#### MARY CARY v. TEMPE HARRIS.

(Filed 10 December, 1919.)

1. Contracts— Breach— Loss— Profits Prevented— Damages— Certainty of Admeasurement — Lessor and Lessee.

Upon a breach of lessor’s contract that he will maintain the water supply at a summer resort in the same condition as it was in at the time of the rental, and that his failure to have done so caused the guests to leave, the rule of the admeasurement of damages is that the injured party may recover all the damages, including gains prevented as well as loss sustained, as were fairly within the contemplation of the parties and capable of being ascertained with a reasonable degree of certainty.

2. Contracts — Lessor and Lessee — Water Supply — Resorts—Leaving of Guests — Contemplation of Parties.

The leaving of the guests at a summer resort for failure of the lessor to keep the water supply in proper condition, resulting in the inability of the guests to take baths and their apprehension from the insanitary conditions of toilets, sewers, etc., is a result reasonably within the contemplation of the lessor and lessee at the time of the making of the lease, entitling the lessee to such damages resulting from the lessor’s breach as he may show with a reasonable degree of certainty.

*6253. Contracts — Breach—Lessor and Lessee — Resorts—Guests Leaving — Water . Supply — Damages—Certainty of Admeasurement — Evidence—Questions for Jury — Trials.

Where the lessor of a summer resort has breached his contract to maintain an ample water supply for the leased premises, causing thereby all the guests to leave, evidence is sufficiently certain on the question of the admeasurement of damages which tends to show that during former seasons and to the time of the breach the rooms and dining tables were practically fully occupied, from which a certain profit was realized, and that extra servants were necessary to carry water under the changed conditions, causing an extra expenditure of money, such evidence being the most intelligible that the nature of the case will permit.

Civil actioN, tried before Bay, J., at March Term, 1919, of BuN-oombe, upon these issues:

“1. Is the defendant, Tempe Harris, indebted to the plaintiff on account of rents, as alleged in the complaint ? And if so, in what amount ? Answer: ‘Yes; $776.84, with interest on $478.50 from September 1, 1917, and interest on $298.34 from October 1, 1917.’

“2. Did the plaintiff neglect and fail to comply with the terms of the lease mentioned in the complaint, as alleged in the answer, and if so, was the defendant damaged thereby? Answer: ‘No.’

“3. If so, what damage did the defendant, Tempe Harris, sustain by reason of such failure? Answer: ‘Nothing.’ ”

There is no controversy in regard to the finding of the jury upon the first issue. The court directed the jury to answer the second “No,” and the third issue “Nothing.” The defendant excepted, and from the judgment rendered appealed.

Mark W. Brown for plaintiff.

Martin, Bollins & Wright for defendant. . ;

BeowN, J.

The plaintiff seeks to recover for rents for the Mountain Meadows Inn, a summer resort hotel near Asheville, for the season of 1917. These rents were calculated upon the amount of the gross receipts under the terms of the written contract of lease and are not in dispute. The defendant set up a counterclaim for $5,000 for breach of the contract of lease, claiming that she had been damaged by reason of the loss of profits and loss of business and extra expense caused during the season of 1917, on account of the failure of the plaintiff to comply with the contract of lease and supply the hotel property during the summer of 1917 sufficient water for the use of the guests in the hotel. That the water supply, by reason of the neglect of the plaintiff, failed, and the guests left the hotel in consequence, the business was broken up, and the defendant sustained loss amounting to several thousand dollars.

