In holding to be warranted a finding that an automobile dealer was liable to a motorcycle driver who was injured in a collision with a car belonging to the dealer, which the latter's driver was demonstrating to a prospective purchaser, where there was a conflict as to whether such driver or the prospective purchaser was actually driving it at the time of the collision, the court in Doyon v. Massoline Motor Car Co. (1923) 98 N. J. L. 540, 120 Atl. 204, supra, said that, so far as the dealer's responsibility was concerned, it made no difference which of the two was driving at the time.

And evidence that a prospective purchaser was driving a car with a dealer's license on it, registered under the name of the defendant dealer, and that he was accompanied by a salesman who was demonstrating for the dealer, was held to be sufficient, "however weak," to go to the jury as bearing upon the ownership of the car, and as tending to indicate the relationship of master and servant between the parties, in Dare v. Boss (Or.) supra, which case was predicated upon the negligence of the prospective purchaser as being imputed to the salesman and the dealer. But, although the evidence of the prospective purchaser's negligence in colliding with another car was apparently considered sufficient to support the finding against both the salesman and the dealer, in Dare v. Boss (Or.) supra, a new trial was granted upon the technical ground that the jury had failed to return an express finding that the prospective purchaser was negligent.

A dealer was held liable in Curran v. Earle C. Anthony (1926) Cal. App. 247 Pac. 236 (hearing denied by supreme court), for the negligence of an employee, in driving a used car while demonstrating it to a prospective purchaser, which resulted in the death of one who accompanied the employee and the prospective purchaser, at the latter's request, with the purpose of advising him as well as of helping the employee to effect the sale.

In upholding a finding that a dealer

in secondhand cars was liable, where a car which an employee intended to purchase was negligently driven during a demonstration test by another employee, the dealer having directed the latter to take his fellow employee out in the car and determine whether it was in satisfactory running order, the court in Reed v. Bennett (1924) 281 Pa. 332, 126 Atl. 764, noted that the dealer's instructions did not require him to drive to a definite locality, but to test and demonstrate the car, that nothing was said as to the extent of the demonstration, and that, in the absence of specific instructions as to the time and manner of demonstration, the mere fact that a time and route were chosen in such a way as to combine business and pleasure was not necessarily inconsistent with the purpose for which the car was placed under the driver's control. A charge to the jury, upon an earlier trial of this case in (1923) 276 Pa. 107, 119 Atl. 827, which was predicated upon the theory that the dealer would become responsible by simply permitting his license plate to be used upon the car, was held to be erroneous, since it failed to recognize that he would not be liable for the demonstrator's negligence in case he used the car for his own purposes. In view of the trial judge's reliance upon a statute prohibiting the use of a dealer's license plate, except for demonstrating, testing, and certain other purposes, the court observed that the dealer had complied with the statute.

And the question whether a salesman was acting as the dealer's agent, so as to make the dealer liable for the former's negligence, in driving to a prospective purchaser a secondhand car which belonged to parties who had agreed to purchase a new car if he could sell the old one, was held to have been properly submitted to the jury in Petruska v. Packard Motor Car Co. (1924) 83 Pa. Super. Ct. 112.

The question whether the driver was acting in the course of his employment for defendants, owners of the car, was held to have been properly submitted to the jury, and its finding against them to be warranted, in

Osbun v. De Young (1923) 99 N. J. L. 204, 122 Atl. 809, where there was evidence of an admission by one of them that the driver had taken the car with permission to demonstrate it. To the same effect, was Martin v. De Young (1923) 99 N. J. L. 284, 122 Atl. 813.

And the liability of a car owner, not a dealer, for the combined negligence of himself, in authorizing his chauffeur to use it in teaching a friend how to drive, and of the latter in operating it, was held to be a jury question in Wilson v. Brauer (1922) 97 N. J. L. 482, 117 Atl. 699, upholding a judgment in favor of an injured pedestrian.

In reply to the contention that an automobile salesman, employed by a dealer, was not acting within the scope of his employment at the time of a collision with another car, the court in Stone v. Traveler's Ins. Co. (1925) 84 Ind. App. 243, 149 N. E. 454, observed that the car operated by the salesman belonged to the defendant dealer, and that the salesman had at other times taken it out for demonstration purposes.

