Where the actual damage sustained is not definitely ascertainable, the court will endeavor to allow such damages as are the natural and proximate result of the breach of contract, or which it may be considered were within the contemplation of the parties when the sale was made. Thus it has been held, in awarding dam ages for breach of warranty as to the fitness of an en gine for certain work, that a loss of additional profits which the plaintiff anticipated he would have made had the engine been available for his work, by reason of certain competing firms going out of business sub sequent to the date of the contract of sale, will not be presumed to have been in the contemplation of the parties, and will not be allowed.' It has also been held that the measure of damages for the unwarranted refusal of a vendor to carry out the terms of an agreement to sell a hotel property, in cludes the expenses to which the purchaser was put in endeavoring to induce the vendor to carry out his con tract, or to refund the money paid on account of the purchase price; and the purchaser may be allowed his traveling expenses from his place of residence to the place where the property was situated in the same province.
Again, where a dredge was not delivered within the time specified in the contract of sale, the estimated net earnings thereof for the time delivery was delayed were awarded to the purchaser as damages. The damages will not include money paid by the purchaser as a bonus to insure the completion of scows, necessary for use with the dredge, before the date fixed for deliv ery of the dredge, as such loss was not within the con templation of the parties at the time the contract was entered into.' 16. Remedies of the buyer may have cause to complain of some breach of the contract. The seller may make default in delivery. The goods may haVe some defect. Possession may have been promised and refused. Some warranty of quality or title may be breached.
The buyer's remedy will depend upon whether or not the title to the goods had passed to him. If the
title has passed to the buyer, he is, of course, the owner of the goods and may sue for delivery or may seize the goods in the hands of the seller or of some third per son, in order to get possession. If the title has not passed, the buyer may bring an action for damages, if the seller wrongfully refuses delivery of the thing which he has agreed to sell. The damages which the buyer may recover in such a case will generally be the difference between the contract price and the market value of the goods at the time the contract is broken. In other words, the measure of damages is the profit which the buyer might have expected to make. Where, however, the seller knew when the contract was made that the buyer intended to make some special use of the goods, or expected some special profit upon the sale of them, the damages resulting from the breach of contract which the parties would reasonably contem plate, would be the damages which would result to the buyer from a breach of the contract under the special circumstances known and communicated to the seller. If the seller knew of no special circumstances and had not been notified of them by the buyer, then he could not be held to have had in contemplation any special damage to be suffered by the buyer. Thus A sells B a refrigerator for his cold-storage plant, to be deliv ered in one month. When the contract is made, B in forms A that the refrigerator is to be installed in a new plant, which must be ready at the end of the month in question for the transfer of meat and other perishables from the old plant, the lease of which has expired. The refusal or failure of A to deliver the refrigerator on the due date will entitle B to recover special damages, because it must have been in the contemplation of both parties when the contract was made, that if the refrigerator was not in position at the moment when it became necessary to transfer the perishables from the old to the new plant, B would suffer very special injury.