#### JOHN McC. BOYLE vs. CHARLES REEDER.

in an action of covenant, for not furnishing machinery for a steam rnili at the stipulated time, the plaintiff cannot recover in damages the timated value of the profits he might have made, if the covenant had been complied with. These are too vague and uncertain to form any criterion of damages.

The damages should be given upon the principle of a reasonable rent and insurance for the buildings, and the actual loss by decay, &c. of the materials, during the period he Was prevented from commencing his operations by reason of the default of the defendant in' not complying with his covenant.

He can only recover damages really sustained by him, and not snch as it seems possible he may have sustained.

This was an action of Covenant, fried at the Spring Term, 1841, of Bertie Superior Court, before his Honor Judge Nash/ A copy of the covenant declared on, so far as it is material to this case, is 'annexed. The plaintiff alleged the following breaches: 1st. That the engine was not finished and ready for shipment at the port of Baltimore on the 1st of March,’ 1837; 2dly. That the engine was not put up by the 1st of May, 1837; 3dly. That the engine was not made of good materials, nor in a workmanlike manner; 4thly. That it had but one shaft, and a single instead of a double crank; 5thly. That it had notpower sufficient to drive twenty-four saws. — ■ It was admitted that the engine was not ready for shipment at the port of Baltimore on the 1st of March, and that it was not put up by the 1st of May. It was further admitted that the plaintiff had not paid the whole of the purchase money, but that f were still due and unpaid, for which the present defendant had brought an action in Washington Superior Court on the counter part of this agreement executed by the present plaintiff, and bearing even date with it, and that the action was now pending in said court — that plaintiff was not in Baltimore on the 1st of March to receive the en*608gine, nor did he pay the $1000 on the 1st of February, but this payment was made on the day of , in the year 1837, and the further sum of g> on the . ¿ay 0f October, 1837. The plaintiff’s witnesses proved that the building for the reception of the engine was not erected until after the 1st of May, 1837. The defendant commenced putting up the engine late in December, 1837, and completed it about the 8th of January, 1838, when the plaintiff received it. And it was proved that very soon thereafter, the fly-wheel broke, as did the gate-head and the rock shaft; and that the two former were honeycombed, and the hollow pla'ces in the gate-head were filled in with lead. On the part of the defendant it was contended and evidence introduced to prove, that the engine was manufactured out of good materials and the work executed in a workmanlike manner — that the breaking of the fly-wheel was owing to the'insufficiency of the foundation of the mill-machinery, which, it was admitted, it was the duty of the plaintiff to build, and the nature of the ground not affording a firm foundation, being-over a quicksand — that the breaking of the gate-head and of the rock-shaft was occasioned by the want of skill in the engineer, employed by the plaintiff to manage the engine.— There was contradictory evidence as to the crank. The plaintiff then gave evidence to shew that he had collected timber to the val we of $2000 ready to saw by the 1st of May, 1837, and that by the 8th of January, 1838, when the mill was set in motion, he had.collected between $7000 and $9000 worth — and claimed that he was entitled to recover from the defendant the injury, which the timber had sustained by lying in the water so long. Some of the witnesses stated that the timber, by lying in the water 12 months would be injured 20 per cent. — others, that it would not be injured at all, but would be benefitted thereby. No evidence, however, was laid before the jury to shew that the timber of the plaintiff was in the least injured. The plaintiff further claimed to recover of the defendant in damages the profit, which he would have made by his mill between the 1st of May, 1837, and the day of May, 1838, when the wdrks were repaired and she finally put in motion. This latter evidence the *609court rejected. He further claimed in damages the hire of his hands, while the works were repairing. To rebut-this claim, the defendant shewed that during those times, his hands were employed in getting timber, which was as profitable to him as working the mill. It was further admitted that the whole of the engine delivered by the defendant to the plaintiff, with the exception of the fly-wheel and rock-shaft, were still in his possession and used by him in working his saw-mill. The plaintiff further proved that the engine had not power to carry twenty four saws, and that to make it do so it was necessary to add another boiler, which he did. There wits contradictory evidence as to the power of the engine. When the plaintiff closed his testimony, the defendant’s counsel moved the court that he might be called, upon the ground, 1st, that he had not shewn that he had paid the whole of the purchase money before bringing his action; 2dly, because he had not shewn that he was in Balti-' more on the 1st of March, 1837, ready to receive the engine and pay the money then due. This motion the court refused; and in its charge instructed the jury that this contract contained covenants of different kinds — the first on thepartofthe defendant was an independant one, for a breach of which the plaintiff was entitled to recover damages, unless they were Satisfied by the evidence, that the time had not been enlar; ged by the parties, in which case performance by the defendant within the enlarged time would be a full answer to the claim of damages by the plaintiff for that breach — that the second covenant on the part of the defendant was dependent on a condition, to be previously performed by the plaintiff, to wit, the erection of the building to receive the engine by the first of May, which the plaintiff had shewn was not done, and he was not therefore entitled to any damages for that breach, if they were satisfied the fact was so — that, if, from the evidence, they were satisfied that the engine was made of good materials and in a workmanlike manner, and that the breaking of the parts mentioned was occasioned by no insufficiency of the work or materials, but by the insufficiency of the foundation of the mill-machinery or the unskillfulness of the engineer employed by the plaintiff, in that case the plain*610tiff would not be entitled to any damage on the third alleged breach; but that he would be entitled to such damages, if they were of the opinion that the materials of the engine were not good or the work not executed in a workmanlike manner — that, according to the contract, the defendant had covenanted that the engine should be of sufficient power to carry twenty four saws, and, that although it had the number of boilers specified in the contract and they were of the dimensions there called for, yet the contract on the part of the defendant was broken in this particular, if they were not sufficient to carry the twenty four saws, and if it was necessary to add a fifth boiler to give the engine that power, the plaintiff had a right to do so, as it was proved he had done in this .case, and recover of the defendant what it cost him. The court further instructed the jury that, as the plaintiffhad received and kept the engine, and was now using it, with the exception of the fly-rwheel and rock-shaft, the measure of damages, to which he was entitled for the insufficiency of the engine, as to the materials and workmanship and power, was what it would or had cost the plaintiff to make it what the defendant contracted it should be — that they would decide whether the crank was a single or double one, and so of the shaft — that as to the timber, if they were satisfied that it had been actually injured, by remaining in the water, they would give the plaintiff damages for such injury, confining their enquiry to the timber gotten up to the 1st of May, 1837, and that the plaintiff wap entitled to damages for his hands being out of employment at the mill, during the time the repairs were making, if they were satisfied they had suffered damages.

