of the performance for use by a party to a contract. Where there is a market price this will generally be the test though in special cases the defendant may be chargeable under another standard.

It is not simply the value of the defendant's performance which may be in question but that of the plaintiff, and it is possible for the defendant to assume such liability that he is chargeable with a low value for the plaintiff's performance, and a high value for his own. 23 On the other hand, where the defendant has notice of a special use for goods which he has promised, though the goods have a market value, it will not be the sole basis of the plaintiff's recovery if the goods are not immediately replaceable. 24

1343. Value to the plaintiff.

As the plaintiff is the injured party, the fundamental inquiry is the value to him of the performance of the contract (which may be a different thing from the value to the general public) subject to the qualification which limits the defendant's liability to consequences which he might have foreseen when the contract was made. 25 Thus, as has been said, if the plaintiff agreed to sell by description goods of his own manufacture for a certain price, and the defendant failed to take and pay for them, the value to be deducted from the price which the defendant promised to pay is the cost to the plaintiff of procuring the article, and if he can obtain it by manufacturing it himself for less than the market price, this lesser cost will be the proper deduction. So if the subject of the sale was a specific chattel having but slight market value, though having a greater value to the defendant, the smaller value is the only credit the defendant can claim as an offset to his own obligation to pay the price. On the other hand if the seller had broken the contract and the buyer had brought suit, the value of the goods for the purpose of damages would be their value to the buyerthe market price, or cost of securing other similar goods-not the seller's cost of manufacturing them.

"See the following section. "See infra, § 1347.

25 Supra, § 1344.

$1344. Proximate and natural consequences.

With the qualification stated in the following sections a plaintiff can recover for breach of contract compensation for only such consequences of the breach as are both proximate and natural. When a seller wrongfully fails to deliver the promised goods, the buyer's damage from inability to use them for a special profitable purpose he has had in mind is a consequence which is proximate, but not natural or to be reasonably expected by the seller. The law of torts and of contracts differ in this respect. For a tort the defendant becomes liable for all proximate consequences, while for breach of contract he is liable only for consequences which were reasonably foreseeable at the time when it was entered into, as probable if the contract were broken. 26 For these he is liable whether they were actually foreseen or not,27 or whether even the criminal act of a third person intervenes, 28

§ 1345. Damages must be reasonably certain.

Though any breach of contract entitles the injured party at least to nominal damages, he cannot recover more without establishing a basis for an inference of fact that he has been actually damaged. A mere possibility that the plaintiff might have made a profit if the defendant had kept his contract will

26 See, e. g., Cory v. Thames, etc., Ship Building Co., Ltd., L. R. 3 Q. B. 181 (cf. Shaw v. Symmons, [1917] 1 K. B. 799, where a bailee was held liable for the loss of the bailed goods by accidental fire, because he had failed to redeliver them within a reasonable time after demand as bound by his contract). The following cases also illustrate the general rule: Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 47 L. Ed. 1171, 23 Sup. Ct. 754; Fuerst v. Polasky, 249 Fed. 447, 162 C. C. A. 13; Cassell's Mill v. Strater, etc., Co., 166 Ala. 274, 51 So. 969; Western Union Tel. Co. v. Stewart (Ala. App.), 79 So. 200; Lee Lumber Co. v. Union Naval Stores Co. (La.), 77 So. 131; Illinois Central R. Co. v. New Orleans Terminal Co.

(La.), 78 So. 738; Dondis v. Borden, 230 Mass. 73, 119 N. E. 184; Davis v. New England Cotton Yarn Co., 77 N. H. 403, 92 Atl. 732; Dunning v. Reid, 76 N. J. L. 384, 69 Atl. 1013; Meyer v. Haven, 70 N. Y. App. D. 529, 75 N. Y. S. 261; Meyer v. Hudson Trust Co., 181 N. Y. App. D. 69, 168 N. Y. S. 387; Cornelius v. Lytle, 246 Pa. 205, 92 Atl. 78; Thomas Raby, Inc., v. Ward-Meehan Co., 261 Pa. 468, 104 Atl. 750; Spies v. Mutual Trust Co., 258 Pa. 414, 102 Atl. 121; Sweeney v. Lewis &c. Co., 66 Wash. 490, 119 Pac. 1108. See also infra, ' § 1357.

