§ 608.. REDUCTION OF DAMAGE. 253 to Massachusetts, nor the value of his time in the journey. Morton, J., said: "The expenses of the removal were incurred before the contract took effect." In Curtis v. Smith,() the plaintiff, a builder, had agreed to furnish stone and to build some wing walls for the defendant's bakery, to be commenced when the stagings were taken down. Before they were taken down, the defendant terminated the contract. The plaintiff had performed some labor in getting out stone. The court said, that if the intention was that the quarrying should not be commenced till after the staging had been taken down, then the plaintiff could only recover the excess of the contract price over what it would have cost him to perform, but that if the stone was to be quarried previous to the taking down of the staging, the plaintiff should recover the difference between the value of the stone and the value of the plaintiff's services in getting it out. In these cases it appears that the decision turned upon the interpretation of the contract. No allowance was made for mere preparations to perform, because the profits of the contract were given as damages. § 608. Reduction of damage-Rule of avoidable consequences inapplicable.-Attempts have been made to reduce the measure of recovery by showing that the plaintiff made or might have made another contract, to be performed at the same time in which the contract in suit was to have been performed. Thus where the plaintiff sued on a contract for driving piles, the court intimated that the defendant might reduce the damages by showing that the plaintiff could have gotten other contracts, immediately upon the defendant's breach, and might have made a profit from them. (") (^) 48 Vt. 116. (*) Cincinnati, I., St. L. & C. Ry. Co. v. Lutes, 112 Ind. 276. But the better opinion is, as we have already seen,(*) that no such reduction should be allowed. In the first place, it seldom appears that both contracts might not have been entered into and a profit made upon both by the plaintiff. In the second place, the defendant has no claim, legal or equitable, to have the benefit of the second contract. The seeming analogy of contracts of service is not sound, for in such contracts the measure of damages is the loss of the wages of service, and if another employment can be obtained the defendant does not cause a loss of wages. To state it in another way, the profits of a contract of service consist in the difference between the wages that can be earned under the contract and the wages that can be earned elsewhere, and there is no possibility of the plaintiff's obtaining double employment at the same time. In an ordinary contract the profits are measured by the difference between the price to be obtained for the plaintiff's performance under the contract and the cost at which the plaintiff can perform. Accordingly where the plaintiff agreed to barb the defendant's wire at a certain price the defendant cannot reduce the damages by showing that the plaintiff might have procured other contracts for barbing wire.(") So when the plaintiff contracted to clear the defendant's field of stumps for a certain sum in gross, it was held that the defendant could not reduce the damages by showing the amount the plaintiff earned elsewhere;() and where the defendant refused the plaintiff possession of a farm he had agreed to lease, damages could not be reduced by showing that the plaintiff had engaged in hauling at a profit. (4) Where the plaintiff agreed to manufacture steel (") See chapter on Avoidable Consequences. (1) Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325. () Nilson v. Morse, 52 Wis. 240. (4) Wolf v. Studebaker, 65 Pa. 459 § 609. GENERAL PRINCIPLES OF RECOVERY. 255 rails for the defendant at a certain price, and the defendant refused to receive them, the trial court allowed profits made from the sale to another party of rails made from the steel procured to fill the defendant's order, to be subtracted from the profits of the contract with the defendant; but the Supreme Court of the United States, (*) while saying that the rule adopted was correct, evidently had not the point now under discussion before them, and only meant to refer to the general rules as to contracts. The point has been expressly held in Wisconsin. (*) Where, however, the defendant broke his contract to supply a certain amount of advertising to the plaintiff, but the plaintiff filled all the space reserved for the defendant with equally profitable advertising matter, it was held that this fact could be shown in reduction of damages. (©) § 609. General principles of recovery.-In every case of breach of contract the plaintiff's loss is measured by the benefit to him of having the contract performed; and this is therefore the measure of his damages. In estimating the amount of this gain, it is evident that the amount or value of the consideration is not to be regarded. That is merely given by the plaintiff to secure the benefits of the contract. If the contract had been performed, the plaintiff would not have had the consideration. It does not, therefore, enter into the compensation to be recovered. The chief item in the compensation is the value of the property to be delivered or the services to be rendered under the contract. This is what the plaintiff would have had if the contract had been (*) Hinckley v. Pittsburgh B. S. Co., 121 U. S. 264. (Cameron v. White, 74 Wis. 425. (c) Savage v. Medical and Surgical Association, 59 Mich. 400. The court said that no action would lie; but the plaintiff was clearly entitled, at the least, to nominal damages. performed. Since, however, the plaintiff must have been at expense (of money or money's worth) himself in order to obtain the benefits of the contract, the net benefit by the performance of the contract would have been so much less, and that amount must be subtracted from the value of the property or services secured by the contract. The net gain, after this subtraction is made, which is often called the profits of the contract, is the measure of damages in actions of this sort. An apparent exception to the general rule occurs in the case of contracts for the sale of chattels, where in some jurisdictions the plaintiff, upon tender, is allowed to recover the whole contract price. Since, however, the tender must be kept good, and the judgment passes the title in the property from the plaintiff to the defendant, the former is still getting at last only the profits of his contract, and the exception only confirms the rule. 610. Amount of the consideration not recoverable.-The amount of the consideration is not the measure of recovery. (")*So, where the plaintiff had forborne a debt, in consideration that the defendant would build a house and give a lease of it, the value of the lease was the standard.' "If," said Parke, B., "the consideration is to be paid in money, it must be paid; if by the delivery of a thing of ascertained value, that value is the measure of damages." So, where a wagon was transferred in consideration that the defendant would break up certain land, the value of the labor, and not of the wagon, was held to be the measure of damages. So again, if the rent of mills is to 1 Strutt v. Farlar, 16 M. & W. 249. 2 Ellison v. Dove, 8 Blackf. 571. (*) Manuel v. Campbell, 3 Ark. 324; Norddeutschen F. V. G. v. Bertheau, 79 Cal. 495; Pierson v. Spaulding, 61 Mich. 90; Singleton v. Wilson, 85 Tenn. 344. 610. AMOUNT OF CONSIDERATION NOT RECOVERABLE. 257 be paid in repairs, the measure of damages is the value of the repairs agreed to be made.1 ** On the same principle, where the plaintiff agreed to work for a man till she was 21 or married, and he agreed to leave her in his will a portion of his estate equal to that left to any of his children, it was held, in an action against his executors, that the measure of her damages was the value of the portion promised, and not the value of her services.(*) So for breach of an agreement to take care of a hedge till it should be sufficiently grown to answer for a fence, the measure of damages was held to be the value of the labor and services thus undertaken, and not to include the additional value the hedge would acquire by its natural growth.() In Homesley v. Elias () it appeared that the plaintiff sold yarn to the defendant to be paid for in cotton, the deliveries to be made before a certain day. Before that time the defendant refused to complete the contract. The plaintiff had then delivered more than enough yarn to pay for the cotton delivered. that the plaintiff's damages were the value at the time of refusal of the cotton not delivered, less the value at the limit of time fixed for delivery of the yarn not delivered. Where one agreed with a surviving partner that he would pay the firm's debts, if the partner would apply the firm's property to his debts, it was held, in an action brought on this agreement by the surviving partner, that the measure of damages was the amount the other should have paid.() The measure of damages in an action by the father to recover the earnings of his minor 1 Baldwin v. Lessner, 8 Ga. 71. (a) Frost v. Tarr, 53 Ind. 390. () Gantz v. Clark, 31 Ia. 254. (75 N. C. 564. (4) Weddle v. Stone, 12 Ind. 625. VOL. II.-17 It was held |