as too remote and contingent to affect the question of damages. When the books and cases speak of the profits anticipated from a good bargain as matters too remote and uncertain to be taken into account in ascertaining the true measure of damages they usually have reference to de- [115] pendent and collateral engagements entered into on the faith and in expectation of the performance of the principal contract. The performance or non-performance of the latter may, and doubtless often does, exert a material influence upon the collateral enterprises of the party; and the same may be said as to his general affairs and business transactions. But the influence is altogether too remote and subtle to be reached by legal proof or judicial investigation. And besides, the consequences, when injurious, are as often, perhaps, attributable to the indiscretion and fault of the party himself as to the contract of the delinquent contractor. His condition, in respect to the measure of damages, ought not to be worse for having failed in his engagement to a person whose affairs are embarrassed than if it had been made with one in prosperous or affluent circumstances. But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed, perhaps, the only inducement to the arrangement. The parties may have entertained different opinions concerning the advantages of the bargain, each supposing and believing that he had the best of it; but this is mere matter of judgment, going to the formation of the contract, for which each has shown himself willing to take the responsibility, and must, therefore, abide the hazard." Applying these principles to the case the learned judge said: "The plaintiffs' claim is substantially one for not accepting goods bargained and sold; as much so as if the subject-matter of the contract had been bricks, rough stones or other article of commerce used in the process of building.

1 Dom. B. 3, tit. 5, § 2, art. 4.

The only difficulty or embarrassment in applying the general rule grows out of the fact that the article in question does not appear to have any well-ascertained market value. But this cannot change the principle which must govern, but [116] only the mode of ascertaining the actual value, or rather the cost to the party producing it. Where the article has no market value an investigation into the constituent elements of the cost to the party who has to furnish it becomes necessary, and that compared with the contract price will afford the measure of damages. The jury will be able to settle this upon evidence of the outlays, trouble, risk, etc., which enter into and make up the cost of the article in the condition required by the contract at the place of delivery. It has been argued that, inasmuch as the furnishing of the marble would have run through a period of five years of which about one year and a half only had expired at the time of the suspension— the benefits which the party might have realized from the execution of the contract must necessarily be speculative and conjectural; the court and jury having no certain data upon which to make the estimate. If it were necessary to make the estimate upon any such basis the argument would be decisive of the present claim. But in my judgment no such necessity exists. When the contract, as in this case, is broken before the arrival of the time for full performance, and the opposite party elects to consider it in that light, the market price on the day of the breach is to govern in the assessment of damages. In other words, the damages are to be settled and ascertained according to the existing state of the market at the time the cause of action arose and not at the time fixed for full performance. It will be seen that we have laid altogether out of view the subcontract . . and all others that may have been entered into by the plaintiffs as preparatory and subsidiary to the fulfillment of the principal one with the defendants. Indeed, I am unable to comprehend how these can be taken into the account, or become the subject-matter of consideration at all in settling the amount of damages to be recovered for a breach of the principal contract. The defendants had no control over or participation in the making of the subcontracts, and are certainly not to be compelled to assume them if improvidently entered into. On the other hand, if

they were made so as to secure great advantages to the plaintiffs, surely the defendants are not entitled to the gains which might be realized from them. In any aspect, therefore, [117] these subcontracts present a most unfit as well as unsatisfactory basis upon which to estimate the real damages and loss occasioned by the default of the defendants. And yet, the fact that these subcontracts must ordinarily be entered into preparatory to the fulfillment of the principal one shows the injustice of restricting the damages in cases like the present to compensation for the work actually done, and the item of the materials on hand. We should thus throw the whole loss and damage that would or might arise out of contracts for further materials, etc., entirely upon the party not in default. If there was a market value of the article in this

case, the question would be a simple one. As there is none, however, the parties will be obliged to go into an inquiry as to the actual cost of furnishing the article at the place of delivery; and the court and jury should see that in estimating this amount it be made upon a substantial basis, and not left to rest upon loose and speculative opinions of witnesses. The constituent elements of the cost should be ascertained from sound and reliable sources; from practical men, having experience in the particular department of labor to which the contract relates. It is a very easy matter to figure out large profits upon paper; but it will be found that these, in a great majority of the cases, become seriously reduced when subjected to the contingencies and hazards incident to actual performance. A jury should scrutinize with care and watchfulness any speculative or conjectured account of the cost of furnishing the article that would result in a very unequal bargain between the parties, by which the gains and benefits, or, in other words, the measure of damages against the defendants, are unreasonably enhanced. They should not overlook the risks and contingencies which are almost inseparable from the execution of contracts like the one in question, and which increase the expense independently of the outlay in labor and capital."

§ 65. Violation of lease. Plaintiff agreed with defendant to take a lease of premises belonging to the latter for the purpose, as he knew, of carrying on a trade which plaintiff was

about to commence. Defendant wilfully refused to carry out his agreement, and plaintiff was unable for fifteen weeks to commence business. Specific performance of the agreement was decreed and damages were awarded for loss of profit.1 In a Georgia case the lessors of a hotel failed to keep it in repair as they had agreed. The lessee was allowed to recoup for the loss of custom and the profits he might have made if the covenant had been kept; and it was sufficient for him to show facts which enabled the jury to approximate his losses.

