The extension was completed in the manner and within the time prescribed and opened to traffic, and the five hundred. dollar note was given. On December 27, 1889, a deed was executed and delivered to the company by Mr. and Mrs. McDevitt, in form an indenture, but signed and sealed by the McDevitts alone. This conveyed the right of way to the company, "its successors and assigns forever," with covenants of warranty and further assurance, and it also recited a covenant on the company's part that the cars should be run as described in the contract.

The extension was operated from 1889 to May or June, 1893, when the night cars were taken off. Thereupon, and on June 26, 1893, Mrs. McDevitt filed her bill for specific performance, to which the company set up in its answer, among other things, that the extension had always been a source of great loss, especially in operating at night, and that "the present management of the road, having been advised that their right to operate said extension over the line of proposed streets without authority from Congress was very doubtful, deemed it wise to suspend such operation until the question could be definitely settled."

July 9, 1894, the bill was dismissed but "without prejudice to the right of complainant to resort to such remedy at law as she may be advised." About that time and prior to July 25, 1894, the railway company ceased to operate the extension altogether, and it was testified that the attorney of the company, on its behalf, "refused to do anything in the way of carrying out the contract." On the last named day Mrs. McDevitt notified the company, in writing, to forthwith remove its tracks from the premises, and that she should bring an action for breach of contract. The tracks were accordingly removed. In the meantime the five hundred dollar note had matured and was not paid.

The evidence tended to show that Mrs. McDevitt had caused a map of a proposed subdivision of the land to be made, but that this had not been recorded, and that nothing had been

:

done in the way of preparing the tract for subdivision and sale by grading; that no streets had been opened through it except as effected by the action of the railway company; that the excavations for the railway tracks were what would be Second and V streets, to which extent plaintiff would be relieved from grading. Evidence was introduced of sales by Mrs. McDevitt of four parcels of the land prior to the removal of the tracks, and tending to show the value of the land with and without the railroad in operation through it. Also that the business de-. pression of 1893 caused declines in value and rendered real estate in the vicinity of this property unsalable until after 1894. Among other instructions the court gave the following:

"The jury are instructed that the measure of damages in this case is the excess (if the jury find from the evidence that there was such excess) in the market value of the land at the time that the defendant ceased entirely to run its cars upon that part of its line which extended to and through the plaintiff's land, with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing to 'so run in the future, over the market value of the same land at the same time without any cars running on said part of said line and without any expectation that they would ever run thereon."

To the giving of which defendant objected and duly preserved an exception.

The jury found a verdict in favor of plaintiff for $15,000, and, motions în arrest and for new trial having been made and overruled, judgment was entered thereon, which was affirmed by the Court of Appeals of the District, 18 App. D. C. 497, and this writ of error thereupon sued out.

The railway company was a corporation created by an act of Congress approved June 19, 1888, 25 Stat. 190, c. 419, "with authority to construct and lay down a single or doubletrack railway, with the necessary switches, turnouts, and other mechanical devices and sewer connections necessary to operate the same by horse, cable or electric power, in the District of

191 U. S.

Argument for Plaintiff in Error.

Columbia through and along the following avenues, streets and highways," (describing them,) and also a branch as described. The railway was to be laid in the center of the avenues and streets as near as might be, and in the event of a change of grade of any of the streets, avenues or roads occupied it was made the duty of the company, at its own expense, to change its railroad so as to conform to such new grade. The company was to run cars as often as the public convenience might require, in accordance with a time table or schedule which was to be approved by the Commissioners of the District; and was to construct such ticket offices, passenger rooms, etc., at such points on its line as the Commissioners might approve. The government and direction of the affairs of the company were vested in a board of nine directors, who were to choose officers as designated. Congress reserved the right to alter, amend or repeal the act at any time.

By an act approved April 30, 1890, 26 Stat. 77, c. 172, amending the charter, the company was authorized to extend its tracks through and along certain streets named, which provided "and also beginning at the present terminus of its Cemetery Branch on the east side of Lincoln avenue, and thence northerly along Lincoln avenue to a point opposite the entrance to Glenwood Cemetery.'

By an act approved July 5, 1892, 27 Stat. 65, c. 143, the charter was further amended by authorizing the extension of tracks, and providing "that the tracks of said company on Lincoln avenue shall be taken up within thirty days from the passage of this act, and the roadway shall be restored to public uses in such manner as the Commissioners of the District of Columbia shall direct."

Mr. Walter L. McDermott and Mr. John Ridout for plaintiff in error:

"Damages recoverable on a breach of contract are measured by the actual loss sustained, provided such loss is what would

Argument for Plaintiff in Error.

