A A oi j \ 8[ 3 I 6 I 2 I 8 I 6 1 I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY LW I MRS. MARGARET L.V.SHEPARD. ACCESSION A SELECTION OF AMERICAN AND ENGLISH CASES ON THE MEASURE OE DAMAGES. ARRANGED BY SUBJECTS. WITH NOTES. By HENRY DWIGHT SEDGWICK. Res judicata pro veritate accipitur. "To the Reader my advice is that in reading these Reports, he neglect not in any case the reading of the Old Books of years reported in former ages, for assuredly out of the old fields must spring and grow the new corn." — Lord Coke. NEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 6G NASSAU STREET. 1878. res.", in the year eighteen hundred and seventy-eight, by BAKER, YOOIUIIS & CO., In the Oilice of the Librarian of Congress, at Washington. riiKKH I PREFAC E. The value, as well to the professional student as to the prac- tising lawyer, of a selection of cases to illustrate the law, and especially particular topics of the law, is too well recognized at the present day to make any apology necessary for the present one. The numerous similar publications, and the favor they have found with the professional public, amply justify the present editor and his publishers. Rules of damages are peculiarly fitted to be taught by illustration in this way ; and whatever fault may be found with the present volume, should apply to the execution of the proposed plan, and not to the plan itself. But the difficulty, especially as relates to American cast-, of selecting in any branch of jurisprudence, such decisions W- may fairly be called leading, a difficulty which has been felt by others engaged in a similar task, is applicable to the subject of this book, more perhaps than to most other legal topics. Wnile new appli- cations of the principles out of which the rules of damages grow are continually to be found in cases both of contract and tort where compensation is sought, there are comparatively few in which the mere measurement of that compensation is the main subject of the controversy, or lias called out extended judicial discussion. This book, therefore, does not profess to be, in any strict a collection of the "leading cases" on the measure of dan although it is believed to contain most, if not all, 'of the decisions which would properly be found in a collection having that title. Perhaps a volume might be compiled of other cases illustrating ^ ^ 1 V PREFACE. the same subject, of equal interest with this. But great pains have been taken to make this selection useful, by exhibiting the rules by which damages are measured in connection with all the principal classes of controversy involved in actions at law. By omitting the portions of the reports which do not relate to the subject in view, it lias been practicable to give within a com- paratively moderate compass a great variety of cases on that sub- ject. At the same time, it is believed that nothing in any case has been omitted necessary to a complete understanding of the judgment of the court, so far as it relates to the questions of damages. Perhaps it may be thought that undue space is allotted to con- tracts relating to real estate, and to the law of carriers. These important topics were the first ones considered ; and although they take less space than was originally marked out for them, yet had the proportionate number of pages they occupy been more exactly foreseen, they would have been somewhat further curtailed. In view, however, of the extent of these subjects, and of the perti- nency of the cases selected to the illustration of the rules of damages in other branches of the law, we hope this objection will not be found serious. Another criticism may perhaps be suggested to the Western practitioner, by the fact that the larger portion of the reports are taken from the Eastern States and Great Britain. But this was almost inevitably the case in a first selection, in which the more general principles of the law had to be illustrated. These were developed and determined in the older civilizations and the earlier courts. Should another selection be called for, it will be doubt- less drawn, to a large extent, from that great "West, where — in the law as in so much else that tasks the brain — man is making the greatest relative progress. The compiler has endeavored to classify the cases relating to the same branches of the law. But as the same rules may some- times be applied in cases growing out of causes of action of the most diverse kinds, it was not necessary, nor would it be practicable to bring under one head all the illustrations of the same rule, or PREFACE. V classify them otherwise than by the general nature of the cases by which they are illustrated. Occasional notes have been subjoined which, perhaps, may be found useful. Many of them contain the statement of decisions which, for want of space, could not be reported at length. New York, September 20, 1878. TABLE OF CONTENTS. REAL ESTATE. DAMAGES FOR BREACH OF CONTRACTS TO CONVEY REAL ESTATE OR INTERESTS THEREIN; FOR BREACH OF COVENANTS IN DEEDS, AND IN ACTIONS OF EJECTMENT. Goodtitle v. Tombs 1 Flureau v. Thornhill 3 Staats v. Ten Eyck's Exrs 4 Prescott v. Trueman 11 Pitcher v. Livingston 1-4 RIGHTS OF PARTIES FIXED AT COMMENCEMENT OF ACTION; FAILURE OF TITLE TO AN UNDIVIDED PART OF A SPECIFIED TRACT ; PROPORTIONATE RECOVERY. Morris v. Phelps 28 REFUSAL OF VENDEE TO RECEIVE DEED. Old Colony R. R. Corp. v. Evans 34 EXTENT OF RECOVERY FOR BREACH OF COVENANT AGATNST INCUMBRANCES. Greene v. Tallman 3) EXECUTORY CONTRACT OF SALE; DAMAGES AGAINST VENDOR; WASTE. Worral v. Munn 40 CONTRACT FOR SALE OF REAL ESTATE; BREACH OF; DAMAGES FOR. Bain v. Fothergill 45 Plummer v. Rigdon 87 BREACH OF COVENANT TO DISCHARGE INCUMBRANCE BY A CER- TAIN DAY. Somers v. Wright 90 BREACH OF COVENANT OF SEIZLN AND RIGHT TO CONVEY WHERE THE CONSIDERATION IS SOMETHING OTHER THAN MONEY. Hodges v. Thayer 97 viii TABLE OF CONTENTS. CARRIERS. DAMAGES FOR BREACH OF CONTRACT. Brackel v. M'Nair 99 a.< I BPTANCE OF GOODS BT OWNER; MITIGATION. Bowman v. Teal] 101 NEGLIGENT LOSS BY CARRIER; MARKET VALUE. Smith v. Griffith 104 FREIGHT; ASSORTED CARGO; CONSTRUCTION OF CHARTER PARTY. Cockburn v. Alexander Ill REFUSAL TO TRANSPORT; RISE IN MARKET VALUE; GOODS TO BE TRANSPORTED. Ogden v. Marshall 123 CARRIER'S DELAY; ANTICIPATED PROFITS. 1 1 aril' y v. Baxendale 126 CARRIER'S DELAY; PROFITS. Gee v. Lancashire & Yorkshire Railway 138 CARRIER; VALUE OF CHANCE FOR PRIZE TO BE CONTENDED FOR FURNISHES THE MEASURE OF DAMAGES FOR THE LOSS OF THE PLAN, OR OTHER PRODUCTION OFFERED FOR COMPETITION. Adams' Express Co. v. Egbert 145 NEGLECT BY CARRIER OF PASSENGERS ; PROPER ITEMS OF DAMAGE. Williams v. Vanderbilt 152 CARRIER OF PASSENGERS; RAILWAY COMPANY; BREACH OF CON- TRA CT OF CARRIAGE ; PERSONAL INCONVENIENCE AS A GROUND OF DAMAGE. Hobbs v. London & Southwestern Ry. Co 155 DIRECT LOSS; INJURY FROM CARRIER'S DELAY; DUTY OF THE OTHER PARTY. V Hamilton v. McPherson 165 NONDELIVERY; LOSS OF PROFITS. British Columbia & Vancouvers Island Spar, Lumber, &c. Co. v. Nettleslnp 170 TABLE OF CONTENTS. IX C AERIEES— continued. CARRIER'S NEGLECT TO TRANSPORT WITHIN A REASONABLE TIME ; FALL IN MARKET OF DELAYED GOODS. Ward v. N. Y. Central R. R. Co 177 CARRIER BY SEA; CARRIER'S DUTY; DEPRECIATION IN GOODS FROM HIS NEGLECT. Notara v. Henderson 182 RAILWAY COMPANY; LIABILITY FOR WANT OF PUNCTUALITY; MEASURE OF DAMAGES; SPECIAL TRAIN. Le Blanche v. London & Northwestern Railway Co 194 CARRIER'S BREACH OF CONTRACT; NOTICE OF SPECIAL CIRCUM- STANCES. Home v. Midland Railway Co 196 REMOTE DAMAGES; PROXIMATE CAUSE; COSTS OF LITIGATION; SEPARATE CONTRACTS. Baxendale v. London, Chatham & Dover Railway Co. . . . 211 CONTRACTS FOR SALE AND OTHER AGREE- MENTS. CONTRACT OF SALE; DAMAGES FOR NON-DELIVERY OF MER- CHANDISE ; MARKET VALUE. Dana v. Fiedler 220 BREACH OF PAROL CONTRACT TO CULTIVATE FARM; PROFITS; BAD FAITH. Hoy v. Gronoble 220 SPECIAL CONTRACT; REFUSAL OF VENDEE TO ACCEPT GOODS. Gordon v. Norris 230 CONTRACT OF SALE; DAMAGES NOT ALLOWED FOR INJURIOUS CONSEQUENCES WHICH THE PLAINTIFF MIGHT HAVE AVOIDED. Miller v . Mariner's Church 236 ACTION FOR PRICE OF STEAMBOAT; RECOUPMENT; PROFITS. Blanchard v. Ely 240 SALE ; DIRECT PROFITS ; PROFITS OF COLLATERAL ENTERPRISES. Masterton v. Mayor of Brooklyn 247 x TABLE OF CONTEXTS. CONTRACTS FOR SALE, &o.