
    Joseph W. Rhodes v. Bedent Baird.
    An action was brought on a contract, by which the defendant agreed to make a lease, for the term of ten years, to the plaintiff, of certain lands, on which to plant and cultivate a peach-orchard. The breach consisted in the failure of the defendant to make the lease, and in his causing the plaintiff, within two years from his taking possession, to be evicted from the premises, but after the peach-trees were planted. On the trial the plaintiff was permitted to give evidence of the probable profits that might in future be realized from the orchard, judging by the number of crops and the prices of peaches in the county for the last ten or fifteen years: Held—
    1. The evidence as to the probable future profits was incompetent to be given in chief by the plaintiff, as furnishing a basis for the assessment of damages by die jury, such evidence being uncertain and speculative in its nature, and in a great degree conjectural.
    2. To the extent that the damages depended on the loss of the use of the property for the term, its market value at the time of the eviction, subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had' no general market value, its value should be ascertained from witnesses whose skill and experience enabled them to testify directly to such value, in view of the hazards and chances of the business to which the land was to be devoted.
    3. Where a cause in which the parties are entitled to a jury trial is referred by the court, by consent of parties, to three referees, with an agreement that their decision shall be final, and the award is only signed by two of the referees, either party is entitled to a second trial, as in case of a verdict by a jury.
    Error to the court of common pleas of Warren county. Reserved in the district court.
    The controversy in this case grows out of a contract alleged to have been made, January 1, 1858, between the parties, by which the defendant agreed to furnish twenty-seven acres of land to the plaintiff, on which to plant a peach-orchard; also a dwelling-house, certain pasturage, fuel, and about thirty acres of tillable land.
    *In consideration of this agreement on the part of the defendant, the plaintiff agreed to set out two thousand peach-trees on the tract of twenty-seven acres and to assist in the cultivation of a peach-orchard thereon, and in the business of raising and selling fruit therefrom. It was further agreed that the expenses were to be borne by the parties in equal portions, and that the number of trees should be increased until the entire twenty-seven acres should be planted. The profits arising from the peach-orchard were to be divided equally between the parties, and the tillable land was to be occupied by the plaintiff upon the ordinary terms of renting such lands.
    The agreement was to continue for the term of ten, years, or longer if the orchard should continue to bear fruit and prove profitable ; and the defendant, as is averred, was to make to the plaintiff a lease embodying the terms of the contract.
    The plaintiff avers, that in February or March, of the same year, he entered into possession, under said agreement, planted the two thousand peach-treés, and in other respects performed the agreement on his part. The plaintiff further avers that the defendant had x*efused to execute the lease stipulated for, and by proceedings in forcible detainer which he caused to be instituted, in December, 1859, evicted the plaintiff from a part of said premises.
    There was an answer denying most of the material allegations in the petition, and setting up new matter not material to be noticed ; to which there was a reply by the plaintiff.
    On the first trial the case was withdrawn from the jury, and, by the oral consent of the parties to'the action, was referred to three persons named as referees, to be by them decided, and their decision was to be final and binding upon the parties. This order of reference was entered upon the journal, and specified the mode of proceeding to be observed by the referees in making up their decision. A report was made by two of the referees, awarding to the plaintiff fifteen hundred dollars as his damages. Judgment having been entered on the finding reported by the referees, the defendant demanded a second trial, and the court, being of opinion that the ease was one in which he was entitled to such second trial, allowed the same. To this the plaintiff excepted.
    *An undertaking having been given in accordance with the statute, the case, at the June term, 1862, came on for second trial. On this trial the plaintiff recovered a verdict for one thous- and dollars, on which judgment was rendered.
    A bill of exceptions was taken by the defendant, on the second trial, to the rulings of the court on the admission of testimony offered by the plaintiff, and to certain instructions given by the court to the jury.
    From this bill of exceptions it appears that the plaintiff, having offered testimony tending to show the contract between the parties and a breach thereof by the defendant, when the peach-trees in the orchard were about two years old, called F. G-. Hill as a witness, who testified, that he had been from twenty to twenty-five years engaged in the peach-tree business in Warren county, and was well acquainted with the business; that he had never seen the orchard mentioned in the pleadings in this case, but had a general knowledge of its locality, and was of opinion that it was an ordinary good location for a peach-orchard. The plaintiff thereupon put the following questions to the witness:
    First: “ What is the average life of a peach-orchard in this county?”
    Second: “ Taking the average of crops for the last ten or fifteen years in this county, how m^ny crops may be reasonably expected from a peach-orchard in this county during its life?”
    Third: “ Taking the average of prices for the last ten or fifteen years in this county, what would be the future profits of a peach-orchard of budded trees in this county upon an average crop? ”
    Fourth: “ Taking the probabilities of crops in the future, and the average price of peaches for the last ten or fifteen years, what would be the value, per tree, of such a peach-orchard, two years old, with the privilege of having them stand on the land for the life of the orchard?”
    To each of these questions the defendant objected, but the court overruled the objections, and permitted the questions to be put to the witness, and to be answered by him; to which the defendant excepted.
    Thereupon the witness, in answer to said questions, testified: *“ That the average life of peach-orchards in this county, in ordinary good locations, is about twelve to fifteen years; and that, taking the average of peach-crops for the last ten or fifteen years in this county, he was of the opinion that a peach-crop might reasonably be expected, from an orchard in this county, about opee in three or four years after it began bearing and during its life. And' that, taking the average of pifices for the last ten or fifteen years in this county, the future profits of a peach-orchard of budded trees in this county, upon an average crop, would be probably, at a low estimate, about one dollar and fifty cents per tree in the orchard for each crop; that he knew of no market value for peach-trees about two years old in such an orchard; that he never knew or heard of one selling at that age, and that, judging from what a peach-orchard would probably produce, and the probable price of peaches, he would be of the opinion that such an orchard would be worth about one dollar and fifty cents por tree.”
    The same questions were put to sundry other witnesses, and were answered by them in about the same manner.
    All of the witnesses thus testifying, also stated that for a series of years they had been engaged in the culture of peach-trees and the raising of peaches in Warren county ; that they were well acquainted with the business. Before testifying, the witnesses satisfied the court that they were experts in the business .about which they were called to express their opinions.
    The defendant objected to the testimony given by the witnesses; and, particularly, to so much of it as related to the probable number of crops that might be looked for from an orchard, the value per tree.of a future probable crop, and the value of the orchard, as based on the probability that it would produce crops in the future; and moved the court to withdraw that evidence from the jury. But the court overruled the motion, and permitted the evidence to go to the jury. The defendant excepted.
    The plaintiff having further offered evidence tending to prove that, in addition to the lease of twenty-seven acres for a peach-orchard, he was to have a certain house to live in, *and pasturage for five or six head of horses and cattle, and about thirty acres of other land of the defendant to till during the continuance of said contract, and that he had been prevented by the defendant from the use thereof, offered himself as a witness, he being a farmer, and gave evidence tending to show the yearly value of the rent of said house, and the profits he might, probably, have realized from said thirty acres during the ton years which he said the contract was to continue, and the value of the pasturage to him for the same time; and also offered testimony of other witnesses to the same points. To this evidence the defendant objected. The objection was overruled by the court, and the evidence permitted to go to the jury. The defendant excepted.
    The defendant gave evidence tending to show the cost of peach-trees at the time those in question were purchased, the cost of planting, cultivating, and trimming them, and all expenses of every kind that would be incurred in the production of-such an orchard, until it was two years old; and that there was no market value for such an orchard; and that the plaintiff, the same spring he left the property leased from the defendant, procured another farm to live on in said county; and also gave testimony tending to show an abandonment of the original contract by mutual consent.
    The defendant also requested the court to give certain instructions to the jury as to the measure of damages, which were refused ; but the charge requested and the charge given are not stated here for reasons appearing in the opinion of the court.
    The plaintiff in error, who was the defendant below, instituted the present proceedings in error to reverse the judgment rendered on the second trial, on the ground that the court erred in allowing the testimony above set forth to be given to the jury for the purpose of showing the amount of the plaintiff’s damages; also on the grounds that the court erred in refusing to instruct the jury as requested,- as to the measure of damages. These were the only objections made to the proceedings in the court below, and constitute the only grounds assigned for error.
    The defendant in error, who was the plaintiff below, has filed a *cross-petition, in which he assigns for error the action of the court in allowing a second trial in the ease. He claims that the decision of the referees was final and conclusive between the parties, and that the judgment rendered on their finding ought to be affirmed, and all the subsequent proceedings of the court reversed, and held for naught.
    
