Bigelow, J.
Two questions are presented by the bill of exceptions in this case. The first arises on the refusal of the court to instruct the jury, that they were bound to presume a waiver by the plaintiffs of all right to recover damages for a breach of the contract declared on. We think that the judge was right in this refusal, and that the question of waiver was properly submitted to the jury on the evidence, as a question of fact, for their determination. Indeed, it may be laid down as a general rule, that the question, whether the evidence in any case establishes a waiver of any legal right by a party, is one of fact to be settled by the verdict of a jury. There may be cases, in which the facts are few and simple, and the acts or admissions of parties clear and unequivocal, when it would be the duty of the court to instruct the jury, that certain legal rights, upon which a party might otherwise have relied, have been surrendered and can no longer be insisted on; but these are cases where the law affixes certain consequences to acts of parties, when clearly and indisputably proved. So too in *521judicial proceedings, for the furtherance of public justice, and the discouragement of dilatory pleas and technical objections, parties who do not seasonably avail themselves of their legal rights, are held by courts to have conclusively waived them. But, ordinarily, where the rights and liabilities of parties depend on contracts, and a variety of transactions and dealings arising therefrom, or where the facts are contradictory and complicated, it is a question for the jury to determine, how far parties have waived any of their legal rights. In all questions of this sort, so much depends on the intent with which parties act, that it would be impossible for courts to establish any certain rule by which all cases could be governed. They must necessarily be left to the determination of juries, whose peculiar province it is, to ascertain the intent of parties as gathered from the various facts and circumstances proved in each particular case. And such we understand to be the doctrine recognized and established by judicial decisions. Union Bank of Georgetown v. Magruder, 7 Pet. 287" court="SCOTUS" date_filed="1833-02-22" href="https://app.midpage.ai/document/union-bank-of-georgetown-v-magruder-85830?utm_source=webapp" opinion_id="85830">7 Pet. 287; Hill v. Hobart, 4 Shepl. 164.
But on looking into the facts proved in this case, we are very clearly of opinion that the instruction asked for by the defendant, even if it were the duty of the court to pass lefinitively on the question of waiver, was wholly unwarranted Dy the facts. It appears by the evidence, that the plaintiffs continued to fulfil their part of the special contract long after the defendants had omitted to perform theirs, and that, finally, after a demand on them by the plaintiffs to supply the castings, which they had agreed to furnish, and a refusal so to do, the plaintiffs ceased their efforts to complete the work, and commenced this action for the recovery of damages for the breach of the contract by the defendants. Upon these facts, the defendants contend that the contract was virtually rescinded and that the plaintiffs have waived all right to damages. But this position is wholly untenable. It would, in effect, be giving to the party that had broken his contract, the benefit of an entire release therefrom, merely because the party with whom he contracted, and who was not in fault, had forborne for a time to exact th'e strict performance of the bargain. The *522utmost that under these circumstances could be reasonably contended for was, that the acts of the plaintiffs showed a waiver of the contract so far as related to the time at which the defendants had agreed to supply certain castings and other materials. If therefore, when the plaintiffs, a few days prior to the commencement of this suit, called on the defendants to fulfil their contract, the defendants had been ready to comply with the demand, it might with some show of reason be contended that the plaintiffs had waived all claim for damages up to that time. But there are no facts in the case which tend to show any other waiver of the agreement. With this exception, the contract still remained in full force, and both parties were bound by its stipulations. The fallacy of the argument on the part of the defendants consists in treating the contract as rescinded. It was, at most, waived in part only, and therefore the final refusal of the defendants to furnish the castings, on the plaintiffs’ demand, was a breach of the contract, of which there had been no waiver, and for which this action can well be maintained.
The instruction of the court upon the question of damages remains to be considered. The rule has not been uniform or very clearly settled as to the right of a party to claim a loss of profits as a part of the damages for breach of a special contract. But we think there is a distinction by which all questions of this sort can be easily tested. If the profits are such as would have accrued and grown out of the contract itself, as the direct and immediate results of its fulfilment, then they would form a just and proper item of damages to be recovered against the delinquent party upon a breach of the agreement. These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a part of the damages occasioned by the breach of the contract in suit. To illustrate this by the case at bar. The *523plaintiffs had a right to recover such sum in damages, as they would have realized in profits, if the contract had been fully performed. To ascertain this, it would be necessary to estimate the cost and expense of work and materials in completing the contract on their part, and to deduct this sum from the contract price. The balance would be the profit which would have accrued to them out of the contract itself, if it had been fulfilled, and which they have a right to recover in addition to such further sum as would compensate them for the labor and materials supplied towards the completion of the contract. But if the plaintiffs had offered to prove, in addition to this, that in consequence of the breach of the contract by the defendants, they had lost other contracts by which they would have realized large profits, and which they had entered into for the purpose of fulfilling their contract with the defendants, the evidence would have been wholly inadmissible; because such collateral undertakings were not necessarily connected with the principal contract, and cannot be reasonably supposed to have been taken into consideration when it was entered into. Such profits are too uncertain, remote and speculative in their nature, and form no proper basis of damages. The instructions given by the learned judge of the court of common pleas were entirely in conformity with these principles, and the defendants’ prayer for instruction on this point was rightly refused. See Masterton v. Brooklyn, 7 Hill, 61; Batchelder v. Sturgis, 3 Cush. 205.
Exceptions overruled.