ways into a continuous system, and that it was the intention of the defendant to push their work on this construction, and that, in consequence, the contract for the erection of the Big Sandy Bridge would be a time contract. But I do not find from the evidence that Mr. Broumbaugh was advised of the fact that the Ironton Street Railway was to be a part of the contemplated connected system.

I find that one-half of the contract price of each bridge, to wit $2,000 on the Twelve Pole Bridge and $12,250 on the Big Sandy Bridge, was paid by the defendant when due, and that the balance upon each contract has not as yet been paid. I further find that the plaintiff did extra work on the Twelve Pole Bridge amounting to $1,175, for which it is entitled to be paid, with interest from November 1, 1900; and that it also furnished piles, etc., to the value of $127.95, to which it is entitled, with interest from August 1, 1901.

I further find that the plaintiff is entitled to recover the balance on the Twelve Pole Bridge, as aforesaid, of $2,000, with interest from March 1, 1901, and the balance on the Big Sandy Bridge of $12,250, with interest from June 23, 1901.

I find from the evidence that the set-off claimed by the defendant in its plea and statement of set-off, which amounts to $644.42, was not authorized to be expended and incurred by plaintiff or its agent, and the same cannot be allowed.

I find from the evidence that the defendant, the Camden Interstate Railway Company, expended for construction upon its lines and plants the following sums:

And I further find that by reason of the failure of the plaintiff to complete the Big Sandy Bridge at the time specified in the contract (i. e., January 1, 1901) the defendant was deprived of the use of the aforesaid sums of money, and that they are entitled to recoupment by way of interest at 6 per cent. from the several dates to June 23, 1901, the date of the completion of the said bridge, as per the following statement:

Recoupment by Way of Interest.

Int. on $328,913.51 from Jan. 1 to June 23, 1901..

Int. on

Int. on
Int. on

$ 9,483 57

Total

$12,197 68

Int. on

Int. on

Summary: I therefore find that the plaintiff is entitled to recover of the defendant as follows:

$1.175.00, with interest from Nov. 1, 1900, to June 23, 1901... $ 1,220 62 $2,000 balance due on Twelve Pole Bridge, with interest from Mar. 1, 1901, to June 23, 1901...

2,037 33

$12,250, balance due on Big Sandy Bridge as of June 23, 1901..

12,250 00

Total ...

$15,507 95

-And that the defendant is entitled to recoupment to the amount of $12,197.68, being interest at 6 per cent. upon amounts invested as shown in finding above. I therefore find that the plaintiff is entitled to recover of the defendant the sum of $3,310.27, balance due as of June 23, 1901, which, with interest from said June 23, 1901, to the date of this finding, April 10, 1903, amounts to $3,667.22, and the further sum of $127.95, the value of piles, etc.,

furnished defendants, with interest from August 1, 1901, to the date of this finding, April 10, 1903, amounting to $140.94.

I therefore find that the plaintiff is entitled to recover of the defendant the sum of $3,808.16, with interest thereon from this date, April 10, 1903, until paid, and its costs by it about its suit in this behalf expended, including an attorney's fee of $10, as allowed by law. An order may go in accordance with this finding.

Note. There was evidence of a documentary character, introduced by the defendant on the trial of this case, tending to show the expenditure of certain sums of money upon Clyffeside Park, Ironton Street Railway, engineering, and for ferry franchises, as sums upon which interest, by way of recoupment, should be allowed; but I am unable to find from the evidence that these items are proper ones, or that they can be connected with the main investment so clearly as to be properly charged, and they were disregarded in my finding. That the Camden Interstate Railway Company expended for construction upon its lines and plants previous to January 1, 1901, the following sum to wit:

Upon equipment

15,702 88

Upon power plant, substation and high transmission line....

60,402 26

Total

$328,913 51

During January, as follows:

Upon Kenova and Central City extension.

These are the details of the items in my finding, marked previous to January 1, 1901, and aggregating $328,913.51.

Upon its Huntington line....

$ 3,266 70 5,998 89

Upon Big Sandy Bridge..

Upon Hampton City extension.

Upon Ashland & Catlettsburg Street Railway.

93 53 2,072 55

455 02

Upon equipment ...

3,052 66

Upon power plant, substation and high transmission line...

14,230 04

Total

$29,169 39

These are the details of my January finding, aggregating $29,169.39.

These are the details of my February finding, aggregating $46,152.09.

These are the details of my March finding, aggregating $37,086.05.

These are the details of my April finding, aggregating $49,273.44.

These are the details of my May finding, aggregating $44.530.78.

