J. Schlitz Brewing Co. v. McCann

Opinion,

Mr. Justice Williams :

The plaintiff in error admits’ its liability for nominal damages for its breach of contract with McCann, but denies that there was evidence to justify the submission by the court to the jury of the question of damages beyond a nominal sum. As the assignments of error relate to this subject, it is necessary to examine the testimony in order to determine whether the court was guilty of error in this particular or not.

McCann leased a room for the sale of liquors from the plaintiff company with the agreement that he should purchase his beer from the company, and that the company should not permit the sale of liquors in the adjoining store controlled by them and situated between his store and the entrance to the Academy of Music. During most of the last year of his lease liquors were sold openly and regularly in the adjoining store occupied by Mrs. Reineman, a tenant of the Brewing Company. The plaintiff alleged that his business was sensibly diminished by the sales made by Mrs. Reineman, and this action was brought to recover damages for the breach in this particular of the contract between himself and the Brewing Company. He testified that his business during the last fifteen. months of his lease fell below that of the preceding fifteen months by 14,041.85, and that his profits after deducting all expenses would be one half his gross sales. He says that he noticed a material decrease in his sales of liquors after the sale began in the store of Mrs. Reineman. As to the quantity sold by her his testimony is as follows: “ I have seen them deliver kegs of beer there to Mrs. Reineman. Q. More than one keg of beer? A. Yes, sir; I have seen them deliver it there time and again.”

Thos. B. Clark testified as follows: “ Q. You saw beer being sold in there; how do you know it ? A. I drank it there myself. Q. See any other person do it? A. Yes, sir, I did. Q. How often? A. I don’t know how often; it was a common occurrence for people to drink there in the dining-room. Q. Was it frequently? A. Yes, sir; often when I would be up at the show; sometimes I would take a meal there in the house. Q. Were there other persons there from the show doing the same thing? A. Oh, yes, sir; it was handy to go in there, nearer than any other place. Q. Do you know how long that continued — the sale of beer there? A. Over a year, I know.”

Mrs. Reineman was also examined, and testified that she took a license on the first of May, and sold all that year. M. J. Rafferty testified that he was often in Mrs. Reineman’s to drink; went in between acts and after the show, and took beer with other parties. Jacob Harris worked as a waiter for Mrs. Reineman. He testified that he served customers with drinks very frequently: that it was his duty to serve them with drinks, and he did it.

This testimony showed the open and continuous sale of liquors by Mrs. Reineman to all comers; and that many persons went in there to drink because it was nearer to the theatre than McCann’s place. It showed also a steady falling off in the custom of McCann amounting to over $4,000 in the last fifteen months of his lease. While it is true that this testimony does not furnish the data for an exact calculation of the damages sustained by McCann, it is also true that the court would not have been justified in withdrawing it from the jury by an instruction that the plaintiff was entitled only to nominal damages. He had suffered a very considerable loss, as his books clearly showed. The continuous sale of drink in the room between his own and the entrance to tiie theatre afforded one reason and an adequate reason for -the falling off in his own business. The sale was in direct violation of the agreement of the Brewing Company.

We do not see how the court below could have done otherwise than to submit this evidence to the jury with careful instructions as to their duty in the premises. This was done, the court instructing the jury substantially that it was their duty to ascertain as correctly as they could, under the evidence relating to that subject, what damage had been done the plaintiff by reason of the defendant’s breach of the agreement not 'to permit the sale of liquors in the store occupied by Mrs. Reineman.

The errors assigned are not sustained, and the judgment of the court below is affirmed.