(dissenting): Perhaps the indisputable facts were sufficient to prove some substantial damages, which would support an additional assessment of punitive damages under the salutary rule laid down by Mr. Chief Justice Kingman. My difficulty is with the specific allowances for actual damages and for loss of profits. If the trial court had- chosen to believe plaintiff’s testimony as to the replacement value of the stolen property, which was $125, this court could not meddle with it. (Brenneisen v. Phillips, 142 Kan. 98, 45 P. 2d 867.) But the trial court rejected that testimony altogether and found its value to be $95, on evidence that was neither competent nor material. The witness who testified to that value had not seen the machine since he sold it about two years and four months before it was stolen. And he merely assumed that *34one year and six months after he had sold it (which was almost ten months before it was stolen) it might be worth $95. If defendant had not been under the obloquy of being an alleged “fence for stolen property,” as counsel for appellee assured us he was, I do not think the evidence of $95 as actual damages would have been regarded as sufficient to sustain the’judgment on that point.
The fact that there was competent evidence of value, $125, to which the trial court gave no credence, cannot justify a valuation of $95 based solely on incompetent and immaterial testimony. (See Schreiner v. Rothgarn, 150 Kan. 325, 330, 92 P. 2d 59.)
I cannot assent to any part of the allowance for loss of profits. Given the most generous construction, the $5 per day profit on plaintiff’s business “in the summer months” meant his gross profits. Indeed, that was the trial court’s interpretation of the evidence when it was being given. The record reads:
“The Court: ... I haven’t heard any testimony yet as to what the profit was in a day. Gross business is one thing. Profit is another.”
The later evidence offered by plaintiff did not supply that deficiency. Moreover, plaintiff’s testimony merely was that his [gross] profits were about $5 or $6 per day “in the summer months.” Both popularly and astronomically, in this latitude, the summer months had passed when- plaintiff’s compressor was stolen. I therefore dissent.