John Hutchinson Mfg. Co. v. Pinch

• Decision Date: 08 April 1892
• Citation: John Hutchinson Mfg. Co. v. Pinch, 51 N.W. 930, 91 Mich. 156 (Mich. 1892)
• Parties: JOHN HUTCHINSON MANUF'G CO. v. PINCH.
• Court: Michigan Supreme Court

51 N.W. 930

91 Mich. 156

JOHN HUTCHINSON MANUF'G CO. v. PINCH.

Supreme Court of Michigan

April 8, 1892

Error to circuit court, Eaton county; FRANK A. HOOKER, Judge.

Action by the John Hutchinson Manufacturing Company against Benjamin W. Pinch to recover for repairs done on defendant's flouring-mill.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

Shriner & Fox, for appellant.

Daniel A. Ferguson, (Thomas A. Wilson, of counsel,) for appellee.

MORSE, C.J.

The plaintiff sued defendant for machinery and repairs furnished for the latter's flouring-mill.The defendant claimed that under the agreement the plaintiff promised to put in the machinery and complete the repairs in a good and workman-like manner within 10 days after the work was commenced, which work should begin "in a few days or short time" after the date of the agreement.That plaintiff did not commence the work as soon as he agreed, did not do it in a workman-like manner, and did not complete it within four weeks after the work was begun.That by reason of improper material, and the unskillful manner in which the work was done, much of the flour made by such mill was unfit for "custom and merchant flour."That said mill was kept closed 50 days, and that the mill, as completed by plaintiff, is in an improper condition for running and properly performing the work of a first-class full roller process custom and merchant flouring-mill, as plaintiff agreed it should, and that it takes more power to operate it.On the trial the defendant was asked: "Question.Mr Pinch, how much were you damaged by reason of the mill lying idle for the excess of ten days, until the time it was finished?In other words, it laid still how many more than ten days?Mr. Ferguson: I object.The Court: That brings up the question.The witness, I think, can't state how many dollars and cents he has been damaged.He can state how he was damaged, and show the circumstances that will enable the jury to judge.There is another question involved in it, and perhaps it had better be discussed together.I suppose you are getting at the profits of the mill?Mr. Shriner: Yes sir."Mr. Corbin, for plaintiff, contended that the profits were too indefinite, and the question was excluded.Counsel for defendant then offered as follows "Mr. Shriner: Now, if the court please, we offer to show that, after Mr. Crandall and his men worked on the mill ten days, Mr. Pinch notified Mr. Hutchinson that the time had expired in which he was to have the mill completed; that the mill was overstocked with grain, and he was losing by reason of the delay every day; and that these men went on with that mill until the 3d of March; and that, by reason of that failure to fulfill their contract, Mr.

Pinch suffered large damages, to the amount of five hundred dollars.By the Court: This offer may be considered as preceding the former ruling.Question.How many grists were in your mill at the time they had worked ten days upon their contract, on the repairing of the mill?Q.What was the difference, Mr. Pinch, of the value of flour per barrel after the mill was finally completed in perfect order, than what it was before they commenced fixing the mill?"Both these questions were objected to and ruled out.He was also asked: "What, in your opinion, was the use of the mill worth for those eleven days?"The court said this was an indirect way of asking witness how much he could have made out of the mill, and excluded the question.Other questions were asked in different ways, but all to the same import, and were not allowed to be answered.It was also attempted to show the value of defendant's time lost during the time over 10 days in which the mill could not be run, but the circuit judge was of the opinion that he could not recover for such lost time.Counsel for defendant then made the following offer: "I offer to show by Pinch that his business was injured a large amount by reason of the manner in which the contract was performed, and that he lost the use of the mill, and the profits of the mill, for a long time, to-wit, thirty days, by reason of the manner in which the contract was performed.Counsel for Defendant: I desire to show what the profits were, and to show in every way that he was injured.I desire to show by him how he was injured.The Court: How do you propose to show that he was injured?Counsel for Defendant: By the loss of his time, by the injury of the flour, by the amount he had to pay out in the place of it, by the loss of time, by the loss of customers, and by the loss of the reputation of the mill, because of its having been pronounced finished by those parties, when it was improperly finished.Counsel for Plaintiffs: It is objected to as immaterial and irrelevant.Not a proper way to prove the measure of damages.(Which objection was by the court then and there sustained.The court instructed the jury that no damages could be awarded to the defendant for the profits lost by reason of the mill being idle, even if they found that the agreement was that the mill should be put in good running order in ten days.)"

