OPINION OF THE COURT.
MAN NT, J.-This is the second time this cause has been up for hearing in this court. At the January, 1905, term it came up on error to the District Court of Bernalillo County and was reversed and remanded to that court for further proceedings in accordance with the opinion then rendered. The opinion was written by Mr. Justice Pope and concurred in by the other members or the court. It will be found reported in 13 N. M. at page 226, 82 Pacific Reporter, page 3G0.
1 The first question confronting us is, what did that decision establish as the law of the case, it being well settled that a previous ruling by an appellate court .upon a point distinctly made in a case before it, becomes the law of that case and is binding upon the courts and tlie litigants. Crary v. Field, 10 N. M. 257; Flournoy v. Bank, 11 N. M. 87; Dye v. Crary, 13 N. M. 439.
A careful analysis of the former decision discloses that it settled two points, viz: (1) That the question of the proximate cause of the fall of the wall involved in this cause was a question for the jury on the evidence adduced and (2) that the party wall agreement -was admissible in evidence.
At the second trial of the ease the first proposition was submitted to the jury and the party wall agreement was introduced and admitted in evidence and the jury by their verdict must have found that the wall in question fell by reason of the excavation under the northeast corner of the building occupied by appellees, which excavation it seems to be conceded, was made by the contractor of tlie appellant Barnett, under tbe terms of the party wall agreement between Barnett and Weinman.
The question,.then arises whether the appellant Weinman, who was the owner of the lot on which the injured building stood, and the lessor of the appellees, became a joint trespasser with Barnett by reason of the license granted Barnett by the party wall agreement. No question as to the breach of the implied covenant for quiet enjoyment in the lease between Weinman and the appellees is involved, for this is an action sounding wholly in tort, there being no contractual relations between the appellees and Barnett, and consequently a want of mutuality that precludes any question of breach of contract. In other words, Weinman cannot be held for breach of contract and Barnett for trespass in a joint action and by a joint judgment though a separate action against each might have been maintained.
2 The relation of landlord and tenant between the appellees and appellant Weinman then is important only because of the party wall agreement between appellants Weinman and Barnett, the former being the owner of the fee of the leased premises, and his liability so far as this case is concerned, must rest upon that agreement. If his license to Barnett to excavate under the wall of the leased building amounted in itself to a trespass, then he is liable; otherwise it was error to permit a joint judgment against him and Barnett for the alleged injuries to the goods of appellees in the leased premises. The party wall agreement shows on its face that Weinman and Barnett contemplated possible injury to the wall involved in the controversy for by the sixth paragraph of the agreement (p. 67 record) they provided for the payment by Barnett of such damages as might be done to the building by carrying out the agreement from iBarnett’s fault, such damages to be paid to Weinman, and while the agreement does not in terms provide that it shall be carried out during the tenancy of the appellees, yet there is nothing therein to the contrary and it was in fact begun to be performed when the wall fell.
A very similar state of facts to those in the case at bar is set up by the defendants in their answer in Collins v. Lewis, a Minnesota ease reported in 19 L. R. A. 822, and the following quotation from the opinion in that case-written by Mr. Justice Collins, seems applicable here:
“It is difficult to understand how^the landlord could .authorize the performance of the acts provided for in the agreement without fully realizing that a trespass was to be committed, and that his tenant’s right to quietly enjoy the premises invaded, unless his consent to the excavation was first obtained. In fact, this invasion was expressly sanctioned, aided and abetted by the agreement and without its execution it is safe to say would not have occurred.
“It is obvious that under a claim of title the landlord has interfered with the tenant’s possession of demised premises and has prevented him from having the use and enjoyment of a part thereof.”
The court held that in a suit for rent by the landlord against the tenant, the latter could maintain a counterclaim for the damages sustained by reason of the party wall agreement referred to, on the theory, it is true, of a breach of the implied covenant for quiet enjoyment in the lease, but is it alone upon that theory that appellees might recover ?
In Cooley on Torts (2nd ed.) page 104, we find the following:
“Indeed, in ma^r cases, an action as for tort or an action as for breach of contract may be brought by the same party on the same state of facts. This, at first blush, may seem in contradiction to the definition of á tort, as a wrong unconnected with contract; but the principles which sustain such actions will enable us to solve the seeming difficulty.”
And we gather from the distinguished writer that cases where fraud or force enter into such a breach of contract, it may be treated either as a breach of contract or a tort and an action be maintained for either. In the case at bar the party wall agreement amounted to a license or permission to another party to enter the leased premises and to excavate under the Avail of the leased building in such a manner as to greatly endanger the goods and fixtures of his tenants, a fact which Weinman must have known, and it seems to us that under the doctrine that he Ai'ho commands or approves is equally guilty with him who performs the act, he Avas guilty of a trespass in conjunction Avith Barnett with Avhom he contracted, permitting him to do the actual wrong. Whitney v. Turner, 1 Scam. 253; Northern Trust Co. v. Palmer, 49 N. E. (Ill.) 555; 28 Am. and Eng. Enc. of Law, (2nd ed.) 566.
