Tompkins v. Dallas Cotton Mill

Cook, J., after stating tbe case. It certainly appearing that the witness’ estimate was based upon the profits growing out of circumstances then existing, we think his Honor erred in not sti’iking out his entire answer, as moved for by the plaintiff’s counsel. And there being no evidence that witness based his estimate or calculation upon any data other than those of profits, his statement, or estimate, should not have been submitted to the jury for consideration. The witness estimated the monthly rental value of the machinery to be $1,500, being the profits derivable from a rising market both as to the raw material purchased and the manufactured goods sold. But if the price of the manufactured goods had gone down with the rise in the raw material remaining, the result would necessarily have been different. So, it is clear to us that his estimate was based upon speculation and uncertain profits, depending upon a variety of contingencies, the failure of any one of which would subvert his whole calculation, and. which are too remote and indeterminate to enter into and become the measure of damages. Manufacturing Co. v. Rogers. 19 Ga., 416. While it appears from his estimate that the market went in favor of defendant, and that it would have made a handsome profit if it had obtained its machinery, and gotten the same in good working oader, and had had a sufficient number of competent employees and laborers and an ample supply of material, and met with no reverses, yet if the market had gone contra, and reverses had befallen it, then, instead of having a profit, it might have incurred a loss, ir, which event the default of plaintiff would have been a benefit rather than an injury. Nevertheless, as the injury can not be estimated by the standard of profits, the law will not allow it to go unredressed. The measure of damage is a fair [352] rental value of tbe mill for tbe loss of time caused by plaintiff’s wrong' — tbat is, tbe portion of tbe mill tbis machinery would bave equipped. If tbis can not be otherwise accurately determined by certain and determinate data, which were "contemplated by tbe parties and entering into their contract, then tbe law will allow tbe legal rate of interest upon tbe capital invested, to be tbe measure (Rocky Mount Mills v. Railroad, 119 N. C., 693, 56 Am. St. Rep., 682), not because it is an accurate criterion, but’ for tbe reason tbat it is approximately just. Tbe party injured by reason of a breach of contract should be, so far as money can do it, placed in tbe same sitution with respect to' damages, as if tbe contract bad been performed. Robeson v. Harman, 1 Ex. Ch., 855-6. In tbe case at bar, there is no certainty as to' what would bave been defendant’s situation if plaintiff bad performed its contract; but it is shown tbat it bad capital invested in its plant and other machinery which was kept idle during tbe time plaintiff was delaying tbe fulfillment of its contract, upon the value of which it is entitled to recover tbe legal rate of interest ; and it may bave incurred losses and expenses which were incidental to such delay, such as insurance, idle labor, deterioration in its machinery, .etc., which could be considered if properly put in issue. Tbe charge and rulings of bis Honor, with respect to which other exceptions are taken, are sustained. For tbe error above pointed out, a new tidal is awarded. New Trial.