various other like items which are easily proved; these, with the rental value of the agreed structure, enable the court to ascertain the damages with more certainty than by consideration of profits to be made in conducting a business where nearly all the factors in the calculation are supposititious.' But where there is not such a certain mode of estimating damages, the court will not dismiss the injured party with nominal damages, unless the case is such there is no certainty that he has suffered actual injury. In a suit by an agent against a life insurance company for damages resulting from his discharge during the term of his engagement, his measure of damages is the amount he has lost in consequence. And testimony of actuaries as to the probable value of renewals for the remainder of his term on policies already obtained is competent to assist in arriving at the result.2 But an estimate of the probable earnings thereafter, derived from proof of the amount of his collections and commissions before the breach, without other proof relating thereto, was held too speculative to be admissible.3 In estimating the damages sustained by a company for the laying out of a highway across its railroad or for permitting another railroad to cross it at grade, the jury have no right to take into consideration any supposed future damage to it, from a probable increase in the expense of doing business in consequence of the establishment of the new highway or crossing; and evidence of payments of money on account of accidents at the several crossings, and of the comparative profit of travel over the railroad between different stations, is inadmissible; it is too uncertain and contingent. The conjectural or Ind. 347; Lewis v. Atlas M. L. Ins. 3 Lewis v. Atlas M. L. Ins. Co., 61 Mo. 534. 4 Boston, etc. R. Co. v. Middlesex, 1 Allen, 324; Portland & R. R. Co. v. Deering, 78 Me. 61; Massachusetts, etc. R. Co. v. Boston, etc. R. Co., 121 Mass. 124; Chicago & A. R. Co. v. Joliet, etc. R. Co., 105 Ill. 388; Boston & M. R. Co. v. County Com'rs, 79 Me. 386. See vcl. 3, ch. 16. [111] possible profits of a whaling or other voyage cannot be taken into consideration in estimating the damage against a master for running away with the vessel and abandoning the voyage. Nor can a party recover damages for a contemplated advance in the price of real estate from the erection and operation of a brick factory on adjoining land, in an action for the breach of the agreement to erect and operate it. But if lands are exchanged with an agreement as part of the consideration by one of the parties that he will make valuable improvements upon the tract conveyed by him, the damages resulting from his breach of contract are not too uncertain if the complaint alleges the difference between the value of the tracts at the time the exchange was made. In a late Wisconsin case there was a breach of contract to purchase and work a stone quarry, of which the plaintiff was to have one-half of the net profits so long as it could be profitably worked. The defendant refused to perform before any profits were realized. It was proven that the quarry had been worked at a profit for three years preceding the trial, and an estimate was made of profits based in part on earnings for another year. The court considered the loss of profits sufficiently established, and held that the time during which a recovery might be had therefor was for the jury. § 61. Warranty of seeds. In a case where the defendant sold cabbage seed and warranted it to produce Bristol cabbages, which warranty was untrue, it was held that the damages recoverable were the value of a crop of Bristol cabbages such as would ordinarily have been produced that year, deducting the expense of raising it and also the value of the crop actually raised." What would have been produced from 1 Brown v. Smith, 12 Cush. 366; 5 Passinger v. Thorburn, 34 N. Y. Schooner Lively, 1 Gall. 314; Boyd v. 634; Wolcott v. Mount, 36 N. J. L. Brown, 17 Pick. 453; The Anna 262; Van Wyck v. Allen, 69 N. Y. Maria, 2 Wheat. 327; Del Col v. Ar- 61; White v. Miller, 71 N. Y. 133, nold, 3 Dall. 333. Fenis v. Comstock, 33 Conn. 513; Page v. Pavey, 8 C. & P. 769; Randall v. Raper, 96 Eng. C. L. 82; Flick v. Weatherbee, 20 Wis. 392; Wagstaff v. Short Horn Dairy Co., 1 Cab. & E. 324. 2 Dullea v. Taylor, 35 Up. Can. Q. B. 395; Rockford, etc. R. Co. v. Beckemeier, 72 Ill. 267; Watterson v. Alleghany V. R. Co., 74 Pa. St. 208. 3 Wilson v. Yocum, 77 Iowa, 569. Treat v. Hiles, 81 Wis. 280. other seed and of the kind warranted of course could not be proved directly, and it was not attempted; but the regularity of production under usual conditions is such that a judicial conclusion may be based upon it as sufficiently certain. Mere speculative profits, such as might be conjectured would be the probable result of an adventure defeated by the breach of contract, the gains from which are entirely conjectural and with respect to which no means exist of ascertaining even approximately the probable results, cannot under any circumstances be brought within the range of damages recoverable. In Georgia the rule is that for the breach of an implied warranty of the merchantable quality of seed for planting the damages are limited to the purchase-money with interest thereon and expenses incurred in planting and preparing for the planting of the seed. In Tennessee only the difference in value between the seed purchased and that delivered can be recovered.2 The cardinal rule in relation to the damages to be compensated on the breach of a contract is that the plaintiff