Soates, C. J.
There are two questions: First, how shall a party review the proofs and instructions on the inquest of damages, and is the case properly presented ; and second, what is the true measure of damages.-
The inode of presenting the first was laid down in Motsinger, etc., v. Coleman, 16 Ill. R. 71, to be by presenting the proofs and instructions by affidavit or otherwise, to the circuit court, and moving to sot aside the inquest, and preserving the same in the record by bill of exceptions. Such was the view of the court in Morton v. Bailey et al., 1 Scam. R. 215, and that no exception on the inquest itself would be sufficient, without a subsequent motion. See Gillett et al. v. Stone et al., 1 Scam. R. 543.
The inquest was taken in open court, and preserved by motion to set aside the inquest and bill of exceptions taken, containing the evidence and instructions. This all seems regular and proper, and I think this court should regard it as properly presented, and before it for adjudication, for I think the party should have a right to be heard for the correction of errors to his prejudice on the inquest.
I do not think there was any error in the admission of testimony of too extensive and broad a character, nor were the instructions as to the rule and measure of damages too broad for this case. I know the rule excludes profits generally, and prospective or speculative damages, in matters of breach of contract and covenant. Sangamon and Morgan Railroad Co. v. Henry, 14 Ill. R. 156; Burnap v. Wight, ibid. 301; Gilpins v. Consequa, 1 Pet. C. C. R. 95; Boyle v. Reeder, 1 Iredell Law. R., N. C. 614.
This rule may apply in trespass, and case for deceit, so as to exclude that which is too remote and so speculative. Crain v. Petrie, 6 Hill R. 522. But, in these actions, all the damage naturally and consequently resulting, may be given directly, or as smart money for the wrong and insult. Denby v. Hariston, 1 Hawks N. C. Law and Eq. R. 315, is an instance where a trespass, in March, by taking a field of growing grain, was punished in the full value of the matured crop, at the highest market price; and the profits derivable from sawing up logs were allowed against a trespasser who took them, in Buckman v. Nash et al., 12 Maine R. 475. Dickinson v. Boyle, 17 Pick. R. 78; Sedgw. on Dam. 38 to 44; 2 Greenlf. on Ev. 242, Sec. 253 et seq., and notes, 270 ; Secs. 266, 267 and notes; Jeffrey v. Bigelow et al., 13 Wend. R. 518.
But, in cases of covenant and contract, the rule will confine the party to the natural and proximate consequence. 2 Grcenl. Ev. 258, Sec. 256. Sedgwick finds fault with this for uncertainty, when we come to apply it to particular cases, (Sedgw. on Dam. 75) ; and it is found true in .practice, that the rule is varied according to the view of the injury flowing legitimately from the breach. In determining whether this is so, we must look to the nature and terms of the undertaking, and the thing to be done, and how it was expected and intended the parties should enjoy what they had bargained for, and how they were to be, and would be, benefited by the performance, and damaged by a breach of the particular engagement, under the particular circumstances. From a view of the whole together, we trace up to the breach all the alleged injury that is consequent on the state of things, according to its nature.
Thus, from a breach of promise to pay money, the damage is the amount with interest. All advantage from trading, or other speculation with the money, if paid at the day, are excluded; so are injuries for want of it. 7 Maine R. 54, 55. And this is more or less so with all contracts for personal property, and for manufactures, and for labor. They are capable of an estimate, or a valuation. But chis valuation is sometimes varied, and made to embrace the fair and reasonable use in addition, where the property was intended as a means of prosecuting one’s business. Green v. Mann, 11 Ill. R. 616. And again, the difference in the value of property at different days, or places, will be given, when the object was to sell, or resell for profit. 14 Ill. R. 156. But there is another distinction, and that is between real and personal property. Sedgw. on Dam. 47.
Keeping in mind the views and distinctions referred to, we readily comprehend and reconcile apparent contradictions in the decisions, as to the true rule of each class of cases.
Breach of contract to deliver things intended for consumption, or ordinary use, is compensated by an amount which would have re-purchased and delivered on the day, and at the place of performance. Furlong v. Volleys et al., 30 Maine R. 491; Edgar v. Boies, 11 Serj. and Rawl. 445; Owen v. Durham, 5 Dana, 536.
If the breach be in a failure to make repairs or perform labor, the rule of damages will give the cost of the repairs, or what will hire the labor, but profits of a mill depending on the repairs of dam, cannot be included in the costs of repair, Thompson v. Shattuck, 2 Metcalf R. 615 ; but a fair rent or use of the mill was given with cost of improvements for not furnishing them, they constituting in part the means of prosecuting business as a manufacturer. 11 Ill. R. 616.
