The failure to note an objection to a deposition, based upon the
form of the commission or the manner of executing it, when the
deposition is taken or to present the objection by a motion to
suppress or by some other notice before the trial begins, will be
held to be a waiver of it.
In an action to recover the contract price for putting up mill
machinery, anticipated profits of the defendant resulting from
grinding wheat into flour and selling the same, had the mill been
completed at the date specified in the contract, cannot be
recovered by way of damages for delay in putting it up.
As a general rule, subject to well established qualifications,
anticipated profits prevented by the breach of a contract are not
recoverable as damages for such breach, but where such profits,
which would have been realized had the contract been performed and
which have been prevented by its breach, are not open to the
objection of uncertainty or remoteness, or where, from the express
or implied terms of the contract itself or the special
circumstances under which it was made, it may be reasonably
presumed that they were within the intent and ritual understanding
of both parties at the time it was entered into, they are so
recoverable.
This was an action at law by the Stillwell and Bierce
Manufacturing Company, an Ohio corporation having its principal
place of business at Dayton in that state against W. C. Howard, S.
T. Stratton, and J. Rauch, citizens of Texas, to recover a balance
due on a contract in writing entered into between the parties
hereto March 23, 1885, for the reconstruction by the company of a
flour mill owned by the defendants in Dallas, Texas.
The contract provided, among other things, that the party of the
first part (the company) should reconstruct the mill of the
defendants upon the roller system, by placing therein certain
specified machinery, and
"all other machinery and material necessary to erect and
complete a flour mill of two
Page 139 U. S. 200
hundred barrels' capacity in twenty-four hours, according to
plans to be made by the party of the first part, and to be placed
by them in the mill house to be built by the party of the second
part in Dallas, Texas, party of the second part to furnish proper
motive power to drive said machinery, and to extend engine shaft
into basement of mill house to a point to be hereafter designated
by party of first part, and not to exceed eight feet inside of
basement wall. Party of the second part are to build all stone or
brick foundations for machinery, and frame all openings in floor
for packers, upright shafts, etc. The party of the first part
agrees to have the mill completed and ready to run on or before
July 15, 1885, provided party of the second part shall have mill
house ready by June 1, 1885. The said party of the first part
guarantees that said mill, when completed, shall have a capacity
for from two hundred or more barrels of flour in twenty-four hours,
and that the result shall be equal to those of any of the roller or
other modern systems of milling now in use in this country using
the same grades of wheat. The said party of the first part shall
perform all the millwright work, which shall be done in a good and
workmanlike manner, and shall furnish all materials therefor except
such as are now in said mill and can be utilized, which may be used
free of charge by said party of the first part, and the said party
of the second part hereby covenants and agrees to pay the said
party of the first part for said machinery, materials, and labor
the sum of seventeen thousand eight hundred and fifty dollars, as
follows: $7,000 cash on shipment of said machines, and $7,000 in
nine months from date of shipment of said machinery $3,850 in
twelve months from date of shipment of said machinery. Party of the
second part to keep the mill insured for the benefit of party of
the first part as their interest may appear in case of fire, for
which said party of the second part agrees to execute and deliver
promissory notes to said party of the first part, dated time of
shipment of machinery, bearing eight percent interest, and secured
as follows: to be satisfactory to the parties of the first part. No
claims for damages shall be made by said party of the second part
on account of delays incident to starting up. The
Page 139 U. S. 201
said party of the second part agrees to be responsible for any
damage or loss by fire or otherwise after the machinery reaches
Dallas. The title of said machinery shall remain in and not pass
from said party of the first part until the same is paid for and
until all the notes, whether secured or unsecured, given therefor
are fully paid, and in default of payment as above agreed, said
party of the first part or its agent may take possession of and
remove said machines without legal process."
The amended petition, filed January 31, 1887, alleged that the
plaintiff had performed its part of the contract; that the
defendants had paid the first payment of $7,000 at the time it fell
due, but that they had not paid the two deferred payments, which
were then past due, and that they had refused to execute their
notes for the deferred payments according to the contract. The
plaintiffs prayed judgment for the sum of $10,850, the amount of
the deferred payments, with eight percent interest from May 26,
1885, the date of the shipment of the machinery.
