completion of the mill was caused by the contract between the defendant and Millholland, no recovery could be had for such delay; 5, 6, 7. That the plaintiff could recover for certain extra machinery and work erected under the direction and request of the defendant. The instructions prayed by the defendant were: 1, 2, 3, 4, 7. Substantially, that no recovery for extra work could be had under the contract; 6. That the defendant may recoup in damages a fair and reasonable rent for the time the defendant was deprived of the use of the mill, if the delay was owing to the fault of the plaintiff. The court granted the prayers of the plaintiff, and refused those of the defendant. Verdict for the plaintiff for four hundred dollars. Afterwards the defandant moved for a non pros., and for a rule upon the plaintiff to show cause why a non pros. should not be entered, and judgment, if any, be entered for costs alone, he insisting that no judgment for four hundred dollars could be rendered in the superior court. The court overruled the motion. The defendant appealed from the motion and the order overruling the motion.

G. M. Gill, for the appellant.

I. N. Steele, contra.

By Court, TUCK, J. The plaintiff, the present appellee, contracted to put up a mill, guaranteed to grind the best wheat flour, with the necessary bolters, elevator, and rubber, for the sum of five thousand dollars. In the contract in this clause: "No extra charges to be made unless a written agreement be made and attached to the contract." In the progress of the work alterations were made and portions of the mill put in, as the plaintiff contends, not embraced by the terms of the contract, without the parties availing themselves of the above provision; and one of the questions in the cause is, Can the plaintiff demand additional compensation beyond the sum stipulated for the entire work? The claim is placed on the ground that the defendant interfered with the work, by directing or authorizing these departures from the original design, and in some instances, against the opinion of the plaintiff. Whether these circumstances can aid him must depend on the object of the parties in inserting this clause, and the interpretation we are to put upon the entire agreement.

It is manifest that the object of such provisions in building contracts is certainly as to the terms on which the work is to be done, in order that the parties may know how much one is to

pay, and the other to receive, for such changes and alterations as may be made. Neither has a right to change the plans without the other's consent; but as this may be done by agreement, when alterations are specified in writing and attached to, they become parts of, the original contract, and the builder may recover for such work according to the agreement in that behalf. The present plaintiff undertook to erect a mill, a work requiring practical knowledge and skill in that branch of the mechanic arts, on which, it is to be presumed, the defendant relied in giving him the contract. It was his right, as well as duty, to determine what was necessary to complete such a mill as he had contracted to put up; and as to all matters not mentioned in the agreement, or laid down on the plans, he was solely responsible. He was under no obligation to receive suggestions from Abbott; on the contrary, if he deemed them unsuitable or impracticable, or likely to cause increased expense, he should have resorted to the contract, as containing all that he was required to perform, and insisted on having the additional work brought within its terms, as well for his own protection as to prevent misapprehension on the other side.

The words in question protected Abbott against extra charges. They cannot mean that no extra charge was to be made for what the contract required, because the very office of that was to define what was to be done, and to fix the price. We take the true construction to be, that there was to be no charge for extra work, that is, for any work beyond that stated in the contract, no matter what it might be, whether alterations in the plan or mode of doing the work, or additions or improvements in and about the completion of the mill, unless reduced to writing and attached. It makes no difference if the extra work was ordered by the owner, provided it was on the mill. As we have said, the builder need not accede to the owner's views; he may refuse or he may assent, under the protection afforded by this clause. If extra work be done without it, the right to additional compensation is waived. Any other interpretation of such words would make them valueless to the parties. The appellee's view, if adopted, would deny to the owner the privilege of suggesting any, the most trivial, alteration of the work, without incurring the risk of opening the whole contract; then the written agreement would be substituted by a mere quantum meruit claim for work and labor, to be afterwards adjusted upon uncertain oral testimony. And in many cases, his mere presence on the premises might subject him to extra charges, on the ground of

acquiescence in alterations made by the builder, when it might well be supposed there was to be no additional charge, because not previously attached to the contract: Watchman v. Crook, 5 Gill & J. 263, 264; Berry v. Thompson, 6 Har. & J. 89; Miller v. McCaffrey, 9 Pa. St. 245.

