48 Mich. 428 | Mich. | 1882
The question in this ease is one of damages for the non-performance of a contract within the agreed time. The facts are found by the circuit judge.
From the finding it appears that in January, 1880, the defendants were proprietors of a saw-mill iii general good order and condition at Bay City, and on the tenth day of that month made an agreement with the plaintiff, a manufacturer of mill machinery, whose place of business was at Milwaukee, in the state of Wisconsin, for the manufacture by him for use in their mill of a piece of machinery known as a “ wrought feed friction works,” to be shipped on board cars at Milwaukee on or before March 1, 1880, so that it would reach Bay City within two or three days of that date. The contract on behalf of plaintiff was made through one Ilincldey as his agent, who was notified by defendants at the time of the following facts:
(1) That the saw-mill of defendants had therein at that time a feed works which worked fairly well, but which
Shortly prior to March 1,1880, defendants were informed by plaintiff that the machinery would be shipped as agreed, and during the month of March they were repeatedly notified that the feed works wrould be shipped from Milwaukee in a few days from each of such notices, but it was not finally completed and shipped until in July following. On April 5, 1880, plaintiff supplied the defendant with feed works like that contracted for except that the main part or friction of the same was cast instead of wrought iron, and with this the defendants were enabled to start up and use
For want of the feed works the mill of defendants, with-. out any fault, negligence or waiver on their part, lay idle through March and until the fifth of April, though they had in their mill-booms stock for manufacture, and they actually lost the use of the mill for at least sixteen and one half working days. During the said sixteen and a half days, when said defendants were deprived of the use of their mill in consequence of the failure of plaintiff to furnish said feed works in accordance with his agreement, the defendants could and would, if the same had been furnished, have used and operated their mill, and could and would, in the usual way of operating the same, have manufactured therein at least seventy-five thousand feet of lumber per day, the sawing of ydiich would have yielded them a profit, over and above the ordinary expenses of running said mill, of ninety-three dollars and seventy-five cents per day, and which the defendants have lost by reason of such failure on the part of said plaintiff, and the fair rental value of the mill would have been seventy-five dollars per day during the time last above mentioned.
On this finding, there being no other showing of damages on the part of defendants, the circuit judge decided that the plaintiff was entitled to recover the contract price of the féed works without reduction, and gave judgment accordingly. The defendants bring the case to this court.
"We had occasion in McKinnon v. McEwan ante p. 106, decided at the last term, to pass upon a question much like the one which arises here. In that case as in this a mill-owner had contracted for machinery to be furnished by a specified day, and he sought to recover profits lost by reason of his mill lying idle, as damages for the failure to perform the contract in time. It seems reasonable that where profits are thus lost the defaulting party should make them good, for the machinery is purchased with a view to the profits, and the contract would not be entered into if the profits were not expected and counted upon. But the difficulty in
But this case is thought to be different because here the fair rental value of the mill is proved, and it is said that this-was certainly lost. But we do not know that that was the case. If the mill had been in condition to rent at that time; there may have been no customer for it on terms the owner would have consented to grant; and if customers were abundant and satisfactory, it cannot be assumed that the whole rental value is lost when a mill stands idle. The wear and tear of machinery and buildings in use is something, and it is not improbable that the landlord would take this among other things into account in determining what should be the rent. But in this case it does not appear that rent was lost or could have been lost, for it is not shown that defendants desired to rent or would have consented to do so if a customer had offered. In fact the contrary iselearly inferable.
The judgment must be affirmed with costs. •