claimant to show what the profits would have been; and as the Court of Claims expressly finds that it does not appear from the evidence whether or not the claimant would have made any profits or would have incurred loss, there[343] fore the claimant was not entitled to judgment for any amount whatever.

The manner in which the subject was viewed by the Court of Claims is shown by the following extract from its opinion:

"Whatever rule may be adopted in calculating the damages to a contractor when, without his fault, the other party, during its progress, puts an end to the contract before completion, the object is to indemnify him for his losses sustained and his gains prevented by the action of the party in fault, viewing these elements with relation to each other. The profits and losses must be determined according to the circumstances of the case and the subject-matter of the contract. The reasonable expenditures already incurred, the unavoidable losses incident to stoppage, the progress attained, the unfinished part and the probable cost of its completion, the whole contract price, and the estimated pecuniary result, favorable or unfavorable to him, had he been permitted or required to go on and complete his contract, may be taken into consideration. Sickles' Case, 1 Ct. Cl., 214; Speed's Case, 2 Ct. Cl., 429; affirmed on appeal, 8 Wall., 77 [75 U. S., XIX., 449], and 7 Ct. Cl., 93; Wilder's Case, 5 Ct. Cl., 468; Bulkley's Case, 7 Ct. Cl., 543, 19 Wall., 37 [86 U. S., XXII., 62],and 9 Ct. Cl., 81; Parish's Case, 100 U. S., 500 [XXV., 763]; Field's Case, 16 Ct. Cl., 434; Moore & Krone's Case, 17 Ct. Cl., 17; Power's Case [18 Ct. Cl., 493], decided at this Term; Masterton v. Brooklyn, 7 Hill, 71.

The amount of the claimant's unavoidable expenditures and losses already incurred are set forth in the findings. But we can give him nothing on account of prospective profits, because none have been proved. So, for the same reason, we can deduct nothing from his expenditures on account of prospective losses which he might have incurred had he not been relieved from completing his contract. This leaves his expenditures as the only damages proved to have resulted to him from the defendants' breach of contract, and are, therefore, the proper measure of damages under all the circumstances of the case."

he failed to do; and the court below very prop-
erly restricted its award of damages to his act-
ual expenditures and losses.

The prima facie measure of damages for the
breach of a contract is the amount of the loss
which the injured party has sustained thereby.
If the breach consists in preventing the perform-
ance of the contract, without the fault of the
other party, who is willing to perform it, the
loss of the latter will consist of two distinct
items or grounds of damage, namely: first, what
he has already expended towards performance
less the value of materials on hand; secondly,
the profits that he would realize by performing
the whole contract. The second item, profits,
cannot always be recovered. They may be too
remote and speculative in their character and,
therefore, incapable of that clear and direct
proof which the law requires. But when, in
the language of Chief Justice Nelson, in the
case of Masterton v. Brooklyn, 7 Hill, 69, they
are "the direct and immediate fruits of the con-
tract," they are free from this objection; they
are then "part and parcel of the contract itself,
entering into and constituting a portion of its
very elements; something stipulated for, the
right to the enjoyment of which is just as clear
and plain as to the fulfillment of any other stip-
ulation." Still, in order to furnish a ground of
recovery in damages, they must be proved. If
not proved or if they are of such a remote and
speculative character that they cannot be legal-
ly proved, the party is confined to his loss of
actual outlay and expense. This loss, however,
he is clearly entitled to recover in all cases, un-
less the other party, who has voluntarily stopped
the performance of the contract, can show the
contrary.

The rule as stated in Speed's Case is only one aspect of the general rule. It is the rule as applicable to a particular case. As before stated, the primary measure of damages is the amount of the party's loss; and this loss, as we have seen, may consist of two heads or classes of damage

actual outlay and anticipated profits. But failure to provide profits will not prevent the party from recovering his losses for actual outlay and expenditure. If he goes also for profits, then the rule applies as laid down in Speed's Case, and his profits will be measured by "the difference between the cost of doing the work and what he was to receive for it," etc. The claimant was not bound to go for profits, even though he counted for them in his petition. He might stop upon a showing of losses. The two heads of damage are distinct, though closely related. When profits are sought, a recovery for outlay is included and something more. That something more is the profits. If the outlay equals or exceeds the amount to be received, of course there can be no profits.

