Since the measure of recovery in an action of contract is based upon what the defendant should have given the plaintiff, not what the plaintiff has given the defendant or otherwise expended, recovery cannot ordinarily be allowed for expenses incurred by the plaintiff in preparing to perform. Such preparations would have been required if the contract had been carried out, and the only reward which would have been received for them would have been the defendant's performance. To allow recovery for the expense of preparation as such, involves a rescission with restitution rather than an enforcement of the contract. Nevertheless, in cases where any profits which the plaintiff might have made from the contract are so uncertain, that they cannot be used as an effective measure of damages, the plaintiff has been allowed to recover expenses incurred in preparations.19 It is to be observed that the ordinary common counts by means of which a quasi-contractual right for restitution is generally enforced under common-law procedure cannot be applied to an action to recover expenses of preparation from which the defendant derived no benefit. In allowing such expenses as damages in an action on the contract, a court may be merely enforcing in the only action available a right to restitution which is becoming more clearly recognized as an appropriate alternative remedy for breach of contract. Many cases cited in this section may be explicable on this ground, but in others the plaintiff is allowed to combine some elements of damage appropriate for putting him in as good a position as he would have been in had the contract been performed with the element of expense of preparation. Unless it can be said that by a somewhat artificial presumption the court is justified in assuming that the profit on the contract would at least have equalled the expense of preparation, it is hard to explain these casee satisfactorily. The boundaries distinguishing the cases where expense of preparation can be recovered as damages for breach of contract are somewhat difficult to mark. The cases included are chiefly contracts for building or for work and labor, or for arbitration.20 So for a breach of warranty in the quality of seeds, though where there is only a partial failure of the crop, the plaintiff is allowed to recover for the difference in value between the crop raised and the crop which should have been raised, some cases hold that where there has been no germination, damages should be measured by the cost of the seed plus the cost of planting, plus the value of the use of the land less any value in the use remaining after the time when the failure of the seed had become obvious.21
Minn. 242, 59 N. W. 1012; Emerson v. Skidmore, 7 Tex. Civ. App. 641, 25 S. W. 671.
13 See infra, Sec.1345.
14 See infra, Sec. 1410.
15 Russell v. Western U. T. Co., 3 Dak. 315, 19 N. W. 408; Beaulieu v. Great Northern Ry., 103 Minn. 47, 114 N. W. 353, 19 L. R. A. (N. S.) 564. An exception to this rule has been made.in actions for breach of promise of marriage. See the following note.
16 Loy v. Reid, 11 Ala. App. 231, 65 So. 855; Lewis v. Holmes, 109 La. 1030, 34 So. 66, 61 L. R. A. 274; Smith v. Leo, 92 Hun, 242, 36 N. Y. S. 949; Vogel v. McAuliffe, 18 R. I. 791, 31 Atl. 1; Wadsworth v. Western U. T. Co., 86 Tenn. 695, 703, 8 S. W.
574, 6 Am. St. Rep. 864. It is perhaps on this principle that such damages have been allowed in an action for breach of promise of marriage. Tobin v. Shaw, 45 Me. 331, 71 Am. Deo. 547; Coolidge v. Neat, 129 Mass. 146; Vanderpool v. Richardson, 52 Mich. 336, 17 N. W. 936.
17 TreadweU v. TQlis, 108 Ala. 262, 18 So. 886; Radloff v. Haase, 196 11I. 365, 63 N. E. 729; Sloggy v. Crescent Creamery Co., 72 Minn. 316, 75 N. W. 225; VanSchoick v. VanSchoick, 76 N. J. L. 242, 69 Atl. 1080; Coppola v. Eraushaar, 102 N. Y. App. Div. 306, 92 N. Y. S. 436; Cooper v. Clute, 174 N. Car. 366, 93 S. E. 915.
18 Excelsior Needle Co. v. Smith, 61 Conn. 56, 23 Atl. 693.
19 Phillips Ac. Co. 0. Seymour, 91
& 8. 646, 664, 23 L. Ed. 341; Griffen v. Sprague Electric Co., 115 Fed.
749; Quran v. Smith, 149 Fed. 945,
81C C. A. 637; Worthington v. Gwin,
119 Ala. 44,24 So. 739,43 L. R. A. 382;
Cederberg v. Robison, 100 Cal. 93,
34 Pa. 625; McKensie v. Mitchell,
123 Ga. 72, 61 S. E. 34; Southern Pac.
Go. 9. American Well Works, 172 111.
9,49N. E. 676; Paola Gas Co. v. Paola
Glass Co., 56 Kan. 614, 44 Fac. 621, 54
Am. St. Rep. 508; Johnson v. Arnold,
2 Cush 46; New Haven & N. Co. v.
Hayden, 117 Mass. 433; Quay v. Du-luth Ac. R. Co., 153 Mich. 567, 116 N. W. 1101, 18 L. R. A. (N. S.) 250; People v. Flynn, 189 N. Y. 180, 82 N. E. 169; Nelson v. Hatch, 70 N. Y. App. Div. 206, 75 N. Y. & 389; K. & R. Filan Co. v. Brady, 172 N. Y. S. 268; Brown p. East Carolina R. Co., 154 N. C. 300, 70 S. E. 625; Rogers 0. Davidson, 142 Pa. 436, 21 Atl. 1083; Martin v. Seaboard, etc., Ry., 70 S. C. 8, 48 S. E. 616. 20 See cases in the preceding note.
Expense of preparations for transacting a business which owing to the defendant's breach of contract was never entered upon has also been allowed.22