Manning J.:
This is an action to recover damages for not shipping' from Sandy Hill, in the state of New York, to the plaintiff at Ontonagon, a circular saw mill purchased of defendant, and agreed to be shipped by him on a certain day.
On the 81st of July, 1855, plaintiff contracted with defendant for a circular saw mill. The contract price was four hundred and thirty-five dollars, of which sum two hundred and thirty-three dollars were paid at the time, by a note at six months, payable, with use, at the Michigan Insurance Bank, and the balance was to be paid in cash on the 15th of August, when the mill was to be shipped. The declaration, after setting out the contract, alleges the balance of the purchase money ivas paid in cash on the 15th of Au_ gust, and that defendant did not ship the saw mill on that day, nor until two months thereafter, and that by reason thereof it did not reach its place of destination during the season of navigation, and was detained until June of the following year; whereby the plaintiff sustained great damages in the hiring of laborers, who remained idle, in expenses, and money paid out in preparing his ground and buildings for immediate use of said circular saw mill in the sawing of lumber, and in stocks and provisions which became useless; and had been deprived of large gains and profits which he might and would have made in his said business of sawing lumber, for which the said circular saw mill ivas intended, and for which he, the said plaintiff, prepared at large expense, &c.; to his damage of three thousand dollars.
On the trial, plaintiff introduced depositions of some half dozen witnesses to prove the matters set out in the breach of his declaration. Certain parts of each one of these depositions tvere objected to, and by the rulings of the court Avere not permitted to go to the jury; and exceptions were taken by plaintiff. I do not deem it necessary, nor is it my intention, to notice these exceptions further than to remarlo [356]*356that the object of plaintiff, it would seem, and the tendency of nearly if not all of the excluded testimony, was to prove the profits pilaintiff might have made in the business of manufacturing lumber had the circular saw mill been shipped on the day mentioned in the contract, and arrived at Ontonagon in due course of navigation early in the fall. I have no hesitation in saying, in this view of the case, the judge was correct in ruling as he did — so far, at least, as the testimony offered related to profits.
If the object of plaintiff had been that, as he had shown every thing save the circular saw mill was in readiness to commence the manufacture of lumber, he was entitled to recover as damages what the use of the mill was worth in a complete state, for the time he was deprived of its use by reason of defendant’s not performing his contract; and if the rejected testimony had tended to prove the value of such use, the question would have arisen whether that was the proper measure of damages in such a case; but as it is' not before us, I do not wish to be understood as expressing an opinion one way or the other. By use of the mill I do not mean what might have been made in running it, for that is more properly profits, but what would have been a fair rent for it by one wanting it for the manufacture of lumber. The question, however, would not have arisen had the excluded testimony been received; 1st, Because it did not appear plaintiff had a boiler and engine on the mill premises, or at Ontonagon, for propelling the saw; and, 2d, Because none of the witnesses were examined as to the value of the use of the mill. I am therefore of opinion the testimony was properly rejected by the circuit court.
There was evidence before the jury of the price of the mill, and of its payment, and that it was not shipped by defendant at the time he agreed to ship it, nor until some time thereafter, and that it did not reach Ontonagon until some time in May, 1856, and that if it had been shipped at Sandy Hill on or about the 25th August, it would have reached Ontona[357]*357gon in thirty days by the usual course of -transportation. With this evidence before the jury, the judge charged them that plaintiff was entitled to nominal damages only, to which an exception was taken; and the question is now before us, whether the charge was correct under the circumstances. I think in such a case the plaintiff’ is entitled to damages equal to the interest on the four hundred and thirty-five dollars, the price paid defendant for the mill, for*the time he was deprived of the possession of it in consequence of defendant’s breach of the contract. It is the same as though he had retained the mill in his possession, against the will of the plaintiff, for the same length of time. Will the law permit the vendor of an article to retain both it and the money he has received for it, against the will of the vendee, without making the latter compensation equivalent to the use of the money he has given in exchange ? Shall he be permitted to say to the vendee, “ If you had had the article in your possession you would not have used it”; or that, “The use of it would not have been equivalent to the interest on the money you paid me for it, and therefore you have sustained no damages, or less damages than you demand.” It is not for a wrong doer to put such a question to the injured party; and if put, the reply to it is, “ If you had delivered me the article and I had retained the money, the law would give you the money with interest. The article I purchased of you, in my hands, is equal to the money I gave you in exchange; otherwise I should not have purchased it of you: why not then give me interest on its cost while you have wrongfully withheld it from me? Suppose it was Power’s Greek Slave I had purchased of you at $10,000,— would the law require me to show the use I would have made of it, and the dollars and cents I had lost in being deprived of the possession of it ? The law is guilty of no such absurdity.”
