delivered the opinion of the court.
The original written order was not formally accepted by appellant. But there was sufficient evidence to warrant the jury in finding that a counter proposition made by appellant, by which the machine in question was to be delivered by November 19, 1896, was accepted by appellee. The evidence as to a breach of the contract is uncontradicted. The only questions, therefore, which we have to consider are such as relate to the measure of damages and matters of procedure.
The testimony showed that appellee was, by reason of the breach of the contract, deprived of the use of a sander, the machine in question, for two weeks. It is also claimed as an element of damage, that appellee was obliged to purchase a machine in the market at a price higher than the price agreed upon in the contract with appellant.
No competent evidence was presented by appellee to show the rental value of such a machine for the period of two weeks. But appellant did present evidence in this behalf, and while it is perhaps questionable if it disclosed the true rental value, disconnected with the element of a conditional sale, yet appellant can not complain if the evidence presented by itself be taken as the basis of value. The damages for deprivation of use, measured by this, the only evidence in the case upon this point, could not exceed $25 for the two weeks. Nor was there any competent evidence offered by appellee as to the market price of machines like the one in question at the time of the purchase. It merely sought to show what it had paid; not what it was compelled to pay. Upon this question of value, appellant presented evidence. From such evidence it would appear that the highest valuation would fix the measure of damages in this behalf at $75. There is no evidence in the case which warranted the jury in assessing appellee’s damages at more than the aggregate of these two sums, viz., $100. No special contract of appellee with other's, or probable damage which might result therefrom upon a failure on the part of appellant to carry out its contract, can be said to have been considered by the parties in the making of this contract.
If there was error in refusing to give the instruction asked by appellant as to the right of appellee to recover upon any agreement other than an acceptance of the written order, because of the pleadings, such error was waived by the tender of another instruction by appellant, which the court gave, and by which the right to recover upon such later agreement was recognized, if the jury found such an agreement to exist.
If the appellee shall, within ten days, remit $350 of the amount of the judgment, then the judgment will be affirmed as to the remainder, viz., $L00; otherwise it will be reversed and the cause remanded. In either event, appellant will recover costs.