specially concurring.
I concur in the majority opinion, that the trial court did not err in granting a new trial because of its instructions upon general damages.
I cannot, however, agree with the majority opinion as to the law of the case as to special damages.
What the majority means by stating that “Such a record does not show an ‘established’ business which is a requirement of proof where plaintiff proposes to project his loss into the future on the basis of the business experience of the past,” as used in context seems most confusing. If the majority intend to convey the *289thought that in this case there is no record of the business having ever made a profit and there being nothing further shown, therefore the plaintiff cannot recover because of his failure of proof of any profits, I am in complete accord. If, on the other hand, they intend to convey the thought that the business has not operated a sufficient length of time, such as a new venture, so as to be considered an “established” business and for this reason the question of profits is highly speculative, then I disagree.
The matter of an established business as opposed to a new venture is clearly set forth in McCormick on Damages, § 29, p 107, and in Natural Soda Prod. Co. v. City of L.A., 23 Cal2d 193, 143 P2d 12. In this latter case, cited by the majority, the court stated, 23 Cal2d 193, 199, 143 P2d 12, 17:
“In addition to other items, plaintiff was awarded damages for loss of profits, which defendant contends was not proved with certainty. The award of damages for loss of profits depends upon whether there is a satisfactory basis for estimating what the probable earnings would have been had there been no tort. If no such basis exists, as in cases where the establishment of a business is prevented, it may be necessary to deny such recovery. California P. Mfg. Co., Inc., v. Stafford Packing Co., 192 Cal. 479, 485, 221 P. 345, 32 A. L. R. 114; Gibson v. Hercules Mfg. Co., Inc., 80 Cal. App. 689, 252 P. 780. Tf, however, there has been operating experience sufficient to permit a reasonable estimate of probable income and expense, damages for loss of prospective profits are awarded. Sobelman v. Maier, 203 Cal. 1, 9, 262 P. 1087; Pacific, etc., Co. v. Alaska Packers Ass’n., 138 Cal. 632, 72 P. 161; Landon v. Hill, 136 Cal. App. 560, 29 P2d 281; Pye v. Eagle Lake Lumber Co., 66 Cal App. 584, 227 P. 193; Hacker Pipe & S. Co. v. Chapman V. Mfg. Co., 17 Cal. App2d 265, 61 P.2d 944.”
*290TMs matter is also discussed and the same conclusions drawn in Evergreen Amusement Corporation v. Milstead, 206 Md 610, 112 A2d 901, cited in the majority-opinion.
I agree that plaintiff’s loss of what may he considered earnings as distinguished from future profits is an item of damage to be recovered in an action for breach of an agreement to lease, but I do not believe the law requires any mitigation thereof when employment is found elsewhere.
In my opinion, the facts of this case bring it within the rule set out in McCormick on Damages where at page 148, § 41, the situation we have here is defined as follows:
“* * * if the contract is one that does not require B’s personal service in the actual performance of it, but permits B to employ others to do the work, then obviously no credit can be claimed by A, when he repudiates the contract for earnings thereafter made by B from other sources. B could have made these earnings even if A had not freed him by repudiation from the obligation to carry out the contract with A.”
Also see 15 Am Jur 428, Damages § 31.
In 15 ALB 752, Anno. Damages II, it is stated:
“The weight of authority is to the effect that the rule requiring one to use reasonable effort to obtain other employment in order to minimize damages from breach of a contract does not apply where the contract does not require the use of some special instrumentality, and is not one which must be performed by the party personally, but may be carried out by his subordinates, and which does not, therefore, preclude his entering upon the performance of other similar contracts concurrently with the first, and obtaining a profit from all of such con*291tracts as lie may be able to secure and perform at tbe same time.”
81 ALR 284, Anno. Duty to Mitigate Damages, also sets out this rule:
“* * * on the breach of a contract for personal services or for the use of some special instrumentality, the party wronged will use reasonable effort to obtain other employment, in order to minimize damages; and the amount which he earns in this manner, or which he might have earned had he acted reasonably, will be excluded in the assessment of damages for the wrongful discharge. But this rule is inapplicable to contracts for the performance of some specified undertaking, not necessarily to be performed by the party personally.”
Mt. Pleasant Stable Co. v. Steinberg, 238 Mass 567, 131 NE 295, 15 ALR 749, sets out the principle applicable in the instant case. In that case plaintiff contracted to furnish defendant with teams of horses to be used in defendant’s trucking business. D broke the contract. Damages were claimed but defendant contended plaintiff had a duty to make all reasonable efforts to secure another contract in mitigation of damages. It was held the rule in personal service contracts that a party upon breach of the contract by the other party is required to use other employment and use wages earned therefrom to mitigate damages does not apply. This ease cited the leading ease of Wolf v. Studebaker, 65 Pa 459, 462 (1870), wherein by verbal contract defendant leased to plaintiff the use of her farm for one year. The contract was breached when defendant refused to allow plaintiff on the premises. Plaintiff became employed elsewhere and defendant sought to mitigate plaintiff’s damages to the extent of plaintiff’s earnings. The court said:
“* * # There are undoubtedly cases in which *292such facts do mitigate damages. Such commonly occur in cases of the employment of clerks, agents, laborers or domestic servants for a year or a shorter determinate period. But I have found no case where a disappointed party to a contract for a specific thing or work, who, taking the risk from necessity, of a different business from that which his contract if complied with would have furnished, and shifting for himself and family for employment and for them and his teams, is to be regarded as doing it for the benefit of a faithless contractor. * * * *****
“* * * I would say that where a disappointed contractor for the performance of a specified thing finds something of a different nature from his contract to do, his doing it ought not to mitigate damages. * *
The factor that distinguishes the case before us from one which the party is being paid a wage for his work under a contract for personal services is plaintiff’s right to conduct the operation of this restaurant in any way he saw fit, which would include the right to use his own labor, or employ others to conduct the operation. I think it becomes apparent from a reading of the contract of lease that this was not a contract for personal services and therefore not within the rule allowing mitigation.