{
  "id": 2636873,
  "name": "Thomas Podlaski, Appellee, v. Adolph Bender et al., Appellants",
  "name_abbreviation": "Podlaski v. Bender",
  "decision_date": "1909-10-07",
  "docket_number": "Gen. No. 14,600",
  "first_page": "312",
  "last_page": "315",
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      "cite": "150 Ill. App. 312"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "45 Ill. 206",
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  "last_updated": "2023-07-14T20:46:21.164089+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Thomas Podlaski, Appellee, v. Adolph Bender et al., Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Freeman\ndelivered the opinion of the court.\nIt is apparent appellants\u2019 contention that the trial court erred in admitting evidence as to appellee\u2019s estimated profits during the fourteen days and the wages of his employes is well taken. The actual question to which appellants\u2019 objection was overruled was, \u201cCan you state what your profits were per day during the period that you were delayed by this furniture not having been delivered?\u201d and the answer was \u201cEight dollars a day.\u201d Clearly this question as put was entirely irrelevant from every point of view. It appears to have been assumed that the question was intended to ascertain what the witness supposed or believed his profits would have been had the fixtures been in place during that time. Giving it such an interpretation the evidence was still improper. On cross-examination appellee testified that he took in an average of $20 a day in September, 1904, upon which his profit was eight dollars a day after paying all expenses. In Green v. Williams, 45 Ill. 206, 209\u2014an action on a covenant of a lease\u2014it is said that a party \u201cis not entitled to recover profits she might have made by conducting her business on the demised premises. Such damages are too remote, speculative and incapable of ascertainment.\u201d In Chapman v. Kirby, 49 Ill. 211, 218\u2014an action on the case and not on contract\u2014evidence was admitted to show the extent of appellee\u2019s business and profits during the six months previous to the act complained of, and it was held that compensation for such profits as would have been so made could be recovered in that form of action, although the precise extent of the damages could not \u201cbe shown by demonstration,\u201d but could \u201cbe ascertained with a reasonable degree of certainty.\u201d In Benton v. Fay, 64 Ill. 417, 422\u2014a suit to recover damages for non-delivery of a machine\u2014the court said that \u201cno evidence should he received as to probable profits, as they would be purely speculative,\u201d distinguishing the case from Chapman v. Kirby, supra. In Ill. & St. L. R. R. & Coal Co. v. Decker, 3 Ill. App. 135, 140\u2014an action of tort\u2014the profits of a month were adopted by the trial court as a basis for estimating the loss of profits the \u201cappellee would have probably realized from his business if he had been permitted to carry it on to the extent of the lease.\u201d The court said: \u201cA month is adopted as a standard where but one has elapsed. Certainly this could not be adopted as a measure which could with reasonable certainty guide the jury in the calculation of profits,\u201d and that the testimony in regard to profits should not have gone to the jury. And it was held that an instruction which told the jury \u201cthat in assessing damages they could take into consideration such profits as the appellee would have probably realized from his business if he had been permitted to carry it on to the extent of his lease\u201d * * * \u201csent the jury into the fields of conjecture and speculation to determine the amount of damages they should give appellee.\u201d\nWe have referred to the above cases because appellee seems to rely upon them as supporting the judgment. We are of opinion that, as said in Central Coal & Coke Co. v. Hartman, 111 Fed. Eep. 96, 102, \u201cthe basis of this judgment is nothing but the guess of an interested witness,\u201d mere conjecture and affords no substantial evidence justifying a judgment of such amount.\nThe judgment of the Circuit Court will be reversed and the cause remanded.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Freeman"
      }
    ],
    "attorneys": [
      "D\u2019Ancona & Pflaum, for appellants.",
      "Arthur W. McGovney and Chauncey M. Millar, for appellee."
    ],
    "corrections": "",
    "head_matter": "Thomas Podlaski, Appellee, v. Adolph Bender et al., Appellants.\nGen. No. 14,600.\nDamages\u2014what not proof of. An estimate of profits by an interested witness does not constitute such evidence as will support a judgment for damages.\nAssumpsit. Appeal from the Circuit Court of Cook county; the Hon. Tetiman E. Ames, Judge, presiding.\nHeard in this court at the March term, 1908.\nReversed and remanded.\nOpinion filed October 7, 1909.\nStatement by the Court. This is an action in assumpsit brought originally before a justice, from whose judgment an appeal was taken to the Circuit Court of Cook county. In the latter court a jury returned a verdict in favor of the plaintiff for $200, upon which judgment was rendered, from which judgment this appeal is prosecuted.\nAppellee in- 1904 purchased certain saloon fixtures of the defendants, and paid for them. It is claimed, however, that they were delivered in bad condition, that a \u201cbrass arm railing\u201d was missing and that the ice-box was in broken condition with parts wanting. There is evidence in appellee\u2019s behalf to the effect that appellants agreed at the time they sold the goods to put them up in good order in appellee\u2019s store; that no one having appeared to do the work appellee called on appellants and was told a carpenter would be at his place of business for that purpose the next day; that no one came, however, and that appellee again called at appellants\u2019 store and was again promised that the carpenter would be at his saloon the next day; that appellee called on appellants a number of times and was finally told to hire a carpenter himself, and that he obtained one after waiting fourteen days. He testifies that he paid the carpenter $25 and paid over three dollars to replace seven new locks which were missing, and that he did no business during the fourteen days.\nOver appellants\u2019 objection appellee was allowed to state what rent he was paying for the saloon, what wages he paid his barkeeper and porter, and that his profits would have been about eight dollars a day during the period he was \u201cdelayed by this furniture not having been delivered.\u201d He was also permitted to state over objection that he paid $500 for his license.\nAppellants\u2019 evidence is to the effect that there was no agreement as to when the fixtures were to be delivered, that they were all put in good shape before they left appellants\u2019 place of business and were delivered as soon as ready; that appellee was never told to hire a carpenter nor that he would be paid for having the fixtures put up.\nD\u2019Ancona & Pflaum, for appellants.\nArthur W. McGovney and Chauncey M. Millar, for appellee."
  },
  "file_name": "0312-01",
  "first_page_order": 328,
  "last_page_order": 331
}