We think that these views, as applied to the case in hand, are substantially correct. The claimant has not received a dollar, either for what he did or for what he expended, except the proceeds of the property which remained on [344] his hands when the performance of the contract was stopped. Unless there is some artificial rule of law which has taken the place of natural justice in relation to the measure of damages, it would seem to be quite clear that the claim- When a party injured by the stoppage of a ant ought, at least, to be made whole for his loss-contract elects to rescind it, then, it is true, he es and expenditures. So far as appears, they were incurred in the fair endeavor to perform the contract which he assumed. If they were foolishly or unreasonably incurred, the Government should have proven this fact. It will not be presumed. The court finds that his expenditures were reasonable. The claimant might also have recovered the profits of the contract if he had proven that any direct, as distinguished from speculative, profits would have been realized. But this

cannot recover any damages for a breach of the
contract, either for outlay or for loss of profits;
he recovers the value of his services actually
performed as upon a quantum meruit. There
is then no question of losses or profits. But
when he elects to go for damages for the breach
of the contract, the first and most obvious dam-
age to be shown is, the amount which he has been
induced to expend on the faith of the contract,
including a fair allowance for his own time and

[345]

forth, by way of petition, a plain statement of
the facts without technical formality, and prays
relief either in a general manner, or in an alter-
native or cumulative form, the court ought not
to hold the claimant to strict technical rules of
pleading, but should give to his statement a
liberal interpretation, and afford him such re-
lief as he may show himself substantially en-
titled to if within the fair scope of the claim as
exhibited by the facts set forth in the petition.
We think that the judgment of the Court of
Claims was right, and it is affirmed.
True copy. Test:

services. If he chooses to go further and claims | ing like the present, in which the claimant sets for the loss of anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed. It does not lie, however, in the mouth of the party, who has voluntarily and wrongfully put an end to the contract, to say that the party injured has not been damaged at least to the amount of what he has been induced fairly and in good faith to lay out and expend, including his own [346] services, after making allowance for the value of materials on hand; at least it does not lie in the mouth of the party in fault to say this, unless he can show that the expenses of the party injured have been extravagant and unnecessary for the purpose of carrying out the contract.

It is unnecessary to review the authorities on this subject. Some of them are referred to in the extract made from the opinion of the court below; others may be found referred to in Sedgwick on the Measure of Damages, in Smith's Leading Cases, Vol. 2, p. 36, etc., notes to Cutler v. Powell; Addison, Contracts, secs. 881, 897. The cases usually referred to, and which, with many others, have been carefully examined, are Planchè v. Colburn, 5 Car. & P., 58; S. C., 8 Bing., 14; Masterton v. Brooklyn, 7 Hill, 61; Goodman v. Pocock, 15 Ad. & E. (N. S.), 576; Hadley v. Baxendale, 9 Exch., 341; Fletcher v. Tayleur, 17 C. B., 21; Smeed v. Foord, 1 El. & El., 602; Inchbald v. Western Coffee Co., 17 C. B. (N. S.), 733; Griffin v. Colver, 16 N. Y., 489, and the case of U. S. v. Speed, before referred to.

James H. McKenney, Clerk, Sup. Court, U. 8.
Cited-111 U. S., 274.

COUNTY OF HOWARD, Plff. in Err.,

v.

GAIUS PADDOCK.

(See 8. C., Reporter's ed., 384, 385.)

Act amending charter.

The Missouri Act of 1868, amending the charter of
the La. and Miss. R. R. Company, did not so change
the original charter as to subject it to the prohibi-
tions of the State Constitution of 1865, as to munic-
ipal subscriptions made after that Act was passed.
[No. 224.]
Argued Jan. 22, 1884. Decided Feb. 4, 1884.

states for the Western District of Missouri.

N ERROR to the Circuit Court of the United

This action was brought in the court below, by the defendant in error, to enforce the payment of the coupons of certain bonds held by him.

A jury having been waived, the court found for the plaintiff and gave judgment in his favor, for $6,884.28. Whereupon, the defendant sued out this writ of error.

Mr. John D. Stevenson, for plaintiff in error.

Mr. John H. Overall, for defendant in error.

It is to be observed that when it is said in some of the books, that where one party puts an end to the contract, the other party cannot sue on the contract, but must sue for the work actually done under it, as upon a quantum meruit; this only means that he cannot sue the party in fault upon the stipulations contained in the contract, for he himself has been prevented from performing his own part of the contract upon which the stipulations depend. But surely, the willful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained. The distinction between those claims under a contract which result from a perform-ion of the court; ance of it on the part of a claimant, and those claims under it which result from being prevented by the other party from performing it, has not always been attended to. The party who voluntarily and wrongfully puts an end to a contract and prevents the other party from performing it, is estopped from denying that [347] the injured party has not been damaged to the extent of his actual loss and outlay fairly incurred.

