
    TAYLOR vs. MAGUIRE.
    1. A contracted with B to build for him a boat hull, and deliver it On a stated day. He failed to deliver it until two months after the time specified ; but B received it at the time Withoutobjection ; A sued to recover a portion of the stipulated price; B offered to prove that by reason of this delay he had failed to realize the profits of the boat during these two months. Held to be no bar to A’s right to recover the stipulated price.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OP THE CASE.
    This Was an action of assumpsit on the common counts brought by Maguire against Taylor. The defendant Taylor pleaded the general issue, upon which the cause was tried by a juty, ■who rendered a verdict for the plaintiff for $5,275, for which amount judgment was rendered. The defendant in the court below filed a motion for a new trial within the proper time, for the reason, as was alleged, that the verdict was contrary to law and the evidence, and because the court rejected competent evidence offered by defendant. The motion was overruled, and the defendant excepted and appealed to this court. The bill of exceptions shows that the plaintiff claims fifteen thousand dollars for work and labor done and materials furnished in building a steamboat hull for the defendant. The bill of particulars furnished by the plaintiff, sets out in detail the materials and work for which the plaintiff claims, with the price of each article. The plaintiff then proved that he furnished the materials and performed the work as enumerated in his bill of particulars, and that the prices were reasonable, and (hat the hull was delivered to defendant on 12th April, 1847. That Taylor accepted the hull and made no objection to the quality of the work. That from the time of the delivering it was about six weeks or two months before the hull was completed as a steamboat, and ready to run. It was also proved that there was a written contract between Tayl'or and Maguire concerning the building of the hull, which contract was proved and read in evidence to the jury by defendant, after the plaintiff had closed his evidence. The contract is set out in the bill of exceptions, from which it appears that it was dated 8th September, 1846, and that Maguire undertook to build for Taylor a hull of specific dimensions ; to furnish all the materials, and do all the work pertaining to the ship carpenter, except that Taylor was to furnish the “ tie-bolts ” and rudder-iron, and Maguire was to have the boat ready to receive the engines by the 1st of February, 1847. In consideration for which, Taylor agreed to pay Maguire nine thousand dollars in manner following, viz.: One thousand dollars in hand; one thousand dollars on 1st November, 1846; one thousand dollars on 1st December, 1846 ; one thousand dollars on 1st January, 1847, and five hundred dollars when the hull was completed. The balance was to be paid in the notes of Taylor, payable the first at four months from the completion of the hull; the second at six months from date ; the third at nine months from date, and all to be dated at the time of the completion of the hull. At the foot of the contract and, below the signatures, is a memorandum signed by Maguire, to the effect that if the notes to be given by Taylor, be not met at maturity, they were to be renewed, by adding interest. The plaintiff also gave evidence tending to show that after the delivering of the hálito Tayloryon 12th April, 1847, there was no work to be done, by Maguire, except to put on the rudder, and that some delay occurred in doing this for want of the rudder irons, which were to be furnished by Taylor, but that this was done, and the rudder put on before, or as soon as Taylor had put oa the cabin, and had the boat ready to run. Plaintiff proved also, that he commenced work, getting out timber, &c., for the hull, about 1st October, 1846. That in the progress of the work Taylor several times objected to the lumber that was put into the boat, which the witness thought was good lumber, but that Taylor required it to be taken out, which was done, and it was replaced by other planks. That this caused some little delay in completing the work. That after the 1st February, 1847, Tayior was about the boat yard, and gave directions, as before, concerning the building of the hull. That before and after 1st February, Taylor was all the time hurrying those employed on the boat, saying he was afraid he should lose the season run, if he did not soon get the hull. He also gave evidence tending to show that the work had been somewhat delayed by the severity of the winter, and the difficulty of obtaining lumber. This was all the evidence on the part of the plaintiff. The defendant, after reading in evidence the written contract before referred to, offered to prove that he performed all that was required in the contract to be done on his parr, and that by the failure of the plaintiff to build and deliver the hull at the time specified in the contract, the defendant lost the use of the boat for the space of two months, and (hat the boat could have been chartered to other persons for thé period lost, for a sum exceeding the whole amount of the contract price remaining unpaid ; to theintroduction of which proof the plaintiff objected, and the court refused to allow the proof to be made, to which the defendant excepted at the time, and has appealed to this court, and assigns for error the refusal of the court to grant him a new trial, and the exclusion of the testimony ottered by him as above.
    Crockett & Briggs, for appellant, insist::
    1st. That the defendant in the court below had a right to recoup his damages sustained by Maguire’s failure to complete the hull according to contract. Patterson vs. Price, 3 Hill’s Rep. 171 ; Reab vs. McAllister, 8 Wend 109, same case, Wind 483 Barber vs- Rose, 5 Hill 7,6 ; Van Eppes vs. Harrison, 5 Hill 63 ; Still vs. Hall, 20 Wend 51 ; Ives &c. vs. Van Eppes, 22 Wend. 155 ; Ladue vs. Seymour, 24 Wend. 60; Silsby vs Patterson, 14 Wend. 257; Beeker vs. Vroorr.an, 13 John 302; King & Mead. vs. Paddock, 18 John 140 ; Sedwick bn measure of damages, 457 et seq.
    2d. That the damages offered to be proved by defendant, and the proof of which was rejected by the court, was not speculative, but resulted directly and proximately from the breach of contract on the part of Maguire. Taylor lost the u«e of the boat for more than two months, during the best part oft the season, and offered to show that such use would have been worth more than the balance due for the purchase money. Such proof was competent.
    3d, That although the general rule is in actions for a breach of contract for the sale and delivery of chatrles ; that the criterion of damages is the difference in value of (he articles on the day of actual delivery, (where they have been received by the vendee) and the value on the day when they ought to have been delivered. Yet this rule applies only where the price is to be paid on delivery; not where the price is paid in advance, as in this case—nor where the contract is for the sale ar.d delivery of articles for (he use and accommodation of the vendee, and, not for purposes of trade and commerce. 2 Burr, 1005,1010 ; 2 East. 211; 2 Cowen S-Í; 8 Wendell 129.; 24 Wendell 322 ; Clark vs. Pinnay, 7 Cowen 681; Sedwick on rule of damages, 1.12, 260, 276 ; 3 Wheat. 200 ; 2 Cowen’s Rep. 485.
    4th. That the case at bar is not, in its proper sense, a contract for the sale and delivery of a chattle for purposes of trade and commerce, but was an undertaking on the part of Maguire to. perform specific work within a given time, Taylor agreeing to furnish a pant of the materials. to he used in the work, and when comnleted, was to be used, as shown by the proof, not as an article lr be sold, but to be used by Taylor, and therefore the rule governing the sale of chatties to be delivered at a given day for (he purpose of tiade, barter, and sale, is not applicable, but if they were applicable, Taylor having paid a part of the purchase money in advance, is not restricted in his damages to the rule applicable to cases where the purchase money is to be paid on the completion of the contract.
    5th. That from the facts as proved, it may faiil.y be considered to have been in the contemplation of the parties at the date of the contract, that Maguire should be held liable for all losses arising from his failure to complete the hull at the stipulated tune, and especially ‘-such profits and advantages as are the immediate fruits of the contract. These aie a part and parcel of the contract itself, entering into and constituting a portion of its very elements—something- stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfilment, of any other stipulation. Masteison vs. Mayor of Brooklyn, 7 Hill 65 ; Sedwick on iule of damages, 81, 84.
    6th. That according to the contract given in evidence, the balance of ihe purchase money was to be paid by Tayhr in his notes, at four, fix and nine months from the completion of the hull, and then to be renewed at his option, including ii teiest. This suit was commenced on 29',h May, and before the expiration of the stipulated ciedit. This cannot be done in a suit on the cornmen counts. '1 he only recovery in such cases, is by suit on the contiact for failure to give tile notes. But after the expiration of the credit, suit maj’ be maintained on the common counis. In this case, suit was brought before the expiration of the credit, and
    
