*419 By the Court.
Lumpkin, J.delivering the opinion.
We cannot doubt the'propriety of remanding this cause for a re-hearing. We propose to glance, cursorily, at the prominent points made by the bill of exceptions.
[1.] All the material portion of the machinery was repaired and carried home by the owner; two spinning frames, ■only, being left unfinished. The value of the machinery thus repaired and received bach, if the testimony of the witnesses is to be credited, made the cotton factory to which it belonged, worth to its owner, §12 40 per day net pofits. The propelling machinery was not dependent, of course, upon the spinning frames. Now concede that Mr. Rogers received the propelling machinery under the expectation that the spinning frames would be repaired also, and they were not, is that a good reason why he should pay nothing for the propelling machinery ? Did he derive no benefit from that ■which was finished ? And shall he keep it and not pay for fit ?
[2.] Wo do not think the Court erred in allowing evidence .•as to the cost of the transportation of the machinery to and from Columbus, at least'as to the two spinning frames. They were transported to the shop of the company, under a contract, to be impaired. If they were not, this useless expense was incurred by Rogers, in consequence of the failure of the, company to perform their undertaking. It, as well as the damage done to' the spindles while exposed at Columbus, constitute legitimate items- of damage for the violation of the contract.
[8.] As to all that portion of the testimony which consisted of the acts' and declarations of Crockett, we consider the rule to be this: it should have been submitted to the Jury to find, in the first place, whether or not the proof showed that Crockett acted as the agent of the company in making the contract ? If so, then all he did and said in the execution of his agency, was admissible evidence, and bound his princi*420pal; otherwise, it should have been excluded from their conrsideration in making up their verdict.
£4.] That the verdict was contrary to the evidence as to the time the machinery was detained, there can be no doubt. According to the testimony of some of the witnesses, it was-received at the time stipulated. By no interpretation of the proof can it be shown that it was delayed two months after the time stipulated for its completion; and yet, 60 days is assumed as the basis of the calculation for damages. Giving to the plaintiff the longest time proven, and the highest esti•mate as to profits, and the injury sustained, instead of being ■upwards of $1700, could not have amounted to $1200. On this branch of the case, we cannot doubt that the verdict was strongly and decidedly against the weight of evidence.
[5.] But was the basis upon which this judgment was rendered maintainable ? It was founded almost exclusively upon speculative profits; it was a calculation upon conjectures, and not upon facts. We will not say that there is no case where the allowance of damages upon expectant profits is .inadmissible ; but we are quite sure that this is not one of them; the gains were too remote and uncertain, depending upon a variety of contingencies, the failure of any one of which would subvert the whole computation. Who will undertake to say and swear that a cotton factory in Georgia will pay-expenses, much less yield a certain amount of net profits, for any given period ? What a conflicting- opinion and experi.ence would such a question elicit! We are inclined to think • that this whole testimony, as to the gains which the plaintiff would have derived from this contract, had he -not boon prevented from realizing them by the delinquency of the defendant, should have been rejected as too contingent and speculative, and too dependent upon the fluctuation of markets, the ■ chances of business and other casualties,, as to enter into a safe or reasonable estimate of damages. And in lieu thereof, a calculation should have been made of the loss actually sustained by the hire of hands, the interest on the investment, .-and solid data like these, as -the eriteria -of loss by the deten*421■tion of the machinery. We are aware that neither the English nor American Courts have been uniform in their adju■dications upon this doctrine. Generally, the earlier decision» •in both countries concurred in denying profits as any part of •the damages to be compensated, and that whether in eases of • contract or of ¿orí. (2 W. Blackstone, 1078; 1 Exchequer R. 849 ; 11 Penn. S. R. 127 ; 1 Gallison, 314 and 325; 3 Dall. 338 ; 2 Wheat. 327 ; 3 Ib. 346 and 558; 5 Ib. 358; 17 Pick. 543; 1 Howard, 28; 21 Wend. 342; 3 Barb. S. C. R. 424.) But some of the more recent cases have doubted whether some of the precedents cited have not pushed the rule beyond the true line. (7 Hill, 62; 6 Barb. S. C. R. 419; 17 Ala. R. 689.)
Chancellor Kent says, that speculative profits are not allowed. (Vol. 11, 5th Ed. p. 480, in notes.) And perhaps ■■the fable of the milk-maid in the spelling book, is the best illustration as to what is meant by this phrase.