tract price; but if he did not choose to do this, and elected to sue for breach of contract to accept them, and, having the machines on hand, could have Bold them, and realized· a larger price than the actual cost of manufacture to himself, it would have been his duty to do so, and his relJovery would have heen the difference between what he could have realized upon sales and the contract price. The party who is exposed to loss by the violation of the contract by another party must exert himself to make the damages as light as possible; the law imposes this active duty upon him. Costigan v. Mohawk &: H. R. Co., 2 Denio, 609; Hamilton v. McPherson, 28 N. Y. 72; Dillon v. Anderson, 43 N. Y. 231; Warren v. Stoddart, '105 U. S. 229. Good faith and good logic require' that he be confined to are· covery of those damages only which arise from the fault of the other party. What has been said has reference to the instructions respecting the damages. recoverable by the plaintiff for the breach of that part of the contract relating to the "Dolph Standard" machines. It is apparent that, under the instructions given, the jury may have awarded the plaintiff damages in excess of the difference between the market price or value of the machines at the time when their acceptance was called for under the contract and the contract price. The evidence that both the plaintiff and defendant were selling the machines in open market during the whole term of the contract, and the prices at which the machines were sold, authorized the jury to fix the market value. As to the damages recoverable for the breach of that provision of the contract by which the plaintiff was to have the privilege of supplying the de· fendant with other at the lowest price bid by other manufacturers for supplying defendant with the same, it is not clear that the plaintiff conld establish ll,ny loss of profits, unless it could be shown that there is some usual or average percentage of profit customarily realized by manufacturers of a.nalogous articles, or some established manufacturers' price. The plaintiff might have been unwilling to act upon the option at prices which other mauufacturers would have offered, and the extent of his prospective loss, if any, is largely a matter of speculation. The defendant may have been so situated that it could better afford to employ its own men and facili· ties, 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 coat 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 any view, the jury were unduly restricted by the direction that the plaintiff was entitled to recover as his loss nnder this provision of the contract the difference between what it cost the defendant to build them and what the plaintiff could have built them for. At most, the cost to the defendant was only evidence to be considered with the other evidence of the ordinary manufacturers' price for such machines.
BURGESS V. WINSTON.
For these reasons it must be beld that the instructions to the jury on the question of damages were erroneous, and prejudicial to the defendant. A new trial is granted.
NOTE. See W. U. Tel. Co. v. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1, and note. 10-14, and Sharp v. Whiteside, 19 Fed. Rep. 156, and note, 164-173, for an exhaustive discnssion of the validity of contracts billdmK parties not to do business in particular districts, or to sell to or labor for certain parties only. See, also, McCaul! v. Braham, 16 Fed. Rep. 37, and note, 42-49, as to the development of the modern doctrine in regard to the enforcement of' contract8 of the latter class by injunction. In Bickford v. Davis, 11 Fed. Rep. 549, speCIfic performance of a contract to make peg-wood for plaintiff exclusi vely, was denied on the ground that it was a proper caso for damages at law, and because of' other circumstances that rendered specific performance inequitable. In Iowa contracts have been upheld" not to practice law" in a certain city, Smalley v. Greene, 3 N. W. Rep. 78 i "not to practice medicine" in a certain place, Haldeman v. Simonton, 7 N. W. Rep. 493; .. not to do blacksmithing" in a certain localitr. Stafford v. Shortreed, 17 N. W. Rep. 756; and" not to sell to anyone but plaintiff, withm two miles, for a period oftive years," Arnold v. Kreutzer, 25 N. W. RE>p.139. In Michigan the court enforced bv injunction a contract never to engage in a. specified line of business at Bay City, nor to use nor permit the use of the name" Little Jake," under which the business was established. Grow v. Seligman, 11 N. W. Rep. 404. A contract giving one party the exclusive sale in a certain place of all brick manufactured by another during the season of 1883 was construed in Norris v. Clarke, (Minn.) 24 N. W. Rep. 128.
(Oircuit (Jourt,E. D. Virginia. July, 1886.)
TAXES-COJ,LECTORS-AcCOUNTING TO STATE-VIRGINIA COUPONS-SURETffiS.
Neither a tax collector, nor the surety on his official bond. can discharge his debt to the state, for money received by him for taxes, with the state's'taxreceivable coupons. Laws Va. December 24,1872. '
Upon Petition for Mandamus. The opinion states the case. Wm. L. Royall and D. H. Chamberlain, f<:lr petitioner. Rufus S. Ayers, for respondent. BOND, J. It appears from the facts in this case that E. R. Burgess was the collector of taxes and treasurer of Northumberland county, in Virginia, and as such collected and received the taxes due the state to the amount of $3,222.98, which, with interest, amounted, at the time of this suit, to $3,794.73, for which he has not accounted. G. T. Burgess is the surety on his bond for the faithful performance of his official duties. The state of Virginia, by its proper omeers, brought suit and recovered a judgment for the Bum above stated"and Winston, the sheriff, was directed to enforce the same by an· tlxeCU, tion issued on the judgment. The petitioners tendered coupons for the amount due, which the sheriff refused to in payment. The defendants filed their petition for a mandamus in a state court, to compel the sheriff to receive the coupons in satisfae-