after stating the case, delivered the opinion of the court.
The view we take of this case requires us, in answer to the fourth question certified, to say that, in the circumstances disclosed by the record, the plaintiff was entitled only to recover nominal damages, and not the difference in value of the oil if it had been purchased on the day when the message ought to have been delivered and the market price to which it had risen on the next day. As the judgment was rendered in his favor for the latter sum, it must be reversed on that account, and, upon the facts found by the court, judgment rendered for nominal damages only, which finally disposes of the litigation. It, therefore, becomes unnecessary to consider or decide any of the other questions certified to us.
- It is found as a fact that if the despatch upon its first receipt at Oil City had been promptly delivered to Charles T. Hall, to whom it was addressed,- he would by twelve o’clock on that day have' purchased ten thousand barrels of, oil at the market price of. $1.17 per, barrel on the plaintiff’s/account. He was unablé to do so in consequence of the delay! in the delivery of *454 the message. On the next day the price bad advanced to $1.35 per barrel, and no purchase was made because Charles T. Hall, to-whom the message was addressed, did not deem.it advisable to do so, the order being conditional on his opinion as to the expediency of executing ■ it. If the order had been executed on the day when the message should have been delivered, there 'is nothing in the record to show whether the oil purchased would have been sold.on the plaintiff’s account on the .next day or not; or that it was to be bought for resale. There was no order to sell it, and whether or not the plaintiff would or would not have sold it is altogether uncertain. If he had not done so, but had continued to hold the oil bought, there is also nothing in the record to show whether, up to the time of the bringing of this action, he' would or would not have made a profit or suffered a loss, for it is not disclosed in the record whether during that period the price of oil advanced or receded from the price at the date of the intended purchase. The only theory, then, on which the plaintiff could show actual damage or loss is on the supposition that, if he had bought on the 9th of November, he might find would have sold on the 10th. It is the difference be ..ween the prices on those two days which was in fact allowed ás the measure of his loss. •
It is clear that in point of fact the plaintiff has not suffered any actual loss. No transaction was in fact made, and there being neither a purchase nor a sale, there was no actual difference between the sums paid and the sums received in consequence of it, which could be set down in a profit and loss account. All that can be said to have been lost, was the opportunity of buying, on November 9th, and of making a profit by selling on the 10th, the sale on that day being purely contingent, without anything in the case to show that it was .even probable or intended, much less that it would certain! v have taken place.
It has been well settled since the decision in
Masterton
v.
The Mayor of Brooklyn, 7
Hill, 61, that a plaintiff may rightfully recover a loss of profits‘as a part of the damages for breach of a special contract, but in such a case the profits to
*455
be recovered must be such as would have accrued and grown •out of tbe contract itself as the direct and immediate result of its fulfilment. In the language of the Supreme Judicial ■Court of Massachusetts in
Fox
v.
Harding, 7
Cush. 516 : “ These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agree-, ment 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 ponsideration as a part •of the damages occasioned by the breach of the contract in suit.” p. 522. This rule was applied by this court in the case of
The Philadelphia, Wilmington and Baltimore Railroad
v.
Howard,
In
Booth
v.
Spuyten Duyvil Rolling Mills Co.,
*456
In cases of executory contracts for tbe purchase or sale of personal property ordinarily, the proper measure of damages is the difference between, the contract price and the market price of the goods at the time when the contract is broken. This rule may be varied according to the principles established in
Hadley
v.
Baxendale,
9 Exch. 341;
S. C.
23 L. J. Ex. 179, where the contract is made in view of special circumstances in contemplation of both parties. -That well-known case, it will be rememb.ered, was an action against a carrier to recover damages occasioned by delay in the delivery of an article, by reason of which special injury was allegetj. In the, application of the rule to similar cases, where there has been delay in delivering by a carrier which amounts to a breach of contract, the plaintiff is not- always entitled to recover the full amount of the damage actually sustained;
prima facie
the damages-which he is entitled to recover would be the difference in the value of the goods at the place of destination at the time they ought to have been delivered and their value at the time when they are in fact delivered.
Horn
v.
Midland Railway Co.,
L. R. 8 C. P. 131;
Cutting
v.
Grand Trunk Railway Co.,
The same. rule, by analogy^ has been applied in actions against telegraph companies for delay in the delivery of mes
*457
sages, whereby there has been a loss of a bargain or a market. Such was the case of
United States
Telegraph
Co.
v.
Wenger,
55 Penn. St. 262. There the message ordered a purchase of stock, which advanced in price between the time the message should have arrived and the time when it was purchased under another order, and the advance was held to be the measure of damages. ' There was an actual loss, because there was an actual purchase at a higher price than the party would have been compelled to pay if the message had been promptly delivered, and the circumstances were such as to constitute notice to the company of the necessity for prompt delivery. The rule was similarly applied in
Squire
v.
Western Union Telegraph Co.,
Of course, where the negligence of the telegraph company consists, not in delaying the transmission of the message, but in transmitting a message erroneously, so as to mislead the party to whom it is addressed, and on the faith of which he acts in the purchase or sale of property, the actual loss based upon changes in market value are clearly within the rule for estimating damages. Of this class examples are to be found in the cases of
Turner
v.
Hawkeye Telegraph Co.,
The judgment is accordingly reversed, and the cause remanded, with directions to enter a judgment for the plain-tifffor that sum merely.