So of a breach by refusing to receive the labor contracted for, or its products, or not allowing it to be performed, the rule is not confined to mere nominal damages, but the difference between the cost of the actual labor, and the contract price of its products, or the articles furnished by it, will be given as damages. Masterton v. The Mayor, etc., of Brooklyn, 7 Hill R. 61.
In all these cases, both of trespass and contract, the particular circumstances, situation and intention of the party, and the use of the property, or of that bargained for, and so of labor, were respected, and had their full weight in determining what were the legitimate damages resulting from the breach. The same rule, allowing the profits of labor, was sanctioned in Philadelphia, Wilmington and Baltimore R. R. Co. v. Howard, 13 Hawk. R. 344, yet speculative profits are not within the rule. But looking to the nature of the contract, and the situation of the party, that he obtains his livelihood upon this very difference between the cost of his labor and the price to be paid for it, this difference seems the natural damage flowing from its breach, as a legitimate consequence to a person so situated.
So a party, under a promise of a lease, moves to the promises, and possession is then refused, suffers, as a natural result, the expense of such removal. Driggs v. Dwight, 17 Wend. R. 71.
So again, a failure to furnish machinery for a steam mill, will be compensated by a reasonable rent, or use of it, including decay of materials, etc., while the speculative profits of running the mill will be excluded. Boyle v. Reeder, N. C. Law R. 607.
I come, then, to another class of acts, contracts and covenants, having reference, in the effect and result of their performance, to enhance the value or increase the products and enjoyment of our lands, houses, etc.
Thus, in valuing a growing orchard, we cannot exclude the idea of its worth to the premises, and confine its value to young, unproductive trees alone. See 13 U. S. Ann. Dig. 1853, p. 166, Sec. 18 ; Mitchell v. Billingsley, 17 Ala. R. 391; see ibid. 408, as to growing timber.
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Soates, C. J.
There are two questions: First, how shall a party review the proofs and instructions on the inquest of damages, and is the case properly presented ; and second, what is the true measure of damages.-
The inode of presenting the first was laid down in Motsinger, etc., v. Coleman, 16 Ill. R. 71, to be by presenting the proofs and instructions by affidavit or otherwise, to the circuit court, and moving to sot aside the inquest, and preserving the same in the record by bill of exceptions. Such was the view of the court in Morton v. Bailey et al., 1 Scam. R. 215, and that no exception on the inquest itself would be sufficient, without a subsequent motion. See Gillett et al. v. Stone et al., 1 Scam. R. 543.
The inquest was taken in open court, and preserved by motion to set aside the inquest and bill of exceptions taken, containing the evidence and instructions. This all seems regular and proper, and I think this court should regard it as properly presented, and before it for adjudication, for I think the party should have a right to be heard for the correction of errors to his prejudice on the inquest.
I do not think there was any error in the admission of testimony of too extensive and broad a character, nor were the instructions as to the rule and measure of damages too broad for this case. I know the rule excludes profits generally, and prospective or speculative damages, in matters of breach of contract and covenant. Sangamon and Morgan Railroad Co. v. Henry, 14 Ill. R. 156; Burnap v. Wight, ibid. 301; Gilpins v. Consequa, 1 Pet. C. C. R. 95; Boyle v. Reeder, 1 Iredell Law. R., N. C. 614.
This rule may apply in trespass, and case for deceit, so as to exclude that which is too remote and so speculative. Crain v. Petrie, 6 Hill R. 522. But, in these actions, all the damage naturally and consequently resulting, may be given directly, or as smart money for the wrong and insult. Denby v. Hariston, 1 Hawks N. C. Law and Eq. R. 315, is an instance where a trespass, in March, by taking a field of growing grain, was punished in the full value of the matured crop, at the highest market price; and the profits derivable from sawing up logs were allowed against a trespasser who took them, in Buckman v. Nash et al., 12 Maine R. 475. Dickinson v. Boyle, 17 Pick. R. 78; Sedgw. on Dam. 38 to 44; 2 Greenlf. on Ev. 242, Sec. 253 et seq., and notes, 270 ; Secs. 266, 267 and notes; Jeffrey v. Bigelow et al., 13 Wend. R. 518.
But, in cases of covenant and contract, the rule will confine the party to the natural and proximate consequence. 2 Grcenl. Ev. 258, Sec. 256. Sedgwick finds fault with this for uncertainty, when we come to apply it to particular cases, (Sedgw. on Dam. 75) ; and it is found true in .practice, that the rule is varied according to the view of the injury flowing legitimately from the breach. In determining whether this is so, we must look to the nature and terms of the undertaking, and the thing to be done, and how it was expected and intended the parties should enjoy what they had bargained for, and how they were to be, and would be, benefited by the performance, and damaged by a breach of the particular engagement, under the particular circumstances. From a view of the whole together, we trace up to the breach all the alleged injury that is consequent on the state of things, according to its nature.
