because subsequently to the execution of the contract of November 22, 1957, the plaintiff organized a corporation and therefore, it is urged, the corporation would be the real party in interest. This argument, of course, is based on very much of a technicality. Actually there is no proof that the organization of the corporation was completed or that the assets and business of the plaintiff as an individual were conveyed to the corporation. Consequently the contention that the plaintiff is not the real party in interest is overruled.
We now reach the question as to what relief should be awarded. Although the plaintiff has established his right to an injunction, as of the proper time, nevertheless, since the two-year period referred to in the agreement has expired, no permanent injunction should be issued, for that reason and solely for that reason, and the plaintiff's relief must be limited to damages. Considering the amount of damages to be awarded, it must be borne in mind that the Court has the same discretion as a jury. It is a well established principle that while the fact of damages must be established definitely, the amount need not be proven mathematically. Otherwise in cases of this kind the plaintiff might find himself with but an empty victory and the defendant without any obligation to make good the plaintiff's loss. As was said in Hedrick v. Perry, 10 Cir., 102 F.2d 802, 807, by Circuit Judge Bratton of the Tenth Circuit, 'It is enough if the evidence adduced is sufficient to enable the court or jury to make a fair and reasonable approximation'. In that case, which was somewhat similar to the case at bar, the plaintiff was allowed to recover an approximate amount of the profits that he might have realized on business which the defendant caused to be deflected from the plaintiff.
In this case the evidence shows that the plaintiff as a result of the defendant's activities lost to the defendant the business of at least two of his customers, International Business Machines and Page Communications. In 1958 Page Communications Company had occasion to place $ 8,000 worth of business for the purchase of air-conditioning equipment and about $ 500 worth of business for servicing such equipment. In 1959 Page Communications purchased from the defendant between $ 55,000 and $ 60,000 worth of equipment. The testimony shows that the net profit on equipment sales realized by the plaintiff was about 10 per cent, and the normal profit on service and repairs about 30 per cent. for the purchase of air-conditioning the plaintiff was about $ 6,000 in these transactions.
Turning to the International Business Machines, the defendant admitted that he did between $ 6,000 and $ 8,000 worth of business with that concern in 1959. Assuming a ten per cent profit on this business, the amount of loss on this item would approximate $ 800.
Accordingly the Court will award damages in the amount of $ 6,800.
Since the consideration for the note has failed, because the breach of the employer-employee relationship went to the very essence of the contract, the Court will also adjudicate that there is no further liability on the note involved in this case and the note should be delivered up and cancelled.
This conclusion necessarily disposes of the counterclaim, because the Court holds that there is no further liability on the note.
As to damages on the injunction bond, it is well established that there can be no recovery of damages caused by a preliminary injunction, even if the injunction is set aside, unless final judgment after trial is in favor of the party that has been enjoined. Lawrence v. St. Louis-San Francisco Railway Co., 278 U.S. 228, 233, 49 S. Ct. 106, 73 L. Ed. 282; Janssen v. Shown, 9 Cir., 53 F.2d 608, 610; Alabama Mills v. Mitchell, D.C., 159 F.Supp. 637, 639. This rule has also been applied by State courts, Rose v. Martin, 308 Ky. 661, 215 S.W.2d 579, 580; Methodist Churches of New York v. Barker, 18 N.Y. 463, 465.
Accordingly the counterclaim will be dismissed.
The transcript of this oral decision will constitute the findings of fact and conclusions of law. Counsel will submit an appropriate judgment.
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