cited by counsel for defendants are Warren v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117, and Wicker v. Hoppock, 6 Wall. 94, 18 L. Ed. 752. These cases do not support his contention. In Wicker v. Hoppock the court stated that where a party was entitled to the benefits of a contract, and could save himself from a loss arising from a breach of it at a trifling expense or with reasonable exertions, it was his duty to do so, but refused to apply the rule in said case, because the contract was one which provided for a payment, as distinguished from one of indemnity, and held that, in the former, a recovery might be had as soon as there was a breach of the contract, and that the measure of damages was the full amount agreed to be paid. In Warren v. Stoddart the court found that there had been no breach of contract, and held that no damages were recoverable by the defendant, who claimed that said contract had been broken, and who sought to set off damages which he had unlawfully aggravated; and held that, even if he had been entitled to recover, he could not wantonly and unlawfully aggravate the damages. Kincaid v. Price (Colo. App.) 70 Pac. 153, and Frazier v. Clark, 88 Ky. 260, 10 S. W. 806, 11 S. W. 83, were chiefly pressed on the argument in support of the exclusive output contention. In Kincaid v. Price, decided by the Court of Appeals of Colorado September 8, 1902, it is not clear that the fact that the contract was for an exclusive output had any bearing on the decision of the court that the measure of damages was the difference between the market value and the contract price. The court, relying on some statements of text-writers and early decisions of courts not of last resort, held that the above rule was the general rule for measuring damages in actions for breach of such executory contracts. In Frazier v. Clark it appeared that the plaintiffs, after breach of the contract, continued to operate their mill until it was sold, "making as much or more profit than would have been made if the contract had not been violated by the defendant." Of the 13 cases cited in support of the alleged distinction, the foregoing are the only ones which involved the element of an exclusive output. In five of the other cases the proof showed a tender of other goods or employment to the plaintiff after the breach, and an opportunity to make use of the mill, or wagon, or ship for the services of which the contract had provided. In Dunn v. Daly, 78 Cal. 640, 21 Pac. 377, the plaintiff himself broke the contract. In Peck & Co. v. Kansas City Metal Roofing & C. Co. (Mo. App.) 70 S. W. 169, the court applied the rule of master and servant to an advertising contract. The cases of Everson v. Powers, 69 N. Y. 527, 42 Am. Rep. 319; Bassett v. French (Com. Pl.) 31 N. Y. Supp. 667; Mt. Hope Cemetery Association v. Weidenmann, 139 Ill. 67, 28 N. E. 834; and Sommer v. Conhaim et al. (Sup.) 54 N. Y. Supp. 146-are all personal service cases, and, even if analogous to the case at bar, do not support defendants' contention.

The rule of damages in personal service cases is laid down in Pierce v. Tenn. Coal, Iron & R. R. Co., 173 U. S. 1, 19 Sup. Ct. 335, 43 L. Ed. 591, where the court says:

"But he had the right to elect to treat the contract as absolutely and finally broken by the defendant; to maintain this action, once for all, as for a total breach of the entire contract; and to recover all that he would have received in the future, as well as in the past, if the contract had been kept. In so

doing he would simply recover the value of the contract to him at the time of the breach, including all the damages, past or future, resulting from the total breach of the contract. * * In assessing the plaintiff's damages, deduction should, of course, be made of any sum that the plaintiff might have earned in the past or might earn in the future, as well as the amount of any loss that the defendant had sustained by the loss of the plaintiff's services without the defendant's fault."

The general rule in the case of a manufacturer or vendor is restated. and applied by the United States Supreme Court in Roehm v. Horst, 178 U. S. 1, 21, 20 Sup. Ct. 780, 788, 44 L. Ed. 953:

"If a vendor is to manufacture goods, and during the process of manufacture the contract is repudiated, he is not bound to complete the manufacture, and estimate his damages by the difference between the market price and the contract price, but the measure of damage is the difference between the contract price and the cost of performance. Hinckley v. Pittsburgh Company, 121 U. S. 264 [7 Sup. Ct. 875, 30 L. Ed. 967]. Even if in such cases the manufacturer actually obtains his profits before the time fixed for performance, and recovers on a basis of cost which might have been increased or diminished by subsequent events, the party who broke the contract before the time for complete performance cannot complain, for he took the risk involved in such anticipation."

The evidence as to the cost of producing the two prior crops of whiskey, and of the price of corn in preceding years, furnished a basis on which the jury might reasonably determine the probable cost of future crops of whiskey.

"The jury, in assessing the damages, would be justified in looking to all that had happened or was likely to happen to increase or mitigate the loss of the plaintiff down to the day of trial.' Hochster v. De La Tour, supra.

"It should be borne in mind that the difficulty of making proof springs, like the plaintiff's right to recover damages, out of the wrongful act of the respondents, who should not be suffered to reap advantage from their own wrong by requiring that kind of proof which their wrongful action has rendered it impossible or difficult for the plaintiff to obtain." Lincoln v. Orthwein, 120 Fed. 880, 57 C. C. A. 540.

