The opinion of the court was delivered by
Knox, J.We perceive no error in this case except in the instructions given by the Common Pleas to the jury upon the *263measure of damages. The jury were permitted to find for the plaintiff the full amount which the defendant had stipulated that O’Neil would subscribe to the capital stock of the company in the event of the selection of the western route.
The true measure of damages, was the difference between the value of the stock at the time of the trial, and the amount which the defendant had agreed that O’Neil should pay for it. This will make good to the plaintiff the actual loss sustained by the nonperformance of the defendant, and will at the same time relieve the defendant from the necessity of himself becoming á stockholder in a company in which he had never subscribed, or agreed to subscribe to the capital stock. To allow the full subscription price as the measure of damages, is to allow the company to get the money and keep the stock, or in effect to change the terms of the contract by compelling the defendant to do himself what he had stipulated that another should do. The case was not one for specific performance: 1st, Because O’Neil could not be compelled to take the stock; and 2d, Because a recovery of the difference between the par and the market value would be an adequate remedy for the injury sustained.
Judgment reversed and venire de novo awarded.