Giles v. O'Toole , 4 Barb. 261 ( 1848 )

By the Court, Gridley, J.

The plaintiff in the court below made a fair bargain for the premises described by the witnesses, for the term of one year, at an annual rent of $100; and relying on the faithful performance of his contract by the defendant, she incurred expenses and made considerable outlays in preparation for the occupation of those premises. After having been kept in suspense by the repeated promises of the defendant for some weeks, she was met at last by a flat refusal on his part to perform his contract, without the slightest justifiable reason for its violation. Under these circumstances, we feel no small regret in being obliged to reverse the judgment of the court below. But we have no alternative. There is no authority for admitting the evidence given by the witnesses Beebe and B. Yeazie. I do not doubt the right of the plaintiff to recover the damages arising from expenses incurred in preparing to remove to, and occupy, the premises in question, together with the difference between the real value of the rent, and the contract price. (See Driggs v. Dwight, 17 Wend. 71; Masterton v. The Mayor, &c. of Brooklyn, 7 Hill, 67.) But the idea of founding a claim to damages on the part of the plaintiff, upon proof of what her profits would be in the millinery business, and of proving those damages by the opinion of witnesses, is sanctioned by no authority; and is adopting a rule which is disapproved and condemned in 17 Wend. 161; 23 Id. 431; 24 Id. 668; and 5 Hill, 603. The opinions of witnesses, as to damage or loss, are not competent evidence, even in cases where the damages claimed are a proper subject of recovery. The facts, and all the facts going to show what the damages would be, should be given in evidence; and the jury must then draw their conclusion from the testimony of the witnesses as to the amount of the damage. But, notwithstanding the plaintiff might be entitled to the value of her bargain, (see 7 Hill, 61, 77,) yet she could not recover for the profits which she might have made, had she occupied the shop. That principle was expressly repudiated in the case of Blanchard v. Ely, (21 Wend. 342.) The case of Brill v. Flagler, (23 Wend. 354,) (though on the question of damages, it went farther than Judge Bronson in that case would admit to be law,) yet did not go far enough to justify the admission of the evidence in this - case. The question was in that case one of value.

The question “ what would Giles’ shop and privileges and use of water have been worth to the plaintiff per year in her business ?” called for an opinion of the witness founded on a great variety of facts; and on the profits she could make in that shop in her business; and it was so understood by the witness; and his answer was given and received under that view of the object of the inquiry. The admission of such testimony was an error for which the judgment must be reversed.

The question as to the validity of the lease itself, under our present statute, is not free from difficulty. We should regret to be obliged to hold this lease void; and should not, unless the language of the present act, upon the settled rules of construction should require it. It is not necessary to decide it now; and we do not.

Judgment reversed.