Opinion of the court by
Gillette, J.:
The defendant in error in its brief says:
“The trial court found generally for the oil mill and assessed its damages at $3500.00 and interest. 'We cannot tell whether it was for loss of use of mill, or for seed spoiled, or expense incurred, or for all these things in part. By its finding thé oil mill was adjudicated favorably as to all. If any one of them is right, no reversal can be had.”
We are unable to agree with this contention in view of the record in this ease. The evidence was- addressed to each of the items of damage specified and objections thereto made on the ground that such items were not provable, were overruled and exceptions allowed. To say now that there is any presumption that testimony so received was not considered in finding a general verdict or in a general judgment by the court without findings of fact upon which it was based, is equivalent to saying that immaterial and prejudicial evidence received over objections thereto will be held immaterial if there was any competent evidence sustaining the judgment, when it is impossible to say upon what evidence the judgment is founded. It is the better rule to hold in a case of this kind, that the trial court in its general judgment based the same upon all the evidence, by it held to be competent of consideration, because without special findings it is impossible to determine otherwise, and in such eases the judgment debtor is entitled to his exception to the admission of prejudicial proof of his liability. See Richardson v. Millish, 3 Bing. 334, 336, cited approvingly by the supreme court of the United States; [554]*554Parks v. Turner, et al, 53 U. S. 39; Maryland v. Baldwin, et al, 112 U. S. 490.
This brings us to an examination of the question as to whether or not upon the specifications of damage set out in the defendant’s answer and counterclaim, there was evidence admitted over objections of plaintiff that could not properly be considered and taken 'into account, in finding the amount .of damages sustained by defendant. In such examination our attention is challenged by the first item of damage in defendant’s answer stated. To a more complete understanding^ of this item of damage let it be understood that the defendant was defending against an admitted liability of $3500.00 upon the grounds that the plaintiff having, on May 8, 1902, agreed to furnish it certain mill machinery by the last days of July, failed and neglected to furnish the same until September 20th, a period of forty working days, and this delay defendant says caused it damage in the sum of $15,984.82.
To prove this damage the defendant offered proof, over objections of plaintiff, that the rental value of defendant’s mill for the 40 days it was compelled to remain idle by reason of the act of plaintiff in failing to deliver it the machinery contracted for at the time it was contracted to be delivered, was $15,984.82. The proof so offered was the testimony of officials of defendant.
Mr. Wooten testified in part as follows:
“Q. You say the rental value of that property in the beginning of the season for forty days was sixteen thousand dollars and a little over?
“A. I calculated that; yes sir.
“Q. Has the property ever been rented?
“A. No sir.
[555]*555“Q. Did you ever know of an oil mill in tbat vicinity being rented ?
“A. No sir.
“Q. Did you ever know of an oil mill in Oklahoma or Indian 'Territory being rented?
“A. No sir.
“Q. How did you arrive at the rental value of the property ?
“A. By what it is worth to me.”
Mr. E. J. Latting testified:
“Q. Did you ever know of the mill being rented?
“A. No sir.
“Q. Over what states has your oil mill business and your experience in the oil mill business extended
“A. Mississippi, Tennessee, Texas and Indian Territory.
“Q. The fact is, Mr. Latting, mills are not rented, isn’t it?
“A. As a rule; I don’t know of any of them having been rented.”
Mr. Wilhelm testifies:
“Q. What do you mean, Mr. Wilhelm, by saying that you know the rental value of that mill?
“A. Well, I know it by what I'could have made out of it with good seed at that time.
“Q. You could have made a profit of $4.00 a ton if you could have bought your seed right and sold your products right ?
‘■‘A. Yes sir.”
From the testimony it is apparent that the witnesses were not testifying from their knowledge of the rental value of any like property, or from their experience as oil mill men looking as best they could into the future and judging its-rental value from a fair’ average of what the use of such prop[556]*556erty is worth one year with another; 'but were, in fact, at the time of the trial, looking backward to conditions as they had existed at a particular time, and which conditions were admittedly'’ the most favorable.
Such testimony, we think, cannot be accepted as a fair measurement of rental value under the circumstances of this case. The contract was made on the 8th day of May, (1902).
Time was not made of the essence of the contract and its provisions in no way provided for a measurement of damages in case of a failure to comply with the terms.