*626At tbe conclusion of all tbe evidence, tbe Court, being, of opinion tbat tbe defendant was not entitled to recover substantial damages, directed tbe jury to answer tbe second and third issues as above set out. Tbe only point before us is tbe correctness of sucb ruling. Tbe learned judge evidently was of opinion tbat tbe damages sustained by tbe defendant could not be ascertained with sufficient accuracy to warrant tbe submission of tbe issue to tbe jury. Tbe plaintiff claims tbe property under her father, who leased it to tbe defendant. In tbe written lease, tbe lessor contracted to make all necessary outside repairs. Tbe defendant testified tbat she bad leased the premises for five years in 1911, and bad renewed tbe léase in 1916 for five years more; tbat tbe hotel was kept open from IS April to 1 November, and consisted of one main building, two cottages, a garden, etc.; tbat tbe main building contained nineteen bedrooms, bad seventeen baths, and tbat there were in all twenty-one toilets, forty-one bedrooms, including main building and cottages, and eight private baths; tbat she bad complied with tbe terms of tbe lease; tbat when she rented tbe hotel in 1916 it was supplied with water and contained a sewerage system; tbat the water for tbe bathrooms and other purposes was received from mountain springs and piped into a reservoir, and tbat there was a large roof on top of tbe reservoir, built for tbe purpose of catching rain water and draining into tbe reservoir, because tbe springs were not ample to supply tbe property with water; tbe roof over tbe reservoir was there when tbe lease was made; tbat tbe water supply ■was tbe same in 1911, 1912, 1913, and 1916; tbat in tbe fall of 1916 a -windstorm blew tbe shed or roof off tbe reservoir; tbat this roof bad been built flat, inclined towards tbe center from all sides, with an opening in tbe center, and all tbe rain water tbat fell on tbe roof fell into tbe reservoir; tbat it blew off in October, 1916; tbat witness notified plaintiff’s husband, who was her agent; tbat be came to Asheville in November; before coming be wrote for defendant, if it wasn’t necessary to have it attended to at once, to wait until be came to Asheville; tbat when be came to Asheville defendant told him tbe roof was necessary because she ■didn’t have enough water from tbe springs or tbe springs would not' .supply tbe hotel; Mr. Carey then said be wasn’t going to have tbe roof replaced; defendant told him it was necessary, and tbat if be didn’t have it put back tbat they would have trouble; tbe roof was not put back so as to catch tbe water for tbe season of 1917; it was put back only so as to catch a portion of tbe water, and it did not drain into tbe reservoir; tbat prior to this time tbe reservoir and springs bad furnished a reasonably good supply of water for tbe hotel; tbat tbe water gave out on 5 August, 1917, and there wasn’t any water to supply tbe bathrooms and toilets; all tbe bathrooms bad to be cut off; toilets bad to be flushed with water carried to them from springs on tbe mountainside; water bad to *627be carried to all the rooms of the guests; that after the water gave out Mr. Carey had a small pump put in, but that did not remedy the difficulty; that she used the water as carefully as possible; that there was ■an additional small reservoir intended to be used at Hillside Cottage, one of the cottages under the lease; that the water from the small reservoir gave out on 8 August; that at the time the water gave out every room in the place was engaged; there were between 65 and 70 people in the house, with only two vacant rooms, and people were coming in all the time; that it took 14 to 20 servants, and defendant had that number; that when the water gave out the condition was very objectionable; it was unsanitary; the baths and toilets were cut off entirely; no one in the house had a bath; the water for cooking was carried from the springs; that she didn’t have enough water to cook with or wash dishes; at that time the guests were paying $15 a week with one in a room, and from $25 to $50 a week for two in a room; when the water gave out the guests were dissatisfied; many left; that they complained for lack of water; said they couldn’t put up with the inconvenience of not having baths, and were afraid of serious sickness on account of sanitary conditions; that they stood the conditions as long as they could put up with them; that Mr. Carey came to the hotel on 8 August and promised water; he saw the number of people that were in the house; saw the house was full of people, and promised water; the water supply was improved very little; that some of the guests had engaged rooms for the •entire season; that she had at one time between seventy and seventy-five people in the house, and they were reduced on account of the lack of water to ten or twelve people; the condition as to the water continued through the season until the guests had all gone. Witness then gave the names of a large number of guests who left on account of the lack of water.

Witness further testified that the place would have accommodated eighty to eighty-five people, and that August was the best month of the year at Mountain Meadows Inn. That the actual receipts for 17 August were $2,990.69; for September, $1,864.64; for October, $502.71; that according to her estimate the income for the property during August, 1917, but for the scarcity of water would have been $5,538.15, and for September the income would have been between $3,000 and $4,000, and for October between $1,000 and $2,000; that her loss during the summer of 1917 on account of the scarcity of water was between $5,000 and $6,000; that hotel rates had increased 50 per cent over what they were in 1914.

Witness further testified that she paid seventy-odd dollars for extra help for carrying water, and that she suffered some losses on account of the condition of the roads and want of a telephone line to the hotel; that *628the roof over the reservoir was 52 by 78 feet prior to October, 1916, and that she did not know’ until the summer of 1917 that the roof had not been put back as it was before; that she knew there would not be enough water without the use of rainwater, but she did not know that Oarey had not arranged to catch all the rain water; that Mr. Oarey had the work done in February, and was to make the outside repairs.

Witness further testified that in her opinion the value of the lease for the year 1917, if water had been furnished, would have been at least six. thousand dollars, and that as it was she made no money at all, but actually lost money.

There was evidence tending to prove the rainfall during the season of" 1917, and that if the shed, 52 feet by 78 feet, had been constructed as it formerly was so as to let the water falling on it into the reservoir, an-ample supply of water for the season would have been furnished. There was also evidence that Oarey instructed Reed to fix the roof over the reservoir in the cheapest way possible, and to so construct it that the water would pour off on the outside and not go into the reservoir. This-was in February, 1917. There was evidence corroborating the defendant that she told Carey in November, 1916, that the rain water was-necessary. There was evidence that the reservoir was full when the hotel opened for the season of 1917, and that the water gave out entirely by 5 August. There was evidence that there was an abundance of rain during the season of 1917; there was also much other testimony to the-effect that a large number of guests left the hotel in August, 1917, for lack of water, and many other persons refused to take rooms at the-hotel because they had no water for baths and toilets.

