W. E. HICKS, PLAINTIFF AND APPELLANT, VS. MANILA HOTEL COMPANY, DEFENDANT AND APPELLEE.

This is an appeal from a judgment of the Court of First Instance of the city
of Manila dismissing upon the merits after trial plaintiff’s action to recover
damages alleged to have been sustained through defendant’s breach of a
stipulation to renew for a second year a written contract for the exclusive
five-passenger automobile privilege of the defendant hotel.

It seems that, on the 9th of November 1912, plaintiff and defendant entered
into a written contract by which the defendant ceded to the plaintiff the
exclusive right to serve its patrons with five-passenger automobiles for a
period of one year from the date thereof, with certain rights with respect to a
renewal of the contract for a second year.

Plaintiff entered on the performance of his duties under the contract and
successfully discharged them during the first year. When about half of the first
year had expired, and about June, 1913, the defendant company, disregarding, as
plaintiff claims, the terms of its agreement with him, invited proposals from
various garages for its five-passenger automobile privilege for the ensuing
year, that is, from November, 1913, to November, 1914, the time covered by the
second year of plaintiff’s contract. Under these proposals various garages
competed for the privilege, including that of George E. Brown, and, after
certain negotiations with the latter, his offer was accepted by the defendant
company and a written contract made with him for the exclusive right to the
five-passenger automobile privilege during the year beginning November 9,1913.
This contract with Brown was executed some months prior to the termination of
the first year of plaintiff’s contract.

Upon the termination of the first year of the contract the defendant company
having, as we have seen, already entered into a contract with Brown relative to
the matter included in plaintiff’s contract for the period representing the
second year thereof, refused, over plaintiff’s objections and protests, to
permit him to continue for the second year, deprived him of the privilege which
the contract conferred, and evicted him from the hotel where, under the terms of
the contract, he was entitled to have and did have an office.

This action
was brought to recover damages for breach of contract.

The contract between the parties hereto contains a clause which forms the
subject matter of this litigation. It is as follows: “This agreement to remain
in effect for a period of one year from date, with preference over others of
renewing for a further period of one year.”

There are two questions involved.

The first one is whether that portion of the agreement just quoted gave the
plaintiff an enforceable right to renew the contract for a second year.

The second is whether the plaintiff, even though he had that right, did, by
his acts and conduct, waive that right and thereby exempt the defendant from the
liability, if any, which it incurred by its eviction of plaintiff and the
refusal” to permit him to enjoy the privilege for the second year.

As to the first question:

Counsel for the defendant company contend that the clause quoted gave the
appellant no right to renew the contract sued upon for the second year. They
assert that it did nothing more than give to plaintiff the right to compete with
others in obtaining defendant’s five-passenger automobile privilege for said
second year, with preference to him to be engaged over his competitors in case
his offer was equally profitable to the defendant hotel. They further contend
that the competition into which he was thus thrust did not relate exclusively to
the contract in which the clause is found or to the terms and conditions of that
contract ; but that it referred to any contract which the defendant hotel
offered to make or could make with any person, whatever its terms and conditions
might be.

On the other hand, plaintiff claims that the contract gave him a right to
renew and that the stipulation for a renewal did not contemplate other or
different terms than those embraced in the contract to be renewed and that by
entering into the Brown contract and evicting the plaintiff from the premises
the defendant violated its’ obligation to grant the plaintiff a renewal of his
contract for a second year.

We are constrained to agree with plaintiff’s contention.

It must be remembered that the contract relating to the five-passenger
automobile privilege was a complete con tract, whereby the plaintiff was.
required to furnish a certain number of five-passenger automobiles and to attend
faithfully and fully to the requirements of the patrons of the hotel, for which
he was to receive a stipulated compensation. The construction placed upon the
clause by defendant deprives the plaintiff of any right or interest in that
particular contract or any renewal thereof and relegates him to a scramble to
obtain not the same contract for a second year but an entirely different
contract for one or more years. By this contention the clause in question
is torn from the agreement in which it was placed by the parties and made to do
service not with relation to the contract in which it is found but with relation
to another contract different in every conceivable term.

