(after stating the facts). The evidence is not sent up with the record, and we cannot consider the exceptions to the findings of fact, dependent upon the evidence.
The first exception for our consideration is to the judgment of the Court at Fall Term, 1883, re-referring the report to the referee, with directions, “ in estimating the damages to the said Jones and Glenn, to consider the machines on the basis of a continued manufacture and sale, at the time of the interference, as set out in finding 17, and also the difference between the market value of the patents at the time of said interference, and the time of making his report, if he shall find that the difference in value, if any, was caused by said interference.”
If there was error in the rule laid down by the Court for the guidance of the referee in this respect, then it must result that there was error in his findings of fact and conclusions of law, predicated upon the erroneous rule.
Finding 17 referred to is as follows:
“ 17. That the defendant Glenn and the plaintiff Jones complied with the stipulations of their said agreements, and were interfered with and stopped from the prosecution of their business and the manufacture of said machines, wrongfully and without cause, by the defendant, Manfred Call.”
The referee finds as a fact, that at the time of interference, they had orders for one hand machine and five power ma*343chines; and that the nsnal average profits realized by them on a hand machine were $200, and on a power machine $300, and he allows $1,700 damages for the loss by reason of their failure to fill these orders. This loss could be ascertained with reasonable certainty, and was properly allowed, but to consider the loss of profit “ on the basis of a continued manufacture and sale,” from the time of interference, October 11th, 1878, to March 5th, 1883, is partly speculative. If a proper measure, why stop at the date of the report? Were the services of the parties of no value in other occupations during this long period ? and if so, should they be considered ? If they were making machines at the time of the interference, as the referee finds, at a profit at the rate of $6,000 per annum, what assurance was there that this would continue, or that they might not make them at a loss of $6,000 the subsequent year ? As was said by counsel: “ Who knows where they would have stopped, or what misfortune would have befallen them, or what other patents would have superseded this one, or whether they could by any possibility have made the same profits on machines, or would have made any ?”
We are referred by counsel for the defendant Glenn, who makes this claim for damages jointly with the plaintiff Jones, to several authorities to sustain the rule of damages insisted upon by them, in which the facts are quite different, and which are distinguishable from this.
In Masterton v. The Mayor of Brooklyn, 7 Hill, 61, the plaintiffs had contracted, for the price of $271,600, to be paid in divers sums, as the work progressed, to furnish certain marble to build a city hall. The plaintiffs thereupon made a contract with other parties, referring to the one entered into with the defendant, to furnish from their quarry the marble required for the erection of the building, in accordance with the terms agreed upon. They proceeded tq deliver a considerable quantity of the marble, when the defendant *344refused to receive any more, though the plaintiffs were ready to deliver it and perform their part of the contract. The contract was for the delivery of so much marble, and it was held that the plaintiffs were entitled to damages for the gains or profits which they would have realized from the performance of their contract.
. That was a contract depending .upon no contingency. It was known just how much marble was to be used; the price was fixed; and the value of the contract was not merely speculative, but capable of being ascertained with reasonable certainty — in fact, in that case, with absolute certainty.
In Oldham v. Kerchner, 79 N. C., 106, the plaintiffs were to grind a quantity of corn at a stipulated price per bushel, which the defendant contracted to deliver, but which he failed to do. Judge Rodman, delivering the opinion of a majority of the Court, said: “We think it is now well established, that the profits which the plaintiff would have made, if the contract had been complied with, is the measure of damages for its breach, in cases like this. There are, of course, cases not within the rule, as where the profits are speculative and incapable of accurate ascertainment.” That was a special contract by which the defendant agreed to pay eight cents per bushel for grinding the com, (instead of the usual toll,) which was to be credited to the plaintiff on a debt which he owed the defendant. That case was unlike this, and does not apply, but the rule laid down in his dissenting opinion by the present Chief Justice, if not applicable to the facts of that case, is clearly applicable to this. He says : “Suppose the plaintiff had brought his action at once upon the defendant’s repudiation of the contract, the damages, it would seem, must be estimated upon the same principle, as when he waits a year or more before doing it. In such case, the estimate must be purely speculative and conjectural, and the anticipated profits certainly could not be recovered. There are many contingencies attendant *345upon all business — the possible loss by fire* the breaking of machinery, death, sickness, and other causes, may interrupt or suspend its prosecution. These cannot be estimated in advance, and profits must be largely dependent upon them. It is for this reason, that the actual, not conjectural loss, constitutes the plaintiff’s claim to compensation.” W e think the authorities cited in the dissenting opinion apply to this •case, and are conclusive.
In Lewis v. Rountree, 79 N. C., 122, the plaintiff contracted with the defendant for a certain number of barrels of rosin at a stipulated price. The defendant had notice that the plaintiff bought to ship and sell in a market other than that of the purchaser. The Court said: “ For the purposes of the present question, the contract of the defendant may be regarded as a contract to deliver the rosin at any usual market, to be received by the purchaser, the purchaser taking on himself the risk, trouble and expense of the transportation.” The market stated was New York, and it was held that the plaintiff had a right to recover what would have been his profits in New York, if the contract had been complied with. The contract was for a specified number of barrels at a stipulated price, and the measure of the profit or loss was the difference between the price to be paid, and the price at which the plaintiff could have sold in New York, deducting the costs, and this was capable of ascertainment with reasonable certainty, and the damages were not speculative. The same distinction will be found to mark the case of Mace v. Ramsey, 74 N. C., 11, in regard to the hire of the boat.
Without expressing any opinion as to the correctness of the rule laid down in the case of Clements v. The State, 77 N. C., 142, as applicable to the facts in that case, we think it has no application to this.
There was error in the rule of damages ]aid down by the Court, upon which the referee based his amended finding of *346damages sustained by the plaintiff and defendant Glenn, by reason of the stoppage of the manufacture and sale of machines. The finding in the original report in this respect, was correct, and the defendant’s exception must be sustained as to so much of the order of re-reference as directs the referee to consider the loss of profit on the manufacture and sale of machinery, on the basis of a continued manufacture and sale, at the time of interference, as set out in finding 17. This also disposes of and sustains the exception to finding of fact “ III,” and conclusion of law “ V,” in the second report of the referee. The additional damages for loss of profits-on manufacture and sale of machines from October llthr 1878, to July 30th, 1883, amounting (as found by the referee) to $26,399.84, must be deducted from the account, and from the judgment, as rendered, for $30,827.59 ($30,827.59 — $26,-399.84,) reducing the amount in the judgment to the sum of $4,427.75.
The other exceptions depend upon the findings of facts and the conclusions of law thereon, based upon evidence-not excepted to, and which is not before us for review, and we can see no error.
The judgment of the Court below must be modified to conform to this opinion. The costs of appeal must be paid by the plaintiff and defendants equally.
Modified.