#### FRANK A. BEHAN v. THE UNITED STATES.

No. 12966

May 28, 1883.

A contractor failed, to perform Ms work satisfactorily under a written contract with the defendants, and his contract was annulled.

The claimant, a surety on his bond, was permitted to assume the same and' go on with the work in place of the contractor.

After expending much money and doing a large part of the work, the defendants abandoned the undertaking because!)! the failure of the plan to accomplish the intended object, and without fault of the claimant. By defendants’ order he stopped work.

The claimant sues for losses and expenditures, and for prospective profits.

The court finds his actual losses, but is unable from the evidence to determine whether there would have been profits or losses had he completed the contract and been paid the full contract price.

Held :

■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.

*688The profits and losses must be determined according to tbe circumstance» of tbe case and tbe subject-matter of tbe contract.

Tbe reasonable expenditures already iucurred, tbe unavoidable losses incident to stoppage, tbe progress attained, tbe unfinished part, and tbe probable cost of its completion, tbe whole contract price, and the estimated pecuniary result, favorable or unfavorable to him, bad be been permitted or required to go on and complete bis contract, may be taken into consideration.

This case was transmitted to the court by the Secretary of War, under the provisions of Bevised Statutes, § 1063, by the following letter:

War Department, *Washington City, June*19, 1882.

*To the honorable the Judges of the Court of Claims :*

The undersigned, Secretary for tbe Department of War of tbe United States, hereby respectfully represents that a claim has been made against said Department by Mr. F. A. Behan for amount alleged to be due him for expenses incurred and labor performed in carrying out the contract dated December 26,1879, of John Roy with tbe Engineer Department, for improving tbe harbor of New Orleans, La., Behan being one of Roy’s bondsmen.

The amount in controversjr exceeding $3,000, and involving disputed facts, tbe undersigned, in accordance with tbe provisions of section 1063 of tbe Revised Statutes, transmits said claim, with tbe vouchers, papers, proofs, and documents pertaining thereto, to tbe Court of Claims for trial and adjudication.

Very respectfully,

Robert T. Lincoln, *Secretary of War.*

The following are the facts found by the court:

I. After advertisements and proposals, as required by statute, the following contract was entered into between one John Boy and an officer of the Army, in behalf of the defendants, as therein set forth (omitting the specifications as not material to the issues involved in the case), and the claimant, with two other persons, became sureties on the bond of Boy for the faithful performance of his agreements:

Articles of agreement entered into this 26 day of December, eighteen hundred and seventy-nine (1879), between Charles W. Howell, Major, Corps of Engiueers, U. S. Army, of tbe first part, and John Roy, of New Orleans, of the parish of New Orleans, State of Louisiana, of tbe second part.

This agreement witnessetb that, in conformity with tbe advertisement and specifications hereunto attached, and which form a part of this contract, tbe said Charles W. Howell, for and in behalf of the United States *689himself, his heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other as follows, viz:

To manufacture, furnish, and place an artificial covering of cane mats over the sloping portions of the river fiWt of the third district of New Orleans, Louisiana, in a similar manner and- in continuation of the same work as has been done heretofore und^r the direction of the said party of the first part, and as set forth in said specifications and proposals herewith attached. It is further agreed between the contracting parties aforesaid that the said party of the second part may place his guide piles seven (7) feet apart, from center-to center, instead of six (6) feet apart, as provided for in said specifications, for the reason that fourteen (14) feet, clear width of each mat, is calculated to cover that portion of the line measured along the guide piles. It is further agreed between tie said contracting parties that the said party of the second part shall have all his plant and material and have made his arrangements to commence, and shall commence, the laying of mats on or before the .date at which the Mississippi River, after the flood of 1879 *&*1880, shall have fallen to a stage represented on the Carrollton gauge as a seven (7) foot stage.

