DRURY P. BALDWIN, Respondent, v. WILLIAM C. BENNETT, Appellant

* DRURY P. BALDWIN, Respondent, v. WILLIAM C. BENNETT, Appellant. Damages, Measure oe on Contract. — The general rulo as to the measure of damages, in an action for the breach of contract, is the actual loss sustained. But where, from the nature of the contract, no possible mode is left of ascertaining the damage, we adopt the only measure of damages which remains, and that is the price agreed to be paid. Appeal from the Fifth Judicial District, This was an action brought upon an express contract, to pay the plaintiff a certain fee for legal services, with a condition that the property in question, the Tuolumne Hydraulic Association Ditch, should be secured to the defendant. Services were rendered by the plaintiff under the contract, and pending the litigation, the defendant settled the claim, and conveyed by deed his interest in the property, without the advice or knowledge of the plaintiff. The plaintiff claimed to be entitled to the sum agreed upon by the parties, and brought suit for it. The defendant contended that the plaintiff was only entitled to recover what his services were worth, without regard to the contract. The jury found for the plaintiff $5,000, and judgment being entered accordingly, defendant appealed. S. P. Barber, for Appellant. The plaintiff cannot recover on the contract; for, although he admits in his complaint that his covenant was not performed, he seeks to recover damages. (2 Smith’s Leading Cases, 26.) For the rule of the measure of damages, see 3 Johns. Ca. 297; 21 Wend. 457; 1 Denio, 317, 464, 602, 606; 3 Barb. 424; 7 Hill, 61; 6 Dana, 352; 7 lb. 472; 8 Dana, 49; 8 Miss. 467; 8 Bing. 14; Pet. C. C. 85; 7 Wheat. 13; 5 Cow. 210; 2 *Ala. 25; 1 McMullen, 106; 1 TJ. S. Digest, 522; 1 Chitty Gen. Prac. 871.) If plaintiff had wished to retain his right of receiving the same fee. in case of settlement, he should have made it part of the contract. (Chitty on Cont. 59; Sedgwick on Damages, 209, note 5.) Prevention is equivalent to performance, only for the purpose of giving plaintiff a right of action on the special contract, not as furnishing a rule for the measure of damages. (2 Smith’s Leading Cases, 30.) Halleck, Peachy, Billings & Park, for Eespondent. An offer to perform an act which is prevented by the party in whose favor it is to be done, is in law equivalent to a performance, or rather, is a valid excuse for not performing it. (1 Powell on Contracts, 252; 8 Ala. 722; 5 Mod. 230; 2 Gil. 84; 4 Barb. 614; 2 Denio, 609; 2 Cal. 138; 18 Wend. 187.) The contract was entire, to pay a certain sum, provided a certain result was accomplished. While the matter was in progress, and a successful termination might have reasonably been expected from the plaintiff’s services, he was prevented from proceeding further by the act of the defendant. (Story on Contracts, § 16, and cases there cited; Hutchins v. Melbourne, 2 Cal. 310.) Cited in Gojfee v. Meigga, 9 GaL 364; Quint v, Ophir 8. M* Go*, 4 Nov. 307. [MAJORITY — Mr. Justice Heydeneeldt] Mr. Justice Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. The general rule as to measure of damages in an action for breach of contract, is correctly given by appellant’s counsel. It “is not the whole price agreed to be paid, but the actual loss sustained, which will consist of the value of the services rendered and the damage sustained by the refusal to allow performance of the rest of the contract.” To this rule there are, however, some exceptions. Where, from the nature of the contract, as in this case, no possible mode is left of ascertaining the damage, we will have presented the anomalous case of a wrong without a remedy, unless we adopt the only measure of damages which remains, and that is, the price agreed to be paid. Without ' this, justice would be * defeated, and parties encouraged to violate their contracts of similar character. The defendant not only breaks his contract, but also deprives the party of showing the amount of injury under the general rule. He cannot complain that a different rule is invoked, when it is the only one left to make him responsible for his want of good faith. This reasoning was adopted in a case precisely similar, by the Supreme Court of Alabama. ( See Hunt v. Test, 8 Ala. 713.) Judgment affirmed.