and that the true measure of damages would be the amount of the plaintiff's loss by the breach proved; that for every second breach a fresh action would lie; that a refusal to rebuild the gate did not amount to a total and final breach of the covenant, nor could the damages recovered in a suit brought for one [226] breach be presumed to have been given as a compensation for the non-performance of the covenant through all future time, so as to bar further suits. (d)

But it has been held by the same court, that all the breaches which have actually taken place, must be embraced in the first suit; and that even if they are not, a second suit will not lie for them. (e) In a recent case in New York, a bond had been given conditioned to furnish the plaintiffs their support during their natural lives; and it was held that a failure by the obligor to provide for the obligee according to the covenant, amounted to a total breach, and that full and final damages might be recovered. (f) It appears, therefore, that in debt for money payable by installments the action will not lie till all the sums are due, but that in assumpsit an action may be brought for each sum as it becomes payable; that in agreements to do certain acts for a continuing period of time, an action may be brought for each breach, and damages for each of the breaches separately assessed, but that all the breaches actually committed must be declared for in one suit.

There is still another class of cases, viz.: where the contract covers a long space of time, and during that period the value of the thing in controversy has fluctuated. Thus, in a case in New York, which we have already had occasion to notice in reference to another branch of our subject, (g) the plaintiff, in 1836, agreed to furnish and deliver marble to build a city-hall, at successive periods in five successive years. In 1837 the defendants refused to receive any more, and it was shown that the difference between the cost of the marble and the contract price, which was the measure of damages, had fluctuated considerably in the five years.

(d) Crain v. Beach, 2 Barb. S. C. R., 120, and S. C., on appeal, Beach v. Crain, 2 Comstock, 86; and see, also, Fish v. Folly, 6 Hill, 54.

(e) Bendernagle v. Cocks, 19 Wend., 207. Bristowe v. Fairclough, 1 M. & G., 143. Pinney v. Barnes, 17 Conn., 420.

(f) Shaffer v. Lee, 8 Barb. S. C. R., 413, where the cases are collected at large.

(g) Masterton v. Mayor of Brooklyn, 7 Hill, 62, ante, 76.

On this state of facts the circuit judge charged, that, “In fixing damages to be allowed the plaintiffs, the jury were to take things as they were at the time the work was suspended, and not allow for any increased benefits they would have received from the subsequent fall of wages or subsequent circumstances." [227] And of this opinion was the majority of the court, on a motion for a new trial.

Nelson, Ch. J., who delivered the leading opinion, said,—

"It has been argued that, inasmuch as the furnishing of the marble would have run through a period of five years, of which about one year and a half only had expired at the time of the suspension, the benefits which the party might have realized from the execution of the contract, must necessarily be speculative and conjectural; the court and jury having no certain data upon which to make the estimate. If it were necessary to make the estimate upon any such basis, the argument would be decisive of the present claim. But in my judgment no such necessity exists. Where the contract, as in this case, is broken before the arrival of the time for full performance, and the opposite party elects to consider it in that light, the market price on the day of the breach is to govern in the assessment of damages. In other words, the damages are to be settled and ascertained according to the existing state of the market at the time the cause of action arose, and not at the time fixed for full performance. The basis upon which to estimate the damages, therefore, is just as fixed and easily ascertained in cases like the present, as in actions predicated upon a failure to perform at the day." P. 71..

And Bronson, J., said,—

"There may have been fluctuations in the prices of labor and materials, between the day of the breach and the time when the contract was to have been fully performed, and this makes the question upon which my brethren are not agreed. I concur in opinion with the chief justice, that such fluctuations in prices should not be taken into the account in ascertaining the amount of damages, but that the court and jury should be governed entirely by the state of things which existed at the time the contract was broken. This is the most plain and simple rule; it will best preserve the analogies of the law, and will be as likely as any other to do substantial justice to both parties." P. 76. (h)

(h) Beardsley, J., however, dissented, saying,-"The plaintiffs were not bound to wait till the period had elapsed for the complete performance of the agreement, nor to make successive offers of performance, in order to recover all their damages. They might regard the contract as broken up so far as to absolve them from making further efforts to perform, and give them a right to recover full dama

ges as for a total breach. I am not prepared to say that the plaintiffs might not have brought successive suits on this covenant, had they from time to time made repeated offers to perform on their part, which were refused by the defendants; but this the plaintiffs were not bound to do."

