#### B. R. HARRELL v. C. D. BRINKLEY and M. L. BRINKLEY.

(Filed 11 October, 1922.)

1, Contracts — Breach—Damages—Loss of Business — Profits Prevented— Duty of Damaged Party — Rule of Prudent Man.

Where a party to a contract willfully interferes with the other party and wrongfully causes him to quit operation, or prevents him from filling it, which results in loss to his established business and property used in his undertaking, the party so injured may recover in his action such damages as may reasonably be shown as a result of the wrong done him, including profits prevented thereby, after deducting therefrom such amount of the loss as he might have avoided in the exercise of ordinary business prudence.

3. Same — Evidence.

Where a party to a contract may recover for the loss to his established business wrongfully caused by the breach of the other party, evidence of past profits may be shown as an element for the jury to consider in passing upon the issue, with the other facts in evidence.

3. Same — Nonsuit—Trials—Punitive Damages.

The evidence in this case held sufficient to be submitted to the jury upon the question whether the defendants wrongfully prevented the plaintiff from fulfilling his obligation under a contract with him, within the life of the contract, causing loss to his business, etc., and the defendant’s *625position that the loss was caused by the plaintiff’s weakly submitting to the defendant’s acts instead of asserting his rights is untenable. Semble, the plaintiff was entitled to recover punitive damages had he chosen to assert them.

Appeal by plaintiff from Allen, J., at May Term, 1922, of Beetle.

Gillam, & Davenport, Roswell G. Bridgers, and S. Brown Shepherd for plaintiff.

W. H. S. Bwrgwyn and Winston & Matthews for defendants.

Pee Cublam.

This action was brought to recover damages for the alleged breach of a contract for the sale of a sawmill and a lease of land, plaintiff alleging that defendants had wrongfully interfered with his business, and broken it up, and by their illegal conduct had compelled him to abandon the lease, his business and lease being valuable and profitable, plaintiff having paid $1,000 for the mill and lease of land on which it stood. Issues were submitted on the pleadings, and the jury returned the following verdict:

> “1. Did the defendants breach their contract with the plaintiff, and wrongfully interfere with plaintiff, thereby putting an end to the said contract? Answer: ‘Yes.’

> “2. If so, what damage has plaintiff sustained by reason thereof? Answer: '$300.’ ”

Judgment for plaintiff on verdict, and defendants appealed.

The plaintiff claimed that he was to keep the plant on defendants’ land and operate it until the following January — about a year — while defendants alleged that he was to have only a month or two to operate and remove it.

