ing that an execution in said former action had been duly issued and returned unsatisfied prior to the institution of the present action. In making this contention the appellant relies upon the case of Passow & Sons v. United States Fidelity etc. Co., 177 Cal. 31 [170 Pac. 1124], and it is conceded by the respondent that if the undertaking sued upon herein is to be held the statutory undertaking provided for in said section of the code, the above-cited case must be given full application to the case at bar and the judgment herein be reversed. The respondent, however, maintains that said undertaking is not such statutory bond, but, on the other hand, is a common-law bond given by the defendant herein directly to the plaintiff herein pursuant to an agreement between the parties to said former action as to the release of the property of the defendants therein upon the execution and delivery of said bond binding the surety company as the maker thereof directly to the plaintiff for the payment of whatever judgment was obtained by it against the defendants in said former action, and hence that the case of Passow & Sons v. United States Fidelity etc. Co., supra, has no application to the facts of the case at bar. The respondent in making this contention relies upon the case of Kast v. Pacific Surety Co., 185 Cal. 450 [197 Pac. 339], as conclusive upon the question and we are satisfied that its contention in this regard must be sustained. The undertaking in question recites that it is given pursuant to an agreement between the parties to said former action for the release of the property attached therein. It runs directly to the plaintiff in said action and its maker by its express terms agrees and promises that in case the plaintiff recovers final judgment in said former action, "we will on demand pay to plaintiff the amount of whatever judgment may be recovered in said action."

The case of Kast v. Pacific Surety Co., supra, distinguishes an undertaking in this form from that under consideration in the Passow case, and upon the reasoning and authority of said more recent decision it follows that the judgment herein must be affirmed, and it is so ordered.

Tyler, P. J., and St. Sure, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 20, 1923.

[Civ. No. 4511. First Appellate District, Division One.-June 23, 1923.]

HILMAR STEPHANY, Appellant, v. HUNT BROTHERS COMPANY (a Corporation), Respondent.

[1] CONTRACTS-EXCLUSIVE AGENCY-BREACH-LOSS OF PROFITS-EVIDENCE-RECOVERY ALLOWED.-In the event of the breach by the principal of a contract constituting another the exclusive agent for the sale of the products of the former, where the loss of profits cannot be estimated with sufficient certainty, recovery may be allowed for actual expenditures of money and for loss of time in connection with the contract.

[2] ID. ACTION FOR DAmages - RECOVERY OF EXPENDITURES EviDENCE-JUDGMENT APPEAL.-In this action to recover damages for the breach of a contract constituting plaintiff the exclusive agent of defendant for the sale of the products of the latter, the evidence having shown that plaintiff held a similar contract with another company and that he had divided his efforts in his endeavor to sell the products of both companies, the conclusion of the trial court that defendant could only be charged onehalf of plaintiff's approximated expenditures was determinative and conclusive on appeal.

[3] ID.-LOSS OF TIME AND PROFITS-EVIDENCE-JUDGMENT.-In such action, the evidence having afforded no definite basis upon which a judgment for services and prospective profits could be predicated that would not be conjectural and speculative, the trial court properly denied the relief sought under those items.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge. Affirmed.

The facts are stated in the opinion of the court.

Jay Monroe Latimer and J. E. Pemberton for Appellant.

Chickering & Gregory for Respondent.

TYLER, P. J.-This action was brought to recover damages for the breach of a contract. Recovery was had by plaintiff in the sum of $1,675.15, but deeming this sum to be inadequate, he moved for a new trial. The motion was

automatically denied, and this is an appeal by him from the judgment and order.

