Opinion of the Court.

Trott v. Weise, 36 Wisconsin, 439, 448; Hunt v. Selk, 5 East, 449.

V. The plaintiff Humble was allowed, against the objection of the defendant below, to testify to statements made by defendant's bookkeeper, to the effect that the superintendent of the company had forbidden him to show the railroad weighbills of the ore shipped, which were, by the contract, made evidence. There was no evidence that the bookkeeper was authorized to act for the company in any way. He was not an agent in any sense.

VI. Humble was also allowed to testify to the profits the plaintiffs had made on mining the ore they did mine, as evidence of what they might have made on what was left. This was erroneous for the reasons herein before discussed, and also because past profits are no guide to what might have been made thereafter. Masterton v. Mt. Vernon, 58 N. Y. 391.

VII. The witness James Johns was allowed to testify that the superintendent Bennett told him "if we struck a good thing in the bottom level to keep it quiet, and they would call an assessment and buy in the stock; could make some money out of it, and get the stock for the assessment." This testimony could have had no other object than to impeach Bennett, who was a witness in the case. It has no bearing whatever on the issue. Its purpose was to make the jury believe that Bennett was engaged in a dishonest conspiracy to defraud the stockholders, and so affect his credibility. It needs no argument to show that this testimony was not allowable for that purpose, and that it was entirely irrelevant for any other

purpose.

Mr. Edwin F. Uhl, (with whom were Mr. Frank Kutts and Mr. Birney Hoyt on the brief,) for defendants in error.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The claims of the respective parties, as stated by the court in its charge to the jury, are briefly these: Plaintiffs claimed,

Opinion of the Court.

first, an amount unpaid for ore mined in September and October; second, wages which they had paid during certain periods when they were delayed in the prosecution of the work by the fault of the defendant; and third, the profits which they would have made if the defendant had not prevented them from completing the contract. On the other hand, the defendant claimed first, excessive freights paid by reason of a failure on the part of the plaintiffs to produce the ore seasonably; second, damages for a failure to bring out that per cent of the ore which by the contract plaintiffs had agreed to take out of the mine; and third, damages on account of the unskilful working of the mine.

The first claim of the plaintiffs, to wit, for ore mined in September and October, is not disputed. With regard to the second, the court accepted the rule of law agreed upon by counsel for both parties, and, therefore, there is no dispute as to that. The controversy is in respect to plaintiff's claim for profits, and here many questions are discussed by counsel. We shall in our examination of them follow the order in which they are presented in the brief of defendant's counsel. The first objection to any recovery under this claim is that by the very terms of the contract the defendant was at liberty to terminate it at any time, and hence it is insisted that, even if it did so, plaintiffs were not entitled to recover any profits which they might have made had it not been terminated; that, coupled with the right to terminate, was a special provision, to wit, an award of referees for estimating the damages which the plaintiffs should sustain in consequence of such termination, and that no attempt to secure such an award was alleged or proved. To this it may be replied that the contract did not give to the defendant a right arbitrarily to terminate the contract, but only when it determined that the caving system was "prejudicial to the future welfare and development of the mine," and that there is no pretence that it ever made such determination. On the contrary, the defendant set up as a defence that the plaintiffs abandoned the work and thus broke the contract, and that it suffered great damage thereby, and on the trial the whole

Opinion of the Court.

scope of its testimony in this respect was in denial of the charge that it had stopped the plaintiffs from continuing the mining of ore, or in any manner sought to terminate the contract. For aught that appears to the contrary in this record, the defendant, now as ever, believes that the caving system is not only not prejudicial, but the best method of working the mine, and broke the contract with plaintiffs only for the sake of giving it to another party.