It would seem, other things being equal, that a clause in a contract should
be construed with reference to the contract in which it is found, and if it
accords a privilege to one party or the other, it should be in connection with
the contract to which it refers. The contract in which the clause is found was,
generally speaking, one whereby the plaintiff was to furnish a certain number of
five-passenger automobiles, attend faithfully to the needs of the patrons of the
hotel, to continue his service for a period of one year and to receive as
compensation all the proceeds of the business less, say, 10 per cent to be paid
to the defendant for the privilege. This, with other details, is the contract in
which the clause is found and to which it refers. That clause was, in our
judgment, not intended to do duty with reference to a contract, such as the
hotel company made with Brown, already referred to, by which the latter was to
have the five-passenger automobile privilege of the hotel, as well as all other
automobile and carriage privileges, upon the payment to the hotel of a flat sum
of, say, P10,000 annually. According to the defendant, the clause in question
simply concedes to plaintiff the privilege over Brown, if he desired it, of
taking and accepting the contract which the hotel made with Brown. In other
words, defendant here contends, and the court below found, that the clause in
question did not confer a certain, enforceable right upon the plaintiff with
reference to the contract in which the clause was found, but simply gave him the
preference over others to make with the defendant company any contract which the
latter might be able to make with any other person. As stated in the brief of
counsel in the trial court the stipulation for a renewal conferred upon the
plaintiff only the right to make “as satisfactory an offer as any other person,”
and that since plaintiff failed to make as favorable an offer as did Mr. Brown,
that is, since plaintiff would-do no more than propose a renewal of the old
contract, the hotel company had a right to contract with Brown,

Manifestly the clause “with preference over others of renewing for a further
period of one year” was inserted for a purpose. It was intended to confer a
right either on the plaintiff or upon the defendant. That it was not intended to
confer a right on the defendant is conceded. It must have been intended,
therefore, to do something favorable to the plaintiff. What was it?

While it is conceded that the clause quoted confers no right on the defendant
company, the latter, nevertheless, contends that it conferred no right on the
plaintiff. Even though the clause, as claimed by defendant, gave the plaintiff a
preference over others with respect to some other contract, a contract which
might be entirely distasteful to the plaintiff in, every term and which, with
his limited resources, he would be unable to accept at all, such preference
would not be a substantial right. In fact, it would be a right the effect of
which would be not only problematical but as likely to be injurious as
beneficial. If the clause conferred no right upon either the plaintiff or the
defendant, then it has no meaning to which the law attaches importance. That
this was intended we cannot believe. We are confident that it was placed in the
contract for the purpose of conferring upon the plaintiff an enforceable right
and one which related to the very contract in which it was placed. This clause
sets out with sufficient clearness an agreement for a renewal of the contract
for a second year. It cannot have any other significance in language. The
grammatical construction of the stipulation precludes the legal construction
given it by the court below. The clause “with preference over others of renewing
for a further period of one year” does not modify anything preceding it. It must
be construed as a separate and independent sentence whose subject is suppressed.
Should we supply the words omitted by the draftsman, apparently with a view to
brevity, the stipulation would be plain; it would clearly appear that it was
intended to be a stipulation in favor of the plaintiff.

Nor is the contention made by the defendant relative to the phrase “with
preference over others” sufficient to destroy that construction. It is asserted
that this phrase deprived the plaintiff of the right of renewing the existing
contract and relegated him to the barren right of accepting at the end of the
first year the best terms that defendant might be able to secure from other
persons for the exclusive concession to which the contract refers, thereby
transforming the stipulation for renewal in favor of the plaintiff to one in
favor of the defendant. As already pointed out, the grammatical structure of the
stipulation shows both that the thing to be renewed was the agreement in force
the first year and that the party who possessed the right to renew was the
plaintiff.