The damages that are recoverable under such circumstances, are such only as may be fairly considered within the contemplation of the parties at the time of entering into the contract. *
That they contemplated at the time this contract was entered into the subsequent crop conditions of that year, and the amount of the crop, the price that they were afterwards able to buy the cotton seed for, the price and supply of labor, the favorable condition of the market for the sale of their products, could not be assumed in the absence of some proof to that effect ; but all of this was in contemplation of the witnesses when upon the trial of the case they testified as hereinbefore set forth, and when, as shown in the testimony of manager Latting, the reasonable, average profit was $4.50 per ton of the seed consumed, and that that was a fair rental value of the property.
We quote from Mr. Latting’s testimony in chief the following to show the manner in which the rental value of the property was arrived at:
“Q. What would have been a reasonable average of [557]*557ordinary profits in tbe operation of yonr mill during this 40 days tbat you were enforcedly idle?
“A. $4.50 per ton; 85 tons for 41 days would make $15,682.50.
“Q. Why did you mention 85 tons a day ?
“A.
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Opinion of the court by
Gillette, J.:
The defendant in error in its brief says:
“The trial court found generally for the oil mill and assessed its damages at $3500.00 and interest. 'We cannot tell whether it was for loss of use of mill, or for seed spoiled, or expense incurred, or for all these things in part. By its finding thé oil mill was adjudicated favorably as to all. If any one of them is right, no reversal can be had.”
We are unable to agree with this contention in view of the record in this ease. The evidence was- addressed to each of the items of damage specified and objections thereto made on the ground that such items were not provable, were overruled and exceptions allowed. To say now that there is any presumption that testimony so received was not considered in finding a general verdict or in a general judgment by the court without findings of fact upon which it was based, is equivalent to saying that immaterial and prejudicial evidence received over objections thereto will be held immaterial if there was any competent evidence sustaining the judgment, when it is impossible to say upon what evidence the judgment is founded. It is the better rule to hold in a case of this kind, that the trial court in its general judgment based the same upon all the evidence, by it held to be competent of consideration, because without special findings it is impossible to determine otherwise, and in such eases the judgment debtor is entitled to his exception to the admission of prejudicial proof of his liability. See Richardson v. Millish, 3 Bing. 334, 336, cited approvingly by the supreme court of the United States; [554]*554Parks v. Turner, et al, 53 U. S. 39; Maryland v. Baldwin, et al, 112 U. S. 490.
This brings us to an examination of the question as to whether or not upon the specifications of damage set out in the defendant’s answer and counterclaim, there was evidence admitted over objections of plaintiff that could not properly be considered and taken 'into account, in finding the amount .of damages sustained by defendant. In such examination our attention is challenged by the first item of damage in defendant’s answer stated. To a more complete understanding^ of this item of damage let it be understood that the defendant was defending against an admitted liability of $3500.00 upon the grounds that the plaintiff having, on May 8, 1902, agreed to furnish it certain mill machinery by the last days of July, failed and neglected to furnish the same until September 20th, a period of forty working days, and this delay defendant says caused it damage in the sum of $15,984.82.
To prove this damage the defendant offered proof, over objections of plaintiff, that the rental value of defendant’s mill for the 40 days it was compelled to remain idle by reason of the act of plaintiff in failing to deliver it the machinery contracted for at the time it was contracted to be delivered, was $15,984.82. The proof so offered was the testimony of officials of defendant.
Mr. Wooten testified in part as follows:
“Q. You say the rental value of that property in the beginning of the season for forty days was sixteen thousand dollars and a little over?
“A. I calculated that; yes sir.
“Q. Has the property ever been rented?
“A. No sir.
[555]*555“Q. Did you ever know of an oil mill in tbat vicinity being rented ?
“A. No sir.
“Q. Did you ever know of an oil mill in Oklahoma or Indian 'Territory being rented?
“A. No sir.
“Q. How did you arrive at the rental value of the property ?
“A. By what it is worth to me.”
Mr. E. J. Latting testified:
“Q. Did you ever know of the mill being rented?
“A. No sir.
“Q. Over what states has your oil mill business and your experience in the oil mill business extended
“A. Mississippi, Tennessee, Texas and Indian Territory.
“Q. The fact is, Mr. Latting, mills are not rented, isn’t it?