It would seem that the court in Fostrom V. Grossman (1925) 161 Minn. 440, 201 N. W. 929, was committed to the view that if the salesman's negligence had occurred while demonstrating the car it would have been imputed to the dealer, since it held warranted a finding against the dealer, which was based upon the salesman's negligence in driving the car after he had called at the house of a prospect to demonstrate it and found him out.

But, in Stauffer v. Schilpin (1926) 167 Minn. 301, 208 N. W. 1004, where a school-teacher, who was injured while riding in defendant's secondhand car, which was driven by a garage helper (not defendant's employee), claimed that the latter, who had demonstrated other cars for her, was likewise demonstrating this one, the court did not seem to be impressed with this theory, but based its decision for defendant upon the ground that the driver had obtained the car for the particular purpose only of 50 A.L.R.-88.

showing it to another person at another place, and that his authority to use the car did not extend beyond that particular purpose.

And, even upon the assumption that one not regularly employed by the car owner was specially authorized to demonstrate it to a certain person, and did so, it was held in Susser v. Delovage (1925) 73 Mont. 354, 236 Pac. 1082, that the accident happened long after such demonstration, and after the driver had used the car for purposes of his own.

Overruling the contention that testimony of an alleged prospective purchaser, that the salesman had declared that he was on his way to give a demonstration when he ran into a man, should have been received, it was held in Orluske v. Nash Pittsburgh Motors Co. (1926) 286 Pa. 170, 133 Atl. 148, that a finding that the dealer was responsible for the salesman's negligence could not be sustained, where it was shown that the latter was not authorized to take out cars for demonstration purposes except by permission of a department head, and that he did not obtain such permission to take the car out on the night in question.

The purchaser of a car, as well as its driver at the time, was held in Brown v. Wright (1923) 100 Conn. 193 and 200, 123 Atl. 7 and 9, to be liable for damage to another car (due to the former becoming stalled), where the purchaser had instructed the dealer, who sold him the car, to demonstrate it in order to resell it, and asked him to drive it to a certain prospective buyer, the dealer having hired another to drive it, who was apparently taking the purchaser along for the demonstration when the accident occurred.

But the finding that the dealer, as well as the conditional purchaser of the car, would be liable to the owner of the injured car in Brown v. Wright (Conn.) supra, which was based upon the theory that they were engaged in a joint enterprise to dispose of it, and that, accordingly, the driver was the servant of both of them, was held to

Thomas, J., delivered the opinion of the court:

This is the second appeal of this case. The first opinion is reported in 204 Ky. 474, 264 S. W. 1071. Briefly stated, the cause of action alleged was that appellees and plaintiffs below, George Ross and J. B. Raynor, contracted with the appellant and defendant below, Columbus Mining Company, to clean out an abandoned entry to its coal mine located in Perry county, and to open up an air course, and, perhaps, to do other repairs, and were to be paid a designated price per yard for driving the old entry and air course further into the coal, and they were also to have the right to mine and take out coal after cleaning out the entry and the old air course for a period of one year from the date of the contract, and to receive for the coal so mined 47 cents per ton. They were likewise permitted to hire hands to assist them in doing the work. They alleged that they began the undertaking on August 16, 1916, and had the right to operate under it for a period of one year, or until August 16, 1917; that the contract was oral, and made with them by defendant's superintendent, one Stevens. They alleged that they worked themselves, they being practical miners, and hired other help, and at the expiration of five months defendant wrongfully and in violation of the terms of the contract refused to permit them to carry it out, and they brought this action to recover the damages they sustained by defendant's breach, which they properly averred should be measured by the profits they would have earned had they been permitted to prosecute the work for the remaining seven months that the contract was to run.

On the first trial the court gave a peremptory instruction in favor of defendant upon the theory that the contract was verbal, and was within the statute of frauds, because it was not to be performed within one year from the time of its making, and also upon the ground

that the local superintendent, Stevens, had no authority, actual or apparent, to bind his principal by entering into any such contract. Both points were decided in the first opinion adversely to defendant, and upon a second trial there was a verdict and judgment in favor of plaintiffs for the sum of $2,500, and this appeal is prosecuted by defendant to reverse that judgment after its motion for a new trial was overruled.

