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1. On the baseball star's appeal from a jury verdict for the baseball star, and judgment thereon, awarding damages only of the $5,000 fee promised by the orchestra, the judgment will probably be
The trial court instructed the jury, in part, as follows: «If you find for the plaintiff, you may award damages for losses which at the time of contracting could reasonably have been foreseen by the defendant as a probable result of its breach. However, the law does not permit recovery for the loss of prospective profits of a new business caused by breach of contract.»
The baseball star sued the orchestra for breach of contract. His business agent testified without contradiction that the cancellation had resulted in the baseball star's not getting other contracts for performances and endorsements.
The plaintiff, a baseball star, contracted with the Municipal Symphony Orchestra, Inc., to perform for $5,000 at a children's concert as the narrator of «Peter and the Wolf.» Shortly before the concert, the baseball star became embroiled in a highly publicized controversy over whether he had cursed and assaulted a baseball fan. The orchestra canceled the contract out of concern that attendance might be adversely affected by the baseball star's appearance.
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A is incorrect. The trial court misstated the law. A new business can recover for the loss of prospective profits if the new business is able to establish its losses with reasonable certainty. The current law does not categorically prevent all new businesses from collecting lost profits caused by breach of contract.
B is incorrect. The issue of whether the plaintiff should recover and how much the plaintiff should recover is both an issue of law and fact. The judge must appropriately determine what law is at issue to deliver the appropriate jury instructions. After the instructions are read, the jury must apply the facts of the case to the law at issue. Here, the judge incorrectly gave instructions related to foreseeability rather than certainty and misstated the loss profits law. Thus, even though the jury ruled in the plaintiff's favor, the amount of damages was likely impacted by the judge's instructions.
C is incorrect. As stated above, the trial court's jury instructions asked the jury to focus on foreseeability; certainty, not foreseeability, is the proper limiting test in this situation.