I think the judgment below should be reversed, and a new trial granted.
[358]*358Christiancy J. :
I agree entirely with my brother Manning in the result at which he has arrived, and substantially in his reasoning, as applicable to the peculiar facts of the case.
Profits, as such, are generally excluded from the estimation of damages, not because they are profits, but because, in the greitt majority of cases, they depend too much upon contingencies to be estimated Avith reasonable certainty. And this Avould be emphatically true of the profits sought to be estimated by the loose data furnished by the evidence in tins cause.
But in cases (and they are numerous) where profits are but another name for the ordinary use of a thing, qr where they may be estimated with reasonable certainty by the test of experience, I think the loss of such profits as just a claim, and as certain a ground for the estimation of damages, as any other item or cause of loss or injury; since, in such cases, they fall as clearly within the principle of compensation, and must have been as much within the reasonable contemplation of the parties, in making the contract, or in committing the act which has occasioned the damage.
Take, for example, the case of an ordinary grist mill for custom work, Avhich has been for years in operation, the profits of which have been nearly uniform one year with another, at any particular season — say five dollars per day. An injury is done to the dam which requires ten days to repair, during which the mill is compelled to lie still.
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Manning J.:
This is an action to recover damages for not shipping' from Sandy Hill, in the state of New York, to the plaintiff at Ontonagon, a circular saw mill purchased of defendant, and agreed to be shipped by him on a certain day.
On the 81st of July, 1855, plaintiff contracted with defendant for a circular saw mill. The contract price was four hundred and thirty-five dollars, of which sum two hundred and thirty-three dollars were paid at the time, by a note at six months, payable, with use, at the Michigan Insurance Bank, and the balance was to be paid in cash on the 15th of August, when the mill was to be shipped. The declaration, after setting out the contract, alleges the balance of the purchase money ivas paid in cash on the 15th of Au_ gust, and that defendant did not ship the saw mill on that day, nor until two months thereafter, and that by reason thereof it did not reach its place of destination during the season of navigation, and was detained until June of the following year; whereby the plaintiff sustained great damages in the hiring of laborers, who remained idle, in expenses, and money paid out in preparing his ground and buildings for immediate use of said circular saw mill in the sawing of lumber, and in stocks and provisions which became useless; and had been deprived of large gains and profits which he might and would have made in his said business of sawing lumber, for which the said circular saw mill ivas intended, and for which he, the said plaintiff, prepared at large expense, &c.; to his damage of three thousand dollars.
On the trial, plaintiff introduced depositions of some half dozen witnesses to prove the matters set out in the breach of his declaration. Certain parts of each one of these depositions tvere objected to, and by the rulings of the court Avere not permitted to go to the jury; and exceptions were taken by plaintiff. I do not deem it necessary, nor is it my intention, to notice these exceptions further than to remarlo [356]*356that the object of plaintiff, it would seem, and the tendency of nearly if not all of the excluded testimony, was to prove the profits pilaintiff might have made in the business of manufacturing lumber had the circular saw mill been shipped on the day mentioned in the contract, and arrived at Ontonagon in due course of navigation early in the fall. I have no hesitation in saying, in this view of the case, the judge was correct in ruling as he did — so far, at least, as the testimony offered related to profits.
If the object of plaintiff had been that, as he had shown every thing save the circular saw mill was in readiness to commence the manufacture of lumber, he was entitled to recover as damages what the use of the mill was worth in a complete state, for the time he was deprived of its use by reason of defendant’s not performing his contract; and if the rejected testimony had tended to prove the value of such use, the question would have arisen whether that was the proper measure of damages in such a case; but as it is' not before us, I do not wish to be understood as expressing an opinion one way or the other. By use of the mill I do not mean what might have been made in running it, for that is more properly profits, but what would have been a fair rent for it by one wanting it for the manufacture of lumber. The question, however, would not have arisen had the excluded testimony been received; 1st, Because it did not appear plaintiff had a boiler and engine on the mill premises, or at Ontonagon, for propelling the saw; and, 2d, Because none of the witnesses were examined as to the value of the use of the mill. I am therefore of opinion the testimony was properly rejected by the circuit court.