Eor and in consideration of the said party of the second part faithfully complying with his agreement, the said party of the first part agrees to pay to the said party of the second part, or his heirs, executors, and administrators, the sum of sixty five (65) cents per square yard for all such sloping portion of the river bank as the said mats may cover to the satisfaction of the said party of the first part, less, each payment, the percentage specified hereinafter, which is to be held until satisfactory completion of contract. ■ . -

All materials furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the Government, and such as does not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.

The said John Roy shall ’commence said work as hereinbefore stated, and shall complete the same within six (6) months from the time of placing the first mat in position on bed of river.

If, in any event, the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have power, with the sanction of the chief of engineers, to annul this contract by giving notice in writing to that effect to thg party (or parties, or either of them) of the second part; and,’upon the giving of such notice, all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of the materials be in his *690opinion required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised. Statutes of the United States: *Provided, however,*That if the party (or parties) of the second part shall, by freshets, ice, or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work, or delivering the materials at the tíme agreed upon in this contract, such additional time may, in writing, be allowed him or them for such commencement or completion as, in the judgment of the party of the first part or his successor, shall be just and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect, and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.

If, at any time during the prosecution of the work, it be found advantageous or necessary to make any change or modification in the project, and this change or modification should involve such change in the specifications as to character and quantity, whether o>f labor or material, as would either increase or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices of both material and labor thus substituted for those named in the original contract, and before taking effect must be approved by the Secretary of War: *Provided,*That no payments shall be made unless such supplemental or modified agreement was signed and approved before tho obligation arising from such modification was incurred.

No claim whatever shall at any time be made upon the United States by the party or parties of the second part for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein unless such extra work or materials shall have been expressly required in writing by the party of the first part or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the chief of engineers.

Payments shall be made to the said John Boy, reserving ten (10) per cent, from each payment until the whole work shall have been so delivered and accepted, at or near the close of each month’s work on measurement of covering in place on the. bed of the river, on certificate of the inspector.

Neither this contract nor any interest therein shall be transferred by tbe said John Roy to any other party; and any such transfer shall cause the annulment of the contract so far as the United States are concerned. All rights of action, however, to recover for any breach of this contract by the said John Roy are reserved to the United States.

No member or delegate to Congress, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or i:>art of this contract, or to any benefit which may arise therefrom. This contract shall not go into effect until approved by the Chief of Engineers, U. S. A., or the acting chief of engineers.

*691Nhave hereunto placed their hands and seals the date first hereinbefore written.

C. W. Howell, [seal.] *Maj. of Engs., U. S. A.*John Eoy. [seal.]

II. Said Eoy prosecuted the work under said contract during the year 1880, but, his progress not being satisfactory to the engineer officers, the contract was formally annulled February 10, 1881, and the bondsmen; were addressed as follows:

U. S. ENGINEER, OEEICE,

No. 3 S. Bampart Street,

New *Orleans, La., Féb.*10, 1881.

To Messrs. Frank A. Behan,

Wm. H. Beanham, and E. E. Eoucher,

*Sureties, Nets Orleans, La.:*

Sirs : This office has to inform you that it has this day annulled the contract (dated Dec. 26, 1879) between 'Major C. W. Howell, Corps ofEng'rs, U. S. A., acting for the United States, and Mr. John Eoy, for certain works of improvement on the 3rd district harhor front of the harbor of New Orleans, and for the due performance of which work you are bondsmen.

Due notice was given you from this office (under date of Jau’y 25, 1881) that recommendation to that effect Would be made. A copy of the letter of recommendation is enclosed, marked A, also a copy of reply, marked B.

It will be seen from the copy of reply (marked B) that the bondsmen may claim the right to continue the work of their own account and under the contract, if they so desire. *1 '*.

Should the bondsmen desire to continue the work on their own account and under the terms of contract, they will please so notify this office, in writing, over their signatures, duly attested by a notary public or other public officer, with seal of office.

