Architectural Iron & Foundry Co. v. Construction Co. apples are customarily made in July, August and September. "After the sections of the warehouse were in condition for the Storage Company to install the insulation and refrigeration pipes, it would take about a week to equip each section therewith. The Storage Company only expected to pipe two sections for apple storage, and did not expect to have the first two sections ready for use prior to the middle of October, 1906. Although the 1906 apple crop was unusually large, the Storage Company made no contract during that season for storing apples in this warehouse, and no apples or other produce were stored therein in the year 1906. The first use to which these rooms were put was the storage of ice in 1907. "The season price for storage of apples was forty cents a barrel, in lots of one thousand or more, and fifty cents for smaller lots. The average cost of such service was approximately fifteen to twenty cents a barrel. "If the storage company could have filled the two compartments with apples after October 15, 1906, and received said storage prices therefor, and have given the service at said cost, it would probably have made a profit of from four to seven thousand dollars." It will be seen that the referee does not in terms find that the owner suffered special damage by way of loss of profits. The finding is that "if the storage company could have filled the two compartments with apples after October 15, 1906, it would probably have made a profit," etc. (Italics ours). And in the course of his conclusions the referee says: "And the failure to complete them (the first two sections) on time might result in a loss of business which might exceed the $3000 now claimed as liquidated damages. "" After a full discussion of the question, citing many authorities, the referee concludes that the provision of the contract in question is to be construed as one for liquidated damages and enforced accordingly. And the contractor was consequently allowed a recovery of $100 Architectural Iron & Foundry Co. v. Construction Co. per day for the sixteen days delay found by the referee to have been caused by the failure of plaintiff to complete its work within the contract time. Though it appears that the actual work of installing the refrigerating apparatus in each section would take only about a week, as the referee finds, and though the contractor completed the first two sections on October 26, the building was not used for any purpose until January, 1907. The referee finds that the movement of the local apple crop is from September 1 to November 1; making no finding as to apples coming from other sections. The evidence is that apples from the "northwest" arrive in St. Louis for storage from October 15 to the end of November or the first part of December. And we think that it cannot with any certainly be said that the failure to obtain apples for storage during a considerable portion of November, and perhaps a part of December, was due to plaintiff's delay in competing its work. But, however this may be, we are of the opinion that the estimate of profits which the owner, it is claimed, could have made in the proposed business of storing apples, was not the proper criterion for ascertaining damages suffered by the delay in completing the building. Such prospective profits, which might or might not have been realized had the building been completed within the contract time, are wholly speculative and conjectural, and too remote, we think, to form the basis for assessing the damages entailed by the breach of a contract of this character. [See Consumers Pure Ice Co. v. Jenkins, 58 Ills. App. 519, 1. c. 524, 525; McConaghy v. Pemberton, 168 Pa. 121; Hutchinson Mfg. Co. v. Pinch, 91 Mich. 156; Novelty Iron Works v. Oatmeal Co., 88 Iowa 524; Abbott v. Gatch, 13 Md. 114]. It may, perhaps, be proper to consider profits which could probably have been made in arriving at the rental value of the building to the owner (Novelty Iron Works v. Oatmeal Co., supra), but as to this we decide nothing. The loss of profits in the business of storing apples are not such damages as would naturally arise from the breach of this contract, and Architectural Iron & Foundry Co. v. Construction Co. cannot be said to have been in the contemplation of the parties. [See Hadley v. Baxendale, 9 Exch. 341; Fitch v. Telegraph Co., 150 Mo. App. 149, 1. c. 159, 130 S. W. 44; Tirry v. Hogan, 181 Mo. App. 48, 163 S. W. 873; Sedgwick on Damages (9th Ed). Sec. 144, et seq.] The tesimony of an expert witness was adduced by plaintiff tending to show the rental value of the property as a whole, considering the building as a "specialty building." This witness, who had previously examined the property, valued the entire building and the land at from $60,000 to $65,000, and testified that in his opinion the reasonable annual rental value thereof, as a "specialty building," would be ten per cent of the value of the property, or, as he said, $6000 per year; stating that if it were an "ordinary business