This was a custom, as well as a manufacturing, flouring-mill.The prospective profits of such a mill would certainly be too speculative to be shown as damages.Howard v. Manuf'g Co.,139 U.S. 199, 11 S.Ct. 500;Pennypacker v. Jones,106 Pa. St. 237;Abbott v. Gatch,13 Md. 314;Rogers v. Bemus,69 Pa. St. 432;Winne v. Kelley,34 Iowa, 339;Allis v. McLean,48 Mich. 428, 12 N.W. 640;McKinnon v. McEwan,48 Mich. 106, 11 N.W. 828;Malthy v. Plummer,71 Mich. 579, 40 N.W. 3;Petrie v. Lane,58 Mich. 527, 25 N.W. 504.The defendant relies especially upon Leonard v. Beaudry,68 Mich. 312, 36 N.W. 88, and80 Mich. 163, 45 N.W. 66, in support of his contention that he was entitled to show the profits that he might have made in the mill if it had been finished within 10 days.But in Leonard v. Beaudry,supra, and in Atkinson v. Morse, 63 Mich. 276, 29 N.W. 711, there was a breach of contract, where the difference between the cost of doing the work to be performed and the contract price would be the measure of damages.The profits in such a casewe held could be ascertained with reasonable certainty.This case seems to fall within the other line of cases where the uncertain and speculative profits of a mill from day to day are endeavored to be measured; where there is no certain amount of work contracted to be done at a certain or fixed price for the work, but where the mill-owner must depend upon how much custom he may happen to have, and many other contingencies, as pointed out in the cases above cited.But upon examination of the authorities, and upon principle, I am satisfied that the defendant was entitled to show in reduction of plaintiff's claim the value of the use of the mill while it was compelled to lie idle by the failure of plaintiffs to complete the contract within the time specified.A denial of this right would be rank injustice, and leave the defendant remediless for his loss; and at the same time compel him to pay the full value of the machinery and repairs to the plaintiff, the same as if the work had been done within the time agreed upon."As a general rule the expected profits of a business cannot be proved, and therefore cannot be recovered.They might have been made and they might not.Hence, in such cases, the measure of damages is not the expected profits, but the value of the use of the property or business, and to ascertain this, evidence of actual past profits must be admissible."Sedg.Dam. (8th Ed.) par. 174."Rent is given, not as a specific damage, but as a fair average measure of compensation."Sedg.Dam. (8th Ed.) par. 186;Sinker v. Kidder,123 Ind. 528, 24 N.E. 341;Crawford v. Parsons,63 N.H. 438;Woodin v. Wentworth,57 Mich. 278, 23 N.W. 813;Bostwick v. Losey,67 Mich. 554, 35 N.W. 246;Griffin v. Colver,16 N.Y. 489-496.In the present case, the failure to put in the machinery and make the repairs within the ten days naturally resulted in the stopping of the mill while the machinery was being put in.The defendant expected to shut down his mill for 10 days, but under his statement of the agreement the work was to be finished within that time.If so, he was compelled to keep his mill idle for some time beyond the 10 days, because of the fault of the plaintiff in not fulfilling its contract as to the time of performance.His damages are the value of the use of the mill while it was so kept idle by the plaintiff's fault.This is not an allowance of the profits which, in this particular case, might have been made, but of the average sum, represented by rent which the property was worth.1 Sedg. Dam. (8th Ed.) par. 190;2 Suth. Dam. 490.

When a contractor undertakes to perform a contract to put a mill or other machinery in operation he ought to be holden to indemnify the other party against the loss of the use of the mill or machinery after the expiration of the time for the performance of the contract.SeeDavis v. Tallcot,14 Barb. 611-628;Brown v. Foster,51 Pa. St. 165;Abbott v. Gatch,13 Md. 314;Green v. Mann,11 Ill. 613;Rogers v. Bemus,69 Pa. St. 432;Willey v. Fredericks,10 Gray, 357;Benton v. Fay,64 Ill. 417;Griffin v. Colver,16 N.Y. 489.In Abbott v. Gatch a new mill was erected, but not in the time agreed upon.The uncertainties of the milling business were considered too great to allow prospective profits as damages, but the measure of damages was held to be the fair rental value of the mill.In Green v. Mann the lessor of the mill agreed to put in two additional run of stone, but failed to...