It is considered by this office desirable to limit time for action of bondsmen in this matter, as follows, viz:

If bondsmen do not indicate to this office, in the manner described above, their desire before March 15, 1881 (30 days’ notice), it will be assumed that they waive their rights.

Should bondsmen give notice, as suggested above, within the above named time, it will then be required that on or before the 30th of May, 1881, they show progress in the way of preparation for continuing the work sufficient to establish their good intention to begin laying of mats as soon as the river afterward marks a seven (7) foot stage on the Carrolton gauge. Else, under the clause of contract requiring due diligence, recommendation for entire annulment and releting, or direct assumption by the United States, will be .made, so as to prevent injurious delay in resumption of work.

The annulment of contract does not in any way relieve either Mr. Eoy or his bondsmen from their responsibility under the bond.

Very respectfully, your ob’d’t servant,

C. W. Howell,

*Major of Engineers.*

*692March. 14,1881, the claimant notified Major Howell that he would undertake the work. The other sureties either failed to respond or withdrew, and Behan was recognized by the engineer office as the contractor. April 9,1881, in response to claimant’s inquiries, Major Howell addressed him as follows:

U. S. ENginber Office, No. 3 S. Kami?art Street, *New Orleans, La., April*9,1881.

Mr. F. A. Behan, *New Orleans, La. :*

Sir: In. compliance with, your verbal request I have to inform you that the upper line of the work which, as “surety on bond,” you have assumed under contract of John Roy, covers the 3rd district harbor front of New Orleans from a point opposite the head of Mandeville street, and for a distance down stream (measured along crest of levee) of 2,262 feet; also a distance of 1,466 feet, from the point where Roy suspended work, to Congress street, or so much thereof as the money available will cover.

To thoroughly cover the first-named front with carpets 200 feet long, *if laid exactly,*will take 50,267 square yards, but in practice (owing to inexact laying) it will take a larger number of square yards to cover the ground as provided for in contract.

The lower section of 1,466 feet would require (exact) 32,577 square yards, “but, as in the first section, you must allow for a large percentage of waste from inexact laying.

The number of square yards accepted by inspector, and for which the appropriation will be sufficient, will be, probably, not to exceed 77,000, or at most 80,000 square yards, according to amount of expense to which the IT. S. may be put for inspection.

This information will enable you to limit your purchases, so that when work maybe closed from exhaustion of appropriation under which contract was made you need have but little waste material on hand. I presume it is for that reason that you requested'the information.

Very respectfully, your ob’d't servant,

C. W. Howell, *Mayor of Engineers.*

III. The contract was of such a character as to require extensive preparations and a large initial expenditure. The claimant made the necessary preparations for carrying on the work to completion and in procuring boats, tools, materials, and apparatus for its prosecution. He engaged actively in carrying out the contract on his part, incurred large expenditure for labor and materials, and had for some time proceeded with the work, when the undertaking was abandoned by the defendants *693and the work stopped, without fault of the claimant, as set forth in the following letters:

U. S. Engineer Office, Board Boom, No. 3 S. Rampart Street, *New Orleans, La., Sept. 23rd,*1881.

General: The Board of Engineer Officers convened by your Special Order No. 97, to consider & report upon the work of improvement of New Orleans Harbor, have been in session here since the 20th inst. They have carefully examined into the whole subject & are now prepared to report upon the first clause of the instructions furnished for their *guidance;*that is, upon the propriety of continuing-, operations under the present plan of improvement.

The Board are unanimously of the opinion that the object sought to be accomplished by this improvement has not been attained, and they do not think that under the present plan of operations this object can be obtained.

As the expenditures under present contracts amount to about $1,000 per day, the Board have felt justified by their instructions in recommending an immediate suspension of operations, & this decision was announced to you by telegraph to-day.

The Board will submit a preliminary report, covering this portion of the subject, as soon as it can be prepared, probably in the course of 10 or 12 days.