must establish the quantum of his loss by evidence from which the jury will be able to estimate the extent of his injury; this will exclude all such elements of damage as are incapable of being ascertained by the usual rules of evidence to a reasonable degree of certainty. Instances of such uncertain [112] damages are profits expected from a whaling voyage and the gains which depend in a great measure upon chance; they are too purely conjectural to be capable of entering into compensation for non-performance of a contract. For a similar reason the loss of the value of a crop for which seed had been sown, the yield of which would depend upon the contingencies of weather and season, would be excluded as incapable of estimation with the degree of certainty which the law exacts in the proof of damages. The loss of profits following the 3 breach of a contract to publish an advertisement are incapable of being estimated. The damages resulting from the breach of a warranty of the breeding qualities of an animal are too contingent and uncertain to support a recovery when compensation for the services he renders is to be paid only when the animals served actually foal. The same is true of the reduction of the number of members in a given class in a mutual benefit society, the effect being that the amount realized by the beneficiary under a certificate is thereby lessened. What the result would have been if the change which brought about such reduction had not been made is a mere matter of speculation. But if a vessel is under charter or engaged in a trade the earnings of which can be ascertained by reference to the usual schedule of freights in the market, or if a crop has been sown and the ground prepared for cultivation, and the complaint is that because of the inferior quality of the seed a crop of less value is produced, by these circumstances the means would be furnished to enable the jury to make a proper estimate of the injury resulting from the loss of profits of this character. § 62. Prospective growth of orchard. An instructive case arose in Ohio involving this question of uncertainty. The action was on a contract by which the defendant agreed to make a lease to the plaintiff for the term of ten years of certain lands on which to plant and cultivate a peach orchard. The breach consisted in the failure to make a lease and in defendant causing the plaintiff, within two years from his taking possession, and after the peach trees were planted, to be evicted from the premises. On the trial the plaintiff was permitted id. 345; S. C., 56 id. 149; Gresham v. Taylor, 51 Ala. 505. Contra, Payne v. Railroad, etc. Co., 38 La. Ann. 164, 168. And on account of the uncertainty involved in the maturing of crops the damage sustained by injuries done thereto cannot be reduced by efforts to show what might have been realized if another crop had been planted on the land on which that injured was growing. G., C. & S. F. Ry. v. Holliday, supra. 1 Tribune Co. v. Bradshaw, 20 Ill. App. 1. 2 Connoble v. Clark, 38 Mo. App. 47% 3 Supreme Lodge Knights of Pyth ias v. Knight, 117 Ind. 489, 500. Wolcott v. Mount, 36 N. J. L. 271; Owners of the Gracie v. Owners of the Argentino, 14 App. Cas. 519, affirming The Argentino, 13 Prob. Div. 191: Bell v. Reynolds, 78 Ala. 511, quoted from in note to preceding section. Rhodes v. Baird, 16 Ohio St. 573. to give evidence of the probable profits that might in the future be realized from the orchard, judging from the number of crops and the prices of peaches in the county for the last ten or fifteen years. This evidence was held by the appellate court to be incompetent, because too uncertain and speculative: "To the extent that the damages depended on the loss of the use of the property, its market value at the time of the eviction, subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value its value should have been ascertained from the witnesses whose [113] skill and experience enabled them to testify directly to such value in view of the hazards and chances of the business to which the land was to be devoted.' This would only be applying the same principle for ascertaining the value of property which, by reason of its limited use, had no market value, which is adopted with reference to proving the present worth of the future use of property which, by reason of its being in greater demand, has a market value. In the case of property of the former description, the range for obtaining testimony as to the value is, of course, more circumscribed than it is in the case of property of the latter description. But in either case the proving of the value of the property by witnesses having competent knowledge of the subject is more certain and direct than to undertake to do so by submitting to the jury, as grounds on which to make up their verdict, the supposed future profits. The profits testified to remote and contingent, depending on the character of the future seasons and markets, and a variety of other causes of no certain and uniform operation." were § 63. Profits of special contracts. The liability for the profits which would have resulted from the performance of a contract is co-extensive with the power to contract; and the government is liable therefor to the same extent as an individual. The right of a party to recover the profits he would have made in fulfilling a contract depends solely upon the fault of the other party to it, and plaintiff's ability to show 1 Griffin v. Colver, 16 N. Y. 489; 2 Danolds v. State, 89 N. Y. 36. Giles v. O'Toole, 4 Barb. 261; New hrough v. Walker, 8 Gratt. 16. |