Depew v. Ketchum. competent for defendant to testify as to plaintiff's answers as repeated to him by the operator. Identity shown by other evidence.] Davis v. Walter, 70 Iowa, 465. Evidence of an alleged conversation by telephone with one of the defendants, is not to be excluded upon the ground that it is not shown that the person conversed with was, in fact, one of the defendants, when that fact sufficiently appears by the testimony of another of the defendants. Impeaching notarial acknowledgment taken through a telephone.] Banning v. Banning, 80 Cal. 271; S. C., 13 Am. St. Rep. 156. Action for partition. Where there was no fraud, the acknowledgment of a married woman, made out by a notary in due form, cannot be impeached by showing that the acknowledgment was taken through a telephone. (The court disclaims any intention of holding that under any circumstances an acknowledgment may be properly taken through a telephone.) Rule against hearsay applied.] Wilson v. Coleman, 81 Ga. 297: s. C., 6 S. E. 693. In an action for non-delivery of oats, one of the plaintiffs was allowed, against exception, to testify as to a demand made by his clerk, through the telephone, on defendant for the oats, and defendant's reply as repeated to him by the clerk.-Held, that this was error; the evidence was merely hearsay. Morrell v. Koerner-Parker Lumber Co., 51 Mo. App. 592. Telephonic messages which do not purport to come from the opposing party, or one shown to be his agent, are irrelevant and are properly excluded. Distinguishing Globe Printing Co. v. Stahl, 23 Mo. App. 451. DEPEW v. KETCHUM. New York Supreme Court, General Term, Fifth Departent; January, 1894. 1. Lease with reservation of right to sell.] Under a stipulation in a lease reserving to the lessor the right to sell the premises during the term, and binding the lessee to surrender possession in case said sale is made, and the lessor "to pay any damages that the party of the second part may sustain by reason of a sale," Depew v. Ketchum. the lessor's obligation to pay damages upon making such sale is the same as if the right to damages arose from a breach of contract.* 2. Damages; loss of profits.] The measure of the lessee's damages under such a stipulation is the value of the term surrendered; and the value of the term in the case of a farm depends upon the capacity to yield a profit to the man who works it under such a contract as that which the plaintiff held. 3. The same.] Where the contract provided for the plaintiff's working on shares a farm of the defendants for a term of five years, he to receive damages if lessors exercised reserved right to sell meanwhile, and such sale was made before expiration of the first year of the term and possession surrendered at the end of that first year,-held, that the jury might consider the profits of the year during which plaintiff had the benefit of the contract, not as the measure of the profits which might have been realized in each succeeding year, but as facts which might aid them in estimating the value of the contract one year with another. Appeal by defendant from a judgment entered on a verdict. Romane Depew sued Celina B., Anna M., and Caroline E. Ketchum, alleging that in January, 1891, the defendants leased the plaintiffs their "home farm," consisting of about 234 acres of land, for a term of five years from April 1st., to be occupied by plaintiff and worked by him upon shares. The lease contained provisions on the usual subjects of the expense of furnishing seeds, division of produce, payment of taxes, the furnishing of stock and the number of animals to be kept, mending the fences, and the like; and it further contained this provision: "The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on the first day of April of any year during said term, in case said sale is made, and the parties of the first part See note at end of the next case. Depew v. Ketchum. hereby agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each party selecting a man who shall assess the damages." Plaintiff took possession about April 1, 1891, and in February, 1892, defendants gave plaintiff notice that they had sold the premises and requested him to surrender possession on April 1, 1892, which he did. Plaintiff served a bill of particulars of the damages sustained by reason of being deprived of the unexpired portion of the contract set forth in the complaint, describing it as “being the net profit to be made therefrom, to wit: Four years, commencing April 1, 1892, at an average of $750.00 per year$3,000.00. Said sum of $3,000.00 being the value of said contract to plaintiff at the date of its interruption by defendants, April 1, 1892.” On the trial before Mr. Justice ADAMS and a jury, plaintiff proved a contract that he had made with a milkman to take from plaintiff from April 1st at least two hundred quarts a day. He also proved the amount, uses and value of the