
    Walker & Langford vs. Ellis & Moore.
    1. Damages. In actions ex contracta. In actions of contract to recover damages for breach, generally speaking the damages are limited to the natural and proximate consequences of the breach complained of; and damages remotely or consequentially resulting therefrom, or merely speculative damages, cannot be claimed.
    3. Same. For breach of specific contract. In an action for a breach of a specific contract, the party injured is bound to use proper means and efforts to protect himself from unnecessary loss or damage, and can charge the other party only for such damages as by reasonable endeavors and expense he could not prevent. Thus, in a suit upon a breach of a contract by which the defendant had engaged to put up machinery for a mill, and to place the same in successful operation, if the adaptation of said machinery to the purposes in view could as well have been tested in a day or a week as in a month or a year, the delinquent party cannot be subjected to the increased expenses resulting from the continued unavailing experiments persisted in by the other party to test the operation of said machinery.
    3. New Trial. Evidence. If in an action for damages for breach of a specific contract, evidence objected to by the defendant is permitted to go to the jury as to damages of a nature too remote, uncertain and speculative to form a just and proper measure of the recompense to which the plaintiff is entitled, and the jury render a verdict against the defendant, a new trial will be granted.
    FROM MAURT.
    This action was brought by the plaintiffs against the defendants, to recover damages for the breach of a contract without seal, whereby the defendants had undertaken to put up machinery for a mill and place the same in successful operation for the plaintiffs. The contract is dated 26th of July, 1851, and the defendants were to have the work done by the 1st of October of the same year. The main breaches assigned are, that the defendants failed to complete the work by the time contracted for, and it was done in a negligent, unskilful,-and unwork-manlike manner; besides wbicb, tbe plaintiff declares upon various breaches in special counts, and upon tbe common indebitatus counts. Tbe mill was not ready for operation until tbe following April, and it appears tbe machinery was not put up according to contract. Tbe case was submitted to a jury of Maury county, at tbe September Term, 1853, of tbe circuit court, before Judge Baxtek, when there was a general verdict for tbe plaintiffs, assessing their damages at $1,600. Tbe judgment was afterwards arrested, and tbe case brought up by both parties to this court. Tbe matters assigned for error on behalf of defendants, fully appear in tbe subjoined brief of their counsel.
    PayNE and GaNt, for tbe plaintiffs in error.
    [No briefs on behalf of tbe plaintiffs have been furnished tbe Reporter. ]
    M. S. FrieesoN, for defendants in error:
    Tbe plaintiffs obtained a verdict against tbe defendants. Defendants moved for a new trial, which motion was overruled. They then moved in arrest of judgment; wbicb motion was sustained by tbe court, and the judgment arrested on tbe ground of misjoinder of causes of action. Tbe first count, after setting out tbe contract in substance, avers that “by reason of tbe negligence, carelessness, and unskillful conduct of tbe defendants, said work was delayed contrary to tbe effect of said agreement and the promises and undertakings of said defendants.” The first amended count avers “that the said work in the contract specified was put up in a negligent, unskillful, and unworkmanlike manner, and by reason of the said negligent, improper, unskillful and careless performance and putting up said work by said defendants, the said plaintiffs were compelled to take down, remove and destroy,” &c. The other counts are common counts in assumpsit.
    
