WOOD et al. v. JOLIET GASLIGHT CO., 111 F. 463

GROSSCUP, Circuit Judge. The completion of the holder by the first of December, 1899, was, in our opinion, of the essence of the contract; and if the plaintiffs-in-error failed in this respect, and such failure resulted in damage to the defendant-in-error, such damages could properly be recouped against the unpaid balance of the contract price. About this there seems to be no question. The principal questions in the case concern the proof, and the measure of damages.

No evidence was introduced respecting damages, other than that the holder constructed was useless to the defendant-in-error except during the months of December and January; and proof tending to show that but for the defendant-in-error’s anxiety to have the holder ready by the first of December, the contract could have been let at a figure considerably less, the saving amounting probably to three thousand dollars. We do not deem it necessary to inquire whether the fact last stated could be made the basis of recovery or recoupment.

We think the. first fact, viz.—that the holder was useless except during the months of December and January— discloses in law a definite measure of damage. The amount allowed by the Circuit Court is within a few dollars of a year’s interest at five per cent., (the legal rate in Illinois), upon the contract money already paid and the amount invested in the land upon which the holder was erected.

Whether the computation should not have been made upon the contract price, with the land investment ádded, is a question we need not pass upon, for the defendaut-in-error is not complaining; nor need we ascertain that this was the measure upon which the Circuit Court actually made the calculation. It is sufficient to support this judgment that the law justifies such a rule of damages, and that the record furnishes the facts to which it can be applied. It seems plain to us that the defendant-in-error was entitled to the loss it suffered by reason of the plaintiffs-in-error’s default.

In the absence of special damages, such a loss seems correctly measured by the investment tied up on account of the breach. It is of no consequence, that immediately after the completion of the holder it may have been used for storage purposes. The point is, that it was not needed for that purpose, and that, therefore, owing to the plaintiffs-iti-error’s default in the matter of time of completion, the investment represented by the holder was premature to the extent of an entire year.

Unless this rule is applicable, the defendant-in-error would have been put, without his fault, and by the failure of the other party to the contract, to a loss without a remedy. The rule we have adopted is in our opinion sufficiently supported in the case of Mining Syndicate v. Fraser, 130 U. S. 611, 9 Sup. Ct. 665, 32 L. Ed. 1031. The judgment will be affirmed.