* so far, in effect, as to allow, as damages, the amount of the profits which would probably have arisen from contracts that depended upon the performance of the principal contract. (z) And it is said by the Supreme Court of the United States, that evidence of the value of the business which plaintiff was disqualified to perform, by the act or neglect of the defendant, may be received as a measure of damages, (a)

The general principle as to remoteness has been applied to cases where sureties were put to extraordinary loss and inconvenience, on account of the obligations of their suretyship; and

* it is held, that they can recover only what they have paid, with interest, and necessary expenses, (b) As a general and its ascertainable value, or cost. See Masterton v. Mayor of Brooklyn, 7 Hill, 61, and cases there referred to. We hold it to be a clear role, that the gain or profit of which the contractor was deprived, by the refusal of the company to allow him to proceed with and complete the work, was a proper subject of damage*."

(yy) Messmore v. New York Shot Co. 40 N. Y. 422.

(yz) Aaron v. Second Avenue R. R. Co. 2 Daly, 127.

(z) In Clifford v. Richardson, 18 Vt. 620, the defendant put machinery into the plaintiff's mill in an unskilful manner, whereby he lost the use and profit of the mill for a long space of time, and was put to great expense in repairing the machinery. It was held, that both the loss of the use of the mill, and the expense of repairs, were to be compensated for in damages. See Green v. Mann, II 111. 613; White v Moseley, 8 Pick. 356. In Thompson v. Shattuck, 2 Met. 615, the defendant had covenanted to keep in repair half of the plaintiff's milldam; it was held, that a loss of profits occasioned by a delay in repairing could not be recovered, as the plaintiff might have made the repairs immediately, at the defendant's expense. But see Blanchard v. Ely, 21 Wend. 342, supra, n. (x).

(a) Nebraska City v. Campbell, 2 Black, 590. For farther authorities on the question, when damages are too remote to be included, see Hamilton v. McPherson, 28 N. Y. 72, Brown v Cum-mings, 7 Allen, 507, McKnight v. Rat-cliff, 44 Pa. 156, Simmons v. Southeastern R. R. Co. 7 H. & N. 1002, Shepard v. Milwaukie Gas Co. 15 Wis. 318; Fleming v. Beck, 48 Pa. 309.

(b) In Hay den o Cabot, 17 Mass. 169, the action was assumpsit, by a surety against his principal, on a written promise of indemnity. Parker, C. J., said; "The common construction of such a contract is, that if the surety is obliged to pay the bond, by suit or otherwise, the principal shall repay him the sum he has been obliged to advance, together with all such reasonable expenses as he may have been obliged to incur, and which may be considered as the necessary consequence of the neglect of the principal to discharge his owu debt. But rule, a surety for the payment of money cannot sue his principal, until he pays the debt, (c) And if there be no express contract between the principal and surety, it would seem that the only remedy for the latter is assumpsit for money paid, in which only the money actually paid, with interest, can be recovered. But the principal may give the surety a distinct promise to pay money or do some specific act, and then the surety may have an action before he pays anything for his principal. Thus, if one is surety for another, who is bound to pay a third party a certain sum at a certain time, and the principal promises the surety that he will pay that sum at that time, so as to discharge the surety, if he fails to pay it so that the surety becomes liable, the surety may recover from the principal on. his promise, before the surety pays the debt, (d) and if the principal agree with the surety to pay the debt at a certain time, and fail to pay it at that time, the surety may thereupon recover the whole amount of the debt without showing any actual damage, (e) If the promise of the principal to the surety be only to indemnify and save him harmless, it seems, that if the surety sees fit to bring an action on this promise, before paying the debt of the principal, he cannot maintain it, unless he can show that he has given his own notes, or made other arrangements in the way of acknowledging and securing the debt, which are equivalent to its payment. From the current of authority, and from reason, * it may be regarded as a general rule, if not a universal one, that where one's obligation, whether express and voluntary, or implied, or created by law, is only indirect and collateral, there is no cause of action, or at least no right to recover actual compensation, unless there has been an actual damage arising from an actual discharge of the obligation. (f) extraordinary expenses, which might have been avoided by payment of the money, or remote and unexpected consequences, are never considered as coming within the contract." And see Low v. Archer, 2 Kern. 277; Dolph v\ White, id 296.

1 In an action for breach of contract in failing to deliver lumber, when the seller knew at the inception of the contract that the lumber was intended for shipment, the measure of damages was held to be the difference between the contract price added to the cost of transportation to the place of shipment, and the market price, which included profits at that place at the time the lumber would have been delivered in the usual course of transportation had the contract been fulfilled. Cockburn v. Ashland Lumber Co. 54 Wis. 619. But the buyer's inability to perform his contract of resale cannot be considered in estimating the damages under the contract of sale, unless the seller knew that the contract with him was entered into on the strength of the contract to resell. Wetmore v. Pattison, 45 Mich. 439. - K.

(c) Taylor v. Mills, Cowp. 525; Powell p. Smith, 8 Johns. 249.

(d) Cutler o Southern, 1 Wms. Saund. 116, n. (1): Holmes p. Rhodes, 1 B. & P. 638; Hodgson v. Bell, 7 T R. 97; Port p. Jackson, 17 Johns. 339; Thomas v. Allen, 1 Hill, 145 , Churchill v. Hunt, 3 Denio, 321; Gilbert p. Wiman, 1 Comst. 550; Lathrop p. Atwood, 21 Conn. 117; Stout v. Folger, 34 la. 71.