(concurring).
I concur in what I think is an extremely close case on the question of damages. I have no doubt that plaintiffs did, in sneaky and indirect fashion, what they had contracted not to do. There exists the possibility that the end obviously sought by the court could have been reached by a defense to plaintiffs’ claim on the ground of partial failure of consideration; but apparently such defense was not offered and the judgment for plaintiffs is not questioned by the defendants.
In any case involving loss of business due to violation of a contract not to interfere with good will, the amount of loss or damage is, in its very nature, hard to prove with exact certainty, and must necessarily present a somewhat speculative aspect; but no more so, I think, than that in those cases which involve, for instance, damages for pain and suffering, loss of future earnings, etc. We entrust a jury with the right and duty to exercise some judgment and make determination. Surely an experienced trial judge should have the same trust in law and in equity.
The evidence does show that following the establishing of the “Colonel’s Pancake House,” the old customers of the restaurant quit coming to “Weaver’s Cafe.” Despite talk of recession and new restaurants down the road, the fact remains that, as the gross receipts of Weaver’s Cafe went down, the ■gross receipts of the competing pancake house went up in somewhat related or corresponding (but opposite) manner. And this pancake house was, in effect, being operated by Weaver and his wife who had sold their “good will” to the defendant.
The evidence showed a fairly definite value for the “good will” at the time the business was sold. In my opinion, when the wrongful competition of plaintiffs by the thinly disguised operation of a competing business so lowered the value of the business sold as to make it unprofitable to continue to operate the same, then this amounted to .a complete destruction of the good will so sold and the court would have been justified in rendering judgment for any amount within the limits of the value of such as shown by the evidence. The case was before a court of equity. I am not inclined to question too closely how such court moved to accomplish its result. Therefore, I concur.