SlMRALL, J. :
This is a suit by Ragsdale against the Vicksburg and Meridian Railroad Company, as common carriers, for a failure to transport from Vicksburg to Meridian, a boiler, part of the machinery of a steam saw-mill, within a reasonable time. The count is upon the duty (or implied contract) of the carrier to perform his undertaking with due dispatch, and alleges for breach a failure to perform. We have been greatly assisted by counsel, with elaborate argument at the bar, and with copious briefs. When property is delivered to a carrier the law implies a contract, that it shall be safely, and within a reasonable time, carried to, and delivered at, the place of destination. Nothing relieves from the obligation to deliver, except the act of Grod, the public enemy, the act, or conduct of the owner, or a special agreement limiting the common-law duty, if the time is not named. The implication arises from the receipt of the property for transportation ; that it shall be done with due dispatch, or within a reasonable time. The law does not attempt to fix by rule, what is “a reasonable time.” Each case is referred to its own peculiar circumstances, an account being taken of the mode of conveyance, the nature of the goods, the season of the year, the character of the weather, and the [477] ordinary facilities for transportation under the control of the carrier. Temporary interruptions or obstructions, which could not with ordinary prudence be provided against, excuse ‘ ‘ delaybut do not absolve from the duty to carry and deliver as soon as it becomes practicable. These principles are well settled, and have received a full recognition in Bennett v. Byram, 38 Miss. 20. There the transportation was impeded in mid-voyage by low water. Not being able to prosecute the voyage, the carrier stored the goods'at Gainesville in June. In August the owner hauled the lighter goods to Aberdeen. In the following January the river became navigable and the heavier articles were forwarded by steamboat. On these facts it was held, that the carrier was justified in suspending his voyage and storing the goods; that the owner could not recover for the expense of the hauling, because by accepting the goods he discharged the carrier from further responsibility with respect to them ; as to the delay, that was referable to inevitable accident. Ang. on Carr., §§ 330, 331.
The principles which measure the duties and responsibilities of common carriers prevailed before steamboats and railways came into use. With very few modifications they have been applied to these modern facilities of commerce.
The questions are reduced to these: 1st. Was the railroad company excused in the delay of carrying and making delivery by an extraordinary event, and did it exert reasonable dispatch in all the circumstances % 2d. If the default of the company was established, is the verdict of the jury excessive \ and, lastly, did the court, by granting or withholding instructions, contribute to a wrong result %
It was not controverted at the argument that the destruction of the bridge over the Big Black, and the unusual floods in that stream from about the first of January until June, was such a hindrance to the operations of the railroad as necessarily to produce delay, more or less, in its business of transportation.
For the plaintiff it was maintained that the company, by [478] the use of energy and diligence, could have crossed the boiler over the river, on the pontoon bridge, or the steamboat, or by other means. The evidence is clear and full that these accommodations were ample for all ordinary purposes, in any stage of the water, were sufficient to cross any freight that had been offered, except the boiler, and would answer for that when the water did not exceed 600 feet in width, and that the boiler was the only freight which was not promptly crossed, 'and that was held back on account of its great weight (8,500 pounds).
If the company have a reasonable equipment for all ordinary purposes, and the delay be occasioned by an unusual press of business, but the carrying is done with reasonable expedition under the circumstances, then it is not responsible for the delay. 2 Redf. on Raff. 163, § 2; Peet v. Ch. & N. W. R. R. Co., 20 Wis. 596. Nor will the carrier be responsible if the goods are retarded by an accident not amounting to an inevitable casualty, if due care and diligence have been used. Story on Bail., § 545; 14 Wend. 215; 20 Wis. 596.
Nor was this company bound to incur extraordinary expenses to procure a means specially to cross this boiler, in view of the fact that it had facilities for doing so in ordinary high water, and such contingency may not fairly have been anticipated when the contract was made; and in view of the further fact that neither party could have foreseen or anticipated a stage of water higher, and remaining up longer, than was usual in that stream.
The damages alleged in the declaration is ‘c depreciation in value and the loss of the opportunity of selling;” privation of “gains and profits,” and expenses in endeavoring to obtain the goods. The rule is, that such damages as may be presumed necessarily to result from the breach of contract need not be stated, but if other special damages are claimed they must be specifically stated. 1 Chitty’s Pl. 386; De Forest v. Leet, 16 Johns. 122.
