#### PENDER LUMBER COMPANY v. WILMINGTON IRON WORKS.

(Filed June 10, 1902.)

DAMAGES — Measure of — Contracts—Breach—Negligence.

In an action against a machinery company for failure to deliver machinery according to contract, it is liable only for such damages as are caused by the breach as being incidental to the act of omission as a natural consequence and which may be reasonably presumed to have been in contemplation of the parties at the time the contract was made.

Furches, C. J., dissenting.

ActioN by tiie Pender Lumber Company against tbe Wilmington Iron Works, beard by Judge Frederick Moore and a jury, at December (Special) Term, 1901, of tbe Superior Court of Pendes County. Prom a judgment for tbe plaintiff, tbe defendant appealed.

Blevens, Beasley & Weeks and J. D. Kerr, for tbe plaintiff.

Meares & Ruarle and J. T. Bland, for tbe defendant.

Cook, J.

Plaintiffs were engaged in tbe manufacture of lumber, strawberry crates, baskets, and other vegetable packages ; bad made a few crates two years before, and a few tbo past year; previous to November, 1899, they bad made about 6,000 poor crates, but bought tbe baskets for them. In 1899 they bad contracted with responsible parties to manufacture and deliver to them in the months of February and March, 1900, 25,000 crates at tbe price of 25 cents per crate. To comply with their contracts it was necessary for them to- have repaired tbe steel rollers belonging to and a part of their veneering machine, without' which they could not comply. During the month of November, 1899, plaintiffs and defendant entered into a contract by the terms of which defendant obligated itself to repair the machinery and fit it for the use *585desired. Plaintiffs contend that defendant agreed to have it ready in three weeks, and that they informed defendant of tbeir contract to manufacture the 25,000 crates, and that defendant failed to do the work within the time agreed upon, and by its repeated and continuing promises to do the work, upon which they relied, they were induced to1 wait so long that they were prevented from having the work done elsewhere, and the time expired and they were thus prevented from complying with their contracts and had to* cancel them and thereby lost the profit on their contracts; that they were prepared in every other respect to make the crates and were prevented from making them for the want solely of the repaired steel rollers. With the rollers so repaired the expense of making the crates would have been twelve cents per crate. The defendant admitted the contract to repair, but denied that it agreed to' complete the work in three weeks and denied that it was informed by plaintiffs of their contracts to fill orders for 25,000 crates, but admitted that the work had never been completed. It contended that the contract was made on November 21st, and that the conversation alleged to have been had with plaintiffs (and which it denied having had) on the 19th, formed no part of the contract, and that any information given it at that time did not affect it with notice and was not within their contemplation in making the contract on the 21st, and that plaintiffs could not recover for any loss ot profits because the evidence showing the cost of making the crates was speculative, remote and incompetent; and that the loss of such profits•, if provable, would be a remote and speculative damage, and not such as, being incidental to the breach of contract, would be the natural consequence thereof and reasonably presumed to have been within the contemplation of the parties when the contract was made. The following six issues were submitted to the jury — the first five were answered “Yes,” and by the sixth assessed the damages found due to the plaintiff at $750, viz:

> *586“1. Did tbe defendant, on tbe 21st day of November, 1899, enter into a contract with tbe plaintiffs to alter and repair at tbe price of sixty dollars tbe rollers belonging to plaintiff’s veneering machine and to deliver tbe same, rebuilt and repaired, to tbe plaintiffs within three weeks from the day of tbe delivery of said rollers to it by tbe plaintiffs ?”

> “2. Were such rollers necessary to plaintiff’s veneering machine in preparing tbe timber of which to manufacture strawberry crates ?”

> “3. Was tbe defendant at tbe time of making said contraer, informed that tbe plaintiffs bad no other machine with which they could prepare veneering for making strawberry crates ?

> “4. Was the defendant at the time of making said contract informed that tbe plaintiffs had received orders for 25,000 crates which they bad agreed to manufacture and to deliver in the months of February and March, 1900 ?

> “5. Did tbe defendant wrongfully fail to perform its contract with the plaintiffs ?

> “6. What damage, if any, are the plaintiffs entitled to recover ?”

Judgment was rendered in favor of plaintiffs, and defendant appealed.

The record shows that there was evidence sufficient to sustain the findings. So there axe but two substantial questions raised by tbe assignments of error — one relates to the terms of the contract; the other to tbe damages. What the terms of the contract were was a question of fact to be found by the jury upon the evidence submitted to them. Whether it was made on the 19'th or on the 21st, or pártly at one time, and concluded at another, is not material. After bearing the evidence, affirmed by the plaintiffs’ testimony, and contradicted by that of defendant, the jury found the contract to be as stated in tbe first, second, third and fourth issues, and there appearing no error in the admission of evidence to prove *587tbe same, it must stand. This brings ns to tbe consideration of tbe exceptions relating to tbe damages. While there are numerous exceptions presented by tbe instructions asked and refused, and to tbe charge given, they are all raised and covered by tbe first exception: “Plaintiff offered to prove by witness that plaintiffs were prepared to make crates (with the exception of having tbe rollers in controversy); the quantity and price at which they bad taken orders; tbe estimated cosos of making them and the estimated profits lost by them,” which was objected to and admitted over objection, and defendant excepted.

