Insofar as it is held that the plaintiff has not alleged a cause of action in his alternative claims I agree with the majority opinion. However, I do not agree with the majority opinion in its holding that the plaintiff has set forth a cause of action in his claim for damages for the amount that it would cost to drill the well, or, in other words, the cost of performing the contract. While this court has not heretofore decided a case of this nature, yet this court has on numerous occasions interpreted the provisions of Article 1934 of the Revised Civil Code, under which the plaintiff is now seeking to recover. Under this article of the Civil Code I take it the loss contemplated is the loss actually sustained as a result of the breach of the contract, or in other words, the loss occasioned by the failure of the contract. This court has often referred to such damages as being in the nature of indemnity to indemnify the actual loss sustained. The decisions based on Article 1934 of the Revised Civil Code have invariably placed a strict construction upon its provisions. I do not believe that the plaintiff under *Page 252 the provisions of Article 1934 of the Civil Code is entitled to recover beyond the loss he has sustained and the profits he has been deprived of. The plaintiff is not entitled to be placed in a better position than he would have been had the contract been kept. There is not a more apt illustration that the measure of damages under this Article of the Civil Code could not be the cost of performing the contract than the instant case. If the contract had been kept and the well had resulted in a dry hole the well would have been of no value. In such instance, if the contract had failed the plaintiff would have suffered no loss, while on the other hand, if the well had been successful and produced oil, there is no means by which you can determine how much oil it would have produced. I do not believe that the loss the plaintiff suffered is capable of proof. The result of this contract being of such an uncertain nature, the loss occasioned by its failure is incapable of proof. In order to determine the plaintiff's loss occasioned by the failure of the contract we would first have to ascertain the value of the completed contract. The value of the completed contract is incapable of proof, consequently the loss the plaintiff has suffered is incapable of proof.
It is true that this court in the case of Goodloe Co. v. Rogers, 10 La.Ann. 631, in discussing the measure of damages under Article 1934 of the Civil Code, stated that the doctrine of the civil and common law is not materially different. In 17 Corpus Juris, under Damages, § 168, we find the rule stated: *Page 253
"The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed. In other words, the person injured is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed. But a plaintiff is not to be put in a better position by a recovery of damages for the breach of a contract than he would have been in if there had been performance."
We also find the rule stated in 15 American Jurisprudence, under Damages, § 43:
"In accordance with the general principle governing the allowance of damages, a party to a contract who is injured by its breach is entitled to compensation for the injury sustained and is entitled to be placed, in so far as this can be done by money, in the same position he would have occupied if the contract had been performed. Moreover, his recovery is limited to the loss he has actually suffered by reason of the breach; he is not entitled to be placed in a better position than he would have been in if the contract had not been broken."
We do not find any material difference in the general rule of the common law and that of Article 1934, Revised Civil Code. In either instance the plaintiff would not be entitled to be placed in a better position that he would have been had the *Page 254 contract been kept. Under the common law doctrine of compensatory damages the loss suffered must be capable of proof and under Article 1934, R.C.C., the loss must be capable of proof before the plaintiff would be entitled to recover. In the case of Benjamin v. Hillard, 23 How. 149, 16 L.Ed. 518, in discussing the measure of damages for breach of contract the court stated:
"The amount that would have been received, if the contract had been kept, is the measure of damages if the contract is broken."
I do not believe that Article 2451, R.C.C., is applicable to the instant case. It is to be borne in mind that in the sale of an uncertain hope the parties themselves fix a price or value. While the hope is uncertain the value or price of it is certain for the reason that the parties themselves have fixed such price or value. I do not see how recovery could be had under the provisions of Article 1934, R.C.C., for an uncertain hope or for uncertain damages because the damages contemplated under the provisions of the Article must be capable of proof. If the plaintiff had, on the defendant's failure to complete the contract, gone ahead and drilled the well I believe he could have recovered the amount expended for the reason there would have been an actual loss which was capable of proof.
For the reasons assigned I respectfully dissent. *Page 255