and contingent. They depend on many circumstances, among which are capital, skill, supply of logs, supply and steadiness of labor; and one man may fail while another prospers, and the same man may fail at one time and prosper at another, though the prospective outlook seems equally favorable at both times. Estimates of profits seldom take all contingencies into the account, and are therefore seldom realized; and if damages for breach of contract were to be determined on estimates of probable profits, no man could know in advance the extent of his responsibility. It is, therefore, very properly held in cases like the present that a party complaining of a breach of contract must point out elements of damage more certain and more directly 497 traceable to the injury than prospective profits can be: Fleming v. Beck, 48 Pa. St. 309; Pittsburg Coal Co. v. Foster, 59 Pa. St. 365; Strawn v. Cogswell, 28 Ill. 457; Frazier v. Smith, 60 Ill. 145; Howe Machine Co. v. Bryson, 44 Iowa, 159; 24 Am. Rep. 735."

The entire soundness of these views is aptly illustrated in the case at bar. Here the machine was operated for six months, and its operation appears to have been stopped because of circumstances wholly disconnected with the machine itself and wholly fortuitous. But for these untoward occurrences, namely, the outbreak of an epidemic of yellow fever in Decatur and New Decatur, and the collapse, from that among other causes, of the building boom that had existed there during the six months of operation, it is fair to assume that the machine would have continued a much longer time in operation, possibly until the present time. The nearest approach that the defendants' evidence makes to the amount of lost profits by reason of the machine's not coming up to representations during the six months they used it is from $42 to $87.50 per week, or somewhere from $1,092 to $2,275 for the six months. The evidence no more tends to show the one amount than it tends to show the other; and there is confessedly no certainty that either is the true amount, or even, we feel jusified in saying, that any ascertainable amount greater than the less and less than the greater of the sums named would truly represent the lost profits of the defendants. But even the smaller sum far exceeds the price of the machine. Can it be possible that the plaintiffs should, in six months, be called on to pay, as damages for failure in respect of the machine's efficiency, a sum somewhere from one and a half to three times the price of the thing sold? And had the fever not come, and the boom continued from 1887 to the present time, the damages, ac

498

cording to defendants, would have been somewhere from $15,000 to $32,000 for the failure of a $750 machine to accomplish fully what was claimed for it. And even if the time be computed to suit brought, the damages would be somewhere from $2,200 to $4,600. And this, too, when it seems the defendants had at all times the right, which the plaintiffs were at all times ready to effectuate, to return the machine to the seller. It is absurd to say that such damages were in the contemplation of the parties, or that they were in any sense the necessary or natural consequence of the partial incapacity of the machine. And the uncertainty of the amount of such profits on the face of defendants' evidence, they placing it indefinitely from $1,000 to $2,000, is accentuated and emphasized by the entirely fortuitous causes -the occurrence of fever and the collapse of the boom which, if something else equally casual and fortuitous had not subsequently arrested the flow of profits not made, prevented the damages from amounting to from $15,000 to $32,000.

There is no way of ascertaining the amount of such damages. They are not within the contemplation of the parties. They are not the necessary or natural consequence of the wrong complained of. They are not recoverable.

And the judgment of city court is affirmed.