timber and other produce of the farm during the year of his possession. The suitableness of the farm for grazing and grain raising was also shown, and the number of cows it could keep, and the number of acres that could be kept under the plough, at the same time. Defendants adduced evidence, which they relied on, to show that the lease was not of value to the plaintiff because of mismanagement of the farm on his part, and failure to make any profits. The judge in his instructions to the jury, said, among other things: He [plaintiff as a witness in his own behalf] says that, with proper management, he was able to earn the sum of about $1,000 a year for his own use. From that sum should be deducted, probably, the value of his own services. This evidence has been permitted, not for the Depew v. Ketchum. purpose of establishing the actual value of this lease, because it does not have that effect. As practical farmers, you will understand, without suggestion from the court, that it by no means follows, because in the year 1891 the plaintiff was able to net himself the sum of $991, that he would be able to realize the same amount for any other year of the term. It might be that he would have realized more. It is quite possible that he would have realized less; but you have the fact that he realized this amount, according to his story, for the year 1891. You have had some evidence as to the condition of the farm, and of the season, and this evidence, all taken together, will enable you to determine what would be the value of the lease for the four years which were to follow. It will, perhaps, in addition to your actual experience in such matters, enable you to say how much, under ordinary cir cumstances, the plaintiff would have been able to earn for himself, by the use of the farm during the unexpired years of his lease. This is only an item of evidence from which you may infer what the value of the lease is. If you find that the plaintiff was deprived, by this sale of the farm, of something of value to himself, you will determine what that value was, and what it would be likely to be for the remaining years of the lease, and you will award to the plaintiff such damages as will fairly represent the net value of the farm to him. If you find that the farm was of no value to him, and he has suffered no damage, your verdict will be for the defendants." Edwin Hicks (William T. Morris, attorney), for the defendants, appellants.-I. The plaintiff did not make any proof on which he was legally entitled to recover, and the defendants' motion for a non-suit should have been granted. 1. The action was brought on the contract. There was no breach of the agreement in a technical sense. 2. Whatever may be the apparent difficulty in establishing a proper measure of damages in such a peculiar case, Depew v. Ketchum. the measure adopted was erroneous. (a) The parties contracted in anticipation of the right to terminate the occupancy of the farm on the first day of any April succeeding the commencement of the term. If notice was given in proper time the term ended, and all further rights were terminated, and the damages that were to be assessed were such as should be certain and unequivocal, and attendant upon the election to terminate the agreement. 3. The rule adopted at the trial would produce most inequitable results and such as could not have been contemplated by the parties. (a) The contract, though nominally, would not in fact be either terminated or suspended. The plaintiff, although he had contracted in anticipation of a termination of the agreement on April 1st, yet by the measure of damages adopted, he is permitted to enjoy. now the same results that he contracted to have only at the end of five years, and that, too, without any certainty in regard to the risks incident to future fluctuations of the markets, failure of crops, unfavorable seasons, and many other contingent circumstances that must necessarily enter into an enterprise to be continued through a series of years. (b) The danger of such a rule is illustrated in this case, if the plaintiff has the right to recover for the four years balance of the term upon the alleged results of 1891. 4. If the plaintiff seeks to recover for the full term, he should be compelled to prove all the elements necessary to show his real damage. (a) He was engaged in farming at the time of the trial; there has been no loss of time or opportunity; the plaintiff should be required to show what his actual loss is; if he has been engaged in the same kind of employment, the burden should be on him to show how much less, if anything, he is receiving by reason of leaving the Ketchum farm. (b) A different rule should obtain in this case from that applied in a case of a willful breach of the contract. Both parties were acting in good faith, and according to their covenants. (Bush v. Cole, 28 N. Y. 261; Peters v. McKeon, 4 Denio, |