Critcher v. Porter Company.

Connor, J., after stating the facts. The only question presented by the plaintiff’s exceptions relates to the kind and measure of damages to which he is entitled upon the evidence and finding of the jury. It is well settled by all of the text *547 books and adjudged cases that, in the absence of any special conditions or special damage, the true measure of damages for breach of warranty as to the quality or capacity of machinery sold is the difference between the contract price and the actual value. Kester v. Miller, 119 N. C., 475; Mfg. Co v. Gray, 126 N. C., 108. There are cases, however, to be found in our Court and the courts of other States in which, by reason of special and peculiar circumstances other elements of loss enter and may be recovered as damages. If the plaintiff had, immediately upon the receipt of the engine, ascertained that it did not develop 25 horse-power as warranted to do, rejected it, or, as he expresses it, “put it aside,” notifying the defendant thereof, it is clear that he would have been entitled to recover the amount paid and to a cancellation of his notes and the trust deed, together with such damage as he sustained and which were within the contemplation of the parties in his effort to use it. If he had retained and used it, his measure of damage would have been the difference between the contract price and the actual value of the engine, with such special damages as were within the contemplation of the parties. Joyce on Damages, section 1716. The question before us is, however, complicated by the fact that a contract collateral to the principal one was made by the parties. The plaintiff knew that the engine which he accepted, and for which he paid in cash and notes, was not the same which he contracted for. He accepted it with a contract of guaranty that it would develop 25 horse-power, or that the defendant would make it do so. This contract was not performed on the part of the defendant, and for which breach of contract he claims damages. It was not contemplated that the engine should be returned until the defend' ants were given a reasonable time within which to make it develop 25 horse-power. Therefore the rule usually applicable to breaches of warranty in the sale of machinery does not *548 apply. We are of opinion that after a reasonable opportunity given the defendants to make good the guaranty the plaintiff had the right to reject the engine. If he had paid for it he could have sued for damages, and it would seem that the measure of his recovery would be the amount paid and such incidental or special damage as was within the contemplation of the parties, and as he had sustained, subject to be reduced by a fair rent of the engine while using it. If instead of rejecting it he retained the engine, he would recover the difference between the contract price and its real value, with special damages, subject to the same deduction. The courts find difficulty in defining and fixing the limits to what are termed special damages. All authors and Judges concur that the rule or principle to be followed is that laid down in the leading case of Hadley v. Baxendale: “When two parties make a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered, either arising naturally, that is, according to the'usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to defendant, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in a great multi *549 tude of cases not affected by any special circumstances for such breach of contract; for, had the special circumstances been known the parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would have been very unjust to have deprived them.” The Judges concur in the principle, but find great difficulty in applying the rule to the ever-varying cases which are presented for adjudication. Simple contracts of purchase with warranty as to soundness or quality are of easy solution. But when, by varying the orginal contract, either attaching new agreements or conditions, or making contracts collateral to the original, thus introducing difficult and complicated elements, the courts find it extremely difficult to apply general principles working out satisfactory results. Beasley, C. J., in Crater v. Binninger, 33 N. J., 513, 97 Am. Dec., 737, referring to the rule laid down in Hadley v. Baxendale, supra, says: “This is the usual statement of the rule, but the difficulty has been to apply this general proposition to this particular case; for, in any attempt to examine causes in connection with their effects, it will be soon apparent that some criterion is necessary by which to decide what result is proximate and what remote, in a legal sense, to the given act. The standard set up by the decisions above cited supplies to a reasonable degree this deficiency. The test is that those results are proximate which the wrong-doer from his position must have contemplated as the probable consequences of his fraud or breach of contract.” Mace v. Ramsey, 74 N. C., 11. The testimony discloses a contract for the sale of an engine of a certain make, size and capacity. It would seem a reasonable inference that the seller knew that it was to be used to run a saw-mill for cutting logs into boards. ITis guaranty must, in the light of these facts, be construed as an assurance that although the engine was 9x12 instead of 10x12, as *550 contracted for, it would develop for this particular use the same power as the engine contracted for, or that they would