(concurring specialty). AVlaile I am of the opinion that, under the pleadings and the instructions as given, ■there is error sufficient to warrant the granting of a new trial herein, yet I am unable to agree with the foregoing opinion either upon the question of jurisdiction or in all that is found therein relating to the measure of damages for breach of warranty.
A¥hile sections 2305, 2306, of the Revised Civil Code of this state cover -the measure of damages in all ordinary -cases, yet I am of the opinion that, whenever there is a warranty oí quality of fitness and the seller knows that the purchaser has certain work contracted for in the performance of which work -the machine to be purchased is to- be used, and where, if there shall prove to be a breach of such warranty, it must be anticipated that the purchaser will suffer a loss of'profits on the -contract he has entered into, the seller will be liable for such loss of profits as would be thus anticipated to naturally flow from such breach of warranty; the *534damages to be recovered, in any case, being limited under section 2329 of the Revised Civil Code by the amount which the injured party would have gained if there had been no breach of such warranty. Sections 671-676 (3d Ed.), Sutherland on Damages; Critcher v. Porter-McNeal Co. et al., 135 N. C. 542, 47 S. E. 604. In the North Carolina case, which in many respects was quite similar to this, is found quoted the rule as laid down in the leading case of Headley v. Baxendale, Exch. 341, as follows: “When two parties made a contract which one of them has broken, the damages which the other party ought to receive in respect .to such breach of contract should be such as may fairly and reasonably be considered either arising naturally — that is, according to the usua-l course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to defendant, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of -injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in a great multitude of cases, not affected by any special circumstances for such a breach of contract, for, had the special circumstances been known, the, parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would have been very unjust to have deprived them.”
I believe the trial court was correct in-, holding- that it had acquired jurisdiction over the defendant through the service of the summons upon the agent Brown. There was, in the affidavits presented to such court, sufficient to justify the court in finding: That said corporation had been doing business within this state, *535in the selling of mining machinery, for several yearsj but that it had wholly failed to obey the laws of this state requiring the appointment of an agent upon whom service of papers might be made; that Brown, upon whom it is claimed service was made in this case, was an agent of the company who had been such agent for some time; that every few months he made a certain territory in this state soliciting and taking- orders for the machinery sold by the defendant company; that such agent had more or less discretion in the matter of granting terms to purchasers, other than those terms named in the catalogues; and that the company frequently shipped machinery consigned to themselves, which machinery Brown would then deliver. Our statute permits of service upon a managing agent where the foreign corporation is doing business in this state. The only question for -our determination then is whether or not said Brown was such an agent as is contemplated by such statute. No fixed rule or criterion can be laid down for determining who are and who are not managing agents, but when, as in this case, a foreign corporation has appointed no agent upon whom service might be made — has no fixed place of business in this state — and does no business here- except that of selling machinery upon orders received by mail or such as may be taken by their traveling agent, the court should certainly, if possible, hold that such agent — being the only person in the state through whom the company does business— is, for the purpose of litigation growing out of such business transacted within this state, a proper agent for service of papers.
In the case of Palmer v. Foley, 42 Super. Ct. Rep. (N. Y.) 369, the court well said: “The Code does not specify the extent of the agency required to bind defendants by service of process, except that the person upon whom the service is made, must be managing agent. Were the rule to be established as contended by appellants, that the agent must have charge of the whole business of the corporation, the statute would be a dead letter, for such seldom, if ever, exists. Every object of the service is attained when the agent served -is of sufficient character and rank to make it reasonably certain that -defendant will be apprised of the service *536made. The statute is satisfied if he be a managing agent to any extent,” and the appellate court of New York, in the case of Tuchband v. Chicago & A. R. Co., 115 N. Y. 437, 22 N. E. 360, used the following language, which we think is applicable to all cases under this statute: “It of course intends 'a managing agent’ in this state; and when the corporation, created by the laws of any other state, does business in this state, the person who, as its agent, does its business should be considered it managing agent.” In the New York case, such foreign corporation had an office or fixed place of business, but we cannot see why this fact should distinguish that case from the one now before us. We are satisfied that the trial court committed no error in denying the motion and holding the service of the summons to be good.
The judgment appealed from is reversed and a new trial ordered.