Consumers' Pure Ice Co. v. Jenkins

Mr. Presiding Justice Waterman delivered the opinion of the Court. In the early part of the year 1890, The Consumers’ Pure Ice Company entered into a written contract with the Consolidated Ice Machine Company by which the latter undertook for the sum of $90,000 to build and complete ready for use, in the language of its proposition “ one of our most complete and latest improved one hundred and twenty ton ice making plants, consisting of two separate and distinct sixty ton ice machines and appurtenances, apparatus and connections therewith in accordance with the following specifications, viz.:” The plant was not completed at the specified time, and various disagreements grew out of the contract. The Ice Machine Company insisted that the delay was caused by the Consumers’ Company, that extra work was done for it upon its order, and demanded payment. A considerable amount had been paid upon the contract when the Ice Machine Company became insolvent and appellee was made its assignee. Appellant and appellee being unable to agree, this suit to recover a balance claimed to be due was brought, with the result of a finding and judgment for appellee, the trial having been by the court without a jury. The following statement by the court appears in the record: “ In this case the finding will be for the plaintiff in the sum of $40,425. This is made up of $4,000 extras, interest for three years and one-half at five per cent on $31,000, $1,000 is deducted for building and brick in changing smoke stack by agreement and $8,000 for delay.” We see no sufficient reason for interfering with the conclusion of the court as to the $4,000 for extras, and $1,000 for building and brick in changing smoke stack. In respect to these matters the questions are substantially of fact. As to the $8,000 allowed for delay, we do not agree with appellant in its contention that the proper way to arrive at such damage is to take estimates of the profits that could have been made had the plant been completed when promised. No method much more likely to mislead could well be devised. Such estimate is purely conjectural. A thousand things might have prevented the realization of the profits sanguine witnesses estimate could have seen. Customers may fail to pay; rivalry may cause a decline in price; accidents may suspend business; injuries to employes or strangers may cause loss; dishonesty may sweep away funds. The real reason why estimates of profits that could have been made is not the proper criterion for ascertaining damages in such a case, is because such is not the method pointed out by the law. Calculations as to prospective profits in other enterprises which a party would have engaged in, had his contract with' a defendant been fulfilled, are altogether too remote to form the basis of damages occasioned by the breach of such contracts. Fox et al. v. Harding et al., 7 Cushing 516; 2 Greenleaf on Evidence, Sec. 256; City of Chicago v. Huenerbein, 85 Ill. 594; Chicago City Ry. Co. v. Howinson, 86 Ill. 215; Frazier v. Smith, 60 Ill. 145; Benton v. Fay, 64 Ill. 417. When a party being about to embark in a new business is wrongfully prevented by another, he can not recover expected profits, for there is nothing to prove that such profits would have been made. 1 Sedgwick on Dam., Sec. 183; Green v. Williams, 46 Ill. 206; Hair v. Barnes, 26 Ill. App. 580. The damage for a failure to supply a machine is the value of the use of it, i. e., what could such a machine have been rented for; what would the rental of such a plant be worth. Sedgwick on Damages, Secs. 183, 186. We therefore-sée no sufficient reason for disturbing the conclusion of the court that the sum of $31,000 was due appellee, three and a half years prior to the entry of judgment. As to the allowance of interest the case of Downey v. O’Donnell, 92 Ill. 559, seems to a majority of the court to conclusively establish the right to recover, upon the written contract, interest upon whatever sum has been improperly withheld. See, also, Morris v. Wifaux, 47 Ill. App. 630. Appellant has had the use of this plant for three and a half years, enjoyed for that period the benefit of appellee’s services and disbursements, and if by the statute interest is given in such case, we see no hardship therein to appellant. The judgment of the Circuit Court is therefore affirmed.