The construction of the phrase “with preference over others”
contended for by the defendant and found by the court below not only overthrows
the grammatical structure of the stipulation but nullifies the meaning of the
essential term in the stipulation, namely, the word “renew.” The meaning of that
word, wherever applied with respect to real or personal rights, is not a matter
of discussion and, unless the stipulation to renew expressly provides for
variations in the terms of the contract to be renewed, the clause of renewal
aways relates to the contract in which it is found. To attribute to the words
“with preference over others” a meaning that nullifies an essential word of
common usage and conventional signification is to vary an elementary rule of
construction. While the use of the phrase “over others” after the noun
“preference,” which means the act of preference or the state of being preferred
or chosen before others, is not altogether elegant English and is somewhat
ambiguous with respect to its reference, the clause succeeding it, namely, “of
renewing for a further period of one year,” relieves that phrase of so much of
its ambiguity as to make its presence clearly unnecessary for a perfect
understanding of the agreement. When one party to a contract gives the other an
enforceable right, then certainly the one to whom the right is conceded has
preference over all others with respect to that right, including the other party
to the contract; and if the party conceding the right adds to the contract a
phrase “with preference over others” with respect to that right, it adds nothing
to the contract and those words may be stricken out without altering its natural
or legal sense. Thus, in the contract before us, if the defendant company, by
the clause in question, conceded to the plaintiff an enforceable right, then the
plaintiff received preference over all others with respect to that right and the
adding of the Words “with preference over others” did not serve to deprive the
plaintiff of the right thus conceded, and those words should not be so construed
as to effect that end. They were useless and redundant and could have had no
force or effect without destroying the very purpose for which the clause itself
was inserted. If this construction were not followed, we would be obliged, as
already intimated, to declare that the phrase “of renewing for a further period
of one year” would have no adequate significance. The construction contended for
by the defendant wipes these words from the contract and leaves it in that
respect the same as if they had not been inserted. No such construction can be
permitted, as it takes from the contract words of the most material
signification. If, in the construction of a contract, one of two clauses must be
eliminated, it must be that one the influence of which upon the essentials of
the contract is the least. As we have shown, the words “with preference over
others” are of no substantial significance. On the other hand, the phrase
providing for a renewal is of very great materiality and importance and carries
into the contract an idea which would not have been there if it had not been
used.

As to the second question:

What appears to be, perhaps, the main contention of the defendant in this
case is that plaintiff never made a request for the renewal of the contract for
the second year but, instead of so doing, sought to make other and different
arrangements with the hotel and with Brown, to whom, as we have seen, the hotel
conceded the privilege which is the subject of this action, thereby indicating
an intention to abandon his right, if any he had, to a renewal of the contract
for the second year. It is asserted by counsel for the defendant that in July
plaintiff attempted to enter into a partnership agreement with the hotel
relative to the privilege in question for the period covering the second year of
plaintiff’s contract, and that, failing in that, and believing that Brown would
secure the privilege from the hotel, he thereupon sought to make a contract with
Brown by which he could assist him in fulfilling his contract with the hotel. It
is even contended by defendant that plaintiff actually did enter into an
agreement with Brown relative to that matter.

A careful reading of the testimony in this case leads us to differ with
counsel for the appellee as to the real facts of the case and constrains us to
differ materially from the conclusions drawn by counsel for the defendant from
the acts of the plaintiff as set out in the record.

As to the facts, we may say that the evidence does not sustain the contention
that plaintiff entered into a contract with Brown. The proof discloses that the
plaintiff sought to make arrangements with the hotel of a nature different from
those contained in the contract under consideration and also that he had
negotiations with Brown looking to an agreement with him whereby he might assist
him in handling the five-passenger automobile business under the privilege which
it appeared the hotel would concede to him. No contract, however, wag made with
either and the plaintiff at no time found himself under any obligation to the
defendant or Brown by reason of the acts which appellee makes the basis of its
argument.

To us the important fact is that before the plaintiff entered into
negotiations or made any offers with respect to the five-passenger automobile
privilege either with or to the defendant or Brown, the hotel had impliedly
denied the plaintiff’s rights with respect to the contract before us, had
refused to recognize the clause for a renewal of the contract for a second year
as binding upon it, and, as a result, as early as June, 1913, had, according to
its brief in this court “invited proposals from various garages for its
automobile service for the ensuing year.” In other words, the defendant had,
prior to the negotiations and offers of plaintiff, repudiated its contract with
him so far as it related to the renewal for the second year and was preparing
itself to make a contract with any person with whom it might secure the most
advantageous terms.

Not only did the defendant advertise for bids or offers concerning its
automobile privilege for the period embraced in the second year of the contract
under consideration, but sometime before the first year of that contract had
expired the defendant had actually made a contract with Brown by which it had
conceded to him said privilege for the period embraced in the second year of the
plaintiff’s contract. Thus, when the first year of plaintiff’s contract
terminated, he found that the defendant had rejected its obligation under the
renewal clause, had let the contract to another person, and when he sought, as
he did seek, to continue in the performance of his contract for the second year,
defendant evicted him from the premises and denied him the right which he sought
to exercise.

