value of the oil if it had been purchased on the day when the message ought to have been delivered and the market price to which it had risen on the next day. As the judgment was rendered in his favor for the latter sum, it must be reversed on that account, and, upon the facts found by the court, judgment rendered for nominal damages only, which finally disposes of the litigation. It, therefore, becomes unnecessary to consider or decide any of the other questions certified to us.

It is found as a fact that if the dispatch upon its first receipt at Oil City had been promptly delivered to Charles T. Hall, to whom it was addressed, he would, by 12 o'clock on that day, have purchased 10,000 barrels of oil at the market price of $1.17 per barrel, on the plaintiff's account. He was unable to do so in consequence of the delay in the delivery of the message. On the next day, the price had advanced to $1.35 per barrel, and no purchase was made because Charles T. Hall, to whom the message was addressed, did not deem it advisable to do so, the order being conditional on his opinion as to the expediency of executing it. If the order had been executed on the day when the message should have been delivered, there is nothing in the record to show whether the oil purchased would have been sold on the plaintiff's account on the next day or not; or that it was to be bought for resale. There was no order to sell it, and whether or not the plaintiff would or would not have sold it is altogether uncertain. If he had not done so, but had continued to hold the oil bought, there is also nothing in the record to show whether, up to the time of the bringing of this action, he would or would not have made a profit or suffered a loss, for it is not disclosed in the record whether during that period the price of oil advanced or receded from the price at the date of the intended purchase. The only theory, then, on which the plaintiff could show actual damage or loss is on the supposition that, if he had bought on the ninth of November, he might and would have sold on the 10th. It is the difference between the prices on those two days which was in fact allowed as the measure of his loss.

It is clear that in point of fact the plaintiff has not suffered any actual loss. No transaction was in fact made, and there being neither a purchase nor a sale, there was no actual difference between the sums paid and the sums received in consequence of it which could be set down in a profit and loss account. All that can be said to have been lost was the opportunity of buying on November 9th, and of making a profit by selling on the 10th, the sale on that day being purely contingent, without anything in the case to show that it was even probable or intended, much less that it would certainly have taken place.

It has been well settled since the decision in Masterton v. Mayor of Brooklyn, 7 Hill, 61, that a plaintiff may rightfully recover a loss of profits as a part of the damages for breach of a special contract; but in such a case the profits to be recovered must be such as would have accrued and grown out of the contract itself as the direct and immediate result of its fulfillment. In the language of the supreme judicial court of Massachusetts in Fox v. Harding, 7 Cush. 516: "These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a part of the damages occasioned by the breach of the contract in suit." This rule was applied by this court in the case of Railroad Co. v. Howard, 13 How. 307. In Griffin v. Colver, 16 N. Y. 489, the rule was stated to be that "the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, they must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in

respect to the cause from which they proceed. The familiar rules on this subject are all subordinate to these. For instance, that the damages must flow directly and naturally from the breach of the contract, is a mere mode of expressing the first; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or contingent, are different modifications of the last." In Booth v. Rolling-Mills Co., 60 N. Y. 487, the rule was stated to be that "the damages for which a party may recover for a breach of a contract are such as naturally and ordinarily flow from the non-performance; they must be proximate and certain, or capable of certain ascertainment, and not remote, speculative, or contingent." White v. Miller, 71 N. Y. 133, it was said: "Gains prevented, as well as losses sustained, may be recovered as profits, when they can be rendered reasonably certain by evidence, and have naturally resulted from the breach."


