I am confused by the provisions in tort and contract law for damages in the case of misrepresentation. I am reading specifically in New York law and it seems unambiguous that the only damages allowed for a claim of negligent misrepresentation are "out-of-pocket losses" which can be zero even when a plaintiff has suffered measurable losses.
Consider this scenario: Bob is an excavator. Alice approaches Bob and says that she has buried $1000 in a particular location. They enter a contract for Alice to provide the location of the money, Bob to excavate it, and the parties to split it 50/50. Bob takes his shovel and spends a week digging at the location and to the depth specified by Alice, but finds nothing. Alice says that she honestly believed the money was there, but agrees that Bob performed the excavation properly and that nothing was found.
In this case, Bob has a cause of action for "negligent misrepresentation" by Alice. But Bob has no "out-of-pocket damages" because the only thing he spent in performance was his time and labor. (This understanding is detailed here.) It doesn't seem equitable for a tort to be recognized but offer no real remedy.
I'm wondering if the problem is that I'm looking at a tort when there is another cause of action under contract law? Contract law appears to offer "benefit of the bargain" as a remedy for breach of contract, and in this scenario it does look like Alice breached the contract ... except that the breach was a negligent misrepresentation. Is there a cause of action for that under contract law even though it's explicitly a cause of action in tort?