R. J. MARTIN, Appellant,
W. E. LaFON, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and case remanded with instructions.
Mr. H. S. McCluskey and Mrs. E. G. Monaghan, for Appellant.
Mr. S. N. Karam, Mr. Henderson Stockton, Mr. Eli Gorodezky and Mr. J. W. Cherry, Jr., for Appellee.
[55 Ariz. 197] LOCKWOOD, J.
This is an appeal by R. J. Martin, hereinafter called plaintiff, from a judgment in his favor against W. E. LaFon, hereinafter called [55 Ariz. 198] defendant. The facts necessary for a determination of the appeal are not in controversy, and may be stated as follows:
In March, 1938, the parties entered into an option contract, whereby defendant agreed to assign to plaintiff an existing lease in favor of defendant upon certain hotel and cafe property in Phoenix. Plaintiff paid defendant $500 cash at the time of the execution of the option, and agreed to pay the further sum of $4,500 in case he exercised his option. Plaintiff later made a tender of the balance due, according to the terms of the option, and requested an assignment of the lease, which defendant refused to make, whereupon plaintiff brought suit for damages for breach of the contract.
The complaint at first merely claimed general damages, but at the trial leave was
granted to amend by an allegation of special damages, so that the complaint then read:
"has been damaged in the premises by the loss of the use of his Five Hundred Dollars ($500.00) paid to the defendant herein, and by the loss of the future probable profits plaintiff would be reasonably certain to make from the operation of the Jefferson Hotel and Cactus Grill, mentioned in said option contract, between the dates of March 21, 1938, and September 14, 1941, plaintiff alleging that said profits were within the contemplation of the parties at the time of the making of said option contract on March 10, 1938, in the sum of Thirty Thousand Dollars ($30,000.00)."
Defendant then moved to strike the allegations of the amended complaint in regard to the loss of future profits, which motion was granted. Evidence was introduced on behalf of both parties, and plaintiff then made a tender of issue and offer of proof in support of the allegation of the amended complaint in regard to future profits, in the following language:
[55 Ariz. 199] "The plaintiff hereby makes a tender to the court to offer to prove in support of his amended complaint, the testimony of the plaintiff that he is an experienced hotel man, having had experience for some two years in operating the Jefferson Hotel prior to the time the defendant took over the lease thereon; that he is familiar with the business of said hotel, and that from the books and records of the defendant LaFon he will be prepared to show that from the gross receipts of said hotel, less the rentals provided in the lease, and the reasonable costs of operating said hotel, he would have been able to have made a profit -- have made prospective profits in the amount of $30,000 during the term of the said lease beginning the 21st day of March, 1938, and terminating on the 14th day of September, 1941, and that he has been damaged in said amount by reason of the failure or refusal of the defendant to comply with the terms and conditions of the option contract dated the 10th day of March, 1938."
The court, having sustained the motion to strike, rejected the proof. The parties rested and judgment was rendered in favor of plaintiff for a return of the $500 which he had already paid on the contract, with interest, and this appeal was taken.
The real question for our consideration is, What is the proper measure of damages in case of a breach of a contract to assign a lease, under the ...