A second matter of dispute, and one which bears upon the rightfulness of the conduct of the respective parties pending the work, arises on the construction to be given to the stipulation of July 10. The original contract provided that the ore should contain at least 56 per cent of metallic iron, and that no ore of lower grade should be accepted or paid for by the company. The contention of the defendant is that this stipulation modified the contract so that thereafter all the ore taken from the mine in order to be accepted must contain at least 58 per cent of metallic iron, while the plaintiffs insist that this only applied to the ore from the second and third levels, that from the first level being subject to the provision of the original contract, to wit, 56 per cent of metallic iron. We agree with the plaintiffs in their construction of the stipulation. The original contract was only for removing ore from the first level, the company having, however, the option to extend it to the second and third levels. This stipulation provides for such an extension, but it is made expressly subject to "an exception." The use of the word "exception" indicates that something is taken out from the principal matter provided for in the clause or paragraph in which the word is found, and not that something is taken out of or changed from other provisions in other clauses of the entire contract. It will be borne in mind that this is an independent agreement, made at a subsequent time, though supplemental to and in extension of the original contract. And while for a full understanding of the scope of the obligations created by it, the original contract must be referred to, yet, in determining the import of the language used, it is to be construed as an independent agreement, and when it

Opinion of the Court.

makes an extension of the obligations of the plaintiffs to a new matter anything which is stated as an exception is to be taken as an exception to the obligations assumed in respect to this additional matter. If the intent was to change the stipulation as to the first level, some other word than "exception" would unquestionably have been used. It is unnecessary to refer to extrinsic testimony, of which there was some and of great significance, in order to establish the meaning of this stipulation. For, standing by itself, the fair and reasonable construction is that the stipulation as to the increased per cent was applicable only to the ore taken from the second and third levels, while as to the first level there was no change.

A third proposition of defendant is that "under the facts in this case the damages claimed for loss of profits were too uncertain, contingent, and conjectural to found a verdict upon." Profits which are a mere matter of speculation cannot be made the basis of recovery in suits for breach of contract, while profits which are reasonably certain may be. As said by Mr. Justice Lamar, in Howard v. Stillwell & Bierce Manufacturing Co., 139 U. S. 199, 206: "But it is equally well settled that the profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness, or where from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into." See also Cincinnati Gas Company v. Western Siemens Company, 152 U. S. 200.

Now, there was in this case testimony to show the cost of mining each ton of ore, and also the amount of ore remaining in the first level of the mine at the time the work stopped. From these figures the profit which would have been made by the plaintiffs if they had completed the work of mining all the ore on the first level is a mere matter of multiplication.

Opinion of the Court.

It is true that the cost of mining the remaining ore might differ from that of mining the ore which had already been taken out. But still, proof of the cost of taking out that which had been mined and of the condition of the mine as it was left, furnished a basis upon which a reasonable estimate could be made as to the cost of extracting the remaining ore. Equally true is it that there was no mathematical certainty as to the amount of ore remaining in the mine. Yet, both plaintiff and defendant furnished testimony as to such amount, and testimony which, while not such as to put it beyond doubt, was sufficient to enable the jury to make a fair and reasonable finding in respect thereto. The case is one, therefore, in which the profits are not open to the objection of uncertainty, and certainly not to that of remoteness, for they would have been the direct result of carrying on the contract to a completion, and were obviously within the intent and mutual understanding of both parties at the time it was entered into.

Again, it is insisted that there was no evidence that the plaintiffs were stopped and prevented from going on with the contract. But this is a mistake; while there is no pretence that the plaintiffs were forcibly removed from the mine, there was testimony that they were directed to quit. One of the plaintiffs, John Humble, gave this account of a conversation held in October with the defendant's superintendent, and their action in consequence thereof:

"We worked from the 9th to the 11th, and then Mr. Bennett stopped me again. We had worked half a day, and at dinner time my partner and I were going together to the dry-house and Mr. Bennett came to us and said: 'You boys can stop in that third level altogether.' 'Well,' says I, 'you mean to bring our tools out?' 'Yes,' says he,' you can run what ore you have broken in the first level and quit.' Then we went down and stopped the men in the lower level, and commenced to run out what we had in the first level, and we sent out all the tools in the mine and left. We got out all the ore we had broken on the foot-wall lens; there was no more ore left there to break except the pillar.”