    I. The breaches of the special counts quoted above, show them tobe m tort; they allege the injury to plaintiffs as resulting from negligence, carelessness, and unskillful performance of the contract, and not for a breach of the contract itself, and therefore cannot be joined with counts in assimiypsit. Meigs, 459, 467. 2 Chitty’s P., 331-2, 650 to 669.
    II. The plaintiffs offered to prove “that they had employed a number of workmen to work on their mills; that they had sustained heavy damage by reason of said hands remaining idle on account of the non-delivery of the machinery; that they were kept idle themselves, and that their wagons had been sent several times for the machinery, and returned without it.” They also offered to prove “how long these hands were idle and delayed by failure to deliver the work, and that they were kept idle at a heavy expense.” They proposed then to prove “that the timbers about said mills were heavy and required a great number of hands to put them up.” . To all of which the defendants objected, but were overruled by the court, who decided “that the plaintiffs might prove the idleness of the hands caused by the delay in delivery of the machinery, and that the defendants were not only bound to pay an amount of damages sufficient to Rave made the contract perfect, but they were bound to pay the expense caused by the delay of the hands, and other incidental expenses incurred.”
    The court manifestly erred in permitting the plaintiffs to prove as items the idleness of hands, delay in business, and expenses incurred in attempting to procure the articles which were to be supplied by the defendants. This court has already decided that these are not items of damage in action for a breach of an agreement to deliver articles. Porter vs. Woods, Staelcer <& Go., 3 Humph., 56, 61. 21 "Wend., 312, 346. 1 New Hamp., 360, 361.
    HI. The court erred in permitting the plaintiffs to pi’ove “what amount of fire wood these mills would consume in a day; what number of hands it would take to attend the mills; and that the mills would not pay for the hands and fire-wood;” all of which was objected to by defendants, and the objection overruled by the court. The plaintiffs then proposed to prove “what would be a reasonable hire for the hands from Nov. 1, 1851, to April 1, 1852; -and what would be the hire from April, 1852, to September, 1852;” all of which was objected to and overruled by the court. Plaintiffs proved the same, including, the value of their own services.
    1. Because if true, it was the plaintiffs’ duty, the moment they ascertained the mills could not run without incurring loss either to themselves or defendants, to desist from using them; and if, after a knowledge of these facts, they went on and incurred loss, it was the result of their own folly, and we are not chargeable with the same as damages sustained by the plaintiff. 2 Green. Ev., § 261. 7 Green. Rep., 57. 17 Pick. R., 281.
    2. The court by the admission, of this proof not only held us responsible for damages incurred by the fault of the plaintiffs themselves, but also allowed them to prove as damages against us, the value of their own services, and a reasonable hire for their hands from the 1st of LTovember, 1851^to the 1st of September, 1852, which in effect would be compensating the plaintiffs for their services and the hire of their hands, and giving to them the use of their own services and the services of their hands in addition, which is so manifestly erroneous that it needs no authority but our every day experience to condemn it.
    IY. The court after reading the contract to the jury, told them 'that “ the proper - meaning of the agreement was, that the defendants should furnish a competent machinist in putting up the machinery necessary to complete the mills, and not simply such articles of machinery as are specified in the contract; and it amounts to a guaranty that if the plaintiffs put it up under the superintendence, and according to the direction of the machinist thus furnished, they should operate successfully.” The contract, after enumerating what work was to be done, and what particular articles of machinery were to be furnished by the defendants, proceeds thus: “ Also, we agree to furnish a good machinist to put up the above work and put in successful operation for said Walker & Langford, in Columbia, Tenn.” These are the only words in the contract' in relation to putting up said machinery.
    
      We insist therefore that the court erred in the construction placed upon this contract, for the words “ above work” evidently referred to the work and articles which were to be furnished by the defendants in the foregoing-part of the agreement. The true grammatical reading of this clause of said contract is: “We agree to furnish a good machinist to put up and put in successful operation, the above work, for the said Walker & Langford in Columbia, Tenn.” Surely it never was the intention of the parties to furnish a machinist to superintend and complete the entire work of said mills. Story on Con., § 639 to 641.
    Y. The court further told the jury that “if the machinery furnished was worthless and unsuited to the use for which it was intended, the defendants would be responsible for the value of the .machinery. If the defect was radical and could not be remedied but by eviserating and throwing away the whole work, the plaintiffs would be entitled to the whole cost of putting it up, and the costs of the machinery laid aside, as well as for the materials lost and interest on the money specified in the contract for the delay or loss of time. The court had admitted proof that defendants were bound to pay an amount sufficient to make the contract perfect.
    Taking these propositions together, they not only make the defendants pay an amount sufficient to make their contract perfect, but compels thorn to pay for the materials thrown away and costs of putting up the old machinery, which would be doubling the damages for the same injury.
    VI. The court told the jury that the plaintiffs were not bound to accept the machinery after the time specified in the contract for delivery; but if the defendants at a subsequent day had it ready to deliver, the plaintiffs might accept it with or without a waiver of their right to damages for the delay; but if they accepted it without more, they might presume a waiver; but this applies to the case up to the time the first machinery was delivered and accepted. But when a part was delivered and accepted, the plaintiffs would have no right to expect that the -balance would be delivered when wanted; and if any subsequent delay occurred in - delivering the balance, the plaintiffs would not be presumed to waive by any subsequent delivery.” In this the court erred, for we insist that if the plaintiffs received the machinery and applied it to their own use, they thereby waived their right to sue for and recover damages for its non-delivery. 4 Shepley R., Emerson vs. Coggswell, ††.
    
