
    Charles Benner, as Trustee, etc., Resp’t, v. Phoenix Towing and Transportion Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    1. Contract—Breach.
    Where there has been no performance, the action must be brought for a breach and not upon the contract.
    2. Damages—Contract—Breach—Burden.
    The burden, in an action for a breach of contract, is on the plaintiff to show a loss of profits.
    Appeal from a judgment in favor of plaintiff.
    
      Henry B. Man, for app’lt; Henry 0. Willcox, for resp’t.
   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 tlie 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. Pro. § 723. No 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 id. 148; 11 St. Rep. 361; Elting v. Dayton, 63 Hun, 629; 43 St. Rep. 363.. 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. W. & W. Manufacturing Co., 101 id. 205. 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 twenty 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.  