DAMAGES-LOSS OF PROSPECTIVE PROFITS AS ELEMENT OF.-Prospective profits are not allowed as damages for a tort or for the breach of a contract unless they are the clear, proximate, and natural results of the wrong, and are confined to the principal thing complained of and to its natural attendant circumstances; Martin v. Deetz. 102 Cal. 55; 41 Am. St. Rep. 151. In an action to recover for the breach of a contract for furnishing machinery and repairing a flouring mill, the measure of damages is the fair rental value of the mill during the time the owner is deprived of its use after the expiration of the time for the performance of the contract; but prospective profits of such mill are too speculative to be considered as damages: Hutchinson Mfg. Co. v. Pinch, 91 Mich. 156; 30 Am. St. Rep. 463, and note. If one party breaks a contract which the other party has partly performed, and the violator then completes the work himself from which he reaps the profits which the other party might have made, he cannot escape liability for damages, if the other party can show the profits made while he was executing it, and the benefits reaped from its subsequent completion. The measure of damages is the profits and benefits remaining after the cost of doing the work has been deducted from the amount agreed to be paid for doing it; Hitchcock v. Supreme Tent etc., 100 Mich. 40; 43 Am. St. Rep. 423. One engaged in doing a profitable piece of work, who has his implements wrongfully seized and sold under attachment, whereby he is prevented from performing his contract, may recover the profits of the contract as an element of damages in an action on the attachment bond, where such profit is readily ascertainable: State v. Andrews, 39 W. Va. 35; 45 Am. St. Rep. 884, and note. See, also, the extended notes to Griffin v. Colver, 69 Am. Dec. 725; Sitton v. McDonald, 60 Am. Rep. 488, and McKinnon v. McEwan, 42 Am. Rep. 461.

KLING V. CONNELL.

[105 ALABAMA, 590.]

EXECUTORS AND ADMINISTRATORS-COLLATERAL ATTACK.-A GRANT of letters of administration by the probate court of one county on the estate of a decedent who resided in another county at the time of his death, is not void, but merely voidable, and cannot be collaterally attacked nor questioned otherwise than in a direct proceeding brought for that purpose. A motion by sureties on the bond for such administration to quash executions issued against them as sureties, on the ground that the grant of administration was made in the wrong county, is a collateral attack.

EXECUTORS AND ADMINISTRATORS-GRANT OF ADMINISTRATION-COLLATERAL ATTACK.-It is presumed that the probate court before making an appointment of an administrator of the estate of a deceased person has ascertained the existence of the jurisdictional facts, without which the power of appointment could not be legally exercised. Such grant of administration, when made, cannot be collaterally assailed otherwise than in a direct proceeding.

EXECUTORS AND ADMINISTRATORS-GRANT OF ADMINISTRATION-ATTACK UPON.-If an administrator appointed by the probate court of the wrong county accepts the appointment, and, acting thereunder, obtains possession of the assets of an estate and converts them, neither he nor his sureties can question the validity of his appointment. The fact that the administration bond was signed several years before the grant of administration is immaterial, if the obligors signed it with reference to the administration of all estates that might be committed to the hands of the administrator by the order of the court of that county.

Petition to quash executions issued against the sureties on an administrator's bond. Joseph Espalla, the administrator in question of the estate of Mrs. E. B. Rupert, deceased, converted fifteen hundred and seventy-two dollars of the funds of said estate to his own use. An execution against him, issued in pursuance of a judgment for said amount, was returned "no property found." Separate executions were subsequently issued against the sureties on his administration bond. Judgment dismissing the petition, and the petitioners appealed.

Overall, Bestor & Gray, for the appellants.

McIntosh & Rich, for the appellees.

595 HARALSON, J. In Coltart v. Allen, 40 Ala. 155, 88 Am. Dec. 757-the statute having reference to the authority of the probate court to grant letters of administration on the estate of decedents being the same then as now-it was held that the grant of letters of administration by the probate court of Jackson county on the estate of a decedent, who resided in Madison county at the time of his death, was not void, but merely voidable, and that the grant could be set aside only by a direct

proceeding for the purpose. The principle as there stated is, "that the constitution gives to the probate courts a general jurisdiction to grant administration. The statute distributes the cases arising under the grant among the different courts of the state according to locality; and the court having jurisdiction over a certain class of cases, its error in adjudging some particular case belonging to that class, which properly pertains to the same court in another locality, does not make the judgment void, but simply voidable by a direct proceeding for that purpose." To the same effect is the case of Barclift v. Treece, 77 Ala. 528. The doctrine laid down in Coltart v. Allen, 40 Ala. 155, 88 Am. Dec. 757, has been followed and enforced in many subsequent decisions of this court, and it may be regarded as settled that when the court of probate makes an appointment of an administrator of the estate of a deceased person, it will be presumed that it previously ascertained the existence of the jurisdictional facts, without which the power of appointment could not be legally exercised; and its validity will not be permitted to be collaterally assailed, or questioned otherwise than in a direct proceeding for the purpose; and even when so assailed successfully such an appointment would not be void but merely voidable: May v. Marks, 74 Ala. 253; Bean v. Chapman, 73 Ala. 144; Landford v. Dunklin, 71 Ala. 603; Ex parte Hardy, 68 Ala. 333, 334; Burke v. Mutch, 66 Ala. 569.