We are of the opinion that, when a person who is under an obligation to
another to perform certain acts upon the demand of that person, repudiates that
obligation prior to the time when the demand for its fulfillment is necessary,
the person to whom that obligation runs is not required to sit down, fold his
hands and calmly await the disaster which the violation of the obligation
entails. We believe that, under such circumstances, he is entirely within his
rights and, therefore, waives nothing, when he seeks other employment or the
same or similar employment with others, or attempts to make other arrangements
relative to the same subject matter even with the person or corporation which
owed him the obligation repudiated. So long as it appears with fair clearness
that his purpose is to protect himself against the results of the repudiation,
his acts do not constitute a waiver of his rights under the obligation
repudiated, nor do they estop him from making a claim by reason of its breach.
The waiver will not be presumed; and, if the intention to waive or release is
denied, such waiver or release must be proved by the party alleging it by a
preponderance of the evidence.

The legitimate object of a demand is to enable the party upon whom it is made
to perform his contract and discharge his liability agreeable to the nature of
it without a suit at law; and whenever such party wholly denies the right of the
other to assert title in himself or unqualifiedly refuses performance of the
obligation, a demand is made useless, and therefore unnecessary, since lex
neminem cogit ad vana. For the same reason and upon the same principle the
failure to make a demand before suit may be cured by proof that the defendant
could not have complied with the demand if it had been made; as where a person
contracts to assign his interest in certain lands to another within a specified
time upon payment of consideration therefor, and the vendor prior to the
stipulated time assigns his interest to a stranger. In such case a request by
the vendee for the performance of the contract is unnecessary. The rule stated
otherwise is to the effect that where a party bound to the future performance of
a contract puts it out of his power to perform it, the other party may treat
this as a breach and sue him at once, having thus an immediate right of action
for breach of the contract by anticipation.

It may not be amiss, perhaps, to note that the defendant company was in no
way injured by the acts of the plaintiff complained of. There resulted no damage
directly nor did the company change position to its disadvantage by reason of
his affirmative acts or of his neglect, if there were such, to demand a renewal
prior to the termination of the first year under the agreement.

It may be noted also that the plaintiff was under no obligation to defendant
with respect to a renewal of the contract. The obligation was wholly on the side
of the defendant. Therefore, in doing whatever he did to obtain other
employment, he was not violating any obligation which he owed to the defendant
and, therefore, gave it no legal reason for complaint. The plaintiff had a right
to look about for a better situation and to seek to improve his condition with
respect to the period embraced within the second year referred to in the
contract. We do not believe that the contract should be construed to deny
plaintiff the ordinary opportunities which men have for the betterment of their
condition, especially after the other party to the contract has repudiated it.
Even though one is engaged in the performance of a contract which he has with
another, that fact does not require him to stand still and refrain from all
attempts to improve his condition, after the termination of the contract which
he is engaged in performing, for fear that such activities will preclude him
from enforcing obligations which the other owes’ him. At the time of the
activities of the plaintiff complained of the time had not yet arrived when
plaintiff was bound to exercise his option, if it may be called an option, with
respect to the second year referred to in the contract. Defendant was in no way
misled and in no way injured by plaintiff’s activities.

The remaining question relates to plaintiff’s damages.

The plaintiff claims his damage to be P10,800, basing that claim upon the
profits which he would have received if he had continued the business for the
second year.

The appellee makes no objection to this amount, the question of the amount of
damages not having been referred to in its brief. It is the practice of this
court, in case of reversal of a judgment dismissing the complaint on the merits,
to examine the evidence and enter or order entered the judgment which the
inferior court should have rendered; and, where the action is for a sum of money
or damages, to find from the evidence the amount due or the damages suffered and
to render or order the trial court to render judgment for that amount. We assume
that that practice is thoroughly understood and that if appellee had had any
objection to urge as to the amount of damages which should be awarded to the
plaintiff in case judgment should be found for him in this court, it would have
presented it in its brief.

The only damages claimed relate to profits. Articles 1106 and 1107 of the
Civil Code read as follows:

“Indemnity for losses and damages includes not only the amount of the loss
which may have been suffered, but also that of the profits which the creditor
many have failed to realize, reserving the provisions contained in the following
articles.

“The losses and damages for which a debtor in good faith is liable, are those
foreseen or which may have been foreseen, at the time of constituting the
obligation, and which may be a necessary consequence of its nonfulfillment.

