developing a horsepower hour by gaso- | barrel for what he might have manufacline engine. tured is fallacious. He did not present the facts upon which a proper estimate could be based. "MR. HENSEL: First, objected to, because the witness has not qualified; and second, because the testimony is irrelevant and immaterial, that not being the measurement of our damages. Disallowed.. (2) The Court erred in refusing to permit the defendant to show, by the same witness, what it would have cost to supply by electricity the power lost by the defendant's taking of water from the springs on its property, as follows: 66 MR. KELLER: We also offer to show the cost of developing a horsepower hour by electricity." (3) The Court erred in charging the jury as follows: "But there may have been times when the water was at such a stage that the appropriation by the Water Company lessened his power." There being no proof to support such statement in the evidence. (4) The Court erred in charging the jury as follows: "In other words, whatever he has lost by reason of the diminution of the power and his ability thereby to run his mill and make flour as it was accustomed to be run before the appro-, priation of the water of the stream by the New Holland Water Company, that damage figured out by you in dollars and cents is the proper compensation to him for his loss." No evidence having been offered to show the flow or power of Mill Creek before the taking of the water by the defendant or the ability of the mill to run and make flour previous to such appropriation of the water of the stream by the defendant. (5) The charge of the Court was inadequate in failing to properly instruct the jury upon the question of damages. Coyle & Keller and A. W. Snader, for appellant. The better practice to determine these damages would have been to follow the analogy of railroad cases: R. R. Co. vs. Jones, 111 Pa., 204. O'Brien vs. R. R. Co., 119 Pa., 184. Thompson vs. Trust Co., 181 Pa., 131. The claim of the plaintiff as argued to the jury that he was entitled to $1 per W. U. Hensel and A. E. Burkholder, for appellee. In reducing the verdict nearly onehalf the court below figured what it deemed just compensation and the defendant has no reason to complain. No injustice was done to defendant by refusing to let it show the cost of gasoline or electric power. This is nowhere held to be the measure of damages in such cases. The probable returns from an investment in land because of the use which may be made of it, is a consideration which enters into an intelligent estimate of its value, and is entirely distinct from an estimate based on the profits of a business which may be conducted upon it. Gearhart vs. Clear Spring Water ComPany, 202 Pa., 292. Accurate proof of loss in such case is manifestly impossible, but this does not prevent recovery. July 20, 1910. Opinion by HENDERSON, J. The defendant appropriated water from three springs which were tributary to a creek on which the plaintiff owned and operated a grist mill, all the power for which was supplied by the creek. | cluded from the evidence that there was The defendant owned the land on which usually a deficiency of water at the mill the springs were situated and the water and that the whole quantity taken by the was diverted without condemnation pro- defendant could have been effectually ceedings. This action was for damages used in increasing the power necessary to resulting from the subtraction of the turn the mill wheels. There would still water and the consequent loss of power have been a large deficiency but the volat the plaintiff's mill. The taking of the ume conveyed away in the defendant's water is admitted and the plaintiff's right pipe would have furnished an accumulaof action is not denied. The contention tion in the dam which would have added is that the plaintiff did not establish his its weight to keep the mill going. For damage by definite testimony and that just how long a period in any instance the court erred in refusing to admit evi- there was such a volume of water in dence offered by the defendant to show the creek that the outflow of these springs the cost of producing power with a gaso- was not needed at the mill was not shown line engine or electric motor. The evi- in evidence, but that it was for brief dence was contradictory as to the amount periods is plain and in the nature of the of water taken from the springs, but it case it could not be expected that exact was definite on each side and as shown figures could be given on that subject, by the plaintiff amounted to a quantity nor is it necessary that they should be. sufficient to produce one-fifth of a horse- Where it is proved that damage has repower. It also appeared that the opera- sulted from an injurious trespass and tion of the flour mill required five and the only uncertainty is as to the exact seven-tenths horsepower and the feed mill amount thereof such uncertainty is not considerably less, and that the capacity of ordinarily ground for refusing to allow the mill when in continuous operation any damage at all if the evidence furnish was eighteen barrels of flour in twenty- a basis from which a reasonable calcufour hours, but that the annual produc- lation can be made: 3 Sutherland on tion was from 1200 to 1500 barrels, on Damages, Sec. 672; Hooper vs. Story, which the profit was about one dollar a 155 N. Y., 171. A part of the damage barrel. Evidence presented for the plain- claimed in Hogg vs. Water Co., 168 Pa., tiff shows that there was generally a 456, was the loss of pasture caused by shortage of water and that it was neces- lack of water and the evidence was less sary to shut down the mill as often as definite there than was produced by the twice a week because of lack of water, plaintiff here. It is impossible to arrive except when there was a heavy rain or a at nice calculations in a case of this charfreshet from melting snow. It also ap- acter, but