An attempt is sometimes made to distinguish between certainty that some damage has been caused, and certainty as to the amount of damage; but no broad statement can be made that where it is uncertain that any damage has been caused by the breach no recovery is allowable. In almost every case where prospective profits are allowed it will be true that the profit was a chance - dependent upon the ability to make a large number of contracts with other persons on advantageous terms. All reasonable expectations might have been disappointed by the happening of divers contingencies. But if the plaintiff has given valuable consideration for the promise of a performance which would have given him a chance to make a profit, the defendant should not be allowed to deprive him of that performance without compensation unless the difficulty of determining its value is extreme. In a recent English case33 the plaintiff by contract was entitled to become one of fifty persons, twelve of whom were to be selected by judges for the bestowal of prizes. The plaintiff was not notified of the time when the decision and award was to be made and therefore failed to present herself, and twelve other persons were awarded the prizes. A recovery of substantial damages was upheld. It was recognized that the plaintiff would have had, if the defendant had not committed a breach, about one chance in four of securing a prize. The court declined to take a distinction between a chance and a probability so far as the right to recovery was concerned. As was said in a Minnesota decision:33a " It is no exoneration to defendant that his misconduct, which has made inquiry as to the quantum of harm necessary, renders that inquiry difficult.34 The best the law can do is to award approximate compensation. Its failure to do even and exact justice in such cases is not more conspicuous than in many others. No other remedy is available. To allow only for loss of time and expenses would put a premium upon breaking contracts and deny substantial justice."

33 Chaplin v. Hicks [1911] 2 K. B. 786.

33aEmerson v. Pacific Coast, etc., Packing Co., 96 Minn. 1, 8, 104 N. W.

673, 1 L. R. A. (N. S.) 446, 113 Am. St. Rep. 603.

34 Citing Simpson v. London, etc., Ry. Co., 1 Q. B. Div. 274; Dart v. Laimbeer, 107 N. Y. 664, 14 N. E. 291.

Though the fact that the plaintiff's damage is uncertain in amount or even that it is uncertain that substantial damage has been caused should not deprive the plaintiff of a right to compensation for the loss of the defendant's performance which would have given the plaintiff a chance to make profit or avoid damage, such uncertainty is a good reason for applying some other test, if another test is possible, for estimating his damage than by letting a jury guess at the value of the plaintiff's chance or probability by seeking to estimate his probable profits and losses. For this reason where the performance of which the plaintiff has been deprived has a market value, courts will be more reluctant to allow the test of prospective profits than in a case where if prospective profits are not allowed the plaintiff will be denied relief altogether. Thus where the defendant has wrongfully broken a contract to furnish power to run a mill, some courts restrict the damages to a difference between the rental value of the mill if the contract had been kept and its rental value in view of breach.35 Other courts allow loss of profits to be estimated by the jury.36 But courts which would deny the plaintiff in such a case the right to recover anticipated profits would doubtless allow proof of such profits in a case where no other method of estimating the plaintiff's damage was possible and where, therefore, a rejection of the test of anticipated profits would result in denying the plaintiff all substantial relief. Where a breach of contract involves deprivation of a chance which has value in a business sense, a just reluctance will be felt by most courts to deny altogether the recovery of substantial damages.

35 Abbott v. Gatch, 13 Md. 314', 71 Am. Dec. 635; Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. 718; Witherbee v. Meyer, 165 N. Y. 446, 50 N. E. 58; Foundry, etc., Co. v. Union Compress, etc., Co., 105 Tenn. 187, 58 S. W. 270, 53 L. R. A. 482; Hurxthal v. St. Lawrence & Co., 65 W. Va. 346, 64 S. E. 355. See also Rogers 0. Bemus, 69 Fa. 432; Pallett v. Murphy, 131 Cal. 192, 63 Pac. 366;

Wade v. Belmont Ac. Co., 87 Neb. 732,128 N. W. 514, 31 L. R. A. (N. S.) 743.

36 Johnson p. Wild Rice, etc., Co., 118 Minn. 24, 136 N. W. 262; Clifford v. Richardson, 18 Vt. 620. See also Carter v. Cairo, etc., Ry. 145 11I. App. 653; Carter v. Cairo U. & C. R. Co., 240 111. 152, 88 N. E. 493; Willis v. City of Perry, 92 Iowa, 297, 60 N. W. 727, 26 L. R. A. 124.