Tompkins v. . Cotton Mill , 130 N.C. 347 ( 1902 )

It certainly appearing that the witness's estimate was based upon the profits growing out of circumstances then existing, we think his Honor erred in not striking out his entire answer, as moved for by the plaintiff's counsel. And there being no evidence that witness based his estimate or calculation upon any data other than those of profits, his statement, or estimate, should not have been submitted to the jury for consideration. The witness estimated the monthly rental value of the machinery to be $1,500, being the profits derivable from a rising market both as to the raw material purchased and the manufactured goods sold. But if the price of the manufactured goods had gone down with the rise in the raw material remaining, the result would necessarily have been different. So, it is clear to us that his estimate was based upon speculation and uncertain profits, depending upon a variety of contingencies, the failure of any one of which would subvert his whole calculation, and which are too remote and indeterminate to enter into and become the measure of damages. Manufacturing Co. v. Rogers, 19 Ga. 416. While it appears from his estimate that the market went in favor of defendant, and that it would have made a handsome profit if it had obtained its machinery, and gotten the same in good working order, and had had a sufficient number of competent employees and laborers and an ample supply of material, and met with no reverses, yet if the market had gone contra, and reverses had befallen it, then instead of having a profit, it might have incurred a loss, in which event the default of plaintiff would have been a benefit rather than an injury. Nevertheless, as the injury can not be estimated by the standard of profits, the law will not allow it to go unredressed. The measure of damages is a fair rental value (352) of the mill for the loss of time caused by plaintiff's wrong — that is, the portion of the mill this machinery would have equipped. If this can not be otherwise accurately determined by certain and determinate data, which were contemplated by the parties and entering into their contract, then the law will allow the legal rate of interest upon the capital invested to be the measure (Rocky Mount Mills v. R. R.,119 N.C. 693, 56 Am. St., 682), not because it is an accurate criterion, but for the reason that it is approximately just. The party injured by reason of a breach of contract should be, so far as money can do it, placed in the same situation with respect to damages, as if the contract had been performed. Robeson v. Harman, 1 Ex. Ch., 855-6. In the case at bar there is no certainty as to what would have been defendant's situation if plaintiff had performed its contract; but it is shown that it had capital invested in its plant and other machinery which was kept idle during the time plaintiff was delaying the fulfillment of its contract, upon the value of which it is entitled to recover the legal rate of interest; and it may have incurred losses and expenses which were incidental to such delay, such as insurance, idle labor, deterioration in its machinery, etc., which could be considered if properly put in issue. The charge and rulings of his Honor, with respect to which other exceptions are taken, are sustained.

For the error above pointed out, a new trial is awarded.

New trial.