The particular form of the petition in this case ought not to preclude the claimant from recovering what was fairly shown by the evidence to be the damage sustained by him. Though it is true that he does pray judgment for damages arising from loss of profits, yet he also prays judgmeht for the amount of his outlay and expenses less the amount realized from the sale of materials on hand. The claim for profits, if not sustained by proof, ought not to preclude a recovery of the claim for losses sustained by outlay and expenses. In a proceed

Mr. Chief Justice Waite delivered the opin

It was conceded on the argument of this case that under the original charter of the Louisiana and Missouri River Railroad Company granted in 1859, Howard County had authority to subscribe to the capital stock of the company without a vote of the people, and that this authority was not taken away by the Constitution of 1865. The claim is, however, that the amending Act of 1868 so changed the original charter as to subject it to the prohibitions of the Constitution as to municipal subscriptions made after that Act was passed and accepted by the company. As to this it is sufficient to say that in Callaway Co. v. Foster, 93 U. S., 567 [XXIII., 911], it was decided otherwise. By the Act of 1868, power was given to build a branch through Callaway Coun ty, and to extend the road across the Missouri River, but no change was made in the direction of the main line. That was left to the discretion of the directors, who retained their original [385] authority to build through Howard County on the way to the Missouri. The original author.

must be considered in determining whether this
court can take jurisdiction on a writ of error sued
out by the plaintiff.

ity of Howard County to subscribe to the stock | general issue is pleaded, the matter in dispute is the
was, consequently, unimpaired. The fact that debt claimed; and its amount, as stated in the body
of the declaration, and not merely the damages al-
the branch through Callaway County was lo-leged, or the prayer for judgment at its conclusion,
cated, and the subscription of that county re-
ceived, before Howard County made its subscrip-
tion, is unimportant in this case, because the
line through Callaway County was located as a
branch, while that through Howard County
was designated in express terms as the main line.
If either part of the road was built under new
authority conferred on the company by the Act
of 1868, it certainly was not the main line as lo-
cated. The power to build the main line was
clearly conferred by the Act of 1859.

It follows that the judgment of the Circuit Court
was right, and it is, consequently, affirmed.
True copy. Test:

2. In an action on a policy of insurance, where the value of the goods lost is alleged to have been $5,010 and a judgment is asked for that amount, but the insurance was only for $4,000, the stipulation of the parties, that judgment might be entered for $5,010, if the court should be of opinion that the plaintiffs were entitled to recover at all, will not be accepted as giving this court jurisdiction.

3. Arrangements between parties, contradictory to their pleadings and evidently made for the purpose of enlarging the case sufficiently to bring it

within the jurisdiction of this court, cannot be rec

ognized here.

[No. 230.]

James H. McKenney, Clerk, Sup. Court, U. S. | Argued Jan. 24, 1884. Decided Feb. 4, 1884.

Ex Parte:

CLODOMIRA COTA.

(See S. C., Reporter's ed., 385, 386.)
Jurisdiction on division of opinion.

This court cannot take jurisdiction of a certificate
of division in opinion between the Judges of the
Circuit Court in proceedings under a writ of habeas
corpus, until final judgment has been rendered in
accordance with the opinion of the presiding Justice
or Judge.
[No. 227.1

This is a suit upon an open cargo policy of
insurance issued by the Buffalo Insurance Com-
pany to the firm of Webster, Heinicke & Cog-
St. Louis
lin "On shipments of merchandise to them at
* * they stipulating to report
office as soon as advised thereof." The aggre
all such shipments and modes of transit to this
O the Judges of the Circuit Court of the Unit-gate amount of the Company's liabilities under

Submitted Jan. 22, 1884. Decided Feb. 4, 1884.

a certificate of division of opinion between

ed States for the District of California.

Mr. Wm. A. Maury, Asst. Atty-Gen., for

the United States.

No counsel appeared for the petitioner.

