Opinion · Supreme Court of North Carolina
Boyle v. . Reeder
Boyle v. . Reeder, 23 N.C. 607 (N.C. 1841)
- Type
- Opinion
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- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1841-06-05
- Topic
- litigation
Ruffin, C. J. The court does not perceive any cause of complaint on the part of the appellant with the instructions to the jury. His Honor held, that the plaintiff was en *613 titled to recover damages on the covenant of the defendant to furnish an engine, ready for shipment on the first day of March, 1837, unless the plaintiff had himself enlarged the timé; and also damages for the inefficiency of the work, whether arising from the badness of the materials or workmanship, or because it did not correspond in form and parts with the contract. Those instructions embraced every breach alleged by the plaintiff, except that which respected the failure of the defendant to put up the engine on or before the 1st of May, 1837.
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BOYLEv. REEDER,23 N.C. 607(1841)
JOHN McC. BOYLE v. CHARLES REEDER.
Supreme Court of North Carolina
1. In an action of covenant, for not furnishing machinery for a steam mill at the stipulated time, the plaintiff cannot recover in damages the estimated value of theprofitshe might have made if the covenant had been complied with. These are too vague and uncertain to form any criterion of damages.
2. The damages should be given upon the principle of a reasonable rent and insurance for the buildings, and the actual loss by decay, etc., of the materials during the period the plaintiff was prevented from commencing his operations by reason of the default of the defendant in not complying with his covenant.
3. Plaintiff can only recover damages really sustained by him, and not such as it seems possible he may have sustained.
COVENANT, tried at Spring Term, 1841, of BERTIE, beforeNash, J. A copy of the covenant declared on, so far as it is material to this case, is annexed. The plaintiff alleged the following breaches: (1) That the engine was not finished and ready for shipment at the port of Baltimore on 1 March, 1837. (2) That the engine was not put up by 1 May, 1837. (3) That the engine was not made of good materials, nor in a workmanlike manner. (4) That it had but one shaft, and a single instead of a double crank. (5) That it had not power sufficient to drive twenty-four saws. It was admitted that the engine was not ready for shipment at the port of Baltimore on 1 March, and that it was not put up by 1 May. It was further admitted that the plaintiff had not paid the whole of the purchase money, but that $...... were still due and unpaid, for which the present defendant had brought an action in Washington Superior Court on the counterpart of this agreement executed by the present plaintiff, and bearing even date with it, and that the action was now pending in said court; that plaintiff was not in Baltimore on 1 March to receive the engine, nor did he pay the (608) $1,000 on 1 February, but that this payment was made on the .... day of ......, in 1837, and the further sum of $...... on the .... day of October, 1837. The plaintiff's witnesses proved that the building for the reception of the engine was not erected until after 1 May, 1837. The defendant commenced putting up the engine late in December, 1837, and completed it about 8 January, 1838, when the plaintiff received it. And it was proved that very soon thereafter the fly-wheel broke, as did the gate-head and the rock shaft; and that the two former were honeycombed, and the hollow places in the gate-head were filled in with lead. On the part of the defendant it was contended, and evidence introduced to prove, that the engine was manufactured out of good materials and the work executed in a workmanlikePage 455manner; that the breaking of the fly-wheel was owing to the insufficiency of the foundation of the mill machinery which, it was admitted, it was the duty of the plaintiff to build, and the nature of the ground not affording a firm foundation, being over a quicksand; that the breaking of the gate-head and of the rock shaft was occasioned by the want of skill in the engineer employed by the plaintiff to manage the engine. There was contradictory evidence as to the crank. The plaintiff then gave evidence to show that he had collected timber to the value of $2,000 ready to saw by 1 May, 1837, and that by 8 January, 1838, when the mill was set in motion, he had collected between $7,000 and $9,000 worth, and claimed that he was entitled to recover from the defendant the injury which the timber had sustained by lying in the water