“In case of fraud, the debtor shall be liable for all those which clearly may
originate from the nonfulfillment of the obligation.”

Under these provisions we are required to determine the amount of profits
which plaintiff failed to realize by reason of the refusal of defendant to
permit him to continue under the contract for the second year and which were
foreseen or which might have been foreseen at the time the contract was made and
which were a necessary consequence of the breach. Plaintiff testified that he
made P11,000 profit the first year and that he would unquestionably have made a
net profit of P1,200 a month if he had been left to enjoy the second year of the
contract. There is no evidence contradicting this, and while the estimation of
profits lost has, in most cases, some of the elements of speculation, it is
inherent in the nature of the subject matter and not in its manner of treatment.
As was said in the case of Ft. Smith & W. R. Co. vs. Williams (30
Okla., 726):

“This has ever been looked upon and treated by the courts as a vexed and
difficult question. It has been, and will always be, impossible to lay down any
fixed and definite rule correctly applicable in all cases. There has never been
a rule established which was decisive and universally followed by the courts in
all cases, but the inclination of the earlier authorities to hold that
contemplated profits per se were improper elements of damage has given way under
the riper wisdom of jurisprudence, and, instead of holding to the earlier
inclination, the weight of authorities in modern jurisprudence either holds or
concedes that, where a loss of profits is not too remote or conjectural to be
susceptible of computation with reasonable accuracy, they are proper elements of
damage.

“This rule is recognized with approval by each and all of the following
authorities cited by counsel for plaintiff in error in support of his first
proposition: Strawn vs. Cogswell (28 111., 461); Frazer vs.
Smith (60 111., 145); Galveston H. & S..A. R. Co. vs. Jessee (2
Willson Civ. Cas. Ct. App., sec. 405), and authorities cited; People’s Sav. Bank
of Waterloo vs. C. F. Transit Co. (118 Iowa, 740, 92 N. W., 691);
Bartow vs. Erie R. Co. (73 N. J. L., 12, 62 AtL, 489); H. & T. C.
R. R. Co. vs. Hill (63 Tex., 381, 51 Am. Rep., 462); Western U. Teleg.
Co. vs. Crall (39 Kan., 580, 18 Pac, 719) ; Moulthrop vs. Hyett (105 Ala., 493,
53 Am. St. Rep., 139,,17 So,, 33); Williams vs. Island City Mercantile
and Mill Co. (25 Ore. 573, 37 Pac, 51) ; Brigham & Co. vs. Carlisle
(78 Ala., 244, 56 Am. Rep., 28) ; Gas Co. vs. Glass Co. (56 Kan., 622,
54 Am. St. Rep., 598, 44 Pac, 621) -Cutting vs. Miner (30 App. Div.,
457, 52 N. Y. Supp.,. 288); Griffin vs. Colver (16 N. Y., 489, 69 Am.
Dec, 718); Western Gravel Road Co. vs. Cox (39 Ind., 263); Florida
Northern R. Co. vs. Southern Supply Co. (112 Ga., 1, 37 S. E., 130); Bell vs.
Reynolds (78 Ala., 511, 56 Am. Rep., 55) ; Pollock & Co. vs. Gantt
(69 Ala., 373, 44 Am. Rep., 519) ; Witherbee vs. Meyer (155 N. Y., 446,
50 N. E., 58).

