ARK ] BEARDEN V. MCCRACKEN. 807 • BEARDEN. 'V. MCCRACKEN. Opinion delivered November 9, 1925: DAMAGES — BRIIACH. OF , CONTRACT.—In an action for damages for breaeh of plaintiff's contract , to erect a building to be leaSed to plaintiff for a restaurant, money which plaintiff might have earne•F in other employment' declined by him in reliance upon above contract and expenses incurred by plaintiff ' in moving to, town were too remote to be recoverable for breach of such
808 BEARDEN V. MCCRACKEN: [169 contract; the measure of damages being the loss of profits from the restaurant business, which plaintiff admitted that he could •ot show.• •• Appeal from Marion Circuit Court; J. '111. Shinn, Judge; affirmed. J. H. Black, for appellant. • Elme r Owens, for appellee. SMITH, J: Appellant -filed a complaint in Which he alleged that on the 1st day of February, 1924,' he and the defendant entered into 'a contract whereby the defendant agreed to erect a business building in the town of FlippM, Arkansas, to be used a'aid occupi:ed by the plaintiff as a rpstautant, and • for which plaintiff agreed to pay a monthly rental of $10 for a period of one year. The building was to be adequate for the purpose nathed, and waS to be erected Within ten days froth February 1, 1924. Relying upon the defendant's agreement to ' erect 'the buildingplaintiff declined an offer of employment at $8Q Per'month for h period of a year, and moved his' fanfily and honsehold goods to Flippin, and was ready and willing to rent the building and operate. the restaurant. Defendant failed tc; comply with his agreenient to' ereet the building, whereby 'plaintiff was thrown out .. Of eniploy-Ment from the . 1st da3:, of , February-, 1924, until the 1st day of . JulY, '1924: Plaintiff sued for' the ' time -HMS loSt and $20 as expenses incurred in moving to Flippin. A demurrer to this complaint was sustained, and, plaintiff electing to stand thereon, the cause was disMissed, and from that order is this appeal. Appellant concedes in his brief that he cannot prove any damages flowing from the alleged breach of the contract by way of profits lost from defendant's failure to erect the building; and, unless he is allowed to recover the sum he would have received by accepting the employment which he . declined in order . that he might enter the ie-staurant business, he will be without redress for the breach of the contract. In other words, he concedes thaf the only damages he can preve are theloss of 'the employment he declined and the expense of moving to Flippin.
ARK.] BEARDEN V. MCCRACKEN. 809 . . These damages are . not recoverable under the allegations of the complaint. There is no allegation that the rental value of the building was more than plaintiff agreed to pay, and there is an admission that no loss of profits could be shown. The business had never been established, and. plaintiff concedes that he cannot show that any profits would.have been earned had he cónducted the restaurant business for.the period contemplated. In the case of Black v. Hogsett, 145 Ark. 178,. the facts were.that Black, who owned and operated , a confec;- tionery store and cold-drink stand, .sold the business- to Mrs. Ilegsett, and rented her a soda fountain. Black claimed that Mrs. Hogsett. had failed .to exercise an option to purchase the soda fountain, and he sold it to another party. Mrs. Hogseit alleged a, breach of her contract and redovered a. judgment for damages for the profits lost by being deprived of the use of the fountain. It was contended on the appeal to this court that damages for, the profits were not recoverable, but in sustaining the recovery we said : "The principle . touching the question of profits as an element of damages is well settled. The rule is that, where one party to a contract is prevented from performing the same by .the fault of tbe other party, he is entitled to recover the profits . which the evidence makes it reasonably .certain he would hav,e made, had the other party carried out his- contract., ;The rule that damages which are uncertain or contingent cannot be recovered does not apply to uncertainty as to tbe value of the benefits to be derived from perfohnance, but to uncertainty as to whether ahy benefit would be derived at all. If it, is reasonably certain that profits would have resulted had the contract. been carried out, then the complaining party iiehtitled. to recover (citing cases). Here plaintiff proposed to embark in the restaurant business for-the purpOise, of course, of earning the profits to be derived from the conduct of that business, and defendant was to furnish the buildin g in which that business was to be conducted. The measure of damages for
the breach of such a Contract is the profits loSt. At section 65 of the chapter on DamageS in 8 R. C. L. Page . 505, it is said: "Where the profit t6 he made was the inducement to the 'Contract, sudh profit is the measure of damages. So a recovery may be had for the loss of profits which are the -direct and innnediate • fruits of . the contract itself. Such profits , are not to he regarded as' consequential, reniote, or speculative in charactery but are regarded aS Part and parcel of the contract itself, entering into and constituting a portion nf . its very elements, something stipulated for, and the right to the enjoy, ment of which is just as clear and plain as to the fulfillment of • any other stipulation." . If • it be true,..as 'plaintiff concedes, that, he cannot prove the lesS Of any profits as the result of defendant's breach of the contract, then he has failed to 'state a cause of action, for the amount of . such profits cohstitutes the measure • of his damages. • The money Plaintiff might have earned had he .not 'contracted . to -engage in the' restaurant business; and the exPense he incurred in moving to Flippin, are too . remote to be recoverable as damages for the breach' Of the 'con-trct set out in tho complaint, and the demurrer to• the • complaint wAs properlysustained under the adthissions Contained . in appellant'S brief. The judgment • • of the court beloW therefore affirmed. '
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