so long. Some of the witnesses stated that the timber, by lying in the water twelve months would be injured 20 per cent; others, that it would not be injured at all, but would be benefited thereby. No evidence, however, was laid before the jury to show that the timber of the plaintiff was in the least injured. The plaintiff further claimed to recover of the defendant in damages the profit which he would have made by his mill between 1 May, 1837, and the .... day of May, 1838, when the works were repaired and it was finally put in motion. This latter evidence the court rejected. He further claimed in damages the hire (609) of his hands while the works were being repaired. To rebut this claim, the defendant showed that during those times his hands were employed in getting timber, which was as profitable to him as working the mill. It was further admitted that the whole of the engine delivered by the defendant to the plaintiff, with the exception of the fly-wheel and rock shaft, were still in his possession and used by him in working his sawmill. The plaintiff further proved that the engine had not power to carry twenty-four saws, and that to make it do so it was necessary to add another boiler, which he did. There was contradictory evidence as to the power of the engine. When the plaintiff closed his testimony, the defendant's counsel moved the court for a nonsuit upon the grounds, (1) that he had not shown that he had paid the whole of the purchase money before bringing his action; (2) because he had not shown that he was in Baltimore on 1 March, 1837, ready to receive the engine and pay the money then due. This motion the court refused; and in its charge instructed the jury that this contract contained covenants of different kinds. The first on the part of the defendant was an independent one, for a breach of which the plaintiff was entitled to recover damages, unless they were satisfied by the evidence that the time had not been enlarged by the parties, in which case performance by the defendant within the enlarged time would be a full answer to the claim of damages by the plaintiff for that breach; that the secondPage 456covenant on the part of the defendant was dependent on a condition, to be previously performed by the plaintiff, to wit, the erection of the building to receive the engine by 1 May, which the plaintiff had shown was not done, and he was not therefore entitled to any damages for that breach, if they were satisfied the fact was so; that if, from the evidence, they were satisfied that the engine was made of good materials and in a workmanlike manner, and that the breaking of the parts mentioned was occasioned by no insufficiency of the work or materials, but by the insufficiency of the foundation of the mill machinery or the (610) unskillfulness of the engineer employed by the plaintiff, in that case the plaintiff would not be entitled to any damage on the third alleged breach; but that he would be entitled to such damages if they were of the opinion that the materials of the engine were not good or the work not executed in a workmanlike manner; that, according to the contract, the defendant had covenanted that the engine should be of sufficient power to carry twenty-four saws, and that, although it had the number of boilers specified in the contract and they were of the dimensions there called for, yet the contract on the part of the defendant was broken in this particular, if they were not sufficient to carry the twenty-four saws; and if it was necessary to add a fifth boiler to give to the engine that power, the plaintiff had a right to do so, as it was proved he had done in this case, and recover of the defendant what it cost him. The court further instructed the jury that as the plaintiff had received and kept the engine, and was now using it, with the exception of the fly-wheel and rock shaft, the measure of damages to which he was entitled for the insufficiency of the engine as to the materials and workmanship and power was what it would or had cost the plaintiff to make it what the defendant contracted it should be; that they would decide whether the crank was a single or double one, and so of the shaft; that as to the timber, if they were satisfied that it had been actually injured by remaining in the water, they would give the plaintiff damages for such injury, confining their inquiry to the timber gotten up to 1 May, 1837, and that the plaintiff was entitled to damages for his hands being out of employment at the mill during the time the repairs were making, if they were satisfied they had suffered damages.
COPY OF THE AGREEMENT REFERRED TO, SO FAR AS IT IS MATERIAL.
