Blossom Dairy, Inc. v. Hawthorn-Mellody Farms Dairy, Inc. , 287 N.Y.S.2d 323 ( 1968 )

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within 10 days, stipulate to reduce the verdict to the sum of $7,000, as of the date of the rendition thereof, in which event the judgment is modified accordingly and, as so modified, is affirmed, without costs of this appeal to either party. Memorandum: The plaintiff’s proof on the issue of loss of profits is highly speculative and not based on any underlying data of actual sales of dairy products to the outlets contemplated in the contract between the parties or outlets demonstrated to be analogous. Such proof as was offered by the plaintiff must have been accepted by the jury however to warrant the verdict in its favor in the amount of $21,000. On the evidence presented no verdict would be justified in excess of the amount of the actual sales to the 19 Loblaw outlets as established by the defendant less cost of goods sold and delivery expense. Computed on the basis of the proof offered the net profit, the loss of which should be recoverable by the plaintiff, would be $7,000. No deduction should be made for promotional expense because there is nothing in the contract between the parties which imposed the cost of promotion on the plaintiff and there was testimony that the initial promotion cost was to be borne by the defendant. The defendant is entitled to a new trial on the issue of the amount of damages recoverable by the plaintiff unless the plaintiff stipulates to a reduction of the verdict to $7,000. (Appeal from judgment of Monroe Trial Term in action for breach of contract.) Present — Bastow, J. P., Goldman, Marsh, Witmer and Henry, JJ.