      therefore the verdict for the whole balance of the purchase money, was contrary to law and the evidence, and a new trial ought to have beep granted. Sedwiek on rule of damage, 285 Ginnard vs. Daggart, o Serg. & It. 19 ; Messer vs. Price, 4 East. 147 ; Dutton vs. Solomonson, 3 B. & P. 582 5 Hoskins vs. Duperpy, 9 East. 498 ; Hutchinson vs Read, 3 Camp. 329; Hanna vs. Mills, 21 Wend. 90.
    Tqdd &, Krum for appellee insist.
    1st. That the court did right in refusing to suffer the appellant to give the evidence by him offered, beeauso what ho offered to prove was not a legal claim in his behalf against appellee either as a right of action, or in mere mitigation of appellee’s claim. 1 Gall. Rep. 314-325 denies profits qf a voyage broken up by illegal capture; 21 Wend. Rep. 342 a case in point in its facts substantially.
    1 How. Rep. 25, denies profits of voyage broken up by collision.
    2f Wend. 144, denies to defendant on judgment for him any profits he might have made on the saw logs taken from him by a writ of replevin. Suppose a steamboat taken instead of saw logs.
    17 Pick. 453. denies profits of voyage broken up by illegal attachment.
    3 Humphrey’s 56, is a case where the plaintiff sued defendants for plow castings. The defendant showed a contract, and that plaintiff had not performed it by not delivering the quantity, and insisted for this that plaintiff could not recover any thing. This was ovenuled. Also that thereby defendant was delayed in his business and lost—this dcfenco refused. Also that the castings were of apoor quality, and thereby his reputation was injured in his husmeo.-—this refnsed. Also, that by reason of plaintiff's non-performance he lost profits he otherwise would have made. This defence also overruled.
    It should be borne in mind, that what Maguire was to make was only a part of boat—over the machinery—the most important of all, the cabin, finish, tackle, &c., he had no control. Whether the hull would ever become part of a steamboat or not, was uncertain, and at least beyond his control. The hull by itself was not a subject to found a loss upon, from not having it to use.
    2d. If the ac tion was immaturely begun, the appellant was competent to waive it, as he did by not making the objection below. It is a personal privilege whether a party will object to his being sued before the debt is due, as much so as if sued out of his epuniy, or his trial be had at a term too early. 10 Mo. Rep,, 454. If he would object he should plead in abatement in the latter case, a plea to the merifs waiving it; and in the former case he should by demurrer, if it appears upon the declaration, and if not, but came out in proof then as soon as it appeared.
    To lie by and take the chances of the resnlt should be fatal to the right of this objection, as much so as after gaining a verdict which is set aside and a new trial granted, and the second verdict is lost, the party loses all benefit of any error in granting the new trial, by taking his chance of the second as decided by the court.
    3d. It is insisted that after verdict the parly loses the benefit of this objection, because from the nature of the case, it is not cause for setting aside the verdict. The verdict is right notwithstanding. It is cause for non-suit, and therefore to be taken advantage of on trial.
    4Ui. The point was not made below at all, and thus all the benefits of a motion for a new trial, to wit: among others that the judges below may more maturely consider what is hastily done on the trial, are lost, and the question comes as fresh and naked into this court, as if there were no motion for a new trial. Where the objection is not specifically raised below, it is the repeated decision of this court that it will not take notice of it above. Besides, it is forbidden by section 32, p. 906, It, Code 1845.
    