Their final report on the whole subject cannot be presented for some time, as additional surveys are imperatively-needed for the preparation of reliable plans & estimates. This work will be undertaken at once, & as soon as the results are available the Board will reconvene for the preparation of their final report.

I am, general, very resp’f’y, your ob’d’t servant,

Chas. R. Suter, *Major of Engrs. ,U. S. A., Eres’d’t of Board.*

Brig. Gen. H. G. Wright, *Chief of Engineers, U. S. Army, Washington, L>. C.*

United States Engineer’s Office, 404 Market Street, *Sgint Louis, Missouri, October 5,*1881.

General: The Board of Engineer Officers, constituted by Special Orders No. 97, Headquarters Corps of Engineers, September 12,1881, to examine the present condition of the work in progress for the protection of the river front of New Orleans, La., had, by your letter of instructions of September 12,1881, two subjects presented for its consideration, viz:

1st. The question of the propriety of continuing the present plan of improvement; and,

2d. To examine anew into the subject of the improvement with all the light that the experience of the officer in charge might afford, and, if found necessary, to consider and mature a new'plan for the protection^ the river front. * * *

[The part omitted contains the views, and reasons therefor, of the Board, which are not material in this case.]

*694The Board is therefore forced to the conclusion that the present plan of improvement, whether viewed in outline as to its general merits, or in detail as to its method of execution, should not he continued.

Chas. B. Suter,

*Maj. of Eng’rs, U. 8. A., Pres’cl’t of Board.*

W. H. H. Benyaurd,

*Major Engineers.*

Amos Stickney,

*Maj. of Eng’rs, XT. S. A.*

O. H. Ernst,

*Gapt. of Eng’rs, IT. S. Army.*

Brig. Gen. H. G. Wright, *Chief of Engineers, V. S. A., Washington, D. C.*

U. S. Engineer Oeeice, No. 3 S. Eampart Street, *New Orleans, La., Sept.*29, 1881.

Mr. E. A. Behan:

Sir: The following telegram has been just received from the CJiief of Engineers:

Washington, D. 0., *Sept.*28, 1881.

Maj. Howell,' *Eng’rs, N. 0., La.*;

Secretary of War directs that all operations for improving harbor at New Orleans under present plan be at once discontinued.

Wright, *Ch’f of Engrs.*

New Orleans, *Sepl’r*30, 1881.

Maj. C. W. Howell,

*V. S. Engineer in charge of Harbor Works, Neui Orleans:*

Dear Sir : Your communication of yesterday transmitting the copy of teiegram from Secretary of War, through Gen’l Wright, Chief of Engineers, directing the discontinuance of harbor works, has been received. Your instructions in connection therewith will be carried out. I have ordered all work stopped and have left a proper force of men to take care of the apparatus, materials, &c., and now await further advices from you.

Permit me, in connection with above, to call your attention to the fact that the launching boat, pile-driver, and triangle now lay in a very exposed position, with a mat nearly complete for launching.' Your instructions relative to placing the plant in a safe locality while not in use is requested.

Very respectfully.

E. A. Behan.

IY. Tbe claimant thereupon closed up bis work and sold the materials which- he had on hand. Nothing has been paid to him for work, materials, or losses.

The actual and reasonable expenditures by the claimant in the prosecution of his work, together with his unavoidable *695losses on the materials .on band at the time of the stoppage by the defendants, were equal to the full amount claimed therefor in his petition, $33,192.20.

It does not appear from the evidence thereon, on the one side and the other, whether or not the claimant would have made any actual profit over and above expenditures, or would have incurred actual loss had he continued the work to the end and been paid the full contract price therefor.