The defendants filed a general denial and also a plea in
reconvention under the laws of Texas. This plea denied that the
plaintiff had performed its part of the contract and sought a
recovery from it of the amount of losses caused by such failure of
performance. The plea further alleged that the company did not have
the mill completed within the time prescribed by the contract; that
it did not furnish the machinery nor complete the mill within a
reasonable time, or in a workmanlike manner, as required by the
contract, or furnish all the machinery contracted for, and that not
only did the company delay the work beyond the contract time, but,
in addition to such breach of the contract, it left the mill in so
incomplete a condition that the defendants at considerable expense
to themselves, had to rectify the errors made by the company and
complete the work as it had been contracted to be performed. An
amended plea continued as follows:
"That there was a ready cash market in Dallas all this time for
flour of the grade said mill would have made if constructed as
plaintiff had agreed it should be, and defendants could have sold
all of said flour it could have made during said unnecessary
Page 139 U. S. 202
delays caused by plaintiff,
viz., 200 barrels per day,
and that plaintiff, by reason of the facts above stated, delayed
defendants in the manufacture of said flour for sixty days, by
which defendants lost a profit of $1 per barrel on 12,000 barrels
of flour, or the sum of $12,000."
The defendants accordingly demanded judgment against the
plaintiff for the sum of $20,000.
The case came on for trial before Judge McCormick and a jury on
the 8th of February, 1887. On that day, the defendants moved to
suppress the deposition of William Odell, the foreman of the
plaintiff company in the reconstruction of the mill, taken at
Rochester, New York, for the purpose of showing that the delay of
the plaintiff in completing the mill was caused by the defendants'
not having the building completed and ready for the machinery when
the same was shipped. The record showed that the deposition was
received and filed by the clerk of the court on the 22d of January,
1887, and was opened at the request of the attorney for plaintiff
on the 5th of February of that year. This motion was as
follows:
"(1) Because said deposition is not certified to by the officer
who took the same, as required by law regulating the taking of
depositions
de bene esse."
"(2) Because no reasonable notice of the time and place of
taking said deposition was given the defendants, as required by law
regulating the taking of depositions
de bene esse."
"(3) Because said deposition was not taken under authority of
any
dedimus potestatem granted by any court of the United
States according to common usage."
The court overruled the motion to suppress the deposition, and
it was admitted and read in evidence, to which ruling the
defendants excepted.
Afterwards, on the same day, the plaintiff moved to strike out
so much of the defendants' plea in reconvention as seeks to recover
the sum of $1 per barrel on 12,000 barrels of flour -- that part
quoted above -- which motion was sustained by the court, and the
defendants excepted.
The plaintiff then introduced in evidence the contract sued on,
and gave evidence tending to prove that the same had been complied
with on its part. The defendants introduced
Page 139 U. S. 203
evidence tending to prove that the mill contracted to be built
by the plaintiff for the defendants was not completed within a
reasonable time, and was defectively constructed, and that the
defendants were delayed in the manufacture of flour by reason of
such delay and such defective construction. The defendants then
offered in writing to prove by their own individual testimony
"that the market price per barrel for flour of the grade the
contract sued upon stipulated for, between the middle of July,
1885, and middle of September, 1885, was $5 per barrel; that during
that period there was a ready cash market value in Texas for said
grade of flour at $5 to $5.50 per barrel, and that the defendants
could have sold 200 barrels per day during said period at $5 per
barrel, and that upon each barrel so sold they would have realized
$1 per barrel profit; that defendants had purchased and held on
storage during said period a sufficient quantity of good wheat to
have manufactured 200 barrels per day during said sixty days; that
the market price during said period of such wheat was 60 to 70c.
per bushel, and that the expense of turning such wheat into flour
during said period was 80c. per barrel, and that defendants had in
their employ all necessary laborers and skilled workmen to
manufacture said wheat into flour, and were fully equipped with
fuel and water and everything necessary to convert said wheat into
flour, save and except the parts and pieces of said mill which
plaintiff contracted to furnish in the contract sued on,"
all of which above testimony was offered in support of that
portion of defendants' plea in reconvention which sought to recover
the profits on 12,000 barrels of flour. The court overruled the
offer to prove all those facts except the fact of the amount of
wheat which the defendants had on hand during that period, to which
ruling the defendants excepted. The plaintiff, in rebuttal,
introduced the deposition of Odell before mentioned and other
evidence tending to prove that the contract was complied with on
its part, and that the building was not completed by June 1, 1885.