In Anvil Co. v. Humble, supra, plaintiffs contracted to remove all of the ore in one of the shafts of defendant's mine. Defendant refused to permit plaintiffs to complete their contract. The same objection was made there as is here made-that the future profits were uncertain. The Supreme Court held that testimony as to the cost of mining each ton of ore, and as to the amount of ore on hand when the work was stopped, was admisible to show the profit which plaintiffs would have made, and said as follows:

"It is true that the cost of mining the remaining ore might differ from that of mining the ore which had already been taken out. But still, proof of the cost of taking out that which had been mined, and of the condition of the mine as it was left, furnished a basis upon which a reasonable estimate could be made as to the cost of extracting the remaining ore."

Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676.

We conclude, therefore, that the foregoing exceptions are not well founded.

In connection with said evidence as to the price of corn, defendants further contend that, as plaintiff was under no obligation to manufacture in any year if the price of corn exceeded 45 cents on the Chicago

Board of Trade on the first Tuesday of October in said year, the agreement was not mutually binding, and hence there can be no recovery for years subsequent to October, 1901. This question is raised by the refusal of the court to charge that, if the jury should find that the price of corn in October, 1901, was more than 45 cents, the contract to manufacture was optional with the plaintiff, and he could not recover any damages by reason of defendants' refusal to receive and pay for any whiskey thereafter to be delivered by plaintiff, and to its charge as follows:

"If you believe from the evidence that the plaintiff would have taken advantage of that provision of the contract in the years 1901 and 1902, when the price of corn was in excess of 45 cents per bushel, as appears by the proofs, and would not have manufactured whiskey during those years, then you ought not to allow plaintiff any damage for those years, or for any other years in which you believe from the evidence that he would not have manufactured any whiskey for the use of defendants. * * The question of the future price of corn as bearing on the plaintiff's damages is of prime importance. It is for you to say, from all the evidence and circumstances what the probabilities are with respect to the continuance of the price of corn at the rate of 45 cents per bushel, and whether in view of all the facts, it was probable that plaintiff would have manufactured whiskey at a profit in succeeding years, and in years when the price of corn exceeded the sum stated."

And counsel for defendants argues that the jury were thus left to conjecture whether the price of corn would exceed 45 cents, and, if so, whether plaintiff would have continued to manufacture, and, if so, whether he would have met a loss or made a gain, and that the future prices were to be determined by the past prices of corn. Counsel for defendants have referred us to a line of authorities which hold that, where a contract is unilateral by reason of the absence of any obligation on the part of one of the parties to perform, it cannot be enforced, and only nominal damages can be recovered for the breach by the other party. We are not disposed to question the correctness of this proposition, but we think the case at bar does not fall within the rule thus stated. It is well settled that a contract for a sale, which leaves it practically optional with one of the parties as to the fulfillment of the agreement to manufacture or to purchase, the price to be paid, or as to other material portions of the contract, will be held to be void, and no damages can be recovered for its breach. Troy Laundry Machine Co. v. Dolph, 138 U. S. 617, 11 Sup. Ct. 412, 34 L. Ed. 1083; American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Crane v. C. Crane & Co., 105 Fed. 869, 45 C. C. A. 96. In the Dolph Case, on which much stress is laid by counsel for defendants, the court held that damages could not be recovered for the breach of indefinite provisions in respect to an option in favor of one party as to a matter merely incidental and subordinate to the main contract. But in the case at bar the contract provided for the exercise of options by either party as to the performance of the main agreement for manufacture, upon sufficient and mutual considerations. The option reserved by the plaintiff was not one which necessarily, or within the contemplation of the parties, extended during the whole of the term of the contract, but was a provision for the mutual protection of the parties as to said main obligation in case the price of corn should be 45 cents per bushel in any season or seasons during the term of said contract. It did not give to plaintiff a right arbitrarily to terminate the contract, but only on certain conditions, which might

65 C.C.A.-3

never arise. Anvil Co. v. Humble, supra. By the contract the plaintiff was absolutely bound to manufacture and deliver the exclusive output of his factory, with certain exceptions already noted, during each year of the term of the lease. The proviso which relieved him from this obligation when the price of corn should exceed 45 cents was one which also virtually contained a penalty for such failure to manufacture for defendants, in that it denied him the privilege of manufacturing any whiskey during such season, except 500 barrels for his own use, unless he should also manufacture and deliver to the defendants at the contract price, and at their option, 5,000 barrels during such season. The contract, therefore, was one binding upon the plaintiff, when the price of corn was 45 cents, either to manufacture as agreed, or to practically close his entire plant. In view of these mutual stipulations relating to said qualified option, and which served as a consideration passing to and from each of the parties, we think the obligation was a mutual one, and that the question of the right of recovery was properly left to the jury under the instructions of the court as given above.

