Dieffenbach v. McIntyre

1952 OK 453, 208 Okla. 163, 254 P.2d 346



In cases where a loss of anticipated profits is claimed as an element of damages, a business claimed to have been interrupted must be an established one, and it must be shown that it has been successfully conducted for such a length of time and has such a trade established that the profits therefrom are reasonably ascertainable. 


Plaintiff  filed an action against defendant seeking to recover rental paid, damages for repairs made upon a building leased by her from the defendant, and anticipated profits lost by her because of her removal from the building. The trial court submitted the cause to the jury as to the rental paid and cost of repairs, but refused to permit the introduction of evidence as to loss of anticipated profits. Defendant appealed from the judgment against him rendered on a verdict by the jury in favor of plaintiff, and plaintiff cross-appealed from the refusal of the trial court to permit her to introduce evidence as to loss of anticipated profits. The court affirmed the judgment of the trial court.


Did the court err in refusing to permit her to present to the jury for its consideration the profits made by her while operating in her previous location?




The court stated that the lessee (plaintiff) was entitled to be put in possession of the entire building by the lessor (defendant) and the failure of defendant to so place her in possession, or at least to place her in possession at the time he assured her attorney she would receive possession of the entire building, was a breach of the lease. The business of the plaintiff, after her removal from her uptown location to defendant's building, had not been conducted for such length of time as to render it an established business, and the trial court properly refused to permit evidence of her claimed losses to go to the jury.

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