*Mr. George L. Douglass*for the claimant:

1. The *Act of March,*3,1879, cli. 181 (20 Stat. L., 363) appropriated $60,000 for the improvement of the New Orleans Harbor; under which a contract was entered into between the Engineer Office and John Roy, for certain work described in the accompanying specifications; and the present claimant, Behan, became one of three bondsmen for the contractor. As the work did not satisfactorily progress, the contract was annulled. Claimant and his co-sureties were then advised that if they desired to “ continue the work on their own account and under the terms of contract,” they would be allowed to do so. Claimant responded in the affirmative and was thereupon authorized to proceed, and was regularly recognized as the contractor. In legal effect, the old contract was thus revived and renewed with a change in one of the parties and an implied change of the date for completion.

2. The contemplated work called for large outlay and extensive preparation. Claimant, therefore, made special' inquiry to ascertain how much preparation he would be justified in making, with a view to the limits of the existing appropriation. In reply he was officially informed that he would be warranted in making the necessary preparations for laying “not to exceed 77,000, or at most 80,000, square yards” of matting.

The renewed contract was therefofe substantially to furnish and lay not less than 77,000 yards of matting at 65 cents a yard, or at a price for the whole of $50,000.

3. Claimant proceeded with the work, but before he had completed it, or had received a dollar /from the Government, the “ plan” of improvement was decided to be a failure, and the work was abandoned by the defendants. Claimant is now seek*696ing damages; and under these circumstances the rule to guide the court is plain and well understood.

The law contemplates, in cases of contracts broken, two elements of damage: first, losses sustained; second, gains prevented. *(Bulklei/s*Case, 70. Cls. R., 544; 16 N. Y., 494; 1 ibid., 95,106, 342; 2 ibid., 429; 4 ibid., 258; 14 ibid., 443; 15 ibid., 120; 17 ibid., 17; 13 How., 344; 8 Wall., 77; 94 U. S. R., 214; 7 Hill, 62; 1 Denio, 317, 602, 606; 6 L. & E., 230.)

In the present case the element of losses sustained is clearly and conclusively established; and the only legitimate ground for controversy seems to be whether, by the defendants’ refusal to permit him to complete the work, the claimant was deprived of any prospective profit, and, if any, how much ?

An effort is made to show that the claimant lost no profits, as it would have cost the balance of the contract price to finish the work, and hence that he cannot recover under this head. Such a defense, if sustained by the evidence, which it is not, would be clearly within legal principles. But when the defendants go further, and set up that the claimant could not have saved himself from loss under any circumstances, and therefore demand that even his recovery.for expenses actually incurred in carrying out the work, and within the contract price, shall be proportionally reduced, I submit that this is a step beyond all reasonable limits, and, so far as my research goes, without a single precedent, ancient or modern.

„ The idea may be deduced by argument from the general doctrine of damages as sometimes laid down, but I find no such application of the doctrine ever to have been made, and, logically pursued, it leads to consequences from which a court of justice must recoil. In this case, for instance, the claimant had an undoubted *legal right*to complete his contract and save himself whole. By their own wrong the defendants have *refused, to give him the chance to do so;*and it would be a gross perversion of justice if they could now be permitted, for their own advantage, to set up that he would not have done so. To say the least, every presumption of law and of fact is against such an assumption, and in a very similar case this court has held, without any qualification, that the claimant must be reimbursed his “actual outlay.” (2 C. Cls. R., 143; 1 ibid., 214. *Poiver’s*Case, *ante,*263.)

It is clear therefore that claimant must recover all the actual *697and necessary expenses incurred by him in connection with, this work, and also his prospective profits, if the court finds that there would have been *any;*but that in any event he cannot recover less than his actual loss.es so long as they fall within the contract price. - ,

*Mr. John 8. Blair*(with whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendants:

1. The rule of damages is the difference between the contract price and what performance would have cost.

Claimant’s counsel admits this to be true as a general principle, but insists that he has a choice' as to the rule to be applied, and having satisfied himself that claimant had improvidently taken the contract, and that a loss of $10,000 to $20,000 would have resulted on its completion, he now demands reimbursement for actual outlay. The case of *Sicilies*(1 C. Cls. B., 214) is not similar, for in that case the work was abandoned on account of physical impossibility, while here the abandonment was because the officers of the Government became satisfied that the work would prove inefficacious for its purpose. This action is based upon an express contract set out in the petition — a contract, it is true, that has been violated but never rescinded. It is for this breach suit is brought, and the damages should be confined to the loss .caused by the breach. When the Government broke its contract, it incurred no greater responsibility than the contract by its terms imposed.