    TIL But if we are wrong in all this, the court will see by simply reading the evidence that the great preponderance of proof is against the verdict, and a new trial should be granted for this cause.
   McKinney, J.,

delivered the opinion of the court.

This case is brought here by both parties. The action was assumpsit, founded upon an unsealed “written agreement. The declaration contained special counts, assigning various breaches, and also the common mclebi-tatus counts.

The plaintiffs recovered judgment upon a general verdict on all the counts. On a subsequent day of the term, a motion was made in arrest of judgment, upon the ground of a supposed misjoinder of counts in case with counts in assumpsit, and the motion was sustained and judgment arrested. From this action of the court the plaintiffs pi'osecuted an appeal in error to this court.

After verdict, and before the motion in arrest, a bill of exceptions, setting forth the evidence and various exceptions to the opinion of the Court, was tendered and signed; a motion for a new trial on behalf of the defendants, having been previously overruled, and the defendants have brought a writ of error.

We think there is error in the record to the prejudice of both parties, and that they are severally entitled to a reversal.

First. The Court erred in arresting the judgment. If it were even admitted that there is a misjoinder of counts, still no exception was taken by demurrer, or otherwise; and under the act of 1852, § 4, no motion in arrest of judgment could be maintained. The judgment in arrest must therefore be reversed.

Second. The judgment against the defendants, upon the verdict, is also erroneous.

1. The Court erred in the construction of the written contract, as to the extent of the obligation it imposed upon the defendants. The jury were instructed that “the defendants, by their contract, undertook to put the mills in successful operation;” and again, “that the proper meaning of the contract was, that the defendants should furnish a competent machinist to superintend the putting up of the machinery necessary to complete the mills, and not simply such articles of machinery as are specified in the contract.” This, we think, is a misconstruction of the agreement. The defendants only undertook “ to furnish a good machinist to put up,” and put in successful operation,” the machinery specified in the Contract, which they had undertaken to furnish.

2. The rule as to damages, in some respects, we think, was laid down too broadly. The application of rules as to damages, is a subject of much confusion and difficulty, upon which we do not at present mean to^ enter. In actions of contract, generally speaking, the j damages are limited to the natural and proximate con-! sequences of the breach complained of, and damages remotely or consequentially resulting therefrom, or merely speculative damages, cannot be claimed.

The plaintiffs in the present case, are entitled to a just recompense, or indemnity,, for the direct and immediate losses which the non-performance ■ of the contract actually occasioned them.

But in the case of a- breach of a specific contract, like the present, the party injured is bound to use proper means and efforts to protect himself from unnecessary loss or damages, and can charge the other party only for such damages, as by reasonable endeavors and expense, he could not prevent. 2 Greenleaf’s Ev., § 264.

If, for instance, the quality or adaptation of the machinery to the particular purpose in view, could as well have been tested in a day or ,a week, as in a month or a year, upon no just principle ought the delinquent party to be subjected to the increased expenses resulting from the continued unavailing experiments needlessly persisted in by the other party.

If tlio machinery, though not of the quality contracted for, were still of some value, and the plaintiffs retained and used it, the measure of damages would, of course, he the difference between the value, if fit for the purpose intended, and the actual value in point of fact.

Without going into particulars, we think evidence as to damages, of a nature too remote, uncertain aud speculative, to form a just and proper measure of the recompense to which the plaintiffs are entitled, was admitted to the jury; and it is impossible for us to know what influence it may have had upon the verdict.

The judgment against the defendants will likewise be reversed, and the case be remanded for a new trial.  