On a very large class of contracts, there is no serious [479] difficulty in assessing the damages for a breach, according to a definite rule. As where goods are for sale at the place where the carrier undertakes to deliver them, there the measure is the value at the place of delivery, as compared with the place of receipt by the carrier. If they have been unreasonably delayed, the time when they ought to have been delivered is, perhaps, the criterion. Much depends, too, upon the character of the property, as whether liable to waste and deterioration by time. The cardinal principle is that the party in default shall make full and complete satisfaction. The difficulty arises in determining what elements that contribute to the injury shall be taken into the account. What is the line which separates damages that naturally and necessarily flow from a breach, from those which are more remote and spequlative % A party may fairly be held to account for the ordinary results of his act. It is upon this idea that compensation for private wrongs is computed. If more than this is claimed, a special reason or ground for it must be shown. (We^aré not speaking of those cases of bad faith, etc., where damages may be allowed.) There is nothing in this case which warrants such damages. It is not pretended that the delay was wanton, or was dictated by a gross dereliction of duty. At the most, it amounts to an error of judgment, as to the ability of the company’s agents to put the boiler across the Big Black before it was done. Eagsdale, therefore, was only entitled to be fully and adequately compensated for his losses, computed upon proper principles. The boiler was a part of the motive power of a saw-mill, intended to be erected by the plaintiff. The delay in its transportation and delivery entailed a loss upon him, but to what extent, and upon what basis is the calculation to be made? No well-considered case can be found in the books, where speculative profits, to be made out by calculations upon paper, are allowable. In Masterton v. Mayor of Brooklyn, the profit which would have been derived from another contract, existing at the making of the one in suit, was [480] allowed. 7 Hill (N. Y.), 62. Here there were data for a safe estimate. The reason for discarding expected profits as an element of loss is, that the party charged is not presumed to have made his contract with reference to such results. But where they are such, as he ought to have contemplated as a reasonable and probable result of the breach, they may be considered. But then the anticipated profits should be such as are capable of reasonable certainty.
In Abbott v. Hatch, 13 Md. 333, the bargain was to build a flouring mill by a specified time, on failure to complete within the time the plaintiff claimed for the profits which he would have realized from the business. This was repudiated as too uncertain and contingent, and the rent pr value of the use, as of rental, was adopted, not because it was a certain criterion, but for the reason that it was approximately just. Mr. Powell, in his treaties on contracts, chapter 21, states the general principle thus: “ Such damages as are incidental to and directly caused by the breach, and may reasonably be presumed to have entered into the contemplation of the parties, and not speculative profits or accidental or consequential losses.” To this formula maybe reduced the case of Hadley v. Baxendale, 9 Exch. 341, and Hamilton v. McPherson, 28 N. Y. 76. In the last case the carrier was attempted to be held for injury caused to grain by heating after he had received the notice to forward it. He was guilty of negligence in the delay. The “ damage ” was not incidental to and caused by the delay. The direct cause was “ want of care in the warehousehe was, therefore, not liable for injury by the heating. In Palmer and Robertson v. Ohio and Mississippi R. R. Co., the effort was to secure the profits which would have been made in building Sipton locomotives, which were to be paid for as completed ; five were constructed and delivered, and the contractor suspended work because he was not paid for those finished. He failed because no case, said the court, could be found to that effect, unless the plaintiff had been prevented from going on with his work, by the positive affirmative act of the other party, or [481] unless the other party has neglected to do some act without which the plaintiff could not, in the nature of things, go on with his contract, as where the place for the erection of the house is not pointed out, or materials not furnished as agreed to be.” Ashe v. De Roset, 5 N. C. 301. Rice was burnt in a mill where it had been deposited to be hulled; the miller was guilty of negligence in delaying the work, but was not responsible for the value of the rice, because the contingency of its destruction by fire was not in the contemplation of the parties. It was not a natural and incidental consequence of a breach of the contract.
