starting the enterprise is more expensive than that which follows, and that after the work is fairly started it is easier to organize tents than at first. He also offered a statement taken from the books of the defendant, showing the organization of 40 tents after the breach of the contract; 125 members in new tents, over 15 and under 25; 66 members in new tents, over 25; and the total number of new members. From this statement he made up his total claim, as follows: Charter fees, 40 tents, $2,400; membership fees under clause 2 of the contract, $625; inmembership fees under clause 3, $165; per capita tax under clause 4, $300; per capita tax under clause 5, $2,956.83.

The rule governing these cases is established by an unbroken line of authorities,-that damages which are purely speculative in character, and dependent on so many contingencies that they cannot be traced with reasonable certainty to the breach of the contract, are not allowable. The difficulty lies in determining whether the facts of a particular case bring it within or without this rule. There is no sounder basis for damages for breach of contracts of this character than the profits, when they can be determined with proximate and reasonable certainty. In fact, there is no other basis. Their loss is the natural and proximate result of a breach, which the law presumes that each party foresees.. The rule does not require that such data be furnished that they can be computed with mathematical exactness. When one breaks a contract which the other party has partly performed, and the violator then performs the work himself, from which he reaps the profits which the other party might have made, he cannot escape liability for damages, if such other party can show the profits made while he was executing it, and the benefits received from its subsequent completion. The contract in this case was specific and definite in all respects, fixing

the amount of work and the price. It was contemplated that the plaintiff should make profits, and the defendant was to be benefited by his work. These results were being successfully accomplished when the contract was broken. In case of a breach by plaintiff, defendant could perform the work, and recover as damages the difference between the price agreed upon and the cost of completion. In case of a breach by defendant, the profits lost constitute the legitimate measure of damages. The law is not so blind to justice as not to require the defendant to respond in damages, if there is any reasonable basis for their ascertainment. There is no presumption, legal or otherwise, that the plaintiff could not have completed the work. The defendant was satisfied with the success of the plaintiff. It is a fair presumption that he would have succeeded. It is a fair inference from the evidence that the defendant's officers broke the contract because of this success, and the belief that they could secure the accomplishment of the work cheaper, which they in fact did. The defendant took advantage of the work which the plaintiff had done, and completed it. The defendant may not now say, "It is true I completed the work, but there is no certainty you could."

This is not a case where one party agrees to sell goods for another for a year, to receive as compensation his share of the profits made; but it is a case where one agrees to sell a certain amount of goods, with no limit as to time, at a given price, and for a given compensation, and also where the goods have been sold at the same price within the agreed territory, and within the time contemplated. It has been demonstrated, not only that the work could be, but that it has been, done. It is a fair inference that it could have been done as well by the plaintiff as by the defendant. One element of damage is established by the contract, and the evidence from the

defendant's own books, viz., the amount agreed to be paid, and the benefits reaped by it. The only other element is the cost of doing the work, which, deducted from the amount to be paid, would establish the profits. The expense of what plaintiff did is some evidence upon which to base a judgment of the expense of doing the rest of the work. If that be the only evidence as to the cost, and plaintiff can establish by experience that it is more difficult and expensive to accomplish the first part of the work than the last part, defendant cannot complain if the jury take that as a basis to determine the cost. On the contrary, such basis would be favorable to the defendant; and, if this was the only basis, we think, under the circumstances of this case, it was sufficient to justify a submission of the case to the jury. He who breaks his contract may not deny to the injured party the fair inferences to be drawn from the part performed.

In Bagley v. Smith, 10 N. Y. 489, one partner sued another for breach of the partnership articles, and recovered profits lost by the unauthorized dissolution. The court say:

"The loss of profits is one of the common grounds, and the amount of profits lost one of the common measures, of the damages to be given upon a breach of contract.

* It is very true that there is great difficulty in making an accurate estimate of future profits, even with the aid of knowing the amount of the past profits. This difficulty is inherent in the nature of the inquiry. We shall not lessen it by shutting our eyes to the light which the previous transactions of the partnership throw upon it. Nor are we the more inclined to refuse to make the inquiry by reason of its difficulty, when we remember that it is the misconduct of the defendant which has rendered it necessary."

A review of the vast number of authorities upon this subject would involve a critical statement of the facts of

100 MICH.-4.

each case, and the writing of an opinion of unnecessary length. It is sufficient to say that we think this case comes within, and is ruled by, the following authorities: Wakeman v. Manufacturing Co., 101 N. Y. 205; Treat v. Hiles, 81 Wis. 280; Mueller v. Mineral Spring Co., 88 Mich. 390; Oliver v. Perkins, 92 Id. 304. The case of Wakeman v. Manufacturing Co. is similar in its facts to the present case, and many of the authorities are there collated and discussed.

Judgment reversed, and new trial ordered.

The other Justices concurred.

EMMA GRUNERT, EXECUTRIX, ETC., V. HENRY BECKER, FERDINAND MEIER, AND AUGUSTE MEIER.

Mortgage-Priority-Foreclosure-Apportionment of proceeds.

The purchaser of a farm paid $1,100 of the purchase price in cash, and secured the remaining $1,900 by a mortgage on the land. The $1,100 was a portion of a loan of $1,500 which he secured by a mortgage on the same land, both mortgages being of even date, but, by an agreement with the grantor, the $1,500 mortgage was to have priority over his mortgage. The grantor recorded his mortgage first. Both were five-year mortgages. The first mortgagee, on default in payment of the first year's interest on his mortgage, commenced to foreclose it. The second mortgagee defended on the ground of an alleged agreement by the first mortgagee, in consideration of the priority of his mortgage, not to foreclose it until the end of the five years, and in the mean time, in case of the failure of the common mortgagor to pay the interest and principal of the second mortgage as it fell due, to make such payment. The latter, but not the former, agreement was established on the hearing, and, at the time of the decision of the appeal

from the decree rendered on said hearing, nearly four and one-half of the five years had elapsed, during which time the second mortgagee had practically defended the mortgagor's possession, and the interest on his mortgage had accumulated so that the principal and interest and costs of foreclosure approached the original consideration for the farm, and it was doubtful whether it would sell for that amount and the costs of sale. And it is held that the only consideration for the agreement of suretyship was the priority of the first mortgage; that the only advantage of such priority was the right to cut off the mortgagor's rights in the land upon his default; that it would be grossly inequitable, in view of the fact that, by the conduct of the second mortgagee, the first mortgagee has been deprived of all benefit of the priority of his mortgage, to compel him, not only to lose his own claim, but to pay that of the second mortgagee; and it is therefore decreed that the proceeds of the sale of the mortgaged premises, after deducting the costs of the court below and of sale, shall be divided on the basis of 15-34 to the first mortgagee and 19-34 to the second mortgagee, and that the first mortgagee shall be released from all obligation upon his agreement of suretyship, and the land discharged from both mortgages.

Appeal from Berrien. (O'Hara, J.) Argued February 13, 1894. Decided April 10, 1894.

Bill to declare a mortgage to be a prior lien to an earlier recorded mortgage, executed on the same day, and to foreclose the same. Complainant and defendant Becker appeal. Decree modified and affirmed. The facts are stated in the opinion.

Edward Bacon, for complainant.

George W. Bridgman, for defendant Becker.

MCGRATH, C. J. On the 16th day of October, 1889, defendant Becker sold and conveyed to defendant Meier 160 acres of land for the sum of $3,000. Meier had no means, and Julius Grunert was to advance to Meier certain moneys. Becker, Grunert, and Meier had an interview. Grunert agreed to advance the sum of $1,500, but