Thus, from a breach of promise to pay money, the damage is the amount with interest. All advantage from trading, or other speculation with the money, if paid at the day, are excluded; so are injuries for want of it. 7 Maine R. 54, 55. And this is more or less so with all contracts for personal property, and for manufactures, and for labor. They are capable of an estimate, or a valuation. But chis valuation is sometimes varied, and made to embrace the fair and reasonable use in addition, where the property was intended as a means of prosecuting one’s business. Green v. Mann, 11 Ill. R. 616. And again, the difference in the value of property at different days, or places, will be given, when the object was to sell, or resell for profit. 14 Ill. R. 156. But there is another distinction, and that is between real and personal property. Sedgw. on Dam. 47.
Keeping in mind the views and distinctions referred to, we readily comprehend and reconcile apparent contradictions in the decisions, as to the true rule of each class of cases.
Breach of contract to deliver things intended for consumption, or ordinary use, is compensated by an amount which would have re-purchased and delivered on the day, and at the place of performance. Furlong v. Volleys et al., 30 Maine R. 491; Edgar v. Boies, 11 Serj. and Rawl. 445; Owen v. Durham, 5 Dana, 536.
If the breach be in a failure to make repairs or perform labor, the rule of damages will give the cost of the repairs, or what will hire the labor, but profits of a mill depending on the repairs of dam, cannot be included in the costs of repair, Thompson v. Shattuck, 2 Metcalf R. 615 ; but a fair rent or use of the mill was given with cost of improvements for not furnishing them, they constituting in part the means of prosecuting business as a manufacturer. 11 Ill. R. 616.
So of a breach by refusing to receive the labor contracted for, or its products, or not allowing it to be performed, the rule is not confined to mere nominal damages, but the difference between the cost of the actual labor, and the contract price of its products, or the articles furnished by it, will be given as damages. Masterton v. The Mayor, etc., of Brooklyn, 7 Hill R. 61.
In all these cases, both of trespass and contract, the particular circumstances, situation and intention of the party, and the use of the property, or of that bargained for, and so of labor, were respected, and had their full weight in determining what were the legitimate damages resulting from the breach. The same rule, allowing the profits of labor, was sanctioned in Philadelphia, Wilmington and Baltimore R. R. Co. v. Howard, 13 Hawk. R. 344, yet speculative profits are not within the rule. But looking to the nature of the contract, and the situation of the party, that he obtains his livelihood upon this very difference between the cost of his labor and the price to be paid for it, this difference seems the natural damage flowing from its breach, as a legitimate consequence to a person so situated.
So a party, under a promise of a lease, moves to the promises, and possession is then refused, suffers, as a natural result, the expense of such removal. Driggs v. Dwight, 17 Wend. R. 71.
So again, a failure to furnish machinery for a steam mill, will be compensated by a reasonable rent, or use of it, including decay of materials, etc., while the speculative profits of running the mill will be excluded. Boyle v. Reeder, N. C. Law R. 607.
I come, then, to another class of acts, contracts and covenants, having reference, in the effect and result of their performance, to enhance the value or increase the products and enjoyment of our lands, houses, etc.
Thus, in valuing a growing orchard, we cannot exclude the idea of its worth to the premises, and confine its value to young, unproductive trees alone. See 13 U. S. Ann. Dig. 1853, p. 166, Sec. 18 ; Mitchell v. Billingsley, 17 Ala. R. 391; see ibid. 408, as to growing timber. The loss of stock laid in for manufacturing, on a promise of a six months’ lease of certain iron mills, was included in the damages for a breach. Nurse v. Barns, T. Raym. R. 77. The value of an anchor, lost by the breaking of a warranted cable, was included in the damages awarded for breach of the warranty. Bonadaile et al. v. Brunion et al., 8 Taunt. R. 535, (2 Moore, 582, S. C.)
The principle is more fully illustrated in Dewint v. Willse, 9 Wend. R. 325, where the loss of the rent of a tavern stand, at a certain landing, was recovered on breach of a covenant' to run a ferry to that landing. This case strongly illustrates the principle, and the distinction I am noticing. The covenantee owned the landing, and a tavern at it. The ferry was one of the means, or the chief one, of passing to and from it. Patronage to the tavern was a chief motive or consideration; yet nothing in relation to the tavern is inserted or found in the covenant. It is for running the ferry to that landing, near which the tavern is located. In assessing the damage for a breach, the situation of the parties and property is considered, and reparation is made to include the injurious effect.