The jury returned a verdict in which they found for the plaintiff
on the contract in the sum of $12,332.82, including
Page 139 U. S. 204
interest, and for the defendants in the sum of $875 as damages.
Upon this verdict judgment was rendered in favor of the plaintiff
and against the defendants for $11,457.82. A motion for a new trial
having been overruled, the defendants sued out this writ.
MR. JUSTICE LAMAR, after stating the case, delivered the opinion
of the Court.
The errors assigned are as follows:
"(1) There was error in sustaining the exception to that part of
defendants' plea which sought the recovery of profits, and in
rejecting defendants' offer of evidence in support of the plea.
"
"(2) the court erred in overruling the defendants' motion to
suppress the deposition of Odell."
We will consider these assignments in the reverse order in which
they are stated. The points made against the deposition of Odell by
counsel for plaintiffs in error are that it was not taken under any
provision of the Revised Statutes of the United States, and that
section 914, Rev.Stat., relating to the adoption by the federal
courts of the forms and modes of proceeding in civil causes in the
state courts, has no application to the present inquiry. It will be
observed that these points do not relate to the competency of the
witness whose deposition was taken, or to the admissibility of the
evidence given in it, but are based solely on objections as to the
form of the commission and the manner of taking the deposition. The
record shows that the cause was at issue May 20, 1886. The
commission to take the deposition of the witness Odell was signed
January 4, 1887. Notice of the issuing of the commission was served
on the defendants, and they filed cross-interrogatories in the
premises at the same time making the following waiver:
"We waive copy of interrogatories, and consent that commission
may issue upon the original, direct,
Page 139 U. S. 205
and cross-interrogatories. [Signed] Lindsley & McCormick,
att'ys for Defendants."
As already stated, the deposition was filed in the case on the
22d of January, 1887, and opened at the request of the attorney for
the plaintiff on the 5th of February following. The motion to
suppress the deposition was not made until the 8th of February,
when the case came on for trial. In our opinion, the motion in this
instance was too late. The counsel for defendants, by waiving copy
of the interrogatories when notice of them was served upon them and
consenting to the issue of the commission, and practically uniting
with plaintiff's counsel in executing it, by adding their own
cross-interrogatories, and withholding the objections until after
the trial had begun, must be considered as having waived such
objections. It is the settled rule of this Court that the failure
of a party to note objections to depositions of the kind in
question when they are taken, or to present them by a motion to
suppress, or by some other notice before the trial is begun, will
be held to be a waiver of the objections. While the law requires
due diligence in both parties, it will not permit one of them to be
entrapped by the acquiescence of the opposite party in an
informality which he springs during the progress of the trial, when
it is not possible to retake the deposition.
Shutte v.
Thompson, 15 Wall. 151,
82 U. S. 158
et seq; Mechanics' Bank of Alexandria
v. Seton, 1 Pet. 299,
26 U. S. 307;
Winans v. New York & Erie
Railroad, 21 How. 88,
62 U. S. 100;
York Company v. Central
Railroad, 3 Wall. 107,
70 U. S. 113;
Doane v. Glenn,
21 Wall. 33,
88 U. S. 35;
Buddicum v.
Kirk, 3 Cranch 293,
7 U. S. 297;
Rich v.
Lambert, 12 How. 347,
53 U. S.
354.
