Barnes v. Berendes

Upon a rehearing of this cause we adhere to the views expressed in the opinion rendered by the Department, on the subject of damages for loss of profits.

It is contended upon the present hearing that, even if it be conceded that the loss of profits between August 29th and September 27, 1898, would have occurred regardless of the obstruction caused by defendant's buildings, still it must be admitted that, when the obstruction is removed, the same cessation of plaintiff's business, and consequent loss of profits, must take place; and so, as the loss must inevitably occur at some time, the plaintiff is entitled to recover it now. To this the answer is, in the first place, that the complaint asks damages for loss of profits between the two specific dates above mentioned, and upon such a pleading judgment could scarcely be given for a loss which is to occur at some future time not mentioned in the pleadings; in the second place, that it is not at all certain that the loss will ever occur — something may happen to prevent it; and, in the third place, that, if the interruption to the business of plaintiff does hereafter occur, it cannot be assumed that the profits at that time will be the same as at the time in 1898, to which all the testimony on that subject relates.

Upon a further consideration of the case, we have reached the conclusion that the judgment can be affirmed as to all damages allowed, except the item of nine hundred dollars for loss of profits. This makes it necessary to consider the other points presented by the record and not disposed of by the previous opinion.

There was no error in refusing to strike out the eighth, ninth, tenth, eleventh, twelfth, and thirteenth paragraphs of the complaint, nor in overruling the demurrer thereto. The paragraphs mentioned set forth in detail the items of damages which the plaintiff claimed, and were properly made a part of the complaint. The same is true of the amended and supplemental complaint. It merely added an additional *Page 35 item of damages, and it was within the discretion of the court to allow it to be filed upon the trial.

An examination of the evidence, as found in the transcript, satisfies us that there is sufficient evidence to support all the findings upon which the balance of the judgment rests. The action of the court in allowing plaintiff to file the affidavits of Barnes and Baker after the hearing and decision of the motion for a new trial, although it may have been irregular, was not injurious to the appellant. Indeed, it appears that the court below did not consider those affidavits, and they should not have had any place in the record.