
    AUGUSTE MENARD and LENA S. MENARD, Plaintiffs and Respondents, v. MARIETTA R. STEVENS, Defendant and Appellant.
    I. Appeal.
    1. EVIDENCE INCOMPETENT, BUT NOT WORKING ANY INJURY.
    (<$) Rule, that its admission is not cause fob bevebsal, Applies
    When the evidence is as to facts which, if not testified to, the jury would Mow, from an experience common to all, must have existed.
    II. Damages.—Contbact, bbeach op.
    1. PRIOR PROFITS, EVIDENCE OF, ADMISSIBLE.
    
      (a) When by contract between S. and M. it was agreed that M., for a certain specified period should occupy a certain part of a building of S., and carry on therein a certain business in connection with a certain other business carried on by S. in the rest of the house, and that M. should receive all the profits of his business:
    
      Held,
    
    In an action by M. against S. for a breach of the contract in ousting him from his part of the building, that evidence of the profits made by him prior to the breach was admissible on the subject of damages.
    1. Subsequent pbopits. The tendency of the evidence to form a basis for an improper allowance of subsequent profits must be guarded against by the charge.
    3. Elements op damage in above put case. The nature and extent of the business done before breach, the contingencies to which that business was subject, the expenses incurred, the profits made, and losses sustained, and the admissions made by M. in regard thereto are all to be considered in determining what the use and occupation of the demised premises in the condition in which they were at the time of the breach, including the furniture in them,-would have been worth to M. for the purposes mentioned in the lease, for the time he was deprived of it by the unlawful acts of S.
    HI. Appeal.
    1. CHARGE, REFUSAL TO.
    (a) A refusal to comply with a request to charge a perfectly correct proposition is not error, if it has no bearing on the issues involved.
    Before Curtis, Ch. J., and Sedgwick, J.
    
      Decided March 3, 1879.
    Appeal from a judgment.
    In May, 1876, an agreement in writing was made by the parties to this action, by which the plaintiff agreed for the term of three years to take charge of a kitchen and restaurant, in a house owned by the defendant ; in consideration of which the defendant agreed to let the plaintiff occupy and use the kitchen, room for a restaurant and other rooms in the house, with the privilege to the plaintiff to keep for his own profit a first-class restaurant and dining-room, for the tenants of the house ; the plaintiff was to keep the rooms used by him clean and in good order; to feed the employees of the house, to the number of eighteen, and was to supply the tenants of the house with first-class “French cooking, keeping the standard equal to that of all first-class hotels in the city.” The defendant had the right to cancel the agreement by giving thirty days’ notice to the plaintiff upon plaintiff’s neglect or refusal to perform the agreement, “ said neglect or refusal to be decided by arbitration.” The agreement contained “ the parties of the second part will pay no money rent for the rooms above mentioned, but in lieu thereof agree to feed all the employees of Mrs. Stevens, in the house ; the number of said employees hot to exceed eighteen . . . the parties of the second part will pay for any (other?) rooms or apartments required or taken by them for their use and occupation, at a fair valuation.” Mrs. Stevens agrees to lease said premises for a term of three years, if said conditions are complied with. The plaintiffs took possession, furnished certain of the rooms, and began to carry on a restaurant, and continued to carry it on until some time between January 29 and February 7, 1877, when they were forcibly ejected by the defendant.
    The action waS brought to recover damages for a breach of the contract.
    The defendant claimed the restaurant was not kept as the agreement provided. The plaintiff insisted that it was. On the trial conflicting testimony was given. The defendant also claimed that upon the neglect of the plaintiff to keep the restaurant as agreed, she attempted to bring about an arbitration as to the neglect; that plaintiff refused to arbitrate, and that she therefore gave- more than thirty days’ notice that she canceled the agreement for the neglect. The testimony on this point given on behalf of defendant was opposed by testimony on behalf of plaintiff.
    On the trial, upon the subject of damages, the following questions were put, objections made, exceptions taken and answers given :
    
      “ As soon as I received this (being a note from Mrs. Stevens), I went to Mrs. Stevens, and she told me I have got to settle immediately or take my things out, or she would put them on the sidewalk; then I moved out; I took everything down to Waverly place ; I sold part and got part; the gas fixtures I sold to Mr. Pan-coast.
    
      “ Q. What did you get for them ?
    