"There can be no serious difficulty in assessing damages according to the princi

[228]

The decision in this case has been adhered to in New York; (2) and it has been cited with approbation and its authority recognized in Louisiana. (j)

In a case in Vermont, the rule was laid down as follows:The defendants, a bridge company, had, in September, 1830, agreed with the plaintiffs, to keep a bridge in repair for twelve years, on the plaintiffs paying twenty-five dollars every year. The plaintiffs paid the annual sum till 1838, when the defendants ceased to repair; and the judge charged at the trial, that the jury "should limit their inquiries to the time when both the parties ceased in fact to act under the contract." But on motion for a new trial, the court said, "The rule of damages in this case should have been, to give the plaintiffs the difference between what they were to pay the defendants, and the probable expense of performing the contract, and thus assess the entire damages for the remaining twelve years." (k)

Perhaps, on principle, a distinction should be made among agreements of this class. Where they are intrinsically indivisible, as in the case of a building contract, for instance, one refusal may properly be considered as an absolute breach; and then there are very strong reasons for adopting the decision of the

ples which have been stated. The contract was made in 1836; and, according to the testimony, about five years would have been a reasonable time for its execution. That time has gone by. The expense of executing the contract must necessarily depend upon the prices of labor and materials. If prices fluctuated during the period in question, that may be shown by testimony. In this respect there is no need of resorting to conjecture; for all the data necessary to form a correct estimate of the entire expense of executing the contract, can now be furnished by witnesses.

"If the cause had been brought to trial before the time for completing the contract expired, it would have been impracticable to make an accurate assessment of the damages. This is no reason, however, why the injured party should not have his damages; although the dif ficulty in making a just assessment in such a case, has been deemed a sufficient ground for decreeing specific performance. No rule, which will be absolutely certain to do justice between the parties, can be laid down for such a case. Some time must be taken arbitrarily, at which prices

are to be ascertained and estimated; and the day of the breach of the contract, or of the commencement of the suit, should perhaps be adopted under such circumstances. But we need not, in the present case, express any opinion on that point. No conjectural estimate is required to ascertain what would have been the expense of a complete execution of this contract; but the state of the market, in respect to prices, is now susceptible of explicit and intelligible proof. And where that is 60, it seems to me unsuitable to adopt an arbitrary period; especially as the estimate of damages must, in any event, be somewhat conjectural."

In Shaffer v. Lee, 8 Barb. S. C. R. 417, Mr. Justice Hand said of this case, "As I understand the opinions delivered, all the judges considered the plaintiff entitled to recover entire and final damages for the non-fulfillment."

(i) N. Y. & H. R. R. Co. v. Story, 6 Barb. S. C. R. 419.

(j) Seaton v. Second Municipality, 3 La. Ann. R. 45.

(k) Royalton v. R. & W. Turnpike Co., 14 Vermont, 311.

Supreme Court of New York. As a general rule, it is the time of breach which fixes the liability in cases of personal contract; if the periods specified in the contract have not [229] arrived before the trial of the cause, any effort to fix the rights of the parties at those various times, must be mere matter of conjecture; and "probable expense," in the language of the decision just cited, is neither a precise nor a safe direction for a jury. But if, on the other hand, the contract is, in its nature, capable of division, as, to deliver the crops of a farm for several successive years, and if the periods have arrived before suit brought, there seems no reason why several actions may not be brought for every refusal to perform, nor why the damages should not be estimated as at every period fixed for performance. (7) (1)

With the modifications thus noticed, the rule is adhered to, that the contract furnishes the standard of relief; and the other general rule is equally true, that compensation will only be given for actual loss sustained.