The covenant before us is for the erection and perpetual maintenance of sufficient fences, on each side of the railroad through these lands, for a crossing and cattle guard, which fences were to be made before the road was constructed. Looking to the situation of the respective parties, one owning and using this inclosed land for purposes of tillage, for his support and profit, the other desiring to construct a railroad through it, will the value of a young, growing crop, estimated as it stands at the planting, or early tillage season, compensate the farmer for a breach of this covenant, by means of which the stock pass in and destroy the crop, before it is so far matured as to be worth any more than the mere grain planted, and labor of preparing the ground and planting it ? If this is all the full extent of redress of such a covenant, respecting such property, to a covenantee thus circumstanced, it would surely fall very far short of affording just and adequate compensation for the injury.
A farmer living upon and cultivating his own land, when he covenants for fencing protection, and its perpetual maintenance, may, and doubtless would, contemplate and intend greater benefit from it than the securing the annual value of the rent of the land, in damage for a breach, or the simple cost of putting up and repairing such a fence. The fence is intended to secure the crops to be planted, cultivated, matured and harvested; in other words, the fullest enjoyment of the land in the purposes for which it is used, and intended to be used. No construction of such a covenant, respecting such property, looking to such an end, would do justice to the party, which limited the obligation to the actual value of the crop before maturity. No farmer would receive a covenant for such an object, if he were told beforehand that the covenantor might destroy his labor and prospect at any season of the year, and settle the injury by paying the estimated value of the crop at the time of destruction. The covenant is not to be construed, and damages assessed, as upon a failure of bestowing common labor, or materials for its erection, upon a general hiring or purchase, nor even of a special contract, unless made with particular reference to the time of tillage or harvesting. It was intended, and should be enforced, to secure the full benefit to arise from the annual harvest according to the season.
Under such a view, the covenant is made to protect or remunerate the owner fully, in the sense and to the extent intended by him. No other view would, under such circumstances; and these arc the results and damages naturally and necessarily flowing from such a covenant, under such circumstances, and so fall within the legitimate rule.
Evidence tending to show how much the land would yield each season, was therefore proper, and within the intent of this covenant. And so, also, in fixing a value upon that product, the usual market value at the usual market, at the harvesting season, was admissible. Out of this it was proper to deduct the expense of tillage, harvesting and marketing. The remainder is the legitimate fruit of the land, labor and expense, and should be secured and awarded as the natural damages of a breach of covenant, made to protect and secure him in his annual tillage, by erecting and maintaining perpetually a sufficient fence.
Entertaining this view of the case, I am of opinion the judgment of the court ought to be affirmed.
Judgment affirmed.
Skinner, J.
This was an action of covenant brought in the La Salle county court, by Ward, against the Chicago and Rock Island Railroad Company.
Judgment by default was entered, an inquest of damages, in open court, was had, and final judgment was rendered for the damages found, against the company.
At the taking of the inquest of damages, the company appeared, cross-examined the witnesses, objected to evidence, and to instructions given on the part of Ward, asked for instructions, and excepted to the rulings of the court adverse to them.
The company moved the court to set aside the verdict, which the court refused, and exception was taken.
The company appealed to this court, and assign for error the several rulings of the county court upon the inquest of damages, and the refusal to set aside the verdict. A bill of exceptions was taken, embodying the evidence, the instructions given and refused, and the several decisions of the court excepted to.
In the case of Morton v. Bailey et al., 1 Scam. 213, this court hold, that in case of judgment by default, the defendant is out of court, cannot introduce evidence, cannot except to testimony, and cannot take a bill of exceptions; but, that he may appear at the inquest and cross-examine the plaintiff’s witnesses.
In the case of Gillet et al. v. Stone et al., 1 Scam. 539, the defendants appeared at the inquest, took exceptions to instructions given by the court, moved to set aside the verdict, which motion was overruled, and exception was taken.
This court held, on error, that the exercise of the power to set aside the verdict, and grant a rehearing, was matter of discretion in the circuit court, with which this court could not interfere, and that this court could not reexamine the decisions of that court upon the inquest of damages. This court also held in the same case, that the statute relating to decisions of the circuit courts, upon motions for new trials and for continuances, does not apply to verdicts upon inquests of damages. R. S. 416, Sec. 23.
According to these cases, this court cannot review the decisions of the court below assigned for error.
