Goodman v. Dailey

SHAW, J.

Action for damages resulting from a breach of contract. Judgment went for plaintiff and defendant prosecutes this appeal upon the judgment-roll.

As appears from the findings, defendant, who was conduct-a hotel and lodging house in the town of Los Alamos, sold the same together with the good will thereof, to plaintiff and at the same time, in consideration of the purchase by plaintiff, agreed that he would not engage in a like business in said town so long as plaintiff conducted a hotel therein. Notwithstanding this agreement, defendant did, on May 1, 1910, while plaintiff was engaged in said business, violate his agreement by engaging in the hotel business in Los Alamos, as a result of which plaintiff was damaged in the sum of $1,319. In addition to these ultimate facts, which clearly support the judg

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ment, the court made- a further finding as follows: “That prior to the opening of the said hotel by the defendant on May 1, 1910, the plaintiff was making and made a net profit of $242 a month from the hotel and lodging house business so conducted by him in said town of Los Alamos; that since the 1st day of May, 1910, and by reason of the wrongful acts of defendant, the plaintiff’s business has been entirely destroyed, and he has made no profits whatsoever.” It is by reason of this finding, taken in connection with the time of the filing of the complaint and allegations thereof, that appellant claims the judgment should be reversed. Defendant, in violation of his agreement, opened his hotel on May 1, 1910. The complaint, filed June 22, 1910, alleged that by reason of defendant’s wrongful acts plaintiff was damaged in the sum of two thousand dollars. Upon these facts appellant insists that, as plaintiff’s profits prior to May 1st were two hundred and forty-two dollars per month, his right to recover damages was limited to the loss of profits computed upon the basis of two hundred and forty-two dollars per month for the period extending from May 1st to the filing of the complaint on June 22d, which, according to his figures, would be four hundred ,and three dollars; that it is thus apparent that the court in fixing the damage sustained by plaintiff at $1,319 based its action upon the loss of profits computed, not to the commencement of the suit, but to the date of the rendition of judgment, and that, as no supplemental complaint was filed, the damage found was in excess of that alleged in the complaint. The general rule is that a judgment cannot be properly rendered for damage in a sum- greater than that claimed by plaintiff in his complaint.