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Before and at the time of the making by the defendants of the promises hereinafter mentioned, the plaintiffs carried on the business of millers and mealmen in partnership in Gloucester. They were possessed of steam-engine by means of which they worked the mills, and therein cleaned corn, ground the same into meal, and dressed the same into flour, sharps, and bran.
The crank shaft of the steam-engine was broken, with the result that the engine was prevented from working, and the plaintiffs were desirous of having a new crank shaft made. They had ordered the shaft of W. Joyce Greenwich, Kent, who had contracted to make it, but before Messrs Joyce & Co. could complete the new shaft it was necessary that the broken shaft should be forwarded to their works at Greenwich in order that the new shaft might be made so as to fit the other parts of the engine which were not injured and so that it might be substituted for the broken shaft.
The defendants were common carriers of goods and chattels for hire from Gloucester to Greenwich, and the plaintiffs, at the request of the defendants, delivered to them as such carriers the broken shaft to be conveyed by the defendants from Gloucester to Messrs Joyce & Co., at Greenwich for reward to the defendants. The plaintiffs alleged that in consideration thereof the defendants promised to convey the shaft from Gloucester to Greenwich on the second day after the delivery of the shaft by the plaintiffs to the defendants, but that the defendants did not deliver the shaft to Messrs Joyce & Co. on the second day, but neglected so to do for the space of seven days after the shaft had been delivered to them.
In the second count the plaintiffs alleged that the defendants undertook to deliver the shaft to Messrs Joyce & Co. within a reasonable time, but had failed to do so. The plaintiffs further said that by reason of the promises, the completing of the new shaft was delayed for five days, with the result that the plaintiffs were prevented from working their steam-mills, and from cleaning corn, and grinding the same into meal, and were unable to supply many of their customers with flour, sharps, and bran during that period, were obliged to buy flour to supply some of their other customers, were deprived of gains and profits which otherwise would have accrued to them, and were unable to employ their workmen to whom they were compelled to pay wages during that period.
They claimed £300 damages. The defendants denied liability on the first count, and with regard to the second they paid £25 into court.
At the trial it appeared that on May 13, a servant of the plaintiff, whom they had sent to defendant’s office told the defendant’s clerk, who was there, that the mill was stopped and the shaft must be sent immediately, and that, in answer to the inquiry when the shaft would be taken, the defendant’s clerk said that if it was sent up by twelve O’ clock any day it would be delivered at Greenwich on the following day.
On May 14, the shaft was taken to the defendant’s office, before noon, for the purpose of being conveyed to Greenwich, and the sum of £2 4s. was paid for its carriage. The delivery of the shaft at Greenwich was delayed by some neglect; and the consequence was that the plaintiffs did not receive the new shaft for several days after they would otherwise have done, and the working of their mill delayed and they lost the profits they would otherwise have received.
The defendants objected that the damage alleged was too remote, and that the defendants were not liable with respect to it. The learned Judge left the case generally to the jury, who found a verdict with £25 damages beyond the amount paid into court.
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 as 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.
If 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 the special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, for such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them.
The above principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract.
In the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiffs to the defendants at the time the contract was made were that the article to be carried was the broken shaft of a mill and that the plaintiffs were the millers of that mill. But how do these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person?
Suppose the plaintiffs had another shaft in their possession put up or putting up at the time, and that they only wished to send back the broken shaft to the engineer who made it; it is clear that this would be quite consistent with the above circumstances, and yet the unreasonable delay in the delivery would have not effect upon the intermediate profits of the mill. Or, again, suppose that, at the time of the delivery to the carrier, the machinery of the mill had been in other respects defective, then also, the same results would follow.
Here it is true that the shaft was actually sent back to serve as a model for a new one, that the want of a new was the only cause of the stoppage of the mill, and that the loss of profit really arose from not sending down the new shaft in proper time, and that this arose from the delay in delivering the broken one to serve as a model. But it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences would not, in all probability, have occurred, and these special circumstances were here never communicated by the plaintiffs to the defendants.
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 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 circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants.
The Judge ought, therefore, to have told the jury that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must, therefore, be a new trial in this case.
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