— continued. CONTRACT TO BUILD AND DELIVER SHIP BY A CERTAIN DATE. Fletcher v. Tayleur 253 CONTRACT TO REPAIR THRESHING MACHINE IN TIME FOR HAR- VEST; REMOTE AND SPECIAL DAMAGES. Portman v. Middleton 2G5 CONTRACT TO DELIVER AN ENGINE FOR A SPECIFIC PURPOSE; GENERAL RULE OF DAMAGES FOR BREACH OF CONTRACT. Griffin v. Colver 2G0 BREACH OF CONTRACT TO DELIVER ENGINE; DIRECT LOSS. Smeed v. Foord 275 BREACH OF CONTRACT; DAMAGES FOR INCONVENIENCE TO BUSI- NESS. Shepard v. Milwaukee Gas-Light Co 284 CONTRACT OF SALE UNDERSTOOD BY THE VENDOR TO BE IN- TENDED FOR A SPECIAL PURPOSE WHICH WAS NOT THAT ACTUALLY INTENDED BY THE VENDEE. Cory v. Thames Iron "Works Co 293 CONTRACT OF SALE MADE WITH REFERENCE TO A RESALE IN- TENDED BY VENDEE; PROFITS. Mossmore v. New York Shot & Lead Co 302 CONTRACT OF SALE; LOSS OF PROFIT ON RESALE; CONSEQUEN- TIAL DAMAGES; SEVERAL DELIVERERS. Borries v. Hutchinson 300 MEASURE OF DAMAGES FOR NON-DELIVERY OF GOODS UNDER CONTRACT OF SALE ; FORBEARANCE OF BUYER AT SELLER'S REQUEST; STATUTE OF FRAUDS (29 Car. II, c. 3, § 17). Ogle v. Earl Vane 310 SEVERAL DELIVERIES. CONTRACT FOR SALE AND DELIVERY OF COAL IN MONTHLY PORTIONS; DELAY; LOSS FROM INCREASE OF FREIGHT; WAIVER. Merrimack Mfg. Co. v. Quintard 325 CONTRACT FOR ARTICLE TO BE MANUFACTURED; SEVERAL DE- LIVERIES. Booth v. Spuyten Duyvil Rolling Mill Co 331 TABLE OF CONTENTS. xi SEVERAL DELIVERIES— continued, CONTRACT FOR SEVERAL DELIVERIES; BREACH BEFORE TIME FOR COMPLETE PERFORMANCE. Roper v. Johnson , . . 336 McHose v. Fulmer 347 SEVERAL DELTVERIES OF ARTICLES TO BE MANUFACTURED. Elbintrer Actien-Gesellschaft v. Armstrong 350 ALTERNATIVE CONTRACT. MEASURE OF DAMAGES; CONTRACT IN THE ALTERNATIVE; JUDG- MENT BY DEFAULT. Deverill v . Burnell 357 CONTRACTS FOR WORK. CONTRACT FOR WORK ACCORDING TO SPECIFICATION; ABATE- MENT OF PRICE FOR INSUFFICIENT PERFORMANCE; RE- COUPMENT; SECOND ACTION. Mondel v. Steel 363 CONTRACT ; DEVIATION BY CONSENT ; ALTERATIONS ; RESCISSION. Clark v. Mayor of New York 371 EXECUTORY CONTRACT; PART PERFORMANCE; RECOUPMENT. Dermott v. Jones 375 PLEADING; BILL OF PARTICULARS: IMPLIED OBLIGATION IN CON- TRACT; INCOMPLETE PERFORMANCE; STOPPAGE OF WORK BY DEFENDANT. Black v. Woodrow 377 UNAUTHORIZED CONTRACTS. CONTRACT WITHOUT AUTHORITY; EXTENT OF DAMAGES FOR BREACH OF IMPLLED WARRANTY OF AUTHORITY; COSTS OF LITIGATION UNDERTAKEN IN CONSEQUENCE OF THE WAR- RANTY. Hughes v. Graeme 384 XI 1 TABLE OF CONTENTS. PRINCIPAL AND AGENT. PRINCIPAL AND AGENT; NEGLIGENCE; MITIGATION. Allen v. Suydam 393 FACTOR; BREACH OF INSTRUCTION; UNAUTHORIZED SALE; MITI- GATION. HM v. Bnicau 402 MASTER AND SERVANT. MASTER AND SERVANT; WRONGFUL DISCHARGE; CONSTRUCTIVE SERVICE ; DAMAGES BEYOND WAGES DUE AT TIME OF DIS- CHARGE. Moody v. Leverich -. 407 MASTER AND SERVANT; DUTY OF DISCHARGED SERVANT; OFFER OF PERFORMANCE. Polk v. Daly 415 PRINCIPAL AND SURETY. PRINCIPAL AND SURETY; ABSOLUTE COVENANT TO PAY. Loosemore v. Radford 420 MARINE INSURANCE. MARINE INSURANCE; PARTIAL LOSS; ITEMS OF LOSS. Lamar Insurance Co. v. McGlashen , 421 LIQUIDATED DAMAGES. LIQUIDATED DAMAGES; STIPULATION TO PAY MONEY IN GROSS FOR BREACH OF CONTRACT; APPLICATION OF PAYMENTS. Tayloe v. Sandiford 427 LIQUIDATED DAMAGES; STIPULATIONS OF VARIOUS DEGREES OF IMPORTANCE. Kemble v. Barren 432 LIQUIDATED DAMAGES; STIPULATIONS WHERE DAMAGES ARE UN- CERTAIN; RELEASE OF PART PERFORMANCE OF COVENANT; COVENANTS NOT COUPLED WITH CONDITION. Dakin v. Williams 435 TABLE OF CONTEISTT^. xiii LIQUIDATED DAMAGES— continued. LIQUIDATED DAMAGES; DIVISIBLE COVENANT. Price v. Green 441 LIQUIDATED DAMAGES; UNCERTAIN COVENANTS. Bagley v. Peddie et al 444 PENALTY; FORFEITURE; VENDOR AND PURCHASER. In re Dagenham 450 CONTRACTS TO PAY MONEY. NOMINAL DAMAGES FOR BREACH OF IMPLIED CONTRACT TO PAY MONEY. Marzetti v. Williams 453, Rolin v. Steward 460 CONSEQUENTIAL DAMAGES FOR DISHONORING MONEY ORDER. Boyd v. Fitt 4(53 BREACH OF CONTRACT TO HONOR ACCEPTANCES. Prehn v. Royal Bank of Liverpool 475 NOTES PAYABLE IN SPECIFIC ARTICLES. MEASURE OF DAMAGES WHERE MEDIUM OF PAYMENT IS VALUED IN THE NOTE. Pinney v. Gleason 481 VARIOUS COVENANTS. COVENANT TO REPAIR; COSTS OF FORMER ACTION. Penley v. Watts 490 BREACH OF CONTINUING COVENANT TO REPAIR; PRIOR RECOVERY. Beach v. Crain 493 BREACH OF COVENANT NOT TO FORFEIT LIFE INSURANCE POLICY. Hawkins v. Cuulthurst 49G BREACH OF CONTRACT TO PAY; MEASURE OF DAMAGES. Wicker v. Iloppock 499 xiv TABLE OF CONTENTS. VARIOUS COVENANTS— continued. BREACH OF COVENANT TO PAY TAXES. Rector, &c, of Trinity Church v. Higgins 502 FINAL BREACH OF CONTINUING COVENANT TO SUPPORT ANOTHER ; PROSPECTIVE EXPENSE; COMPETENCY OF NORTHAMPTON TABLES AS EVIDENCE OF THE PROBABLE DURATION OF LIFE. Schell v. Plumb 507 UNCONSCIONABLE CONTRACTS. ALLOWANCE OF WHAT IS FAIRLY DUE. Cutler v. How 511 MARKET VALUE. SALE; FRAUD OF AGENT; MARKET VALUE, HOW SHOWN. Durst v. Burton 513 SALE OF CHATTELS; NON-DELIVERY; ARTIFICIAL MARKET VALUE. Kountz v. Kirkpatrick 515 INTEREST. ON ACCOUNTS STATED AND LIQUIDATED SUMS. Blaney v. Hendricks 525 WARRANTIES. PERSONAL PROPERTY BOUGHT WITH WARRANTY AND RE-SOLD WITH WARRANTY; COSTS OF DEFENDING ACTION FOR BREACH OF VENDEE'S WARRANTY; IMPROVIDENT DEFENSE. Wrightup v. Chamberlain 520 BREACH OF WARRANTY; SPECIAL DAMAGE. Clare v. Maynard 5*29 BREACH OF WARRANTY; CONSEQUENTIAL DAMAGES. Passinger v. Thorburn 533 SALE; BREACH OF IMPLIED WARRANTY; EXTENT OF RECOVERY OF PROFITS. Wolcott v. Mount 540 TABLE OF CONTENTS. XV WARRANTIES— continued. WARRANTY ; SALE OF DISEASED CATTLE; VENDOR KNOWING VEN- DEE'S INTENTION OF PLACING THEM WITH OTHER CATTLE; CONSEQUENTIAL DAMAGES. Knowles v. Nunn 545 BREACH OF WARRANTY ON SALE OF STOCK. Woodward v. Powers 546 FRAUDS. FRAUDULENT REPRESENTATIONS; PROXIMATE DAMAGES; COSTS. Richardson v. Dunn 549 DECEIT; DIFFERENCE BETWEEN REAL AND REPRESENTED VALUE ; PRICE PAID AS EVIDENCE OF VALUE. Page v. Parker 553 DECEIT. Morse v. Hutchins 559 CONVERSION. RULE OF HIGHER INTERMEDIATE VALUE. Suydam v. Jenkins 5G1 PRINCIPAL AND AGENT; CONVERSION. Scott v. Rogers 588 DAMAGES; MEASURE IN ACTIONS FOR RECOVERY OF PERSONAL PROPERTY. Page v. Fowler 597 IN AN ACTION FOR THE CONVERSION OF STOCKS AS WELL AS OF OTHER PERSONAL PROPERTY, THE MEASURE OF DAMAGES, IN THE ABSENCE OF CONTROLLING CIRCUMSTANCES, IS THE VALUE OF THE PROPERTY AT THE TIME OF THE CONVER- SION, WITH INTEREST TO THE TRIAL. Sturges v. Keith GOG RULE OF DAMAGES IN ACTION FOR CONVERSION; PRINCIPLES DISCUSSED. Baker v. Drake G13 XVI TABLE OF CONTENTS. TROVER, TROVER; PAYMENT IN ADVANCE; RESALE BY DEFENDANT. Kennedy v. Whitwell 024 TROVER; GENERAL RULE; MITIGATION; RESTORATION OF PROP- ERTY; CHARGES ON IT AFTER RECOVERY; REWARD PAID FOR ITS RECOVERY. Greenfield Bank v. Leavitt 025 TROVER; CIRCUITY OF ACTION; LIEN. Chamberlain v. Shaw 027 CASE FOR WRONGFUL TAKING OF PROPERTY. Bennett v. Lockwood 030 TROVER; DEPRIVATION OF POSSESSION; MITIGATION. Chioery v. Viall 031 TROVER; ACTUAL DAMAGE; NOMINAL DAMAGES. Johnson v. Stear 034 CONVERSION; IMMEDIATE RIGHT OF POSSESSION; MITIGATION. Edmondson v. Nuttall 040 TROVER; SPECIAL VALUE. France v. Gaudet G40 REPLEVIN. RECOVERY OF VALUE OF USE OF PROPERTY REPLEVIED. Allen v. Fox 050 SHERIFF. SHERIFF; ESCAPE; MITIGATION. Hootman v. Shriner 054 TABLE OF CONTENTS. xvii TORTS. INJURIES TO EEAL PEOPEETY— CONTINUING NUI- SANCE—MINING TRESPASSES— FLOWAGE—INJU- EIES TO PEESONAL PEOPEETY— INJUEIES TO PEESON. TRESPASS; LOSS OF PROFITS; CONSEQUENTIAL DAMAGES FOR DESTROYING DAMS. White v. MoseJey 657 CONTINUING NUISANCE ; REPEATED ACTIONS. Battishill v. Reed , 658 CASE FOR INJURY TO FREEHOLD. Seely v. Alden 662 ESTIMATION OF VALUE OF LAND TAKEN FOR MUNICIPAL PUR- POSES. Stafford v. City of Providence 667 DAMAGE TO LEASEHOLD; NEGLIGENT REPAIRS BY LANDLORD. McIIenry v. Marr 670 INJURY TO PROPERTY BY NEGLIGENCE. Weber v. Morris & Essex R. R. Co 674 TRESPASS FOR COAL MINED. Martin v. Porter 677 TROVER FOR COAL MINED ON ANOTHER'S LAND BY MISTAKE. Forsyth v. Wells 679 ACTION AGAINST A TOWN FOR INJURIES SUSTAINED FROM A DE- FECT IN THE HIGHWAY; EXTENT AND KIND OF DAMAGES RECOVERABLE; CONSTRUCTION OF STATUTE GIVING DAM- AGES. Woodman v. Nottingham 685 FLOWAGE; ALLOWANCE FOR BENEFIT. Luther v. Winnisimmet Co 692 TORT; PROFITS; CASE FOR BUILDING DAM, THEREBY INJURING PLAINTIFF'S LAND. Simmons v. Brown 694 B XVill TABLE OF CONTENTS. TOUTS — emit in ued. INJURY TO PERSONAL PROPERTY; DIFFERENT MEASURES OF DAMAGES; PROVINCE OF JURY. Ottawa Gas-Light & Coal Co. v. Graham 700 PERSONAL INJURY; NEGLIGENCE; EXTENT OF COMPENSATION ; SPECIAL DAMAGES; CONCURRENT NEGLIGENCE. Ilolyokc v. Grand Trunk R. R. Co 703 CONTINUING INJURY; DAMAGES AFTER SUIT BROUGHT. Puckett v. Smith 709 