The defendants were copartners, engaged in the business of manufacturing women’s cloaks, suits and skirts in the borough of Manhattan, New York. The season during which they were engaged in making up goods covered a period of ten months, from October to August, but the most active part of the season was during the four months succeeding December. For the season commencing October 1, 1908, the defendants employed the plaintiff as what is known in the trade as an “inside contractor ” to furnish the labor in making all their skirts, and he in turn employed in the performance of his contract at times as many as forty-eight hands during the active part of the season. The contract for that season was fully performed. In *166September, 1910, plaintiff entered the employ of defendants, under a contract from week to week, as a foreman on a salary of twenty-five dollars per week, and continued to work under this contract for a period of five weeks, for which he received his pay.
At that time concededly a new contract was made between the parties, but they disagree with respect to its terms. This action is brought for damages for an alleged breach of the contract then made, The plaintiff contended and offered evidence to show that the new contract was for the balance of the season ending August 1, 1911, and that the terms of the contract material to the issues were that he was to furnish the labor for the making of all of defendants’ skirts, for which he was to receive a minimum price of twenty cents and a maximum price of forty cents per skirt, the precise amount between these figures depending on the styles and the amount of work involved, to be mutually agreed upon from time to time. The defendants claimed and adduced evidence tending to show that the change in the contract was occasioned by the business being slack, and by their being unable to afford to pay the amount they had been paying plaintiff; that the new contract was indefinite as to time and provided for compensation to plaintiff on a piece-work basis, to be specially agreed upon with respect to each style of garment made, and that plaintiff at that time desired employment as an inside contractor, so called, but that they explained to him that on account of their relations with the Cloak and Suit Association they were precluded from making such a contract. The business relations between the parties under the new contract continued until the latter part of December, 1910, and plaintiff was fully paid for his services down to that time. At that time the defendants were about to move their manufacturing plant to Passaic, hi. J., which they did in January, 191Í.
The plaintiff’s version of the circumstances under which the ' alleged breach of contract arose is that the defendants informed him that they could have the skirts made up at lower prices than he was receiving, and asked him to consent to a reduction of the prices, which he refused, and that he tendered his services but they refused to accept them. The version given by defendants is, in substance, that plaintiff abandoned the *167employment on account of the inconvenience to him of getting back and forth to Passaic. On the issues with respect to the terms of the contract and the breach thereof the jury found in favor of the plaintiff, and we are not asked to review their determination.
The appellants made two minor contentions, which may conveniently be disposed of before taking up the main point. It is contended that plaintiff should have pleaded loss of profits to entitle him to recover, under the rule which precludes the recovery of loss of profits in an action for a breach of contract unless the party in default had notice that such loss might result from his breach of contract, and unless such prospective profits are pleaded (Stecker v. Weaver Coal & Coke Co., 116 App. Div. 772; affd., 192 N. Y. 556); but manifestly that rule has no application to this case, which is to recover the damages directly occasioned by the defendants’ breach of the contract, consisting of the profits that he would have made, not as on a.resale of goods, but by receiving the compensation to which he was entitled under the contract. The appellants also contend that the court permitted witnesses to testify with respect to the number of skirts made by the defendants during the season covered by the prior contract, in violation of the rule that parol testimony cannot be given as to the contents of a writing. It appears that as the plaintiff made and delivered the skirts, slips were filled out by an employee of the plaintiff, designated a bookkeeper, showing the number of skirts thus made up, and at intervals these slips were turned over to the defendants and were used as the basis of paying the plaintiff, and were retained by the defendants. The plaintiff’s bookkeeper also entered daily in a book, which she retained, the number of shirts shipped out from time to time and at the end of the season added up the total number of skirts delivered, and the plaintiff testified that he also at the end of the season figured up the number of skirts he had made. They were both permitted to testify, over objection and exception, that according to their recollection the total number of skirts manufactured that season exceeded 80,000. We are of opinion that this was not testifying to the contents of the slips, or memorandum book, and that it was entirely competent.
