delivered the opinion of the court.
The plaintiff instituted this suit against the defendant, for the recovery of a plantation called Arlington, with the negroes, cattle and farming utensils thereto belonging. The defendant, on the trial of the cause, abandoned all pretensions to the title and possession of the property,-and confined his claim to a sum of money which he set up in compensation to certain damages which the plaintiff had alleged he had sustained, in consequence of the defendant’s acts, to the amount of ten thousand dollars.
The plaintiff offered no evidence in support of damages; the defendant adduced evidence to establish the different sums claimed in compensation, and the jury gave the defendant a verdict against the plain tiff for the sum of ten thousand four hundred and forty-four dollars. Judgment was rendered, giving the estate and negroes to the plaintiff, and. confirming the verdict. From this judgment the plaintiff has appealed.
H the defendant, on the trial, abandons title to oíaimedPIinP u!e petition, but in-sisls on his claim for damages set tíoiíoftheplain- , den‘and> and the latter permits the case fhu°manned 'yitho,:!t 0|>.1“7 and judgment turbéd*on this sround-Our attention has been called to the manner and time in which the defendant, during the trial, abandoned his claim to the title of the property in dispute. We think that the party ought to have applied to the court for relief, when the act occurred of which they complain, but as they let the matter , . . , go to the jury without objection, and without requiring the charge of the judge in relation to it, this court ought not to interfere in their behalf. We have no reason to believe that . an application to the court below, would not have protected them against surprise, and if any detriment has resulted to the cause from the withdrawal of part of the defence by the . 1 J defendant, it would be unjust in this stage of the proceedings, to subject him to the expense and delay of another trial, for an act in which the plaintiff acquiesced, and the effects of which he could have avoided at the time it occurred.
The controversy between the parties grew out of an understanding between them, for the purchase and cultivation of the estate which was the subject of the plaintiff’s demand. The defendant was the son-in-law of the plaintiff, and what passed between them in the inception of this undertaking, was modified by the intimate relations of confidence and friendship, and seems to us to have been dependent on their continuance. The plaintiff was desirous of establishing the defendant on the estate, in partnership with his son. The plaintiff was to furnish the means; no advance was to be required from the defendant, who was to remove from the city, and jointly with the plaintiff’s son, conduct the affairs of the plantation. This project did not long succeed, and fifteen months after the defendant took possession of the Arlington Place, this suit was instituted, and the property sequestered.
The only contract which we can notice as having existed between the parties, is a contract on the part of the plaintiff for the use and cultivation of the Arlington plantation, by the defendant and his son, in partnership, for which he, the plaintiff, was to furnish the funds. Supposing that this contract ceased by the interruption of the relations of amity between the parties, (and we feel ourselves unable to come *410to any other conclusion on the subject,,) we proceed to examine the claims of the defendant for indemnity.
Wheretbede-fendant save up tiic praoiice of leans^arufenter-ed into a con-plaintiff, by ed to East Baton Rouge, and took upon him the cultivation of an tation a'in Pcon-on a disagree-the parties, the solved*^ and the plaintiff sued to recover the possession of the es-¡he ' ¡tefeíídaní cannot recover damages for the loss of his prae-leans,n asT'fb?1» breach^ of the absence \vas not the consequence the plaintiff;1 but of the contract Damages for a tractCl*are those which are inei-caused by ihe reasonably1 "be supposed to have entered into the contemplation of timeof'making the contract.He claims the sum of ten thousand dollars for the loss of his professional earnings in New-Orleans, during the time he was jn Baton Rouge. The defendant was at the bar in this . , T . i , . -,. city, and by the contract he was to remove to the Arlington Place. He removed there accordingly, at the instance of the plaintiff, in May, 1833, and so far as relates to this matter, must be considered, as he was in fact, residing there up to the time of the institution or this suit.
j-] js removal from this city, and the loss of his practice at J 3 1 the bar during his absence, was not the consequence of the breach of the contract on the part of the plaintiff, but of the itself. By the agreement itself, he was to remove from New-Orleans, and would have equally lost his practice whether the contract was fulfilled or not. The damages which a party can recover on a breach of a contract, are those which are inciden!al to and caused by the breach ; and , , , , . , . , may reasonably be supposed to have entered into (hecontem-plation of (he parties at the time of the contract. Louisiana Code, 1928.
, , , Ordmairement les parties sont censees n avoir prevu les dom-mages ot intéréts que le créancier, par l’inexécution d’obligation, p0urrait souffrir par rapport U la chose méme qui en a été Vobjet. JDamni et inter esse, propter ipsam rem non habitant. Pothier on Q¡jHga^ons^ section 161. See, also, 6 Toullier, section 286 ei se<l-> to the same effect.
We leave out of view all that part of the claim of the defendant founded on a promise on the part of the plaintiff to ma^ce a donation of one half the estate to his daughter, the wife of the defendant. No action can be sustained on a breach of a promise to make a donation. Up to the time that llie donation is executed, under the forms required by out-jaw the donor is not bound. Indeed, a promise to make a . , donation to a child, on the part of a father, necessarily presupposes the continuance of those feelings and relations which prompted the promise.
After an examination of the pleadings and evidence in this *411case, having great' difficulty in coming to a conclusion in relation to the rights of the parties, we suggested to them the propriety of an amicable settlement of the matters in dispute between them. This suggestion was made from the conviction on our minds, that mutual friends could do mote justice between them, than we would be permitted to do, owing to the relations in which they stood to each other, and the modifications with which those relations and the subsequent interruption of them had affected their respective rights. This suggestion was without effect.
No aeUoncan juireachof pro’"ise -1<) make aWithout throwing the responsibility of the breach of the contract on the plaintiff or defendant., and supposing it to have resulted solely from a change of opinion on either side, and a want of harmony, so necessary between parties, in the management of a large estate, we concur with the jury and the court below, in thinking that the defendant is entitled to recover a certain sum from the plaintiff.
Although the partnership between the son of the plaintiff and the defendant, did not continue long, yet we must consider that the latter remained on the estate, under the original agreement.
In the consideration of the defendant’s claims, we feel bound to confine ourselves to such charges as the plaintiff is liable for according to the evidence, agreeably to the rules of law, a test which neither anticipated in the commencement of the transactions which are the subject of the present suit, and which we are bound to acknowledge, will not enable us to meet the equity of the case. We allow the defendant the sum of three thousand seven hundred and eighty-five dollars.
The judgment of the court below is, therefore, reversed, so far as relates1 to the demand in reconvention of the defendant; and judgment is.entered in favor of the defendant against the plaintiff, for the sum of three thousand seven hundred and eighty-five dollars, with costs in the court below ; and so far as relates to the Arlington estate, negroes and property sequestered, it is affirmed. The appellee to pay the costs of appeal, and the appellant the costs in the *412court below, except those which were incurred by the sequestration, which are to be paid by the defendant.