A number of errors are relied on in brief of counsel for appellant, but we conclude that none of them, except the one hereinafter discussed, possess sufficient merit to require our consideration, and for that reason we will pass them without further notice. The former opinion properly held that this was not an action to recover for the value of services under a contract to perform them, but was essentially an effort on the part of plaintiffs to recover the profits they would have. realized had they been permitted to carry out the contract pursuant to its terms.

Only one of the plaintiffs (Ross) testified in the case, and, in stating what he claimed were the profits which he and his coplaintiff were entitled to recover, he testified that each of them was an experienced and active miner, and that during the remaining seven months of the unexpired life of the contract they could have each mined 12 tons of coal per day, or 25 for the two, and, counting 20 days actual work in each month, which was customary, they would have mined by their own services 500 tons per month, which at the contract price would have been $235, or $1,645, for the remaining seven months as gross profits, and that "shooting material" would have cost them 3 cents per ton, and the remaining 44 cents was claimed as profits which the jury was authorized to and did return in its verdict. Like testimony permitted recovery for the personal services of plaintiffs in opening up

Mr. Sutherland, in the 4th edition of his work on Damages, vol. 3, p. 2695, in stating the rule as to the measure of damages in a contract like this, says: "In an action upon the contract against the employer for preventing complete performance, the contractor is entitled to recover the contract price for the work done, and, in the absence of other damages, the difference between that price and what it would cost to perform the contract as to the residue. This rule contemplates a detailed inquiry into the actual necessary cost of completing the work covered by the agreement."

-lost profits

In other words, the profits for measuring the damages for a breach of this kind of contract for the unperformed period consists in the difference behow ascertained. tween the contract price and the costs and expenditures of the performer in carrying it out if he had not been prevented from doing so by the breach of the other party. See also Kreamer v. Irwin, 46 Neb. 827, 65 N. W. 885; Hammond v. Beeson, 112 Mo. 190, 20 S. W. 474; Royalton v. Royalton & W. Turnp. Co. 14 Vt. 311, and Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, 14 L. ed. 157. The case is not to be confused with one seeking a recovery for the deprivation of a contract for personal services pure and simple, and all the cases and authorities are unanimously agreed that the necessary labor in carrying out a contract of the nature here involved is a part of the expenditures in its performance, and must be taken into consideration in arriving at the net profits (which is the true meas

ure of recovery) as distinguished from the gross earnings realized by full performance.

In the case of People ex rel. Farnum v. San Francisco Sav. Union, 72 Cal. 199, 13 Pac. 498, the court, in defining the term "profits" that a plaintiff would be entitled to recover for breach of this character of contract, said: "In commerce, it means the advance in the price of the goods sold beyond the cost of purchase. In distinction from the wages of labor, it is well understood to imply the net return to the capital or stock employed, after deducting all the expenses, including not only the wages of those employed by the capitalist, but the wages of the capitalist himself for superintending the employment of his capital stock"-which, it will be observed, excluded from consideration, not only wages paid to others in performing the contract, but likewise those that may have been earned by the contractor himself. The same distinction was pointed out and approved by this court in the case of Harness v. Kentucky Fluor Spar Co. 149 Ky. 65, 147 S. W. 934, Ann. Cas. 1914A, 803. In that case we disallowed a recovery for the value of the services of the plaintiff as an element of profits, and in doing so we said: "There is no element whatever in the contract indicating that the employment was personal in its character, or that the appellants could not have had the labor performed by others. On the contrary, if any presumption is to arise from the character of the contract it is that the appellants were to do the mining by the employment of others besides themselves."

It was so proven in this case.

In the more recent case of Langstaff-Orm Mfg. Co. v. Wilford, 160 Ky. 733, 170 S. W. 1, the breach of a contract in all respects similar to the one here was involved, and in directing the measure of damage to plaintiff for its unperformed portion, because of defendant's breach,