#### Brownell & Company, Appellants, v. D. Chapman, Appellee.

1. Contracts: breach: measure of damages. Upon a failure to supply boilers and machinery for a boat, used for the accommodation of visitors at a summer resort, within the time contracted for, *held,*that' the measure of damages was the rental value of the boat during the time the owner was deprived of its use in consequence of the breach.

2. -: -: -. If in such case, by reason of the breach of said contract, the owner of the boat lost his time, and was compelled to keep his employes idle at his expense, *held,*that he was entitled to recover for the value of his time, and for the losses incurred in keeping his employes in readiness for work to be done upon the boat under the terms of the contract.

*Appeal from Council Bluffs Superior Cowl.*— Hon. J. E. E. MoG-ee, Judge.

Tuesday, February 2, 1892.

Action on a contract in substance as follows:

“April 12, 1889.

*“D. Chapmcm, Esq., Comcil Bluffs, Iowa.*

*• ‘*‘Dear Sir : —We will furnish you one of our Scotch-marine boilers, — 54 dia., 84 long, made of 60,000 T. S. marine steel shells, 5-16: * * * all the above delivered and set up (you to do all woodwork), — for the sum of one thousand and twenty-three dollars ($1,023.00-). We will allow you three hundred and sixty dollars ($360.00) for your two engines, boiler, heater and inspirator, wheels, shafting and couplings. Hoping to receive your order, we are yours truly,

“Brownell & Co.

“P. S. We guarantee to deliver above in thirty days from April 13. It is understood you are to have ninety days’ option on sale of engine ánd boiler you have. Accepted.

“D. Chapman.”

*505This action is to recover the balance of the contract price, after deducting the three hundred and sixty -dollars for the defendant’s engines, etc. There was a •failure to deliver the boilers, etc., on the part of the plaintiffs for some eighteen days after the time specified in the contract; and the defendant presents a counter- • cl aim because of the failure and for defective workmanship in putting in the boilers. A reply put in issue ■certain allegations of the counter-claim, and a trial by .jury, resulting in a verdict and judgment for the defendant for thirty-one dollars and twenty-five cents. 'The plaintiffs *appeal.*

Affirmed.

*Isaac Adams,*for appellants.

D. *B. Daily, Emmet*& *Finley*and *Ambrose Bur Ice,*■for appellee.

(xrangee, ' J.

I. Lake Manana is a small lake in the vicinity of Council Bluffs, in Pottawattamie county, 1. Contracts: breach: measure of damages. and is a summer and pleasure resort. Boats are used on the lake for the accommodation of visitors, and among them was one known as the “M. F. Bohrér,” belonging to the defendant. The boat was operated on the lake in the season of 1888, and the boilers and machinery contracted for, as known to the parties, were to refit the boat for use in the season of 1889. A breach of the contract on the part of the plaintiff by a failure to deliver within the time is not questioned, and the important question on this appeal is as to the proper measure of damage.

The superior court admitted evidence to show, and instructed the jury on the theory that, the measure of damage was the rental value of the boat during the time the defendant was deprived of its use in consequence of the breach.

The appellants’ thought is that the measure of damage is the “interest of the capital invested in the *506boat.” This latter rule lias something of support in* authority, but it is far outweighed by the number of. cases and the reasoning supporting the rule adopted by the court. In considering the question we must keep-in view the rule, universally recognized, that the damage for breach of contract must be limited to such as. would naturally come within the contemplation of the parties at the time the contract was made. The plaintiff, when it agreed to furnish and set the boilers,, knew they were to be used in operating the boat; that a breach on its part would deprive the plaintiff of its use; and it would naturally contemplate the value of' such use as the injury that would be sustained; and such is, as a matter of fact, the actual damage. The appellants, cite a number of cases, but all except, two, we think, support the rule adopted by the court. *Brown v. Foster,*51 Pa. St. 165, is a case quite similar to this. Repairs to a boat by putting in machinery were to be completed by October first. The work was-not done until December fifteenth. The trial court gave,. as the rule of damage, “that the measure in such a casé-is the ordinary hire of such a boat for the time in question, for the time the plaintiff was in default.” The-complaint in that case of the rule as given was by the-defendant who was seeking damage, and the court said his complaint was without reason. The case, cited is. not authority for the appellants’ position. In *Mining Syndicate v. Fraser,*130 U. S. 611, 9 Sup. Ct. Rep. 665, the interest on the investment in a mill that had. been delayed because of defective machinery was. allowed as the measure of damage; but only in case: the jury found there was no evidence of the rental value of the mill. The case clearly recognizes the rule as to rental value as a correct one. In *Griffin v. Colver,*16 N. Y. 489, is the following syllabus, having full support in the opinion: “Upon a breach of a contract to. deliver at a certain day a steam engine built and purchased for the purpose of driving a planing mill and *507other definite machinery, the ordinary rent or hire which could have been obtained for the use of the machinery whose operation was suspended for want of,, the steam engine may he regarded as damages.” In *Nye v. Alcohol Works,*51 Iowa, 129, this general principle has support argumentatively, hut another rule, because of distinguishing facts, is sustained. The cases of *Allis v. McLean,*48 Mich. 428, 12 N. W. Rep. 640, and *Taylor v. Maguire,*12 Mo. 318, are not in harmony with this view, but they are clearly overborne by the weight of the other cases and the current of authority. The latter case cites, as decisive of the point, *Blanchard v. Ely,*21 Wend. 342. In *Griffin v. Colver, supra,*the *Blanchard Case*is commented upon and explained, and, in effect, it is divested of the authority claimed for it in the Missouri case.