      5th. Section 7th of the act to simplify proceedings at law, approved February 13th, 1847, p. 109, session acts 1847, declares that no suit shall be dismissed for want of form, but the same shall be determined upon its merits. Hence it was indifferent whether the suit was on special counts, or as it is, as the merits could and were gone into, as well in the one as the other.
   Napton, judge,

delivered the opinion of the court.

A question has been made in this case, whether the plaintiff was entitled to recover under the common counts, the amount agreed to be secured by the defendant’s notes, before they fell due ; but the point was not raised in the circuit court, either by instructions or otherwise, and it cannot, for this reason, be assigned for error here.

The only question to be determined is, the one arising out of the exclusion of the evidence which the defendant below offered. The defendant had received the hull of the boat which the plaintiff had contracted to build, about two months after the time when, by the contract, it was to have been delivered, and in this action to recover a portion of the stipulated price, he offered to prove that by reason of this delay he had failed to realize the profits of the boat during these two months. In other words, the defendant desired to prove that he could have hired the boat during these two months for a sum equal to the amount of the purchase money unpaid.

All the authorities agree in excluding what are called speculative damages in cases of this character. The vendee is entitled to an indemnity for the actual loss sustained, by reason of the failure of the vendor to comply with his contract, but in the absence of all fraud, he has never been allowed damages remotely consequential, and resting in mere speculation.

The result of the cases, which are numerous, is stated in a few words by Mr. Sedgwick in his treaties on this subject. “ The value of the article at the time of the breach, with interest for delay, seems to be as near an approach to the actual loss sustained, as can be effected, without embarking on a vague search for facts, impossible, in most cases, to be proved with any degree of satisfaction. Ii it be shown that the article was to be delivered for some specific object, known to both parties at the time, and that thus a loss within the contemplation of both parties has been sustained, it may form an exception to the above rule. ” Sedgwick on damages, 277.