* * * * * * *

“None of the above authorities have held against the justness of the rule of
applying profits as a measure of damages, but have merely held it inapplicable
to the cases decided. There is more or less inaccuracy in every action for
damages for breach of contract, but in order to justify a recovery in any case,
assuming that a breach has been committed, there are two necessary elements to
be considered: One that a damage has been done; the other that such damage is
the result of the breach. The amount of the one should be computed with
reasonable accuracy. The fact of the other must be determined with reasonable
certainty. A less degree of accuracy is required in the former than of certainty
in the latter, but neither is required to be absolute or beyond conjectural
possibilities. Where it reasonably appears that a party has been damaged, and
that such damage is the direct result of the breach, then a recovery is
justified. The next step is to ascertain how much will reasonably compensate the
injured party. This should be computed by the plainest, easiest, and most
accurate measure which will do justice in the premises, and if from the
conditions in the contract, and the nature of the breach, it reasonably appears
that the extent or amount of damages may be more readily, easily, correctly, and
justly ascertained by applying the loss of profits as a measure, if it is
evident that profits were lost and the amount thereof can be calculated with
reasonable accuracy, then such profits are the true measure tp be applied. In
such cases, however, it should appear evident that profits were lost. The amount
may be estimated with only reasonable accuracy; but the fact that profits were
lost should require stricter proof. This doctrine is deduced from a vast weight
of authorities, both American and English, including 2 Joyce on Damages, and
authorities; 1 Sutherland on Damages (3 ed.) and notes and cases cited; 1
Sedgwick on Damages (8th ed.); 8 Am. & Eng. Enc. (2 ed.) and authorities
cited in notes, 13 Cyc. and cases cited; Bryson vs. McCone (121 Cal.,
153; 53 Pac, 637) ; Blagen vs. Thompson (23 Ore., 239; 18 L. R. A.,
315; SI Pac, 647); Dart vs. Laimbeer (107 N. Y., 664; 14 N. E., 291);
Brown vs. Hadley (43 Kan., 267; 23 Pac, 492); Hoge vs. Norton (22
Kan.,. 374); Hadley vs. Baxendale (9 Exch., 341; 2 C. L. R., 517; 23 L. J.’Exch.
N. S., 179; 18 Jur., 358; 2 Week. Rep., 302; 26 Eng. L. & Eq. Rep., 398; 5
Eng. Rul. Cas., 502; a leading case both in England and America); Tootle
vs. Kent (12 Okla., 674; 73 Pac., 310); Choctaw Ry. Co. vs.
Jacobs (15 Okla., 493; 82 Pac, 502); Mace vs. Ramsey (74 N. C.,.11);
Butler vs. Manhattan ft. R. Co. (143 N. Y., 417; 26 L. R. A., 46; 42
Am. St. Rep., 738; 38 N. E., 454); Bluegrass Cordage Co. vs. Luthy (98
Ky., 583; 33 S. W., 835); Simpson vs. London etc. R. Co. (I. Q. B.
Div., 274; 45 L. J. Q. B. N. S., 182; S3 L. T. N. S., 805; 24 Week. Rep.,
294).”

In the case before us there seems to be as little speculation in determining
the profits which the plaintiff might have recovered as is usual in cases where
the time for which the profits are to be recovered extends over a considerable
period of time. It is undisputed that the business was a very profitable one the
first year and that the second year would have been more profitable than the
first. While the estimate of the amount of profits for the second year is an
estimate of necessity, it is one which is based upon facts testified to by the
plaintiff, which were within his knowledge and which appear to the court to
sustain his contention. While the evidence is not as conclusive as in cases
where the damages are certain and capable of accurate statement, we are
satisfied with its sufficiency, particularly in view of the fact that all that
courts may require of litigants is the production of the best evidence of which
the case is susceptible.

As to whether or not the plaintiff in an action of this character may recover
only that portion of the profits which had accrued up to the time of bringing
the action, or whether he may sue for all the damages resulting from the breach
in a single action, even though that action is begun long before the period
during which the profits will accrue has expired, we may say that, in our
judgment, the weight of authority is to the effect that the plaintiff need bring
but one action and that he may recover the damages sustained for the whole
period even though it be by anticipation.

The principle on which the case of Pierce vs. Tennessee Coal, Iron and
Railroad Co. (173 U. S., 1) is decided is, in our judgment, applicable to the
case at bar. That was a case in which the plaintiff, while employed as a
machinist in the defendant’s coal mine in Alabama, was seriously hurt under
circumstances which the plaintiff claimed, and the defendant denied, rendered it
liable to him in damages. The parties were desirous of settling and compromising
plaintiff’s claim for damages for the injuries and, after repeated negotiations,
they made an agreement by which the defendant was to pay to the plaintiff
regular wages while he was disabled, to furnish him with such supplies as he
might choose to get from the commissary, to give him coal and wood for fuel at
his dwelling house and the benefit of a garden belonging to the defendant. The
agreement was carried out by the defendant for some time and then it discharged
the plaintiff from its employ before his disability ceased.

After discussing certain phases of the contract and declaring its nature and
purpose, the court said:

“It appears to us to be equally clear that the Circuit Court of the United
States erred in excluding the evidence offered by the plaintiff, in restricting
his damages to the wages due and unpaid at the time of the trial, and in
declining to instruct the jury as he requested.

