Bercut

In January 1943 Pierre and Jean Bercut (appellants) contracted to sell to one Serge Hermann 60,000 cases of wine, deliveries to be made at monthly intervals over a period of three years. The contract was made and was to be performed in California. Hermann assigned the contract to appellee Park, Benziger & Company, herein for brevity sometimes called the buyer. In April 1943, before deliveries commenced, the Bercuts announced that they would make no deliveries. The buyer, electing to treat the announcement as an anticipatory breach, brought suit and was awarded damages in the sum of $72,687.51. 1 Both parties have appealed; but it will be unnecessary to consider the buyer’s appeal since its submission was conditioned on our failure to affirm the judgment.

1. The evidence was that other wines of the type contracted for were not available on the market. The court submitted the case' to the jury on the principle that the buyer was entitled to recover prospective net profits which it would have made in the ordinary course of business had not the sellers breached the contract. 2 The Bercuts claim that prospective profits are not recoverable unless it is shown that at *733 the time the…