Qopij of the Agreement referred to, so far as it is piateriaL

Memorandum of an agreement entered into this 20th day of December, 1836, between Charles Reeder of the City of Baltimore, of the one part, and John McC. Boyle, of the town of Plymouth, North Carolina, of the other part, witnesseth as follows: The said Charles Reeder for the consideration here-? *611inafter mentioned hath agreed to and with the said John McC. Boyle, his executors &c. to make and furnish for him a steam engine and boilers on the high pressure principle. The cylinder to be &c. (describing it) — to haye four iron boilers, 26 inches in diameter and 24 feet long, with’furnace, bars &c. The cylinder to lie horizontal and connected to a double crank with a shaft on each side, with fly-wheel &c.— in all to be done and finished in a workmanlike manner and of sufficient strength and dimensions to drive four gangs of saws (two on each side,) each gang to hold six saws, making in all twenty four saws, to saw pine lumber; tobe made and in readiness for shipment from the port of Baltimore on or about the first day of March, 1837; then to be put ready for operation in a building provided for that purpose in Plymouth, North Carolina, by said John McC. Boyle on or before the 1st day of May next (1837.) He, the said John McC. Boyle, his ex’rs,<fcc. doth covenant and agree to pay the said Charles Reeder for the aforesaid engine &c. thirty seven hundred dollars in current money in the City of Baltimore as follows, viz. $ 1000 on the 1st day of Febuary, 1837, $800 soon as the engine is ready to ship, $1000 as soon as the work is put up ready for operation, and the balance in 90 days after the engine is first put into proper operation. The said John McC. Boyle for himself <fcc. futhermore covenants and agrees to furnish at his expense boarding and lodging' for the workmen, while putting up the said engine and boilers, and also all necessary brickwork for setting up the same and yellow pine sills for placing the engine on, as well as freight of the said engine and boilers &c. from the City Baltimore to the town of Plymouth, or the place where said engine and boilers are to be erected and put into operation; and also a sufficient number of laborers to assist in ting the engine, boilers &c. in their proper situation. (Then followed a co venant for furnishing other materials not embraced in this suit.)

Counterparts of this covenant were signed and sealed by the- parties,

*612The jury found a verdict for the plaintiff under the charge the court, for one thousand dollars. The plaintiff moved for a new trial, on the ground of misdirection of the judge ag t0 qie question of damages, and his rejection of proper evidenee; which motion was refused; and, judgment being rendered according to the verdict, the plaintiff appealed to the Supreme Court.

A. Moore, for plaintiff!;

appellant, contended that the plaintiff had a right to estimate his damages, in consequence of the delay occasioned by the breach of covenant on the part of the defendant, by the profits the mill would have made, from the time that covenant ought to have been performed to the time when- it was actually performed; and cited on this point 3 Peter’s Cond. Rep. 621: Richardson v. Meilish, 9th Com. Law Rep. 391; Ward v. Smith, 11th Price 19. He also insisted that as to the damages to the timber, the judge improperly restricted the jury to damages before the 1st of M!ay — that the erection of the house and the furnishing of the machine were independent covenants, and the defendant should have shewn his machine was ready by the 1st of May. 7 Petersdorf 105.

Kinney, for the defendant,

contended that the money to be paid the 1st of February was a condition precedent. — also that the shipping of the engine on the 1st of March, and the payment of $800 as soon as the engine was ready to be shipped, were mutual and dependent covenants, and each should have been ready to perform before an action accrued. PJatt on Cov. 70 (3 Law Lib.) Portage v. Cole, 1 Saunders’ Rep. 320; Terry v. Duntz, H. Black, ("cited in Platt on Covts.); Pennington v. Monell, 11 Johns. Rep. 203. He also insisted, that, in giving damages, the expected profits should not be a rale, as the profits were- merely contingent and uncertain, and could not be estimated.

