Dissenting Opinion.
Roby, J.The object of the law is to make the injured party whole — to furnish compensation. Probable profits ought not to be the rule of damages, except as necessity makes them so. This necessity may arise when the article purchased has no market value. When the article manufactured has a fixed market value there is no necessity for resorting to the proof of probable profits, as such profits are too speculative and uncertain to be considered as damages. Acme Cycle Co. v. Clarke (1901), 157 Ind. 271; Western Gravel Road Co. v. Cox (1872), 39 Ind. 260; Montgomery County, etc., Soc. v. Harwood (1893), 126 Ind. 440, 10 L. R. A. 532; Rahm v. Deig (1889), 121 Ind. 283. I do not think that, the seller of commodities which have a fixed and provable market value, such as sugar and iron, can secure a different rule of damages for himself, by reason of the fact that he manufactures, as well as sells, or takes orders in advance of delivery. The difference between the contract price and the market price measures his damage, since such commodities are, in his hands, worth what they will sell for in open market. Rahm v. Deig, supra; McComas v. Haas (1886), 107 Ind. 512; Dwiggins v. Clark (1884), 94 Ind. 49, 48 Am. Rep. 140. I therefore dissent.