This principle we have already had occasion to consider when discussing the subject of nominal damages; (n) and it is one which applies to cases of tort, as well as of contract. So, no action will lie for a conspiracy, unless the plaintiff sustains injury from the transaction. (0)

(1) In England, it has been several times held in Chancery, in regard to future agreements, that the difficulty of arriving at any true rule of damages is a good ground for a decree for specific performance. Buxton v. Lister, 3 Atk. 883; and Taylor v. Neville, cited therein. Ball v. Coggs, 1 Bro. Parl. Cas. 296; and Adderly v. Dixon, 1 Sim. & Stuart, 607. In this last case, the vice-chancellor said, "The profit on the contract being to depend on future events, cannot be correctly

estimated in damages, where the calculation must proceed upon conjecture. Damages might be no complete remedy, being to be calculated merely by conjecture." This language seems to imply that, at law, the whole period of the contract would be inquired into, on the principle of the Vermont decision.

(n) Ante, Chap. II., p. 43.

(o) Cottrell v. Jones, 11 C. B., p. 712; Hutchins v. Hutchins, 7 Hill, 104.

(1) An agreement was made that the plaintiff should enter into the employment of defendants for the sale of wines on commission; the agreement to continue in force for five years, and the defendants guaranteeing the plaintiff 600l. per annum as a minimum revenue from the business during the continuation of the agreement. Held that the plaintiff might sue in any year during the continuance of the agreement for breaches in any former year; but that, if there was an entire dismissal from the service before the expiration of the agreement, the plaintiff ought to include in one action the whole gravamen he would suffer by such a breach of contract. Clossman v. Lacoste, 28 Eng. L. & E. 140; S. C., 23 Law J. R., 91.

This rule is in fact a wise one-one that should be kept carefully and constantly in view. There are many cases where the preven tive power of courts of justice may be exercised most beneficially, and in those cases, future events must be taken into consideration; but when the plaintiff applies for pecuniary redress, nothing can as a general rule be more reasonable than to require him to show that he has actually sustained injury. There would be neither wisdom or justice in compelling a defendant to pay the plaintiff money as compensation for a loss which he has not incurred, and which he may never sustain. These remarks of course, do not apply to cases where a liability has attached that may fairly be regarded as inevitable, and sure to be responded to by the party charged.

But to this rule there are exceptions which require to be noticed; and the principal one grows out of the question how far the plaintiff can recover for loss which he is legally liable to sustain. There is no doubt that a mere probability of future loss is insufficient to lay the basis of a claim for legal relief. But the case may be different where the plaintiff is fixed with a legal liability to loss which, whenever consummated, the defendant will be bound to make good. The question here is, can suit be brought, or a recovery had, before the injury is actually consummated.

Some exceptions of this kind to the general rule, which requires proof of actual loss, have been made in actions on policies of insurance. Thus it has been held, that a party insured can recover his contributory share of general average from the underwriter, although he has not paid it, and his interest in the

voyage, cargo, freight, or vessel is only liable to pay it. (p) [230] So a party in possession of a house, under a contract of purchase, can recover the whole sum insured against fire, although he has paid but a small part of the purchase money, and is only liable to pay the balance. (2) So the re-assured has been held at liberty to sue and recover from the re-assurer the full amount insured, although the re-assured had not repaid it, and from his insolvency could not by possibility do so. (r) So the importer has been allowed to recover from the underwriter the value of his goods destroyed by fire, including duties, though

(p) Phillips on Insurance,

(9) The Etna Fire Co. v. Tyler, 16 Wend., 385.

(r) Hone et al. v. The Mutual Safety Insurance Co., 1 Sandford's Sup. Ct. Rep., 187.