I find that at the time the contract was made for the construction and erection of the bridge across the Big Sandy river for the Ohio Valley Electric Railway Company, now the Camden Interstate Railway Company, and previous thereto, the said railway company owned and operated the following lines of street railway:

(a) A line extending from Guyandotte, West Virginia, a town having a population of from two to three thousand persons, west along third avenue, in Huntington, to Seventh street therein, a distance of three miles and a fraction; also a line extending from the corner of Tenth street and Third avenue, in the city of Huntington, south and east to the Chesapeake & Ohio shops, in the eastern part of said city, a distance of two and one-fourth miles; and a line extending from Ninth street, in Huntington, west along Fourth avenue to Central City, a town having four thousand population, a distance of two and three-fourths miles; and that the city of Huntington had at the time a population of twelve thousand persons.

(b) Also that said company owned and operated a line of railway extending from Division street, Catlettsburg, a town having a population of between thirty-five hundred and four thousand people, to Ashland, a city having a population of seven or eight thousand persons, a distance of six miles.

(c) Also a line of railway extending from Coal Grove, Ohio, a town immediately opposite Ashland, Kentucky, west through the city of Ironton, with a population of eleven or twelve thousand, to Hanging Rock, Ohio, a distance of seven miles.

And I further find that at the time of the making of the contract for the construction of said bridge, and for a long time previous thereto, and during the construction of said bridge, the said railway company had been operating the said several lines above mentioned for the carrying of passengers thereon for hire and reward.

The opinion of the court below, filed in and made a part of the record of this cause, reads as follows:

In this case the only question as to which there is a serious dispute between the parties is as to the proper measure of damages to be recovered by the defendant by way of recoupment on account of the delay of plaintiff in completing the two bridges mentioned in the pleadings, and particularly the bridge crossing Big Sandy river. I deem it unnecessary to make any statement of the case, as in my written findings, which are a part of the record, the main facts are fully stated. The eminent counsel on both sides of this case have submitted full and ably printed briefs, presenting most

admirably the opposite sides of the question here involved; and if I do not refer in extenso in this opinion to those briefs it is simply because the leading principle, as applied to the facts in this case, in my judgment, renders such analysis of the briefs unnecessary. There was no denial upon the part of the plaintiff that the defendant is entitled to recoup some damages growing out of its failure to complete these bridges within the time agreed upon, and the only question was, in what manner shall these damages be ascertained, and what is the proper amount? Recoupment is said in the law dictionaries to be the right of the defendant in the same action to claim damages from the plaintiff, either because he has not complied with some obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in making or performance of the contract. Bouv. L. Dict.; And. L. Dict. In Sutherland on Damages (2d Ed.) § 168, p. 329, it is said: "The defense which is allowed under the name of recoupment is not a keeping back a part of the plaintiff's prima facie damage on the case he seeks to establish by evidence of the character explained under the title 'mitigation of damages,' but a reduction of the plaintiff's recovery by the allowance against him in his action of damages due the defendant on a substantive cause of action in his favor, growing out of the same transaction on which the plaintiff's claim or demand arises." The same author, in section 81, p. 169, says: "Such losses may consist of expenditures made by one party to a contract and damages from his own acts done on the faith of its being performed by the other, in furtherance of the object for which the contract purports to be made, or the object which was in contemplation of the parties at the time of contracting;" citing Dean v. White, 5 Iowa, 266; Grand Tower Co. v. Phillips, 23 Wall. 471, 23 L. Ed. 71, etc. In Hadley v. Baxendale, 9 Exch. 353, the leading English case, two propositions on the scope of recovery of damages for breach of contract were established. They were thus stated by Baron Alder son: "Where two parties have made a contract, which one of them has broken, the damage which the other ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered either as arising naturally-that is, 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." Where the special circumstances are known to the defendant, and where the damage is the natural result of his default, the special damage is held to have been in view of the parties to the contract, and is not too remote. 5 Am. and Eng. Ency. of Law (1st Ed.) p. 15; Hadley v. Baxendale, 9 Exch. 341. In Hammer v. Schoenfelder, 47 Wis. 455, 2 N. W. 1129, the plaintiff was a butcher, and the defendant had agreed to furnish him with such quantity of ice as he might need for his ice box to keep fresh meat during the summer. The defendant had supplied the plaintiff before, and understood the use of the ice. At the last of July the defendant ceased to furnish ice, and in consequence a quantity of meat was spoiled, as no ice could be procured elsewhere. The defendant was held liable for the value of the spoiled meat. The circumstances made known at the making of the contract, and its intrinsic nature, must be considered in estimating the damages. Winne v. Kelley, 34 Iowa, 339; Van Arsdale v. Rundell, 82 Ill. 63; Rogers v. Bemus, 69 Pa. 432; Hexter v. Knox, 63 N. Y. 561; Wolcott v. Mount, 36 N. J. Law, 262, 13 Am. Rep. 438. For cases in which recoupment of damages was allowed for failure to perform construction contracts within stipulated time, see Front St., etc., R. Co. v. Butler, 50 Cal. 574; Korf v. Lull, 70 Ill. 420; Cooke v. Preble, 80 Ill. 381; Havana, etc., R. Co. v. Walsh, 85 Ill. 58; Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635; Rockwell v. Daniels, 4 Wis. 432. In Blanchard v. Ely, 21 Wend. 342, 34 Am. Dec. 250, it was held that, where the defense for the price of a steamboat was that part of the machinery was unsound and imperfect, occasioning considerable delay, the defendants could not recoup as damages the loss of the probable profits upon trips that might have been run during the time the vessel was delayed on account of the imperfections in its construction. In Smeed v. Ford (1859) 28 L. J. Q. B., 178, the defendants contracted to supply a threshing machine to the

