1 Freeman v. Clute, 3 Barb. 425.
2 Douglass Axe Co. v. Gardner, 10 Cush. 88; Street v. Blay, 2 B. & Ad. 460.
3 Poulton v. Lattimore, 9 B. & C. 259; 4 Man. & Ry. 208; Adam v. Richards, 2 H. Bl. 573; Freeman v. Clute, 3 Barb. 425; Elliott v. Thomas, 3 M. & W. 170.
4 Freeman v. Clute, 3 Barb. 424. In this case there was a contract for a steam-engine with a suitable boiler, which, when they were put up, proved to be so defective as not to accomplish the end for which they were designed, and three months were occupied in endeavoring to make them useful, but without success. In delivering the judgment of the court, Mr. Justice Harris said: "I agree with the counsel for the plaintiff in the general rule for which he contends, that the party complaining of a breach of an executory contract is entitled to indemnity for the loss which the non-performance of the obligation by the other party has occasioned him, and for the gain of which it has deprived him. But the gain contemplated by this rule is only that which is the direct and immediate fruit of the contract. Such gain may as properly be regarded in estimating the damages resulting from a failure to perform a contract as any actual loss the party may sustain. But even the civil law rule, which is more liberal than the common law in the measure of damages for the violation of an executory contract, confines the allowance for the loss of profits to 'the particular thing which is the object of the contract,' and does not embrace such loss of profits as may have been incidentally occasioned in respect to his other affairs. I cannot agree with the counsel for the plaintiff that the estimated profits upon the manufacture of a specithe seller of a chattel bought for a special purpose may not be liable for all the damages sustained by the buyer by reason fied quantity of flaxseed into linseed oil constitutes a legitimate item of damages against the defendants. Such profits are entirely too speculative and uncertain to make them a measure of damages. It is a very easy matter,' says Chief Justice Nelson, in Masterton v. The Mayor of Brooklyn, 7 Hill, 73, ' to figure out large profits upon paper; but it will be found that these, in a great majority of cases, become seriously reduced when subjected to the contingencies and hazards incident to actual performance.' There are few who have been so fortunate in their enterprises as not to have learned how great is the difference between speculative estimates of profits and the actual test of experience. Certainly such profits rest too much in speculation to make the loss of the chance of acquiring them the proper subject of consequential damages upon the breach of a contract, unless expressly stipulated for in the contract itself.
"The view that I have taken of this question seems fully sustained by adjudged cases, both in this country and in England. The case of Blan-chard v. Ely, 21 Wend. 342, bears in most of its features a nearer resemblance to this case than any other I have found. There the plaintiff had contracted to build for the defendants a steamboat intended to ply on the Susquehanna River from Owego to Wilkesbarre, and to have the boat completed and put in operation by a certain day; for which he was to receive a stipulated price. The plaintiff, having delivered the boat, brought an action for the price; and, by way of recoupment of damages, the defendants proved that some of the machinery of the boat was defective, in consequence of which they had incurred expenses in making repairs and improvements; that the boat had also been subjected to delays and loss of profits, which amounted to $100 each trip. The circuit judge allowed the jury to deduct the amount expended by the defendants in remedying the defects in the machinery, and in towing the boat to a proper place to have the repairs made, but directed them not to allow for delays or profits which might have been made upon the trips lost. The Supreme Court sustained the charge of the judge. Although the case under consideration may be, and I think is, distinguishable from that just cited in respect to the question of delays, I cannot see how it can be distinguished with respect to the profits which might have been made but for loss of trips.
"In Driggs v. Dwight, 17 "Wend. 71, it was held that a party who had entered into a contract with another for a loan of a tavern stand, and who had, in pursuance of such agreement, broken up his former residence and removed to the place where he was to occupy the tavern stand, might, in an action to recover damages for a breach of the contract in not giving him a lease of the tavern, recover the expenses he had thus incurred. And the court also say that ' the measure of damages certainly is not confined to the difference of rent, but that the Jury might look to the actual of a non-delivery, unless he knew the purpose intended, he would be liable for the loss of such profits as would have accrued to the buyer had it been used for the purpose for which the seller supposed it was intended.1
§ 1099. The vendee of warranted goods may, however, recover damages for all injuries 2 directly or incidentally occasioned by a breach of warranty.3 Thus, where the vendee, value of the bargain the plaintiff had made.' The principle of this case, I think, would justify an allowance to the plaintiff of any expenses he had actually incurred in his business as a consequence of the failure of the defendants to perform their contract. The case of Miller v. The Mariner's Church, 7 Greenl. 51, is to the same effect. The plaintiff had contracted to deliver stone for the defendant's house by a certain time. He failed to deliver by the time specified; but, having delivered the stone afterwards, in an action for the price of the stone the defendants were allowed to recoup in damages the expenses they had necessarily incurred by the delay of their workmen for want of the stone.
"The conclusion at which I have arrived, after a careful examination of the facts in this case, and the authorities bearing upon the questions involved, and the principles governing the rule of damages in similar cases is, that the plaintiff is entitled to recover, in addition to the sum paid by him on account of the machinery, which now amounts, with interest, to about the sum of $700, the further sum of $700 for the expenses incurred and the damages sustained by him in consequence of the failure of the defendants to finish the machinery according to their contract. The amount thus allowed embraces the loss of the use of the plaintiff's mill and other machinery, the fuel consumed, the delay of his workmen employed for the purpose of carrying on his business, and the interest on the amount expended in purchasing stock for the mill. I state thus particularly the grounds of my estimate of damages, to enable the parties, if dissatisfied, the better to review the report." Bridge v. Wain, 1 Stark. 504; Lewis v. Peake, 7 Taunt. 153; Armstrong v. Percy, 5 Wend. 535; Waite v. Gilbert, 10 Cush. 177; Fox v. Harding, 7 Cush. 516.