and dependent in their character, and therefore not necessary to be specially remarked upon.

That the plaintiff was aware of the necessity for compliance with the terms of the contract, as to the time fixed for the delivery of the cars, would seem scarcely to admit of a doubt. It knew that the cars were intended to enable the defendant to make a change or transition from one motive power to another, and a change of one make or structure of car for another of quite a different structure. That such change was not a work of gradual operation or adjustment, but the transition involved, by operation of mechanical laws, the simultaneous substitution of one system for and the displacement of the other; and this, by a public statute, was required to be effected by a certain date. The plaintiff, by its officers, well understood, from the very nature and terms of the contract, that the cars contracted for were intended to supersede and take the place of horse cars, and to enable the defendant to effect the change from horse power to steam cable power, and that the two systems could not be operated together on the same road. There is no question as to the number of cars delivered, nor as to the time when the several lots or parcels were actually delivered; and that all, except the first twenty, were delivered between the 3d of August and the 10th of October, 1892. The primary question is, whether there was a breach of contract, causing damage to the defendant, and if so, how is such damage to be ascertained and measured?

In a contract made of the nature and under the circumstances of the contract in this case, time is of the essence of the contract. And, unless the defendant has agreed for an extension of time for the performance of the contract, or has, by some decisive act, induced or given warrant to the contractor to change his position, or to believe that time of performance would be dispensed with, if a breach in respect to time has actually occurred, the latter must answer in damages for the legal consequences of such breach. Jones v.

United States, 96 U. S. 24. If sufficient facts be shown, the party entitled by the terms of the contract to insist upon strict performance as to time, may be estopped. But in this case, the correspondence in the record would seem plainly to indicate a pressing desire on the part of the defendant for performance, and a full admonition to the plaintiff, that the matter of time was not only important but of pressing necessity to the defendant.

In cases of executory contracts, of the class of the one here involved, the general principle for estimating the damages for breach, is that laid down in the leading case of Hadley v. Baxendale, 9 Exch. 341. That case has been accepted and followed, both in England and in this country, with but few exceptions, as establishing the correct general rule for the measure of damages for breach of contract; though there may be cases, owing to peculiar facts and circumstances attending the contract, where this general rule would have to be applied with some qualification. The rule laid down in Hadley v. Baxendale, and as formulated by the court, may be stated thus:

" Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract, should be such as may fairly and reasonably be considered, either as arising naturally, i. e. according to the usual course of things, from such breach of contract itself; or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. If the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such contract which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances, so known and communicated. But, on the other hand, if these special circumstances

were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract." This rule has been quoted with approval by the Supreme Court of the United States, in several cases, as appears in the cases of Western Union Tel. Co. v. Hall, 124 U. S. 444, 456; Howard v. Stillwell Manfg. Co., 139 U. S. 199, 207, and Primrose v. West. Union Tel. Co., 154 U. S. 29.

The rule has been under review in the English courts in a great many cases; and it was extensively discussed in the case of Cory v. Thames Iron Works Co., L. R. 3 Q. B. 181. In that case the plaintiff claimed damages for the non-delivery at the time specified, of the hull of a floating boom derrick, which they intended to use for working machinery in the discharge of coals; but the defendants were not aware of this intended use, and supposed that the hull was wanted for the storage of coals. It was contended for the defendant, that no damages were recoverable, because the two parties had not in contemplation the same results from the breach; but the court held this an inadmissible construction of the rule in Hadley v. Baxendale; and that the true rule is, that the vendor is always bound for such damages as result from the buyer's being deprived of the ordinary use of the chattel; but that he is not bound for the further special damage that the buyer may suffer, by being deprived of the use of it for some special and unusual purpose, not made known to the vendor when he contracted for the delivery of the article.

While such is the general rule upon the subject, for the measure of damages, the question here is as to the manner of estimating and showing the amount of damages sustained. The defendant insists that it should be allowed to show what amount of receipts and profits, in the way of passenger fares, would have been realized by it, if the cars

had been delivered in accordance with the terms of the contract. But the plaintiff objects to this, and insists that the defendant is not entitled to any such damages, because of the uncertain, contingent, and speculative nature of such profits; that there is no method by which such profits could be ascertained and determined, and therefore the defendant cannot be allowed to show in reduction of the contract price of the cars, a mere probable estimate of profits that would have been made, if the cars had been delivered in due time. And in this contention there is certainly great force, and, indeed, great intrinsic difficulty in dealing with the proposition urged by the defendant. It would seem to be simply impossible to reduce the damages to a certainty, or to any sum approximating certainty, by any attempt to show the number of persons who would have traveled on the cars, or to show the amount of loss sustained by being deprived of the use of the cars to carry persons who desired to be carried.

This question of probable or estimated profits that could have been made if the contract had been performed, is one that has undergone great consideration by courts of the highest authority in the country; and the general conclusion reached has been that such method of arriving at the damages sustained for breach of contract is too uncertain and speculative to receive judicial sanction, except in cases where the possible or probable profits are the very objects of the contract, and are necessarily in the contemplation of the parties.

In the case of Blanchard v. Ely, 21 Wend. 342, the action was for the price of a steamboat; and the defense was that part of the machinery of the boat was unsound and imperfect, by reason whereof considerable delay was caused; and that the loss of the probable profits that would have been made upon the trips that might have been run during the time the vessel was delayed on account of the imperfections in its construction, should and might be recouped in the action for the price of the boat. But the court held that

such contingent profits could not be allowed. That case has been approved by a good many subsequent cases, and has been quoted with approval by the Supreme Court of the United States, in Howard v. Stillwell Mfg. Co., supra. The same principle is fully and clearly stated and made the rule of decision, in the case of Pennypacker v. Jones, 106 Penn. St. 237; and also in the case of The Callaway Mining & Manfg. Co. v. Clark, 32 Mo. 305, and both of which cases are referred to with approval in the opinion of the court in Howard v. Stillwell Manfg. Co., supra.

In the case of Abbott v. Gatch, 13 Md. 314, the action was by the builder against the owner to recover the contract price for building a mill, and the effort was made there to recover estimated profits lost by reason of the plaintiff's failure to complete the mill within the stipulated time for completion. But the court, in a very full and carefully considered opinion, held that such estimated profits were too speculative and uncertain to be made the standard of damages to be allowed by way of recoupment. In that case many of the previous cases upon the subject are reviewed, and the conclusion was fully sustained by authority, that estimated or probable profits for the time that the party was deprived of the use of his mill, could not be shown in proof to reduce the claim of the plaintiff for the contract price.

In the case of Griffin v. Colver, 16 N. Y. 489, a leading case upon the subject, the facts were that the plaintiff agreed to build a steam engine, with boilers, etc., for the defendants, and to deliver it to them on a day certain. He failed to do so, and a delay of one week occurred, during which time the defendants lost the use of certain machinery for the sawing and planing of lumber, which the steam engine was intended to drive. The plaintiff having brought his action for the price of the engine, the defendant sought to recoup their damages for the failure to deliver it at the time fixed by the contract. The court, in a very clear and