plaintiff within three weeks from the 24th of July. The defendants, at the time of the contract, knew that the plaintiff was in the habit of threshing the corn in the field and sending it to market at once. The machine was not forthcoming in time, and the plaintiff was obliged to carry away and stack the corn. The corn was damaged by exposure to the weather, so that it was necessary to dry it in a kiln. The quality was much deteriorated, and before the corn could be sold the price had fallen. It was held, applying the rule in Hadley v. Baxendale, that the plaintiff was entitled to recover damages (1) in respect of the deterioration in the quality of the wheat, (2) in respect of the expense of carrying and stacking it, and (3) in respect of the expense of kiln-drying, but not in respect of the fall in prices. Where a landlord agreed in a case to repair the fences so as to secure a crop, and, failing to do so, cattle broke in and injured the crops, he was held for their value. Culver v. Hill, 68 Ala. 66, 44 Am. Rep. 134. On a breach of contract to sell and deliver furniture for a hotel by a fixed time, the loss of profits from renting the rooms to guests may be considered in the recovery. Berkey, etc., Co. v. Hascall, 123 Ind. 502, 24 N. E. 336, 8 L. R. A. 65. “A party is liable for all the direct damages which both parties to the contract would have contemplated as following from its breach, if at the time they entered into it they had bestowed proper attention upon the subject, and had been fully informed of the facts." Leonard v. N. Y., etc., Tel. Co., 41 N. Y. 544, 1 Am. Rep. 446. In Fletcher v. Tayleur (1855) 17 C. B. 21, 25 L. J. C. P. 65, the action was for damages for nondelivery of a ship at the stipulated time. The rate of freight was high then, and had fallen when the ship was delivered. It was held that the plaintiff could recover the difference in amount between what he would have earned had the ship been delivered at the proper time, and what he would earn at the lower rate. In Hydraulic Engineering Company v. McHaffie (1879) 4 Q. B. D. 670, 27 W. R. 221, the plaintiffs in July, 1877, contracted with J. to make for him a machine, to be delivered at the end of August. The defendants contracted with the plaintiffs to make "as soon as possible part of the machine called a gun." The defendants were aware that the machine was wanted by J. at the end of August, but they did not finish their part till the latter end of September. J. then refused to accept the machine from the plaintiffs. It was held that the defendants had broken their contract, and were liable to pay as damages the loss of profits of the plaintiffs upon their contract with J., as well as the amount spent by them uselessly in making other parts of the machine. In Elbinger Action-Gesellschaft, etc., v. Armstrong (1874) 9 Q. B. 473, 43 L. J. Q. B. 211, 30 L. T. 871, 23 W. R. 127, the defendant, in January, 1872, agreed to furnish the plaintiff with a quantity of sets of wheels and axles, according to tracings, to be delivered on certain specified days, free on board at Hull. The plaintiffs were under a contract with a Russian railway company to deliver them 1,000 covered wagons, 500 on the 1st of May, 1872, and 500 on the first day of May, 1873, under a penalty of two roubles per wagon for each day's delay in delivery. In the course of the negotiations between the plaintiff and the defendant, the latter was informed of the plaintiff's contract with the railway company. The defendant failed to complete, and the plaintiffs had to pay a penalty of one rouble a day, amounting to about 100 pounds. It was held that the jury might reasonably assess the damages at the amount actually paid by the plaintiff.

The defendant in this case presented three propositions as to the correct measure of damages. First. The proposition that it was entitled to recover the profits it would have made from its investment had the bridges been completed in time; and it undertook to show what these profits would have been by comparing the profits made during a corresponding period in the next year (1902) with the same period in the year prior to the commencement of the work (1900). I ruled out the evidence on the ground that it was purely speculative, especially so as there was no way in which the increased profit properly attributable to the extension of the railway system, and growing out of the connections made by means of the bridges and links added, could with any degree of certainty be separated from the in