The remaining assignment of error, which relates to the striking
out of so much of the defendants' plea as sought a recovery of
profits and the refusal of the court to allow any evidence to be
introduced in support of it, needs no extended consideration. The
question raised by it is whether the anticipated profits of the
defendants resulting from grinding wheat into flour, and selling
the same had the mill been completed at the date specified in the
contract can be recovered by way of damages for delay in putting up
the mill machinery. The authorities both in the United States and
England are
Page 139 U. S. 206
agreed that as a general rule, subject to certain well
established qualifications, the anticipated profits prevented by
the breach of a contract are not recoverable in the way of damages
for such breach; but in the application of this principle the same
uniformity in the decisions does not exist. In some cases of almost
exact analogy in the facts, the adjudications of the courts in the
different states are directly opposite. The grounds upon which the
general rule of excluding profits in estimating damages, rests are
(1) that in the greater number of cases such expected profits are
too dependent upon numerous, uncertain, and changing contingencies
to constitute a definite and trust worthy measure of actual
damages; (2) because such loss of profits is ordinarily remote, and
not as a matter of course the direct and immediate result of the
nonfulfillment of the contract; (3) and because most frequently the
engagement to pay such loss of profits in case of default in the
performance is not a part of the contract itself, nor can it be
implied from its nature and terms. Sedgwick on Damages (7th ed.),
vol. 1, p. 108;
The Schooner Lively, 1 Gallison 315, 325,
per Mr. Justice Story;
The Anna
Maria, 2 Wheat. 327;
The
Amiable Nancy, 3 Wheat. 546;
La Amistad
de Rues, 5 Wheat. 385;
Smith v.
Condry, 1 How. 28;
Parish v. United
States, 100 U. S. 500,
100 U. S. 507;
Bulkley v. United
States, 19 Wall. 37. But it is equally well settled
that the profits which would have been realized had the contract
been performed, and which have been prevented by its breach, are
included in the damages to be recovered in every case where such
profits are not open to the objection of uncertainty or of
remoteness, or where from the express or implied terms of the
contract itself, or the special circumstances under which it was
made, it may be reasonably presumed that they were within the
intent and mutual understanding of both parties at the time it was
entered into.
United States v. Behan, 110 U.
S. 338,
110 U. S.
345-347;
Western Union Tel. Co. v. Hall,
124 U. S. 444,
124 U. S.
454-456;
Philadelphia, Wilmington &
Baltimore Railroad Co. v. Howard, 13 How. 307.
Cases illustrating various phases of this rule are numerous. One
of the leading ones applicable to the case in question is
Page 139 U. S. 207
Hadley v. Baxendale, 9 Exch. 341, 354, 356, decided in
the Court of Exchequer at Hilary term, 1854. In that case, the
plaintiffs, who were the owners of a flour mill, sent a broken iron
shaft to the office of the defendants, who were common carriers, to
be conveyed by them to a manufacturer of such machinery, the broken
shaft to serve as a model or pattern for the new one. The clerk of
the defendants in their office was told that the mill was stopped,
that the shaft must be delivered immediately, and that a special
entry should be made, if necessary, to hasten its delivery. The
delivery of the broken shaft to the manufacturer was delayed an
unreasonable length of time, in consequence of which the plaintiff
did not receive the new shaft for some days after the time it ought
to have been received, and they were therefore unable to work their
mill from want of the new shaft, thereby incurring a loss of
profits. It was held, however, that such loss of profits could not
be recovered as damages in an action against the defendants as
common carriers. Baron Alderson, in delivering the opinion of the
court, laid down the rule of law as follows:
"Now we think the proper rule in such a case as the present is
this: where two parties have made a contract which one of them has
broken, the damages which the other party ought to receive in
respect of such breach of contract should be such as may fairly and
reasonably be considered either arising naturally,
i.e.,
according to the usual course of things, from such breach of
contract itself, or such as may reasonably be supposed to have been
in the contemplation of both parties at the time they made the
contract as the probable result of the breach of it. Now if the
special circumstances under which the contract was actually made
were communicated by the plaintiffs to the defendants and thus
known to both parties, the damages resulting from the breach of
such a contract which they would reasonably contemplate would be
the amount of injury which would ordinarily follow from a breach of
contract under these special circumstances so known and
communicated. . . . It follows, therefore, that the loss of profits
here cannot reasonably be considered such a consequence of the
breach of contract as could have been fairly and reasonably
Page 139 U. S. 208
contemplated by both the parties when they made this contract.
For such loss would neither have flowed naturally from the breach
of this contract in the great multitude of such cases occurring
under ordinary circumstances, nor were the special circumstance
which perhaps would have made it a reasonable and natural
consequence of such breach of contract, communicated to or known by
the defendants."
That case has been cited with approval and commented on by many
of the courts of this country, and by text writers as well. The
general principles of it, we believe, are recognized and enforced
in most, if not all, of the several states. A large number of the
cases are referred to in Sedgwick on the Measure of Damages, vol.
