§ 620. TENDER OF PERFORMANCE. 273 tiff was allowed to recover at the contract price for all grain thus weighed by the other.(") The principle upon which these cases rest seems to be, that the whole contract price is to be given, because it is impossible to show with the required certainty any pecuniary outlay which the plaintiff has been saved by the breach. The school must continue in session, with its entire corps of instructors, although a scholar is withdrawn; the office of a weigher of grain must still be kept open, and at the same expense, though part of the anticipated custom fails. It would seem necessary, then, that in order to have the cost of performance subtracted from the contract price the defendant must in a case of doubt be prepared to show affirmatively that the performance would have cost the plaintiff something which he has been saved by the breach, and to prove the amount definitely. § 620. Tender of performance.-* On a contract to transport horses in a canal-boat for a given sum of money, the plaintiffs averred a readiness and offer to perform on their part, and a neglect and refusal on the part of the defendants to furnish the freight, and claimed to recover the entire sum specified in the agreement. But the Supreme Court of New York held that they were only entitled to recover what they had actually lost by the defendants' non-performance, saying: "Suppose the plaintiffs had the next hour been furnished with freight entirely adequate to the voyage at the same sum, they then would have been entitled to the damage arising from detention for that time, but no more. tender and offer to perform is equivalent to performance, but merely for the purpose of sustaining an action; it is not performance, though in one respect it resembles it (*) Lake Shore & M. S. Ry. Co. v. Richards, 126 Ill. 448. A consequentially. It is quasi performance, but it does not regulate the amount of damages.” 1 ** 1 621. Waiver of full performance.-A waiver of full performance, made by the defendant, stands on a different footing from a tender of performance by the plaintiff. It is really the waiver of a condition, and the undertaking of the defendant thereupon becomes unconditional. If the undertaking is not then performed, the plaintiff's loss is the whole benefit which was to come to him by the contract. So where there is an acceptance of partial performance in lieu of complete performance of an entire contract by one party to it, the other being ready to complete it on his part, compensation may be recovered for the whole benefit secured to the plaintiff by the contract. (") Rule of Damages in Particular Cases. 622. Agreements to loan money. Having now stated the general rules applicable in actions of contract, we proceed to give some instances of their application in special classes of cases; and first, an agreement to loan money. Upon breach of a contract to loan money special damages may in a proper case be recovered; but if no special damage is shown, the recovery is only nominal.() For though by the contract the plaintiff would receive the amount of the loan, it would be saddled with an obligation of exactly equal amount, so that the profit of the contract would be nothing. It is clear, however, that a contract to loan money at less than the current rate of interest would give the right to substantial damages. 1 Shannon v. Comstock, 21 Wend. 457, 460. (*) Ellis v. Willard, 9 N. Y. 529; Ashcraft v. Allen, 4 Ired. L. 96. §§ 623-625. FOR CONSTRUCTION OF BUILDINGS, etc. ETC. 275 § 623. To assign or keep valid an insurance policy.Where the defendant sold the plaintiff a house, and agreed to assign the policy of insurance upon it, the measure of damages upon a breach of the agreement is the cost of insurance for the unexpired term of the policy; in other words, the value of the policy. If the house is burned without insurance, the plaintiff can recover nothing for loss of the insurance money,() for he should have insured himself. The defendant assigned a policy of insurance for £1,000, on which he was to pay the premiums, to trustees for his creditors by a deed containing a covenant that he would do nothing to avoid the policy, which was subject to a condition that if the assured should go beyond the limits of Europe, it should be void. He violated this covenant, thereby avoiding the policy. It was held that the measure of damages was the value of the policy at the time of the judgment, taking into consideration the fact that the defendant had covenanted to pay and should pay the premiums thereon.() 624. To work a farm on shares.-In an action for breach of a contract by which the defendant agrees to cultivate a farm on shares, the measure of damages is the profit which the plaintiff would have made if the contract had been fulfilled. () Where such an agreement was broken by the owner of the farm, the fact that the plaintiff got another farm to work was held immaterial. (a) 625. For construction of buildings, etc.—Where upon a contract to construct, the defendant delayed the construction, the plaintiff, who was the contractor, was al (*) Dodd v. Jones, 137 Mass. 322. () Hawkins v. Coulthurst, 5 B. & S. 343. () McClure v. Thorpe, 68 Mich. 33; Hoy v. Gronoble, 34 Pa. 9. lowed to recover the increased cost of construction caused thereby. (") Mitchell, J., said: "Where a contractor in good faith enters upon the performance of a contract, and incurs expense, the employer having notice of that fact, if the employer, either by an order or by negligently failing to perform an essential part to be performed by him, suspends the execution of the contract, upon a resumption and completion of the work it will be implied that all loss, necessarily occasioned by such suspension, of which the employer is at the time notified, shall fall upon him. The contractor may not acquiesce in the suspension in silence, and upon the resumption and completion of the work claim the contract price, and damages for that which may have occurred with his acquiescence. If, however, notice be given of his readiness and willingness to prosecute the work to completion within the time agreed upon, and that its suspension will involve him in loss, we can discover no principle upon which it can be held that the loss must fall upon the contractor in case of a voluntary resumption of the contract. . . . . The plaintiff may recover as damages any direct loss which he sustained by the unreasonable suspension or delay of the work by the employer. The employer must have had notice that the suspension would result in loss, and the suspension must not have been consented to by the contractor." In this case the contractor recovered compensation for injury to tools, and interest for the period of delay upon all moneys invested upon materials furnished for the work, and labor necessary in furnishing them. So where the plaintiff and defendant entered into a written contract, by which the former agreed for a certain sum to be paid him by the latter to do the carpenter's work on a school-house to be built, and furnish and use the necessary materials, and that he would "commence said work and proceed therewith without delay, and in such a manner as not to delay the contractor for the mason work," it was held that this covenant implied (*) Louisville & N. R.R. Co. v. Hollerbach, 105 Ind. 137, 145, 151. § 625. FOR CONSTRUCTION OF BUILDINGS, etc. 277 a correlative obligation on the part of the defendant to have his building in readiness for the plaintiff to perform the condition; and that the plaintiff, having sustained damages from the defendant's delay in having the building ready for him to do the work, could maintain an action to recover the amount of his damages, in which was included his increased expense from the delay. (") * Where a millwright agreed to put machinery into the plaintiff's mill in a good and workmanlike manner, and he did it so unskilfully that the same was of little or no value, and the plaintiff lost the profit and benefit of his mill for a long space of time, and was obliged to alter the machinery, it was held that the plaintiff was entitled to recover such additional sum, beyond the expense of the repairs, as the mill would have been worth to him if the defendant had fulfilled his contract, more than it was worth while the machinery was insufficient, and that the opinions of witnesses might be received. In this case the court apparently meant to give the profits of working the mill.'** In Railroad Co. v. Smith,() the plaintiff was allowed to recover for the delay of trains and for extra men to work a defectively built bridge. Where a contractor does not finish a house in the time agreed, but is afterward allowed to go on with the contract, the owner recovers the value of the use of the building during the delay. () Snell v. Cottingham (4) was an action on an agreement by Cottingham with Snell to build the road of the L. B. & M. Co. by a certain time. The company had leased its line to the T. W. & W. Co., 1 Clifford v. Richardson, 18 Vt. 620. (*) Allamon v. Albany, 43 Barb. 33. () 21 Wall. 255. (c) Korf v. Lull, 70 Ill. 420; Ruff v. Rinaldo, 55 N. Y. 664. |