building" the rental value would not be so large. The referee found, as a matter of fact, that the. "reasonable yearly rental value of a specialty building of this cost," at the time and place in question, was $6500. Under the circumstances we think that such rental value affords a proper basis for assessing the damages presumably suffered by the owner by reason of plaintiff's delay. [See Dangler v. Auer, 55 Mo. App. 1. c. 553; Connelly v. Priest, 72 Mo. App. 1. c. 678; Cochran v. People's Ry., supra. See, also, notes to Wells v. Nat'l Life Assn. in 53 L. R. A., p. 50, et seq., and cases there cited.] Doubtless the building possessed a peculiar value to the defendant owner, making the rental value thereof to the owner greater than its general rental value, or the value to an ordinary renter. [Cochran v. People's Ry., supra, 1. c. 364, 365.] But the expert testimony, supra, undertakes to show the rental value of the building as one especially constructed for a specific use, and which should command a higher rental than would a building erected for general business purposes. And the owner did not, as did the defendant in the case last cited, undertake to show the rental value of the building to it, Architectural Iron & Foundry Co. v. Construction Co. as such, but sought only to show loss of prospective profits in its business. In any event, under the evidence and the findings of fact of the referee touching the matter, we regard the stipulated damages as wholly disproportionate to the damages actually suffered, or to any loss sustained by the owner which may be ascertained with any degree of certainty. And we consequently feel impelled to declare the sum stipulated to be a penalty for the non-performance of the contract, and not liquidated damages, though the contract undertakes to declare such sum to be liquidated damages. Presumably the real object of a stipulation of this character is to secure the performance of the contract. The language of the agreement, and the intention of the parties as gathered therefrom, are, in the first instance, to be given due consideration; but in the final analysis the strict wording of the contract must, if need be, give way to the inexorable demands of justice. [See Basge v. Ambrose, 28 Mo. 39; Thompson v. St. Charles Co., supra.] As said in Buchanan v. Exposition Co., supra, "the evidence of an intention to measure the damages is seldom satisfactory when the amount so stated varies materially from a just estimate of the actual loss sustained." [See, also, Ward v. Haren, supra; Menges v. Piano Co., 96 Mo. App. 1. c. 286, 70 S. W. 728.] In the instant case, as said in Cochran v. People's Ry., supra, "at the rate stipulated, the damages would have amounted in a year to a sum almost as large as the capital invested, or total cost of the building;" though here the delay involved is that in completing only two sections of the building. Under the provisions regarding delays in completing the building to other stages, the stipulated damages might, it seems, amount to $200 or $300 per day. We regard it as clear that the owner could not within reason, have suffered actual damages by reason of such delay in any way commensurate with the forfeiture provided therefor by the contract. Architectural Iron & Foundry Co. v. Construction Co. Among other authorities cited and relied upon by learned counsel for the defendant owner is the case of Thompson v. St. Charles County, supra. The language quoted by counsel therefrom we think has no application to the facts of this case. In the Thompson case the building in question was a court house, the contract price thereof being $37,349. The contract stipulated that the contractor pay $10 per day, as liquidated damages, for each day that he was in default. To hold such sum to be liquidated damages, under the circumstances of that case, furnishes, we think, no authority for the owner's contention under the facts of this case. VII. Since we hold that the referee erred in his conclusions of law in regard to computing the period of fifty-five working days, supra, and hold that under a proper computation of such period the contractor's delay in completing the first two sections of the building amounted to twenty-three days, and since we further hold that the stipulation in the contract as to the owner's damages is to be regarded as a penalty, and not a provision for liquidated damages, and that the damages properly assessable under the circumstances are to be measured by the rental value as found by the referee under the expert testimony, supra, viz., $6500 per year, the owner's damages, for which the defendant contractor became liable, amounted to $415.26 (reckoning the period of delay as 23/30 of a month). Such liability of the contractor to the owner determines the amount allowable on the first counterclaim, as damages suffered by the contractor by reason of plaintiff's default, under the ruling below which is not challenged here. VIII. We are of the opinion that the referee properly allowed interest on the amount which plaintiff is |