In the case of Northern Trust Company v. Palmer, supra, the facts Avere very much like the case at bar. Hawley the lessor in that case had contracted Avith the Florsheims, who were adjoining lot owners with the leased premises, to take down and build a ucav party Avail, the tenant’s goods Avere damaged by such removal of the Avail and she brought a joint action against the lessor and the adjoining lot owners for damages.
In that case the Supreme Court of Illinois, says:
“Hawley could not, by the contract, without the consent of his tenant Fenton, take doAvn and erect a new wall to the building, the necessary or probable effect of which would be to injure the tenant in her rightful and quiet possession, without being liable, jointly or severally Avith the Florsheims, the other Avrongdoers, for damages.
“In Whitney v. Turner, 1 Scam. 253, this court said: ‘The doctrine in relation to trespass is Avell settled that there are no accessories. -All are principals who are in any wise concerned in the trespass. The person who commands or approves is equally guilty with the one who performs the act.’” Cooley on Torts (2nd ed.) 153-; Bishop Non-contract Lrav, Sec. 522-524.
Both Weinman and Barnett' seek to avoid liability on the theory that Grande, the contractor who Avas excavating for Barnett’s building and doing the actual work of excavation at the time the wall fell, Avas an independent contractor and therefore solely liable for the consequences of his acts.
The contract between Barnett and Grande is set out iu the record at pp. 70-71, and so much thereof as is material to this discussion, reads as follows:
“That the said party of the first part, for the consideration hereinafter mentioned, covenants and agrees with the said party of the second part to do all the excavation and stone work required in the erection and completion of a basement to be erected on the southwest corner of Railroad Avenue and Second Street, in the above said city, county and Territory, all to be done in accordance to the plans and specifications, and as directed by J. L. La Driere, the superintendent.”
3 The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the -work contracted for. 16 Am. and Eng. Enc. of Law (2nd ed.) 187; Singer Mfg. Co. v. Kahn, 132 U. S. 518; Railroad Co. v. Hanning, 15 Wall. 649; Comers v. Hennessey, 12 Mass. 96; Forsyth v. Hopper, 11 Allen (Mass.) 419.
Mr. La Driere "was the architect who drew the plans and superintended the construction of the new Barnett building and his testimony was to the effect that he merely saw to it that the excavation was done as provided in the plans and specifications.
But it is immaterial what control over the work was actually exercised by Barnett or his representative, the question is what he might have exercised under the contract with Grande. Campbell v. Lunsford, 83 Ala. 512; Linnehan v. Rollins, 137 Mass. 123.
It is then a matter of construction of the contract as to what power of control -was reserved by Barnett over the acts of Grande and his employees, which determines whether Grande was in fact an independent contractor, or merely a servant and employee of Barnett.
The contract -specifically states that the excavation and stone work to be done by Grande under its terms was to be “as directed by J. L. La Driere, the superintendent.”
The intent of the parties seems to be clear and unambiguous upon its face. If LaDriere, who was unquestionably the agent of Barnett, could direct the work of excavation, he had full power and control over it as to how. when and by what means it should be done. “Direction means general instructions as to the manner of doing it.” Bershire Woolen Company v. Day, 12 Cush. (Mass.) 128.
Speaking of the contract in Railroad Co. v. Hanning, 15 Wall. 649, Mr. Justice .Hunt says:
“The company have the general control, and it may prescribe where each pile shall go, where each plank shall be laid, where each stringer shall be put down, where each nail shall be driven. All details are to be completed under their orders and according to their directions.” .
4 The contract in this case seems as broad in its term,. In superintending and directing there is no limitation upon the power of La Driere, so long as he staid within the plans and specifications. He could direct where every stone should be laid and every shovel full of dirt should be taken out. Grande was therefore a servant of Ba’r-nett, who though he was to receive a stipulated price for his work, executed it under the direction and superintendence of his employer. Bishop on Non-contract Law, sec. 602.
5 But even though .Grande were in fact an independent contractor, Barnett would still be liable if the agreed.method of excavating under the wall in question worked an injury to the rightful occupant of the building, on the theory that the procurer of a tort is .answerable as doer. Bishop on Non-contract Law) Sec. 604; Carman v. S. & I. Ry. Co., 4 Ohio, St. 399; Palmer v. City of Lincoln, 5 Neb. 136; Gorham v. Gross, 125 Mass. 232; Sturgess v. Theological Ed. Soc., 130 Mass. 414.
