§ 3281.

1.

Who may recover damages.-Where it is agreed between the owner of a tract of land and an agent to whom the exclusive sale thereof had been given for a period of years, that the agent might for the purpose of raising money for the building of houses upon the lots into which he had subdivided the tract, execute a mortgage on the property to run for not less than two years, and that the owner would convey the property to the agent, or his nominee, for the purpose of making the loan, and that after the execution of the mortgage the property should be immediately reconveyed to the owner, the agent, after the obtaining of the loan and the execution of the mortgage, has no authority to extend the time of payment thereof, so far as the owner is concerned, and an agreement between the agent and the mortgagee for such an extension is not binding on the owner, who may, upon the failure of the agent to pay as agreed, recover damages against him in the amount of the full indebtedness without first paying the mortgage debt.Turner v. Howze, 28 Cal. App. 167, 151 Pac. 751.

2. Where one person agrees to give another a certain number of shares of stock to compensate him for making a sale of stock, the remedy of the latter, in case of a breach of the agreement, is an action for damages; he has no cause of action to

1.

Future damages.-Compensation may be awarded for pain suffered or to be necessarily suffered from the injury. The damages must be limited to such as are certain to result.-Pouchan v. Godeau, 167 Cal. 692, 140 Pac. 952.

2. The plaintiff is entitled only to such damages as by the evidence it is reasonably certain that he will suffer in the future. Damages determined by conjecture are not damages which are "reasonably certain to result in the future."-Rouse v. Pacific Elec. R. Co., 27 Cal. App. 772, 151 Pac. 164.

§ 3287.

1.

Interest on damages-Action based on contract.-Where the liability of the defendant in an action is based upon contract for goods sold at certain prices or at current market value, interest is properly allowable on the amounts found due under section 3287 of the Civil Code.-Brazil v. Azevedo, 32 Cal. App. 364, 162 Pac. 1049. 2. -Administrator violating trust.-The rule that in damages for tort or breach of contract interest can not be allowed where the amount of damages is unliquidated and incapable of being made certain has no application in the case of an administrator who has violated his trust by using estate property for his personal benefit.-Estate of Piercy, 168 Cal. 755, 145 Pac. 91.

§ 3300.

MEASURE OF DAMAGES FOR BREACH OF CONTRACT.

1. As to generally.

2. Abandonment of building contract. 3, 4. Contract to buy apples.

5, 6. Contract to buy automobiles.

7, 8. Contract to manufacture.

9. Contract to put in street-work, sidewalks, curbs.

10, 11. Contract to supply oil.

1. As to generally.-Courts will not, except where exemplary damages are given, allow a party to a contract to recover on its breach more than he would have received by its due performance.-Johnson v. Hinkel, 29 Cal. App. 78, 154 Pac. 487.

2.

Abandonment of building contract.— The measure of damages for breach of a building contract by abandonment is the difference between the contract price and the cost of the building and the loss following the delay in its completion.-Dunne Investment Co. v. Empire State Surety Co., 27 Cal. App. 208, 150 Pac. 405.

3. Contract to buy apples.-In an action for breach of a contract to purchase all the apples growing on the leasehold of the plaintiff, it is error to award the plaintiff, as damages, the full contract price, without taking into account the cost of packing, nailing the shook, and hauling the apples to the designated point of shipment and putting them on board the cars, which the plaintiff was obligated to do, notwithstanding the apples were destroyed by the elements before harvesting, through the alleged fault of the buyer in not furnishing the necessary materials for packing. Griffith v. Welbanks & Co., 29 Cal. App. 238, 155 Pac. 120.

damages is that provided in this section and not that of section 3311.-Griffith v. Welbanks & Co., 29 Cal. App. 238, 155 Pac. 120.

5. Contract to buy automobiles.—A complaint in an action for damages for breach of an agreement to purchase from the plaintiff at least twenty-five automobiles, which alleges that the defendant ordered, purchased and paid for only four of the cars, and that if he had purchased the remaining, twenty-one cars as agreed the plaintiff's profit on each car would have been $100, sufficiently states, in the absence of a special demurrer, the plaintiff's damage either under the rule fixed by section 3300 of the Civil Code or by section 3311, as such allegation is equivalent to a statement that the price which defendant agreed to pay for each car was at least $100 more than the value of the car to the plaintiff.Thompson v. Hamilton Motor Co., 170 Cal. 737, Ann. Cas. 1917A 677, 151 Pac. 122.

6. The right of the plaintiff to recover damages in such a case is not affected by the fact that he did not have the cars on hand, where it is shown that he could have procured them in a reasonable time if they had been ordered.-Thompson v. Hamilton Motor Co., 170 Cal. 737, Ann. Cas. 1917A 677, 151 Pac. 122.

