
    GEORGE F. MILLER v. JULIUS J. REITER AND OTHERS.
    
    March 16, 1923.
    No. 22,989.
    Appeal bond enforceable.
    1. A bond on appeal conditioned to pay the damages sustained by reason thereof is enforceable according to its terms as a common law ¡bond though such bond may not have been necessary to secure a stay, a question not decided, following Carlson v. American Fidelity Co. 149 Minn. 114, and other cases.
    Recovery of loss of profits.
    2. Loss of profits from the interruption of an established business may be recovered. The law does not refuse damages merely 'because of the difficulty of ascertaining their amount; but their amount must be fairly proved and not left to guess or conjecture.
    New trial granted on amount of damages.
    3. The evidence does not sustain a verdict so large as that returned and a new trial is directed upon the question of the amount of damages.
    Action in the district court for Olmsted county to recover $2,500 on a bond. The case was tried before Callaghan, J., who when plaintiff rested denied defendants’ motion to dismiss and at the close of the testimony denied their motion for a directed verdict, and a jury which returned a verdict in favor of plaintiff. From an order denying their motion for judgment notwithstanding the verdict or for a new trial, defendants appealed.
    Reversed.
    
      Fraser cG Fraser, Burt W. Baton, Gray cG Thompson and F. A. Pihe, for appellants.
    
      James A. Garley and Irving L. Bclcholdt, for respondent.
    
      
       Reported in 192 N. W. 740.
    
   Dibell, J.

Action on a bond. There was a verdict for the plaintiff. • The defendants appeal from the order denying their alternative motion for judgment notwithstanding or a new trial.

Tbe bond was executed upon tbe appeal of tbe defendant Reiter from a judgment directing tbe issuance of a peremptory writ of mandamus commanding bim to sign tbe license of tbe plaintiff to sell intoxicating liquors granted by tbe common council of Rochester. See State v. Reiter, 140 Minn. 491, 168 N. W. 714. Tbe defendant first executed a cost bond pursuant to G. S. 1913, § 8002, and later executed tbe bond in suit, with tbe other defendants as sureties, conditioned to “pay tbe costs of said appeal, and the- damages sustained by tbe respondent in consequence thereof, if tbe said judgment or any part thereof shall be affirmed, or the appeal dismissed, and to abide and satisfy tbe judgment or order which tbe appellate court may give therein.” Tbe bond substantially follows G. S. 1913, § 8003, which provides for a supersedeas, on the giving of such bond, on an appeal from an order. The bond uses the word judgment where tbe statute uses tbe word order. Tbe section following provides for a supersedeas on an appeal from a judgment and is differently worded. It is tbe contention of tbe defendant that under section 8012, which provides that in cases for which provision is not made in sections 8004-8007, section 8004 referring to a money judgment, section 8005 to a judgment for tbe assignment or delivery of documents or property, section S006 to a judgment directing tbe execution of a conveyance or other instrument, and section 8007 to a judgment for tbe sale or delivery of possession of real property, tbe bond provided by section 8002 stays proceedings in the court below upon tbe judgment, with exceptions not here important; and that tbe bond in suit was unnecessary to effect a stay. However, tbe bond was executed and delivered. It is good as a common law bond.

In Carlson v. American Fidelity Co. 149 Minn. 114, 182 N. W. 985, it was held that a surety on a bond in certiorari, conditioned as a supersedeas bond under section 8004 on appeal from a money judgment, though such a bond need not have been given as a condition to tbe issuance of tbe writ, was bound by the obligation which it assumed. Tbe cases are there collected and need not be reviewed. Tbe rule there applied controls here. We need not determine tbe correctness of tbe defendants’ contention as to tbe effect of the statutes cited. It might seem a bit anomalous, though, to bold that if a defendant appeals from the order directing tbe issuance of the writ he is required to give a bond, if he has a stay, conditioned as required by section 8003, which in effect was held in State v. Webber, 31 Minn. 211, 17 N. W. 339, but that if he appeals from the judgment he may have a stay upon the execution of a cost bond under section 8002.

To avoid future misunderstanding of our present decision it may be noted that the defendant is not protected from liability on his bond upon the ground that in his conduct under review he was discharging a duty of his office involving discretion. His situation is not that of the defendant in Roerig v. Houghton, 144 Minn. 231, 175 N. W. 542, who was exercising governmental discretion. The council had directed the issuance of the license and the defendant Eeiter had no discretion. It was his duty to sign.

Upon the execution of the bond there was a stay and the place of business of the plaintiff was closed from April 13, 1918, to August 2, 1918. He sustained a loss. It is the contention of the plaintiff that his profits were too uncertain for judicial ascertainment. He was making profits before the interruption of his business; he made profits afterwards. He had conducted his business in the same place for some years. It is the settled doctrine of this court that losses of profits suffered through the interruption of an established business may be recovered. Goebel v. Hough, 26 Minn. 252, 2 N. W. 847; Mississippi & R. R. Boom Co. v. Prince, 34 Minn. 71, 24 N. W. 344; Emerson v. Pacific Coast & Norway Packing Co. 96 Minn. 1, 104 N. W. 573. Loss being shown, an award of damages will not be denied merely because of the difficulty of ascertaining them, though of course the amount of the damages must be established by fair proof and not left to conjecture. There must be proof of a loss measurable by a fixed sum of money. The evidence before us justifies an award of damages in some amount.

The verdict was for $2,000. The interruption of the business of the plaintiff was for a few days over 3^- months. He offered evidence as to his net profits for January, February and March preceding the time of the closing, and for August, September and October following. For January he claims they were $246.86; for February $234.03; and for March $439.31. For August, when his business was resumed, they were $668.87; ior September $634.10; and for October $1,019.25. For tlie three months prior to the closing of the business the average was a trille more than $300. For the three months succeeding the average was $775. His books of account had been burned. He had a memorandum book which he claimed showed his daily receipts. He figured the profits which should come from such receipts and thus estimated his so called net profits, first deducting the overhead and expenses. The net profit per month claimed for the six months was substantially $540 and the jury awarded damages substantially on that basis. There was no evidence of the cost of the stock. There were no inventories. The plaintiff was unable to- state how- much capital was invested. He estimated it loosely at $5,000 or $6,000 or $7,000. His personal earning power was not great. When his business was interrupted he worked as a plumber at a small wage, and when lus business was resumed he continued work as a plumber, working evenings in the saloon.

The amount of damages, reached in the manner indicated, is so unsatisfactory that a verdict of so large a sum cannot be sustained.. It is for the plaintiff to prove his loss. If he is unable to prove the full amount of it, the misfortune is his. The verdict must be based on actual facts proved and not upon conjecture.

In view of a new trial it is proper to say that evidence was competent tending to show the conditions in Rochester, during the material period in 1918, reasonably affecting the plaintiff’s business. The court might have been more liberal in its rulings on evidence of the character mentioned. On the other hand, much of the testimony offered by the defendants, to the exclusion of which exception is taken, was clearly aside ¡from the issue of damages, which, as correctly charged by the trial court, was the only subject of inquiry. It was calculated to influence the jury by suggesting a false issue. The liability of the defendants to respond in damages is determined. The trial court held them liable. We sustain it. There is no room for further controversy. Upon the going down of the remittitur the new trial will be confined to the amount of damages sustained.

Order reversed.  