In all the cases we have examined, if extraordinary special damages, such as the loss of profits in a business, are allowed, they must have been incidental to the breach, in such sense as to have been contemplated by the parties at the time the contract was made. Thus, in Smead v. Foord, 1 Ellis & Ellis, 602, in the queen’s bench, the delay was in the delivery of a threshing machine, with the knowledge that it was needed to thresh grain in the field. The wheat was injured by rain, and a further loss was sustained by a fall in the market. It was held that damage by rain might fairly be supposed to have been contemplated, but that a decline in the market was too remote and contingent. Compton, J., said that the rule in Hadley v. Baxendale “must not be extended.” In Wilson v. Newport Dock Co., 1 Law Rep. 177, Martin, B., who participated in the judgment of Hadley v. Baxendale, observing on the case, said, that while the observations of Alderson, B., were proper to be taken into consideration, in the great majority of cases performance was expected, and damages to arise from a breach seldom or never enter into the contemplation of parties. In Gee v. Liverpool and York R. R. Co., 3 L. T. N. S. 322, it was said by Baron Wilde, that a most excellent attempt had been made in Hadley v. Baxendale to lay down a general rule of practice, but that in many cases of contracts there was no fixed rule, and as yet it had been impossible to find one. In that case the “delay” was in the delivery of some bales of [482] cotton at Oldham, in consequence the mill was idle, and workmen unemployed for a time. The immediate need of the cotton was not communicated to the carrier, at Liverpool, but was communicated on non-arrival in proper time. It was held, that for the lack of notice at the time of delivery to the carrier, he could not be liable for stoppage of work, and wages of operatives. So in Great Western R. R. Co. v. Redmayne, 1 Law (C. P.) 329. The plaintiff lost the sale of his goods through the negligent delay of the carrier, who had received no notice of the object for which the goods were sent, this special damage was disallowed. In McKnight v. Ratcliffe, 44 Penn. St., a stream was obstructed which caused the overflow of plaintiff ’ s' coal mine, depriving him of its use for four months. The supposed profits which might have been made were rejected as-measures of damages.”
In Cooper v. Young, 22 Ga. 272, delay was made in the delivery of coal to the plaintiff, who was a smelter of iron out of crude ore. His works were suspended for a time, and the question was, whether he could recover for the loss of profits which he would have made, or the enhanced cost .of transportation by some other mode. It was determined by the court, that, as the carrier had the cheapest mode of transportation, the price agreed upon as usual by that mode, and the terms upon which others would carry by other modes, also, expenses of wages of hands during necessary suspension until the plaintiff could, by other means, supply himself, were the proper elements in fixing-damages. A party subject to injury from, breach of contract is under duty to make reasonable exertions to reduce his damages as much as practicable. If he, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss should justly fall upon himself. Freedlander v. Pugh, Slocum & Co., 43 Miss. 117, and cases cited; 21 Wend. 461; 17 Pick. 284. Where the goods are for resale in the market of destination, and so known to the carrier, the carrier, if guilty of negligent delay, is chargeable with the enhanced price at the place [483] of delivery, less Ms charges for freight. O’Connor v. Foster, 10 Watts, 418; Sangamon & Morgan Co. R. R. v. Henry, 14 Ill. 156. But where the goods are not to he put upon the market for sale, but are to serve a specific purpose in a business, this rule may not be, and often would not be, adequate to determine the damages. To delay in the carrying of machinery, in Creen, Admr., v. Mann, 11 ib. 613, it was said, the value of the use of the machinery was the criterion. In Prestby v. North. Ind. & Chicago R. R. Co., 26 ib. 207, a “reasonable rent” was indicated. It was added, if the carrier had been notified for what purpose the machinery was designed, and its necessity, as that hands were under pay and idle, loss of promised custom out of which profits would have been made, these circumstances might have been considered of.