“A. As a rule; I don’t know of any of them having been rented.”
Mr. Wilhelm testifies:
“Q. What do you mean, Mr. Wilhelm, by saying that you know the rental value of that mill?
“A. Well, I know it by what I'could have made out of it with good seed at that time.
“Q. You could have made a profit of $4.00 a ton if you could have bought your seed right and sold your products right ?
‘■‘A. Yes sir.”
From the testimony it is apparent that the witnesses were not testifying from their knowledge of the rental value of any like property, or from their experience as oil mill men looking as best they could into the future and judging its-rental value from a fair’ average of what the use of such prop[556]*556erty is worth one year with another; 'but were, in fact, at the time of the trial, looking backward to conditions as they had existed at a particular time, and which conditions were admittedly'’ the most favorable.
Such testimony, we think, cannot be accepted as a fair measurement of rental value under the circumstances of this case. The contract was made on the 8th day of May, (1902).
Time was not made of the essence of the contract and its provisions in no way provided for a measurement of damages in case of a failure to comply with the terms.
The damages that are recoverable under such circumstances, are such only as may be fairly considered within the contemplation of the parties at the time of entering into the contract. *
That they contemplated at the time this contract was entered into the subsequent crop conditions of that year, and the amount of the crop, the price that they were afterwards able to buy the cotton seed for, the price and supply of labor, the favorable condition of the market for the sale of their products, could not be assumed in the absence of some proof to that effect ; but all of this was in contemplation of the witnesses when upon the trial of the case they testified as hereinbefore set forth, and when, as shown in the testimony of manager Latting, the reasonable, average profit was $4.50 per ton of the seed consumed, and that that was a fair rental value of the property.
We quote from Mr. Latting’s testimony in chief the following to show the manner in which the rental value of the property was arrived at:
“Q. What would have been a reasonable average of [557]*557ordinary profits in tbe operation of yonr mill during this 40 days tbat you were enforcedly idle?
“A. $4.50 per ton; 85 tons for 41 days would make $15,682.50.
“Q. Why did you mention 85 tons a day ?
“A. Our mill was 85 tons capacity; it was possible to run 100 tons a day but 85 tons was the average.
“Q. Mr. Latting, what in your judgment would have been a fair rental value for the Chickasha Oil Mill plant for the first 40 days of the season of 1902?
“A. $4.50 per ton.
“Q. What would be the daily rental value of such a plant during that time?
“A. Something like $300.00 per day. I will tell you more definitely; it would be $382.50 per day.”
From this it will be seen that under the guise of rental value the damages resulting from the idleness of the mill were estimated upon the profits that the mill might have made during that time under the conditions which then existed.
If such a method of measuring rental value may be accepted as correct, then, in an action of this kind it is only necessary to wait until the season has passed, determine the profits that could have been earned and declare that to be the rental value of the property. Such a proposition is fallacious upon the face of it. 'The rental value of a mill in May cannot be determined upon the basis of a crop and market in September following, without such testimony being the subject of a speculation and guess work to such an extent as that courts, generally exclude it in measuring damages for a breach of a contract.
It is true that the provisions of statutes enter into and [558]*558form a part of the conditions and liabilities of parties under their contract, but we have no statute authorizing speculative damages to be recovered.
The only statute of Oklahoma touching,this subject matter is as follows:
“For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, which, in the ordinary course of things, would-be likely* to result therefrom. No damages can be recovered for a breach of contract, which are not clearly ascertainable in both their nature and origin.” Wils. Ann. St. Sec. 2730.
This statute is only declaratory of the common law rule of measuring damages, and in no way changes or enlarges the damages which the defendant might recoup under the common law for the delay in furnishing the machinery and performing its contract, by the plaintiff, or the rule by which such damages are to be ascertained and measured.
All. the evidence in the case was addressed to the amount of 'profits which, under the most favorable conditions, might have been made by the oil mill during the period of delay, and was Dot of a nature to disclose or determine the rental value of the mill during such term.
By the great weight of authority, profits, or what might be made out of the use of such machinery, do not constitute the true rule for the measure of damages in this class of cases.
