Wood v. State ex rel. W. C. White & Co.

Ritchie, J., delivered the opinion of the Court. This is a suit on an injunction bond; and this appeal relates to the damages allowed for enjoining the removal of plaintiffs’ saw-mill from the defendants’ land in Garrett County for a period of six weeks. The exceptions taken by defendants are to the rulings of the Court upon the evidence and prayers fixing the standard and the items and method of computing the damages. It was shown in the testimony, that at the time the injunction was issued, the plaintiffs, with the knowledge of defendants, or some of them, were about to remove the saw-mill to Bedford County, Pa., where.they had bought timber on a royalty of $1 per thousand feet, and had orders for the sale of the lumber to be made on the tract.

The removal of the mill to the Bedford County land was delayed by the injunction, as stated, for six weeks, when it was dissolved. The claim of the plaintiffs was that they were entitled to recover as damages the amount of profits they might have made if they had prosecuted their' lumber business in Bedford County during that period. As the mode of ascertaining what those profits would have amounted to, they offered proof of certain items of expense in the making of lumber from the Bedford tract, and the price obtained, at the time when they actually were at work, after the expiration of the six weeks. The items thus specified were, per thousand feet, as follows: for royalty $1, for cutting trees $1, for hauling trees to mill $2.50, for sawing $1.15, for hauling to railroad $1, for loading on cars .25, in all $13.50, as the cost of manufac ⁶⁶ ture, and, as the market price at place of sale, $19.00 per thousand, feet.

To the allowance of such profits, and to this method of ascertaining the damage caused by detaining the mill, and the fixing the cost of manufacturing and the price of the lumber by figures prevailing at a time other than the six weeks when the mill was idle and the injunction in force, the defendants excepted. And their contention is, that the true rule of damages under the circumstances of this case was the rental value or hire of a mill of the capacity defendants’ mill was shown to he. It seems to us that to enumerate certain leading items of expense, and thus assign to the saw-mill alone the whole difference between their aggregate and the price obtained, as a profit exclusively attributable to the sawmill, was incorrect. Profits are contributed to by all and not one only of the various elements which combine to produce them.

All the different kinds of work and labor which enter into the manufacture of an article form the source and basis of profits; in this case, the cutting down and hauling done, &c., as well as the sawing by the mill. The saw-mill alone cannot be deemed the only factor in producing the net result; and we think the mode of computation pursued was calculated to mislead the jury. Moreover, the possible breakage and loss of time incident to practical operations, the cost of freightage to the place of market, the expenses of general supervision, the natural wear and tear, and the use of capital, do not appear as matters of deduction in striking the balance ; all, items of consideration in carrying on the lumber business. Nor is it shown that the cost of labor and the price of lumber, articles of fluctuation, were the same during the six weeks the injunction was pending, when the profits are claimed,, as they were subsequently.

The periods should have been connected in this respect. But these defects only tend to strengthen the conviction, that the profits claimed are too uncertain, speculative and ⁶⁷ contingent in their nature to furnish the true rule of damages in this case, which, in our opinion, should have been the rental value or hire of the saw-mill or one of similar capacity for the period of six weeks. The defendants’ •question in their fifth exception, “What is the fair hire for such a machine as this is?” should have been allowed. The rental value or hire of a saw-mill with a known capacity is not difficult of ascertainment.

Equivalent words to “rental value” or “hire” as applied to a saw-mill would be “the value of the use of the same.” Such an inquiry furnishes a more trustworthy and definite guide to ascertain the loss sustained by its enforced idleness than a conjectural estimate of the net results of reducing to lumber an unfelled forest. A further consideration impelling us to approve this standard, is that the suspension for six weeks does not seem to have prevented the plaintiffs from actually converting their Pennsylvania