Opinion
December 20, 1954.
In an action to recover damages for breach of a partnership contract, under which the appellant agreed to permit the use of machinery owned by him, the jury rendered a verdict in favor of respondents. Amended judgment, insofar as appeal is taken, reversed on the law, with costs, and complaint dismissed. If this court were not ordering dismissal of the complaint a new trial would be granted for reasons stated below. The contract is unenforcible because prices for the work are indefinite and to be agreed upon, and no standard or formula is agreed upon for determining such prices. As to prices for the first three months of the contract term and prices thereafter actually agreed upon, it might be held that the contract was enforcible and that the parties made their own construction thereof. But as to subsequent prices the evidence shows that the parties could not reach a practical construction of the contract. The verdict is against the weight of the evidence insofar as it finds that the conduct of the appellant put respondents Florentine Marble Corporation and Park Marble Corp. out of business. Remedies for appellant's interference with the rights of the processing corporation were available, and were to some extent pursued. That corporation ceased to function because of lack of funds and because it was dispossessed by the landlord. There is no proof of any attempt by respondents to mitigate damages. It was against the weight of the evidence to find, if it was so found, that respondents could not get the polishing work done elsewhere. No attempt was made to show the difference between the contract price and other prices of having the work done, nor what the contract price was for the period for which damages are asserted. It was error to charge the jury that the test of breach of the contract under the proof in this case was whether or not the appellant acted as a reasonable man, and error to charge as a matter of law that certain acts by appellant were unreasonable. The test in this case was whether or not the appellant breached the contract in such a way and to such extent as to ruin the processing corporation and make it impossible for the other respondents to get the work done elsewhere and continue in business. It was error to deny the motion to dismiss the complaint of respondent Florentine Marble Corporation, inasmuch as it had no rights under the contract. The evidence that both corporate respondents were damaged by loss of prospective profits, caused by the appellant's conduct, is so speculative as to amount to no evidence. Adel, Acting P.J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.