
    Seaton v. The Second Municipality of New Orleans.
    In an action by a contractor, against the party with whom he had contracted for the erection of a building, -for damages for non-performance on the part of the latter, the difference between the amount the contractor was to i*eceive, and that which he was to pay under subcontracts made by him for the materials and building, does not constitute the amount of profit the .contractor* is entitled to recover. PerCwriam: It cannot be ascertained, with•out evidence as to the value of labor and materials at the time, and as to the solvency of the sub-contractors, whether they would have been able to comply with itheir obligations, or .to indemnify the contractor if they had not. When a contrast is broken before the arrival of che time for full performance, and the opposite party sues for damages also before the time for full performance, the market value at the time of the breach, whenever there is a market value, is to govern. Where there is none, as in this .case, the question involves a minute enquiry into the cost of materials, the expense of procuring and transporting them to the place-of delivery, the amount of labor required for putting up the building and the value of the wages of laborers and mechanics, the whole to be assessed at ¡the time of the breach of the contract; and wherever the estimate of profits must be somewhat conjectural, the damages should be moderated so as to allow for any partial uncertainty that may exist.
    
      from the Fifth District Court of New Orleans, Buchanan, J.
    
      Benjamin and Micou, for the plaintiff.
    
      Lockett and Ii. Hunt, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The motion for a new trial in this case was improperly overruled, and the application of the defendants to have the .case remanded for trial before another jury must prevail, so far as the question of damages and loss of profits resulting from the breach on the part of the defendants of the building contract entered into by them with the plaintiff, is involved. It is admitted that the verdict of the jury allowed $28,000 as damage and loss of profits, and that the balance of the judgment has been voluntarily executed, without prejudice to either party as to the question remaining open. The damages and loss of profits allowed are based exclusively upon the loose and speculative opinions of the witnesses, and upon estimates of supposed profits. The plaintiff’s counsel argue that the difference between the amount he was to receive, and that which he was to pay, under the sub-contracts he had made for the building and materials, constituted the profits. Evidence of that description would open too wide a door to fraud, to be received as full proof. Flow can it be ascertained, without any evidence as to the value of labor and materials at the time, or as to the solvency of the sub-contractors, whether they would have been able to comply with their .obligations, or to indemnify the plaintiff if they had not.

The jury had not before them the data necessary to make an estimate. When a contract is broken before the arrival of the time for full performance, and the .opposite party assents to consider it in that light, and sues for damages, also before the time for full performance, as is the case here, the market value at the time of the breach, whenever there is a market value, is to govern in the .assessment of damages. There being no market value'in this case, the question of profits involves a minute inquiry into the cost of .the materials, the expense of procuring and transporting them to the place of delivery, the amount of labor required for putting up the building, and the value of the wages of laborers .and mechanics, the whole to be assessed .at the time ,of the breach of the contract. Even with these data, the estimate of profits must be somewhat conjectural. B,ut wherever this is the case, it is the province as well as the duty of the jury not to assess damages rigorously; but, on the contrary, to moderate them, so ,as to make allowance for any partial .uncertainty that may exist. The nature of the proof required in cases of this kind has been thoroughly investigated by the courts of New York. Masterson v. Mayor of Brooklyn, 7 Hill, p. 62. Sedgwick on Damages, pp. 81 to 85—228 to 231.

It is ordered that the judgment, so far as it has not been voluntarily .executed, be reversed, and the case remanded for further proceedings on the single .question of damages and loss of profits resulting from the breach of the building ■contract entered into between the plaintiff and the defendants; the plaintiff and appellee paying the costs .of this appeal.  