At the time of making the agreement hereinafter set out, the plaintiff had had large experience in the stationery business, and the defendant was the owner of a store on Fulton street, in the city of Brooklyn, in which he carried on the jewelry business. The agreement is as follows:
"BROOKLYN, KINGS Co., April 6, 1887.
"This agreement made this day between James H. Hart and William N. Dickinson, both of said city of Brooklyn, certifies that James H. Hart hereby agrees to furnish to William N. Dickinson one show case with suitable shelving, also the use of one show window every alternate week during the first year for the purpose of conducting a stationery business in the store 313 and 315 Fulton street, all stock for same to be supplied and all expenses of the department to be borne by William N. Dickinson, in consideration for which privilege William N. Dickinson is to pay to James H. Hart five per cent (5%) of gross sales from date to May 1, 1888, and ten per cent (10%) of gross sales from May 1, 1888, to May 1, 1892.
"Accounting to be made monthly.
"JAMES H. HART. "WM. N. DICKINSON."
The plaintiff entered the store and carried on the stationery business as provided in the agreement, until about the first of May, 1889, when he claims the defendant ousted him from the store, and broke up his business, and he brought this action to recover his damages, and he recovered a judgment for $3,000.
Upon the argument in this court the learned counsel for the defendant called our attention to many exceptions taken by him upon the trial; but we do not deem it important to notice many of them particularly.
The agreement provided that the plaintiff might carry on *Page 187 his business in the defendant's store for a period of about five years, to the first day of May, 1892. It was evidently contemplated by the parties that the stationery business should become a department in the defendant's store, where he was carrying on the jewelry business. The defendant could not after the plaintiff entered upon his business in the store, so change the character of the business to be carried on there and the arrangements of the store as to make it wholly unfit and unsuitable for the plaintiff's business. The contract was made, not only in reference to the plaintiff's business, but also to the defendant's business. While the defendant may not have been obliged to continue the jewelry business, yet he could not so change the internal arrangement of the store, and so introduce other business therein as to render impracticable and unprofitable, and destroy the plaintiff's business.
We think upon all the evidence it was a question of fact for the jury to determine whether the defendant by what he did and said did not oust the plaintiff from the store, break up his business there and violate the agreement he had made with him; and in submitting the evidence to the jury upon that branch of the case we think the trial judge did not violate any rule of law.
This agreement did not really create the relation of landlord and tenant between the parties. The defendant agreed to furnish the plaintiff with certain facilities to carry on certain business in his store, and the plaintiff was bound to carry on that business there during the period specified in the agreement and to pay the defendant for the privileges accorded to him in the store a certain percentage of his gross sales. The agreement created a business arrangement for the benefit of both parties. The counsel for the defendant is, therefore, in error in claiming that the rule of damages to be applied in this case is that which would have been proper if the relation of landlord and tenant had existed. In such a case, where there has been an eviction, the general rule, to be varied by circumstances is, that the tenant is entitled to recover the difference between the rent reserved and the value of the use *Page 188 of the premises. But the peculiar nature of this agreement is such that the only general rule of damages which could be applied was the value of the agreement to the plaintiff at the time of its breach. (Taylor v. Bradley, 39 N.Y. 129; Wakeman v.Wheeler Wilson Mfg. Co., 101 id. 205; Bernstein v. Meech, 130 id. 354.)
While the elements from which the jury could determine the amount of the plaintiff's damages were more or less uncertain and problematical, yet we think they were sufficient to furnish a basis for the verdict. The plaintiff proved the gross amount of his sales in each of the two years he was in the defendant's store, and the amount of his net profits, showing that during the last year his sales and profits had largely increased. He also proved what income he was able to make in his business elsewhere during the succeeding year, and what he was able to earn after his business in defendant's store had been broken up; and from these and other facts appearing in the record there was a basis, however unsatisfactory, for the amount of damages awarded by the jury.
We have carefully scrutinized the rules of law laid down by the judge during the trial and his charge to the jury, and we are satisfied that he committed no error.
While the verdict is quite large and if we had the power to deal with it we might regard it excessive, we have no alternative but to affirm the judgment.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 189