Chief Justice Nelson,"in his opinion in case of *Masterson*v. *Oity of Brooklyn*(7 Hill,.71), says: “If the cost equals or exceeds the contract price, the recovery will of course be nominal; but if the contract price exceeds the cost, the difference will constitute the measure of damages.” And Justice Beardsley, in same case, remarks that the party suing ought to recover precisely what he would have made by performance. This is as sound in morals as it is in law.

In that case (supra, 65) it was the plaintiff' who offered to show the difference in cost, and'here. it is the duty of claimant to furnish all the facts necessary to the ascertainment of the amount of the judgment. *(Sichles's Oase,*10. Gis. B., 217; *Barney & Livesey, ante,*470.)

2. Claimant has offered the estimates of two witnesses, each *698of whom expresses his willingness to have taken the work, materials, and machinery as they stood on the 27th of September, 1881, and to have completed the contract for $10,000. We think the court will be convinced of the untrustworthiness of these estimates and be satisfied that the outlay required after the breach would have been much more than $30,000, as follows:

OPINION.

Richardson, J.,

delivered the opinion of the court:

The claimant was one of the sureties on the bond of a contractor who had entered into an agreement with the defendants to perform certain work on a public improvement on the Mississippi River, in the harbor of New Orleans.

The contractor having failed to prosecute the work to the satisfaction of the defendants’ officers, his contract was annulled by their order on that account. The claimant, who, as such surety, was under liability to the defendants for damages for breach of contract on the part of his principal, if any damages were done thereby, was permitted to assume the contract himself in the place of his principal, and thereafter to go on with the work as though he had been the original and sole contractor.

Relying upon the obligations of the defendants thus renewed and entered into with him, the claimant made extensive preparations in procuring boats, tools, apparatus, and materials for the prosecution of the work, entered actively upon the duties he had undertaken, and expended large sums of money therefor, and for work and labor in the prosecution of the projected improvement.

While in the midst of his undertaking, without fault on his part, but because it was found by the defendants’ officers that the plan of improvement would not accomplish the object intended, the claimant was notified by the Secretary of War that all operations for improving the harbor of New Orleans under the existing plan were at once discontinued, and thereupon he ceased to proceed further with the work.

The findings show that the actual expenditures of the claimant up to that time, together with his unavoidable losses on the materials on hand, amounted to the sum of $33,192.20. Nothing was paid to .him. Instead of settling his account in the Department, the Secretary of War transmitted the case to this court, *699under Revised Statutes, § 1063, thdt.the amount duebim might be judicially determined.

The court has been unable to determine from the evidence, and on account of the peculiarity of the work and the difficulty, if not impossibility, of demonstrating what it would have cost to complete the contract, whether vof not the claimant would have made any profits beyond his expenditures had he been permitted to go on with it to the end-

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, *(Sickels's Case,*1 C. Cls. R., 214; *Speed’s Case,*2 ibid., 429, affirmed on appeal, 8 Wall., 77, and 7 C. Cls. R, 93; *Wilder’s Case,*5 C. Cls. R., 468; *Bulkley’s Case,*7 ibid., 543, 19 Wall., 37, and 9 C. Cls. R., 81; *Parish’s Case,*100 U. S. R., 500; *Field’s Case,*16 C. Cls. R., 434; *Moore & Krone’s Case,*17 ibid., 17; *Power’s Case,*decided at this term *(ante,*263); *Masterson*v. *City of 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 citrcumstances of the case.

The judgment of the court is that the claimant recover the sum of $33,192.20.