David Josiah Brewer

“ The defendant may have been so situated that it could better afford to employ its own men and facilities, even although by doing so its machines would cost it more than to buy them of others, and in this view the difference between the actual cost of the machines to the defendant and the sum it would have cost the plaintiff to make and furnish them might not be the correct rule of damages. ”

“ In reference to that, the contract provided that Dolph should have the option to manufacture for defendant any other machines, at such price 'as may be bid for them in open competition, for equal quality of goods, by any responsible manufacturers other than said Dolph.' In reference to this branch of the case the learned judge, charging the jury, said: 'Regarding the machines other than the Dolph machines, it is well-nigh impossible to lay down any satisfactory rule of damages. In attempting to do so difficulties and perplexities are encountered at every turn. ”

“ The opinion of the circuit judge, in sustaining the motion for a new trial, evidently was that, in the uncertainty surrounding the facts, recourse might be had to some usual or average percentage of profits customarily realized by manufacturers of analogous articles. ”