Memorandum of an agreement entered into this 20 December, 1836, between Charles Reeder of the city of Baltimore, of the one part, and John McC. Boyle of the town of Plymouth, North Carolina, of the other part, witnesseth as follows: The said Charles Reeder, for the consideration hereinafter mentioned, hath agreed to and with (611) the said John McC. Boyle, his executors, etc., to make andPage 457furnish for him a steam engine and boilers on the high pressure principle. The cylinder to be, etc. (describing it); to have four iron boilers, 26 inches in diameter and 24 feet long, with furnace, bars, etc. The cylinder to lie horizontal and connected to a double crank with a shaft on each side, with fly-wheel, etc. — in all to be done and finished in a workmanlike manner and of sufficient strength and dimensions to drive four gangs of saws (two on each side), each gang to hold six saws, making in all twenty-four saws, to saw pine lumber; to be made and in readiness for shipment from the port of Baltimore on or about 1 March, 1837; then to be put ready for operation in a building provided for that purpose in Plymouth, North Carolina, by said John McC. Boyle on or before 1 May next (1837). He, the said John McC. Boyle, his executors, etc., doth covenant and agree to pay the said Charles Reeder for the aforesaid engine, etc., $3,700 in current money in the city of Baltimore as follows, viz.: $1,000 on 1 February, 1837; $800 as soon as the engine is ready to ship; $1,000 as soon as the work is put up ready for operation, and the balance in ninety days after the engine is first put into proper operation. The said John McC. Boyle for himself, etc., furthermore covenants and agrees to furnish at his expense boarding and lodging for the workmen, while putting up the said engine and boilers, and also all necessary brick work for setting up the same and yellow-pine sills for placing the engine on, as well as the freight of the said engine and boilers, etc., from the city of Baltimore to the town of Plymouth, or the place where the said engine and boilers are to be erected and put into operation; and also a sufficient number of laborers to assist in putting the engine, boilers, etc., in their proper situation. (Then followed a covenant for furnishing other materials not embraced in this suit.)
Counterparts of this covenant were signed and sealed by the parties.
The jury found a verdict for the plaintiff under the charge of the court, for $1,000. The plaintiff moved for a new trial, on (612) the ground of misdirection of the judge as to the question of damages and his rejection of proper evidence, which motion was reused; and, judgment being rendered according to the verdict, the plaintiff appealed to the Supreme Court.
A. Moore for plaintiff.Kinney for defendant.
RUFFIN, C. J.
The Court does not perceive any cause of complaint on the part of the appellant with the instructions to the jury. His Honor held that the plaintiff was entitled to recover damages on the covenant of the defendant to furnish an engine ready for shipment on 1 March, 1837, unless the plaintiff had himself (613)Page 458enlarged the time; and also damages for the inefficiency of the work, whether arising from the badness of the materials or workmanship, or because it did not correspond in form and parts with the contract. Those instructions embraced every breach alleged by the plaintiff, except that which respected the failure of the defendant to put up the engine on or before 1 May, 1837. Upon this last it is clear the plaintiff could not recover upon his declaration and evidence. For the contract requires the plaintiff to have the necessary building erected in which the engine was to be placed. The erection of the building must necessarily precede the putting the engine in it; and it was therefore incumbent on the plaintiff to show that the house was ready. That he did not do; but, on the contrary, he admits it was not ready by 1 May; and, indeed, it does not appear to have been built one day before the defendant had the engine at Plymouth, to be put therein. The only remaining question is as to the proper measure of damages. We think that as far as the instructions were specific on that subject, they are entirely correct; that in no respect were improper instructions given; and that if the plaintiff was not satisfied that all the directions had been given to the jury which he wished, and in the form he wished, he ought to have asked others more precise. For any of the work which either was not supplied according to contract or failed, the jury were told to give the price of good work of the same description, or what it cost the plaintiff to replace the defective parts. The propriety of that standard of damages for that part of the case cannot, we think, be questioned; indeed, it has not been, in argument. Then, as to the other parts of the case, we