Shepard v. Milwaukee Gas Light Co. , 15 Wis. 318 ( 1862 )

By the Court,

Paine, J.

It has been already decided by this court, that tbe Gas Company could not require tbe plaintiff to sign an agreement to abide by tbe rules and regulations which bad been adopted at tbe time tbe plaintiff’s application for gas was made.

It was at tbe same time held, that tbe Company might reasonably require its customers to sign written applications stating tbe number of burners &c. On tbe last trial it was made to appear, that tbe written agreement which tbe plaintiff was requested to sign, which contained a promise to abide by tbe rules and regulations, contained also tbe application for gas, stating tbe number of burners.

It is contended that as the company might require the plaintiff to make this application, and as be refused to sign tbe agreement which contained it, therefore be was himself in fault, in refusing to comply with a reasonable regulation, and bis action could not be sustained. This conclusion would undoubtedly be correct, if tbe request to sign tbe application bad been presented in such a form that tbe plaintiff could have complied with it without at tbe same time signing an agreement which be was not bound to sign. But tbe agreement which be was required to sign as a condition precedent to having gas, consisted not only of tbe mere application, which was unobj ectionable, but also of an agreement to take it upon tbe terms and conditions mentioned in tbe rules and regulations. This be was not bound ío do. And therefore, as tbe only application which be was ever asked to sign, was so connected with an objectionable agreement that be could not sign one without being bound by both, of course he was not obliged to sign it; and the company hav-presented it in that shape, must be held, by resting upon that, to have waived every other.

And it seems to us very evident that this point is entirely an afterthought, devised by the ingenuity of the counsel, and that it was not at all in the minds of the parties at the time the application was made. The company did not insist on the plaintiff’s signing, merely to have a written application stating the number of burners. Nor did the plaintiff refuse because he was unwilling to sign such an application. But the company insisted in order to compel the plaintiff to agree to the rules and regulations, and the plaintiff refused in order to avoid that. And it would be very strange if the company could escape the consequences of its wrongful requirement, by merely connecting with the objectionable provisions, something unobjectionable, but so connected with the other that a signature to one bound the party by both.

But it is said that the court erred in the rule of damages. It told the jury that “the plaintiff, if entitled to a verdict, should have such damages as will compensate him for the pecuniary loss, and also for the inconvenience and annoyance experienced by him in Ms mercantile business, arising out of the defendant's refusal to furnish gas to the plaintiff."

It is claimed that this instruction gave the plaintiff punitive or vindictive damages. But we think this is clearly not so. The “ inconvenience and annoyance ” occasioned directly by the wrongful act or refusal of the defendant, are always legitimate items in estimating the damages in actions of this kind. Yindictive damages are those which are given over and above all this, as a punishment for the other party. In actions for a nuisance, the damage usually consists almost entirely in inconvenience and annoyance. So also in many other actions of tort. In Ives vs. Humphrey, 1 E. D. Smith, 201, the court says: “ Even if the plaintiff be confined strictly to compensation for the injury sustained by him, the jury are to determine the extent of the injury and the equivalent damages, in view of all the circumstances of injury, insult, invasion of the privacy and interference with the comfort of the plaintiff and-his family." And again: “ For an involuntary trespass, or a trespass committed under bonest mistake, the damages should be confined to compensation for the injury sustained by the plaintiff, and in estimating the amount of such damages, all of the particulars wherein the plaintiff is aggrieved may be considered, whether of pecuniary loss, or pain or insult, or inconvenience.”

So in an action for refusing to let a lessee into possession, the plaintiff gave evidence of injury to his wife’s business as a milliner, without having averred it. specially; but the court held it admissible under the general allegation of damage, as going to show that “ the plaintiff had sustained inconvenience.” Ward vs. Smith, 11 Price, 19. But it seems unnecessary to pursue this point, as it is really very plain that an instruction that the jury might consider the inconvenience and annoyance occasioned to the plaintiff by the wrong of the defendant, is not equivalent to an instruction that they might allow vindictive damages..