§ 66. Profits of labor. Where a party has contracted to perform labor from which a profit is to spring as a direct result of the work done at the contract price, and is prevented from earning this profit by the wrongful act of another party, its loss is a direct and natural result which the law will presume to follow the breach of the contract; and he is en[118] titled to recover it without special allegations in his declaration. The amount of damage may be established by showing how much less than the contract price it will cost to do the work or perform the contract. Actual damages clearly include the direct and actual loss which a plaintiff sustains propter rem ipsam non habitam. And in case of such contracts the loss of profits, among other things, is the difference between the

1 Jaques v. Millar, 6 Ch. Div. 153. The cases of Alexander v. Bishop, 59 Iowa, 572; Brockway v. Thomas, 36 Ark. 518; Beidler v. Fish, 14 Ill. App. 623, are not in accord with the English case.

Mayor, 4 N. Y. 338; Cook v. Commissioners of Hamilton, 6 McLean, 612; Frye v. Maine, etc. R. Co., 67 Me. 414; Lentz v. Choteau, 42 Pa. St. 435; James v. Adams, 8 W. Va. 568; Cramer v. Metz, 57 N. Y. 659; Story v.

2 Stewart v. Lanier House Co., 75 New York, etc. R. Co., 6 N. Y. 85;

Ga. 582.

3 Leonard v. Beaudry, 68 Mich. 310; Atkinson v. Morse, 63 id. 276; Goodrich v. Hubbard, 51 id. 62 ; Mississippi & R. R. B. Co. v. Prince, 34 Minn. 71; Oldham v. Kerchner, 79 N. C. 106; Jolly v. Single, 16 Wis. 280; Kinney v. Crocker, 18 id. 74; Burrell v. New York, etc. Co., 14 Mich. 34; Hinckley v. Beckwith, 13 Wis. 31; McAndrews v. Tippett, 39 N. J. L. 105; United States v. Speed, 8 Wall. 77; Doolittle v. McCullough, 12 Ohio St. 360; Middekauff v. Smith, 1 Md. 343; Clark v.

Devlin v. Mayor, 63 N. Y. 8; Hoy v. Gronoble, 34 Pa. St. 9; Thompson v. Jackson, 14 B. Mon. 114; Fox v. Harding, 7 Cush. 516; Milburn v. Belloni, 39 N. Y. 53; Elizabethtown, etc. R. Co. v. Pottinger, 10 Bush, 185; Wallace v. Tumlin, 42 Ga. 462; United States v. Smith, 94 U. S. 214; Somers v. Wright, 115 Mass. 292; Richmond v. D. & S. C. R. Co., 40 Iowa, 264; Fail v. McRee, 36 Ala. 61; Goldman v. Wolff, 6 Mo. App. 490; Dennis v. Maxfield, 10 Allen, 138; Skagit Ry. & L. Co. v. Cole, 2 Wash. St. 57.

cost of doing the work and the price to be paid for it. This difference is the inducement and real consideration which causes the contractor to enter into the contract. For this he expends his time, exerts his skill, uses his capital and assumes the risks which attend the enterprise. Wherever profits are advisedly spoken of as not a subject of damages it will be found that something contingent upon future bargains, or speculations, or state of the market is referred to, and not the difference between an agreed price of something contracted for and its ascertainable value or cost.1

§ 67. Profits from commercial ventures. The success of business ventures is not antecedently certain in an absolute sense; they are generally undertaken in reliance upon probabilities based upon the law of demand and supply. Though speculative in their inception by anticipating future values, they are generally retrospectively examined when they become subjects of judicial investigation, and then such values are capable of proof. If the business, the profits from which are in question, is a trading business they must depend on a succession of purchases of stock of some sort for sale, or the employment of labor or material to be purchased for its production, and a [119] succession of sales to prospective customers. Where the injury complained of is an interruption or prevention of such a business, or causes a diminution of it, it is scarcely possible to establish damages to a very high degree of certainty. In many cases the best conclusion will be merely a probable one. The rule of law is the same in all cases that the damages be proved with certainty; but a greater degree of certainty being attainable in some cases than is possible when the result sought depends on the chances of future bargains, the law will not permit the proof which is certain to be neglected, and resort be made to that which is less satisfactory; though the latter in other cases is the best the nature of the case admits of, and must be received as the only guide to the proper amount of compensation, and is then available.2

1 Philadelphia, etc. R. Co. v. How- Texas, 51; Same v. Molloy, 64 Texas, ard, 13 How. (U. S.) 344.

2 Fairchild v. Rogers, 32 Minn. 269; Alexander v. Breeden, 14 B. Mon. 154; Houston, etc. Ry. Co. v. Hill, 70

607; Kelly v. Miles, 58 N. Y. Super. Ct. 495; Oliver v. Perkins, 52 N. W. Rep. 609; — Mich. Treat v. Hiles, 81 Wis. 280.