INTRUSION INTO PUBLIC OFFICE. RECOVERY OF INTRUDER'S SALARY. People v. Miller 711 VIOLATION OF TRADE-MARK. TRADE-MARK; MEASURE OF DAMAGES. Graham v. Plate 716 INFRINGEMENT OF PATENT. PROFITS; ROYALTY. Burdell v. Denis 718 SLANDER. SLANDER ; SPECIAL DAMAGES. Vicars v. Wilcocks 720 SLANDER ; SPECIAL DAMAGE ; REPETITION OF SLANDER. Ward v. Weeks 722 SPECIAL DAMAGES IN SLANDER. Lynch v . Knight 725 Davies v. Solomon 737 TABLE OF CONTENTS. xix EXCESSIVE DAMAGES. ACTIONS AGAINST CORPORATIONS. Illinois Central R. R. Co. v. Welch 738 EXEMPLARY DAMAGES. CRIMINAL PUNISHMENT FOR THE OFFENSE WHICH IS THE SUB- JECT OF THE ACTION IS NO BAR TO THE RECOVERY OF EXEMPLARY DAMAGES, AND IT SEEMS SHOULD NOT BE AD~ MITTED IN EVIDENCE TO MITIGATE THE DAMAGES. Cook v. Ellis 741 EXEMPLARY DAMAGES IN ACTIONS FOR CONSEQUENTIAL DAM- AGES. Emblen v. Mvers 744 COSTS AND COUNSEL FEES. COSTS ; COUNSEL FEES ; EXEMPLARY DAMAGES. Day v. Woodworth 747 LEGAL EXPENSES AND COUNSEL FEES. Inhabitants of Westfield v. Mayo 752 BREACH OF PROMISE. SEDUCTION; BREACH OF PROMISE; AGGRAVATION. Sherman v. Rawson 757 BREACH OF PROMISE; PECUNIARY CIRCUMSTANCES OF DEFEND- ANT; MITIGATION; AGGRAVATION. Kniffen v. McConnell 760 BREACH OF PROMISE; AGGRAVATION BY FAILURE TO PROVE JUSTLFICATION ALLEGED. Thorn v. Knapp 7GG COLLISION. COLLISION ; ACTUAL DAMAGE ONLY ALLOWED ; NO PROFITS. Smith v. Condry T73 XX TABLE OF CONTENTS. COLLISION— continued. COLLISION ; SUNKEN VESSEL. Williamson v. Barrett 778 COLLISION; JUDICIARY ACT; COSTS; COUNSEL FEES IN ADMI- RALTY. The Baltimore 785 COLLISION; DIVISION OF LOSS; CROSS-LIBEL; PROOF OF DAMAGE TO CLAIMANTS; COSTS. The Sapphire 789 ACTIONS ALLOWED BY STATUTE FOR INJU- RIES CAUSING DEATH. ACTIONS FOR DEATH BY NEGLIGENCE; PROSPECTIVE LOSS. Dalton v. South-Eastern Ry. Co 793 PECUNIARY VALUE OF A MOTHER'S CARE. Tilley v. Hudson River R. R, Co 796 WIDOW'S RIGHT TO RECOVER; MEASURE OF DAMAGES. Railroad Company v. Barron 803 TELEGRAPHS. Note in reference to recent decisions 809 FIRE INSURANCE. FIRE INSURANCE; GENERAL AVERAGE ; CONTRIBUTION. Welles v. Boston Insurance Co 810 FIRE INSURANCE ; OPEN POLICY ; LOSS ON PROPERTY IN A FOR- EIGN COUNTRY; MERCHANDISE AS DISTINGUISHED FROM PROPERTY. Bu'gess and Others v. Alliance Insurance Co.; Same v. New England Mutual Marine Insurance Co 812 TABLE OF CONTENTS. s XXI FIRE INSURANCE— continued. FIRE INSURANCE; INDEMNITY; STIPULATIONS AS TO ASCERTAIN- MENT OF VALUE; AGREEMENT TO REPAIR OR REPLACE DESTROYED PROPERTY. The Commonwealth Insurance Co. v. Sennett, Barr & Co , 817 BREACH OF CONTRACT TO INSURE; IN THE ABSENCE OF ANY STIPULATION AS TO THE AMOUNT OF INSURANCE, OR OF ANY RULE OR USAGE OF INSURANCE COMPANIES AS TO THE PROPORTION OF THE VALUE WHICH THEY WILL INSURE, THE MEASURE OF DAMAGES IS THE WHOLE VALUE OF THE PROPERTY DESTROYED. Ela v. French 822 GENERAL INDEX 825 TABLE OF CASES BEPORTED. Adams Express Co. v. Egbert, 145. Allen v. Fox, 650. Allen v. Suydarn, 393. Bagley v. Peddie, 444. Baker v. Drake, 613. Bain v. Fothergill, 45. Baltimore, The, 785. Battishill v. Reed, 658. Beach v. Crain, 493. Bennett v. Lockwood, 630. Blacks. Woodrow and Richardson, 377. Blanchard v. Ely, 240. Blaney v. Hendricks, 525. Blaxendale v. London, Chatham and Dover Railway Co. 211. Blot v. Roiceau and Rusch, 402. Booth v. Spuyten Duyvil Rolling Mill Co. 331. Borries v. Hutchinson, 309. Bowman v. Teall, 101. Boyd v. Fitt, 463. Bracket v. M'Nair, 99. British Columbia Saw Mill Co. v. Net- J tleship, 170. Burdell v. Denig, 718. Burgess v. Alliance Ins. Co. 812. Chamberlin v. Shaw, 627. Chinery v. Yiall, 631. Clare v. Maynard, 529. Clark v. Mayor of New York, 371. Cockburn v. Alexander, 111. Commonwealth Ins. Co. v. Sennett Barr & Co. 817. Cook v. Ellis, 741. Cory v. Thames Iron Works Co. 293. Cutler v. How, 511. Dagenham Dock Co., In re, 450. Dakin v. Williams, 435. Dalton v. South-Eastern R'y Co., 793, Dana v. Fiedler, 220. Davies v. Solomon, 737. Day v. Woodworth, 747. Dermott v. Jones, 375. Deverill v. Burnell, 357. Durst v. Burton, 513. Edmondson v. Nuttall, 640. Ela v. French, 822. Elbinger Actien-Gesellschafft v. Arm- strong, 350. Emblen v. Myers, 744. Fletcher v. Tayleur, 258. Flureau v. Thornhill, 3. Forsyth v. Wells, 679. France «. Gaudet, 646. Gee v. Lancashire & Yorkshire R'y, 138. Goodtitle v. Tombs, 1. Gordon v. Norris, 230. Graham v. Plate, 717. Greene v. Tallman, 36. Greenfield Bank v. Leavitt, 625. Griffin v. Colver, 269. - Hadley v. Baxendale, 126. Hamilton v. McPherson, 165. Hawkins v. Coulthurst, 496. Hobbs v. London and South-Western Railway Co. 155. Hodges v. Thayer, 97. Holyoke v. Grand Trunk Railroad Co. 702. Hootman v. Shriner, 654. Home o. Midland Railway Co. 196. Hoy v. Gronoble, 226. XXIV TAHLE ()F CASKS RF.I'ORTEI). Hughes v. Graeme, 384. Illinois Central It. R. Co. v. Welch, 738. Inhabitants of Weatfield v. Mayo, 752. Johnson v. Stear, 634. Kemhle r. Farren, 432. Kennedy v. Whitwell, 021. Kniffen v. McConnell, 760. Knowlea v. Nunn, 545. Kountz v. Kirkpatrick, 515, Lamar Insurance Co. v. McGlashen, 421. Le Blanche r. London and North-West- ern Railway Co. 191. Loosemore v. Radford, 420. Luther v. Winnisimmet Co. 692. Lynch v. Knight, 725. McIIenry v. Marr, 670. McIIose v. Fulmcr, 347. Martin v. Porter, 677. Marzetti 8. Williams, 453. Masterton v. Mayor of Brooklyn, 247. Merrimack Manufacturing Co. v. Quin- tard, 325. Messmore v. New York Shot & Lead Co. 302. Miller v. Mariner's Church, 230. Mondel v. Steel, 363. Moody v. Leverich, 407. Morris v. Phelps, 28. Morse v. Hutchins, 559. Notara v. Henderson, 182. Ogden v. Marshall, 123. Ogle v. Earl Vane, 316. Old Colony Railroad Co. v. Evans, 34. Ottawa Gas-Light & Coke Co. v. Gra- ham, 700. Page v. Fowler, 597. Page v. Parker, 553. Passinger v. Tuorburn, 533. Penley v. Watts, 490. People ex rel. v. Mdler, 711. Pinney v. Gleason, 481. Pitcher v. Livingston. 14. Plummer v. Rigdon, 87. Polk v. Daly, 415. Portman v. Middleton, 265. Prehn v. Royal Bank of Liverpool, 475. Prescott v. Trueman, 11. Price v. Green, Ex'r. 441. Puckett®. Smith, 709. Railroad Co. «. Barron, 803. Rector, &c, of Trinity Church v. Ilig- gins, 502. Richardson v. Dunn, 549. Rolin v. Steward, 460. Roper v. Johnson, 336. Sapphire, The, 789. Schell v. Plumb, 507. Scott v. Rogers, 588. Seely v. Alden, 662. Shepard v. Milwaukee Gas-Light Co. 284. Sherman r. Rawson, 757. Simmons v. Brown, 694. Smeed v. Foord, 275. Smith v. Condry, 773. Smith v. Griffith, 104. Somers v. Wright, 90. Staats v. Ten Eyck's Ex'rs, 4. Stafford v. City of Providence, 667. Sturges v. Keith, 606. Suydam v. Jenkins, 561. Tayloe v. Sandiford, 427. Thorn v. Knapp, 766. Tilley v. Hudson River Railroad Co. 796. Vicars v. Wilcocks, 720. Ward v. New York Cent. R. R. Co. 177. Ward v. Weeks, 722. Weber v. Morris and Essex Railroad Co. 644. Welles v. Boston Ins. Co. 810. White v. Moseley, 657. Wicker v. Hoppock, 499. Williams v. Vanderbilt, 152. Williamson v. Barrett, 778. Wolcott, Johnson & Co. v. Mount, 540. Woodman v. Nottingham, 685. Woodward r. Powers, 546. Worrall r. Munn, 40. Wrightup v. Chamberlain, 526. TABLE OF CASES CITED. Aberdeen v. Blackmar, 505. Adams v. Cordis, 815. Aiken v. Western R. R. Co. 290. Alabama, Tbe, 793 n. Alcock v. Hopkins, 815. Alder v. Keighley, 136, 263, 288. Allen v. Dykers. 622. Allen v. Jarvis, 234. Alna v. Plummer, 35. Allthorf v. Wolfe, 677 n. Allsop v. Allsop, 730. Amery v. Delamere, 571. Amiable Nancy, The, 777 n, 783. Andrews v. Durant, 526 n. Andrews v. Hoover, 521. Anna Maria, The, 777 n. Ann Caroline, The, 787. Apollo, The, 585. Archard v. Hornor, 408, 409, 412. Archer v. Williams, 623. Armstrong v. Perry, 537. Astley v. Weldon, 435, 437, 438,439,447. Aslin v. Parkin, 2. Atlas, The, 793 n. Attersoll v. Stevens, 45. Attorney-General v. Case, 776. Bacon v. Brown, 244. Bailey v. Clay, 244. Bain v. Fothergill, 36 n. Baker v. Drake. 90. Baker v. Mair, 486. Baker v. Wheeler, 571. 572. Baldv v. Stratton, 759. Ballet v. Ballet, 27. Ballou v. Farnum, 705, 707. Baltimore City Passenger Ry. Co. i\ Sewell, 623 n. Baltimore Ins. Co. v. Dalrymple, 608. Bank of Montgomery v. Reese, 349, 520, 623 n. Bare v. Hoffman, 662. Barnes v. Bartlett, 587. Barnham v. Nichols, 90. Barnum v. Van Dusen, 546. Barrick v. Buba, 341. Barron v. Cobleigh, 690. Barry v. Bennett, 571. Bartlett v. Blanchard, 330. Barton v. Glover, 430 n, 437. Barton Coal Co. v. Cox, 685. Bass », Chicago & Northwestern R. R. Co. 747 n. Basten v. Butter, 369. Batchelder v. Sturgis, 330. Baxendale v. London, Chatham, &c. Ry. Co. 753. Baylis v. Usher, 103. Beauchamp v. Damory, 32. Belknap v. Railroad, 746. Bement v Smith, 417. Bendernagle «. Cocks, 413. Bennett v. Thompson, 44. Binninger v. Crater, 542. Blake v. Midland Rv. Co. 13o,707, 795 n. Blanchard v. Ely, 271, 273, 274. Blasdale v. Babcock. 