Mr. Chief Justice Waite delivered the opin

ion of the court:

*

the policy was in no case to exceed $5,000 on
one vessel at any one time, unless special ar-
rangements were mutually agreed upon for
amounts exceeding that sum. One of the con-
loss, the adjustments of the same shall be made
ditions of the policy was that, "In case of total [387]
upon the valuations specified in the policy, if
any; but in the absence of a valuation, then
upon the invoice price, without reference to the

market value of the article insured."

It was decided at the last Term in Ex parte Tom Tong, 108 U. S. [XXVII., 826], that this court could not take jurisdiction of a certificate of division in opinion between the judges of a [386] circuit court in proceedings under a writ of ha-pleading is, that "On the 26th day of February, beas corpus, until final judgment had been rendered in accordance with the opinion of the presiding justice or judge. This is such a case, and it is, consequently, remanded to the Circuit Court for further proceedings according to law. True copy. Test:

The allegation of Webster and Coglin in their 1879, they notified defendant at its office in said City of St. Louis, of the shipment to them at the said City of St. Louis from the Port of Liv erpool, England, on some steamboat whose name was then unknown to said firm, of the

James H. McKenney, Clerk, Sup. Court, U. S. merchandise mentioned in the plaintiffs' pcti

tion, and requested defendant to enter said ship-
ment on defendant's books at the valuation of
$4,000, and then and there delivered to defend-

WILLIAM H. WEBSTER ET AL., Plffs. in ant a written and printed application for enter

Err.,

v.

BUFFALO INSURANCE COMPANY.

(See S. C., Reporter's ed., 386-389.) Jurisdiction as to amount-policy of insurancestipulation as to amount.

1. In an action upon a money demand, where the NOTE.-Jurisdiction of U. S. Supreme Court depends on amount; interest cannot be added to give Jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy. See note to Gordon v. Ogden, 28 U. S. (3 Pet.(, 33.

ing said merchandise under said policy upon a
blank form furnished by defendant therefor;
whereupon the defendant, by and through
their agents * * * accepted said notice, and
then and there agreed to accept said risk for
said firm under said policy of insurance ***
and to cover the merchandise mentioned in
plaintiffs' petition under said policy in the sum
of $4,000." The goods were lost on the voyage,
and this suit was begun on the first of May, 1879.
The further allegation is that the goods were
worth $5,010, and a judgment is asked for
that amount. The defense is that the policy
did not include the ocean risk, and was limited
to river cargo and nothing else.

On the 23d of April, 1880, the following | SPRING VALLEY WATER WORKS, Piff. stipulation was filed in the cause:

in Err.,

v.

ANTONE SCHOTTLER ET AL., Constituting the Board of Supervisors of the CITY AND COUNTY OF SAN FRANCISCO.

(See S. C., Reporter's ed., 347-384.)

California water companies-charges for water -power of Legislature to alter or repeal a charter to fix prices-power of courts-contract.

"The plaintiffs and defendants agree that the value of the merchandise described in the plaintiffs' said petition is the sum of $4,800, and that upon the trial of this cause neither party shall give any evidence as to said value. Also, that If the court shall be of opinion that the plaintiffs are entitled to judgment, the judgment shall be entered for the sum of $5,010. But this agreement is expressly limited to the single [388] fact of value, and is not to be taken as admit ting any right of the plaintiffs to recover in this case. It being well understood by the 1. Water companies in California, formed under plaintiffs that as to all facts necessary to be the Act of 1858, before the adoption of the Constituproved by the plaintiffs to entitle them to judg- tion of 1879, have no right, which the State is prohibited by the Constitution of the United States ment, they must make legal proof thereof, ex- from impairing or taking away, to charge their cuscepting only the value of the merchandise tomers such prices for water as may from time to aforesaid." Judgment was given for the Com-time be fixed by a commission made up of two persons selected by the company, two by the public pany on facts found, and to reverse that judg- authorities of the locality and, if need be, a fifth, ment this writ of error was brought. selected by the other four or by the sheriff of the county.

2. The State has power, notwithstanding the prohibitions of the Constitution of the United States, to substitute for this commission, another, selected without the co-operation of the company or some other tribunal of a different character, like the municipal authorities of the locality. 3. In a State, whose Constitution puts into every charter the reservation of the right to alter or repeal it, a corporation is subject to the legislative power of alteration, from the moment of its creation and, if deemed expedient, of absolute extinguishment as a corporate body.