W e have pursued this investigation to the point of tedium, in order to see the practical application of the rules for assessing damages. We are constrained to concur in the observation of Barons Martin and Wilde, that a splendid effort was made, in Hadley v. Raxendale, to state the principle in such form as to provide for the more difficult cases, but subsequent experience and discussions have tended to demonstrate that it is not possible, in the nature of things, to declare a fixed rule for many contracts. This much may be accepted as well settled: 1st. The proximate and natural consequences of the breach must always be considered; 2d. Such consequences as from the nature and subject-matter of the contract may be reasonably deemed to have been in the contemplation of the parties at the time it was entered into; 3d. Damages, which fairly may be supposed not to ha ve been the necessary and natural sequence of the breach, shall not be recovered unless, by the terms of the agreement, or by direct notice, they are brought within the expectation of the parties; 4th. Losses of profits in a business cannot be allowed, unless the data of estimation are so definite and certain that they can be ascertained reasonably by calculation, and then the party in fault must have had notice, [484] either from, the nature of the contract itself, or by explanation of the circumstances at the time the contract was made, that such damages would ensue from non-performance; 5th. If the contract is made with reference to embarking in a new business (such as sawing lumber for the market), the speculative profits which might be supposed to arise, but which were defeated because of a breach of contract which delayed the business, cannot be looked to as an element of damages. These are dependent largely upon other contingencies, skill, industry, energy, the market, supply of material, keeping machinery in order, loss of time by weather, or breakage of machinery; 6th. If the delay is in the transportation of machinery, to be applied to a special use, and that is known to the carrier, he is responsible for such damages as are fairly attributable to the delay, such as the value of the use of the machinery, to be tested by its rental price, or other approximate means ; the expenses of idle hands, the loss of gain on work contracted to be done for another person, if such work could have been done if the machinery had been delivered, and the gain thereby definitely ascertained in proper time; 7th. The party injured by the delay must not remain supine and inactive, but should make reasonable exertions to help himself, and thereby reduce his losses, and diminish the responsibility of the party in default to him.
The difficulty experienced by the courts is not so much in the abstract principles, but in their application to special circumstances, so multiform and various in the transactions of actual life. The constituents of the “ injury,” as enumerated by Ragdsale, are these: That lumber from February to June was high and in demand, worth from $30 to $35 per thousand; money was also plenty. After June lumber depreciated about $10 per thousand, money became tight and scarce ; besides this he had need of lumber for building purposes. He had made arrangements to run the mill night and day, whereby his profits would have been over $100 per day. He had hired an engineer at $6 per day, for [485] four months, who was idle half the time. He expended $50 in looking after the boiler. The cost of his engine, machinery, mill-house, etc., was $7,000 ; after operating a short time, at a loss, he sold the entire establishment for $4,000. Prom these circumstances the jury estimated the damages at $3,000. It is perhaps impossible to analyze the premises upon which the jury proceeded. It is manifest that they ought not to have allowed for the supposed profits, which Ragsdale might have made. These were purely contingent and speculative, resting for their fulfillment upon the uncertainty of the market, the ability to supply logs, the skillful management of the machinery and business generally. They are repudiated in all the carefully considered cases we have examined. Nor does the price realized for the mill property supply a proper data. The value at the time of sale was influenced by the demand for such property, the profits in its use, and the condition in which the property itself was, as whether injured or not; chiefly, perhaps, in the market value of the product of such a sawmill, at the time and place. It is because of the uncertainties and fluctuations of such standards, that the courts have found them unreliable and uncertain, and are, therefore, supposed not to have been contemplated by the parties at the making of the contract. The contractor, who engaged to supply the farmer with a threshing machine by a certain day, knowing the use it was to be put to, was properly chargeable for the injury to the wheat in the husks from rain, because, according to the economy of nature, the grain was exposed to that risk by his negligence. But not for a depreciation of the market value of grain. If Ragsdale were compensated for the value of the use of such machinery, while deprived of it by the negligence of the carrier, and also for the expense of idle hands, awaiting its arrival, and costs incurred in looking after it, and injuries to it because of delay, about all the circumstances are taken into the estimate upon which courts and juries can securely rely. There was no sufficient testimony before the [486] jury, as to the value of the use of such property, to enable them to act intelligently on that point. -