“Upon this point the authorities are somewhat conflicting; and there is
little to be found in the decisions of this court, having any bearing upon it,
beyond the affirmance of the general propositions that ‘in an action for a
personal injury the plaintiff is entitled to recover compensation, so far as it
is susceptible of an estimate in money, for the loss and damage caused to him by
the defendant’s negligence, including not only expenses incurred for medical
attendance, and a reasonable sum for his pain and suffering, but also a fair
recompense for the loss of what he would otherwise have earned in his trade or
profession, and has been deprived of the capacity of earning by the wrongful act
of the defendant,’ and, ‘in order to assist the jury in making such an estimate,
standard life and annuity tables, showing at any age the probable duration of
life, and the present value of a life annuity, are competent evidence’
(Vicksburg & M. Railroad Co. vs. Putnam, 118 U. S., 545, 554); and that in
an action for breach of contract ‘the amount which would have been received if
the contract had been kept, is the measure of damages if the contract is broken’
(Benjamin vs. Hilliard, 23 How., 149, 167).

“But the recent tendency of judicial decisions in this country, in actions of
contract, as well as in actions of tort, has been towards allowing entire
damages to be recovered, once for all, in a single action, and thus avoiding the
embarrassment and annoyance of repeated litigation. This especially appears by
well considered opinions in cases of agreements to furnish support or to pay
wages, a few only of which need be referred to.”

The court, after discussing Parker vs. Russell (133 Mass., 74),
Schell vs. Plumb (55 N. Y., 592), East Tennessee V. & G. R. Co. vs.
Staub (7 Lea, 397), holding the doctrine just quoted, further said:

“These cases appear to this court to rest upon sound principles, and to
afford correct rules for the assessment of the plaintiff’s damages in the case
at bar. * * *

“If these facts were proved to the satisfaction of the jury, the case would
stand thus: The defendant committed an absolute breach of the contract, at a
time when the plaintiff was entitled to require performance. The plaintiff was
not bound to wait to see if the defendant would change its decision, and take
him back into its service; or to resort to successive actions for damages from
time to time; or to leave the whole of his damages to be recovered by his
personal representative after his death. But he had the right to elect to treat
the contract as absolutely and finally broken by the defendant; to maintain this
action, once for all, as for a total breach of the entire contract; and to
recover all that he would have received in the future, as well as in the past,
if the contract had been kept. In so doing, he would simply recover the value of
the contract to him at the time of the breach, including all the damages, past
or future, resulting from the total breach of the contract. The difficulty and
Uncertainty of estimating damages that the plaintiff may suffer in the future is
no greater in this action of contract than they would have been if he had sued
the defendant, in an action of tort, to recover damages for the personal
injuries sustained in its service, instead of settling and releasing those
damages by the contract now sued on.

“In assessing the plaintiff’s damages, deduction should, of course, be made
of any sum that the plaintiff might have earned in the past or might earn in the
future, as well as the amount of any loss that the defendant had sustained by
the loss of the plaintiff’s services without the defendant’s
fault.”