It was decided in Lee v. Watson, 1 Wall., 339 [68 U. S., XVII., 558], that "In an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed, and its amount, as stated in the body of the declaration, and not merely the damages alleged or the prayer for judgment at its conclusion, must be considered in determining whether this court can take jurisdiction on a writ of error sued out by the plaintiff." Such is now the established rule. Schacker v. Ins. Co., 93ulate the prices at which water shall be sold by one 4. It is within the power of the government to regU. S.. 241 [XXIII., 862]; Gray v. Blanchard, who enjoys a virtual monopoly of the sale. 97 U.S., 565 [XXIV., 1109]; Tinstman v. Nat. Bk., 100 U. S., 6 [XXV., 530]; Bkg. As80. V. Ins. A880., 102 U. S., 121 [XXVI., 45]; Hilton v. Dickinson, 108 U. S., 165 [XXVIÏ., 688]. In the present case, although the value of the goods is alleged to have been $5,010 and a judgment is asked for that amount, it appears distinctly, both in the petition of the plaintiffs and | Argued Nov. 19, 20, 21, 1883. Decided Feb. 4, their reply to the answer of the defendant, that the insurance was for $4,000 and no more.

5. When amendments to a charter are within the interfere with the discretion of the Legislature that scope of the legislative power, the courts cannot has been invested with authority to make them.

6. The provision for fixing rates cannot be separated from the remainder of the statute, by calling it a contract. It is subject to the reserved legislative power of alteration and repeal. [No. 288.]

1884.

fornia. The history and facts of the case appear in the opinion of the court and in the dissenting opinion.

Messrs. Geo. F. Edmunds, Charles N. Fox, Francis G. Newlands, Richard Crowley, and A. A. Sargent, for plaintiff in error:

The loss occurred at some time after February IN ERROR to the Supreme Court of Cali-
26, 1879, and the judgment was rendered Janu-
ary 4, 1881, so that if the plaintiffs had recovered
according to their claim as stated in the plead-
ings, their judgment, after interest was added to
the amount of the insurance, would have been
less than $5,000. Although it was agreed that
the goods were actually worth more than $4,000
and the loss was total, it was one of the condi- Section 4 of the Act of 1858 for the incorpora-
tions of the insurance that the adjustmentshould tion of water companies, constitutes a contract
be made upon the valuation specified in the pol-between the State and the Company, wherein
icy. The actual value of the goods at the time
of the insurance or of the loss is therefore unim-
portant.

We cannot accept the stipulation of the parties, that judgment might be entered for [389] $5,010,if the court should be of opinion that the plaintiffs were entitled to recover at all, as giving us jurisdiction. The dispute, as developed in the pleadings, was as to the liability of the Company upon a contract of insurance for $4,000, and no more. Arrangements between parties, contradictory to their pleadings and so evidently made for the purpose of enlarging the case sufficiently to bring it within the jurisdiction of this court, cannot be recognized here. It follows that the writ should be dismissed for want of jurisdiction, and it is so ordered. Dismissed. True copy._Test:

James H. McKenney, Clerk, Sup. Court, U. S.

for good consideration it is mutually agreed that the State and the Company shall have an equal voice in fixing the rates at which the water shall be sold for family uses and municipal purposes, and the obligations thereof cannot be impaired by subsequent legislation or constitutional provision, without a violation of section 10, article I, of the Constitution of the United States.

Stone v. Miss., 101 U. S., 816 (XXV., 1079); Davis v. Gray, 16 Wall., 203 (83 U. S., XXI., 447); R. R. Co. v. McClure, 10 Wall., 511 (77 U. S., XIX., 997); Dodge v. Woolsey, Bank v. Debolt and Bank v. Thomas, 18 How., 331, 380, 384. (59 U. S., XV., 401, 458, 460); Bank v. Skelly, 1 Black, 436 (66 U. S., XVII., 173); McGee v. Mathis and Von Hoffman v. Quincy, 4 Wall., 143, 535 (71 U. S., XVIII., 314, 403); Glover v. Powell, 2 Stockt., 211; Smith v. Appleton, 19 Wis., 468.

If there be power to amend, the amendment | R. R. Co. v. Maine, 96 U. S., 510 (XXIV., 840); must be reasonable, made in good faith and Miller v. State and Holyoke Co. v. Lyman, 15 consistent with the scope and object of the orig- Wall., 498, 519 (82 U. S., XXI., 104, 139); Tominal Act. It is not a power to substitute one linson v. Jessup (supra); Mayor v. R. R. Co., 109 thing for another nor to take a right from one Mass., 103. party and confer it upon another.