The case of Vanlandingham v. Fellows, 1 Scam. 233, decides that on default, a writ of inquiry of damages may issue to the sheriff, notwithstanding the statute, and may be executed by him, or his deputies, anywhere in the county. R. S. 415, Sec. 15.
According to those cases, there is little safety to a defendant, when he admits the plaintiff’s cause of action by a default.
Frequently the amount of damages is the only real question between the parties, and why the defendant should be compelled to deny the cause of action before he can contest the amount of damages, cannot be satisfactorily explained upon principle.
To call an assessment of damages a trial, when the defendant is permitted only to appear and cross-examine the plaintiff’s witnesses, and is allowed no remedies beyond the mere discretion of the court in which the action is pending, is a perversion of language.
The practice of assessing damages by the sheriff, at any time and place, within the county where he may please, is fraught with dangers, apparent to every one; but it is the law, and it is not for the courts to apply the remedy.
In assessments of damages, the defendant ought to be allowed to contest the amount of the plaintiff’s damages, to introduce witnesses for that purpose, and when the inquest is taken in open court, to have the jury instructed as to the law; and lie ought to have a remedy, in case he is deprived of any right under the taking of the inquest, the same 'as in cases of ordinary trial by jury. And such I understand to be the opinion of the Chief Justice; but in concurring in the opinion upon this point, I regard the cases of Gillett et al. v. Stone et al., and Morton v. Bailey et al., overruled, so far as they hold that the defendant has no right, upon inquest of damages, to contest the amount of the plaintiff’s damages, and that the decisions of the circuit court upon questions arising upon the inquest, when presented by motion to set aside inquest, cannot be assigned for error.
The remaining questions are: Did the court err in permitting the plaintiff to prove what the corn destroyed would have been worth when matured and prepared for market; and whether the court erred in refusing the following instruction:
“ In estimating the damages in destroying the crops, the jury, should base their estimate upon what the corn was worth at the time it was destroyed, in the condition it then was. The jury should not estimate the damages at the amount which might have been made by the plaintiff, by raising a crop and selling the same.”
The measure of damages in this case undoubtedly is, the worth of the growing crop at the time it was destroyed, not for immediate use in the condition it then was, but with a view to the use of the ground until maturity, with the right to cultivate and harvest the corn. This is ascertained by the probable amount of corn the crop would produce, and the probable value of the same in the market at the market season, deducting therefrom the necessary cost of cultivating, harvesting and taking the same to market.
The amount and value are necessarily hypothetical, and an opinion upon them can only be formed by taking into consideration the average product or yield of like crops, at the place and under like circumstances, and the average value of corn in the market at the place and time of market, and taking into consideration all facts tending to enlighten the mind upon these points. In other words, What would a prudent man have been justified at the time in giving for the crop, with a view to its maturity, with the right to cultivate and harvest the same, and to have it reasonably secure from destruction while maturing, under all the lights the facts capable of proof would afford him.
This being an action ex contractu, I cannot concur in the opinion of the Chief Justice upon the question of the measure-of damages. The instruction was properly refused, because it is too narrow, leaving the jury to infer that the measure of damages was the value of the crop for use in its then condition, without reference to its final maturity, and excluding the right to use the ground for cultivation and removal of the crop, with the right to the security of sufficient reasonable inclosures.
I cannot perceive there was error in permitting the plaintiff to prove what the crop would have been worth when matured.
It is not the infice of corn in the market, at the particular market season of this crop, that is to control the question of damages in this case, nor do I understand such to have been the object of the evidence; but I can see no objection, for the purpose of ascertaining the general or average market value of corn, and therefrom ascertaining the present probable value of a growing crop, to proof of such value for a series of years up to the time of trial.
This, certainly, would enlighten the jury as to the chances of market prices, and the probable value of this crop at the time of its destruction.
I regret that time will not permit a foil examination of the questions involved in this case, with reference to the authorities.
I concur in affirming the judgment.
Catón, J.
I agree that the defendant may present the facts which occurred on the taking of the inquest by affidavit, if taken before the sheriff; or by the certificate of the judge, as well as by affidavit, if taken in open court, on a motion to set aside the inquest; and may assign for erpor the decision of the court overruling such motion.
I agree to the rule of damages, as laid down by Mr. Justice Skinner, but I do not think, for the purpose of ascertaining the value of the growing crop at the time it was destroyed, that it was competent to prove matters ex post facto, as the value of corn after that crop might have matured, or that a storm or fire which subsequently occurred must have destroyed the crop. I think the amount of damages should be determined in this case, by evidence of facts existing at the time of the breach complained of, and the judgment of men applied to those facts, the same as if the inquest had been taken the same day the crop was destroyed. The rule of evidence is different in some cases of tort.