But the appellant further objects to the admission of evidence to show that it would injure the plaintiff’s business to be deprived of gas when other stores were lighted with it. It is said that the object of this was to show that the want of gas would tend to prevent customers from coming to the store, and consequently that the plaintiff lost the profits that he otherwise might have made. And the appellant then relies on a class of authorities in which, both in actions of tort and for breaches of _ contract, it has often been held that anticipated profits could not be recovered as damages. Upon this subject the authorities are full of confusion and uncertainty, and it is very generally conceded that no definite or satisfactory rule can be extracted from them. Sedgwick on Dam., p. 112; City of Cincinnati vs. Evans, 5 Ohio St., 603. But I think it can by no means be said to be established, that the profits of a business or of a contract may never be considered in estimating the damages, where one party has been deprived of those profits by the wrong or default of another. On the contrary, I think the opposite conclusion is sustained, and that the tendency of the recent cases is to allow such profits to be recovered as damages, where tbeir amount can be shown with reasonable certainty.

The question often arises in cases of breach of contract, and there are many authorities which hold that the profits that might have accrued to the injured party on the contract itself, which was broken, may be recovered as damages. Railroad Company vs. Howard, 13 How. (U. S.), 344; Masterton vs. The Mayor &c., of Brooklyn, 7 Hill, 61; Fox vs. Harding, 7 Cush., 522. These cases confine the profits to be recovered, to such as might have been made on the contract, the breach of which is complained of.

Yet it is very evident that even such profits cannot be arrived at with any absolute certainty, as they frequently depend upon fluctuations in the market, and changes in the price of labor and materials, which may take place while the contract is being performed. Yet inasmuch as they may be estimated with reasonable certainty, and their loss is the direct result of the wrong complained of, they are allowed to be recovered. And in the case of Waters vs. Powers, 20 Eng. Law & Eq. 410, the rule was extended so as to include profits on a collateral contract which the plaintiffs had entered into with other parties. The court said, “If reasonable evidence is given that the amount of profit would have been made as claimed, the damages may be asked accordingly.”

In Hadley vs. Baxendale, 26 Eng. Law & Eq., 398, the defendant, who was a common carrier, had neglected to deliver a broken shaft of a mill, which was to serve as a model for the making of a new one, by reason of which the new one was delayed and the mill kept idle for want of it. It appeared that the facts showing that such would be the result of his failure, were not communicated to him, and on that ground the court held that the plaintiffs could not recover the profits which the mill might have made during the delay. But it was held that if those facts had been communicated to him, he would have been liable for the profits. In Fletcher vs. Tayleur, 33 Eng. Law & Eq., 187, the action was brought for damages on a failure to complete a vessel at the time contracted for. The vessel was designed for the Aus-rule, “ tbat tbe amount wbicb would bare been received if tbe contract bad been kept, is tbe measure of damages if tbe contract bad been broken;” and be then adds, “ I cannot say tbat tbe damages in this case bave been calculated on a false principle.” traban trade, and evidence was given to show what would bave been her probable earnings during tbe time of tbe delay; and the jury gave a verdict wbicb evidently included tbe profits tbat might bave been made during tbat period. Tbe court refused to disturb tbe verdict, and though it is stated tbat no question upon tbat point bad been made at tbe trial, yet tbe decision does not seem to rest upon that ground. Jervis, C. J., suggests tbat there should be some general rule, and tbat tbe damages might be “ estimated according to tbe average per centage of mercantile profits,” and adds tbat such is, “to some extent, tbe result of Hadley vs. Baxendale.” Crowder, J, quotes Alder vs. Heighley, 16 M. & W., 117, in wbicb, be says, tbe court lay it down as a clear

