Ice Machine Co. vs. McDonald et al. ammonia passing through the coils shall absorb the heat from the brine, but that when the coils are above the brine it only absorbs it from the atmosphere. Also that there were holes in the brine tank, and all causing loss to the machine; that there was an accumulation of hydro-carbon gas in those coils, which prevented the circulation of the anhydrous gas; which occupied the space and absorbed no heat, causing loss in the freezing tank and waste of coal to heat a second time the anhydrous gas in the retort; that the temperature of the brine tank was too high; that the absorber valves were almost entirely closed; that the steam-condensing coils leaked; that the witnesses in charge of the trial for defendants were absent most of the time, and other similar objections, which demonstrate the necessity there was of notice to plaintiffs and common preparation on part of both plaintiffs and defendants for the test. Under the circumstances we do not think that the defendants have suatained their claims in reconvention. Granted, for a moment, that the absorber was too small, the contract price for the machine does not seem to have been agreed upon with reference to anticipated profits, in the event of defect of the machine. The general rule is that such profits are not recoverable as damages, unless it may be reasonably presumed that they were within the intent and mutual understanding of the contracting parties. Regarding the boilers, defendants' obligation was to furnish the required steam power. During the first test it was evident that the steam was insufficient. The third boiler was erected some time after this test; that fact alone shows that the other two were not of sufficient strength. Plaintiffs' witnesses are pronounced in their utterances against upright tubular boilers as steam generators in ice making. Save that the boilers, even after the number was increased to three, do not seem to have been in favor with nearly all the witnesses, there does not appear, after these. boilers (the three), came into use, to have been any considerable objection to them. REPAIRS TO THE MACHINERY. The plaintiffs bound themselves to supply, free of charge, for two years, any repairs of the machinery, on account of breakage. The expenses incurred for repairs on the machine prior to the sale of January, 1892, made by the defendants to the Municipal Ice Com Ice Machine Co. vs. McDonald et al. pany, were allowed by the lower court. The items for repairs made subsequent to the sale were rejected. The evidence as to the last expenses, in point of date, did not bring them within the terms of the contract. It was not shown that they became necessary "on account of breakage of defective material or workmanship," words evincing condition of the sale. Moreover, plaintiffs were entitled to some notice prior to making these repairs. In addition, the property having been sold, the defendants had no claims for repairs made by their vendee. LOSS OF PROFITS-REDUCTION OF THE PRICE. The question of excess of consumption of coal comes up first under this heading for consideration. It is claimed by the defendants that the machine is not capable of making five tons of ice upon one ton of coal. This, we judge, was agreed upon as a measure to be followed in testing the capacity of the machine, and was not agreed upon to operate in the nature of a "royalty" or amount to be recovered in case of deficiency. It would be somewhat in the nature of a "royalty" (not contemplated, as we understand, at the date of the contract), if defendants were allowed a continuous claim for damages, based on the number of pounds of coal consumed in excess of a stated number; it would be continuous, for if they had the right prior to the sale it would continue in some one after the sale. In the brief that view is not argued, and claim for damages on that ground is not pressed. The reduction of the price is the next question to which we desire to give attention. It is true, the right to a reduction of the price, because of the defect in the property sold remains with the buyer, even after he sold it to a third person who became his vendee. That principle was announced in the case of Brown vs. Duplantier, 1 Martin, N. S., 317. The condition here is different. The question is more particularly one of damages than one of defect of the machine. The damages claimed are uncertain and remote and for profits anticipated, which possibly never would have been realized. A similar question was decidedly against the allowing the amount claimed in Howard vs. Stillwall & Pierce Manufacturing Company, 139 U. S. 199. Insurance Co. vs. Assessors. Finally, although the first decision cited (Martin's) inspires confidence in the conclusion reached, we can not avoid the thought that only in a very clear case the vendor of a defective machine, who has sold it for a consideration equal to the price paid by him, is entitled to recover a claim for asserted defects. INTEREST. The plaintiffs claim more interest than allowed by the judgment of the District Court. Under the circumstances of this case, we do not think that the contract, in so far as relates to interest, should receive the close interpretation for which the plaintiffs contend. They prayed originally for interest from judicial