      “ Objected to as incompetent on the question of damages. Objection overruled and exception taken.
    “A. He gave me thirty per cent, of what I gave for them.
    “ Q. How, in relation to the buffet %
    
    “ Defendant’s objection and exception covers all testimony on this point.
    “A. I sold that back for $60 ; it cost me $150.
    “ Q. What was that lease worth at the time of this damage %
    
    “ Objected to as calling for an expression of opinion on the part of the witness, who is not shown to be an expert, and as otherwise incompetent. Objection overruled and exception.
    “A. That lease I deemed it at $15,000, for three years ; $5,000 a year.
    “ Q. What profit did result from taking in $3,000 a month %
    
    “Objected to as incompetent. Objection overruled and exception taken. •
    “By the Court?—The question is as to your profit ?
    “A. My profit was thirty per cent, at the time I made $3,000 a month; that is the way I based my $15,000; I removed my things to Waverly place ; I am not there now ; Mr. Folmer has now the restaurant where I was before ; my wife came there nearly every day to look out for the linen; I had everything in good order ; she took charge of everything.”
    The judge, on the subject of damages, charged :
    “How, as to the measure of damages, I have to instruct you that you can allow nothing for losses sustained by plaintiffs in the re-sale of any of the property removed by them. That may have been their misfortune, but for that the defendant is not responsible. There was nothing that the defendant did which prevented the plaintiffs from using the property so removed by them elsewhere in similar enterprises. Other items of damage are claimed, bnt you must discard them all except the damage which necessarily flows from the breaking up of plaintiff’s business before the time had arrived at which the defendant had a right to insist upon a discontinuance. The period of time for which plaintiffs may have a right to recover may, as I have already said, consist of only a few days, or it may consist of the whole unexpired term of the lease, according as a matter of fact you may find it. That is a question for you to determine. Whichever way you may determine it, in assessing the damages for that period, you have aright to consider the nature and extent of the business done by plaintiffs while they were there; the many contingencies to which that business was subject; the expenses incurred, the profits made, and the losses sustained; and also the admissions made by the plaintiffs in regard thereto ; and upon all these matters you will have to determine what the use and occupation of the demised premises, in the condition which they then were, including the furniture in them, would have been worth to the plaintiffs for the purposes mentioned in the lease, for the time, be it short or long, they were deprived of it by the unlawful acts of the defendant, if they were so deprived.
    
      “ Prospective profits cannot be compensated for, they are too uncertain. You will, therefore, have to assess the damages according to the rule laid down by me, and in doing so you may, among other things, consider on one hand the offer made by plaintiffs to sell out to the defendant and also to another at a certain price, which appears in evidence, and on the other hand the circumstances and the necessity under which these offers were made. You may also consider any admission or admissions which you may find plaintiffs, or either of them, made in regard to the profitableness or unprofitableness of the business while it was carried on by them.
    “ And finally you will bear in mind that the right of plaintiffs to any damages, in case a notice of thirty days was given, depends entirely upon the question whether the plaintiffs fulfilled all the conditions of the agreement on their part.
    “By taking a common sense view of all these matters, I have no doubt you will arrive at a proper conclusion. If, however, from the state of the evidence you should find yourselves unable to determine the damages to which plaintiffs' may be entitled, you must give the plaintiffs at least nominal damages.
    “In case you find for the plaintiffs in any sum whatever, you will also have to determine what damage, if any, the defendant sustained by reason of any breach of any of the conditions of the agreement to be performed by the plaintiffs, and then offset it against the amount to which the plaintiffs may be otherwise entitled. And in this connection you will bear in mind that the defendant claims that certain bills for fuel and gas were left unpaid. The plaintiffs on the other hand deny it. Between them you will have to determine how the fact was in that respect.”
    Defendant’s counsel excepted to that portion of the charge wherein the court says that the nature and character of the business which the plaintiffs had conducted may be taken into consideration by the jury, in estimating damages.
    Also to that portion of the charge wherein the' court says that the evidence is either conflicting or not clear, as to the fact of thirty days’ notice having been given.
    Also to that part of the charge wherein the court says that in estimating the damages, it may be for the whole unexpired term, if the plaintiffs complied with every undertaking in the agreement.
    
