The opinion of the court was delivered, January 9th 1872, by
Agnew, J.
The assignments of error in this case raise but a single question, to wit, the proper measure of damages. The court below excluded all the plaintiff’s offers on this subject, and finally instructed the jury that the plaintiff could recover only nominal damages. By his contract Bemus was bound to build the foundation for a saw-mill, and to furnish all the money necessary to erect the mill (of which one-half should be at his own expense), all before the expiration of the year 1859 ; and after-wards to furnish the means to stock and run the mill. Rogers was to take charge of the construction of the superstructure (of which he was to pay- one-half of the expense), and complete the entire by the close of the year 1859, and afterwards to run and operate the mill. The parties were to be partners in running and operating the mill, and the expense of the erection of the superstructure and fitting it up and stocking it was to be paid first out of the earnings of the mill. The breaches of Bemus’s covenant, as laid, were the failure to build the foundation in the time specified, and to furnish the money for building the superstructure, and afterward for stocking the mill. It was in clear proof that Rogers had the superstructure ready to put up in the year 1859, and that Bemus had not the foundation finished to receive it until the latter part of the year 1861, and also that Rogers gave Bemus several notices, one in writing in August 1859, to get the *435foundation ready, and to furnish the money to put up the superstructure and make ready the mill for operation. Under these circumstances the plaintiff, having shown very clearly the breach of Bemus’s covenant to build the foundation, and] furnish the money to erect the mill, then offered, ^as evidence of the damage, to prove what would have been a fair rental for the mill; and other facts which may be summed up as an offer to prove the net profits the mill would have made. We agree with the learned judge that the probable net profits of an unfinished water-sawmill are too remote, contingent and speculative, to be the foundation of a verdict for damages. The business might be profitable or unprofitable, and would depend on so many contingencies of the seasons, stocking, water, manufacture, kinds of lumber and state of the market, the result would be the merest guess work. But this cannot be said of the fair rental such a mill would bring. The rental of the property is entirely distinct from the business to be done upon it. The owner can always rent it for something near its yearly value, and has nothing to do with the results of the business, which belongs to the tenant, who calculates his probability of profit or risk, when he rents. The breach of the covenants of Bemus in this case consists in the delay of performance, not in entire non-performance. The delay therefore was a matter directly within his view when he declined or neglected to perform; and the direct injury in consequence of the delay, was the loss of the use of the mill. This might be fairly measured by the rental such a mill would bring. It is no more uncertain than the standard of damages for the use and occupation of property, where the party has had the use of it. The mill here had itself to show for the thing to be used, so that an estimate of the value of its use was fairly within the range of competent evidence. With a fair rental value of the mill before them, it would have' been competent for the jury, under proper instruction upon the contract, to ascertain how much of this measure for the delay belonged to Rogers, as evidence of the loss he sustained by the delay. The delay of Bemus being the direct result of his neglect or refusal to perform his covenant, the loss of the use of the property fell directly within his view also, and was a consequence therefore for which he must be held accountable to the extent of .Rogers’s proportion of the loss. See this subject discussed in Fleming v. Beck, 12 Wright 309, and Pittsburg Coal Co. v. Foster, 9 P. F. Smith 365.
We think the learned judge erred also in deciding that the plaintiff could recover only nominal damages. Though the chief elements of damages were not proved by the plaintiff, yet there were some in evidence, which would have redeemed the case from an instruction for nominal damages only. For instance, Rogers paid Daniel Shunk on account of building the foundation *436from three to four dollars. He proved also that his trade was that of a carpenter, that he was delayed in the erection of the superstructure until October 1861, and consequently primfi facie at least lost his time, for which a jury might allow something at the rates of common labor, if not those of skilled work. The case was therefore not wholly barren of elements for a computation of some damage. There is no doubt that a party is not confined to a single mode of measuring or estimating his damages. Where the casé admits of it, he may resort to different means of arriving at the result, and these must be judged of by the jury, with proper instructions if necessary to aid them in reaching the conclusion contemplated by the suit; to wit, the amount of loss sustained in consequence of the injury: Seely v. Alden, 11 P. F. Smith 302; Yeager et al. v. Weaver, 14 P. F. Smith 425.
For these reasons the judgment is reversed, and a venire facias de novo awarded.