publication. In Cramer v. Metz, (*) the defendant had agreed to furnish goods to be manufactured; then to buy the manufactured goods and to pay for them ten per cent. beyond the costs and expenses. The defendant only furnished part. It was held that a charge was sufficiently favorable to the defendant which directed the jury to allow the plaintiff ten per cent. on the goods which should have been furnished; but that the ten per cent. which the plaintiff was to receive should be included as part of the expense of manufacturing, thus reducing the percentage ten per cent. thereon. The defendant guaranteed that the plaintiff should realize ten per cent. profit on certain goods; but, in fact, the goods, though sold at the market price, were sold at a loss. The measure of damages was the difference between the cost of the goods, plus ten per cent., and the amount realized from the sale of them. (b) A contractor gave a bond to the plaintiff for the performance of his contract, and upon breach of contract the plaintiff had the right to complete the work; this right the plaintiff exercised. In an action on the bond, the plaintiff was allowed to recover the increased expense of the work, and damages paid for injuries naturally and necessarily incurred by workmen in the course of the work. (©) The plaintiff, a water company, furnished hydrants to the defendant town, and agreed to furnish a certain amount of water; the supply fell short. In an action for the agreed price, the town was allowed to recoup the difference between the value of the water which should have been furnished and of that actually furnished. (4) Upon the (") 57 N. Y. 659. () Morris v. Barrett, 24 Oh. St. 201; acc. of a guaranty to sell the plaintiff's property at a certain price, Dunn v. Mackey, 80 Cal. 104 () Newton v. Devlin, 134 Mass. 490. () Wiley v. Athol, 150 Mass. 426. § 636. MISCELLANEOUS CONTRACTS. 289 breach of a contract to store fruit at a certain temperature, the measure of damages is the diminution in value of the fruit.(*) In the case of Duckworth v. Ewart, () Messrs. Ratledge, the owners of building land on which they were erecting houses, having become unable to proceed with the building, and having mortgaged it to a building society for £4,300, and in lesser amounts to three mortgagees, of whom the plaintiff was one, entered into an indenture with the plaintiff and the other mortgagees and other creditors, in which it was agreed that the plaintiff should have power to sell the land, subject to the mortgage to the building society, and out of the proceeds pay the expenses of the trust and the other mortgages, and the surplus to the owners. It also empowered the plaintiff to enter on the land and finish the buildings, and also to raise any sum not exceeding £5,000 for carrying into effect the trust of the indenture by a mortgage on the premises, which should have priority over all the other mortgages except that to the building society. In the same instrument the defendant covenanted to execute all assurances for enabling the plaintiff to execute the trusts of the deed. The plaintiff entered on the execution of the trusts and incurred an expense of £1,100 on the land. He also arranged with the building society to accept £4,100 in satisfaction of their debt, and contracted with certain persons for a loan of £5,000 on the land, by a mortgage which was prepared, and was agreed to by all parties. At the last moment, when the parties had met to close the transaction, the defendant refused to execute the mortgage; (*) Hyde v. Mechanical Refr. Co., 144 Mass. 432. So of contract to keep chickens frozen : Beeman v. Banta, 118 N. Y. 538. () 2 H. & C. 129; 33 L. J. N. S. Ex. 24. VOL. II.-19 whereupon the building society, acting on a power of sale contained in their mortgage, foreclosed it, and sold the property at a forced sale, for £4,510, which was exhausted in paying their debt and expenses. Martin, B., was of opinion that, in addition to the costs of the proposed mortgage, the defendant was liable for the difference between £5,000 and the value of the land as building land, such as it was contemplated as being by the indenture, or at all events that he was entitled to £900, the residue of £5,000, after paying £4,100, agreed to be taken for the first mortgage. But the majority of the court, per Pollock, C. B., and Bramwell, B., held that the plaintiff was entitled to recover only the costs of the abortive mortgage. In Minnesota, the measure of damages for breach of contract to give a mortgage as security for a debt is said to be prima facie the amount of the debt still unpaid. (") In a grant of land there was a covenant that a defendant should sink upon the demised premises a pit to the depth of 130 yards in search of coal, and, in case a marketable vein should be reached, pay the plaintiff £2,500. In an action by the plaintiff for breach of this covenant, evidence being given to show that if the defendants had sunk the pit, marketable coal might have been found, it was held that the plaintiff was entitled to more than nominal damages, and that the true measure of damage was the amount which he had lost by being deprived of the opportunity of finding marketable coal. () In Mine Hill & S. H. R.R. Co. v. Lippincott,() a railroad company agreed on notice to remove its road from over certain coal beds, so as to allow them to be mined. (*) Dye v. Forbes, 34 Minn. 13. § 636. MISCELLANEOUS CONTRACTS. 291 The measure of damages for a breach was held to be the value of the coal in the mine. In a lease of an oil field the lessee agreed to prosecute the boring of additional wells without interruption. The measure of damages for a breach of this agreement was held to be the value of the additional oil which the plaintiff should have received, less the expense to him.(") The case was said to differ from that of an agreement to open a mine, for oil, unlike a mineral, must be obtained as soon as possible, or there is danger of loss. Where another well had been bored on the same tract and no oil obtained, the damages were held to be nominal.(") In Finney v. Cadwallader (*) an agreement was made to establish a bank and make the defendant its manager, and to establish a line of steamers and make the defendant its agent. It was held that damages for a breach of this contract were too remote and uncertain to be estimated. In Harrison v. Charlton, (d) the plaintiff purchased a lumber-yard. The lumber was to be measured, and in the meantime no lumber was to be added. For breach of the contract in adding lumber, the difference between the market and contract prices of the additional. lumber was held to be the measure of damages. Where the defendant agreed to support and care for the plaintiff's child, but neglected to give proper support, the measure of damages was held to be the difference in value between the care and treatment called for by the contract and what was actually received. () The condition of a bond for the plaintiff's maintenance required the defendant to furnish the plaintiff with " money neces (*) Bradford Oil Co. v. Blair, 113 Pa. 83. () Hutchinson v. Snider, 20 Atl. Rep. 510 (Pa.). (©) 55 Ga. 75. (d) 37 Ia. 134. () Vancleave v. Clark, 118 Ind. 61. sary for him to spend whenever he thinks proper to visit his friends;" the defendant was held bound to furnish a sum proper for such expenses to the extent of reasonable visits. In an action of debt upon such a bond, there having been previously a demand and refusal of the sum necessary for a visit, the plaintiff's measure of damages was held to be the amount of money required for the visit, with interest. (*) The defendants being engaged in a flour commission business, hired from the plaintiff for one night a canvas cover, fifty feet in length by twentyfive feet wide, to be spread over flour on board a canalboat lying at a wharf in the city of New York. The price to be paid for the use of the canvas was the "customary charge," which for twenty-four hours or less was proved to be one dollar. Through some oversight the cover was not returned until the lapse of about five weeks. The action was brought for the use of the canvas during the whole period last mentioned. The plaintiff insisted upon a recovery of one dollar for each day of the detention. It was held that defendants were not liable to be charged at the contract rate per day for every day during which the canvas was detained. The recovery should have been limited to the value of the use for the entire period of the detention. () It will be noticed that this is the result of a fair interpretation of the contract; for the "customary charge" for one night was not the customary charge for five weeks. Breach of Promise of Marriage. 637. Exceptional nature of the action.-* The action for breach of promise of marriage, as has been already said, though nominally an action founded on the breach (*) Berry v. Harris, 43 N. H. 376. () Russell v. Roberts, 3 E. D. Sinith 318. |