But it is said that the boat in question had no established rental value. By this it is meant that the boat had never been rented. But it will not do to say that because an article has never been rented it has no rental value, any more than it would to say that because an article had never been sold it has no market value. We should assume that an article suitable and adapted for use at a time and place has both a market and rental value, at least until the contrary appears. In *Jemmison v. Gray,*29 Iowa, 537, this court approved an instruction that “the fact, if proven, that twelve thousand, two hundred and thirteen ties could not have been purchased for immediate delivery in the market at the places where said ties were to be delivered on the first day of October, 1869, would not, of itself, establish the fact that there was not a market price for such ties at such time and place.” The holding affords a strong presumption in favor of a market price. A like presumption would prevail in favor of an article having a value for hire at a time and place where such articles are in demand for use. The testimony shows that boats varying in size were rented on the lake during the season, *508both by the day and for trips. This boat had perhaps twice the carrying capacity of any other boat on the lake, and in that respect formed an exception; but the rental value of boats depended on their size and adaptation for use, and it was competent for persons having knowledge of the business and prices paid for other-boats to give an opinion as to the rental value of such a boat as the one in question. It is contended that the method of ascertaining the rental value involves the uncertainties and facts on which profits are excluded as a rule of damage; but we think not. It is true that rental values are generally fixed from a calculation of the profits to be derived from the use, but the rental is a fixed, definite value, agreed to be paid, and the bailee assumes the uncertainties as to the profits.

The appellants say: “For an analogous case to the one at bar, in there being an attempt to prove a rental value to property when the facts showed that the property in question had no rental value, the court is referred to *Coal Co. v. Foster,*59 Pa. St. 865.” The case, as we read it, is without a bearing on the question. The defendant agreed to furnish for the coal company an engine of a particular size and make. There was no other engine of the kind that the company could use. There was a delay in the delivery, and the company was compelled to transport its coal by horsepower, as it had before done. The trial court gave the rule “that the measure of damage for the delay was the ordinary hire of a locomotive during the period of delay.” The reviewing court gave the rule as the difference between the cost of transporting the coal by horse and by locomotive power, but placed its ruling on the fact that the parties knew there was no other engine to be operated on the track of the company, and could not have had such damage in view in making the contract. It will be seen that the eases are, different. If in the case at bar the defendant’s boat had been operated at an additional cost by doing the same amount of work dur*509ing the delay, it would be reasonable to say the damage to him was the difference in the cost. But his is an entire loss of use, and the value of such use is the damage, where it is proximate, and not speculative or uncertain.

II. A part of the counter-claim is for loss of time by men kept in readiness by the defendant to do the 2. -: -: -. part of the work belonging to him in adjusting the boilers and machinery, as provided by the contract. On this branch of the case the court gave the following instruction:

> “5. If you find from the evidence, and under the third and fourth instructions, that there was a contract, as set out, between plaintiffs and defendant, and that plaintiffs were in default in carrying out said contract; and if you find that, by reason of such default, defendant was damaged; and if you further find that defendant was in readiness to carry out his part of said contract at the time specified therein; and that at the time he was in readiness to run and operate his boat; and that the boat was necessarily idle during the period of plaintiffs’ default, by reason of such default-then the defendant would be entitled to recover the ordinary and reasonable rental value of said boat during the time of said default, and such reasonable and necessary amount (if there be any such amount) as he may have been required to pay to any men that he may have employed during said enforced idleness for the purpose of running said boat, if he had any such men in his employ who remained in his employ and idle by reason of such default; and, if you find that the defendant had placed himself in readiness to work upon said boat himself at the time specified in the contract for the furnishing of said machinery, and that he necessarily remained idle during the time of such default, if any, of the plaintiffs, a,nd used ordinary diligence to find other employment for that time, you will then further find the fair and reasonable value of *510Ms services during the period of such default as part of the damage, if any, which defendant sustained.”

Complaint is made of the instruction as stating an erroneous rule of damages, but we discover no error. If; because of the breach, the defendant lost his or the time of his employes for such time and expense, he should be reimbursed. The rule is recognized in *Mining Syndicate v. Fraser, supra.*The instruction fairly protects the rights of the plaintiffs.

A number of other questions are argued, all of which we have examined, and find no prejudicial error. It would serve no good purpose to extend the opinion to present them. The judgment is aeeirmed.