result of a conspiracy by the defendants, it was prevented from exhibiting first-run pictures in a theatre which had never opened. On a record which disclosed that plaintiff intended and was prepared to exhibit first-run pictures, the Court stated that there would be no logic or sound policy for adopting a rigid rule which would preclude the plaintiff from recovering loss of profits simply because it had no established going business in first-run showings.
It is unnecessary to review the decisions in other circuits since this Court's action is governed by the Triangle Conduit decision. It may be noted in passing, however, that statements in American Banana Co. v. United Fruit Co., 2 Cir., 1908, 166 F. 261, 264 and in Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., 2 Cir., 1908, 166 F. 254, 260 are consistent with the Triangle Conduit opinion.
Since one who is prepared and intends to carry on a business is entitled to maintain a treble damage action when a conspiracy prevents him from doing so, the status of plaintiff to sue is clear. The record is replete with evidence which would support a finding that plaintiff was prepared and intended to enter the sea stores business and would have done so but for defendants' refusal to sell it cigarettes. Indeed, on the present motions defendants made no serious contention to the contrary but restricted their argument primarily to the proposition that because plaintiff never actually carried on any business it had no status to maintain a treble damage action.
Since ample evidence exists from which the jury could have found that plaintiff had a 'business' within the meaning of Section 4, it is unnecessary to consider whether the plaintiff had 'property' within the meaning of that Section.
Defendants assert that no evidence exists from which a jury could properly find that plaintiff sustained any damage from the alleged conspiracy. For purposes of the discussion which follows, it will be assumed that defendants did in fact conspire to keep plaintiff out of business.
Story Parchment Co. v. Paterson Parchment Paper Company, 1931, 282 U.S. 555, 563, 51 S. Ct. 248, 75 L. Ed. 544 seemingly affirmed the rule that although the fact of damage must be shown, without any element of uncertainty, to be definitely attributable to the wrong, a dollar value may be assigned to an injury even if some uncertainty exists as to its amount. Later cases, such as Bigelow v. RKO Radio Pictures, 1946, 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652 are said to have clarified Story Parchment, and today, in this Circuit at least, there is the same liberality permitted in proving the fact of damages as exists in proving the amount of damages. Noerr Motor Freight v. Eastern Railroad Presidents Conference, D.C.E.D.Pa.1957, 155 F.Supp. 768, 834, affirmed 3 Cir., 1959, 273 F.2d 218. Nevertheless, there has never been any relaxation of the rule laid down in Bigelow v. RKO Radio Pictures, supra, 327 U.S. at page 264, 66 S. Ct. 574, that a jury is entitled to assess damages only if relevant data exists from which it can make a just and reasonable estimate, and it will not be permitted to render a verdict based on a guess simply because a defendant by its own wrong may have prevented a more precise computation. The fact that the amount of a plaintiff's damages cannot be expressed in exact figures does not necessarily make them speculative. Estimates which are as definite and certain as the subject matter admit are enough if there is a reasonable basis for the verdict. Rankin Co. v. Associated Bill Posters, 2 Cir., 1930, 42 F.2d 152, 155.
In three Supreme Court decisions jury verdicts were sustained in treble damage actions on the basis of evidence of prior business success of either the plaintiff or its predecessor. Eastman Kodak v. Southern Photo Co., 1927, 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684, Story Parchment Co. v. Paterson Parchment Paper Co., supra, and Bigelow v. RKO Radio Pictures, supra. But the absence of prior business history will not defeat a recovery if other satisfactory proof of damages is adduced. Wm. Goldman Theatres, Inc. v. Loew's, Inc., supra; Flintkote v. Lysfjord, 9 Cir., 1957, 246 F.2d 368, 392. In the Goldman case a judgment for treble damages was sustained upon proof of hypothetical profits which the plaintiff claimed it would have made if the conspiracy had not prevented its theatre from opening.
Since the plaintiff at bar had no business history upon which it could base an estimate of future earnings, it was of necessity compelled to rely upon a hypothetical profit theory. Plaintiff contends that there is ample evidence from which the jury could have found that plaintiff would have operated profitably and would have earned $ 68,650 during the damage period. n3 This figure is based upon the assumption that, but for the conspiracy, plaintiff would have made sales to (1) vessels in the Port of Philadelphia, (2) Piranian, a ship's chandler, and (3) Seafarers' Sea Chest Corporation, with resultant net profit computed as follows:
(A) Sales to vessels in Port of Philadelphia (1750 vessels
at $300 per vessel) $525,000
(B) Sales to Piranian, a ships chandler 10,000
Gross Sales $535,000
Profit ratio of 15% on gross sales $ 80,250
(C) Profit on sales to Seafarers' Sea Chest Corporation
(9,000 cases at $2 per case) 18,000
Gross Profits $ 98,250
Less Expenses of doing business 29,600
Net Profit $ 68,650
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