2. The petition of Espalla to be appointed administrator recites the fact that Mrs. Rupert was an inhabitant of the county of Mobile, at the time of her death; 596 and the order of the court making the appointment also recites that, in his application for letters of administration, said Espalla represented that decedent when she died was an inhabitant of the county of Mobile, and left property in the state of the supposed value of two thousand dollars. We must presume, therefore, that the jurisdictional fact that Mrs. Rupert was an inhabitant of the county of Mobile, at the time of her death, as well as all other questions relating to the proper appointment of her administrator, were judicially ascertained, as preliminary to the granting of the letters of administration on her estate. This appointment until revoked was conclusive evidence of the administrator's authority to act, which authority extended to all the property of the deceased in the state; and the appointment excluded the jurisdiction of every other probate court to grant letters of administration on said estate: Barclift v. Treece, 77 Ala. 528. The filing of the petition by appellants to quash said executions on the grounds set

AM. ST. REP., VOL. LIII.-10

up must be held as a collateral attack on the validity of the appointment of said administrator by the probate court of Mobile, and cannot be sanctioned.

3. Again, it appears from said petition that said administrator accepted his appointment as such by said probate court, and, acting under the grant, obtained possession of the assets and converted them. Neither the administrator nor his sureties, after this, can be heard to question the validity of the grant. That the bond of the administrator, as general administrator, was signed several years before the grant of administration can make no difference, since the obligors signed in reference to the administrations of all estates that might be committed to the hands of the administrator by the order of the probate court of Mobile county: Plowman v. Henderson, 59 Ala. 559; Burnett v. Nesmith, 62 Ala. 261; Person v. Thornton, 86 Ala. 310.

From what has been said, the other questions raised and discussed, if of any merit, necessarily disappear.

We find no error in the ruling of the court below, and its judgment is affirmed.

EXECUTORS AND ADMINISTRATORS-APPOINTMENT — COLLATERAL ATTACK.-The appointment of an administrator rests exclusively within the jurisdiction of the probate court, and its legality cannot be questioned in any other court or collaterally attacked: McFarland v. Stone, 17 Vt. 165; 44 Am. Dec. 325, and note; Driggs v. Abbott, 27 Vt. 580; 65 Am. Dec. 214; Johnson v. Beazley, 65 Mo. 250; 27 Am. Rep. 276. A grant of letters of administration to one who did not live within the jurisdiction of the court at the time of his death is void and may be attacked collaterally: People's Sav. Bank v. Wilcox, 15 R. I. 258; 2 Am. St. Rep. 894, and note. See, also, the notes to Ex parte Maxwell, 79 Am. Dec. 65-67, and Melia v. Simmons, 80 Am. Rep. 748, 749.

DAUGHTRY V. THWEATT.

[105 ALABAMA, 615.]

PROBATE SALES-COLLATERAL ATTACK.—A proceeding In a probate court for the sale of a ward's property is a proceeding in rem, and the jurisdiction of the court attaches when the application for an order of sale, made by the proper party, and disclosing a statutory ground for the sale, is presented to, and recognized by, the court. Whatever of error or irregularity may thereafter intervene. must be corrected by an appropriate revisory remedy, and is not a ground for collateral attack on either the decree or the sale made thereunder.

PROBATE SALES-COLLATERAL ATTACK.—A probate sale of a ward's property for the purpose of reinvestment, made on proper application and showing by the guardian, cannot be collaterally attacked on the ground that it was made without notice to the ward and without the appointment of a guardian ad litem for him,