      A. (?. McBurney, for plaintiff in error:
    1. The peach-trees were about two years old when the plaintiff in error got possession of them. Tho proper inquiry was, what were they then worth, having reference to a future bearing orchard, not what the future bearing orchard would be worth. Tho court permitted the jury to consider the orchard as if in full bearing condition. Tho past price of peaches will not justify the conclusion that the future price will be the same.
    Ve refer to the following authorities: Sedg. on Damages (3 ed.), 60, 61, 65, 69, 70, 71, 75, 80, 96, 238, 239, 277, 111, 116; 25 Ill. 86; 2 Wis. 427 ; 1 Gallison, 325-327; 12 Mo. 318, 319; 26 E. L. & E. 398; 7 Hill, 76; 19 Ga. 420; 5 Ohio St. 603, 604; 41 Maine, 588; 21 Pick. 381; 13 Md. 315; 12 Ohio St. 312; 7 Ohio St. 129.
    2. If tho report of tho referees is to be regarded as an award under the statute in relation to arbitrations, then it was void because not signed by all the arbitrators. 4 Conn. 50 ; 7 Ind. 669; 10 Mich. 237; 34 Maine, 161. If the award was void, the plaintiff not objecting to it would not make it valid, neither would the judgment entered on it.
    There was no consent of the plaintiff that judgment should be entered on this defective award; or, if entered, that a second trial would dot be taken from such action of the court.
    Again, the decision that was to bo “ final and binding” was tho decision of the three chosen by tho parties, not the decision of two. The decision that was to be final and binding was .never made.
    