In the case at bar the jury must have found under the instructions and from the evidence that the injury was caused as a direct result of the excavation under the wall, which it seems was being done under the plans and specifications furnished by Barnett and his architect. In other words, it is not shown that the contractor or his employes were careless or negligent in excavating, but on the contrary that Mr. LaDriere, on the very day the wall fell, was seeing to it that the excavation -at the north east corner of the Weinman building was being done as per contract. (Record pp. 72-73).
Both appellants complain of the action of the trial court in permitting the witness Ruppe to refresh his memory by reading from the bill of particulars filed in the case by order of the trial court, as to the items of goods destroyed and their values. The witness, it is vigorously contended, merely read the bill of particulars to the jury, and a bill of exceptions duly allowed and signed appears at page 176 of the record, reciting that the court over the objection of counsel permitted the witness to read from the bill of particulars, etc.
Upon cross examination the witness testified that the items in the bill of particulars were made up from invoices and inventories taken by himself and his clerk just prior to the damage, deducting his sales and then checking up what was missing, and that it was, as he believed, correct at the time the bill of particulars was made up.
It is impossible to lay down an invariable rule upon the subject of the refreshment of a witness’ memory, and just how and when it may be done is therefore subject to the circumstances of the particular case, to a great degree. Ifc is laid down, however, that any writing may, under certain circumstances, be used for the purpose of stimulating and reviving the memory of a witness, even though it was not made by the witness himself, and though' it may be only a copy of the original writing. 1 Wigmore on Evidence, Secs. 758, 759, 760; 3 Jones on Evidence, Secs. 884, 885.
In the case at bar the bill of particulars consisted of a long list of articles and the prices of the same, compiled by the witness and his clerk, and it would have been an utter impossibility for any person to have remembered the items therein set out.
In such eases it has been held, and we think property, that the memoranda may be read to the jury if the witness knows them to be correct, even though the writing itself cannot bring to his mind independently the separate items. Bonnett et al. v. Gladfelt, 120 Ill. 166; Hudnutt v. Comstock, 50 Mich. 596; Lipscomb v. Lyon, 19 Neb. 511, 27 N. W. 731.
The case of Hndnntt v. Comstock, supra, is, in so far as the question under discussion is concerned, almost identical with the case at bar. 'The court says (p. 601) :
“The only errors alleged which we are to consider are those assigned as 1 and 2. The 1st, that plaintiff as a witness in his own behalf was permitted to read his bill of particulars to the jury......The first objection was to the witness reading from the bill of particulars to refresh his recollection, because it was but a copy from the books. The court overruled the objection and properly so, we think.”
6 Under the circumstances of this case we do not think the court erred in permitting the witness Ruppe to read from the bill of particulars the several items of the goods destroyed, taken as it was from the only source from which anything like an accurate estimate of the goods and their value could be ascertained. It is certainly not the law that a merchant must be able to recall from memory every article in his store and its value before he can recover damages for loss thereof by reason of some one’s wrongful act. To so hold would be equivalent to saying there could be no recovery.
The trial court instructed the jury as to the measure of appellees’ damages, in case of recovery, that they might take into consideration:
1st. Loss of profits occasioned by the removal to another location.
2nd. Yaluo of the stock and fixtures destroyed.
3rd. Injury and damage to stock and fixtures not completely destroyed.
4th. Reasonable expenses of moving to another location.
5th. Expense of repairs to furniture and fixtures partially destroyed; and
6th. Such other items testified about as are the proximate consequence of the acts of defendants complained of.
7 As to the 2nd, 3rd, and 4th items above set out we think there caí; be no question, but they were proper elements of damage to be considered by the jury, providing such loss and expense proven by any competent evidence. Certainly if appellants by their wrongful acts caused the destruction and injury of appellees’ goods they were hold-en for the value of these destroyed and the injury to those damaged, and if such wrongful act caused appellees to have to move the remaining stock and fixtures to another place to again resume their business it seems equally clear that they should pay such expense.
8 It also seems well settled that in a case where, in consequence of a trespass the plaintiff’s business .is destroyed. , damages for loss of profits may be recovered, if proven. 3 Sutherland on Damages, (3rd ed.) Secs. 867-8-9; 1 Sutherland on Damages, (3rd ed.) Sec. 70.
The latter section (70) seems to state the rule concisety, botli as to the riglit of recovery and proof required, as follows:
“In actions for torts injurious to business the extent of the loss is provable by the same testimony as in actions to recover for the loss of profits caused by the breach of contracts, and recovery may be had for such as is proved with reasonable certainty; it is enough to show what the profits would probably have been. Certainly it is very desirable in estimating damages in all cases; and where, from the nature and circumstances of the case, a rula can be discovered by which adequate compensation can be accurately measured, it should be applied to actions of tort as well as to those upon contract. The law, however, does not require impossibilities, and cannot, therefore, demand a higher degree of certainty than the nature of the case admits. If a regular and established business is wrongfully interrupted the damage thereto can be shown by proving the usual profits for a reasonable time anterior to the wrong complained of.”