537. Blydenburgh v. Welsh, 521. Board man v. Keeler, 90. Bodley v. Reynolds, 571. Bonadaile v. Bruxtoc, 534. Bonsteel v. Vanderbilt, 154. Booker v. Goldsborough, 275. Boorman v. Nash, 252, 256. Borries v. Hutchinson, 354, 543. Boston v. Boston & Lowell R. R. Co. 735. Bowyer v. Cook, 659. Boyer v. Cook, 661. Brannin v. Johnson, 585. Brass v. Worth, 623. Bratt v. Ellis, 56, 75. Brewster v. Silliman, 653. Bradburn v. Great Western Ry. Co. 677 n. Brackett v. McNair, 124, 179, 245. Bridge v. Wain, 308, 542. Brizee v. Maybee, 571, 587, 653. Brierly v. Kendall, 633, 636, 637. Briggs v. Vanderbilt, 154. British Columbia Saw Mill Co. v. Net- t'ieship, 209, 210. Brooks ». Hubbard, 483, 486, 488. Brown v. Edgerton,535. Brown v. Muller, 340, 341, 342. 345, 346, 347. Buckmaster v. Grundy, 88. Burnett v. Lynch, 461, 457. Burns v. Buck, 768. XXVI TABLE OF CASES CITED. Burt r. Dutcher, 618, 019. Burton v. Pinkerton, 161. Bussy r. Donaldson, 520. Bustard's Case, 31. Butler v. Nehring, 654. Buxton v. Lister, 386. Byrne c Rich, 98. Caddv v. Barlow, 742. Cady®. Allen, 505. Caldwell v. Murphy, 707. Caldwell r. N. J. Steamboat Co. 747 n CaltOD v. Bragg, 526 n. Canada, The, 787. Cane v. Golding, 660. Cannell r. McLean, 24 I. Cannon i\ Folsom, 602. Canning v. Williamstown, 707. Capper v. Porster, 119, 121, 122, 123. Carpenter r. Stevens, 585, 586. Carter v. Tuck, 380. Caruthers ». Lydebotham, 776. Cary o. Gorman, 251, 538. Chamberlain v. Collinsor, 685. Chambertine v. McAllister, 410. Chesman v. Nainby, 443, Chesterman 9. Lamb, 244. Chicago & Rock Island R. R. Co. v. Morris, 809. Cbinery v. Viall, 636. Churchill v. Hunt, 501, 505. Churchward v. Queen, 382. City of Chicago v. Major, 703, 809. City of Cincinnati v. Evans, 287, 291. Clap}) v. Walter, 654. Clare r. Maynard. 244, 251. Claringbould ». Curtis, 386. Clark *>. Marsiglia, 109, 383, 410. Clark v. Pinney, 223, 244, 573, 579, 580, 581, 582, 583, 584, 601, 621. Classman v. Lacaste, 413. Clunness v. Pezzey, 150. Clyde, The, 787. Coats v. Holbrook, 718. Colburn v. Woodworth, 413. Cockburn r. Alexander, 361. Collard v. S. E. Railway Co. 180, 181 n. Collen v. Wright, 386, 389, 391, 392, 393 n. Columbus, The, 174, 789. Combs v. Tarlton, 343. Commonwealth ». Bliss, 743. Commonwealth v. Elliott, 743. Connellc. McLean, 90. Connery v. Jefferson, 690. Cook v. Commissioners of Hamilton, 228. Cooke v. Hartle, 571. Cort v. Ambergate R. R. Co. 279, 383. Cortelyou v. Lansing, 610, 619, 620. Cory v. Thames Iron Works Co. 176,335, 355, 543. Costigan v. M. & H. R. R. Co. 169, 414. Cotterel v. Hook, 430 n. Cox o. Walker, 531. Crisdee v. Bolton, 437. Cumberland, &c. Canal v. Hutchings, 662. Curtis v. Rochester & Syracuse R. R. Co. 708 n. Cashing v. Ship John Frazer, 791. Cutter v. Powell, 377, 409. Cutting v. Grand Trunk R. R. Co. 330. Dain v. Wycoff. 762. Dakiu v. Williams, 448. Dana v. Fiedler, 234. Danube & Black Sea Co. v. Zenos, 341. Darbey v. Cassaway, 654. Davies v. Penton, 437, 447. Davis v. Hill, 689. Davis v. Oswell, 571. Davis v. Shields, 223, 234. Davis v. Talcott, 289. Day v. Davies, 380. De Cuadra v. Swann, 191. Delancy v. Stoddart, 400. Delavergne v. Norris, 18 n. Dennis v. Cummins, 438. Derby ». Johnson, 383. Derry v. Fletnir, 677 n. De Visme v. De Visme, 45. Devlin v. Mayor, 275 n. De Wint v. Wiltse, 246, 290. Dey 9, Dox, 223, 234, 256. Dillenbach v. Jerome, 571. Dillon v. Anderson, 414, 418. Dimmick v. Lockwood, 39, 243. Dingle v. Hare, 544 », 5C0. Doherty v. Dolan, 86 n. Dormay v. Borradaile, 498. Douglass v. Kraft, 600. Douty v. Bird, 665. Downs v. Back, 609. Dresser v. Dresser, 509. Driggs v. Dwight, 245. Duflield v. Scott, 491. Duncan v. Markley, 710. Durkee v. Mott, 410. Dustan v. Mc Andrews, 417. Dwight v. Enos, 651. Edgar v. Bois, 483. Elbinger v. Armstrong, 334. Elderton v. Emmons, 409. Ehgel v. Fitch, 67, 71, 76, 77, 78, 79, 82, 85. Ellis v. Wire, 649 n. Emblen v. Myers, 691. Emmons v. Elderton, 413, 414. TABLE OF CASES CITED. XX vu Eugenie, The, 789. Ewbank v. Nutting, 192. Farmers' Bank v. Mackie, 572. Fewing v. Tisdall, 409. Fielden v. Starkin, 16. Finch v. Blount, 571, 572. Fisher v. Prince, 571, 573. Fisher v. Val de Travers Asphalte Co. 220 n, 753. Fisher v. Wainwright, 380. Fisher*. Whitten, 574, 575, 576; Fish v. Foley, 509. Fisk v. Hicks, 560. Fitzhugh v. Wiman, 651. Fletcher v. Tayleur, 288. Flureau v. Thornhill, 6, 16. 54, 55, 56, 57, 58, 59, 6Q, 63, 64, 65, 66, 68, 69, 70, 72, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 89. Flying-fish, The, 788. Forsyth v. Palmer, 520, 665. Foster v. Deacon, 44. Fouldes v. Willoughby, 644. Fox v. Harding, 96, 228, 288, 329, 542. France v. Gaudet, 203. Franchot v. Leach, 35. Franklin v. South Eastern Railway Co. 795. Freeman v. Clute, 264 n, 273. French v. Brookes, 413. Friedlander v. Pugh, Slocumb & Co. 239. Frost v. Knight, 341, 344, 345, 347. Frothingham v. Evertson, 405, 408. Fry v. Dubuque & South-Western Rail- way Co. 708 n. Fulsome v. Concord, 709 n. Gainsford v. Carroll, 256, 583, 584, 609. Gale v. Dean, 88. Galsworthy v. Strutt, 448. Gamecock, The, 793 n. Gandell v. Pontigny, 408. Ganson v. Madigan, 234. Gazelle, The, 787. Gee v. Lancashire & Yorkshire Rail- way Co. 164, 474. Georgia v. Kepford, 736. Geiger », Harris, 714. Germaine v. Burton, 369. Gerrard v. Dickenson, 660. Gilbert v. Wiman, 504, 505r Gill v. Bicknell, 35, 235. Gillard v. Brittan, 645. Girard v. Taggart, 519, 234. Goodman v. Pocock, 409, 413. Gore v. Brazier, 18 n. Gray v. Briscoe. 32. Gray v. Portland Bank, 584. Green v. Farmer, 629. Green v. Greenbank, 459. Greening v. Wilkinson, 573, 609, 620 626. Griffin v. Colver, 168, 178, 180, 305,335, 534. Grill v. General Iron Serew Collier Co 191. Griswold v. Sabin, 36 n. Guernsey v. Carver, 413. Guthrie v. Pugsley, 509. Hadley v. Baxendale, 55, 76, 77, 142. 143, 144, 169, 202, 205, 206, 208, 209, 219, 268, 278, 280, 288, 297, 298, 299, 312, 333, 334, 355, 472, 474, 475, 533, 543. Hallett v. Novion, 571. Hamer v. Hathaw r ay, 600. Hamilton v. McPherson, 414, 418. Hamilton v. New York Central,&c. R. P. Co. 747 n. Hamilton et ah v. Wilson, 17 n. Hamlin v. Great Northern Railway Co. 158, 161. Hammond v. Hannen, 36 n. Hancock v. Austin 641. Harding v. Town of Townshend, 677 Hardy v. Martin, 430 n. Hargous v. Ablon. 308. Harmony v. Bingham, 179. Harriett Newhall, The, 777 n. Harrison v. Harrison, 573, 576, 577, 609, 610, 620, 623. Harrison v. Wright, 430 n. Hart v. Evans, 665. Hart v. Western R. R. Co. 676. Hayden v. Attleborough, 689. Heard v. James, 685. Heckscherr. McCrea, 169. Heimu. Wolf, 411. Hexter v. Knox, 86 n. Hickman v. Havne, 324 n. Hill v. Hobart, 90. Hinde v. Liddell, 316 n. Hoagland v. Segur. 435. Hochster v. De "la Tour, 341, 342, 343, 346, 413. Hoffman v. Union Ferry Co. 793 ;:. Holden v. Lake Company, 700. Holler v. Weiner, 229. Holmes v. Wilson, 658, 661. Hopkins v. Atlantic & St. Lawrence R. R. Co. 707. Hopkins v. Grazebrook, 57, 58, 59, 60. 63, 65, 66, 70, 71, 72, 73,77, 78, 79, 80, 82, 84, 85, 89. Hopkins v. Lee, 90, 244. Home v. Midland Railway Co. 335, 356, 543. Huff®. Lawlor, 449 n. Huggeford v. Ford, 587. Hunt v. Burnet, 773. xxvm TABLE OF CASES CITED. Huntington », Ogdensburg, &c. Rail- road Co. 411, 418. Hussey v. Fallow, 815. Ingalls v. Lord, 109. 400. Ingram v. Law on, 6P,8. Ives v. Humphrey, 286. Jacks v. Bell. 742, 743. Jackson v. Port, 504, 505. Jacobs v. Laussat, 571. Jacobs v. Peterborough & Shirley R. R. Co. 35, 235. Jarvis v. Rogers, 636. Jeffrey v. Bigelow, 546. Johnson v. Jenkins, 768, 760, 773. Johnson v. Johnson, 75. Johnson v. Shedden, 425. Johnson v. Sumner, 571. James v. Biddington, 762. Jones v. Bright, 535. Jones v. Clay, 742. Jones v. Just, 560. Jones v. Dyke, 57, 75. Keaggy v. Tlite, 608, 609, 610. Keeler v. Wood, 10 n. Keezeler v. Thompson. 773. Kellogg v. Wilcocks. 17 n. Kemble v. Farren, 447. Kennedy r. Strong, 105, 571. Kennedy v. Whitmore, 571. Kennedy v. Whitwell, 626. Kerr v. Forgne, 709 n. Ketchell v. Burns, 501. Kimmel v. Stoncr, 623. King v. Boston, 369. King v. Dunn, 690. Kingsbury v. Smith, 528 n. Kirkpatrick v. Downing, 90. Kissam v. Forest, 107. Kist v. Atkinson, 369. Knapp v. Maltby, 438, 448. Kniffen v. McConnell, 759. 771. Kortright v. Commercial Bank of Buf- falo, 621. Kortz v. Carpenter, 17 n. Laird v. Pim, 34. Laird v. Prince, 235. Lamond v. Davall. 