we think there is evidence that peared that the loss of power which all of the water taken could have been would have been furnished by the water advantageously used by the plaintiff for taken by the defendant would have made a very large part of the period involved it possible to operate the mill at times and as the court reduced the amount of when without it flour could not be the verdict nearly one-half the defendant ground. There was a consequent loss has little ground of complaint. not only of the power measured by the water withdrawn but the loss of the use of the whole mill for many days during the four years covered by the declaration and the damage was not simply the loss of power but the loss of the use of the property. It cannot be logically contended, therefore, that the plaintiff is only entitled to recover to the extent of the proportion which the water taken bore to the whole quantity used in propelling the mill. The jury could have well con The injury complained of was temporary and the measure of damages appropriate in the case of a permanent injury does not apply. A permanent injury will not be presumed, and where one seeks to recover damages on that theory he must aver and prove that his property is permanently injured or at least that the condition complained of is reasonably certain to be permanent: Hoffman vs. Coal Co., 16 Pa. Super. Ct., 631. In the case of a temporary injury the question is what will it cost to restore | the property damaged to its former condition? This was the rule stated in Lentz vs. Carnegie, 145 Pa., 612, and such is the effect of all of our authorities. This restoration is not the providing of a substitute for the property wrongfully destroyed but the putting of the injured party in his original condition. manifest therefore that the offer to prove what it would cost to produce a horsepower by a gasoline engine or electric motor was not competent. Neither of these machines was available to the plaintiff. His mill was a water mill and he was not under legal obligation to instal electric or gasoline power. If the defendant took away the means by which he operated his mill he could abide by the conditions and demand that he be compensated to the extent of his loss. Moreover, there was no offer to show what it would cost to instal the substituted power or that it was at all practicable taking into consideration the condition and character of the plaintiff's property without an outlay altogether out of proportion to the end to be accomplished. If the plaintiff instead of accepting the situation as produced by the defendant had supplied the lost power by securing a new water supply or introducing a different method of propelling his machinery he might have shown. the cost of this change as was apparently done in Lee vs. Water Co., 176 Pa., 223, and in that event it would have been permissible for the defendant to show that the plaintiff's figures as to cost were extravagant, but we do not find any case which supports the position that the defendant may introduce evidence of the cost of a different kind of power as a method of determining his liability. After a careful consideration of the case we do not find such support for the plaintiff's position as to justify a reversal. The judgment is affirmed. Common Pleas--Law. C. P. OF LANCASTER COUNTY. E. L. Nissley & Co., vs. Isaac N. Bushong. Sale-Failure to deliver-DamagesMeasure of-Statement-Reasons for new trial. In an action for damages for failure to deliver a crop of tobacco bought by the tiff should have bought other tobacco for plaintiff it is not necessary that the plainthe specific purpose of taking its place, and sued for the difference in cost, but the measure of damages may be computed as the dif ference between the contract price and the actual market value. Chas. W. Eaby, for defendant and rule. C. Eugene Montgomery, contra. The defendant filed six reasons for a new trial, within the time fixed by our rule of court, and four additional reasons afterwards. The latter cannot be considered in this application, but as they raise no question that has not been raised in the reasons that were filed in time no harm is done to the defendant. The additional reasons suggest that the second of the reasons, first filed, is an error, in that it complains of the explanation to our answer of defendant's fifth point, whereas it should have been defendant's fourth point. We will permit it to be amended so as to read fourth point, and as such will consider, it. The facts as shown at the trial are that the defendant sold plaintiff his crop of tobacco, which he refused, without legal reason, to deliver. The contract was in writing and fixed the price to be paid for it. The plaintiff commenced this action and averred in his statement that he had sustained damages to the amount of $500 because of defendant's breach of the contract. The verdict was in favor of the plaintiff, and the defendant now seeks a new trial. The reasons for a new trial raise the single question of the correctness of our instructions as to the proper measure of damages, both in our charge to the jury and our answers to defendant's points. On this subject we said, "The measure of damages in cases of this kind is the damages which the plaintiff is entitled to recover. They are what will compensate him for his loss by reason of defendant's breach of the contract. The measure of damages in such case is the difference between the contract price and the actual market value of the goods, at the time and place of delivery. .. Market value of the goods is not always the selling or purchasing price, although it is the way in which the market value is usually determined, that is, the market price as distinguished from the market value. Where a man can replace the kind of goods that had been purchased and refused to be delivered by the vendor, he can go in the open market and purchase such goods, the price he would then