At the time that Ragsdale had his interview with the servants of the company in December at Yicksburg, about their road as one of the routes for transporting his- engine and fixtures, there was no serious obstruction from high water in the Big Black. But on the first of February, when his engine and boiler arrived at Yicksburg, and was offered to the company, the water in that stream was very high. Mr. Crutcher (a member of the firm of Crutcher, Hazlett & Co. the consignees) states “that on the first of February when he applied to the clerk, at the company’s depot, to see about shipping the boiler to Meridian, he refused to receive it on account of the difficulty of crossing it over Big Black. That he saw Lawrence (who was transportation agent or master) who also refused to receive it for the same reason. ” “ He saw the clerk again who permitted him to leave the boiler in the yard, for convenience, to be forwarded as soon as it could be crossed over the Big Black.” “That the witness saw Ragsdale in Yicksburg the last of February, and informed him of the condition upon which the company had received the boiler for transportation,” “ and that he, witness, understood Ragsdale to assent to this arrangement.” On the arrival of the machinery from St. Louis the consignees had, by letter, informed Ragsdale of the difficulty of crossing the Big Black.” These facts are worthy of serious consideration on the question of damages. They put the plaintiff in possession of the knowledge that the company’s servants, charged with transportation, did not believe, when the freight was offered, that they could transport the boiler to Meridian, and that they had accepted it to be transported, when it became practicable. Three or more weeks afterward he is advised of this, and acquiesces in the arrangement that had been made. In view of the uncertainty of the transportation, and of his great need of the machinery, ought he not, in order to lessen his own losses and lighten the burden that might be upon the carrier, to have adopted one of the [487] two other modes of transportation, either via New Orleans and Mobile, or via Columbus, Ky., and the Mobile and Ohio Railroad; either of which were open to him. The iron manufacturer, in the case reported in 22 Gfa., must suspend his furnaces unless he received coal from Chattanooga; there was none to be had elsewhere. Ragsdale could not start his mill without a boiler. The former was not permitted to close his works and charge the carrier with the profits he might have made. But he ought to have availed of a more expensive mode of transportation, and held the carrier for the difference. So Ragsdale could have sent his boiler by either of the routes indicated, and charged the company with the difference; for, thereby, he would greatly have shortened the time that he was deprived of the loss. These facts should be considered by the jury, in fixing the time that the company should pay for the privation of the use of the machinery, especially so, if the carrier was acting in good faith, and delayed the transportation for the reason that he believed that it was impracticable to cross the swollen stream.
Was the jury correctly guided by the court, and can the plaintiff in error predicate that he has been injured by erroneous instructions ? If the verdict is clearly right upon the testimony, and substantial justice has been attained, the appellate court will not remand the cause for misconception and misstatement of the law in the instructions, for the right result has been attained, in despite of the error of the court.
The first instruction granted for the plaintiff lays down the rule as to the responsibility of a carrier for a nondelivery, but not the rule for a “delay” in making delivery caused by negligence.
The second instruction is so vague and indefinite, when applied to the circumstances of this case, that it furnishes no guide at all, or turns them loose to frame such standards and rules for the measurement of damages as they chose to adopt. Considered in connection with the third, the jury were at liberty to give such contingent gains as the plaintiff [488] might have made by a successful running of his mill, day and night, without loss of time from bad weather, disorder of machinery, or other contingency.
The seventh instruction may have misled the jury as to the amount and character of exertion the carrier should have made in overcoming the obstruction of crossing the Big Black. The refusal of the court to grant the defendant’s eighth prayer of instructions, to wit: “that the plaintiff, for the non-delivery of freight in a reasonable time, is not entitled to speculative damages ’ ’ still further tends to the impression that the jury may have been influenced by wrong views of the law on this point.
There is a want of harmony and consistency between the instructions granted for the respective parties on the question of “negligent delay besides, the court refused the eighth prayer of the defendant, which would have had the effect to limit and modify the second and third instructions given for the plaintiff, and to have made the rulings on this point more in harmony with the law.
We have not thought it worth while to consider the decisions of the court on the pleadings. The matters contained in the pleas were admissible under the general issue. In truth, all the testimony propounded by the defendant, all that was capable of being produced, went to the jury, and if he had the benefit of all defenses under the issues joined, and the testimony was admissible under them, no beneficial end would be answered by an examination of these decisions. We have purposely foreborne to express an opinion as to whether the railroad company was guilty of such delay in forwarding the boiler, in the special circumstances, as makes it liable to damages. It is the peculiar province of the jury to determine that question, aided by such expositions of the law by the court as will enable them to apply correct principles to the facts in evidence.
Judgment reversed, and venire facias de novo awarded.