7. Contract to manufacture.-The measure of the plaintiff's damage for the defendants' wilful and wrongful violation of a contract for the manufacture of soap according to a secret formula furnished by the former, where it is shown that the defendants had knowledge that the purpose of the plaintiff was to permanently establish a market for a soap of superior merit and value to be manufactured for him in exact accord with such formula, is the difference between the plaintiff's actual expenditures in creating a market for the soap, including the value of his own services, and the sum received by him from the sales made of the soap delivered up to

the time that the market which he had created had been destroyed in consequence of the breach of the contract; and, where it is also shown that such defendants had converted the secret ingredient to their own use, the value thereof is to be added to the damage. Grosse v. Petersen, 30 Cal. App. 482, 158 Pac. 511.

8. Where a contract is entered into by the parties with reference to special circumstances known to them both, the damages for a breach are not only those arising naturally therefrom and according to the usual course of business, but also those which under the special circumstances connected with the transaction flowed from the breach.-Grosse v. Petersen, 30 Cal. App.

482, 158 Pac. 511.

9. Contract to put in street-work, sidewalks, curbs.-The owner upon the breach of the provision in the original agreement as to the putting in of street-work, sidewalks and curbs, is entitled to recover as damages the reasonable cost of such work, notwithstanding the contract had not been terminated and no forfeiture declared.Turner v. Howze, 28 Cal. App. 167, 151 Pac. 751.

10. Contract to supply oil.-In an action to recover damages for a breach of contract to supply plaintiff with all the crude oil required to keep its refinery running at full capacity at a fixed price, the measure of damages is that fixed by this section, and not measured under sections 3353 and 3354. -National Oil Ref. & Mfg. Co. v. Producers' Ref. Co., 169 Cal. 740, 147 Pac. 963.

11.

In determining the amount of damages sustained by the plaintiff from the breach of a contract to furnish sufficient crude oil to run a refinery, which contract also provided that the defendant was to purchase from the plaintiff the products of the refinery, it is proper to estimate the loss of profit to the plaintiff by reason of the failure of the defendant to furnish oil at a fixed price and to repurchase the fixed products after refinement, also at a price.-National Oil Ref. & Mfg. Co. v. Producers' Ref. Co., 169 Cal. 740, 147 Pac. 963.

can

against the just and awful claims and demands of all persons whomsoever, not be construed as a contract whereby the grantor agreed to acquire and convey, or cause the owner thereof to convey, an outstanding paramount title to the grantee, but is merely a promise to make compensation in money for loss due to an eviction.Tropico Land & Imp. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206.

2. The covenant of warranty in a deed conveying land, or any interest in land, is an undertaking by the warrantor that on the failure of the title which the deed purports to convey, either for the whole estate or for part only, by setting up a superior title, he will make compensation in money for the loss sustained by such failure.-Tropico Land & Imp. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206.

3. Price paid on portion thereof (subd. 1). The measure of damages established by the code was one generally, if not universally, prevailing prior to its enactment. -McCormick v. Marcy, 165 Cal. 386, 132 Pac. 449.

4. This remains the measure of damages despite the fact that the covenantee, prior to the breach, had conveyed the land, with a similar covenant, for a less consideration, and after the breach had settled with his grantee for a corresponding lesser amount. --McCormick v. Marcy, 165 Cal. 386, 132 Pac. 449.

5. The measure of damages, where there has been an actual loss of the premises, is the purchase price and interest to date of eviction.-Tropico Land & Imp. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206.

§ 3306.

1.

Measure of damages-Breach of agreement to convey realty.-Where the court adopted the measure of damages contemplated herein instead of that contemplated by section 3304 it makes but little difference where the element of bad faith enters, for that would clothe the court with the power to fix damages according to the detriment shown by the existing special circumstances of the case.-Kline v. Guaranty Oil Co., 167 Cal. 476, 140 Pac. 1.

2. In an action to compel specific performance of such a contract on the part of the vendors and to recover damages for the failure of title of the vendors as to twenty acres of the land involved, the measure of the plaintiff's damage is not the value of the twenty acres, but the proportionate value thereof to the value of the whole area described in the contract.-Butte Creek Consol. Dredging Co. v. Olney, 173 Cal. 697, 161 Pac. 260.

3. Where a court of equity finds itself unable to enforce conveyance of all the land described in a contract of sale it will compel compliance with the agreement as far as possible at the rate agreed upon between the contracting parties; and the same measure must be applied in estimating the proportion of the purchase price recoverable