The opinion of the court was delivered by
Ross, J.The questions reserved in this case all arise upon the assessment of the damages. At a previous term, the defendants set the case “ not for the jury,” and applied for a continuance, which was refused, and judgment was rendered against them without the introduction of any evidence. The case was then continued for the assessment of damages. This preliminary judgment determined the plaintiff’s right to recover damages for every breach of the contract properly set forth in the declaration, and precluded the parties from introducing any evidence that would defeat, enlarge, or lessen the right of recovery set forth in the declaration. They were thereafter limited to such evidence as operated upon the amount of damages sustained from the breaches of the contract legally set forth in the declaration. Webb v. Webb, 16 Vt. 636; Hyde v. Moffat, 16 Vt. 271 ; Bradley v. Chamberlain, 31 Vt. 468; Sweet v. McDaniels, 39 Vt. 272 ; Chamberlin v. Murphy, 41 Vt. 110. This judgment definitively and finally determined in favor of the plaintiff every fact alleged in the declaration that, but for it, he would have been bound to have proved, to establish his right of recovery. Bradley v. Chamberlain, 31 Vt. 468. It established in his favor the existence of the contract set forth in the declaration, the amount of work alleged to have been done by the plaintiff under the contract ; the failure of the defendants fully to pay for the same ; and the wrongful termination of the contract by the defendants. It left to be determined the extent of the failure of the defendants to pay for the work alleged to have been performed by the plaintiff, and the extent or amount of damages occasioned by the wrongful termination of the contract. The defendants make no question in regard to the extent of their failure to pay for the *311work actually performed by the plaintiff under the contract declared on.
The defendants excepted to the ruling of the court allowing the plaintiff to use in evidence the contract under which the labor had been performed, on the ground that there^ was a fatal variance between it and the contract set forth in the special count. The exceptions fail to state that any particular variances were pointed out to, and passed upon by, the County Court. It is provided by s. 60, c. 30, Gen. Sts., “ In any case of exceptions before the Supreme Court, no questions of variance between the pleadings in the suit and the evidence, shall be permitted to be raised and insisted upon, except such as it shall appear -from the, exceptions were raised and passed upon in the County Court, unless such variance is material and substantial, affecting the very right of the matter.” Under this statute, it is not enough to except to the admission of evidence by the County Court on the general ground of variance, unless it is “ material and substantial, affecting the very right of the matter.” To have such exceptions considered by this court, the exceptions must state the particular variance relied upon, and the judgment of the County Court thereon. The right of the plaintiff to recover had been established by the preliminary judgment; hence, the variances claimed could not be heard against that right. The variances argued are failures to set out in the special count certain portions of the written agreement under which the work was done. None of them tended to increase the amount of damages, except the one which included the “ paving” within the contract, and the court rejected the written contract in that particular. There was no error in the action of the County Court in receiving the contract against this exception, both because the exceptions do not properly raise the question of variance, and because the variances relied on did not tend to increase, but rather to diminish, the damages recoverable in the case, the only subject on which they could legitimately operate.
II. The defendants insist that by the terms of the written contract put in evidence, the plaintiff is not entitled to recover any *312damages for not being allowed to complete the work named in the contract. They rely upon that clause in the contract by which the plaintiff agreed to complete the work by July 1, 1872, in a workmanlike manner, to the satisfaction and acceptance of the railroad company, and in “ accordance with the instructions and directions ” of its engineer, “ and agreeably to the specifications adopted by them, which, it is hereby agreed, shall govern the execution of this contract.” They claim that under this clause, they reserved the right to stop the plaintiff permanently in the execution of the contract, if the company’s engineer so directed. If “ which,” in the clause, relates to the “ instructions and directions of the engineer,” for its antecedent, rather than “ specifications ” (and this may be doubted), the fair construction and meaning of the sentence does not reserve to the engineer the power to direct the permanent stopping of the execution of the contract, but to give directions as to the execution of the work included in the contract.
The defendants also claim that it was error to allow the plaintiff to show a breach of the contract stated in the declaration, by stopping the work in November, 1872, instead of June, 1872, as alleged in the special count, and that no breach of the contract could be shown subsequent to the time the plaintiff was to have completed the work according to the contract set out in the declaration. The proof showed that this time had been enlarged under a stipulation in the original contract not included in the declaration. On the assessment, fit would have been error of which the defendants could have complained, if it had tended to enlarge their liability as established by the preliminary judgment. But it operated to their benefit in this particular, as it lessened the amount of unperformed work, and so lessened the amount of profits that the plaintiff lost by the termination of the contract. It is as to the recovery of these profits alone that all the objections and exceptions of the defendants are aimed. Hence there was no error in this respect of which the defendants can avail themselves.
III. The defendants further insist that damages for not being allowed to perform all the work included in the contract, are in *313the nature of profits — too remote, and speculative. Under certain circumstances, expected profits are held to be speculative, and too remote to constitute an element of legal damage. The rule, that, a party is entitled to recover the loss, occasioned by the ■wrongful termination of a contract, of profits that he would have received by the performance of the contract, is too well established to require the citation of authorities to support it. Such damages are the direct and immediate consequence of the wrongful termination of the contract. Hence, the loss of profits sustained by the plaintiff by the wrongful termination of the contract by defendants, and which profits he would have received if allowed to have performed the contract set forth in the declaration, the plaintiff is entitled to recover.
By that contract the plaintiff was under no legal obligation to do the paving on the sections of the railroad named. The most that is alleged in the special count is, that the defendants agreed to pay him a certain price per yard for what paving he did. It fails to allege that he agreed to do all the paving on the sections named, or that they agreed he might do it. The preliminary judgment did not establish the right of the plaintiff to do the unperformed paving. That judgment establishes the rights of the defendants as well as those of the plaintiff, and precludes both parties from varying by evidence their rights so far as they were thereby established. As the defendants cannot diminish the plaintiff’s rights of recovery as established by the preliminary judgment, neither can he enlarge,them. Hence the County Court properly excluded the written contract so far as it showed that the plaintiff was legally holden to do all the paving on the section's named; but it erred when it included in the judgment for the plaintiff the profits which he would have received if allowed to have done all the paving. Such profits are only recoverable upon the ground that the plaintiff, by the preliminary judgment, had the legal right to do all the paving. By including these profits in the judgment, the County Court allowed the plaintiff to enlarge the liability of the defendants beyond what it had been established to be by the preliminary judgment. For this reason, the judgment of the County Court must be reversed, and judg*314ment is rendered for the plaintiff to recover the amount of the judgment of the County Court, less $115.70, the profits that plaintiff would have realized on the paving, with interest on the balance from the rendition of the judgment of the County Court to the time of the present judgment.