The contract contained a provision that, in case of fire or accident which might prevent plaintiff from manufacturing in any one season, he should be excused for such failure. It is not claimed that this provision made the contract unilateral. And if the contract had contained an agreement that, in case of a strike, the entire failure of the corn crop, or the death of the plaintiff, in any year, the manufacturer should be relieved from the obligation of fulfilling the contract during the year when such casualty happened, it could not reasonably be claimed that such agreement constituted a defense against all claims for damages suffered during a period of years by reason of the default of the other party. And yet the charge requested by defendants as above was to the effect that, if the price of corn at the time when they, the defendants, broke the contract, happened to be more than 45 cents per bushel, the plaintiff could not thereafter recover any damage by reason of defendants' breach. The object sought, in case of a breach of contract, is to secure to the party just compensation for his damages suffered by reason thereof. It would be a travesty upon justice to apply the rule contended for by defendants, and thus enable them to escape all liability, because of the possibility that plaintiff might at some time have the right to exercise said option, and elect so to do at the penalty of closing his plant. The next exception is to the exclusion by the court of evidence that whiskey was manufactured by the plaintiff during the season of 1901 and 1902, and of the price at which said whiskey was sold. It was stipulated that such evidence, if admitted, would show that the prices received by plaintiff were largely in excess of the contract price. Counsel for plaintiff argues that, as defendants had no further interest in plaintiff's business after the repudiation of the contract, it was immaterial whether or not he continued thereafter to manufacture. We have already discussed this contention. But while, in the absence of evidence as to plaintiff's actual loss, the rule of damages is as stated above, yet, as the first consideration is to ascertain actual damages where possible, if evidence is available of manufacture and sale after such breach, such evidence should go to the jury, in order to enable them the more nearly to approximate plaintiff's actual damages. Diamond Co. v. San An

tonio R. R. Co. (Tex. Civ. App.) 33 S. W. 987; Hochster v. De La Tour, supra; Wakeman v. Wheeler & Wilson Mfg. Co., supra. Especially is this so, in view of the admission of evidence as to the value or pront to plaintiff derivable from storage. If the jury were at liberty to award plaintiff damages for storage during the years succeeding the breach, they were bound to deduct therefrom such amounts as plaintiff actually received for his warehouse and factory during said season of 19011902. The exclusion of said evidence was clearly error. The ruling was directly contrary to the views expressed by the Supreme Court in Hinckley v. Steel Co., supra, where the court said as follows:

"The Circuit Court finds that it would have cost the plaintiff $50 per ton to have manufactured and delivered the rails called for by the contract, according to its terms; that the profits of the plaintiff, if the conduct of the defendant had not prevented it from fulfilling the contract, would have been $8 per ton on each of the 6,000 tons, being $48,000; and that the plaintiff manufactured and sold to other persons 4,000 tons of rails from the materials purchased by it with which to perform the contract with the defendant, and received for such rails $54.60 per ton, and made a profit of $1.60 per ton on the 4.000 tons, being a profit, in all, of $6,400. Deducting this $6,400 from the $48,000 leaves $41,600, for which amount the judgment was finally entered."

Error is also assigned to the refusal of the court to permit expert witnesses to answer the following question:

"Taking a contract for the sale of the product of a distillery, the contract being dated April 12, 1899, covering five distilling seasons for an annual output of 3,000 barrels, and the next ten distilling seasons for an annual output of 3,500 barrels, the distillery being located in Owensboro, Kentucky, and its total capacity being about 3,000 barrels, and the total value of the distillery and property being about $35,000, and the contract price of its output being 30 cents per proof gallon; supposing that two seasons of that contract has elapsed, and that thirteen seasons were still to elapse, at the time when the contract was rescinded or canceled or terminated, what, in your opinion, would be a reasonable deduction for the less time engaged, and for release from care, trouble, risk, and responsibility attending a full execution of the contract; what proportion of the profit which the contract would have yielded, if any, to the manufacturer?"

The exclusion of this evidence is now sought to be justified on the ground that the witnesses were not qualified to testify as experts, and that, in any event, the jury were the sole judges of what deductions were to be made. The witnesses duly qualified as experts, and no objection was made at the trial on the ground that they were not thus qualified. That the defendants were entitled to such deductions is settled by the authorities. Hinckley v. Steel Co., supra; Masterton v. The Mayor, supra; United States v. Speed, 8 Wall. 77, 19 L. Ed. 449. And the court charged the jury to this effect, as appears from the following excerpt from the charge:

"If the jury believe from the evidence that the said defendants committed a breach of said agreement of April 12, 1899, then in estimating the damages, if any, sustained by plaintiff by reason of such breach after October 14, 1901, the jury should make a reasonable deduction for the less time engaged, and for release from care, trouble, risk, and responsibility attending a full execution of said agreement by the plaintiff."

The general rule is well settled that, where a subject is one involving special knowledge upon subjects as to which the jury are not as well able to judge for themselves as one familiar with such matters, the