      The jury thereupon rendered a verdict for the plaintiffs for the sum of $5,000.
    The defendant’s counsel moved fora new trial upon the minutes, which motion was denied, and exception taken.
    Judgment was thereupon entered on the verdict. ■
    I
    Defendant appeals from the judgment.
    
      John Berry, attorney, and of counsel, for appellants, on the questions considered by the court, among other things, argued:
    I. The agreement upon which this action is brought was a personal one, calling for the personal services of the plaintiff, of the character therein mentioned, and was not a lease, which could be sold by plaintiff to a third party, with the right to possession or enjoyment under it. It, therefore, had no value, disconnected with the personal services of plaintiff (Jackson v. Delacroix, 2 Wend. 433). The only occupation or use of the premises, under the agreement, was the personal occupation and use by the plaintiff for the sole purpose of properly performing the personal services required of him thereby. The defendant was not obliged to accept the occupation or services of another person, and any sale or other disposition of the plaintiff’s right or interest under the agreement, or substitution of another’s services, would have been a violation of its conditions, authorizing defendant to cancel the same. The learned judge, therefore, erred in his denial to charge the jury to this effect, as requested. It is reasonable to assume that this request to charge, made and denied in the presence and hearing of the jury, induced them to believe that there was to this agreement a salable value disconnected with the services of plaintiffs, such as would naturally attach to an ordinary lease, and this, no doubt, had a material influence upon their verdict, particularly in connection with the charge of the learned judge, upon the question of damages, where he instructs the- jury that in assessing damages they would have to determine “ what the use and occupation of the demised premises would have been worth to the plaintiffs for the purposes mentioned in the lease, for the time the plaintiffs were deprived of it by the unlawful acts of the defendant;” and that the plaintiffs’ right, to recover might consist of the whole unexpired term of the lease.
    II. There was error in the reception of incompetent evidence. The plaintiff was asked: ‘ ‘ What was that lease worth at the time of this damage ?” and under, objection was allowed to answer: 1 ‘.That lease I deemed it at $15,000 for three years; $5,000 a year.” This agreement not being in fa'ct a lease, not having a value as a. lease, for the reasons hereinabove stated, the question was improper upon the subject of damages. Even if the question had been proper, it had not been shown that the witness had a knowledge of the value of a lease of this character, or that he was competent to give an opinion upon the subject. That he was not competent is shown by his cross-examination, where he says that he had never kept a restaurant like this before. Again, the plaintiff was asked: “What profit did result from taking in $3,000 a month?” and under objection he answered: “ My profit was thirty per cent, at the time I made $3,000 a month ; that is. the way I based my $15,000.” This was incompetent for the same reason, and for the further reason that it was evidence only of prospective profits, which is not the measure of damage^, and for which there can be no recovery. Any future profits under this agreement were contingent and uncertain, and could not be estimated. It could not be assumed that these occupants of the house would continue to patronize this restaurant. They were under no obligation to do" so, either to the plaintiff or to the defendant. The destruction of the building by fire or otherwise would have prevented future profits. The death of the plaintiffs would have done so. The increase in the cost of conducting the business might have materially impaired or destroyed the profit. Thus it will be seen that the only evidence upon the question of damages was that of future profits, uncertain and dependent upon innumerable contingencies, for which there can be no recovery (Hamilton v. McPherson, 28 N. Y. 72; Giffin v. Colver, 16 Id. 494). It is true that the learned judge said to the jury that prospective profits could not be compensated for, but there can be no doubt that in the absence of any other evidence on the question of damages, the jury were misled by its admission in connection with the instructions to them above mentioned, that “ they were to determine what the use and occupation of the premises would have been worth during the unexpired term,” and that their verdict was based upon this evidence (Green v. Hudson R. R. R. Co., 32 Barb. 25 ; Worrall v. Parmelee, 1 N. Y. 519).
    
      John Langtree, attorney, and of counsel, for respondent.
   By the Court.—Sedgwick, J.

There was no motion to dismiss the complaint, on the ground that the testimony did not prove any cause of action, nor was there any request that the judge direct the jury to find for the defendant on the whole case, nor was there any motion for a new trial upon a case. A motion for new trial was madb upon the minutes. It specified no ground, and the order denying it was not appealed from. We are, therefore, confined to an examination of the exceptions taken by the defendant.