The case of the City of Terre Haute v. Hudnutt et al., 112 Ind. 542, is a very interesting and instructive ease upon the subject of loss of profits and the means of proving same. The rule there laid down and one which seems to be generally followed is that where a regular established business is injured, the average profits that the business is then earning and has earned is competent proof as to the loss of profits and a clear distinction is made between past and present profits as against speculative future profits, where the business has never been commenced and where the estimate of what the profits might be are necessarily speculative and uncertain.
In Nat'l Fibre Board Co. v. Auburn Electric Light Co., 95 Me. 318, the court in announcing the rule say:
“The defendant again contends that the net earnings or profits alleged to be lost are not recoverable because too uncertain and speculative.......When, however, one has acquired or erected a valuable plant with an established business connected therewith yielding regular profits, and Iris plant is impeded or destroyed in its efficient operation by the tortious act of another, so that his regular profits are thereby lessened, he cannot be made whole unless he is reimbursed for the lost earnings of his plant.....He is justly'entitled to the profits which his sagacRy, skill and industry would bring him in the business if not interfered with. If he- cannot recover from the wrong-doer this actual loss over and above the decrease in the 'rental value, he suffers wrong, to the great reproach of the law.”
■ The learned judge adds that the law is not open to such reproach and quotes from numerous authorities in support of the rule allowing damages for loss of profits to an established business.
9 There is, however, no evidence of loss of profits except the bald statement of the witness Ruppe as to the net profits per month during the time he occupied the Weinman premises; and at the location to which he removed his stock after the wall fell; true, the record shows that he referred to some memorandum to refresh his memory, but it nowhere appears what the memorandum was, nor when or by whom .it was made; nor does he state tnat he knows or e'ven believes it to be correct. This being true, it was error to submit the question of loss'of jmofits to the jury, there being no sufficient evidence to sustain a verdict of such loss.
Nor was there any competent proof of the damage to goods not entirely destroyed, that is, of damage suffered to goods made unsalable by dirt, tom boxes, etc., the testimony of Mr. Ruppe on that item being purely an estimate on his part as shown by pp. 196-197 of the record.
The court instructed the jury (p. 504, record) as follows:
“19.
“If you find the plaintiffs suffered any damage you will also allow interest at the rate of 6 per cent per annum on the amount of property injured or destroyed, if you find that any property in any amount was injured or destroyed from, the 30th day of June, 1902, and if you find from the evidence that there was any injury to the business of the jilaintiffs occasioned by the wrongful acts of the defendants, then 3^011 will also allow interest at the rate of six per cent per annum upon the amount if any found by you, from the 15th day of December, 1903.”
To this instruction both the appellants duly excepted and it is complained of as error by each of them.
10 It seems to be a well settled rule that interest is not allowable as a matter of law, except in cases of contract, or the unlawful detention of money, unless so provided b3^ statute. In cases of tort its allowance as damages rests in the discretion of the jury. Lincoln v. Claflin, 7 Wall. 132; Brent v. Thornton, 106 Fed. 35; Dist. of Columbia v. Robinson, 180 U. S. 92.
In Brent v. Thornton, supra, McCormick, Circuit Judge, speaking for the Circuit Court of Appeals for the fifth circuit, says: — -
“The matter thus being in the discretion of the jury, if they had under a proper instruction returned the verdict in the terms in which it was rendered in this case, it would not have been subject to objection, because the two sums added together would have shown distinctly the damage found by the jury. But the matter of interest should have been left to the discretion of the jury. They might have been charged that they could take into consideration the time intervening from the commission of the tort to the rendering of their verdict, if, in their judgment, the circumstances of the case so required. It was one element of damage that they had a right to consider, and it was their province to consider it, and to pass upon it, and was not the province of the court to decide as a matter of law.”
We hold that the 19th instruction given by the trial court was therefore erroneous.
Much is said in brief of appellant Weinman’s counsel as to whether or not the conduct of'Weinman amounted to an eviction of his tenants, but' as the court did not instruct the jury that it could find any damages as to the value of the unexpired lease and there is no counter claim or set oil for the rent, after the wall fell, it becomes immaterial to the issues in this case. As has been hereinbefore said it is an action sounding wholly in tort and were it not for the effect given the party wall agreement between Weinman and Barnett, the former stands as though he were' a stranger to the title, a mere joint trespasser with Barnett.
If the sum found by the jury for the actual loss and damage to the stock and fixtures less interest and that found for loss .of profits and goods injured, could be computed, this verdict might be allowed to stand upon the filing of a remittitur, but we find it impossible to determine such amount and the cause is therefore reversed and remanded to the District Court of Bernalillo County with instructions to grant a new trial.