632. Lampleigh r. Bathwait, 217. Easier v. Allen, 584. Laurent v. The Chatham Fire Ins. Co. 820. Lawrie v. Douglas, 191. Lawrence v. Chase, 90. Lawton v. Sweeny, 150. Lea t. Whitaker, 449 n. Leather Cloth Co. v. Hirschfield, 718. Leftingwell v. Elliott, 10 n. Leggett v. Mutual Life Ins. Co. 450 n. LeGuen v. Gouverneur, 401. Leigh v. Paterson, 252. Lena, Tlie, 788. Letcher v. Woodson. 243, 244. Lewis v. Rucker, 425, 427. Lincoln v. Saratoga & Schenectady R. R. Co. 707. Lindsey r. Town of Danville, 709 n. Linsley v. Bushnell, 707. Lillard v. Whitaker. 571. Little Schuylkill Nav. &c. Co. v. Rich- ards, 666. Littlefield v. Biddeford, 690. Littlehale v. Dix, 759. Locke v. Fuzre, 85 n. Loder v. Kekule, 560. Lodge v. Spooner, 815. Loker v. Damon, 169, 788. London and Northwestern Railway Co. 138 n. Lord Northampton's Case, 724. Lotus, The, 788. Lovegrove v. Fisher, 544. Lowe v. Harewood, 660. Lowry v. Western Union Tel. Co. 809. Love v. Peers, 430 n. Lund v. Tyngsborough, 690. McArthur v. Seaforth, 573, 57C, 577, 579, 608. 610, 620. McBoyle v. Reeder, 264 n. McCabe v. Morehead, 587. McDonald v. Hodge, 490 n. McGavick v. Chamberlain, 654. McGary v. Hastings, 40 n. McGee v. Roen, 505. McGlowry v. Croghan, 228. Mcintosh v. Lown, 413. McKean v. Turner, 236. McKee *. Brandon, 88. McKnight v. Ratcliff, 665. McKyring v. Bui', 763. McNeill v. Reid, 697. McPherson v. Daniels, 724, Mack v. Patchin, 85 n. Magie v. Lavel, 449 n. Magnin v. Dinsmore, 525. Mailler v. Express Propeller Line, 793 n. Mainwaiing r. Newman, 242. Malachy v. Soper. 660. Mallan v. May, 443. Mallory v. Lord, 234. Mann v. Eckford, 505. Margraf v. Muir. 86 n. Markham v. Jaiidon, 613, 617, 618, 623. Marquart o. La Farge, 290, Marston r. Hobbs, 20. Martin v. Porter, 44. Marzetti v. Williams, 461, 473, 478,479. Mason v. Sainsbury, 675, 676. TABLE OF CASES CITED. XXIX Masterton r. Mayor of Brooklyn, 96, 228, 272, 288, 542, 697. Matthews v. Ooe, 614, 622. Mattoon v. Pierce, 586. Maye v. Tappan, 685. Mayor v. Colgate, 507. Meason r. Phillips, 483. Medbury v. N. Y. & E. Road, 180. Medhurst v. Balam, 735. Mellor v. Spateman, 458. Mercer v. Jones, 571, 578, 600, 609, 610. Merrils v. Tariff Manuf. Co. 246. Messmore v. N. Y. Shot Co. 336. Middleton v. Bryan, 586. Milburn v. Belloni, 544 n. Miller v. Mariner's Churcli, 169, 246, 256, 501, 788. Milwaukee & St. Paul Railway Co. v. Army, 747 v. Monmouth Fire Ins. Co. v. Hutchinson, 676. Moody v. Leverich, 419. Moody v. McDonald. 691. Moody v. Whitney, 60S. Moon v. Raphael, 643. Moore v. Meagher, 735. Moore v. Payne, 103. Mooers v. Wait, 45. Mooring v. Campbell, 677 n. Mordy v. Jones, 190. Morford v. Woodworth, 691. Morgan v. Powell, 44. Mors le Blanch v. Wilson, 214, 216, 217, 218, 219. Morse v. Hutchins, 548. Muir v. United Ins. Co. 426. Muller v. Eno, 537, 560. Mullett v. Mason, 546. Murray v. Burling, 626. Myers v. Malcome, 762. Neale v. Wyllie, 491, 492. Negus, Matter of, 501, 5o5. Nelson v. Bridges, 45. New Jersey, The, 787. New Jersey Express Co. v. Nichols, 542. Niagara, The, 786. Niblo v. The North American Ins. Co. 820. Nobles v. Bates, 438. Nones v. Northhouse, 709 n. Norris v. Litchfield, 689. North-Western Ins. Co. v. Phasnix Oil & Candle Co. 819. Noyes v. Phillips, 449 n. Nurse v. Barnes, 246. O'Connor v. Foster. 101, 124, 519. O'Hanlon v. North R. R Co. 179. Ogle v. Lord Vane, 175. Old Colony Railroad r. Evans, 235. Oldfield v. New York & Harlem R. R. Co. 809. Oliver v. Hawley, 539. Orr v. Bigelow, 234. Otter v. Williams, 610. Pacific Ins. Co. v. Conard, 585. Packet Co. v. Sickles, 720. Pactolus, The, 787. Page v. Fowler, 598. Page v. Pavey, 535, 544 n. Paine v. Meller, 45. Panama, The, 182. Park v. Boston, 608. Parks v. Morris Axe & Tool Co. 514. Paul v. Frazier, 759. Pennsylvania R. R. Co. v. McCloskey, 809. People v. General Sessions of Genesse, 743. Pepoon v. Clarke, 710. Perkins v. Concord R. R. Co. 707. Phil. Wil. & Balto. R. R. Co. v. How- ard, 384, 697. Philpott v. Swann, 190. Pinkerton v. Manchester, &c. R. R. Co. 603, 611, 623. Pinney v. Clark, 487. Pollard v. Dwight, 17 n. Pollen & Colgate v. Le Roy & Smith, 306. Ponsonby v. Adams, 430 n. Pordage v. Cole, 382. Port v. Jackson, 501. Porter v. Wood, 264 n. Potter v. Lansing, 400. Pounsett v. Fuller, 59, 60, 65, 68, 76, 78, 89. Pow v. Davis, 386. Powers v. City of Council Bluffs, 662. Prescott v. Trueman, 18 n. Price v. Green, 448. Propeller Monticello r. Mollison, 677 n. Pumpelly v. Phelps. 85 n. Railroad Co. v. Howard, 228, 287. Rand v. Railroad, 235, 236. Rand v. White Mountain R. R. Co. 623. Randall v Everest, 437. Randall v. Roper. 314, 536, 544. Ransom v. N. Y. & Erie R. R. Co. 707. Rapalye v. Mackie, 564. Reab v. McAllister, 243. Read v. Fairbanks, 633. Rebecca, The, 787. Reed v. Randall, 306, 307. Reggio v. Bragiotti, 537, 753. Reid v. Hoskins, 341. Reilly v. Jones, 437. Retallick v. Hawkes, 380. Rex v. Fielding, 743. Rex v. Sparrow, 742. XXX TABLE OF CASES CITED. Richards r. Eddick, 235, 417. Richardson o. Mellish, 328. Richardson d, Bpencer, 655, Eliding t>. Smith, 730 n. Riley v. Home, 2o8, 210. Ripka r. Sergeant, 005. Robb r. Mann. 665. Roberts v. Roberts, 737. Robertson r. Dumaresq, 499. Robertson v. Lemon, 10 n. Robinson b. Bland, 526 n. Robinson d Harman, 54,64,65,75,78,89. Rogers v. Bpence, 571. Rogers >\ Steamer St. Charles, 791. Rolfe r. Peterson, 180 Rolin r. Steward, 290, 475, 478, 479. Romaine v. Van Allen, 002, 017, 018, 019, 020 622. Rowley r. Oibbs, 653. Royalton o. Royalton & Woodstock Turnpike Co. 256. Russell v. Butterfield, 501. Bainter v. Ferguson, 444. Salado College v. Davis, 751 n. Sanders v. Stuart, 809. Sands v. Lilienthal, 179. Sargent v. Franklin Ins. Co. 571. Sauer v. Schulenberg, 7G5 n. Sawyer v. Mclntyre, 35. Schnable v. Koehler, 665. Schooner Catherine, The, 791. Schott v. Schwartz, 505. Schwerin >\ McKee, 520 n. Scotl ?\ Leary, 380. Scott v. Rogers, C03, 018, 019. Bears v. Boston, 35, 235. Begar v. Town ofBankhamsted, 707. Belleck v. Smith, 572. Sells v. Hoare, 103. Bewall's Falls Bridge r. Fisk, 289. Shadwell v. Hutchinson, 001. Shaffer v. Lee, 509. Shannon v. Comstock, 169, 256, 417. Shaw v. Boston & Worcester R. R. Co. 707. Shaw v. Nudd, 256. Shepperd z>. Hampton, 250, 583. Shepherd v. Johnson, 573, 576, 577,008. 610, 020. Sherlock o. Ailing, 077 n. Sherman v. Hudson River Railroad Co. 101. Sherwood r. Sutton, 560. Shiels v. Davies, 369. Shotwell v. Wendover, 571. Siebel v. Springfield, 638. Bikes r. Wild, 55, 04, 05, 66, 67, 68, 71, 72, 76, 80. Silsbury r. McCoon, 683. Sims v. Cox, 490 n. Singer v. Farnsworth, 264 n. Sisson v. CI. & Tol. R. R. Co, 180. Sleuter v. Wallhaum, 611. Sloman v. Walter, 430 n. Blosson v. Beadle, 438. Since v. Huddleston, 244 Smeed v. Foord, 181, 474, 533, 537. Smethurst v. Woolston, 519. Smith v. Condry, 783. Smith v. Dickenson, 430. Smith v. Dunlap, 610, 611. Smith v. Green, 546. Smith v, Griffith, 523, 602. Smith v. Haynar, 408. Smith v. McGttire, 542. Smith v. Richardson, 245. Smith v. Smith, 483, 488. Smith v. Strong, 98. Smith v. Thompson, 411, 413. Smithurst v. Woolson, 584. Snow v. Roys, 565. Sondes v. Fletcher, 499. Somerville, &c. R. R. Co. v. Doughty^ 670. Southard v. Rexford, 707, 768, 771. Spear ». Smith, 447. Spencer v. Halsted, 169. Spencer v. Tilden, 438. Spottswood v. Clark, 718. Sproule v. Tor, 571. Staats v. Ten Eyck Ex'rs, 14, 15, 20, 23,. 25, 27. Stanley v. Gaylord, 690. Stannard v. Ullithome, 380. Stanlon v. Small, 234. Startup v. Cortazzi, 583, 623. State, Rundle, v. Moore, 400. Stevens v. Lyford, 235. Stevens v. Son, 571. Stitzell v. Reynolds, 738. Stiles v. White, 500. Stockbridge Iron Co. v. Stove Iron Works, 685. Street v. Blay, 368. Sturgis v. Clough, 787. Surre v. Leach, 640 n. Suydam v. Jenkins, 591, 600, 608, 622, 653. Swead v. Badley, 660. Swift v. Barnes, 256, 584, 585. Tarleton v. McGawdv, 698. Tasbnrgh v. Day. 060. Tayloe v. Sandiford, 430 n. Taylor v. Maguire, 264 n. Taylor v. Read, 501. Teese v. Huntington, 751 n. Templer v. McLachlan, 369. Theobald v. Railway Passenger Ins. Co_ 707. Thomas v. Allen, 504, 505. TABLE OF CASES CITED. XXX! Thomas v. Clarke, 116, 117, 118, 119, 121, 123. Thompson v. Gibson, 659, 661. Thompson t>. Jackson, 289. Thompson v. Shattuck, 788. Thompson v. Wood, 410. Tindal v. Bell, 219, 786. Thornburgh v. Whitaker, 125. Thornton v. Place, 369. Tome v. Parkersburg Branch R. R. Co. 406. Trask v. The State Fire & Marine Ins. Co. 819. Tronson v. Dent, 187. Trout v. Kennedy, 521. Tubbs v. Van Kleek, 759. Tucker v. Wright, 575. Tuttle v. Brown, 560. Twinam v. Swart, 653. Tyers v. Rosedale & Ferrv Hill Iron Co. 324. Usher v. Noble, 425. United States v. Burnham. 