27 See cases in the preceding note.

28 De La Bere v. Pearson, [1908] 1 K. B. 280; Deane v. Michigan &c. Co., 69 Ill. App. 106.

not justify damages based on the assumption that the profit would have been made. 29 But though substantial damage must be shown in order to justify recovery of more than a nominal sum, the exact amount need not be. Where it is clear that substantial damage has been suffered the impossibility of proving its precise limits is no reason for denying substantial damages altogether.30 Under this principle, profits that the plaintiff would have made if the contract had been carried out may be recovered if their loss was a proximate and natural consequence of the breach, and any reasonable method of estimation is possible, even though the exact amount of profit to have been anticipated is necessarily uncertain. 31 On the other hand," such

damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty. The nature of the business or venture upon which the anticipated profits are claimed must be such as to support an inference of definite profits grounded upon a reasonably sure basis of facts. When the elements, upon which the claim for prospective profits rests, are numerous and shifting contingencies whose relation to the wrong complained of is problematical, and such profits are not provable with assurance as a trustworthy result of the alleged cause, then there can be no recovery. Manifest ambiguities in ascertaining what would have been the course of events in the face of complicated factors, under circumstances which have never come to pass, and inherent difficulties in calculating the amount of prospective gains, prevent the recovery of damages. Pure chances lying between the alleged wrong and the anticipated profits, dependent upon unsettled conditions, render impracticable the assertion of cause and effect." 32

likely to result from its non-performance were within the contemplation of the parties, and that the profits are not so uncertain or contingent as to be incapable of reasonable proof. Fox v. Harding, 7 Cush. 516; Magnolia Metal Co. v. Gale, 189 Mass. 124, 75 N. E. 219, and cases cited; Hadley v. Baxendale, 9 Exch. 341; United States v. Behan, 110 U. S. 338, 28 L. Ed. 168; Howard v. Stillwell, etc., Manuf. Co., 139 U. S. 199, 35 L. Ed. 147; Masterton v. Mayor of Brooklyn, 7 Hill, 61, 42 Am. Dec. 38."

32 Lowrie v. Castle, 225 Mass. 37, 51, 113 N. E. 206, citing Noble v. Hand, 163 Mass. 289, 39 N. E. 1020; Todd v. Keene, 167 Mass. 157, 45 N. E. 81; John Hetherington & Sons, Ltd., v. William Firth Co., 210 Mass. 8, 95 N. E. 961; New England Iron Works Co. v. Jacot, 223 Mass. 216, 220, 111 N. E. 867; Doane v. Preston, 183 Mass. 569, 572, 67 N. E. 867; Bernstein v. Meech, 130 N. Y. 354, 29 N. E. 255; United

States v. Behan, 110 U. S. 338, 344, 28 L. Ed. 168, 4 Sup. Ct. 81; Holt v. United Security Life Ins. Co., 47 Vroom, 585, 596; Emerson v. Pacific Coast, etc., Co., 96 Minn. 1, 4, 104 N. W. 573, 1 L. R. A. (N. S.) 445, 113 Am. St. Rep. 603; Winslow Elevator Co. v. Hoffman, 107 Md. 621, 640, 69 Atl. 394, 17 L. R. A. (N. S.) 1130; Winston Cigarette Machine Co. v. Wells-Whitehead Tobacco Co., 141 N. C. 284, 53 S. E. 885, 8 L. R. A. (N. S.) 255; McKinnon v. McEwan, 48 Mich. 106, 11 N. W. 828, 42 Am. Rep. 458; Webster v. Beau, 77 Wash. 444, 137 Pac. 1013, 51 L. R. A. (N. S.) 81; Wright v. Mulvaney, 78 Wis. 89, 46 N. W. 1045, 9 L. R. A. (N. S.) 807, 23 Am. St. Rep. 393; Paola Gas Co. v. Paola Glass Co., 56 Kans. 614, 44 Pac. 621, 54 Am. St. Rep. 598. See also United States v. Purcell Envelope Co. 51 Ct. Cl. 211, affd. 249 U. S. 313, 395, Ct. 300.

§ 1346. Certainty of damage and certainty of amount of dam

age.

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 case 33 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. 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: 334 "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

"Chaplin v. Hicks [1911] 2 K. B.

786.

334 Emerson v. Pacific Coast, etc., Packing Co., 96 Minn. 1, 8, 104 N. W.

It

573, 1 L. R. A. (N. S.) 445, 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.