1, pp. 66-76, and 5 Encyclopaedia of Law, pp. 13, 15, 32-34, and we
shall attempt no extended review of them. We shall content
ourselves with a reference to a few of the leading ones most nearly
similar to the one before us.
Pennypacker v. Jones, 106 Penn.St. 237, 242, was very
much like the present case. In that case, the plaintiffs, who owned
and operated a flour mill in Philadelphia, entered into a contract
with the defendants by certain of the terms of which the defendants
were to place in their mill, within a specified time, machinery of
a certain capacity, to make flour of a high grade. The machines,
when furnished, were found not to make a high grade of flour, and
to be incapable of producing the stipulated number of barrels per
day. In an action for damages by the plaintiff for breach of the
contract, it was held that the loss of possible profits which might
have been made if the mill had run properly was not a proper
subject of damages for the reason that such damages were too remote
and speculative. In delivering the opinion of the court, Mr.
Justice Green used this language.
"It was no part of this contract that the plaintiffs should make
profits, or even have the opportunity of doing so, by carrying on a
business with the machinery which the defendants agreed to erect.
It is not like the sale of chattels or of land, where the
difference between the contract value and the actual or market
value of the property sold represents directly and immediately the
measure of the party's loss or gain in the transaction. There,
Page 139 U. S. 209
the possible profit is the very object of the contract, and is
necessarily in the contemplation of the parties. But when a
machinist furnishes machinery to a mill owner, it is no part of his
engagement that a profitable business shall be carried on with the
machinery furnished. Of course if it is defective, he is
responsible for the damage resulting directly from such defect; but
that is a very different thing from the uncertain, remote, and
speculative profits, which may or may not be made in the business
to be done."
In
Callaway Mining & Manufacturing Co. v. Clark, 32
Mo. 305, which was an action for the seizure and detention of a
steamboat by an attachment which was discharged, it was held that
the measure of damages was only the actual damage sustained by the
seizure, and that the jury could not be permitted to speculate as
to what might or might not have been the earnings of the boat
during the period of seizure.
Blanchard v. Ely, 21 Wend. 342, was an action for the
price of a steamboat. The defense was that part of the machinery of
the boat was unsound and imperfect, whereby considerable delay was
caused, and that the loss of the probable profits that would have
been made upon the trips that might have run during the time the
vessel was delayed on account of the imperfections in its
construction might be recouped in the action for the price of the
boat. But the court held that such contingent profits could not be
allowed.
See also Olmstead v. Burke, 25 Ill. 86;
Winne
v. Kelley, 34 Ia, 339;
Howe Machine Co. v. Bryson, 44
Ia. 159;
Freeman v. Clute, 3 Barb. 424;
Griffin v.
Colver, 16 N.Y. 489;
Wakeman v. Wheeler & Wilson Mfg.
Co., 101 N.Y. 205;
Brown v. Smith, 12 Cush. 366;
Boyd v. Brown, 17 Pick. 453;
Willingham v.
Hooven, 74 Ga. 233;
Georgia Railroad v. Hayden, 71
Ga. 518;
Bridges v. Lanham, 14 Neb. 369;
Houston &
Texas Cent. Ry. Co. v. Hill, 63 Tex. 381;
Smith v.
Condry, 1 How. 28.
The principles announced by the above-cited authorities lead to
the conclusion that the court did not err in striking out that part
of the defendants' plea which sought to recover $12,000 as the
profits expected to be derived from the sale of the flour
Page 139 U. S. 210
which they would have manufactured, and in excluding the
evidence offered in support of the claim therein set up. Tested by
them, such losses were, in our opinion, rather remote and
speculative than direct and immediate, resulting from the breach
alleged. There was no stipulation in the contract that the
defendants should make profits on flour from the wheat ground up by
the machinery which the plaintiff contracted to furnish and erect
in the mill. Nor were there any special circumstances attending the
transaction from which an understanding between the parties could
be inferred that the plaintiff was to make good any loss of profits
incurred by a delay in furnishing and putting up such machinery
according to the terms of the contract.
We see no error in the judgment of the court below prejudicial
to the plaintiffs in error, and it is
Affirmed.