501. United States, Morris v. Summervil, 400. Van Alstyne v. Indiana, &c. R. R. Co. 412. Vance v. Journe, 584. Van Ness v. Forrest, 242. Van Rensselaer v. Jewett, 226. Van Wart v. Woolley, 398, 397, 400. Vaughan v. Wood, 623. Vicars v. Wilcox, 552, 729. Voorhees v. Earl, 538. Wade v. Le Roy, 289. Wager v. Schuyler, 509, 510. Waldron v. McCartv, 17 n. Walker v. Borland,"608. Walker v. Moore, 59, 63, 64, 71, 72, 75. 80, 251. Walker v. Smith, 665. Wallace v. Mayor of New York, 691. Wallace v. Tellf'air, 400. Walsh v. Chicago, Milwaukee, &c. R. R. Co. 747 n. Walton v. Fothergill, 281. Ward v. N. Y. Cent. R. R. Co. 181 n. Ward v. Smith, 245, 287. Waters v. Towers, 279, 697. Watson v. Ambergate, Nottingham, &c. Railway Co. 149, 151 n. Watt v. Potter, 571. Weaver v. Bachert, 759. Webb v. Pond, 505. Webster v. De Tastet, 400. Wehle v. Butler, 525. Weller v. Baker, 459. Wells v. Aberthaney, 90. Wells v. Padgett, 763, 768. Wells v. Watling, 458. West v. Beach, 105. West v. Wentworth, 573, 579, 580, 581, 582, 583. 601, 621. Whelan v. Lynch, 623. Whitaker v. Sandifer, 410. White v. Clark, 10 n. White, Receiver v. Madison, 393 n. White v. Mosely, 699. White v. Webb, 571. Whipple v. Walpole, 691, 692. Whitaker v. Sumner, 639. Whitehouse v. Atkinson, 572. Whitmore v. South Boston Iron Co. 560. Whittemore v. Coates. 235. Whitten v. Fuller, 573. 574, 575, 576. Wibert v. N. Y. & E. R. R. Co. 179, 180. Willbeam v. Ashton, 430. Wilkes v. Market Co. 290. Willev v. Portsmouth, 689. Williams v. Archer, 623, 643. Williams v. Barton, 699. Williams v. Clinton, 689. Williams v. Esling, 665. Williams v. Jones, 235. Williamson v. Barrett, 787. Willoughby v. Backhouse, 103. Wills v. Abernethy, 584. Wilson v. Conine, 571. Wilson v. Davis, 523. Wilson v. Lancashire & York Rail. Co. 180, 316. Wilson v. Mathews, 602. Wilson v. New Castle & Ber. R. Co. 180. Wood v. Bell, 649. Wood v. Brainerd, 587. Woodward v. Thacher, 560. Worms v. Storey, 191. Worthington v. Warrington, 64. Wright v. Delafield, 763. Yates v. Mullin, 608. Yates v. Fassett, 586. Yates v. Whyte, 676, 677 n. Young v. Spencer, 458. Young v. Willett, 652, 653. SELECTED CASES MEASURE OF DAMAGES REAL ESTATE. Damages for Breach of Contracts to Convey Real Estate or Interests therein; for Breach of Covenants est Deeds, and in Actions of Ejectment. [1770.] GOODTITLE V. TOMBS (3 Wils. 118). After judgment in ejectment, the mesne profits may be recovered in an action of tres- pass, but are not the necessary limit of recovery. The plaintiff Goodtitle, on the demise of his lessor, who was tenant in common of the lands in question, with the now defendant Tombs, recovered judgment and possession in ejectment against a casual ejector by default, and afterwards brought this action of tres- pass, for the recovery of damages sustained by being kept out of possession by his companion Tombs, from the time of the demise laid in the declaration in ejectment, until the time of the execution of the writ of possession. Upon the general issue pleaded, there was a verdict for the plaintiff, damages 15£., and 40s. costs, subject to the opinion of the court upon this question, viz. : Whether one tenant in common can maintain this action against the other, to recover dam- ages for the expulsion and mesne profits. Wtlmot, Chief Justice. — Before the time of Hen. VII, plaintiffs in ejectment did not recover the term ; but until about that time, the mesne profits were the measure of damages. I brush out of my mind all fiction in an ejectment, the nominal plaintiff and nominal defend- ant, the casual ejector, the dramatis personal or adores falulie, and consider the recovery by default, or after a verdict as the same thing, viz. : a recovery by the lessor of the plaintiff, of his term against the l a REAL ESTATE. tenant in the actual wrongful possession of the land. By the old law and practice in an action of ejectment (as I before said) you re- covered nothing but damages, the measure whereof was the mesne profits ; no term was recovered ; but when it became established that the term should be recovered, the ejectment was licked into the form of a real action ; the proceeding was in rem, and the thing itself, the term, only was recovered, and nominal damages, but not the mesne profits ; whereupon this other mode of recovering the mesne profits in an action of trespass was introduced and grafted upon the present fiction of ejectment ; and I take it, that the present fiction is put in the place of the ejectment at common law, which was indeed a true and not a fictitious action, and in which the mesne profits only, and not the term, were recovered, for it was no other than a mere action of trespass. You have turned me out of possession, and kept me out ever since the demise laid in the declaration, therefore I de- sire to be paid the damages to the value of the mesne profits which I lost thereby ; this is just and reasonable (see Aslin and Parkin, 2 Burr. 66$). Gould, Justice. — It must be taken for granted in this case, that there was an actual ouster, and that the defendant kept him out from the time of the demise till the judgment in the ejectment ; the plaintiff in this case is not confined to the very mesne profits only, but he may recover for his trouble, &c. I have known four times the value of the mesne profits given by a jury in this sort of action of trespass; if it were not to be so sometimes, complete justice could not be done to the party injured. This action may be brought either in the name of the nominal plaintiff in the ejectment, or by his lessor ; it follows the ejectment as a necessary consequence. The judgment in ejectment by default is of the very same effect in this case as if it had been after a verdict ; and the court will intend everything pos- sible against the defendant, that there was an actual ouster, if that were necessary in this case ; but I think proof of the judgment in ejectment, and the writ of possession executed, was sufficient in this case to warrant a verdict for the mesne profits. Chief Justice Wilmot. — Damages are not confined to the mere rent of the premises ; but the jury may give more, if they please, as my brother Gould hath truly observed. Judgment for the plaintiff. Absent, Lord Commissioner Bato- urst, in Chanc. FLUREAU v. THORNHILL. 3 [1776.] Flureau v. Thornhill (2 W. Bl. 1078). On a contract for the purchase of real estate, if the title prove bad, and the vendor i3 without fraud unable to make a good one, the purchaser is not entitled to damages for the loss of his bargain. On looking into the title, the defendant could not make it out ; -but offered the plaintiff his election, either to take the title with all its faults, or to receive back his deposit with interest and costs. But the plaintiff insisted on a farther sum for damages in the loss of so good a bargain ; and his attorney swore, he believed the plaintiff had been a loser by selling out of the stocks to pay the purchase money, and their subsequent rise between the 3d and the 10th of November ; but named no particular sum. Evidence was given by the defendant, that the bargain was by no means advantageous, all circumstances considered ; and the auctioneer proved that he had orders to let the lot go for 250/. The defendant had paid the deposit and interest, being 54/. 15s. Qd., into court, but the jury gave a verdict, contrary to the dirctions of De Grey, Chief Justice, for 74:1. 15s. Gel., allowing 20/. for damages. Davy moved for a new trial, against which Glyn showed cause ; and by De Grey, Chief Justice. — I think the verdict wrong in point of •law. Upon a contract for a purchase, if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think that the purchaser can be entitled to any damages for the fan- cied goodness of the bargain, which he supposes he has lost. Gotjld, Justice, of the same opinion. Blackstone, Justice, of the same opinion. — These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has a good title. If he has not, the return of the deposit with interest and costs is all that can be expected. For curiosity, I have examined the prints for the price of stock on the last 3d of No- vember, when 3 per cents sold for 87|-. About 310/. must therefore have been sold to raise 270/. And if it costs 20/. to replace this stock a week afterwards (as the verdict supposes) the stocks must have risen near 7 per cent, in that period, whereas in fact there was no difference in the price. Not that it is material, for the plaintiff had a chance of gaining as well as losing by a fluctuation of the price. Nares, Justice, hesitated at granting a new trial ; but next morn- ing declared that he concurred with the other judges. Rule absolute for a new trial, paying the costs. 