The question in this case, arises upon the instruc tions given by the Circuit Court, on the trial, to which plaintiffs excepted. The court, after giving certain instructions for the plaintiffs, and refusing others, gave, of its own motion, the following :
“ If the jury find for plaintiffs, the true and only measure of damages is the difference in the market value of the machinery in question, in Chicago, at the time it arrived, and the time when it should have arrived ; and if the jury shall find no evidence on this subject has been given, from which any judgment can be formed, the plaintiffs are entitled to nominal damages only.”
The fourth instruction given on motion of the defendants, is but a eorrollary from this one volunteered by the court, and the decision upon that, disposes of both. The principle announced by the court, in its instruction, and which determined the case, the jury finding nominal damages only, is not the law. The proposition cannot be entertained for a moment, that under a contract to deliver, in a reasonable time, valuable machinery, such as described in the declaration, that the difference in the market value of such machinery, at the time it was, in fact, delivered, and when it should have been delivered, is all the damage the owner of the machinery is entitled to claim. If this was the measure, there could be no great incentive to carriers to perform, promptly, a contract for the delivery of such articles, as they are not liable to deteriorate in a few days or months. As to perishable articles of fluctuating value, as grain, live stock, and such like,'this rule is doubtless the true one, and has been recognized by this court, in the case of the Sangamon and Morgan County R. R. Co. v. Henry, 14 Ill. 156.
'Where the property to be carried and delivered is not of a perishable nature, and is not a common or ordinary object of sale in market, and subject to its fluctuations, but is designed for a special purpose in a special business, the rule is very different, but in both cases, adequate indemnity should be offered the plaintiff for the loss he has sustained. In the first class of cases, the rule established in the case, of the S. & M. R. R. Co. v. Henry, affords such indemnity. In the other class, the true rule is laid down in Green, Adm’r of Stadden, v. Mann, 11 Ill. 613, which was an action for a failure to put certain additional machinery into a mill, which the plaintiff had rented of the defendant’s intestate. This court say, “ the true measure of damages in this case, was the value of the use of that portion of the machinery which Stadden had contracted to furnish, and which, by reason of his failure to do, Mann was unable to enjoy.” _
_ In this case, the inquiry should have been, what was the value of the use of such machinery in such a factory, for the time it was detained ? In other words, what was a reasonable rent for it ? Eor what sum could plaintiffs have hired equal machinery of that description?
As this is an action on the case for a. wrong done, had the plaintiffs notified the defendants for what purpose they designed ' the machinery, and the circumstances of their necessities, they might have brought forward other topics and elements of damage, such as they attempted to show on the trial—that a large number of hands were, of necessity, under pay and idle—loss of promised custom, out of which profits would have been made. In the absence of notice, proof of this kind was properly ' rejected.
If, also, the plaintiff had alleged in his declaration, that he had made valuable contracts, to be executed with this machinery, which would have yielded him profits, the jury, though they would not be bound to adopt any specific contract that may have been made, yet, if reasonable evidence is given, that the amount of profit would have been made, as claimed, the damages might be assessed accordingly. Per Baron Alderson, in Waters v. Towers, 20 Eng. L. & Eq. R., 412.
For the errors we have noticed, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.
Judgment reversed. ■