*168The remaining questions relate to exceptions to evidence bearing on the question of damages, and the sufficiency of the proof of damages. The action was commenced on the 24th day of April, 1911, or a little more than three months before the expiration of the period covered by the contract; but it was not tried until more than a year after the expiration of that period. The defendants continued in the same business until long after the expiration of the period covered by the contract,- and although plaintiff examined one of the defendants before trial, he offered no evidence upon the trial with respect to the number of skirts manufactured by the defendants between, the breach of the contract and the 1st of August, 1911, when it terminated. The plaintiff was permitted, over objection and exception duly made and taken, to give the testimony to which reference 'has been made with respect to the number of skirts manufactured under the former contracts This evidence was evidently offered and received on the question of damages, and it, together with evidence tending to show that the average profit made by the plaintiff on the skirts was five cents per skirt — and this is an extremely favorable view to plaintiff of the evidence, for it related to profits under the prior contract, which, of course, could not be the basis of a recovery — afforded the only basis for damages when the plaintiff rested his case. The defendants both testified in their own behalf with respect to the number of skirts actually manufactured by them during the contract period after the breach. One of them testified that the precise number of skirts manufactured by them during that period was 10,255, and the' other testified that the number was about 10,000. The books of the defendants showed the number of skirts they manufactured, and it appears by the testimony of one of the defendants that the books were in New York and accessible-at the time of the trial. ■ No objection was interposed to their testimony on this point on the ground that the books were the best evidence. In these circumstances, and particularly in view of the fact that the plaintiff must have known that the books kept by, the defendants would show the number of skirts thus manufactured, and had or might have had an examination of one defendant before triaLconcerning it and might have-examined *169the other, — there is no reasonable basis for questioning the correctness of the figures given by the defendants. On this point, an examination of the charge of the learned trial justice does not show that the jury were specifically instructed that the recovery should be limited to the profits that would have been made by the plaintiff on the skirts actually manufactured by the defendants. It cannot be said, therefore, that the jury disbelieved the testimony of thé defendants on this point, and it is more likely that they erroneously inferred from the evidence received with respect to the number of skirts manufactured under the prior contract that the defendants could and should have made more than they in fact made during the period after the breach of contract. The period of plaintiff’s employment terminated more than a year before the trial, and plaintiff had examined one of the defendants before trial. The evidence is uncontroverted that books kept by the defendants showed accurately the number of skirts manufactured by them during the period between plaintiff’s discharge and the expiration' of the period of his employment. In these circumstances, his right of recovery was measured by the number of skirts actually manufactured by the defendants, and there appears to have been no basis for the evidence with respect to the number of skirts manufactured by them under the prior contract, and, therefore, I think, the court erred in receiving that evidence (See Brightson v. Claflin Co., 180 N. Y. 76); but it is not necessary,-in the view I take of the case, to decide that question, for if it was competent its only material bearing was on the question as to the number of skirts in fact manufactured by the defendants during the contract period after the breach. The defendants did not obligate themselves to do any particular amount' of business, or to call upon the plaintiff to make a given number of skirts; and it is manifest that the plaintiff’s employment was not such that it could have had any material influence on the number of skirts that the defendants were able to sell during the season. Moreover, the evidence tends to show that their orders for the season had been placed before the breach of the contract, and it does not appear that they canceled any of them on account of discharging him, or did not manufacture as many skirts as if they had *170retained him in their employ. Of course, if the action had been tried before the expiration of the period covered by the contract, then it would have been necessary for the jury to estimate the probable profits which the plaintiff would have realized during the remaining period of the contract, and the business done prior to that time would afford a basis therefor (Dickinson v. Hart, 142 N. Y. 183; Horton v. Hall & Clark Mfg. Co., 94 App. Div. 404; Cross v. Florsheim, 102 id. 498; Herman v. Pierce Co., 105 id. 16. See, also, Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Brightson v. Claflin Co., supra); but where, as here, the contract period had expired, and there was available evidence with respect to the actual damages, the recovery is limited thereby. (Brightson v. Claflin Co., supra.) If the defendants had not been guilty of the breach of the contract, the plaintiff would have been entitled only to be compensated for the skirts actually made by him for them. Manifestly, he cannot recover a greater amount for the breach than he would have received if he had been permitted to fully perform the contract. The plaintiff testified that his average profits under the former contract were about five cents per skirt; but he gave no evidence with respect to his profits under the contract in question, nor did he show that his profits were the same on skirts manufactured at the minimum price as on those manufactured at the maximum price. On the contrary, his evidence shows that his profits were greater on the higher-priced skirts. It is to be borne in mind that the contract, as shown by the testimony of the plaintiff which has been accepted by the jury, left it discretionary with the defendants to agree or not to agree on a price in excess of the minimum price. The plaintiff might have shown by the testimony of the defendants, or by their books, the prices of the different skirts which they manufactured after he was discharged; and that, with evidence as to the profits he would have realized on the different grades of skirts, would have afforded a basis for recovery; but this he utterly failed to do.
I, therefore, vote for reversal and for a new trial.
Dowling, J., concurred.
Judgment and order affirmed, with costs.