The record shows that the contract sued upon was entered into by the parties on September 15, 1915. By its terms plaintiff was constituted the exclusive sales agent for defendant's products, consisting of numerous varieties of canned fruits, in the countries of Sweden, Norway, Denmark, Germany, Austria-Hungary and Switzerland. The contract was to exist for a period of five years from its date. Plaintiff's sole compensation for his services was to be computed upon a commission basis, it being agreed that he was to receive six per cent on the amount of consummated sales, out of which he was to pay his expenses and any subagents he might employ. To properly carry out his part of the contract plaintiff concluded to visit the countries mentioned therein. Accordingly, at his own expense he made a trip to Europe, which consumed some five months or more, upon which occasion he appointed subagents to solicit business, and did in fact procure certain orders. The bulk of these orders, however, went only as far as New York, owing to the refusal of the War Trade Bureau in Washington to issue permits for shipment abroad, and they are not here involved. Confronted with this situation, plaintiff returned to this state, it being impossible for him. to do business of any kind in either neutral or belligerent countries. Shortly prior to the time that the contract in question was entered into plaintiff had procured a similar agreement with the Haiku Fruit and Packing Company to handle its goods in the same territory and for the same period covered by his contract with defendant. The product of the Haiku Fruit Company consisted of canned pineapple, a commodity defendant company did not handle. In the latter part of the year 1918, and upon the signing of the armistice, the embargo with European countries was lifted and plaintiff thereupon offered to complete performance of his contract with defendant company. He was notified that it had abrogated the same and that so far as it was concerned the matter was at an end. Plaintiff thereupon brought this action for damages sustained by him in consequence of the breach of the contract on the part of defendant.

By the prayer of the complaint plaintiff seeks to recover the expenses incurred by him in the sum of $3,342.25; he also asks for $10,000 as compensation for loss of time, labor, and skill employed by him in making his trip to Europe, and for the further sum of $100,000 by reason of the wrongful abrogation of the contract.

The trial court found in effect that, while plaintiff had observed and performed all the provisions of the contract required of him to be performed, and had in so doing expended time and money upon the faith that defendant would carry out its obligations, the company failed to do so, but, on the contrary, breached its agreement. It further found that the trip to Europe taken by plaintiff was a necessary act to properly carry out the agreement, and that the expense incident thereto amounted to the sum of $1,676.16. Upon the items of claimed damages for loss of time and prospective profits, however, it was found that the evidence was insufficient to form any basis for compensation upon the subjects, as it failed to establish any method by which such damage might be ascertained with any reasonable probability or certainty, and relief was accordingly denied upon these items.

Plaintiff appeals from the judgment and from the denial of his motion for a new trial, claiming that under the evidence he has been inadequately compensated for his loss growing out of the breach of the contract by defendant.

Under the terms of the contract, as above pointed out, plaintiff was not entitled to compensation for expenditures incurred by him in the performance of his obligations as payment for his services was provided for upon a strictly commission basis, and the amount thereof was to cover any and all outlay on his part. [1] It is conceded, however, that in the event of a breach of contract, where loss of profits cannot be estimated with sufficient certainty, recovery may be allowed for actual expenditures of money and for loss of time in connection with the contract.

[2] Plaintiff contended at the trial that he actually expended in connection therewith the sum of $3,342.25. It appears from the record that this sum was a mere approximation on his part of his expenditures. He insists, however, that he should have been allowed the full amount so approximated by him. It developed on his cross-exami

nation that he had a similar contract with the Haiku Com. pany for the sale of that company's product, and that upon the occasion of his European trip he divided his efforts in his endeavor to sell the products of both companies. In rendering judgment upon this element of damage the judge of the court below no doubt concluded that defendant company could only be charged one-half of the approximated expenditures, for the sum allowed is practically one-half of that amount, it being some five dollars in excess thereof. Respondent makes no objection to the excess, and appellant is in no position to do so as he is not injured thereby. The finding of the court upon this subject being one of fact, and there being evidence to support it, is determinative and conclusive here.

[3] Upon the element of damages concerning the value of plaintiff's services for his loss of time, there is no evidence in the record upon which a judgment for damages could be predicated. Defendant himself, when asked to put a value on them, stated that on account of their peculiar nature he was unable to do so. It appears in evidence that he had for a number of years represented other companies dealing in similar products, and that he maintained a store in Berlin, where he kept such goods on hand, and that he was known as a dealer in California products. While this experience may have added to his value as a sales agent, it in no manner afforded the court an opportunity of determining with reasonable or any degree of certainty the damages suffered by plaintiff in this connection. Without some evidence upon the subject a determination thereon would have been purely conjectural and speculative. If defendant himself could not place a value upon his services the trial court was in no position to do so, in the absence of any other evidence showing their value, and there was none. We are of the opinion, therefore, that as to this element of damage the ruling of the trial court was also correct.

The remaining element of damages, referring to the loss of prospective profits by reason of the breach, presents appellant's main contention.

Upon this subject plaintiff offered in evidence proof of the fact that he had procured between September, 1915, and February, 1916, orders for 2491 cases of defendant's

62 Cal. App.-41