We differ with his Honor in the conclusion that substantial damages-may not be recovered by the defendant if the evidence is to be believed.. The rule is, in the admeasurement of damages in a case of this kind,, that the party injured may recover all the damages, including gains-prevented as well as losses sustained, as were fairly within the contemplation of the parties and capable of being ascertained with a reasonable-degree of certainty. Nance v. Tel. Co., 177 N. C., 313; Gardner v. Tel. Co., 171 N. C., 405; Hardware Co. v. Buggy Co., 167 N. C., 423; Wilkerson v. Dunbar, 149 N. C., 20.

In the Nance case, Mr. Justice Wallcer says: “In an action for damages the plaintiff must prove as part of his case both the amount'and cause of his loss. Absolute certainty, however, is not required, but both the cause and the amount of the loss must be shown with reasonable-certainty. Substantial damages may be recovered though plaintiff can only give his loss approximately.” Hale on Damages, sec. 70; Sutherland on Damages, sec. 70.

*629Tbe Nance case is very much in line witb tbe present case. In Sutherland on Damages, 4th Ed., secs. 867 to 870, will be found a full ■discussion of tbe subject now under consideration.

In section 868, a case from New York is discussed, wherein tbe plaintiff was the lessee of a hotel and showed actual receipts of the property for previous years, and daily receipts for some months, and that there was a breach of contract. The following language is quoted with approval : “When it is borne in mind that the plaintiff kept a refectory and boarding-house for the resort of daily visitors for their various meals, and of transit persons for their lodging, it is difficult to suggest any other mode of ascertaining the effect upon the plaintiff’s business. To say that he must prove what persons were prevented from visiting his house and what meals they would have taken and paid for is to suggest a mode of proof obviously impracticable, and if it was done it would still leave the same inquiry, ‘What would have been the profit of the meals they took and paid for V ”

Plaintiff was allowed to recover upon a similar contract in the case of Union Pacific R. R. Co. v. Travelers’ Insurance Co., 83 Fed., 676.

In Wilkinson v. Dunbar, supra, it is said by Mr. Justice Hoke: "“When prospective damages are allowed to the injured party as arising under a breach of contract, they must be such as are in reasonable contemplation of the parties and capable of being ascertained with a reasonable degree of certainty; and while profits prevented are frequently held to be excluded, they are those expected by reason of collateral engagements, or dependent to a great extent on the uncertainty of a trade and fluctuations of the market.”

It follows from all these authorities that the profits lost by the lessee ■of a hotel, whether those which were the immediate fruits of the business or those which were remote, if the contract was made with reference to them, are recoverable if they can be ascertained with reasonable certainty. That the profits to be made out of a lease of a hotel in conducting the business thereof are within the contemplation of the parties to the lease is a proposition too plain for discussion. An injury to the hotel business consists, mainly of a loss of profits, and, therefore, it has been held that where a lessee conducts the business himself, it is competent for him to testify, as the defendant did in this case, to the value of the business based upon the capacity of the hotel, the average number •of guests, the rates charged, and the average daily profits. Allison v. Chandler, 11 Mich., 542. The law does not require impossibilities, and therefore does not require a higher degree of certainty than the nature of the ease admits.

As said by Mr. Sutherland, sec. 870: “Juries are allowed to act upon probable and inferential as well as direct and positive proofs, and when *630from tbe nature of tbe case tbe amount of damages cannot be estimated witb certainty, or only a part of tbem can be so estimated, we can see no objection to placing before tbe jury all tbe facts and circumstances of tbe case baying any tendency to sbow damages or tbeir probable amount so as to enable tbem to make tbe most intelligible and probable estimate wbicb tbe nature of tbe case will permit.”

As Mr. Sutherland again says, see. 70: “If a regular and established business is wrongfully interrupted, the damage thereto can be shown by proving tbe usual profits for a reasonable time anterior to tbe wrong complained of. . . . There is no good reason for requiring any higher degree of certainty in respect to tbe amount of damages than in respect to any other branch of a cause.”

If tbe evidence of tbe defendant is to be believed, there was a breach of tbe contract of lease upon tbe part of tbe plaintiff, and according to-her testimony tbe jury would have been warranted in answering tbe second issue “Yes.” Tbe testimony of tbe defendant also furnished reasonable data from wbicb tbe jury could have approximated tbe damages she sustained by reason of such breach during tbe season of 1917„ witb reasonable certainty.

New trial.