In cases of executory contracts for the purchase or sale of personal property ordinarily the proper measure of damages is the difference between the contract price and the market price of the goods at the time when the contract is broken. This rule may be varied according to the principles established in Hadley v. Baxendale, 9 Exch. 341, 23 Law J. Exch. 179, where the contract is made in view of special circumstances in contemplation of both parties. That well-known case, it will be remembered, was an action against a carrier to recover damages occasioned by delay in the delivery of an article, by reason of which special injury was alleged. In the application of the rule to similar cases, where there has been delay in delivering by a carrier which amounts to a breach of contract, the plaintiff is not always entitled to recover the full amount of the damage actually sustained; prima facie the damages which he is entitled to recover would be the difference in the value of the goods at the place of destination at the time they ought to have been delivered and their value at the time when they are in fact delivered. Horne v. Railway Co., L. R. 8 C. P. 131; Cutting v. Railway Co., 13 Allen, 381. Any loss above this difference sustained by the plaintiff, not arising directly from the delay, but collaterally by reason of special circumstances, can be recovered only on the ground that these special circumstances, being in view of both parties to the contract, constituted its basis. Simpson v. Railway Co., 1 Q. B. Div. 274. So the loss of a market may be made an element of damages against a carrier for delay in delivery, where it was understood, either expressly or from the circumstances of the case, that the object of delivery was to get the benefit of the market. Pickford v. Railway Co., 12 Mees. & W. 766. In Wilson v. Railway Co., 9 C. B. (N. S.) 632, the plaintiff was held entitled to recover for the deterioration in the marketable value of the cloth by reason of delay in the delivery, whereby the season for manufacturing it into caps, for which it was intended, was lost.

The same rule, by analogy, has been applied in actions against telegraph companies for delay in the delivery of messages, whereby there has been a loss of a bargain or a market. Such was the case of Telegraph Co. v. Wenger, 55 Pa. St. 262. There the message ordered a purchase of stock, which advanced in price between the time the message should have arrived and the time when it was purchased.under another order; and the advance was held to be the measure of damages. There was an actual loss, because there was an actual purchase at a higher price than the party would have been compelled to pay if the message had been promptly delivered, and the circumstances were such as to constitute notice to the company of the necessity for prompt delivery. The rule was similarly applied in Squire v. Telegraph Co., 98 Mass. 232. There the defendant negligently delayed the delivery of a message accepting an offer to sell certain goods at a certain place for a certain price, whereby the plaintiff lost the bargain, which would have been closed by a prompt delivery of the message. It was held that the plaintiff was entitled to recover, as compensation for his loss, the amount of the difference between the price which he

agreed to pay for the merchandise by the message, which, if it had been duly delivered, would have closed the contract, and the sum which he would have been compelled to pay at the same place in order, by the use of due diligence, to have purchased a like quality and quantity of the same species of merchandise. There the direct consequence and result of the delay in the transmission of the message was the loss of a contract which, if the message had been duly delivered, would by that act have been completed. The loss of the contract was, therefore, the direct result of the defendant's negligence, and the value of that contract consisted in the difference between the contract price and the market price of its subject-matter at the time and place when and where it would have been made. The case of True v. Telegraph Co., 60 Me. 9, cannot be distinguished in its circumstances from the case in 98 Mass. 232, and was governed in its decision by the same rule. The cases of Manville v. Telegraph Co., 37 Iowa, 220, and of Thompson v. Telegraph Co., 64 Wis. 531, 25 N. W. Rep. 789, were instances of the application of the same rule to similar circumstances, the difference being merely that in these the damage consisted in the loss of a sale, instead of a purchase of property, which was prevented by the negligence of the defendant in the delivery of the messages. In these cases the plaintiffs were held to be entitled to recover the losses in the market value of the property occasioned, which occurred during the delay.

Of course, where the negligence of the telegraph company consists not in delaying the transmission of the message, but in transmitting a message erroneously, so as to mislead the party to whom it is addressed, and on the faith of which he acts in the purchase or sale of property, the actual loss based upon changes in market value are clearly within the rule for estimating damages. Of this class examples are to be found in the cases of Turner v. Telegraph Co., 41 Iowa, 458, and Rittenhouse v. Telegraph, 44 N. Y. 263; but these have no application to the circumstances of the present case. Here the plaintiff did not purchase the oil ordered after the date when the message should have been delivered, and therefore was not required to pay, and did not pay, any advance upon the market price prevailing at the date of the order; neither does it appear that it was the purpose or intention of the sender of the message to purchase the oil in the expectation of profits to be derived from an immediate resale. If the order had been promptly delivered on the day it was sent, and had been executed on that day, it is not found that he would have resold the next day at the advance, nor that he could have resold at a profit at any subsequent day. The only damage, therefore, for which he is entitled to recover is the cost of transmitting the delayed message.