4 REAL ESTATE. [1805.] Staats v. Ten Eyck's Ex'rs (3 Caines, 111). Under a covenant of ownership, seizin, power to sell, and for peaceable enjoyment, the- vendee, if evicted, can recover the purchase money, with interest for so long time as he pays mesne profits; also, the costs of the ejectment that may be brought against him, including reasonable counsel fees,* but not the costs of the action for mesne profits. On the Tth of January, 1793, the testator Barent Ten Eyck, by indenture of release, in consideration of 700£., granted, bargained and sold to the plaintiff and one Dudley Walsh, in fee, two lots of ground in the city of Albany, covenanting " That he, the grantor, was the true and lawful owner; that he was lawfully and rightfully seized, in his own right, of a good and indefeasible estate of inheritance in the premises ; that he had full power to sell in fee simple, and that the grantees should forever peaceably hold and enjoy the premises with- out the interruption or eviction of any person whatever, lawfully claiming the same." In the month of May following, Walsh, for a valuable consideration, conveyed his moiety of these lots to Staats, who, on the 30th of October, 1802, after due possession, by lease and release, granted one of them to Margaret China in fee, and covenanted to warrant and defend her in the peaceable possession thereof. In August, 1803, an ejectment was brought against Margaret China, in which a judgment was obtained for a moiety of the lot sold to her, execution sued out, and this followed by a recovery in an action for the mesne profits. The value of the lot, from the moiety of which Margaret China was thus evicted, was, at the time of the sale by Ten Eyck, 300/., and that was the consideration paid for it. Margaret China being thus evicted, brought her action against the plaintiff, and recovered for the moiety she had lost. Upon these facts, which were submitted without argument, the following questions were raised for the determination of the court : 1st. Whether the plaintiff was entitled, under the covenants in Ten Eyck's release, to recover any more than a moiety of the consideration money paid for the lot from which Margaret Claim was evicted. 2d. Whether the interest of that consideration, and the increased value of the premises from the date of the deed to Mai'garet Claim, ought to be added. 3d. Whether the plaintiff was entitled to any retribution for the costs and damages he had sustained by the eviction and i*ecov- eries before mentioned. Kent, Chief Justice. — This case resolves itself into these two points for inquiry : 1st. Whether, upon the covenants, the plaintiff * See note at the end of this case. STAATS v. TEN EYCK'S EXECUTORS. 5 be entitled to recover the value of the moiety of one lot at the time of eviction, or only at the time of the purchase, and to be ascertained by the consideration given. 2d. If the latter be the rule of dam- ages, then, whether the plaintiff be also entitled to recover interest upon the purchase money, and the costs of the eviction. 1. There are two covenants contained in the deed ; the one, that the testator was seized in fee, and had good right to convey ; the other, that the grantee should hold the land free from any lawful disturbance or eviction. The present case does not state distinctly whether the eviction was founded upon an absolute title to a moiety of one lot, or upon some temporary incumbrance. But I conclude from the manner of stating the questions, and so I shall assume the fact to be, that the testator was not seized of the moiety so recovered when he made the conveyance, and had no right to convey it. The last covenant cannot then, in this case, have any greater operation than the first, and I shall consider the question as if it depended upon the first covenant merely. At common law, upon a writ of warrantia chartce, the demand- ant recovered in compensation only the value of the land at the time of the warranty made, and although the land had become of increased value afterward, by the discovery of a mine, or by buildings, or other- wise, yet the warrantor was not to render in value according to the then state of things, but as the land was when the warranty was made (Bro. Abr. tit. Youcher, pi. 69 ; Ibid. tit. Recover in value, pi. 59, 22 ; Yin. 144, 5, 6 ; Tb. pi. 1, 2, 9 ; Ub. pi. 1, 2, 3 ; 1 Reeves' Eng. Law, 448). This recompense in value, on excambium, as it was anciently termed, consisted of lands of the warrantor, or which his heir in- herited from him, of equal value with the land from which the feoffee was evicted (Glanville, b. 3, c. 4 ; Bracton, 384, a, b). That this was the ancient and uniform rule of the English law, is a point, as I apprehend, not to be questioned ; yet, in the early ages of the feudal law on the continent, as it appears (Feudorum, lib. 2, tit. 25), the lord was bound to recompense his vassal on eviction with other lands equal to the value of the feud at the time of eviction ; "feudum resiituat ejusdem cestiinationis quod " erat tempore rei judicata. But there is no evidence that this rule ever prevailed in England, nor do I find, in any case, that the law has been altered since the introduc- tion of personal covenants, to the disuse of the ancient warranty. These covenants have been deemed preferable, because they secure a more easy, certain and effectual recovery. But the change in the remedy did not affect the established measure of compensation, nor are we at liberty now to substitute a new rule of damages from mere 6 REAL ESTATE. speculative reasoning, and that, too, of doubtful solidity. In war- ranties upon the sale of chattels the law is the same as upon the sale- of lands, and the buyer recovers back only the original price (1 H. Black. IT). This is also the rule in Scotland as to chattels (1 Ersk.. 206). Our law preserves in all its branches symmetry and harmony upon this subject. In the modern case of Flureau v. Thornhill (2 W. Black. L078), the court of King's Bench laid down this doctrine, that upon a contract for a purchase of land, if the title prove bad, and the vendor is without fraud incapable of making a good one, the purchaser is not entitled to damages for the fancied goodness of his bargain. The return of the deposit money, with interest and costs, was all that was to be expected. Upon the sale of lands the purchaser usually examines the title for himself, and in case of good faith between the parties (and of such cases only I now speak), the seller discloses his proofs and knowledge of the title. The want of title is, therefore, usually a case of mutual error, and it would be ruinous and oppressive to make the seller respond for any accidental or extraordinary rise in the value of the land. Still more burdensome would the rule seem to be if that rise was owing to the taste, fortune or luxury of the purchaser. No man could venture to sell an acre of ground to a wealthy purchaser, without the hazard of absolute ruin. The hard- ship of this doctrine has been ably exposed by Lord Kaimes, in his examination of a decision in the Scotch law, that the vendor was bound to pay according to the increased value of the land (1 Kaimes' Eq. 284-303 ; 1 Ersk. 206). If the question was now res Integra, and we were in search of a fit rule for the occasion, I know of none less exceptionable than the one already established. By the civil law, the seller was bound to restore the value of the subject at the time of eviction, but if the thing had been from any cause sunk below its original price, the sel- ler was entitled to avail himself of this, and pay no more than the thing was then worth ; for the Roman law, with its usual and ad- mirable equity, made the rule equal and impartial in its operation. It did not force the seller to bear the risk of the rise of the com- modity, without also taking his chance of its fall (Dig. lib. 21, tit. 2, 1. 78 ; Ibid. 1. CG, § 3 ; Ibid. 1. 