applies; but, if it has been repudiated by defendant, there is but a single cause of action for its breach, and a recovery of damages in one action is a bar to all other suits. The plaintiff never has claimed that the contract was broken, and, while he assumes that position, he cannot sustain a judgment for its breach. Wright v. Delafield, 25 N. Y. 266; Day v. Town of New Lots, 107 N. Y. 148, 13 N. E. 915; Elting v. Dayton, 63 Hun, 629, 17 N. Y. Supp. 849. The referee also erred in the measure of damages applied to the case. Upon the theory of a breach of the contract plaintiff was entitled to recover its value, or what he lost by being deprived of his chance of profit. Taylor v. Bradley, 39 N. Y. 129; Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. 264. The referee apparently recognized this rule, but held that it was for the defendant to prove that it would have been less than the amount of the guaranty. This burden could not be cast upon the defendant, and the cases cited by the referee have no application to such a case as this. It was for the plaintiff to prove his loss, and it was apparent from the contract that he could not be entitled to the monthly stipend until he had improved the approach to the dock, and that the sand itself had some substantial value. The judgment awards the plaintiff the full amount, to which he was entitled only in case he had performed his covenants of the contract, and it leaves him in possession of the sand. The judgment must be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event, unless plaintiff stipulates within 20 days to reduce the judgment to the sum of $57.20, with interest from January 1, 1890, in which case the judgment so reduced is affirmed, without costs. All concur.  