The judgment is accordingly reversed, and the cause remanded, with directions to enter a judgment for the plaintiff for that sum merely.

(January 30, 1888.)


In a suit to enforce payment of county warrants, brought seven years after they had been presented to the county treasurer, and payment demanded, and he had indorsed thereupon "not paid for want of funds," held that, under the law in Nebraska, the cause of action did not accrue when payment was refused, but only when the money for their payment is collected, or time sufficient for the collection of the money has elapsed.

In Error to the Circuit Court of the United States for the District of Nebraska.

The plaintiff, the King Iron Bridge & Manufacturing Company, brought this suit against the county of Otoe, state of Nebraska, defendant, to enforce the payment of two warrants issued by the county, and assigned to plaintiff. Defendant's answer set up as a defense that the causes of action did not ac

crue within five years next before the commencement of the suit, to which plaintiff demurred. Demurrer overruled, and judgment for defendant. Plaintiff brought error. From a former judgment of the circuit court, overruling the demurrer to defendant's answer, (see 27 Fed. Rep. 800,) plaintiff has once before appealed to this court, where the judgment was reversed and cause remanded, because the jurisdiction of the circuit court did not affirmatively appear on the record. See 7 Sup. Ct. Rep. 552.

N. L. Harwood and J. H. Ames, for plaintiff in error. John C. Watson, for defendant in error.

WAITE, C. J. This suit was brought to recover the amount due upon two warrants of the county of Otoe, one dated October 9, 1878, for $1,605, and the other, for the same amount, dated January 9, 1879. The petition contains two counts, one of which, upon the warrant dated October 9, 1878, is as follows: "For a second cause of action plaintiff says that at Nebraska City, the county-seat of Otoe county, Nebraska, on the eighth day of October, 1878, said county being then justly indebted to one Z. King in the sum of $1,605.00, which indebtedness was at that time due and unpaid, the board of county commissioners of said county then being regularly in session, did audit, find, allow, adjudge, and determine that there was due the said Z. King in the premises from said county the sum of $1,605, to be paid on account of the said sum of $1,605; and thereupon the said board of county commissioners did allow, draw, and issue to the said Z. King certain warrants of said county, numbered 622, dated October 9, 1878, signed by Frederick Beyschlay, who was then chairman of the said board of county commissioners, countersigned by C. MacCuaig, county clerk of said county of Otoe, and attested by the seal of said county, which commanded said treasurer to pay to said Z. King or order the sum of $1,605 out of the general fund, and charge to the account of the Special Bridge Fund,' a copy of which warrant, with all the indorsements thereon, is hereto attached, marked Exhibit B.' Plaintiff further says that on the twenty-third day of October, 1878, said warrant was by said Z. King presented to the county treasurer, and payment thereon demanded. The same was by said treasurer indorsed, Not paid for want of funds.' Afterwards the same said warrant was, on the twenty-sixth day of December, 1878, registered for payment, numbered on the register 156. Plaintiff further says that subsequent thereto, but prior to the commencement of this action, the said warrant was by said Z. King, for a valuable consideration, sold, transferred, and delivered to the plaintiff, who is the lawful holder and owner thereof; that no part of said warrant has been paid by the treasurer of said county, or by any one in its behalf, either to said Z. King or to this plaintiff, or to any person whomsoever. Plaintiff further says that Z. King was at the time said warrant was issued and still is a citizen and resident of the state of Ohio, residing at Cleveland, Ohio, and president of the plaintiff's company. That said defendant has at all times neglected and now does neglect and refuse, by levy of the taxes or otherwise, to pay or to provide for the payment of said warrant, or any part thereof, and there is now due the said plaintiff thereon the sum of $1,605.00, and ten per cent. interest thereon from the twenty-third day of October, 1878." The other count was in the same general form upon the other warrant, but alleging its presentment for payment January 15, 1879.