There were several exceptions to evidence, but all untenable. It was competent to show the value of the plant, lease, and business. In other words, it was competent and relevant to show the loss sustained by plaintiff by the alleged wrong of the defendants in breaking up his business and forcing him by their interference to quit the premises. There was a question about the plaintiff’s duty to insure the premises, which they alleged to have been part of the contract, but which was denied by the plaintiff, and the jury evidently found with the latter as to this matter. “The reputation and credit of a man in business is of great value, and is as much within the protection of the law as property or other valuable rights. Where the defendant has maliciously and by his wrongful act destroyed the business, credit,.and reputation of the plaintiff, the law will require him to make good the loss sustained. As a general rule, the loss of profits to a business which has been wrongfully interrupted by another is an element of damages for which a recovery may be had, *626where such profits can be made to appear with reasonable certainty; but the evidence must afford the jury some data from which they can with reasonable certainty determine the loss. Outside of this rule, no certain guide for estimating such damages can be established.” 13 Cyc., p. 57. And again: “Past profits cannot be taken as an exact measure of future profits; but all the various contingencies by which such profits would probably be affected should be taken into consideration by the jury. Where an established business is wrongfully injured, destroyed, or interrupted, the owner of such business can recover damages sustained; but in all such cases it must be made to appear that the business which is claimed to have been interrupted was an established one; that it had been, successfully conducted for such a length of time and had such a trade established that the profits thereof are reasonably ascertainable. Where a new business or enterprise is floated and damages by way of profit are claimed for its interruption or prevention, they will be denied for the reason that such business is an adventure, as distinguished from an established business, and its profits are speculative and remote, existing only in anticipation.” 13 Gyc., pp. 58 and 59. “In many jurisdictions evidence of profits which would probably have been received is admissible, not as the measure of damages, but as affording the best guide or aid to the jury of which the nature of the case admits in the exercise of a proper discretion in estimating the damages; and for like purpose evidence of the actual past profits and receipts is ordinarily admissible, if not too remote from the injury or wrong, complained of.” 13 Cyc., p. 213. The evidence is received, not for the purpose of showing what profits were lost with a view of allowing the plaintiff to recover the amount of them, but as some evidence to be considered by the jury, with other facts and circumstances in the case, in order to estimate the damages suffered by the wrongful acts of the defendants. And it was evidently in this view that his Honor, Judge Allen, admitted the evidence, as the charge of the court tends to show. But his Honor’s instructions as to damages were distinctly favorable to the defendants in another respect, as he charged them carefully and correctly as to plaintiff’s duty to minimize the damages. It is an established principle that when there has been a breach of contract definite and entire, the injured party must do what fair and reasonable business prudence requires to save himself and reduce the damage, or the damage which arises from his own neglect will be considered too remote for recovery. Tillinghast v. Cotton Mills, 143 N. C., 273. As is said in Benjamin on Sales (7 ed.), p. 934: “In every case, the buyer, to enable him to recover the full amount of damages, must have acted throughout as a reasonable man of business and done all in his power to mitigate the loss.” And in Sedgwick on Damages, vol. 1, sec. 201: “The same principle which *627refuses to take into consideration any but tbe direct consequences of an illegal act is applied to limit tbe damages where tbe plaintiff, by using reasonable precautions, could have reduced them.” And again, at sec. 202: “It is frequently said that it is tbe duty of tbe plaintiff to reduce tbe damages as far as possible. It is more correct to say that by consequences which tbe plaintiff, acting as prudent men ordinarily act, can avoid, be is not legally damaged. Such consequences can hardly be tbe correct or natural consequence of tbe defendant’s wrong, since it is at tbe plaintiff’s option to suffer them. They are really excluded from tbe recovery as remote. In this view tbe doctrine would rest on tbe intervention of tbe plaintiff’s will as an independent cause. Ad hoc be is not damaged by tbe defendant’s act, but by bis own negligence or indifference to consequences.” Tbe court in this case charged tbe jury substantially in accordance with and with reference to these principles.

We are unable to agree with tbe defendants that there is no evidence of any actionable breach of contract, or tort, in interfering with.tbe plaintiff’s business, and we are disposed to believe that upon tbe authorities, as we understand, tbe judge might have gone further, and permitted tbe jury, in tbe exercise of their sound discretion, to have assessed puni-, tive or exemplary damages, if plaintiff bad seen fit to ask for such an instruction. Tbe jury have found that plaintiff’s statement of tbe contract was tbe correct one, and that be was entitled, under tbe same, to occupy tbe land until tbe first day of tbe following January. If this be so, there is some evidence indicating that defendants were willfully if not maliciously attempting all tbe time to embarrass and harass tbe plaintiff in bis operations, so as to get rid of him long before his time was up. But tbe plaintiff asked for no such instruction, being contented with compensatory damages, though small and inconsiderable they were, as allowed by tbe jury.

Beading plaintiff’s testimony, as it appears in tbe record, we infer, and tbe jury found, no doubt, that there was some physical interference with plaintiff. One of tbe defendants (0. D. Brinkley) drew bis pistol and ordered logs to be changed so that bis own would have tbe preference of others in tbe sawing, and tbe negro employee obeyed him, and arranged tbe logs as Brinkley ordered him to do, whereas plaintiff testified that Brinkley’s logs bad not been misplaced. Tbe Brinkleys seemed to act as if they bad tbe present right of possession to tbe mill and premises, and attempted to exercise authority over tbe same, as tbe jury might well have inferred from tbe evidence, and especially that of tbe plaintiff. i

Tbe defendants will not be permitted to excuse their interference upon tbe ground that plaintiff should not have yielded to them, or been intimidated by them. This would be taking an undue advantage of their own *628wrong, for they succeeded in accomplishing their purpose by reason of it, and now seek to avoid its consequences by relying on plaintiff’s alleged weakness in being influenced and overcome by it, instead of asserting and defending his own rights under the contract and resisting the defendants’ invasion of them.

The case has been tried with substantial accuracy, and there is no reversible error.

No error.