      J. M. & J. B. Smith, also for plaintiff in error:
    1. The court erred in admitting the testimony in regard to the probable profits that might bo realized by Baird from the peach- *or chard, and the value of the orchard, on this basis. It was admitting proof of speculative or contingent profits to lay the foundation for a recovery of damages. The proof should have been rejected. Cincinnati v. Evans, 5 Ohio St. 595, 603 ; 21 Pick. 378, 381; 16 N. Y. 489 ; 12 Cush. 366.
    As to the damages for the farming land, we refer to Abbott’s N. Y. Dig. 314, secs. 89, 90; 8 Grattan, 16; 8 N. Y. (4 Seld.) 115.
    
      Sage, Saaeke & Taft, for defendant in error:
    1. The evidence objected to was competent. The contract between the parties was for the joint ownership of a peach-orchard upon the land of Rhodes. Upon the breach of the contract and the ousting of Baird, be became entitled to recover the value of that contract to him. The counter proposition, that Baird became entitled only to draw out his actual investment, i. e., the cost of the trees and the value of his labor needs no other refutation than its statement. 3 Parsons on Contr. 184; Bagley v. Smith et al., 6 Seld. 489, 497; McNeill v. Reid, 9 Bingham, 68; Ingram v. Lawson, 6 Bingham N. C. 212; Donnell v. Jones, 17 Ala. 689; Nebraska City v. Campbell, 2 Black, 590.
    2. After the agreement of parties that the decision of the referees should be final and binding upon both parties, and the report signed by two of them was made and judgment entered, Rhodes moved for a second trial, which was allowed in the same entry which contains the judgment.
    If a joint award was necessary, that requisite was waived by Rhodes making no objection to the award, and taking no exceptions to its being received and acted upon by the court, and the objection will not now avail.
    If the referees were appointed in accordance with sections 281 et seq. of the code, proceedings before them were not conducted in the manner prescribed in such cases, and the parties agreed that the decision should be final and binding. It was competent for the parties to make this agreement. Allen v. Chase, 3 Wis. 249; Brown v. Kincaid, Wright, 37. And the agreement was a waiver of any right to further trial or hearing, except to set aside the award for fraud. Jesse v. Carter, *28 Ala. 475; Helsep v. San Francisco, 4 Cal. 1; Montgomery v. Ellis, 6 How. Pr. 326; Rogers v. 
      Holden, 13 Ill. 293; Wright v. Bolton, 8 Ala. 548; Stewart v. Cass, 16 Vt. 663; Valentine v. Valentine, 2 Barb. Ch. 430.
   White, J.

The pleadings in this case are drawn so loosely and with so little attention to legal precision, that it requires no small amount of labor to find out the material issues in the case. We should judge this to have been the cause of no little embarrassment on the trial in the common pleas; and the learned judge who tried the case would have been warranted, sua sponte, in requiring counsel to reform their pleadings so as to make the issues sought to be raised more definite and certain.