From the amount of damages proved in the case at bar there would have been
deducted, if there had been any proof to that effect, whatever profits plaintiff
had gained up to the time of the action or might reasonably be expected to gain
during the period sued for. No evidence, however, has been introduced on that
subject and we do not find it necessary to go into that question. We are of the
opinion that the great weight of authority is to the effect that the opportunity
to earn wages or profits in reduction of the damages claimed will not be
presumed but must be affirmatively shown by the defendant. (Van Winkle vs.
Satter field, 68 Ark., 617, 623, 25 S.-W. Rep., 1113, 23 L. R. A., 853; Kelley
vs. Louisville & N. R. Go., 49 111. App., 304; Fish vs. Glass, 54
111. App., 655; Hamilton vs. Love, 152 Ind., 641, 53 N. E. Rep., 181,
71 Am. St. Rep., 384; Pennsylvania Co. w. Dolan, 6 Ind. App., 109, 32 N. E.
Rep., 802, 51 Am. St. Rep., 289; Farrell vs. School District, 98 Mich.,
43, 56 N. W. Rep., 1053; Allen vs. Whitlark, 99 Mich., 492, 58 N. W.
Rep., 470; Chisholm vs. Preferred Bankers’ L. Assur. Co., 112 Mich.,
50, 70 N. W. Rep., 415; Boland vs. Glendale Quarry Co., 127 Mo., 520,
30 S. W. Rep., 151; Bassett vs. French, 10 N, Y. Misc., 672, 31 N. Y.
Supp., 667; Heyer vs. Cunningham Piano Co., 6 Pa. Super. Ct., 504;
Winkler vs. Racine Wagon & Carriage Co., 99 Wis., 184, 74 N. W.
Rep., 793; Mathesius vs. Brooklyn Heights R. Co., 96 Fed. Rep., 792;
Rosenberger vs. Pacific Coast Ry. Co., Ill Cal., 313, 43 Pac. Rep.,
963; Pinet vs. Montague, 103 Mich., 516, 61 N. W. Rep., 876; Dearing
vs. Pearson, 8 N. Y. Misc., 269, 276; 28 N. Y. Supp., 715, citing the
text; Babcock vs. Appleton Manuf. Co., 93 Wis., 124, 67 N. W. Rep., 33;
Dunn vs. Daly, 78 Cal., 640, 21 Pac. Rep., 377; Brown vs.
Board of Education, 29 111. App., 572; School Directors vs. Kimmel, 31
111. App., 537; Miller vs. Boot & Shoe Co., 26 Mo. App., 57;
Koenigkraemer vs. Missouri Glass Co., 24 Mo. App., 124; Saxonia Mining
& R. Co. vs. Cook, 7 Colo., 569, 4 Pac. Rep., 1111; Ansley
vs. Jordan, 61 Ga., 482; Roberts vs. Crowley, 81 Ga., 429, 7
S. E. Rep., 740; Hinchliffe vs. Koontz, 121 Ind., 422, 23 N. E. Rep.,
271; Larkin vs. Hecksher, 51 N. J. L., 133, 16 Atl. Rep., 703, 3 L. R.
A., 137; Fee vs. Orient Fertilizing Co., 36 Fed. Rep., 509; Costigan
vs. Mohawk, etc. R. Co., 2 Denio, 609; Howard vs. Daly, 61 N.
Y., 362, 19 Am. Rep., 285; Gillis vs. Space, 63 Barb,, 177; King
vs. Sturer, 44 Pa, 99, 84 Am. Dec, 419; Griffin vs. Brooklyn
Ball Club, 68 App. Div., 566, 73 N. Y. Supp., 864; Chamberlain vs.
Morgan, 68 Pa., 168. See Gazette Printing Co. vs. Morss, 60 Ind., 153;
Williams vs. Chicago Coal Co., 00 111., 149; Sedgwick on Damages, vol.
2, sec, 667; Labatt’s Master and Servant, sec. 399.)

The cause is returned to the Court of First Instance whence it came with
instructions to enter a judgment in favor of the plaintiff and against the
defendant for the sum of P10,800, with costs in that instance but without costs
in this.

Arellano, C. J., Torres and Araullo, JJ., concur.

CARSON, J., concurring in the reversal of the judgment of the trial
court, but dissenting from the final disposition of the case:

While I agree with the majority in reversing the judgment in the court below
and concur in the rulings upon which the reversal is founded, I think that the
record should be remanded for a new trial, wherein evidence as to the amount of
damages can be taken in the light of our rulings that plaintiff is entitled to
recover in a single action for all the damages resulting from the breach of the
contract, and that where the loss of profits in a case of this kind is not too
remote or conjectural to be susceptible of computation with reasonable accuracy,
it is a proper element of damage.

The trial judge was of opinion that plaintiff could recover no damages in
this action and no evidence seems to have been introduced as to “profits
plaintiff had gained up to the time of the action or might reasonably be
expected to gain during the period sued for” notwithstanding the breach of the
contract. The majority opinion admits that such profits if proven, should be
deducted from the amount of damages allowed by the judgment. I think that the
judgment of the trial court having been reversed on the ground that the trial
judge erred in his rulings as to the right of plaintiff to recover any damages
at all, and this court having recognized plaintiff’s right to recover and at the
same time announced the doctrine which should be applied as to the measure of
the damages, and the form in which proceedings should be maintained for their
recovery, the case should be remanded to the trial court and evidence taken as
to the true damages which should be allowed in this action, so that judgment may
be rendered on proof not only as to the amount of the anticipated profits under
the contract, but also as to the amount, if any, which should be deducted
therefrom because of “profits plaintiff had gained up to the time of the action
or might reasonably be expected to gain during the period sued for”
notwithstanding the breach of the contract.