The following authorities fully sustain this position: Howard v. Stillwell, et al, 139 U. S. 199; Globe Refining Co. [559]*559v. Cotton Oil Co. 190 U. S. 540: Choctaw, Okla. & Gulf R. R. Co. v. E. A. Jacobs, supreme court of Oklahoma, September term 1905—unreported; Taylor Mfg. Co. v. Hacher & Co. 3 L. R. A. 587; Griffin v. Calver, 69 Am. Dec. 718; Fleming v. Bock, 48 Pa. St. 309; Allis v. McLane 48 Mich. 12 N. W. 640.
The defendant in error relies upon the case of Livermore Foundry and Machine Company (Tenn.) 58 S. W. 270, which was an action to recover the rental value of a cotton compress forced to remain idle during the season, because: First, on account of the failure of machine company to make repairs within the time contracted for; and second, because of repairing its engine in such defective manner that the head of the cylinder blew out, destroying the plant to such an extent that it lost the season’s work.
The case was tried to a jury which found one item of damages, among others, of $3000.00 for loss of rental value of the compress. _
We are unable to determine from the case as reported how the rental value of the compress was ascertained.
The court places its judgment upon the fact that the rental value of the compress was proved, and we think there is no question but that if rental value of property can be fairly ascertained, that is a correct measurement of damages for its enforced idleness.
But the court in that case does not question the rule we herein state, and in its opinion uses this language:
Un neither ease is he liable for loss of - profits; for fluctuation in business, changes in the price of labor and unfor[560]*560seen accidents to machinery make this as a measurement of damages too uncertain.”
And the court in that case further stated in commenting upon the case of Clifford v. Richardson, 18 Vt. 620:
“The defendant put machinery into plaintiff’s mill in an unskillful manner, whereby he lost the use of his mill for a long space of time, and was put to great expense in repairing his machinery.
“It was held that both the loss of the use of the mill and the expense of repairs were to be compensated for in damages. In this case, though, the court seemed to allow, as competent, evidence of what the mill could have earned. On this last point we are not to be understood as approving its holding.”
In this language we find the Tennessee court holding that the enforced idleness of the mill is recoverable in damages, but holding further that evidence of what the mill could have earned was not competent proof of such damages.
This brings us back to the question we have here under consideration and to the testimony of Mr. R. G. Latting, and defendant’s manager, above quoted.
From this and other testimony of like import it is apparent that the rental value attempted to be shown in this case is simply estimated profits' on the capacity of the mill for the period complained of, a proposition that is denied by the Tennessee court in Livermore, F. & M. Co. v. Union F. & C. Company, above referred to as well as other authorities cited
In commenting upon the decision of the 'Tennessee court we feel that it would not be trespassing to note the distinction of the case it had under consideration from the one wo are here considering, for the reason that within common [561]*561knowledge there is a marked distinction in this, that the business of a compress is not dependent for its profits upon an open market for its products, as is the case with an oil mill.
In the first its earning capacity is fixed by a specific charge for compressing a bale of cotton, while an oil mill’s earnings are largely dependent upon the market for its products.
There is in the consideration of this question another proposition we think deserving of notice. It appears from the testimony that an oil mill does not operate the year around; the period of its operation being approximately 130 to 150 days, dependent somewhat upon crop conditions. If it starts late in the fall it may run correspondingly late in the spring following until the cotton seed which has been stored has' been all used or disposed of. In this instance the mill started in November, when but for the delay of plaintiff in supplying the machinery it might have started the latter part of September. After starting it ran until the company’s-seed was all consumed. Under such conditions we are of the opinion that it is not a correct measurement of damages' to show what the earning capacity of the mill was at the ordinary beginning of the season’s work, for the length of time it was delayed; but it would rather be the difference between doing its work at that time, and doing it at the close of that season’s business, and what if any difference there may be in the expense of so conducting its business.
We can readily conceive of' losses in this respect, as the price of oil and the value of seed may 'change between September and June following, which might cause specific damage.
This phase of the case we do not care to discuss, as we [562]*562cannot determine upon what theory evidence may be presented upon a retrial of the case.
Having reached the conclusion that there was material error in the introduction of testimony touching the measure of damages upon the trial, the judgment of the lower court is reversed, and the cause remanded to the district court of Canadian county with instructions to vacate the order of that court overruling the motion for a new trial, and to grant the same.
Irwin, J., who presided in the court below, not sitting ; all the other Justices concurring.