(concurring specially) : I concur in an affirmance of the judgment. I shall not attempt to state the facts at length, or discuss all the legal questions involved and referred to in the dissenting opinion, prepared by Mr. Chief Justice Bruce.
*127The plaintiff seeks to recover damages for the violation of a certain stipulation, not contained in the written agreement involved in the case. Plaintiff claims that the writing does not constitute the entire agreement, but that an oral stipulation was entered into under which “the defendant promised and agreed with the plaintiff that the isles and passages between the groups of seats into which the grand stand is divided would be kept free and clear of obstructions and spectators so that the plaintiff and his servants could pass freely among said aisles and passages and among the people occupying seats, for the purpose of selling and offering for sale things to eat and drink, among the occupants thereof.” Plaintiff made certain offers of proof with respect to such alleged oral stipulation, which offers were rejected. These offers of proof are set forth in the dissenting opinion for Mr. Chief Justice Bruce, to which I refer. It will be noted that two of the offers of proof relate to the construction placed upon an agreement made in 1911 between the plaintiff and the then superintendent of concessions of the defendant. The written agreement made in 1911 was offered in evidence as part of the offér of proof, and an examination of this agreement discloses that it is wholly different from the writing involved in the case at bar. The term, “grand-stand privilege,” is nowhere found' in the 1911 agreement. The 1911 agreement recites “that the party of the first part has leased and let unto the party of the second part the following privilege only, to wit: The exclusive privilege to operate a refreshment stand and to sell refreshments in the grand stand and bleachers. Said privilege so leased and let, to be conducted upon the premises described as follows: In the southeast corner of the grandstand.”
While the contemporaneous construction placed by the contracting parties on an ambiguous agreement tends to show what the parties intended by the ambiguous terms, and is persuasive evidence of the intent of the parties, it seems obvious that the construction placed by parties upon a different agreement couched in wholly different language would furnish no evidence of such intent. I do not, however, intend to devote any more time or space to this feature of the case, hut will, for the purposes of this opinion, assume that the agreement was as alleged in the complaint (although Moore, the secretary of the de*128fendant, on cross-examination specifically denied any such agreement or understanding).
The evidence shows that the fair was conducted for five days: July 20th, 21st, 22d, 23d and 24th. The evidence also shows that the plaintiff maintained a refreshment stand under the grand stand; that, in addition to the sales there made, he engaged certain boys to make sales in the grand stand and bleachers, and a so-called paddock or lobby. These boys received for their services -20 per cent of their sales. In answer to the question, “How many men did you have working the grandstand?” the plaintiff answered, “Different amounts, different times.” He thereupon testified that he had thirteen boys on July 21st, twelve boys on July 22d, and ten boys on July 24th. He states that he does not know how many he had on July 23d, nor does he venture any statement as to how many he had on July 20th. The two days on which plaintiff claims the aisles were blocked and for which damages are sought were July 22d and 24th. It therefore appears that on these two days he had fewer boys working than on the other days. It also appears that on the afternoon of July 24th, when it is claimed the principal injury was sustained, certain automobile races were being held. Two of the boys engaged in making sales were called as witnesses for the plaintiff, and they both testified that the people were tremendously interested in the races; that the crowd objected not only when the boys were in the aisles, but also when they were endeavoring to pass between the rows of seats. Of course, this was the only way in which they could pass, and these complaints would have existed even though the aisles had not been blocked. The witnesses also admit that they were, themselves, greatly interested in the races, which it appears were the first automobile races ever held on these fair grounds. It .■also appears that on July 22d certain horse races were held, and that these races aroused a great deal of interest, and in a measure duplicated the condition which existed at the time of the automobile races on July 24th.
The only evidence furnished by plaintiff as a basis for assessment ■of damages was a statement of the total amount of cash received by him, and the number of admissions to the grounds and grand stand on each ■of the different days. The cash received by plaintiff included the moneys received at the stand and by the different venders who sold *129refreshments in the grand stand, bleachers, and paddock. Plaintiff admits that he has no knowledge and can furnish no evidence of 'the cash received from sales made in the grand stand on the different days.
