Green, Judge:
There can be no question, that on the contract above stated the city of Parkersburg had a right to require of the plaintiff below, Martin Hare, to give a bond with good security for the faithful performance of his contract. Had this been *558done, and he had been unable and for this reason or for any other he had refused to give the required bond, the city-council would have had a right to do what they did, rescind the contract and enter into a contract for the same work with another; and the plaintiff below would have had no cause of action. But it-would seem to be equally clear, that under this contract, there having been by it no time fixed when this required bond was to be given, the plaintiff below was entitled to a reasonable time within which to give the bond, after it was required. The evidence clearly shows that this reasonable opportunity was not given to him, and that if it had been given to him, the required bond would have been given, the plaintiff below being ready, willing and anxious to give it. The ground, on which the council rescinded the contract, was that the plaintiff' below had not given the required bond. They had not only not called upon him to give this bond before they so acted, but they gave him no notice that they intended to rescind this contract; and they knew or ought to have known, that he was ready and willing to execute the required bond, as he had frequently told one of the members of the council, who was chairman of the committee on streets and alleys, that he was ready, and by him had been informed, that he would have the proper bond prepared for him to execute. But before it wasprepared and without previous notice thecouncil rescinded this contract, because the bond was not given. They had no right to do so; and the city-council having given the contract to another person, the plaintiff below had a right, as he did, to sue them for this breach of their contract.
The real ground on which the city-council rescinded this contract was obviously not that the plaintiff below had failed to give the required bond, but because a majority ot the council were of opinion that the gravel he would furnish to the city would be of an inferior quality, and that he could not be relied upon to perform his contract, and that trouble would probably result from their having made a contract with him. This of course was no ground for rescinding the contract, and the city-council based its action on a different ground. But on no legal ground, as we have seen.
It is claimed, that no actual damages were proven by this *559breach of contract by the city, and that therefore the damages found by the jury were excessive, and that their verdict was based on a conjectural estimate of the profits, which might have been made, which is no legitimate basis upon which to fix the damages. To sustain this the council for the city rely upon Newbrough v. Walker, 8 Gratt. 16. This legal proposition is laid down in that case, and it is correct. But it seems to me to be inapplicable to the case before us. The contract in this case was for the delivery by the plaintiff below of one thousand yards of gravel to the city of Parkers-burg, for which he was to get five hundred and ninety dollars. He had received of the city of Parkersburg on this contract for gravel actually delivered forty-three dollars and thirty-six cents, leaving when the whole one thousand cubic yards of gravel should be delivered five hundred and forty-six dollars and sixty-four cents to be paid. The plaintiff proved that under a like contract with the city of Parkers-burg he had actually made a profit of twenty-five cents per cubic yard, that is, that the actual cost to him of delivering this gravel under a prior contract was thirty-four cents per cubic yard, and at this rate the cost of completing'the delivery of this one thousand cubic feet of gravel would have been two hundred and ninety-six dollars and sixty-four cents, that is, the entire cost three hundred and forty dollars less the forty-three dollars and thirty-six cents. How if the jury had awarded two hundred and thirty-two dollars and twenty-five cents as the damages, which resulted from the breach of this contract, I do not see how the court could have set aside the verdict of the jury as based on a conjectural estimate of the profits, which might have been made on the contract, as was properly done in the case of Newbrough v. Walker, 8 Gratt. 16. On the contrary in this case, it seems to me, there was no impropriety in the jury ascertaining the amount of damage the plaintiff below sustained in consequence of the breach of this contract by calculating what it would have cost him to perform his contract and taking that from what he was under the contract to.get for the delivery of this one thousand cubic yards of gravel. In the absence of all other evidence as to what it would have cost I cannot see that the jury would have erred in judging that it would have cost as *560much as it was proven that it had actually cost under a former contract to deliver the same amount of gravel to the city. If they had adopted this mode of estimating this damage, which I do not regard as a conjectural estimate of the plaintiff’s damage, the jury, might have allowed the plaintiff below as much as two hundred and thirty-two dollars and twenty-five cents, and the court would not have been justified in setting aside, the verdict.
The jury however, on the ground, I presume, that the cost of the delivery of one thousand cubic feet of gravel had perhaps been exaggerated, this cost having been proven only by the plaintiff, thought proper to render for the plaintiff a verdict of only two hundred dollars.
It is insisted by the counsel for the plaintiff in error, that the jury ought not to have allowed the fifty dollars, the loss resulting from the sinking of. one of the barges of gravel under the circumstances set out in the statement of the case, because the damages were sustained prior to July 26, 1881, when the contract was rescinded, and that under the cause of complaint set out in the summons no damages sustained prior to July 26, 1881, when the contract was rescinded, can be recovered. To sustain this position James & Mitchell v. Adams, 10 W. Va. 267-8, is relied on by the counsel of the city of Parkersburg. I deem it unnecessary to decide this point, as from what we have said we could not set aside this verdict and grant a new trial, even had there been no evidence before the jury in reference to the sinking of this barge of gravel or of the resulting damages ot fifty dollars to the plaintiff below. We cannot say from the verdict that the jury in point of fact allowed to the plaintiff below anything because of the damage, which he sustained from the sinking of this barge. It may well be that this item of fifty dollars did not enter into their estimate of the plaintiff’s damages. •
Por these reasons I am of opinion that the judgment of the cii’cuit court of December 80, 1882, must be affirmed; and that the defendant in error, Martin Hare, must recover of the plaintiff’ in error his costs in this Court expended and damages according to law.
Affirmed.