§ 632. NOT TO ENGAGE IN BUSINESS. 283 a sea-wall, built by the defendant, had not been constructed according to his agreement, and he had promised the plaintiff to rebuild it, but failed to do so, and in reliance on such promise, the plaintiff himself delayed rebuilding it, the loss of the use of the wharf, during the period of delay thus caused, was held the direct and immediate consequence of the defendant's failure, for which he was liable. (") Where the grantee failed to build a wall on his own land, according to agreement, the grantor's measure of damages is not the cost of the wall, but the difference in value of his own adjoining land with and without the wall. (1) § 632. Not to engage in business.--The measure of damages upon breach of a contract not to engage in business is so difficult to estimate that the damages are usually liquidated. If no damages are stipulated in the agreement the plaintiff can, of course, recover only such as he proves he has sustained by the breach.() Where the defendant by breach of the contract so increased the demand for labor that the rate of wages was increased, it was held that the plaintiff might recover compensation for the increased wages he had to pay, and also for his loss by reason of workmen enticed away by the defendant. (d) In Peltz v. Eichele () the defendant had covenanted not to manufacture certain articles. It was said that what the defendant had gained might be evidence of what the plaintiff had lost, but the plaintiff must show that he has suffered the loss, as, for example, in the de (*) Willey v. Fredericks, 10 Gray 357. () Wigsell v. School, 8 Q. B. D. 357. (†) Jenkins v. Temples, 39 Ga. 655; Burckhardt v. Burckhardt, 36 Oh. St. 261; 42 Oh. St. 474. (4) Whittaker v. Welch, 2 Pugs. 436. (*) 62 Mo. 171. crease of his business, the stoppage of his factory, etc. In an action against a physician for breach of an agree ment not to practice, the measure of damages was held to be such sum as the jury might find to have been the value of the practice which the plaintiff lost between the time when the defendant resumed practice and the time of instituting the suit.(*) Where a combination is formed to raise or depress the price of an article, the measure of damages for the breach of the agreement is the difference in price which would have been produced by the combination. (") 633. For exclusive agency.-In Smith v. Weed Sewing Machine Co.() the company had made Smith its agent, and had agreed not to sell any machines in his district. It sold several. It was held, that under a count for money had and received, Smith could not recover in addition damages for breach of the contract. The defendant, a manufacturer of organs, agreed to sell the plaintiff organs, and that the plaintiff alone should sell organs at retail within a certain territory. The plaintiff went to expense to advertise and sell organs, and sold or could at once have sold a certain number of organs, which he ordered of the defendant. The defendant re fused to supply them. It was held, in the first place, that no damages could be recovered on account of profits expected from future sales; for not only the uncertainty of the trade, but also the fact that the defendants could not prevent, and evidently were not expected to prevent the entire sale of the defendant's organs, made the general profits of the agreement entirely conjectural. The plaintiff was allowed, in the second place, the general expenses (") Warfield v. Booth, 33 Md. 63. () Havemeyer v. Havemeyer, 43 N. Y. Super. Ct. 506, $634. ASSIGNMENTS OF JUDGMENT 285 for advertising and sale of the organs, under the principle that when the expected profits of an agreement cannot be recovered the expenses of the plaintiff in preparing to do his part may be recovered. In the third place, the plaintiff was allowed the profits on the sale of so many organs, as it was shown with reasonable certainty that he had sold or was on the point of selling.(*) § 634. Assignments of judgment.-* In the case of an assignment of a judgment containing a warranty that the sum specified remained due and unpaid, when in fact no judgment had ever been entered up, the Supreme Court of New York held, in an action of covenant, that the measures of damages was not the amount recovered a stated in the assignment of the judgment, but the amount of property owned by the judgment debtor, and which might have been taken in execution intermediate the time of assignment and the commencement of the suit.' It is worthy of notice here, that the amount of consideration or value paid did not appear on the face of the assignment, and that it is not stated in the report whether the evidence in regard to the amount of property owned by the alleged judgment debtor came from the plaintiff or defendant; although, as the declaration is stated to have averred that the plaintiff had property enough to satisfy the demand, the pleader seems to have thought that, regularly, it should have come from the plaintiff. It would seem that, prima facie, either the amount appearing to have been paid for the judgment, or the amount recovered by it, should be the measure of damages. If the assignment were treated as a chattel, then 1 Jansen v. Ball, 6 Cow. 628. (*) Sterling O. Co. v. House, 25 W. Va. 64; acc. Taylor Mfg. Co. v. Hatcher Mfg. Co., 39 Fed. Rep. 440. the price paid would again be the rule, subject to the plaintiff's right to show that the whole amount could have been recovered, and then for its value beyond the price; and also subject to the further right of the defendant to show that, owing to the judgment debtor's insolvency, it was worthless. If the analogy in the case of sheriffs were adopted, then the amount recovered by the judgment would be the prima facie measure, subject to the defendant's right to reduce the sum by showing that, owing to the judgment debtor's circumstances, its whole amount could not be collected.** It is well settled that the measure of damages is not the consideration. So where, in assigning a judgment, the defendants covenanted that there was then due a certain sum, and that they would not discharge the judgment, and it appeared that they had previously discharged one judgment debtor, it was held that the plaintiffs could recover the difference between the present value and the value it would have had if that debtor had not been discharged. In this case the price paid was only ten per cent. of the judgment.(*) Where one of three judgment debtors had been released, it was held, in an action by the assignee of the judgments against the assignor for breach of covenant, that, neither of the others having been released, in the absence of proof that the judgment was wholly valueless, the assignee could not, while retaining it, recover as if there had been a total failure of consideration. He would be entitled in such a case to the expenses of attempting to enforce the judgment against the released debtor.(*) § 635. Alternative contracts.-Contracts are sometimes in the alternative, that is, the promisee agrees to perform Bennett v. Buchan, 61 N. Y. 222. () Weston v. Chamberlain, 56 Barb. 415. $636. MISCELLANEOUS CONTRACTS. 287 one of two things; for instance, to deliver an article or to pay a sum of money. This usually gives him his election, and the damages are measured by the rule most beneficial to him. The whole subject of alternative contracts is fully discussed in an earlier chapter. (*) It is important, however, to notice that a contract which was originally in the alternative may have ceased to be so, through the exercise of the option by one party or the other. As soon as the option is exercised, and one alternative chosen, the other falls entirely out of the case; and, if the contract is thereafter broken, the damages. are to be determined as upon an ordinary contract to do what has been chosen by the party exercising the option. § 636. Miscellaneous contracts.-The defendant agreed to furnish to the plaintiff, the publisher of a country newspaper, "patent outsides," containing no more than three columns of advertisements. The "outsides" furnished did, in fact, contain more than three columns, and the plaintiff claimed compensation for the excess at his own advertising rates. It was held, however, that the measure of damages was the difference between the value of "outsides" with three columns of advertising and the value of those furnished. (b) The defendant agreed to publish a book written by the plaintiff, an unknown author. Upon breach, it was held that, notwithstanding the difficulty of ascertaining the amount of loss, compensation must be given for the plaintiff's loss in not having his book published. () It would seem that the court should have allowed the cost of securing another publisher. This would be the same as the difference between the value of the book in manuscript and after (*) §§ 421-424. () Baltzell v. Moritz, 85 Ala. 123. |