We cannot distinguish this agreement from that passed upon in the case of Baltimore Cemetery Co. v. Coburn, 7 Md. 202. The same considerations apply to both. To hold a party liable in the face of such a stipulation would be to turn his plain words into something that he had not assented to. In Miller v. McCaffrey, 9 Pa. St., 245, extra work was not allowed for, though done with the owners' knowledge, and without objection, and afterwards accepted by them. There the contract did not require the agreement for extra work to be in writing, but the terms were very explicit, viz.: “At any time during the progress of the building, the committee reserves the right to direct any alteration or variation from the original plan, so as not to vary therefrom in any very essential manner, so as to cause any material extra expense to the building; but any alteration suggested by them shall be made, and the expense, if any, shall be agreed upon at the time; but no extras shall be allowed under any pretense whatever." Extra work was done, with the knowledge of the committee, who made no objection, and some of them approved of the plaintiff's acts. The court held that in the face of such an agreement, affording ample protection to both parties, the action could be maintained only "by clear and satisfactory evidence of a new, distinct, and independent contract, authorizing the alterations, and expressly agreeing to pay for them a certain fixed price, or what they may be reasonably worth;" and that if the contract was to be thrown open because of the presence of the committee while the work was going on, without objection to the changes, though often conversing about them, and because of their acceptance of the work, it would be useless to put such agreements in writing. This may appear to be a harsh construction where the owner has received the benefit of the work; but the law is well settled that contracts are to be interpreted and enforced according to the fair import of their terms, without reference to the hardships that may fall on the parties: Wagner v. White, 4 Har. & J. 566; Barney v. Ins. Co., 5 Id. 143; Dorsey v. Smith, 7 Id. 345. If persons voluntarily express themselves in writing, they must be bound by the language employed: McElderry v. Shipley, 2 Md. 25 [56 Am. Dec. 703]. The law presumes that they understand the import

of their own contracts, and to have entered into them with knowledge of their mutual rights and obligations. And if, in a case like this, one party omits to have the changes reduced to writing, they must, in view of the rights of the other, be deemed to have been made with reference to the contract price, unless there be proof of an express waiver of that clause of the con tract, or a promise to pay for the extra work: Hort v. Norton, 1 McCord, 22; Wilmot v. Smith, 3 Car. & P. 453; Dorsey v. Smith, 7 Har. & J. 345, 363; Howard v. Wilmington etc. R. R. Co., 1 Gill, 311; Coates v. Sangston, 5 Md. 121; Munroe v. Perkins, 9 Pick. 298 [20 Am. Dec. 475].

It follows, from these views of the agreement, that the court below erred in disallowing the defendant's objection to the evidence of work claimed as extra or additional, and also in granting the plaintiff's fifth, sixth, and seventh prayers; and this ruling renders it unnecessary to pass upon the first, second, third, fourth, and seventh prayers of the defendant relating to the same points.

The defendant having made a claim by way of reduction of damages for losses sustained by not having had the use of the mill, according to the contract, prayers were offered on both sides on that subject which we are now to consider. In many cases a defendant may recoup for damages resulting from the plaintiff's failure to execute his contract. Formerly a crossaction was deemed to be the proper remedy; but now the law is settled that the matter may be urged by way of defense. We do not say that a defendant can always recoup where he could sue as plaintiff, but that principle on which it has been allowed will apply here: 2 Parsons on Cont. 246; Sedgwick on Damages, c. 17; Beall v. Pearre, 12 Md. 550.

Where unliquidated damages are claimed, whether by the plaintiff as his cause of action, or by the defendant in reduction of the verdict, it is very difficult to apply a rule that will do full justice to the parties; the most that courts can accomplish is to approximate that result with the limited and imperfect aids that the parties may furnish. As a general proposition, one who has so suffered is entitled to be placed, as nearly as money can do it, in the same plight as if the contract had been faithfully executed. But there are many transactions in which this is wholly impracticable, because of the impossibility of determining, after the occurrence, what might have happened under a different state of things. The books furnish numerous examples, in which trials at law have come far short of meeting the demands of jus

tice, though the result could not have been different in the particular cases without letting in a most loose and uncertain measure of damages, and very dangerous, because liable to be abused.

The law, for the purpose of preventing wrong and injustice, and to make compensation as far as regard for truth and certainty would allow, has laid down certain rules for the government of courts and juries, and among these we find that speculative profits are too remote to be included in the estimate, because they are not presumed to have been contemplated by the parties at the time of making the contract. But such damages

as are incidental to and caused by the breach, and may be said to flow reasonably and naturally from such breach, and are not accidental or consequential losses, will be allowed; and whether they are of the one character or the other must depend on the nature of the transaction, and in cases of building contracts, on the objects and uses for which the structure may be designed. The reason stated for discarding expected profits as an element in the estimation of the loss is, that the party charged is not preimed to have made his contracts with reference to such results, mless the special circumstances are communicated to him at the time; but where they are such as he ought to have contemplated, as a reasonable and profitable result of his breach, they will affect the measure of damages in favor of the complaining party. Ap plying these rules, there is no difficulty in disposing of the prayers under consideration. Here, the contract was to build and put up a mill for grinding flour, by a named day, which was of the essence of the agreement: Watchman v. Crook, 5 Gill & J. 239. It is a necessary presumption, that the plaintiff knew that his work was intended for use and profit, by rent or otherwise, and that in contracting to complete the mill by a certain day he acted with reference to these purposes as important to the defendant, and that he contemplated the loss of such profit as a reasonable and probable result of a failure on his part. He is thereby brought within the principles we have stated, as fairly deducible from adjudged cases of the highest authority.

But the inquiry here is, What standard of value for the loss of time shall we apply? We cannot adopt any estimate of profits, that Abbott might have realized from working the mill, because these were merely speculative, depending on the quantity of flour it might grind, the fluctuations of the market as to prices of flour and grain, and the remote contingencies of his being able to procure wheat, labor, and fuel, as well as the continuance of

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