The plaintiff, as witness for himself, was asked: “ Tell us, in round numbers, about how much you expended in fitting np and furnishing these apartments V’ The ground of objection was stated, that under the agreement there is nothing requiring the plaintiff to furnish any" particular amount. If the agreement called upon the plaintiff, as it clearly did, to furnish the rooms for a restaurant, he had the right to prove the facts connected with the furnishing, and was not shut off from this proof, because the agreement did not ‘specify any particular sum he should expend. The cost of the articles was some evidence of the fitness of the furniture for the kind of restaurant that the agreement meant. The witness was also allowed to state the money he lost upon a sale of the furniture after the auction. This was objected to as incompetent on the question of damages. It may, perhaps, be that this testimony was not material in the case. It is evin dent, that, under the subsequent charge of the judge, that the jury must not include in the damage this loss, the proof could not have injured the defendant. There are often instances, when incompetent testimony may have the' effect of so prepossessing the minds of jurors, that they will not be able to follow a direction of the judge to disregard it. The sáfe rule, therefore, is that all improper testimony is deemed ‘to do injury until the contrary clearly appears. Here, however, • the answer given stated facts, which, if not testified to, the jury would know, from an experience common to all, must have existed,. when the furniture was sold after it was used.

There was an objection to the witness stating the value of what was called the lease. The ground was. that the witness was not an expert, and the proposed testimony was otherwise incompetent. The answer given was apparently an opinion of the witness, and he had not been proved to be qualified to express an opin-N ion. Another answer was given in immediate connection with the first, and the two, which should be taken together, show that the sum the witness named was the result of a calculation from the profits he had made before the alleged wrong. He said in the last answer : “ My profit was thirty per cent, at the time I made $3,000 a month ; that is the way I based my $15,000.” As to the plaintiff’s right (under the agreement, in substance, that he should have the profits of keeping a restaurant for the tenants of the house) to show what the profits had been before the eviction, there can hardly be a doubt. The damages for breaking up unlawfully a profitable business would be greater than for breaking up a business that had .had no profit. The judge, by the charge, protected the defendant against a verdict for subsequent profits, in a way that she cannot complain of (Bagley v. Smith, 10 N. Y. 489 ; Marquart v. La Farge, 5 Duer, 559). The judge directed the jury explicitly not to give damages for any causes, specifying them, excepting the breaking up of plaintiff’s business. He said,' among things on this point: “ Other items of damage are claimed, but you must discard them all, except the damage which necessarily flows from the breaking up of plaintiff’s business, before the time had arrived at which the defendant had a right to insist upon a discontinuance.”

The court properly excluded the question, “Did you hear any other person making complaint to him (the head waiter) at any time.” The answer would have been hearsay.

At the end of the testimony, the defendant’s counsel moved to dismiss as to the plaintiff Lena S. Menard. This was properly denied. She was jointly interested in the agreement. The counsel also moved for a dismissal of the complaint generally, on the ground that no damages recoverable in this action had been proved. If the proof as to loss of the business and other like proof were disregarded, clearly the plaintiff had shown some damage, if he were unlawfully evicted, as to which no question was addressed to the court on the trial.

There was a request by defendant’s counsel to charge that the agreement was personal between the plaintiffs and defendants, one which called from them personal services^ and was not a lease in any such sense as that it could be sold, or that Mrs. Stevens was obliged to accept anybody who may have been api pointed by Mr. Menard. If this be accurate, in all respects, the defendant was not injured by the court refusing to give to the jury a description which had no practical value in the case,- and referred to matters not in issue before the jury. Whether it was a personal agreement or was a lease that could not have been sold, and whether Mrs. Stevens was obliged to accept some one named by Mr. Menard, did not affect the issue as to the wrong complained of.

The charge, that the jury in estimating the damage should consider the- nature and character of the business which the plaintiffs had conducted, seems, as has been already said, to be correct.

The testimony, as given in the case, justified the court in telling the jury that the evidence as to the fact of thirty days’ notice having been given was either conflicting or not clear.

I do not perceive any reason for not sustaining the charge, that if the plaintiff complied with every undertaking in the agreement, the damages might be for the whole unexpired term. The defendant had the right to cancel the agreement by thirty days’ notice only in case the plaintiff failed in his performance. If he did not fail, and this was left to the jury, his interest was for more than thirty days, and was in the full time the agreement might last.

The judgment appealed from should be affirmed, with costs.

Curtis, Ch. J., concurred.  