find a general instruction that the jury might give the damages sustained by the plaintiff by the failure of the defendant to make or furnish the engine by the day stipulated, viz., the first of March. This seems to us to have been going fully far enough; for, as the plaintiff gave no evidence that a house was prepared for its reception (614) before its arrival in December, the damages for the delay ought strictly, perhaps, to have been confined to the period during which the works stood still while undergoing the repairs rendered necessary by the breaking of some parts of the engine. For that delay the plaintiff was entitled to a fair compensation; since, as we think, the price of supplying the defective parts of the machinery is not his only loss, but to that is to be added the further loss from the capital invested lying dead, and the decay of the building and materials; in other words, a reasonable rent and insurance during the period of suspension. Damages upon that principle must be supposed to have been meant by his Honor when speaking of those to be given for the first breach stated in the declaration, and to have been given by the jury for at least the period mentioned, and, probably, for the whole time from March, 1837,Page 459until May, 1838, when the mills went into final operation, after being repaired. At all events, the omission of the court to draw the attention of the jury to the particular period of the suspension of the works in 1838 does not furnish a ground for a new trial, inasmuch as the language of the charge would authorize the jury to take into consideration the whole time from March, 1837, and the plaintiff did not move for instructions more special on this head. On the contrary, the plaintiff repudiated that mode of measuring the damages for the delay, namely, by giving a fair rent for the time or compensation for capital invested and lying idle; and he claimed damages under the particular head of injury to the stock of timber collected by the plaintiff; of loss from the want of employment of his hands during the repairs, and of the profits which he might have made if the mills had gone into operation in May, 1837, instead of May, 1838. Very certainly, damages are not to be measured by any such vague and indeterminate notion of anticipated and fanciedprofitsof a business or adventure which, like this, depends so much on skill experience, good management and good luck for success. That would make the defendant an insurer against losses from any cause in a business of hazard, and even against the plaintiff's want of management. The gains of the business the plaintiff might have done or, probably, would have done, cannot be correctly (615) estimated; and, therefore, evidence offered with a view of estimating them as the standard of damages was properly excluded as being irrelevant and as tending to mislead the jury. Then as to the two other grounds for damages, the plaintiff got them for his hands being idle, if they were idle; and, therefore, there can be no exception on that score. Nor, as we conceive, is there greater ground for complaint with respect to injury to the timber. We cannot say that the plaintiff would have been entitled to damages for that loss, had the fact been established. It is not the natural consequence of the defendant's want of punctuality in not having the engine ready according to contract. It was, rather, the plaintiff's folly to lay in so large a stock of perishable material before he was prepared to manufacture it. If it be liable, as he says, to injury by lying in the water, he must be presumed to have been aware of it, and ought not to have collected so much; or he might have taken it out of the water, if likely to injury there more than on land, and he gives no reason for not doing so. But, furthermore, a decisive answer to this objection is that it does not appear that the timber was injured. Witnesses differed about the effect on timber of its lying in the water: some thinking it might be injurious, and others beneficial. But the plaintiff offered no evidence that there actually was any injury to his. Consequently it would have been improper to give him damages on thatPage 460account, for he can recover only the damages really sustained by him, and not such as it seems possible he may have sustained. Upon the whole, therefore, the judgment must be affirmed.
PER CURIAM. No error.Cited: Ashe v. DeRosset,50 N.C. 301;Foard v. R. R.,53 N.C. 239;Whitford v. Fry,65 N.C. 271;Sledge v. Reid,73 N.C. 443;Mace v.Ramsey,74 N.C. 16;Roberts v. Cole,82 N.C. 294;Willis v. Branch,94 N.C. 149;Spencer v. Hamilton,113 N.C. 52;Reiger v. Worth,127 N.C. 236;Critcher v. Porter Co.,135 N.C. 552;Lewark v. R. R.,137 N.C. 385;Machine Co. v. Tobacco Co.,141 N.C. 294;Furniture Co.v. Express Co.,148 N.C. 90;Brown v. R. R.,154 N.C. 305;Tomlinsonv. Morgan,166 N.C. 561.Page 13