It is not certain from the complaint whether the plaintiff intended to state a cause of action as for a breach of contract, or for a tort in the nature of trespass. The appellants, who were the defendants below, made no objection to the complaint on that score, but in their answer proffered an issue upon the breach of contract and the commission of the trespass. The objection now made to the charge of the court is that the complaint did not warrant any instruction as to exemplary damages, and that the expenses incurred by the plaintiff to carry out the contract could not be recovered.
A charge upon either phase of the case was applicable to one of the issues tendered by the defendants; and, as they had invited the issues, they cannot be heard to complain that the court gave an appropriate charge to the jury upon each of them. Our inquiry, therefore, is, does the charge as to the measure of damages declare the law, and was it applicable to either phase of the case?'
If the action had been prosecuted solely to obtain A J compensation for the loss of the contract, the circu m-stances attending the breach could not affect the result, and no damages could be awarded for a tort which the proof of those circumstances showed had been committed. 2 Sedg. Dam. sec. 602. No exemplary damages could be awarded in that case.
But the charge as to exemplary damages was applicable to the tort set out in the complaint upon which the defendants joined issue. Such damages may be awarded wherever a trespass is committed with deliberate violence or oppression. Clark v. Bales, 15 Ark. 452 ; Barlow v. Lowder, 35 ib. 492. No objection is made to the form of the charge. No error is therefore pointed out as to that.
As to the other branch of the charge upon the measure of damages: A plaintiff is entitled to recover the expenses incurred by him in his preparation to perform a contract which, without his fault, the defendant has put an end -to, where the anticipated profits under the contract are too speculative to admit of clear and direct proof. 2 Sedg. Dam. sec. 607 ; 5 Lawson’s Rights, etc., sec. 2623 ; United States v. Behan, 110 U. S. 338 ; Howard v. S. & B. Mfg. Co. 139 ib. 199. That was the state of case made by the proof in this case, under the issue upon the breach of the contract. The plaintiff was, therefore, entitled to recover the loss he had sustained by reason of his outlay and expenses made and incurred in the fair endeavor to perform the contract which he had assumed. He had partially enjoyed the benefit of his preparatory expenditures in the partial performance of his contract. It was proper, therefore, to apportion such expenditures, and the defendants have not suggested that the charge ought not to bear an interpretation which leads to that result.
■ It was proper for the jury to take into consideration the amounts paid by the plaintiff to secure the services of musicians which the defendants required him to provide ; the freight charges on his soda fountain brought from Boston to Pine Bluff,* and the amount paid for tobacco license to enable the plaintiff to supply that article to the defendants’ patrons, for that was fairly within the scope of the plaintiff’s duty under the contract. There was no error, therefore, in admittihg testimony of the plaintiff’s expenses in reference to those matters, or in instructing the jury in regard to them.
*611When the jury retired to deliberate, the court permitted them to take with them a list of the items of ■expense which the plaintiff testified 'he had incurred, instructing them not to consider any claim for anticipated profits or other excluded demands.
Among the items which were not excluded from their consideration was a claim of $28.77 for money expended by the plaintiff for skates, and the sum of $7.50 for moving his household effects from one location to another in Pine Bluff. The jury must have understood that they were at liberty to take these items into consideration in assessing damages against the defendants.
■The removal of the plaintiff ’s household goods was not made in execution of the contract, but solely for his ■convenience. The expenditure was not properly chargeable to the defendants. Nor was he entitled to recover the cost of materials left on hand when the contract was violated. The most that can be demanded in such a case is the difference between the legitimate expenditure made to carry out the contract and the value of the material left on hand. United States v. Behan, 110 U. S. sup. But the value of the skates was not proved. There is no presumption that they are without value. Consequently, there was no basis for a calculation of dam-' ages on account of their purchase.
s ~ 5. PresumppronperhtestilT' cSae¿s ex"
The list of items referred to contained several which could not be made the basis of recovery. The plaintiff had been permitted to testify as to some of them. Before delivering the list of items to the jury, the court caused those just referred to to be marked off or erased, and instructed the jury not to consider them,' and therebj'withdrew the previously admitted incompetent testimony in reference to them. The presumption js that the verdict is based upon the legal items only. Carr v. State, 43 Ark. 99.
*612. There is, therefore, no reversible error as to that. The defendants could not have been prejudiced by the court’s refusal to give, as part of its charge, their prayer for an instruction as to damages to be recovered by them against the plaintiff, for the proof would not have warranted a finding of more than nominal damages in their favor, even if the prayer contained a correct, statement of the law. A finding of nominal damages in their favor could not reduce the amount of the verdict against them, so as to warrant a reversal. No other question in the case is urged by the appellants or considered by the court.
Null atonement may be made for the error pointed out by deducting $36.27 from the verdict. If the appellee will enter a remittitur for that amount, upon the usual terms, within 15 days, judgment may stand for the reduced amount; otherwise the judgment will be reversed» and the cause remanded for a new trial.