the debt against the estate, for payment of which the land was decreed to be sold, was barred by the statute of limitation; and there is a general charge of fraud and collusion.

The respondent answered the bill and denied all the material averments of facts upon which the complainants base their right to relief, and with their answer demurred to the bill and moved to dismiss it for want of equity. The case was set down for hearing upon a motion to dissolve the injunction upon the denials of the answer and the want of equity. The motion to dissolve the injunction was denied, and respondents appealed.

So far as can be ascertained from the averments of the 470 bill, the proceedings in the probate court were regular and valid, and the court had jurisdiction of the parties and subject matter. The complainants were parties to those proceedings. Their ignorance that their rights were involved affords no excuse for not appearing and contesting the sale of the land. If there were no debts against the estate, it was their bounden duty to appear and contest the application. If the proof was insufficient, or the proceedings irregular, their remedy was by appeal. The probate court had jurisdiction and judicially ascertained that there were debts against the estate, and that it was necessary to sell the land for the payment of the debts. In the absence of fraud or collusion, the judicial determination by the probate court, that there were debts against the estate and that a sale of the land was necessary, is conclusive upon all who were parties to that proceeding, and conclusive upon the chancery or other court, in any collateral suit or proceeding, so far as the rights of bona fide purchasers of the land at a sale, had in pursuance of the decree, are concerned: Kent v. Mansel, 101 Ala. 334; Pettus v. McClannahan, 52 Ala. 55; May v. Marks, 74 Ala. 249; Pollard v. Hanrick, 74 Ala. 334. The cases of Teague v. Corbitt, 57 Ala. 529, and Boykin v. Cook, 61 Ala. 472, are not in conflict with this principle. Whether an administrator is entitled on his settlement to reimbursement out of proceeds of land for money paid by him on a debt which had been barred by the statute of limitations, is wholly a different question. The debt against the estate of Celia Berry seems to be evidenced by a written obligation for the payment of money, which became due in 1887, executed under seal. It requires ten years to effect a bar against an action founded upon a writing under seal: Code 1886, sec. 2614. The act of February 16, 1891 (Acts 1890-91, p. 755), which prohibits the payment of any debt against an estate which may have been barred in the lifetime of the decedent, does not apply.

In actions to rceover possession of land, instituted before justices of the peace, the title is not involved. There is no averment in the bill which attacks in any manner, the justice, regularity, or validity of the respondent's right to recover in the justice court.

The averment of fraud and collusion, as affecting the probate court proceeding, is general. In what the fraud 471 consists is not stated. The complainants do not pretend they were deceived or overreached. Their excuse is, that they were ignorant and did not know that their rights were involved in the proceeding to sell the land.

From the identity of the names to the written obligation, which constitutes the debt against the estate of Celia Berry, to pay which the land was sold, and other evidence, we infer that complainants were comakers and bound as sureties for their mother. The facts tend to show that the purchaser paid full value for the land, and that the purchase money must go to the satisfaction of this debt, for which complainants were bound. If, after they have reaped such a benefit from the sale of the land, they are permitted to recover or retain the land, in their own right, the result would present a case of "masterly inactivity," rather than one of timitity and ignorance.

The bill does not charge that respondent is insolvent, and the facts tend to show that he is amply able to respond to any judgment that may be recovered against him. We are of opinion the court should have dissolved the injunction, and a decree will be here rendered to that effect. We will not dismiss the bill, but remand the case that complainants may amend, if they can, so as to aver fraud in the procurement of the decree in the probate court, and to connect the purchaser therewith.

Reversed and rendered in part and remanded.

PROBATE SALES.-COLLATERAL ATTACK on an order of the probate judge directing a sale cannot be successfully made when he had jurisdiction of the subject matter and the parties. Jurisdiction over the subject matter attaches upon the filing of a petition in sufficient form; Hodge v. Fabian, 31 S. C. 212; 17 Am. St. Rep. 25. Proceedings in probate for the sale of a decedent's estate are in rem, and cannot be collaterally attacked: Note to Goodwin v. Sims, 11 Am. St. Rep. 27, 28; Daughtry v. Thweatt, 105 Ala. 615; post, p. 146; to the same effect, see Lyne v. Sanford, 82 Tex. 58; 27 Am. St. Rep. 852, and note. The judgment of a probate court confirming an adjourned sale of real estate made by an administrator is final and conclusive until set aside in a direct proceeding, and cannot be collaterally attacked: Noland v. Barrett, 122 Mo. 181; 43 Am. St. Rep. 572 and note.

MOULTHROP v. HYETT.

[105 ALABAMA, 493.]

DAMAGES.-PROFITS which the purchaser of a chattel expects to make by its use are not recoverable in an action for damages against the seller for its nondelivery according to the terms of sale, or for its want of capacity to fulfill the uses or purposes for which it was intended. Such profits are too remote and speculative.

DAMAGES.-LOSS OF PROFITS cannot be made the measure of damages for breach of contract, when the profits are speculative, conjectural, dependent on chances, or have no reference to the nature of the contract and the breach; nor when the damages largely exceed the contract price, unless such a result was within the contemplation of the parties.

DAMAGES-LOSS OF PROFITS AS.-It is only when the loss is indisputable and the amount can be estimated with almost absolute certainty, that loss of profits forms the proper measure of damages.

DAMAGES-LOSS OF PROFITS-BREACH OF WARRANTY. In an action to recover the purchase price of machinery, the purchaser cannot recoup as damages the prospective profits which he could have made, if the capacity of the machinery had been as warranted.