I have no quarrel with the legal proposition advanced by the appellant and sustained by the opinion of the chief justice, that “where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery.” 8 R. C. L. p. 442. It is true, the rule as against the recovery of uncertain damages has been generally directed as against uncertainty of cause, rather than uncertainty as to measure or extent. This does not, however, mean that in case of breach of contract a party, by merely showing a breach, will be ■entitled to have a jury speculate upon the amount of damages. It is still true that “the damages recoverable in any case must be susceptible ■of ascertainment with a reasonable degree of certainty, or, as the rule is sometimes stated, must be certain both in their nature and in inspect to the cause from which they proceed. Therefore uncertain, contingent, or speculative damages cannot be recovered either in actions ex contractu, or in actions ex delicto. Several reasons are assigned, one of which is that uncertain or speculative damages are not susceptible of the exactness of proof that is required to fix a liability.” 8 R. C. L. p. 438. The party injured by the breach of a contract is entitled to a just and adequate compensation for the injury, and no more; and where he asks to recover profits, he must show that the profits which he claims to have been deprived of were reasonably certain and probable, and that he lost them on account of the breach of the contract.
It is therefore a general rule that “where an established business is wrongfully injured, destroyed, or interrupted, the owner of such business can recover damages sustained, but in all such cases it must be made to appear that the business which is claimed to have been interrupted was an established one; that it had been successfully conducted for such a length of time and had such a trade established that the profits thereof are reasonably ascertainable.” 13 Cyc. 59. But that, “where a new business or enterprise is floated, and damages by way of profit are claimed for its interruption or prevention, they will be denied for the reason that such business is an adventure, as distinguished from an established business, and its profits are speculative and remote, existing only in anticipation.” Ibid.
*130While profits are allowed when they form a consistent element of the contract and the amount can be estimated with reasonable certainty from established data, profits which- are speculative, conjectural, or contingent and which cannot be -measured by the rules of evidence to a reasonable degree of certainty, or which are not the natural, direct, and certain result of’the breach, are not recoverable as damages in actions-for breach of contract. ’ A party asserting injury is not entitled to-damages for any fancied or probable advantage he might have derived from his contract, and the jury cannot be permitted to speculate whether damages have or have not been occasioned. A party claiming damages by-reason of a breach of contract must show not only the breach, but further prove-that by-reason of the breach, he has sustained injury,, and he must furnish-data from which the amount of such injury can be estimated with reasonable certainty. ■
It 'seems to-me that the’plaintiff in this case has wholly failed to sustain this burden, and has-proved rather than the decrease in his sales was occasioned by causes other than the alleged' breach of contract.
While there is evidence- tending to show that people were sitting in the aisles, the evidence also shows that some sales were made in the grand stand; and that so far as the first four or five rows were concerned the alleged blocking of the aisles’ did not interfere with the sales. Although the evidence tends to show the-alleged blocking made passage more ■ difficult, I do not believe that the evidence shows that this necessarily prevented the salesmen from passing among- the persons silting-in the grand stand.
The testimony of the salesmen called as, witnesses by the plaintiff show that’the people resented any ’ interference with their view of the races. This resentment was expressed not only when the salesmen were attempting to get through the aisles, but when they were passing between the rows’ of seats, and when they were passing their wares among those Seated in' the first rows. ‘ If the evidence' shows any predominant cause for the decrease of sales, it was the interest taken by the spectators in the races and their expressed desire to be permitted to observe them without interruption by reason of venders of refreshments passing back and forth in front' of them.
The conceded interest taken in the races by the audience as well’as *131by tbe salesmen; tbe difference in number and personnel of salesmen; tbe total failure and conceded inability to show the cash received from tbe sales in tbe grand stand on tbe different days, — all inject elements of uncertainty. Taking tbe record as a whole I am unable to find any evidence upon wbicb any person could base an intelligent guess whether, or to what extent, plaintiff was injured by reason of tbe alleged breach of contract. In my opinion there is no data upon wbicb an intelligent estimate as to injury or its extent could be based. And, taking tbe evidence as a whole, it seems inconceivable that any evidence could be adduced upon a new trial upon tbe question of damages, wbicb would warrant any jury in awarding more than nominal damages,