The precise class of eases to which the author refers in this last paragraph, is left to conjecture. If a lessor’s title to a house fail, he is bound to pay the lessee the expense of removal, and indemnify him against the advance of rents. So, perhaps, where a mechanic undertakes to build a house by a specified time, and the house is not completed at the time fixed, in consequence of which, the person with whom the contract was made, has to rent another house, he would be reimbursed for the amount expended in rent. The losses in these cases are not at all speculative, and are clearly within the contemplation of the parties at the formation of the contract. But if the leasee, in the case first put, should not only claim the expense of removal, and the advance in rents, but also an indemnity for the loss of custom in a business he may have established whilst residing in the house, such a claim would be rejected. This last would be a claim very similar to-the present one. It is not easy to imagine a case of speculative damages, if the expected profits of running or hiring out a boat, during the two months of delay in the delivery, would not fall within the designation. The fact that damages are speculative, does not however constitute the sole objection to their admissibility ; for it must be admitted that damages are frequently, allowed which are, to some extent, speculative. A fixed interest is given by law for the detention of money j yet it is not certain that the creditor, had he received his money when it was due, would have realized a profit equal to the interest. But the law has determined the value of money, at a rate which approaches its actual worth under ordinary circumstances, and without the intervention of extraordinary accidents. So the rule in relation to damages for the detention of any other property, is determined by converting the property into its money value, at the time it was to be delivered, and giving the legal interest upon that value; that being supposed to be as near an approximation to the actual loss as can be attained, without going into speculations of an indefinite and hazardous character.

The loss then which forms the criterion of damages, must not only be free from the objection of being speculative and remote, but it must be a loss within the probable contemplation of the parties at the time of the execution of the contract. How will this rule apply to the claim set up in this case ? ht is scarcely possible, that the damages claimed by the defendant could have been in the contemplation of either party, and certainly not of the plaintiff at the time of entering into the contract.. The vendor would reasonably expect that his liabilities in the event of a breach on his part, should be proportioned to the remuneration he would receive in case of a breach on the part of the vendee ; that if the vendee is to be indemnified for profits which he may have failed to realize by reason of the failure to deliver the boat in time, the vendor should have the benefit of the same rule, in case of the non-payment of the purchase money by the Vendee at the time agreed upon. A rule which is not reciprocal can scarcely be a just one. But the vendor is apprised that such a measure of damages for the failure to pay the purchase money, will not be meted to him; that he can recover the principal due and the legal interest only, although he may be able to prove that he could have realized one hundred per cent, instead of six per •cent, had he received his money according to contract. If, then, he can never expect to receive by way of reimbursement for losses, any more than the legal interest of the money withheld, it is unreasonable that he should be subjected to any more damages for a breach on his part, than what would be equivalent to the interest upon the value of the boat at the time of the breach, and the difference between that value and its value at the time of the delivery, if there has been a decline.

Prudent men would scarcely venture to make contracts like that upon which this suit is brought, if damages for a breach of them be extended to remote and speculative consequences. No foresight or skill can al* ways prevent delays in the execution of such contracts. It appeared, in this case, that the winter of 1846-’47, was unusually severe; and that this circumstance occasoned unexpected delays in procuring and working up lumber. It is also recollected that in the spring of 1847, there was an extraordinary demand for boats, upon the opening of navigation-. The contract between the plaintiff and defendant, was in all probability made without reference to the happening of either of these unexpected events.

\ But how difficult would be the task assigned to juries, if the court adopt the rule of damages desired by the defendant. It would be a mere calculation of chances. They would have to weigh probabilities in order to arrive at any equitable result. Because the defendant was offered five thousand dollars for the use of a boat, such as he had contracted for, during two months, it will not do to say that he is entitled to the five thousand dollars as the actual loss he has sustained by reason of the breach of contract by plaintiff. There were risks to be eneoun* tered in such a bargain, which undoubtedly would have to be considered, in estimating even the probable loss, or rather the failure to make probable gains, f 'The boat may have been burned, or snagged, or sunk 5 the persons with whom the contract was made may have proved insolvent ; or if the solvency of the contractors and the life of the boat were both insured, the insurance company may have proved insolvent. These are merely suggested as possibilities, the value of which must be estimated in undertaking to estimate the actual value of the bargain in cash. It will be seen at once, that the result of such calculations will depend upon the complexion of the jury, and there will be no fixed standard to guide them, no settled rule which they must follow, but every thing must be left to the caprice or fancy of the trial of fact.

The case of-i— (21 Wend. 347) is decisive of the point raised in this case. That (was an action for the price of a steamboat, and the court refused to let the defendant recoup damage's sustained by the loss of trips, and the profits resulting therefrom, by reason of defects in the boat or machinerj

The other judges concurring, the judgment is affirmed.  