demand; this was properly granted without reference to the amendment for a larger amount. The judgment is affirmed. NICHOLLS, C. J., was not present when the case was argued and takes no part. No. 11,917. HOME INSURANCE COMPANY VS. BOARD OF ASSESSORS. Losses of an insurance company are necessary incidents of its business; are con stantly occurring and are provided against in the risks undertaken; and premi ums are collected for the purpose of reimbursement. The reimbursement of reinsurances which are involved in pending litigation between the insurance company and its correspondents and customers does not constitute a proper object of reduction in assessment. Nor is an over-estimate, made of unearned premiums collected and returned to its policy-holders, on account of cancellation of policies, a proper object of reduction. It is natural and to be expected that such estimates will fluctuate, and hence an assessment which is predicated upon an estimate can not be absolutely certain. A PPEAL from the Civil District Court for the Parish of Orleans. Browne & Choate for Plaintiff, Appellant. E. A. O'Sullivan, City Attorney, and Henry Renshaw, Assistant City Attorney, for Defendants, Appellees. 48 451 49 404 49 407 48 451 110 836 Insurance Co. vs. Assessors. Argued and submitted December 4, 1895. Rehearing refused February 24, 1896. The opinion of the court was delivered by WATKINS, J. The object of this suit is to obtain a reduction of plaintiff's assessment, which is as follows, viz.: Real estate $30,000 Money loaned at interest, all credits and all bills receivable for money loaned or advanced, or for goods sold. 98,488 Money in possession, or on deposit, or on hand. 118,022 26,000 $272,510 Total This assessment is for the year 1894. The contention of the defendant is that the assessment is correct, and conforms exactly with a published statement made by the plaintiff on the 1st of January, 1894, which was verified by the affidavits of the president, secretary, and three members of its finance committee, and was published in several daily papers of the city, at that time; while that of the plaintiff is that since the date of the published statement, which is admitted to have been correct at the time it was made, changes and alterations have taken place in the company's assets, entitling it to certain reductions in its assessment, which are as follows, viz.: First-For losses suffered by it and paid after its published statement had been made, sixty-nine thousand four hundred and fiftyfour dollars and fifty-nine cents. Second-Amount of money loaned, reduced from the stated sum of ninety-eight thousand four hundred and eighty-eight dollars to thirty-one thousand three hundred and ninety-four dollars and thirty-seven cents. Third-Amount claimed by the plaintiff for reinsurance involved in suit and issue doubtful, twenty-three thousand dollars. Fourth-Amount of premiums unearned, returned on policies canceled, in excess of estimate, six thousand dollars. Fifth-Amount of Georgia State bonds owned by the company and deposited with the treasurer of that State to secure payment of policy-holders, same having been taxed in that State, twenty-six thousand dollars. The total reductions claimed represent the gross sum of oue hun Insurance Co. vs. Assessors. dred and sixty-five thousand eight hundred and forty-eight dollars and ninety-six cents, on a total assessment of two hundred and seventy-two thousand five hundred and ten dollars, leaving an admitted balance of only one hundred and six thousand six hundred and sixty-two dollars and four cents, or a shrinkage of considerably more than fifty per cent. within half a year. I. Losses are, to an insurance company, necessary incidents of its business. They are constantly occurring, and are contracted and insured against; but premiums are collected for the purpose of reimbursement thereof. These are in the nature of debts of the company, the payment of which is contemplated from the character of its business. The assessment of property is not affected by the amount of debts the taxpayer owes. If they were a factor in the matter of assessment, only people who are solvent could be required to pay taxes. 11. We do not see how the plaintiff can expect a reduction on account of the amount of money loaned being actually less by sixty-seven thousand and ninety-four dollars than what it was stated to have been in the company's sworn published statement. It is in the nature of an estoppel in pais, binding on the company. It was made by the company's officers, possessed of the fullest and most accurate information, and with the evident object of advancing the company's interest financially. That statement is in evidence, and the president and secretary testified that it was "true and correct when made," In the brief nothing is said in reference to this item, and the president states, as a witness simply, that the assessment is incorrectthat the company did not have that much money loaned, but he vouchsafed no explanation of the published statement. But on the cross-examination of the president as a witness he admitted that the ninety-eight thousand four hundred and eighty-eight dollars, which is the item on plaintiff's assessment which embraces "money loaned at interest, all credits, etc.," was made up as follows: |