one was the only cause of the stoppage of the mill, and that the loss of profits really arose from not sending down the new shaft in proper time, and that this arose from the delay in delivering the broken one to serve as a model. But it is obvious that, in a great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences would not, in all probability, have occurred; and these special circumstances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor where the special circumstances which, perhaps would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The judge ought, therefore, to have told the jury that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case."

Question 195: What damages did the jury allow in this case? Why did the court refuse to allow the verdict to stand in that regard? What evidence would entitle the jury to allow the damages for loss of profits? If a party breaks a contract is he liable for all damages caused by the breach? For what damages is he liable?

Case 189. Jordan v Patterson, 67 Conn. 473.

Facts: Plaintiffs ordered of defendants about 12,000 undergarments to be delivered at certain times, etc. Defendants accepted the order. They furnished only about 160 dozen. Plaintiffs claim damages for loss of profits.

Point Involved: The measure of damages in case of a breach by the seller of a contract to sell articles of merchandise.

ANDREWS, C. J.: The general intention of the law giving damages in an action for the breach of the contract like the one here in question is to put the injured party, so far as it can be done by money, in the same position that he would have been in if the contract had been performed. In carrying out this general intention, it must be remembered that the altered position to be redressed must be one directly resulting from the breach. In an action like the present one

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It

the general rule is that the plaintiff is entitled to recover in damages the difference at the time and place of delivery between the price he had agreed to pay and the market price, if greater than the agreed price. This, of course, implies that there is a market for such goods, where the plaintiff could have supplied himself. If there is no such market, then the plaintiff should have recovered the actual damages which he suffered. There may be, and often there are, special circumstances, other than the want of a market, surrounding a contract for the sale and purchase of goods, by reason of which, in case of a breach, the loss to a vendor for their non-delivery is increased. must be remembered also that any damages which the plaintiff by reasonable diligence on his part might have avoided, are not to be regarded as the proximate result of defendant's acts. In the present case, the plaintiffs claimed that at the time of delivery there was no market in which they could procure such goods as the defendants were to deliver to them. This was a fact which might be proved by the testimony of any person who had knowledge on the subject. And if it was true, the plaintiffs could not by any diligence on their part have relieved themselves by such purchase from any portion of the damages which they suffered.

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"It is alleged in the complaint that by reason of the default of the defendants, the plaintiffs had been obliged to pay large damages to their vendees for their failure to deliver to them the goods so bargained to them, and they offered evidence to prove such a payment to one of their vendees. In restoring an injured

party to the same position he would have been it is necessary to take into account losses suffered, as much as profits prevented. And whenever the loss suffered or the gain prevented results directly from a circumstance which may reasonably be considered to have been in the contemplation of the parties when entering into the contract, the plaintiff should be allowed to prove such loss.

Question 189: (1) What is the object of the law in allowing damages for breach of contract?

(2) By what circumstances are the damages measured in the above case? (a) When the goods have market value? (b) When they have no market value?

(3) Is the plaintiff bound to keep the damages down? How and to what extent?

Case 190. McKinley v. Goodman, 67 Ill. Ap. 374.

Facts: G. was a cook and caterer and was employed by M. to run a lunch counter at Bay City, Michigan. She claimed that her contract with M. was for a term from June 15 to September 1, 1894, and that after working one month she was wrongfully discharged.

Point Involved: The duty of an employee wrongfully discharged to reduce the damages by seeking employment elsewhere.

The meas

MR. PRESIDING JUSTICE BOGGS: ure of damages of the plaintiff, if found entitled to recover, is the agreed or contract price during the unexpired period, less any sum the plaintiff has earned, or might have earned, by the exercise of reasonable effort to obtain other employment in the same line or general nature of business.

Appellee was not required to hunt for employment in occupations different in their general nature and character from her avocation.

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Question 190: What is the duty of an employee wrongfully discharged to seek employment elsewhere?

B. Bill for Specific Performance.

§180. General rule.

§ 181. Contracts for. sale of realty or interest thereon. § 182. Contracts for sale of personal property.

§ 183. Contracts for personal services.

§ 180. (Contracts, Sec. 148.)

General rule.

(Note: The general rule is that a Court will not grant specific performance of contracts. The party must seek his remedy for damages in a court of law. Specific performance is awarded only in cases in which damages are not considered an adequate remedy. See following sections.)

§ 181. (Contracts, Sec. 149.) Contracts for the sale of real estate or an interest therein.

Case 191. Kitchen v. Herring, 42 North Carolina Reports, 190.

Facts: Bill for specific performance of contract to sell some timber land. Defendant contends that inasmuch as the land is chiefly valuable on account of the timber, it is practically a sale of timber and specific performance ought not to be awarded.

Point Involved: Whether a court will award specific performance of a contract to sell real estate.

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PEARSON, J.: The principle in regard to land [i. e. that equity will award specific performance of contracts for its sale] not because it was fertile or rich in minerals, or valuable for timber, but simply because it was land-a favorite and favored subject in England and every country of Anglo Saxon origin. Our constitution gives to land pre-eminence over every other species of property; and our law whether administered in courts of law or equity, gives it the same preference. The principle is, that land is assumed to have a peculiar value, so as to give an equity for a specific performance, without reference to its quality or quantity.

Question 191: Is there in every instance in contracts for the purchase of real estate, a right of specific performance? What

is the principle on which this right is based? Why did defendant claim that the general rule of law did not apply in his case? Was he sustained by the court?

(Note: If a contract is harsh or unjust, a court of equity may refuse specific performance on that ground; but merely because defendant did not get all that the land is worth is no ground for refusing plaintiff specific performance.)

§ 182. (Contracts, Sec. 150.)

personalty.

Contracts for sale of

Case 192. Cud v. Rutter, 1 P. Williams, 570.

The defendant, in consideration of two guineas paid down, did by note under hand agree to transfer 1000 1. South-Sea stock at a fixed price at the end of three weeks; the plaintiff on the day demanded the stock, and offered to pay the price; but on the defendant's insisting that he would only pay the difference, and not transfer the stock, the plaintiff brings this bill for a specific performance, and to have the stock assigned.

Objected, That the compelling a specific execution of contracts must be allowed to be discretionary in this Court, and there was not a single instance or precedent, where it had been done in such a case as this; that the plaintiff was put to no inconvenience, since the defendant had offered, and by his answer continued to offer, to pay the difference; that the plaintiff might for asking have the same quantity of stock anywhere upon the exchange. Indeed, had the agreement been for a house or land, which might be a matter of moment and use, in that case (supposing all things to have been fairly transacted), there might be some reason why equity should execute such agreement; but in a matter of so little consequence as the present case, there could be no necessity for this Court to interpose.

Cur': The plaintiff ought to have an execution of the contract; for the agreement is a fair one, and in writing, and part of the money paid. Suppose the whole money had been paid, should not equity have executed it? if so, where is the difference betwixt a great sum and