Boyle v. Reeder

• Citation: 23 N.C. 607,1 Ired. 607
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1841
• Parties: JOHN McC. BOYLE v. CHARLES REEDER.

1 Ired. 607

23 N.C. 607

JOHN McC. BOYLE

v.CHARLES REEDER.

Supreme Court of North Carolina.

June Term, 1841.

In an action of covenant, for not furnishing machinery for a steam mill at the stipulated time, the plaintiff cannot recover in damages the estimated 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 such as it seems possible he may have sustained.

This was an action of covenant, tried 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 not power 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 $ 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 engine, nor did he pay the $1000 on the 1st of February, but that this payment was made on the day of , in the year 1837, and the further sum of $ on the day of 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 places 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 value 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 works were repaired and she finally put in motion. This latter evidence the court 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 was 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 Baltimore 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 the part of the 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 enlarged 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 plaintiff 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 plaintiff had received and...