The plaintiff has recovered a judgment for the sum of $1,000 as damages for the breach of a contract theretofore made by the defendant whereby he agreed to furnish to the plaintiff a certain theatre in Wihnington, Del., equipped for the production of a photo play entitled 66 The Masque of Life,” and to pay to the plaintiff fifty per cént of the gross receipts from the production of such play. The plaintiff showed that after it had expended the sum of $152.28 in preparations for the production of the film 'the defendant through his agent informed it that he did not desire to produce any moving pictures in the theatre and that in any event he had secured another attraction for his theatre during the time for which he had agreed to furnish the theatre for the production *669of the plaintiff’s film. The defendant presented practically no testimony and rested upon the plaintiff’s case. There is no doubt but that upon the evidence presented the plaintiff should be permitted to recover at least the amount which it had expended in preparing to carry out its part of the contract which the defendant thereafter repudiated.
The present judgment, however, is not for the sum which the plaintiff expended in preparing to perform its part of the contract, but includes a recovery for loss of prospective profits. There is no doubt in my mind that in a case of this kind loss of profits which the plaintiff would have made is the real measure of the damages which he has suffered. In order, however, to recover such damages the plaintiff is required to prove as part of its case the profits which it has lost. In so far as these profits are purely speculative and not susceptible of proof they are not the subject of recovery. Bernstein v. Meech, 130 N. Y. 354.
The amount of profits to be derived from a theatrical or moving picture performance naturally depends upon a great many different conditions, and the proof that is required must be at least sufficient to remove the question of the amount of profits which might have been realized from the realm of speculation to the realm of reason. The success of the production depends partly upon the merits of the production itself and its power of attracting an audience. It also depends, however, upon the amount of the competition which it must meet in any particular locality. It further depends upon the size and attractiveness of the theatre and upon the question of whether the particular production is calculated to attract the particular clientele Which is accustomed to go to such theatre and whether the patrons of such theatre would pay the price demanded for the seats in order to see this production.
*670Obviously, ordinarily, it is difficult, if not impossible, for the plaintiff to produce proof which would show with any degree of certainty that if the production had been made it would have resulted in any profits, and which would give the jury any basis upon which such profits could be estimated. In the present case the plaintiff has attempted to supply this proof by showing that it produced the film at numerous other theatres within a radius of 250 miles of the city where defendant’s theatre is located, and further showed the receipts obtained at such theatres during the produc- • tion of the film. It appears, however, that in all these theatres the price of seats was one-half or less than the price of the seats in defendant’s theatre, and there is no evidence that they were ordinarily used for the same class of productions as defendant’s theatre. Moreover, the plaintiff fails to show the number of other theatres in such places and the amount of competition which the plaintiff met in those cities or which it would be required to meet in the city of Wilmington. There is no evidence that the defendant’s theatre has been previously used for moving picture productions or could be successfully used for such purpose. The conditions surrounding those productions are so different from the conditions surrounding the proposed production in the defendant’s theatre that they can furnish no reasonable basis for determining that the plaintiff would have obtained any similar profits from his production in Wilmington. No case has been cited where any recovery for profits has been permitted upon a refusal to carry out a contract for a theatrical production without proof of actual profits obtained under at least approximately similar conditions. In fact, the only case cited by the respondent where such profits-were recovered is an unreported case where apparently the plaintiff was able to show the actual profits realized *671in that particular theatre during a period of time when the parties were performing the contract which was subsequently breached.
It follows that the judgment must be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.