Damages are given as a compensation, recompense or satisfaction to tbe plaintiff for an injury actually received by biin from tbe defendant, and should be precisely commensurate with tbe injury, neither more nor less. 2 Greenleaf Ev., Sec. 253. Tbe amount should be what be would have received if the defendant bad complied with bis contract. Alden v. Keighly, 15 M. and W., 117.

Tbe general rule respecting a breach of contract is that recoverable damages are such as are tbe result of tbe breach complained of and must be tbe natural and proximate consequence of such breach. Greenleaf Ev., Secs. 254, 256. But profits which are dependent upon tbe success of an undeveloped business adventure, fluctuations of values and contingencies, etc., are too remote and' uncertain and can not be recovered. But if damages for tbe loss of profits (which is an extraordinary special damage) are claimed, they must be incidental to tbe breach in such sense that they were contemplated by tbe parties at tbe time tbe contract was made and tbe data of estimating such profits must be so definite and certain that they can be ascertained reasonably by calculation and tbe party at fault must have bad notice, either of the nature of tbe contract itself, or by explanation of tbe circumstances at tbe time tbe contract was made that such damages *588would ensue from tbe non-performance; and profits lost by such a breach and under such contract and conditions are recoverable. Railroad v. Ragsdale, 46 Miss., 458; Smead v. Foard, 1 Ellis & Ellis, 602; Horne v. Railway Co., 7 C. C. P., 583; Hadley v. Baxendale, 9 Exc., 341; Mace v. Ramsey, 74 N. C., 11.

Tbe issues as found having established the fact that tbs defendant was informed by plaintiffs that they had received •orders for 25,000 crates, which they had agreed to manufacture and deliver, and that they had no other machine with which they could prepare veneering for making the crates, it naturally follows, according to the due course of business transactions that it was in the contemplation of the parties that plaintiffs' would lose the profits upon their contracts if they could not get their machine repaired and fitted for the work in time to make the crates. Now, then, if the data of estimating the profits be so definite and certain that they can be ascertained reasonably by calculation, then they can be recovered. The market value of the crates is shown by the evidence to have been 28 cents a piece, but plaintiff had agreed with responsible parties to sell them at 25 cents. By deducting the actual cost of making them from the agreed price we have the exact profit. But defendant insists that the evidence showing the cost of making was speculative, remote and incompetent. The testimony of plaintiff A. Rowe shows that they had all the material, labor and other utilities necessary for making the crates, and that they cost plaintiffs 12 cents each. The timber in a crate cost three cents; the hinges, clasps, corner irons, nails and all hardware cost 3-J- cents; the baskets cost 3 cents, setting up the body of the crate cost If cents, division racks cost cent, making a total of Ilf cents, leaving a margin of f cent to malee the total cost at 12 cents ,per orate. The accuracy of this testimony and calculation depended upon the credibility to be given it by the jury, to be *589ascertained from bis capacity, knowledge, experience, etc. There was evidence introduced by defendant tending to show the cost to be 24 cents, the items being binges and hasps, 14 cents; corner irons, 1^ cents; nails, 3 cents; lumber, 5 cents; uprights, 1 cent; racks, 3 cents; labor, 2 cents; baskets, 5 cents, making 22 cents, and estimating unknown costs, su.ch as wear and tear upon machinery, oil, breaking down and other contingencies, 2 cents, making the total cost 24 cents. With this evidence before the jury we see no reason why they could not determine with accuracy and certainty the net profits involved in the contracts or orders. After first determining by the weight of evidence and credibility of the testimony, the actual cost of the several items, the result would follow from a simple mathematical calculation. And here it seems that the jury relied upon the testimony of defendant’s witness’ (Pierce) and accepted his calculation or estimate as being true, since they assessed the damages at $750 (25c. — 22=3c. per crate; 25,000 crates X 3c. — $750 ; having discarded his estimate of 2c. for unknown cost).

In the case of Jones v. Call, 96 N. C., 337, 60 Am. Rep., 28, the plaintiff was engaged in manufacturing and selling patent tobacco machines, and had madd contracts to sell and deliver a certain number of machines at a certain price. Before complying with his contract his business was broken up by the defendant and thus prevented from doing so. There-our Court held that plaintiff could recover the profits on the contracts which he had actually made and been prevented from complying with by the wrongful act of defendant, but not for the possible profits which his business might have yielded if he had not been interfered with. 'The facts in this-case are similar to those in the case at bar, but differed in that this plaintiff’s business was. discontinued absolutely. But then the plaintiffs, though being thus disappointed, and being-prevented from making the crates for which they had orders, and injured by defendant’s breach, should not have remained' *590idle; they should have made reasonable exertions to help themselves and thereby reduce the loss and diminish the responsibility of the defendants. Railroad Co. v. Ragsdale, supra. It may be that plaintiffs were profitably employed all the while and really performed other work which was more remunerative than would have been the profits on these crates, which they could not have done had the rollers been duly repaired and delivered to them; or, for the want of the repaired rollers, they may have been unemployed wholly or in part, with their laborers on their hands at an expense and with their machinery idle and deteriorating in value. But as to this the pleadings are silent, and we must rule upon the questions as presented to us by the record.

' There is no error, so the judgment must be

Affirmed;

Furches, C. J., dissents.