| Court: | Court of Appeals of Maryland |
| Facts: | Milstead, a contractor, was supposed to clear and grade a site for Evergreen, who were putting a drive-in theater there. Milstead didn't complete on time, and the opening of the theater was delayed for a year; Evergreen declined to pay. The trial court (without jury) found that Evergreen should pay, less damages resulting on the delay computed based on the rental value of the property. Evergreen appealed, and counterclaimed for lost profits. |
| Posture: | Decided in favor of defendant at trial, appealed with counterclaim. |
| Issue: | Whether it is proper to consider putative profits "lost" by a business that has not yet been established. |
| Holding: | The court did not err in excluding evidence about profits, and the judgment is affirmed. |
| Rule: | Loss of profits can only be asserted with resonable certainty when a business has a sufficient track record for making the assertion; otherwise it's just speculation. |
| Reasoning: | This is the language of the restatement §331. Caselaw and Harvard Law Review are also cited. The appellant's reliance on anti-trust caselaw is misplaced, because the standards there are different, owing to the desired policy ends. |
| Dicta: | |