As this case will be remanded for further proceedings, I deem it proper to state briefly the grounds of my concurrence in the judgment of the court. And,
1. I am of opinion that the petition is sufficient in law to enable the plaintiff to maintain his action; and that the demurrer was rightly overruled by the court. This, indeed, is not now controverted or questioned by counsel on behalf of the appellant.
2. The court, as I think, erred in the instructions given to the jury respecting the measure of damages.
*486The court, in effect, ruled, as well by the refusal of the instructions asked by the defendant as in those given at the instance of the plaintiff, that the measure of damages in this case was not a just compensation for the injury actually sustained by the plaintiff; but the whole amount agreed to be paid to him upon the actual performance of his part of the agreement.
The very reverse of this I conceive to be the law.
In the case of Champlin vs. Rowley [18 Wend. 187], which was an action upon a contract to transport horses upon a canal boat for a given sum of money, the plaintiffs averred a readiness and offer to perform on their part, and a neglect and refusal on the part of the defendants to furnish the freight, and claimed to recover the entire sum specified in the agreement. But the supreme court of Hew York held that they were only entitled to recover what they had actually lost by the defend-' ants’ non-performance. The court say: “ Suppose the plaintiffs had, the next hour, been furnished with freight entirely adequate to the voyage at the same sum, they then would have been entitled to the damage arising from detention for that time, but no more. A tender and offer to perform is equivalent to performance, but merely for the purpose of sustaining an action; it is not performance, though, in one respect, it resembles it consequentially. It is quasi performance, but it does not regulate the amount of damages.”
In Shannon vs. Comstock [21 Wend. 457], it was held that in an action for damages for the non-performance of a contract, other than for the conveyance of land, the rule of damages is the injury to the party wrho has shown himself ready and willing to perform the undertaking on his part.
In a later case, Masterton vs. The Mayor of Brooklyn [7 Hill, 62], a case in which a very large amount was involved in the controversy, the doctrine of the former cases does not appear to have been questioned; and in laying down the rule of damages in that case, the same doctrine was substantially re-asserted and affirmed. And in a still later case, that of Clark vs. Marsylia [1 Denio, 317], where the defendant had employed the plaintiff *487to do certain mechanical work at a price agreed upon, and had countermanded the direction and forbidden the further execution of the work, after it had been commenced, the same learned court held that the measure of damages was not the whole amount agreed to be paid, but a just recompense for .such injury as the plaintiff had sustained on account of the breach of the agreement.
This brief reference will, I think, suffice to show that the court erred in the instructions given to the jury; and it is for this cause that, in my opinion, the judgment ought to be reversed, and the cause remanded for a new trial.