be compelled to pay would be evidence of market value." We reviewed all the testimony from which the jury could possibly ascertain the market value. In our instructions we followed the law as laid down in numerous cases, among which are Fessler vs. Love, 48 Pa., 407; Merchants Bank vs. Spratt, 108 Pa., 97; Morris vs. Supplee, 208 Pa., 253; Roberts vs. Andrews, 15 Sup., 305; Boyd vs. Merchants and Farmers Peanut Co., 25 Sup., 199. It is contended that, as the plaintiff did not buy other tobacco in place of that which defendant failed to deliver, he sustained no loss. This construction would confine the word loss to a very narrow compass. One can sustain a loss without actual expenditure of money. If by a fortunate purchase one should buy an article worth $200 for $100, which the vendee afterwards refused to deliver, it is very clear that the vendor would sustain a loss of $100, in being deprived of the article, even though he did not go into the market and pay $200 for one just like it. So where a tobacco dealer buys tobacco, worth more than he paid for it, he sustains a loss of the difference between its value and the price agreed upon, in being deprived of it, if the vendee fails to deliver it, even though he did not pay such difference in buying other tobacco in its place. Of course, if he actually did buy other tobacco to replace that which the vendee failed to deliver, the difference he was compelled to pay for it would be his actual loss and the measure of damages. He, however, was not compelled to do so, nor can it be said of a tobacco dealer, who is buying up all the crops of tobacco he can get, that, when he does buy a crop, he bought it to replace the one which the vendee refused to deliver. When he bought all the crops he could get, he would then be one crop short of what he wanted because of vendee's failure to deliver the one sold by him, and would sustain a loss of the difference, between what it was worth according to its market value, and what he had agreed to pay for it. The price he paid for similar tobacco would be evidence of its market value, and we so told the jury. It is contended by defendant that the statement does not claim damages according to the measure which we have applied. It claims damages, by reason of defendant's breach of his contract to deliver the tobacco, to the amount of $500. It was not necessary to state how these damages were to be ascertained, as the law fixes the rule for ascertaining them, which we have applied in this case. We think the statement contained all that was required to be in it, and that no error was committed by us in instructing the jury as to the measure of damages, and we therefore discharge the rule for a new trial. Tegal Miscellany. coasting hill of winter days, the Crusoes and Alices of Wonderland that whiled away our evenings, the games of ball and the athletic contests, the riding, hunt Articles of Association of the Joy Company ing and fishing parties, the luring dances, Unlimited. WILLIAM ALLEN WOOD, Esq. Author of "Modern Business Corporations." ARTICLE I. NAME. the lyric thrills of first love, the poets that expressed for us the bright and happy colors of life and the beauties of crowded hours, and all those caressing or inspiring memories of larger experiences, deeper emotions, more vivid pas The name of this association shall be sions and more intellectual avocations The Joy Company, Unlimited. ARTICLE II. OBJECT. The object of this association, in furtherance of the rights of life, liberty, and the pursuit of happiness and in the interest of good comradeship, is to promote the use of the easy chair, the stein, the soothing weed, and the story, by means of crackling logs in a broad fireplace, to incite to the geniality that knits closer the group of hearty talkers and contented listeners; to induce boisterous laughter, merry songs, lusty choruses, and strange, brave and romantic stories; to journey in the world of imagination, and, though there be snow and storm outside, to wander in green forests, to gather the blossoms of the peach and hawthorn, to breathe the perfume of scented shrubs, to hear the night birds sing, the streamlets purl, the far-off harmony of piano and voice, to gaze on stars as thick as leaves of Vallombrosa, to have fond sweethearts, and to enjoy the lunarian rights and privileges of an Italian night in June; to enjoy all these rights and privileges in their seasons; to use such nicknames, terms of affection, handclasps, and caresses as will promote good feeling and show the love and regard in which companions are held; to give words of praise and encouragement to one another, to assist one another in every way possible not inconsistent with our mutual strength and our personal sense of justice, and to foster one another's confidence in the strength of manhood and one another's hope of living up to high ideals and attaining high accomplishments; to preserve pleasant memories-the swimming pools and sand banks of our youth, the that make life rich, colorful and epic in our maturity; to do all these things, and to do them before the world, so as to invite competition on the part of all mankind, that the profits of this association may be cumulative and perpetual. ARTICLE III. HOME OFFICE. The home office of this association shall be any place where there are a sufficient number of good fellows, two or more, to create warmth and delight by their presence. ARTICLE IV. CAPITAL STOCK. shall be unlimited, but an amount necThe capital stock of this association cheer shall be sufficient for working capiessary to create an atmosphere of good tal, and shall be contributed by the members in such ways and proportions as they may see fit-provided the total is always enough to keep the association alive-and the profits shall be distributed according to each member's capacity to contribute and enjoy. All surplus profits shall be turned over to the world at large. ARTICLE V. SEAL. |