191 U.S.

naturally result as the ordinary consequence of the breach or as a consequence which may, under the circumstances, be presumed to have been in the contemplation of both parties as the probable result of a breach." Hadley v. Baxendale, 9 Exch. 341, and Horne v. Midland Ry. Co., L. R. 8 C. P. 131; same cases also in 5 Eng. Ruling Cas. 502; 6 id. 617; Howard v. Stillwell & Bierce Co., 139 U. S. 199, 207; Gurley v. McLennan, 28 Wash, Law Rep. 830; M. K. & T. Ry. v. Scott, 15 Kansas, 370; Harvey v. Conn. R. R. Co., 124 Massachusetts, 421; Ward 'v. Central R. R. Co., 47 N. Y. 29; Ward's, etc., Co. v. Elkins, 34 Michigan, 439; Mather v. American Express Co., 138 Massachusetts, 55. There was no actual loss sustained by the defendant in error; she still owns the property. W. U. Tel. Co. v. Hall, 124 U. S. 444; Hetzel v. R. R. Co., 6 Mackey, 1. Speculative profits cannot be considered in awarding damages. Rockford &c. Ry. v. Beckemeier, 72 Illinois, 267; Roberts v. N. Y. Elevated R. R. Co., 128 N. Y. 499. The effect of the business depression should have been considered in regard to the abandonment of the road. Masterton v. Mayor, 7 Hill, 61. It was error to admit the testimony respecting the prices of other and similar property to that in question for the purpose of proving its value. East Pa. R. R. Co. v. Hiester, 40 Pa. St. 53; P. & N. Y. R. R. Co. v. Bunnell, 81 Pa. St. 414; Pa. S. V. R. R. Co. v. Ziemer, 124 Pa. St. 560; Montclair R. R. Co. v. Benson, 36 N. J. L. 557; C. P. R. R. Co. v. Pearson, 35 California, 247, 262; Selma R. & D. R. R. Co. v. Keith, 53 Georgia, 178; In re Thompson, 127 N. Y. 463. The agreement and the record in the equity suit should not have been admitted in evidence. The president of a railroad company has no authority to bind the company by any agreement except in the ordinary discharge of the company's business. Titus v. Cairo R. R., 37 N. J. L. 98; Templin v. Chicago Ry., 73 Iowa, 548. The reëntry made by the defendant in error was an election and excluded her from a claim for damages. Bradley v. Brigham, 144 Massachusetts, 141; Thomas v. Walt, 104 Michigan, 201.

191 U. S.

Argument for Defendant in Error.

Mr. A. S. Worthington, Mr. John C. Heald and Mr. Charles L. Frailey for defendant in error.

The instruction as to the measure of damages was correct. Hadley v. Baxendale and Horne v. Midland Ry. Co., Hertzel v. B. & O. R. R. Co., Howard v. Stillwell & Bierce Mfg. Co. Benjamin v. Hilliard, 23 How. 149, 167; Primrose v. West. Un. Tel. Co., 154 U. S. 1, distinguished as not applicable in this case; but for rule see 2 Sedgwick, sec. 615; Kidd v. McCormick, 83 N. Y. 391, 397. When a railroad company has contracted with a landowner, in consideration of his allowing the company to construct its line through his land, to build and maintain a station on or near his property and has failed to carry out its contract, the measure of damages in an action on the contract is the difference between the value of the plaintiff's land with the station and without it. Mobile &c. R. Co. v. Gilmer, 85 Alabama, 422, 436; Louisville &c. R. Co. v. Sumner, 106 Indiana, 55, 61; Houston &c. R. Co. v. Molloy, 64 Texas, 607, 613; Wilson v. Northampton &c. R. Co., L. R. 9 Ch. Ap. 279-285. So, when ornamental or fruit-bearing trees or trees used as a shade for cattle are destroyed, the measure of damages is not the value of the trees, but the difference between the value of the premises with and without the trees. 3 Sedgwick, § 933; Chipman v. Hibberd, 6 California, 162; Wallace v. Goodall, 18 N. H. 439; Argotsinger v. Vines, 82 N. Y. 308, Van Deusen v. Young, 29 Barb. 9, and see cases cited in 6 English Ruling Cases, 617, note on Hadley v. Baxendale; Cadle v. Muscatine &c. R. R. Co., 44 Iowa, 11; U. S. Tel. Co. v. Gildersleeve, 29 Maryland, 154 U. S. 31. Although the actual damage sustained is to some extent uncertain and cannot be calculated mathematically to a cent or a dollar it does not follow that offending party cannot be called to account at all. Where it is uncertain whether any damages would result from a breach of contract the plaintiff gets only nominal damages; but where the damage is clear and the amount of it only uncertain, the rule invoked does not apply. Simpson v. L. & N.W. R. Co., L. R. 1 Q. B. D. 274; Wakeman v. Wheeler and Wilson