The damages in this» case arose from the breach of a contract. The breach consisted in the failure of the defendant below to make the lease stipulated for, and in his causing the eviction of the plaintiff below from the premises for which the lease should have been made.

The testimony excepted to by the plaintiff in error, related to the probable future profits of a peach-orchard not yet grown; to the profits the plaintiff would probably have made from the thirty acres; and to the value of the pasturage to him during the time. This testimony was offered in chief by the plaintiff, as furnishing the basis on which his damages were to be assessed by the jury. ' It was uncertain and speculative in its nature, and must have been, in a great degree, conjectural.

The general rules as to the measure of damages are well understood. The difficulty lies in making the proper application of them to particular cases.

It is a well-established rule that the damages to be recovered for a breach of a contract must be shown with certainty, and not left to speculation or conjecture. In the practical application of this general rule, others have been adopted as guides in ascertaining the required certainty; as (1) that the damage must flow naturally and directly from the breach of the contract, that is, must be such as might be presumed to *follow its violation; and (2) must be not the remote, but proximate consequence of such breach.

In cases where the damages may be estimated in a variety of ways, that mode should be adopted which is most definite and certain.

In the present case, as respects the property, the immediate or proximate consequence of the breach of the contract, by the eviction, was the loss of the use of the premises for the term. To the extent that the damages depended on the loss of the use of the property, its market value, at the time of the eviction, subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value, its value should have been ascertained from witnesses, whose skill and experience enabled them to testify directly to such value, in view of the hazards and chances of the business-to which the land was to be devoted. Griffin v. Colver et al., 16 N. Y. (2 Smith,) 489; Giles v. O’Toole, 4 Barb. 261; Newbrough v. Walker, 8 Gratt. 16.

This would only be applying the same principle for ascertaining the value of property which, by reason of its limited use, had no general market value, which is adopted with reference to proving the present worth of the future use of property which, by reason of its being in greater demand, has such market value.

In the ease of property of the former description, the range for obtaining testimony as to the value is, of course, more circumscribed than it is in the case of property of the latter description. But in either case, the proving the value of the property by witnesses having competent knowledge of the subject, is more certain and direct than to undertake to do so by submitting to the jury, as-the grounds on which to make up their verdict, the supposed future profits.

The profits testified to in the present ease were remote and contingent, depending on the character of the future seasons and markets, and a variety of other causes of no certain or uniform operation.

Neither did the amount of the plaintiff’s expenditures, made in obtaining or performing the contract, furnish the ^measure of his damages, or constitute the fact to which his evidence in> chief, on the question of damages, ought to have been directed. Eor this wrould be to allow the plaintiff, in case he bad made a bad bargain, to charge his losses resulting therefrom upon his adversary ; and, on the other hand, if his contract had been a profitable one, to deprive him of its benefits.

In regard to the questions objected to, and kindred inquiries, it may also be remarked, that we do not doubt it would be the right of a party, on cross-examination, to propound such questions to-the witnesses, who might have testified to the value of the prop■erty in question. This could be done in order to ascertain the grounds of their judgment, and as tending to test its correctness.

The remaining question, made on behalf of the plaintiff in ■error, relates to the refusal of the court to instruct the jury as requested, touching the measure of damages.

The condition of the record does not admit of a notice of the various instructions asked, that would be intelligible, within a reasonable compass. Our ruling the admission of testimony will furnish a sufficient guide, as to this question, on a retrial of the «ase. We therefore dismiss this branch of the case, with the remark that if the record did not show that improper testimony had been admitted, we should not have felt called upon to reverse the judgment for the refusal of the court to instruct the jury in the terms requested.

The remaining question arises on the cross-petition of the defendant in error. He claims that the judgment rendered on the report of the referees should be affirmed, and all the subsequent proceedings reversed.

The action of the referees must be regarded either as an award of arbitrators at common law, or as the report of referees under the code. As an award it was invalid, inasmuch as it did not follow the terms of the submission. The submission was to the arbitrament of three persons. The award was made by two only. As a report by referees, the code declares its effect to be the same as a decision by the court. Giving it this effect, either party had 588] the right to demand a ^second trial, the case being one for second trial instead of appeal. Lawson v. Bissell, 7 Ohio St. 129.

Judgment reversed, and cause remanded.

Scott, C. L, and Day, Welch, and Brinkerhoee, JL, concurred.  