There was evidence before the jury of the price of the mill, and of its payment, and that it was not shipped by defendant at the time he agreed to ship it, nor until some time thereafter, and that it did not reach Ontonagon until some time in May, 1856, and that if it had been shipped at Sandy Hill on or about the 25th August, it would have reached Ontona[357]*357gon in thirty days by the usual course of -transportation. With this evidence before the jury, the judge charged them that plaintiff was entitled to nominal damages only, to which an exception was taken; and the question is now before us, whether the charge was correct under the circumstances. I think in such a case the plaintiff’ is entitled to damages equal to the interest on the four hundred and thirty-five dollars, the price paid defendant for the mill, for*the time he was deprived of the possession of it in consequence of defendant’s breach of the contract. It is the same as though he had retained the mill in his possession, against the will of the plaintiff, for the same length of time. Will the law permit the vendor of an article to retain both it and the money he has received for it, against the will of the vendee, without making the latter compensation equivalent to the use of the money he has given in exchange ? Shall he be permitted to say to the vendee, “ If you had had the article in your possession you would not have used it”; or that, “The use of it would not have been equivalent to the interest on the money you paid me for it, and therefore you have sustained no damages, or less damages than you demand.” It is not for a wrong doer to put such a question to the injured party; and if put, the reply to it is, “ If you had delivered me the article and I had retained the money, the law would give you the money with interest. The article I purchased of you, in my hands, is equal to the money I gave you in exchange; otherwise I should not have purchased it of you: why not then give me interest on its cost while you have wrongfully withheld it from me? Suppose it was Power’s Greek Slave I had purchased of you at $10,000,— would the law require me to show the use I would have made of it, and the dollars and cents I had lost in being deprived of the possession of it ? The law is guilty of no such absurdity.”
I think the judgment below should be reversed, and a new trial granted.
[358]*358Christiancy J. :
I agree entirely with my brother Manning in the result at which he has arrived, and substantially in his reasoning, as applicable to the peculiar facts of the case.
Profits, as such, are generally excluded from the estimation of damages, not because they are profits, but because, in the greitt majority of cases, they depend too much upon contingencies to be estimated Avith reasonable certainty. And this Avould be emphatically true of the profits sought to be estimated by the loose data furnished by the evidence in tins cause.
But in cases (and they are numerous) where profits are but another name for the ordinary use of a thing, qr where they may be estimated with reasonable certainty by the test of experience, I think the loss of such profits as just a claim, and as certain a ground for the estimation of damages, as any other item or cause of loss or injury; since, in such cases, they fall as clearly within the principle of compensation, and must have been as much within the reasonable contemplation of the parties, in making the contract, or in committing the act which has occasioned the damage.
Take, for example, the case of an ordinary grist mill for custom work, Avhich has been for years in operation, the profits of which have been nearly uniform one year with another, at any particular season — say five dollars per day. An injury is done to the dam which requires ten days to repair, during which the mill is compelled to lie still. In such a case, there can be no better or more certain criterion of damages, than these profits, which, added to the cost. of repairing, would constitute the damages against the party causing the injury.
As to the propriety of alloAving interest on the price of an article, in lieu of nominal damages, in a case like the present, and where the plaintiff fails to prove any other damages, I can entertain no doubt. The plaintiff had paid [359]*359the purchase price (the principle would be the same if he had given his^note on interest). The defendant contracted to ship the mill by a certain day, and failed to do so until so late a period that it did not, and could not, arrive until many months after it would have arrived if shipped by that day. The plaintiff had a right to rely upon the contract, and during this whole period of delay, was entitled to the use, full property, and control of the mill. But the defendant, during this long period, wrongfully detains both the mill and the money which was paid for it, and prevents the plaintiff from any use, control, or disposition of it. I think these facts constitute, in law, conclusive evidence of a loss to the plaintiff equal to the interest of the money; or, in other words, that in the absence of any other evidence of damage, the law must infer damages equal to the interest. To refuse this would be to encourage the breach of such contracts, on the slightest grounds; as in many cases the actual damages for the breach, though very serious, hardly admit of adequate and certain proof. The interest of the money, though less, in most cases, than the actual damages, must, it seems to me, approach much nearer the standard of just compensation than the uniform nominal damages of six cents.
