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Cuyahoga County Circuit.

The plaintiff being upon the stand was interrogated by his counsel as to his previous connection with the Adams Company in other states. To this objection was made, unless knowledge of this previous employment was brought home to Lewis, the prosecuting witness.

This objection was overruled and properly, we think, because it was the company, not Lewis, which was defendant in the case, and the charge alleged to be false was that Robertson had embezzled from the company, not from Lewis.

The court charged, as requested by the defendant, that the fact that Robertson was bound over to the grand jury by the examining magistrate was prima facie evidence of probable cause for prosecution, but refused to charge that such examination and binding over was conclusive evidence of probable cause.

This ruling was correct according to the holding of the Supreme Court of Ohio, though were the matter one of original impression, we would be much influenced by the argument of counsel upon the subject.

The third paragraph of the syllabus of the case of Ash v. Marlow, 20 Ohio, 119, reads as follows: “Proof that the examining magistrate 'bound the accused over to court,' is not conclusive evidence of 'probable cause.' ” And this statement is borne out by the opinion in the case, which was delivered by Judge Spalding.

We find no error in refusing defendant's fifth and sixth requests to charge, and the court's definition of the meaning of the words prima facie, used in defendant's fourth request to charge, while not very enlightening, did not prejudice the defendant.

Complaint is made that the trial judge submitted to the jury the question of allowing punitive damages against the defendant. It is claimed that this was wrong, because the defendant was a corporation and could not be guilty of actual malice and that none in fact was shown. The charge upon the subject was correct, and as actual malice as well as imputed malice may be proved from circumstances indicating it, we are unable to say that the trial judge erred in submitting the question to the jury. The fact that the defendant was a corporation did not exempt

Adams v. Robertson,

it from liability to punitive damages. The rulings in Ohio are uniform upon this subject.

Finally upon the weight of the evidence, both as to all the evidence on the subject of probable cause and that part of it which referred particularly to the issue of advice of counsel, while the jury might well have found the other way, we can not say that their verdict is so manifestly against the weight of the evidence that the judgment based upon it should be reversed. The trial judge, as well as the jury, saw the witnesses, and we think he did his whole duty when he reduced the verdict from something over $900 to $400. Doubtless he, as well as the jury, were impressed with the fact that the prosecuting witness did not make a full and candid disclosure of all the facts to his counsel, before the latter advised that Robertson be prosecuted npon a criminal charge.

Finding no error in the record the judgment is affirmed.
Marvin and Henry, JJ., concur.


[Cuyahoga (8th) Circuit Court, November, 1908.]

Marvin, Winch and Henry, JJ.


Speculative Profits Which Might Have Resulted not counter-Claim
Damages in Breach of Contract.
In an action for the balance due on a contract for building green-

houses, the defendants counter-claimed for damages arising
from delay in finishing the greenhouses on time, whereby they
lost one crop of lettuce and the profits therefrom. Held: That
loss of profits in such manner were too speculative to be sub-

mitted to the jury.
[Syllabus by the court. I



Cowdrick brought suit against Searles Brothers on a con. tract for the erection of certain large greenhouses, about 150 feet

35 0. C. C. Vol. 36.

Cuyahoga County Circuit.

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wide and 80 feet long, which he erected for the defendants at a cost of about $45,000. He claimed about $4,500 due him under the terms of the contract, being 10 per cent. upon the cost of the buildings. The defendants counter-claimed for poor and defective work and also for damages arising from delay in finishing the greenhouses on time, whereby they lost one crop of lettuce and the profits therefrom. Their answer alleges that the plaintiff knew the use the buildings were to be put to and the number and kind of crops that were to be raised therein and made his contract to have the greenhouses completed by October 1, 1906, in contemplation of the use to which the property was to be put.

Evidence was introduced by the defendants tending to establish the allegations of their answer, and as establishing the amount of damages arising from delay in completing the work the court permitted the defendants to introduce evidence as to the value of the crops of lettuce raised in the greenhouses during the season of 1906 and 1907, after they took possession of the buildings and the profits they would have realized from the crop of lettuce they lost.

