Rothrock, J.
i contract: measured damages. The action was at law, and the finding of the court is entitled to the same weight as the verdict of a julT- I* will, therefore, be understood that we <1° not enter upon the consideration of questions fac^ w]iere there is a conflict in the evidence, and we may as well say here that the court was justified from the evidence in fixing the amount of the damages at the sum *373of $3,000, provided the measure of damages which was adopted was not erroneous. There was no finding of facts by the court, and we can only determine the measure of damages from the evidence which was introduced. The only assignment of error is that “ The court erred in finding the plaintiff entitled under the evidence to damages in the sum of $3,000 for breaches of the contract sued on.” There does not appear to have been any objections nor exceptions to the evidence. The evidence as to the damages consisted of estimates of the earnings of the stave ’factory, principally, when it was supplied with the material for its operation. .It might well be said that if this character of evidence, and this rule of damages, were adopted as correct by the parties upon the trial in the court below, it is too late to make objection thereto in this coxirt. But as counsel argue the case upon the question as to the proper measure of damages, and' do not raise the question of practice, we will briefly consider the appeal upon its merits.
This contract recites that the plaintiff did not have the means to conduct the business successfully, and provides that the defendants should furnish all the raw material. This provision of the contract precludes the idea that in case of a failure of the defendants to furnish the material, the plaintiff' should furnish it and thus protect himself from loss as far as possible. There is some disagreement by counsel as to which of the parties was bound under the contract to fix the price and character of the materials. We think this readily determined by the'contract itself. It provides that “ The said A. C. Tiede & Co., to purchase all raw materials under the specifications of above Geo. Taft, at the lowest possible price, and to charge the same to the above Geo. Taft at actual cost price.” Under this stipulation Taft was to specify what material he required, and Tiede & Co. were to go into the market and purchase it at the lowest possible price. The price not to be fixed by Taft, but by Tiede & Co. The court may have fairly found from the evidence that the plaintiff was repeatedly calling for material to manufacture barrel staves, and that defendants *374failed to furnish them because they did not offer enough for them, and coupled their offers to purchase with a proposition to pay for them partly in store goods. If the factory was kept idle for these reasons, we do not think it was allowing speculative, remote or contingent profits to estimate the damages based upon the net earnings of the factory if it had been employed. The damages thus allowed did not depend upon contingencies as in Howe Machine Co. & Bryson, 44 Iowa, 159, and in Wilson Sewing Machine Co. v. Sloan, 50 Id., 367. In the case at bar the plaintiff had the right to designate or specify the kind of material, and the evidence shows that he called for such as was suitable for barrel staves. „ The defendants were bound by the contract to take all that should be manufactured at a fixed price. The evidence tends to show that the material could have been purchased, and the value thereof; with the cost of the material ascertained, and the expense of operating the factory, and the price agreed to be paid for the staves, the damages claimed and allowed were not speculative profits. The fluctuation of the market for staves was not an element to be considered. That was fixed by the contract. In our opinion the judgment of the District Court should be
Affirmed.