Ruffin, C. J.

The court does not perceive any cause of complaint on the part of the appellant with the instructions to the jury. His Honor held, that the plaintiff was en*613titled to recover damages on the covenant of the defendant to furnish an engine, ready for shipment on the first day of March, 1837, unless the plaintiff had himself enlarged the timé; and also damages for the inefficiency of the work, whether arising from the badness of the materials or workmanship, or because it did not correspond in form and parts with the contract. Those instructions embraced every breach alleged by the plaintiff, except that which respected the failure of the defendant to put up the engine on or before the 1st of May, 1837. Upon this last it is clear, the plaintiff could not recover upon his declaration and evidence. For the contract requires the plaintiff to have the necessary building erected, in which the engine was to be placed. The erection of the building must necessarily precede the putting the engine in it; and it was therefore incumbent on the plaintiff to show that the house was ready. That he did not do; but, on the contrary, he admits it was not ready by the first of May; and, indeed, it does not appear to have been built one day before the defendant had the engine at Plymouth, to be put therein. The only remaining question is as to the proper measure of damages. We think that as far as the instructions were specific on that subject, they are entirely correct; that in no respect were improper instructions given; and that, if the plaintiff was not satisfied that all the directions had been given to the jury which he wished, and in the form he wished, he ought to have asked others more precise. For any of the work, which either was not supplied according to contract or failed, the jury were told to give the>price of good work of the same description, or what it cost the plaintiff to replace the defective parts. The propriety of that standard of damages for that part of the case cannot, we think, be questioned: indeed, it has not been, in argument. Then, as to the other parts of the case, we find a general instruction that the jury might give the damages sustained by the plaintiff by the failure of the defendant to make or furnish the engine by the day stipulated, viz. the first of March. This seems to us to have been going fully far enough; for, as the plaintiff gave no evidence that a house was prepared for its reception before its arrival in December *614tfre damages for the delay ought strictly, perhaps, to haves been confined to¡ the period, during which the works stood st^’ wb^e undergoing the repairs rendered necessary by the breaking of some parts of the engine. For that delay the plaintiff was entitled to a fair compensation; since, as we think, the price of supplying the defective parts of the machinery is not his only loss, but to that is tobe added the fur. ther loss from the Capital invested lying dead, and the decay of the building and materials: in other words, a reasonable rent and insurance during the period of suspension. Damages upon that principle must be supposed to have been meant by his Honor, when speaking of those to be given for the first breach stated in the declaration; and to have been given by the jury for at least the period mentioned, and,- probably, for the whole time from March, 1837, until May, 1838, when the mills went into’ final operation, after being repaired. At all events, the omission of the court to draw the attention of the jury to the particular period of the suspension of the works in 1838; dotes not furnish a ground for a new trial, inasmuch as the language of the charge would authorise the jury to take into consideration the whole time from March, 1837, and the plaintiff did not move for instructions more special on this head. On the contrary, the plaintiff repudiated that mode of measuring the damages for the delay, namely, by giving a fair rent for the time or compensation for Capital invested and lying idle; and he Claimed damages under the' particular head of injury1 to the stock of timber collected by th e plaintiff; of loss from’the want of employment of his hands during the repairs; and of the profits which he might have made, if the mills had gone into operation in May, 1837, instead of May, 1838.- Very certainly, damages are not to be measured by any such vague and indeterminate notion of anticipated and fancied profits of a business or adventure, which, like this, depends so much on skill, experience, good management, and good luck for success. That would make the defendant ail insurer against losses, from any cause in a business of hazard, and even against the plaintiff’s want of management. The gains of the business the plaintiff might have done, or, prob' *615ably, would have done, cannot be correctly estimated; and, therefore, evidence offered with a view of estimating them, as the standard, of damages, was properly excluded, as being irrelevant and as tending to mislead the jury. Then as to the two other grounds for damages, the plaintiff got them'for his hands being idle, if they were idle; and, therefore, there can be no exception on that score. Nor, as we conceive, is there greater ground for complaint with respect to injury to the timber. We cannot say that the plaintiff would have been entitled to damages for that loss, had the fact been established. It is not the natural consequence of the defendant’s want of punctuality, in not having the engine ready according to contract. It was, rather, the plaintiff’s folly, to lay in so large a stock of perishable material, before he was prepared to manufacture it. If it be liable, as he says, to injury by lying in the water, he must be presumed to have been aware of it, and ought not to have collected so much; or he might have taken it out of the water, if likely to injure there more than on land, and he gives no reason for not doing so. But futhermore, a decisive answer to this objection is that it does not appear that the timber was injured. Witnesses differed about the effect on timber of its lying in the water: some thinking it might be injurious; and others beneficial. But the plaintiff offered no evidence, that there actually was any injury to his. Consequently it would have been improper to give him damages on that account; for he can recover only the damages really sustained by him, and not such as it seems possible he may have sustained. Upon the whole, therefore, the judgment must be affirmed.

Pbr Ctjriam, Judgment affirmed.