A party who, in violation of his contract, detains from another the use and dominion of an article for any period of time, has no right to say that the party whose rights he violates would not have used it if he had had it. This is a question with which he has no concern; its decision belongs exclusively to him who is entitled to the property, and who has a right to decide for himself, according to his own views of convenience or profit, how or when he will use it, or on what terms he will dispose of it. To permit such a defense would be to sanction a most unwarrantable interference with the exclusive rights of others in the management and disposition of their own property.
Take as strong a case as can be suggested for the defendant. A wrongfully detains from B a cider mill during [360]*360the spring months, or a sleigh during the summer. Can A he allowed to set up in bar of all but nominqj damages, for this detention, that B could not have used the article if he had had it ? B was entitled to control his own property in his own way, as much as if it had been money in his pocket; and though he could not make cider with his mill, or ride in his sleigh, during those particular months, he might have sold them and converted them into money, had he not been wrongfully deprived of the opportunity. No man is compelled to keep and use any article for any specific purpose. The right of sale is the most valuable incident of personal property, and every man is entitled to judge for himself, not only how he will use, but when and under what circumstances he will sell it; and he who deprives him of that right by wrongfully detaining it, can never be allowed to complain if he is compelled to pay damages equivalent to the interest of its value, since, if sold, its price would have earned that interest.
I think, therefore, in all such cases, a plaintiff should be allowed to elect to take the interest of the price of the article, or such other damages as he may be able to prove. But he should not be entitled to both.
Campbell J.:
Being of opinion that there was no error in the court below, it is only necessary, in connection with the views expressed by my brethren, that I refer to the question whether the judge erred in not instructing the jury to allow interest in the absence of any special damages.
The damages in a case like this, as all agree, arise, not out of the depreciation in the value of the machinery as an article of merchandise, but in the loss of its possession as a thing of use.
In the absence of proof of the amount of damage, the law, upon proof of a breach of contract, does not defeat the right of action entirely, but infers some damage. Where money is [361]*361detained, it infers a precise amount, which is always the legal rate of interest. But where it draws such an absolute inference in the absence of proof, it will not allow the introduction of proof to enhance or diminish the rate. It fixes a rule for all cases. In the absence of a statutory rule, I am aware of no authority which, where there is no proof, will infer any amount of damages which is more than nominal.
The principle of allowing the recovery of damages for the breach of contracts, is universally based upon the rule of compensation. The law imposes no penalty, as such, but simply requires the defaulting party to make good such pecuniary loss as his neglect has entailed upon the other party. And this loss is to be ascertained according to established principles. The loss or gain of the defaulting party is not the test. He is bound to make good such injury as the complaining party can show that he has sustained, Avithin the legal rules, and he is liable to nothing more. His own gains do not aggravate, neither do his own losses dimmish, the losses of his adversary. There are peculiar cases, such as marriage promises, in which a Avider range is alloAved for proof of injury, but even there, compensation is the only thing aimed at. And in no case, so far as I can ascertain, in the absence of any statutory rule, has the Hav inferred any specific amount, of damages beyond nominal damages.
If a party wishes to recover more than these, the amount of injury is as clearly a specific issue, as the breach of the contract. I do not perceive how the law can determine by inference that the use of a chattel is worth one sum or another, whether the rate inferred be minimum or maximum. As a matter of every day experience, we knoAV that farming implements are of no use at certain times, and of use far beyond interest on their cost at others. The same difference exists in the use of other chattels. If a farmer has paid for his plow, and does not need the use of it, and no one else could use it either, it can make no difference to him that the money he has paid is Avorth seven or ten per cent, to the manufacturer. [362]*362The only question he is concerned with is how much has he been damaged by not having his plow.
No rule which the law can adopt will give adequate relief in all cases; and I think the only safe rulé is to leave the amount of damages on contracts, in all cases not regulated by law, to be settled upon proof. The rule of interest may be a convenient one, but it is no nearer the actual damage in each case than any other arbitrary basis of computation, while it, in my judgment, is more in the nature of a penalty than of remuneration.
I think the judgment should be affirmed.
Martin Ch. J. did not sit in this case.
Judgment reversed.