14 Neb. 369 | Neb. | 1883
This action was commenced in the court below by the defendant in error against the plaintiffs in error for the agreed price of a stone flume furnished and built by him for them under a contract.
The defendants answered and set up as a defense and counter-claim that it was a part of the said contract for the
2. That by reason of the said plaintiff’s non-completion of said flume on or before the first day of December, 1880, as agreed, the said defendants were on the fifteenth day of December, 1880, compelled to do a great deal of work and labor in and about digging frozen ground, to protect the unfinished wall of said flume, to their damage in the sum of $75.00.
3. That by reason of the non-completion of said flume at said specified time, defendants were, on the 8th day of May, 1881, compelled to use and throw 10,000 bricks into the water above the flume to protect the flume, and to prevent the water from washing it away, to their damage in the sum of $80.00.
4. That during the erection of the said flume, stones were thrown down the embankment by the said defendant against the green and unfinished wall so being built, whereby said wall became crooked and out of shape, and in such a condition that it would not hold water, to the damage of defendants in the sum of $500.
5. That said flume was not built in a good and workmanlike manner, but on the contrary the same was very poor work, to the damage of defendants $400.
6. That by reason of the said flume not being completed at the time agreed, the said defendants were damaged in the sum of $500 by water running through the wall and washing away the embankment.
8. That by reason of the incompletion of said flume on or before the first day of December, 1880, the head gates ■of said defendants, near which said flume was being built, were washed out in the spring of 1881, whereby defendants' were compelled to expend large sums of money and labor in replacing said head gates, to their damage of $500.
With a prayer for judgment for $5,315.00.
To which the plaintiff replied by a general denial.
There was a verdict and judgment for the plaintiff. Defendants bring the cause to this court on error.
There are a great number of errors complained of in the petition in error. There is, however, but one important question involved, and to which our attention will be chiefly, if not exclusively, confined in this opinion.
Upon the trial the court on its own motion, among •others, gave to the jury the following instruction:
“5. In the opinion of the court the claim for damages for the want of the use of the mill, and the building of which is claimed to have been delayed, is too remote, and you will allow nothing for this claim.”
The same point also arises upon the refusal of the court to give in charge to the jury the third, fifth, sixth, seventh, eighth, and ninth prayers of the defendants, by which a contrary opinion was sought.
In their brief and by argument at the bar, plaintiffs in error claim that their case comes within the rule laid down in Hadley v. Baxendale, 9 Exch. R., 341. Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y., 487. Griffin v. Culrer, 16 N. Y., 489, and many other cases all following the case first named.
We had occasion to examine and cite the leading case of
The case of Griffin v. Colver et al., 16 N. Y., 489, was where the plaintiff agreed to build a steam engine with boilers, etc., for defendants, and deliver it to them on a day certain. He failed to do so, and a delay of one week occurred, during which time defendants lost the use of certain machinery for the sawing and planing of lumber, which the steam engine was intended to drive, and which the plaintiff knew it was intended to drive. The plaintiff having brought his action for the price of the engine, the defendants recouped their damages from the failure to deliver it at the time fixed by the contract. The referee allowed the defendants $50 as a proper compensation upon their investment on the value of the property, which was partially unoccupied by reason of the plaintiff's default. The defendants excepted to the report on this ground, but their exception was overruled. On their appeal the judgment was affirmed by the general term, and by them appealed to the court of appeals. Here the judgment was also affirmed, and in the opinion, the court say: “The broad, general rule in such cases is, that the party is entitled to recover all of his damages, including gains prevented, as well as losses sustained, and this rule is subject to but two conditions: The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such
I have been able to find no case, and certainly we have been cited to none, where it has been held that the price of the use of machinery not in existence, in a business yet to be established, can be estimated in any case. Such an estimate must necessarily lack the element of certainty, which we have seen is inflexibly required both in the nature of the damages, and in respect to the cause from which they proceed.
"When we consider the changeable character of the human mind, as well as of all things in this life, who could say that a corn feed mill would certainly have been erected on the site in question had the flume been completed by December 1, 1880, or who could testify as to the capacity of such mill, or the value of its use per day, or-
Plaintiffs in error make as points in their petition in error, the giving of the instructions prayed for by the plaintiff below, and the refusal to give the instructions prayed for by the defendants below; but as they do not designate the particular paragraph of the instructions objected to in the petition in error, nor point out the ground of objection in the brief, the same will not be examined.
They also make the point that the court erred in admitting the testimony of Thomas Lanham, a witness for the plaintiff, as to the time of making excavation, and conversation with Mr. Bridges at the brick yard.
This witness having testified that he was working on the flume for Bridges & Johnson in the fall of 1880; that they commenced some time in September; that he took six or seven men there to work — to excavate, is asked by the plaintiff’s attorney:
Q. How long did you continue that excavation ?
This question is objected to by defendants as immaterial and irrelevant. Being allowed to answer, witness answered:
A. I don’t just remember on the first occasion.
Again he was asked:
Q. At the time did you hear any conversation between Bridges and Johnson and your brother (plaintiff) about coming back again and going to work ?
Q. After that.
A. Some time in October Bridges came to the brick yard. Johnson was not there.
Objected to as immaterial. Overruled.
Witness continued. “He says, Where is Tom? Isays, Gone away. He says, How is it you are not working at the flume ? I says, He says you misrepresented the work, and he has stopped. He says, I am sorry such a thing happened. I says, That is what he told me.. He says, Where is he ? I says, Out west. He says, Can you telegraph him ? I says, I don’t know where to telegraph to him. He says, I am anxious to have the thing go along. I am anxious to get the work done. I told him I would not go down and commence again unless I saw brother. He said he was sorry I did not know where to telegraph to, because he was anxious to get along with the work. That is all there was at that time.”
While I fail to see either relevancy or materiality to the issues in the case in this testimony, yet it is quite clear that it could not and did not prejudice the defendants, nor could it even tend to mislead a jury of ordinary intelligence.
Plaintiffs also make the point in their petition in error “That the court erred in admitting the testimony of John Lanham, iflaintiff, offered in rebuttal.”
Upon examination of the record I find that the testimony of the plaintiff was offered in rebuttal. It was received without objection on the part of the defendants. True, some questions put to him were objected to for cause, some of which objections were sustained and some overruled. But the assignment of error is too general to enable the court to apply it to any part of the testimony.
The judgment of the district court is affirmed.
Judgment ■ affirmed.