I tbink tbe principle fairly to be derived from these cases is, tbat tbe profits lost as a direct result of a breach of contract, may be recovered as damages, where they are not 'so conjectural and remote as to be incapable of ascertainment with reasonable certainty. And their reasoning seems entirely applicable to this case. Tbe defendant here knew tbat if it refused gas to tbe plaintiff, be could get it nowhere else. It stood, therefore, in tbe same position tbat tbe carrier would bave been in, in Hadley vs. Baxendale, if be bad known tbe plaintiff could bave no shaft to bis mill until tbe model was delivered. Tbe defendant, therefore, must be presumed to bave contemplated whatever damage would naturally arise from its refusal to furnish tbe plaintiff with gas. Its obligation to furnish it was, according to tbe decisions of this court, as clear and imperative as though it bad expressly contracted to do it. And it seems to me tbat tbe profits of an established business, are quite as capable of being ascertained with reasonable certainty, as tbe profits to arise from a single contract or adventure. There is, in tbe case of such business, tbe experience of tbe past to serve as a test. And tbe rule suggested by Jervis, C. J., in Fletcher vs. Tayleur, tbat tbe damages should be estimated “ according to tbe average per centage of mercantile profits,” could readily be applied, aü(j W011ld seem just and reasonable. The cases already referred to, seem to me, therefore, applicable here, and to sus- . ’ , . ' , ’ ri „ . , . , tam. the conclusion that the profits of a business, which are necessarily lost by the wrong or default of another, may, under some circumstances and with proper restrictions, be considered in estimating the damages for the injury.

The following cases also -sustain the same conclusion: Thompson vs. Jackson et al., 14 B. Mon., 114; Davis vs. Talcott, 14 Barb. (S. C.), 611; Sewall’s Falls Bridge vs. Fisk et al., 3 Fost., N. H., 171; Wade vs. Leroy et al., 20 How., 34. It seems to me also to derive very clear support from the following considerations. It is well established that an action exists in many cases for an injury to a person’s trade. Actions for slandering one in his trade or profession are of this character; and the damages are based upon the assumption that such slander injures the party’s business by diminishing it. But how does that damage him? Clearly, only by depriving him of the profits he would have made by the business, of which he has been wrongfully deprived. So, also, of private actions for a nuisance, the only injury being a diminution of the plaintiff's business. The establishment of a fair or market or ferry near the plaintiff’s, so as to withdraw his custom and diminish his profits, are illustrations of this class. 3 Wendell’s Black., 218; Aikin vs. Western R. R. Co., 20 N. Y., 370; Dewint vs. Wiltse, 9 Wend., 325. In the latter case the plaintiff was allowed to recover the rent of a tavern owned by him, and which became tenantless by reason of the defendant’s breach of his covenant to keep a ferry, running to the tavern, supplied with boats for the accommodation of travelers. In Wilkes vs. Market Co., 29 E. C, L., 336, the plaintiff, who was a bookseller, was held entitled to recover for damage to his business, occasioned by the defendant’s leaving certain obstructions in the street on which his store was located, for an unreasonable length of time. The very ground of complaint was, that the obstructions diminished his custom, and consequently deprived him of his profits. So also those actions where bankers are held responsible for damages for not paying tbeir customers’ checks, they having funds on hand, are based on the same idea, such refusal tends to injure the plaintiffs’" trade. Thus in Rolin vs. Steward, 25 Eng. Law & Eq., 341, the defendant, a banker, having funds of the plaintiff, had refused payment of three checks amounting to £111, 13s. There was no proof of special damage, but the jury returned a verdict of £500. The court refused to disturb it, on the ground that the refusal had a general tendency to injure the plaintiffs’ trade, and that the jury might properly consider that. The principle of that action seems to me very similar to that upon which this should be sustained. Now all these actions seem to me to be based upon no other idea than that the plaintiff had suffered injury by having the profits of his business diminished. And if, in all these, an injury to the profits is capable of being ascertained with sufficient certainty to be made the ground of damages, I can see no reason why it cannot be done in actions for a breach of contract, or a wrongful refusal like that now under consideration. For they may be as certainly ascertained in one class of actions as in another.