make it do so. This of course involved the idea that the plaintiff was to put it in position for use and use it, giving the defendants a reasonable time and opportunity to fulfill their contract. What damage would usually result from a breach of this contract ? What would a man selling such machinery, knowing the use to which it was to be put, the place to which it was to be sent, etc., have reasonably contemplated as the result of a failure to make this develop 25 horse-power ? The plaintiff offered to show, at the time of making the contract, he had contracted with reliable parties for the sale of the output of his mill at a stipulated price. The refusal to permit him to show this is the basis of his first exception. It is well settled that, while for breach of contract the law seeks to give full compensation for actual loss sustained, it will not undertake to estimate uncertain profits. We think that in the absence of any knowledge on the part of the defendants that the plaintiff had made such a contract, damages resulting from it could not be said to be within their contemplation. There is the further objection that the plaintiff did not offer to show that he had logs on hand sufficient to run the mill any given number of days, or for what time the contract extended. If the question as stated in the record had been answered, the jury could not possibly have made it the basis for assessing damages. There were too many elements of uncertainty involved to form the basis of any verdict. It may be that the plaintiff intended to show how these matters were, but we must pass upon the exception as presented to us in the record. In Lewis v. Rountree, 79 N. C., 123, 28 Am. Rep., 309. the plaintiff was permitted to recover upon the basis of the price of the rosin in New York, to which point it was *551 shipped, for the reason that it was purchased for that purpose and the defendant had notice of it. In Mace v. Ramsey, supra, the boat was hired for a particular occasion and the plaintiff had engaged a certain number of passengers at an agreed price. The Court held that such loss as ensued was within the contemplation of the parties. In Mfg. Co. v. Rogers, 19 Ga., 416, it was held that damages could not be recovered for failing to ship machinery for a cotton mill based upon anticipated profits from the output of the mill, Lumpkin, J., saying: “The gains were too remote and uncertain, depending upon a variety of contingencies, the failure of any one of which would subvert the whole computation.” The slightest reflection will show the number of contingencies attending a sale of the output of a saw-mill — the weather, a breakdown of the mill, failure to get logs, etc. Sycamore Co. v. Strum, 13 Neb., 210. His Honor properly excluded the testimony. The plaintiff excepts to the refusal of the Court to give certain special instructions, first, that the plaintiff is entitled to recover reasonable rent and insurance for the buildings, which were idle by reason of the delay of the defendants to furnish an engine according to contract. We find no evidence upon which to base this instruction. The plaintiff says nothing of any buildings being idle or of any insurance, paid. The same is true in regard to the second prayer. There is no evidence that the logs were damaged, or, if so, to what amount.- The third prayer is based upon the principle announced in Kester v. Miller, supra. The plaintiff was entitled to this instruction. For the reasons given in that case, the plaintiff is entitled to such damages as he sustained while operating the mill at the defendant’s request to enable them to make the engine develop 25 horse-power. The defendants knew that the mill was being operated at their request and *552 for tbeir benefit. They knew that it required hands, teams, etc., to operate the mill, and any loss sustained in doing so must have been within the contemplation of the parties. It is true the evidence on this question is very meager, and if there was no more than we find in the record the jury would have found difficulty in assessing the plaintiff’s damages. There was, however, some evidence of the number of hands engaged about the mill, the price paid them, and the difference per day in the output of the mill as it was and should have been according to the contract, and the value thereof. This exception must be sustained. Mfg. Co. v. Rogers, supra. This ruling does not include hands and teams employed in logging. It includes only those employed in running the mill. The fourth prayer is disposed of by the ruling upon the rejection of the proposed evidence. The same ruling applies to the fifth prayer. The sixth is included in the disposition of the third prayer. The seventh prayer is disposed of by what is said in regard to the fourth. There is no evidence that the defendant knew of the employment of teams, etc., for logging the mill. The eighth prayer, in so far as it applies to the amount invested in the milling outfit, should have been given. Eor any time that the milling machinery was idle the plaintiff is entitled to interest on the amount invested. Boyle v. Reeder, 23 N. C., 607; Rocky Mt. Mills v. Railroad, 119 N. C., 693, 65 Am. St. Rep., 682. There is no evidence to sustain the ninth prayer, and the same is true as to the tenth. We have carefully examined the entire record. For the reasons pointed out, there must be a new trial on the third issue as to damages. The plaintiff will recover the costs in this Court. New Trial.