If the failure of the agent to purchase goods ordered by his principal to be sent on a mercantile adventure, be the ground of the action, it is a question whether the price of the goods when they should have been purchased or the price at which they * would have been sold should be taken in making up damages. We have already seen that the law generally disregards profits, from their remoteness and uncertainty, (o) But in this case we think it should be held, that the loss of the principal was not of the goods alone, but of the adventure; and that he should have by way of compensation such profits of the adventure as he can prove with reasonable certainty; that is, the plaintiff should be actually indemnified, (p) And on the other hand, extended beyond the amount of the injury sustained by him. And there can be no sound principle which will enlarge his rights in this respect, merely because he has obtained a general advance on the goods, unless there were an agreement that the factor should look to the goods alone for his reimbursement." In Blot v. Boiceau, supra, Bronson, J , said: " ft is said that this rule of damages will enable factors to violate the instructions of their principals with impunity. But that is a mistake. If they sell below the instruction price, though at the then market value, they will take the peril of a rise in the value of the goods at any time before an action is brought for the wrong, and perhaps down to the trial. The owner has a right to keep his goods for a better price; and if the market value advances after the wrongful sale, the increased price will form the standard for ascertaining his loss, which the factor, who has departed from instructions, must make good." See Wright v. Bank of Metropolis, 110 N. Y. 237.

(n) Parker v. Brancker, 22 Pick. 40; Marfield v. Goodhue, 3 Comst. 62. See also Frothingham v. Everton, supra.

(o) See pp. * 183,184, and notes.

(p) Ryder v. Thayer, 3 La. An. 149. In Bell v. Cunningham, 3 Pet. 69, 5 Mason, 161, the owners of the Halcyon, at Boston, sent her from Havana to merchants at Leghorn, with directions to invest a part of her freight in marble tiles, and the balance in wrapping-paper, to be sent to Havana The consignees, in violation of these directions, invested the entire freight in wrapping-paper, on the sales of which a heavy loss was sustained The marble tiles would have yielded a considerable profit The action was brought against the consignees for breach of orders. The court held, that the actual value of the tiles at Havana was to be considered in estimating the damages, thus allowing the probable prof. its of the adventure. Marshall, C J , said; "We do not mean that speculative damages, dependent on possible successive schemes, ought ever to be given: but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate. Thus, in this case, an estimate of possible profit to be derived from investments at the Havana, of the money arising from the sale of the tiles, taking into view a distinct operation! would have been to as the converse of this rule, the defendant may show what the actual loss is, and reduce the claim of the plaintiff accordingly, (q)

If an agent sues his principal, or a servant his employer, the same rule will be applied. He can recover compensation for the injury sustained by the fault of the defendant and no more, (r)1 If he claims repayment of extra expenses, it is a good defence that they were caused by his own negligence, (s)

If he claims commissions, it is a good defence that he has caused to his principal a greater loss than his claim; because this loss, for which he is liable, has more than repaid his claim, (t)

If an action be brought against a common carrier for not carrying or not delivering goods, all the elements which enter into the actual loss must be taken into consideration, as in other cases. The general rules adopted seem to be these: If a carrier loses goods or makes a wrong delivery, in such a manner as to render himself liable for them, the net value of the goods at the place of delivery is the measure of damages, (u)2 But if he fails transcend the proper limits which a Jury ought to respect, out the actual value of the tiles themselves, at the Havana, affords a reasonable standard for the estimate of damages." See Masterton v. The Mayor, etc of Brooklyn, 7 Hill, 61.

(q) Allen v. Suydam, 20 Wend. 321; Hoard v Garner, 3 Sandf 179; Brown v Arrott, 6 Watts & S. 402, 6 Whart. 9; Van Wart v. Woolley, 5 Dow & R. 374. See also Harvey v Turner, 4 Rawle, 223. In Allen v Suydam the agent was negligent in not presenting a bill for acceptance at the proper time. It was held, that the measure of damages was prima facte the amount of the hill; but that the defendant was at liberty to show circumstances tending to mitigate damages, or to reduce the recovery to a nominal amount.

(r) Stocking v, Sage, 1 Conn. 522;

Powell v. Newburg, 19 Johns 284, Adam* son v Jarvis, 4 Bing 66.

(s) Montriou v Jefferies, 2 C. & P. 113; Howard o. Tucker. 1 B. & Ad. 712; Edmiston v. Wright, 1 Camp. 88.

(t) Dodge v. Tileston, 12 Pick. 328; White v. Chapman, 1 Stark 113; Kelly v Smith, 1 Blatchf. C C 290. See also Bell v. Palmer, 6 Cowen, 128; The Allaire Works v. Guion, 10 Barb. 55. But damages cannot be recouped unless they arise in the particular contract on which the action is founded; Deming v. Kemp, 4 Sandf. 147

(u) Watkinson v. Laughton, 8 Johns. 213; Amory v. McGregor, 15 Johns 24, 38; Brandt a. Bowlby, 2 B. & Ad. 932; Arthur v. The Schooner Cassius, 2 Story, 81. And see Green v. Clarke, 2 Kern. 343; The Compta, 5 Sawyer, 137. In Wheelright v. Beers, 2 Hail, 391, it was to perform his contract, the goods being still within the power of the owner, the difference between their value at the place where he receives them and their net value at the place of delivery, at the time when they would have arrived, if they had been carried according to the contract, is the measure of damages; (v) and it seems that a jury may give interest by way of damages, when a loss arises from the misconduct of the carrier, (w)