There wras sufficient evidence to go to the jury upon the amount of gross receipts, one-half of which the plaintiff was entitled to under its contract."
The breach of contract was due to the willful act of the defendant. There is also no question that the receipts were within the contemplation of the parties, and that the breach of contract was equally clearly the approximate cause of the loss. As has been well said by the Court of Appeals, “A person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain.” Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 209. It is to be noted that the plaintiff was entitled by the express terms of the contract to one-half of the gross receipts and one-half of the profits. There were bound to be receipts and hence the plaintiff is entitled to a substantial amount of damage, and the only question remaining is as to the amount of damage, and hence the facts of the case at bar fall directly within the language of the case last referred to where it is also said: “ But when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever *673for the breach.” The case is one, therefore, where the plaintiff is entitled to submit the best evidence obtainable to the jury. Sclossberg v. Brody, 216 N. Y. 579; Stevens v. Amsinck, 149 App. Div. 220; Wakeman v. Wheeler & Wilson Mfg. Co., supra. In Stevens v. Amsinck, supra, Mr. Justice Carr, writing for the court, says: “ Yet, where there has been a breach of contract, and it appears certain that some substantial damages have resulted, a defendant cannot escape liability for such damages simply because they cannot be ascertained exactly, and that, in order to approximate them, some speculative elements must enter into consideration; for, under such circumstances, a jury may indulge in ‘ reasonable conjectures and probablé estimates ’ arising from the other proofs.”
It is clear that where a new theatrical production has not before been produced there is no criterion upon which to base any recovery of profits by way of damage, and such might also be the rule where a recovery is sought for like receipts as distinct from profits. The photo-play in the case at bar while it had not been produced in the city of Wilmington had been produced in approximately twelve other cities where it had played to from twenty-three per cent to sixty-two per cent of the capacity of the theatres. There is evidence from which it can fairly be inferred that conditions were similar in these cities to that of Wilmington, with the exception that it was proposed in Wilmington to charge a scale of prices of from twenty-five to fifty cents, whereas in the other cities the schedule of prices had been from ten to twenty-five cents. It is to be noted that the smaller price charged in Wilmington was the larger price charged in the other cities, so that in this respect also the conditions were similar. While the populations of the other cities were most of them con-' siderably smaller than that of Wilmington, yet one at *674least (Richmond) was twice the size of Wilmington and there is testimony that in .certain of the cities at least the populations were of a nature similar to that of Wilmington. It is true that the number of other theatres in competition in each of the cities visited was not shown, but it does appear that the theatre in Wilmington was a large one.
The jury has allowed the plaintiff a recovery on the basis of thirty-four per cent of the capacity of the theatre. The average capacity between the lowest, namely, twenty-three per cent, and the highest, namely, sixty-two per cent, of the twelve cities visited would be about forty-three per cent, and hence the verdict of the jury has certainly been reasonable, when judged by its results. As has been well said where the breach of contract is due to the act and fault of the defendant by which profits have been prevented, “ Courts ought not to be too precise and exacting in regard to the evidence upon which to base a claim for damages resulting from loss of profits.” In Wakeman v. Wheeler & Wilson Mfg. Co. attention is called to the language of Cockburn, C.J., in Simpson v. London & N. W. R. Co., L. R. (1 Q. B. D.) 274, where he said: “As to the supposed impossibility of ascertaining the damages, I think there is no such impossibility; to some extent, no doubt, they must be matter of speculation, but that is no reason for not awarding any damages at all.” And in the same opinion attention is called to the “ reasonable conjectures and probable estimates ” for the jury to determine upon the facts submitted to them in the ordinary action for personal injuries where a recovery is allowed for such prospective damages as the jury are satisfied the party will sustain notwithstanding the uncertainty of the duration of life and other contingencies which may affect the amount. It is not stating it too strongly to say that in such an *675action there is a much greater degree of uncertainty than in the case at bar.
It follows that the judgment should be affirmed, with costs.
. Judgment reversed and new trial ordered, with costs to appellant to abide event.