The court also charged the jury that the defendants might have damages for delay in completing the work, if the jury should find them entitled to such damages, “which would be the proper allowance for one crop of lettuce.”

We think that in admitting evidence as to the profits from a crop of lettuce and charging with relation thereto, as he did, the trial judge erred.

The general rule that loss of profits should be excluded in estimating damages for breach of a contract, is well known. It is based upon the uncertainty arising from contingencies wholly conjectural which affect all business, and which can hardly be apprehended by both parties when the contract is made.

While it is urged in this case that lettuce growing in hot houses has been reduced to an exact science, so that you can tell just how many pounds of lettuce can be grown in a given time in houses of a given area, the personal equation must not be overlooked. Some men have more knowledge and skill than others; hired help grow careless; capital is sometimes impaired

Cowdrick V. Searles.

by outside influence. Above all, the market can not be controlled. We see no reason for excepting the lettuce business from this general rule, and find sufficient authority for our conclusion in the adjudicated cases in Ohio.

The case of Cincinnati v. Evans, 5 Ohio St., 594, involved the business of a merchant tailor. Judge Ranney delivered the opinion of the court, and part of the syllabus of the case reads as follows:

"In an action of trespass for an injury to a building oc cupied by the plaintiff as a store, resulting in an interruption of his business, he may recover, in addition to the damages done to the building, such further sum as will compensate him for the loss of its enjoyment while such interruption continued.

“For this purpose, it is competent to prove the nature and extent of the business, the necessity of using the building for its prosecution, and the value of such use to him during the period of interruption.

“But in the absence of fraud, or malice, or other circumstances justifying the recovery of exemplary damages, the amount of profits which might have been realized by employing his personal services and capital in the prosecution of his business in the injured building during such interruption can not be recovered.

“In such case, the loss of profits does not furnish a proper rule for estimating the damages; but the loss of the use of the property, and the value of such use to the injured party, is all that can be received."

The syllabus of the case of Rhoades v. Baird, 16 Ohio St., 573, is as follows:

"An action was brought on a contract by which the defendant agreed to make a lease, for the term of ten years, to the plaintiff, of certain lands on which to plant and cultivate a peach orchard. The breach consisting in the failure of the defendant to make the lease, and in his causing the plaintiff within two years from his taking possession, to be evicted from the premises, but plaintiff was permitted to give evidence of the probable profits that might in the future be realized from the

Cuyahoga County Circuit.

orchard, judging by the number of crops and the prices of peaches in the county for the last ten and fifteen years. Held:

(1) The evidence as to the probable future profits was incompetent to be given in chief by the plaintiff, as furnishing a basis for the assessment of damages by the jury, such evidence being uncertain and speculative in its nature and in a great degree conjectural.

(2) To the extent that damage depended on the loss of the use of the property for the term, its market value at the time of the eviction subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value, its value should be ascertained from witnesses whose skill and experience enabled them to testify directly to such value in view of the hazards and chances of the business to which the land was to be devoted."

The case of Champion Ice Manfg. & Cold Storage Co. v. Iron Works Co., 68 Ohio St., 229 (67 N. E. 486), involved the loss of profits in the manufacture of ice, which would seem to be as certain a business as raising lettuce. The syllabus of the case is as follows:

“In an action by the owner of machinery used in a plant in actual operation to recover damages for the breach of a contract to furnish at the time specified an essential part of a disabled machine, the measure of damages is the value of the use of the machine in the business for the time which intervened between the date for delivery and the date of actual delivery, if the circumstances are known to both parties at the time of making the contract."

The same rule was followed in this circuit in the case of Johnson v. Slaymaker, 9 Circ. Dec. 500 (18 R. 104), which involved damages for failure to complete on time the Oak Ridge Sanitarium, at Green Springs, Ohio. Judge King, who delivered the opinion of the court, thus states the rule, in the ninth paragraph of the syllabus of the case:

“The proper measure of damages for failure to complete the building within the time stipulated in the contract is the value of the use of the building during the months its completion was

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