The answer set up as a defense that the causes of action did not accrue within five years next before the commencement of the suit. To this a demurrer was filed, upon the ground that the answer did not state facts suthicient to constitute a defense, and "that by the statute of Nebraska, and the construction given thereunder by the court of Nebraska, the statute does not run against a county warrant. This demurrer was overruled, and judgment given for the county. To reverse that judgment this writ of error was

brought, the amount claimed to be due on the warrants being more than $5,000.

The statute of limitations relied on is section 10 of the Code of Civil Procedure, (Comp. St. 1881, p. 532,) as follows: "Within five years an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.

In Nebraska at the time these warrants were issued the board of county commissioners was the governing body of the county. Gen. St. Neb. 1873, p. 232, c. 13, § 2. This board had power "to examine and settle all accounts of the receipts and expenditures of the county, and allow all accounts chargeable against the county; and, when so settled, county warrants may be issued therefor as provided by law." Id. § 14. "The commissioner, whose term of office expires within one year, shall be chairman of the board for that year, and he shall sign all warrants on the treasurer for money to be paid out of the county treasury. Such warrants shall be countersigned by the county clerk, and sealed with the county seal." Id. § 23. "Any person who shall be aggrieved by any decision of the board of county commissioners, may appeal from the decision of the board to the district court of the same county." Id. § 34. "Such clerk shall not issue any county warrant unless ordered by the board of commissioners authorizing the same; and every such warrant shall be numbered consecutively as allowed from the first day of January to the thirty-first day of December in each year, and the date, amount, and number of the same, and the name of the person to whom it is issued, shall be entered in a book called warrant book,' to be kept by the clerk in his office for that purpose." Id. § 40. "All warrants issued by the board of county commissioners shall, upon being presented for payment, if there is not sufficient funds in the treasury to pay the same, be indorsed by the treasurer, Not paid for want of funds,' and the treasurer shall also indorse thereon the date of such presentation, and sign his name thereto. Warrants so indorsed shall draw interest from the date of such indorsement, at the rate of ten per cent. per annum, until paid." Id. § 54.

Another statute provided that "all warrants upon the state treasurer, the treasurer of any county, or any municipal corporation therein, shall be paid in the order of their presentation therefor." Gen. St. Neb. 1873, 891, c. 65, § 1. "It shall be the duty of any such treasurer, upon the payment of a fee of ten cents by the holder of any warrant, or by any person presenting the same for registration, in the presence of such person, to enter such warrant in his warrant register,' for payment in the order of presenting for registration, and, upon every warrant so registered, he shall indorse, Registered for payment,' with the date of such registration, and shall sign such indorsement: provided, that nothing in this act shall be construed to require the holder of any warrant to register the same, but such warrant may be presented for payment and indorsed, Presented and not paid for want of funds,' and shall draw interest from the date of such presentation, as now provided by law.' Id. § 3.

In a suit upon a county warrant issued under statutes not materially different from these the supreme court of Nebraska, while holding that a statute of limitations substantially like that above quoted applied to actions where counties or other municipal corporations were parties as well as to those between private persons, said: "But these warrants do not, nor was it the intention of the legislature that they should, fall within the operation of this act. When a demand or claim against a county is presented to the commissioners for settlement, they hear the proofs, and determine whether it is one which the county is bound to pay, and the amount due thereon. In this they act judicially, and, within the scope of the authority conferred on them, their decision is a judgment binding upon the county. If they decide in favor of the claimant, an order is drawn on the treasurer for the amount, designating

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