There are two cases that I have found, which, though they may seem, to some extent, opposed to the conclusions I have stated, I still think really sustain them. In Marquart vs. La Farge, 5 Duer, 559, the defendant had wrongfully broken up the plaintiff’s business in a restaurant. The plaintiff gave evidence of the extent of his business, and that “ one half the-receipts were profits.” The court held the evidence admissible. It said: “Now it was certainly competent to prove, in some way, the nature and extent of the injury, and the value of the business, was a proper subject of estimate for the jury.” They then add: “-It may be that a calculation of possible or probable profits, in.view of the ordinary uncertainties of business, would not be allowable.” If by this the court meant to exclude all consideration of the profits that would have resulted to the plaintiff according to the ordinary course of his business, it seems to me repugnant to what had previously been expressly allowed. They had allowed evidence of what the profits had been; they had said that tbe jury “must estimate tbe value of tbe business,” in arriving at tbe amount of damages. Now I think it is impossible £or aiiy or jU(jge |¡0 this, ^ritbout considering tbe profits of that business. Tbe same remarks seem to me applicable to tbe case of Cincinnati vs. Evans, 5 Ohio St., 594. There tbe defendant bad torn down tbe front part of tbe shop of tbe plaintiff, who was a merchant tailor, thus interrupting bis business. Tbe court held that “ tbe rentable value of tbe building would not be a compensationthat tbe defendants “ must have contemplated a further injury as tbe necessary consequence of their acts, and for that further injury be is entitled to recover.” They then say that tbe “ supposed or contemplated profits of tbe business” during tbe period of interruption, could not be considered as a measure of tbe injury, and proceed as follows: “ Upon tbe whole, we are of opinion that in addition to tbe damages done to tbe building, be was entitled to recover such further sum as would compensate him for the loss of its enjoyment while the interruption continued.” And strangely, as it seems to me, they then add that “ tbe profits which might have been realized, by employing bis personal services and capital in tbe prosecution of bis business in tbe injured building during tbe period for which be was deprived of its use, cannot be recovered.” If that is so, why allow him to show “ the nature and extent of bis business,” or “ tbe necessity of using tbe building for its prosecution ?” These matters seem entirely immaterial, except with a view of showing tbe amount of damage from tbe interruption of that business. They are material to this purpose only so far as they tend to show bow much tbe plaintiff lost by tbe interruption. And it is obvious to every mind that be lost tbe profits be would have made if tbe interruption bad not occurred. How could be prove tbe “ value of tbe business to him,” without showing tbe amount of profits be would have realized according to its ordinary course ? How could that value be estimated without including an estimate of tbe profits ? If there is any process by which it may be done, I confess my inability to perceive it; and it seems to me, therefore, that when tbe court grants tbe former and then undertakes to reserve tbe latter, the reservation is repugnant to the grant, and void. It seems to get at the same result by simply calling it by other name. But whether or not my criticism on these cases is well founded, I may here remark that they both sustain the admissibility of all the evidence which was offered by the plaintiff in this case. He only showed the nature and extent of his business, and the tendency of the defendant’s wrongful refusal, to injure that business. He did not offer to calculate the amount of profits of which he was deprived, but left the jury to judge from such facts as both of these cases held might be shown, what was the extent of the injury ; though I candidly confess I cannot see why these facts are held admissible at all, except as a means of showing the plaintiff’s damage in the loss of the profits of his business. Perhaps many of the cases which seem to sustain the general rule, that profits cannot be recovered, may be explained upon the principle that the plaintiff might, by reasonable diligence, have avoided the loss, or else upon the principle which Hadley vs. Baxendale decided, that the loss grew out of some unusual and special circumstances, which were not known to the defendant. But subject to these qualifications, I think the authorities fairly sustain the conclusion, that the unavoidable loss of profits which the party committing the injury must be presumed to have contemplated, may in actions of this kind, be considered in estimating the damages.

I think, therefore, there was no error in admitting the evidence objected to.

The only other question is, whether there was error in ruling that the plaintiff was entitled to recover damages down to the time of commencing the suit. We think there was none. It is true, he had not tendered pay for all that time. But it was not for want of compliance with the terms of the Company as to pay, that he was refused the gas. Their rules did not require pay in advance, but they reserved the right to demand it, or security, when they deemed it necessary. They never demanded either of the plaintiff. But they refused to let him have gas for refusing to comply with other terms which they had no right to impose, and told him he could not have it until he complied with those terms. Having placed themselves upon tbat position, tbe plaintiff bad a right to assume tbat they stood there, until notified to the contrary. Their refusal was a continual refusal, until retracted. And we think it would be unreasonable to say tbat tbe plaintiff was bound to repeat bis demand after such a refusal, in order to entitle him to damages. His first demand was a sufficient indication to tbe Company tbat be was ready to comply with their terms as far as payment was concerned, and if they afterwards changed their minds, they should have notified tbe plaintiff accordingly.

Tbe judgment is affirmed, with costs.