
    Singer v. Farnsworth.
    The defendant contracted to furnish the plaintiff a certain machine for one hundred dollars, and, until it was constructed, he was to let the plaintiff have a machine, then finished, for his use. He delayed furnishing said last-mentioned machine for three months. Held, that the measure of damages was the value of the use of the machine during the time the plaintiff was deprived of it.
    ERROR to the Jefferson Circuit Court.
    
      Tuesday, June 3.
   Smith, J.

Assumpsit commenced before a justice of the peace, and appealed to the Circuit Court.

The evidence shows that the defendant, by a contract in writing, dated May 12th, 1845, agreed, in consideration of 100 dollars, to furnish and deliver to the plaintiff a patent machine for sawing saddle-trees, as soon as such a machine' could be conveniently manufactured; and that, in the meantime, until said new machine should be delivered, the plaintiff should have the use, free of charge, of a machine of the same kind belonging to the defendant, but then in the plaintiff’s possession.

The plaintiff also proved that, about three months after this contract was made, the defendant desired to obtain possession of the machine in the plaintiff’s possession, and which he had been using, for the purpose of selling it to another person, and agreed with the plaintiff that, if the latter would permit him to have it for that purpose, he would furnish another of the same kind, then in the possession of one Urie, for the use of the plaintiff until the new machine contracted for should be completed. The plaintiff agreed to this arrangement, and the machine he had been using was removed by the defendant; but the latter did not' furnish the plaintiff with the machine he agreed to substitute for it. The plaintiff consequently remained without a machine for about three months, or until about the 1st of September, 1848, when the new machine was furnished him.

There was evidence given of the quantity of work which the machine could perform, and that the plaintiff was injured in his business, and was obliged to discharge some of his workmen in consequence of his being deprived of the use of the said machine.

The Court found that the plaintiff had sustained damages to the amount of one dollar and twenty-five cents, and rendered a judgment in his favor for that amount, from which judgment he appeals to this Court.

The record does not show what measure of damages was adopted by the Court; but we are informed, by the counsel for the plaintiff in error, that the sum for which the judgment was rendered was found by computing six per cent, interest on the original cost of such a machine as the defendant contracted to furnish the plaintiff.

We think the proper measure of damages is the value of the use of the machine during the time the plaintiff was deprived of the use of it; not the profits which might have been derived from it, but the reasonable rent or hire of such a machine. Suppose the defendant had agreed to deliver, for a sufficient consideration, a certain horse at a future period, and that, until the said horse was delivered, the plaintiff should have the use of a certain other horse belonging to the defendant. If, in such a case, the defendant had broken his contract, by refusing to permit the plaintiff to have the use of such other horse, we think it quite clear the proper measure of damages would have been the value of the services of the horse during the time the plaintiff was deprived of them. In such cases, the law aims to give the party injured, by a breach of contract, the value of that which the other party stipulated to perform; but that value is to be computed according to the ordinary and reasonable prices at which similar services, or the use of similar property to that which ought to have been furnished, could be procured from other sources, and not from the profits which might have been made from such services or such property, the complaining party making no effort to supply its place. See Ellison v. Dove, 8 Blackf. 571.— Lucas v. Heaten, Ind. R. 184 .

J. R. Troxall, for the plaintiff.

G. Sullivan, for the defendant.

We think, also, there was sufficient evidence to show that the value of the use of the machine in question was more than 1 dollar and 25 cents, if it was of any value at all. The Court must, therefore, have applied an erroneous measure of damages, and we think there ought to be a new trial.

Per Curiam.

The judgment is reversed with costs. 
      
       See 1 Garter's Ind. R. 264.
     