O. Kyle, for the appellant.

Wert & Speake, for the appellee.

493 MCCLELLAN, J. This is an action by Hyett & Smith on a promissory note for five hundred dollars executed to them by Moulthrop & Stevens. The consideration of the note was a brick-drying machine, called a "Smith Hot Blast Heater, No. 45." The defendants 494 pleaded in recoupment that Hyett & Smith, through their agent who made the sale, warranted that the machine would dry 25,000 bricks in twenty-four hours, that it in fact would not dry more than from 7,500 to 10,000 bricks in that time, and that, in consequence, they were damaged in the sum of $600, which they offered to recoup against plaintiff's demand, praying judgment over in their favor for the excess.

The trial was had without jury, the judge at the request of the parties, making a special finding of facts. There were several rulings made on the pleadings and the competency of testimony, to which exceptions were reserved by the defendant. None of these rulings, however, had any bearing upon the point on which the case was decided against the defendants, and whether they were erroneous or not is wholly immaterial if the judge of the city court correctly adjudged that particular point, since, if erroneous, no injury resulted to the defendants.

The decision of the court was, "that defendants' plea of recoupment, in consequence of the alleged failure of considera

tion, is not sustained by that character of evidence from which the law can fix defendants' damages." The evidence in this connection was to the effect that for six months after the machine was put in operation there was an active demand for brick, that if the heater had had a drying capacity of 25,000 per day as represented, the defendants could have made from 30,000 to 40,000 brick a week, but that with its actual capacity they "made on an average from 15,000 to 18,000 brick a week, and that their profit on the brick manufactured by them during that period was $3.50 per thousand. We concur with the trial court that this evidence did not entitle the defendants to damages by way of recoupment, or otherwise, against the plaintiffs. The damages which it tends to show are entirely too speculative, conjectural, uncertain, and far beyond the contemplation of the parties to be recoverable. The profits which the purchaser of a chattel expects to make by the use of it are not recoverable in an action for damages against the seller for its nondelivery according to the terms of the sale and the principle is the same where the chattel is delivered but is incapable of the uses or less capable-for which it was intended-because the loss of them is neither the necessary nor the natural consequence of the seller's failure to 495 deliver the thing sold, and could not, therefore, have been within the contemplation of the parties, and for the further reason that mere profits existing only in expectancy-profits which the party believes he would have made but for the untoward circumstances complained of "are incapable of that clear and satisfactory proof which the law requires to constitute recoverable damages": Reed Lumber Co. v. Lewis, 94 Ala. 626, and authoritites there cited: 5 Am. & Eng. Ency. of Law, 32, 34; Pennypacker v. Jones, 106 Pa. St. 237; McKinnon v. McEwan, 48 Mich. 106; 42 Am. Rep. 458. This last case is strikingly analogous to the one at bar. In the note of it found in the Encyclopedia, and which is fully supported by the opinion itself, it is said: "Loss of profits cannot be made the measure of damages for breach of contract where the profits are conjectural, speculative, dependent on chances, or have no reference to the nature of the contract and the breach; nor where the damages largely exceed the contract price, unless such a result is in contemplation of the parties." And in Allis v. McLean, 48 Mich. 428, the owner of a sawmill contracted for "wrought feed friction works" to be placed in the mill early in March, and notified the other party that for every day's delay in putting them in he would suffer $150 damages. The works were not put in until

July, though frequently promised, but the mill was furnished with other works which enabled it to be operated except for sixteen and one-half days, during which it lay idle. Yet, even upon these facts it was held that the lost profits from the inability to manufacture lumber for that time were too uncertain to provide a measure of damages for the breach of the contract. The court said: "We had occasion, in McKinnon v. McEwan, 48 Mich. 106, 42 Am. Rep. 458, decided at the last term, to pass upon a question much like the one which arises here. In that case, as in this, a millowner had contracted for machinery to be furnished by a specified day, and he sought to recover profits lost by reason of his mill lying idle, as damages for the failure to perform the contract in time. It seems reasonable that where profits are thus lost the defaulting party should make them good, for the machinery is purchased with a view to the profits, and the contract would not be entered into if the profits were not expected and counted upon. But the difficulty in measuring damages 496 by profits is, that they are commonly uncertain and speculative, and depend upon so many contingencies that their loss cannot be traced with reasonable certainty to the breach of contract. When that is the case, they are said to be too remote; and the damages must be estimated on a consideration of such elements of injury as are more directly and certainly the result of the failure in performance. But, in some cases, profits are the best possible measure of damages, for the very reason that the loss is indisputable and the amount can be estimated with almost absolute certainty. The case of a contract for the delivery of grain, or any other article which at all times finds a ready sale at a current market price, is an instance; if the contract is not performed, the purchaser may recover the advance beyond the purchase price; and this, though not recovered under the name of profits, is really nothing else. It often happens, also, that one contract, the performance of which will result in certain and definite profits, will be dependent upon the performance of another; and if the second contract is broken, the loss of definite and fixed profits under the other is a necessary and immediate consequence. There is no difficulty in saying in some such cases that profits lost are the proper measure of damages: Loud v. Campbell, 26 Mich. 239; Booth v. Spuyten etc. Rolling Mill Co., 60 N. Y. 487; Salvo v. Duncan, 49 Wis. 151; Hitchcock v. Galveston, 3 Woods, 287; Fiegel v. Latour, 811 Pa. St. 448; James v. Adams, 8 W. Va. 568; Waters v. Towers, 8 Ex. 401. But the profits of running a sawmill are proverbially uncertain, indefinite,