64, § 1). So far the rule in that law appeared at least clear and consistent, but with respect to bene- ficial improvements made by the purchaser, the decisions in the Code and Pandects are jarring and inconsistent with each other, and betray evident perplexity on this difficult question (Dig. lib. 19, tit. 1, 45, § 1 ; Code, lib. 8, tit. 45, I, q, and Perezius thereon). The STAATS v. TEN EYCK'S EXECUTORS. 7 more just opinion seems to be that the claimant himself, and not the seller, ought to pay for them, for nemo debet locupletarl alien a j ac- tum, and this rule has, according to Lord Hardwicke, been several times adopted and applied by the English Court of Chancery (East In. Com. v. Vincent, 2 Atk. 38). While on this question, I hope it may not be deemed altogether impertinent to observe that in the late digest of the Hindu law, compiled under the ausjnces of Sir William Jones, the question before us is stated and solved with a precision at least equal to that in the Roman Code, and it is in exact conformity with the English law. On a sale declared void by the judge for want of ownership, the seller is to pay the price to the buyer ; and what price ? asks the Hindu commentator. Is it the price actually received, or the present value of the thing ? The answer is, the price for which it was sold ; the price agreed on at the time of the sale, and received by the seller, and this price shall be recovered, although the value may have been diminished (1 Colebrook's Digest, 478, 9). Before I conclude this head, I ought to observe that, in the present case, it does not appear that any beneficial improvements have been made upon the premises since the purchase by the plaint- iff, and although some of my observations have been more general than the precise facts in the case required, yet the opinion of the court is not intended to be given or to reach beyond the case be- fore us. 2. The next point arising in this case is, whether the plaintiff is entitled to recover interest upon the purchase money, and the costs of eviction. It is evident that originally the vendee recovered only what was deemed equivalent to the purchase money, without inter- est ; for he recovered other lands equal only in value to the lands sold, at the time of the sale. The rule would have been the same at this day, had not the action for mesne profits been introduced, which takes away from the purchaser the intermediate profits of the land. As long as he was permitted to reap the rents and profits, they formed a just compensation for the use of this money. Whether the action for mesne profits has not been carried too far in our law, by extending it to all cases, instead of confining it to a mala fide possession, it is now too late to inquire. I should have strong doubts at least, upon the present rule, if the question was new, but consid- ering it as the established rule that the action for mesne profits lies generally, I am of opinion that the seller is as generally bound to answer for the interest of the purchase money, and that the interest ought to be commensurate, in point of time, with the legal claim to the mesne profits. This right to interest rests on very plain prin- S REAL ESTATE. ciples. The vendor has the use of the purchase money, and the vendee loses the equivalent by the loss of the mesne profits. The interest ought to commence from the time of the loss of the mesne profits. That time is not specifically stated in the present case, and the presumption is, that they were recovered from the date of the plaintiffs purchase, and from that time, I think, the interest ought to be calculated on the consideration sum. As to the costs of suit attending the eviction stated in the case, it is very char that the defendants are responsible under the cove- nant, for the testator was bound to defend and protect the plaintiff and his assigns in the title he had conveyed. At common law, he might have been vouched to come in, and been substituted as a real defendant in the suit. But the defendants are not answerable for the costs of the suit for mesne profits, as there the testator was not bound to defend. My opinion accordingly is, that the plaintiff in the present case is entitled to recover the consideration paid for the moiety of the lot evicted, together with interest thereon from the date of the purchase, and the costs of suit in ejectment for the recovery of the same. To find a proper rule of damage, in a case like this, is a work of some difficulty ; no one will be entirely free from objection, or not at times work injustice. To refund the consideration, even with interest, may be a very inadequate compensation when the property is greatly enhanced in value, and when the same money might have been laid out to equal advantage elsewhere. Yet to make this in- creased value the criterion where there has been no fraud, may also be attended with injustice, if not ruin. A piece of land is bought solely for the purposes of agriculture ; by some unforeseen turn of fortune, it becomes the site of a populous city, after which an evic- tion takes place. Every one must perceive the injustice of calling on a bona fide vendor to refund its present value, and that few fortunes could bear the demand. Who for the sake of one hundred pounds would assume the hazard of repaying as many thousands, to which value the property might rise by causes not foreseen by either party, and which increase in worth would confer no right on the grantor to demand a further sum of the grantee. The safest general rule in all actions on contract is to limit the recovery as much as possible to an indemnity for the actual injury sustained, without re- gard to the profits which the plaintiff has failed to make, unless it shall clearly appear from the agreement that the acquisition of cer- tain profits depended on the defendant's punctual performance, and that he had assumed to make good such a loss also. To prevent an STAATS v. TEN EYCK'S EXECUTORS. 9 immoderate assessment of damages when no fraud had been practiced, Justinian directed that the thing which was the object of contract should never be valued at more than double its cost. This rule a writer on civil law applies to a case like the one before us ; that is, to the purchase of land which had become of four times its original value when an eviction took place ; but, according to this rule, the party could not recover more than twice the sum he had paid. This law is considered by Pothier as arbitrary, so far as it confines the re- duction of the damages to precisely double the value of the thing, and is not binding in France ; but its principle, which does not allow an innocent party to be rendered liable beyond the sum on which he may reasonably have calculated, being founded in natural law and equity, ought, in his opinion, to be followed, and care taken that damages in the cases be not excessive. Rather than adhere to the rule of Justinian, or leave the matter to the opinion of a jury as to what may or may not be excessive, some more certain standard should be fixed on. However inadequate a return of the purchase money must be in many cases, it is the safest measure that can be followed as a general rule. This is all that one party has received, and all the actual injury occasioned by the other. I speak now of a case, and such is the present, where the grantee has not improved the property by buildings or otherwise, but where the land has risen in value from extrinsic causes. What may be a proper course when dwelling houses or other buildings and improvements have been erected, we are not now determining. "Why should a purchaser of land recover more than he has paid, any more than the vendee of a house or a ship ? If these articles rise in value, the vendors would hardly, if there be no fraud, be liable to damages beyond the prices they had received, with interest and costs, unless the plaintiffs could show some further actual injury which they had sustained in conse- quence of the bargain. The English books afford but little light on this point, although it is understood to be the rule in Great Britain to give only the consideration of the deed. The only thing to be found anyways relating to the subject, is in the Year Books in Hilary Term (6 Edward II, part 1, 187). It is there said, that in a writ of dower, after the lands had been improved by the feoffee, they shall be extended or set off to the widow, according to the value at the time of alienation ; and the reason assigned by Hargrave in his notes on Coke on Littleton, which is not, however, found in the Tear Book, is " that the heir, not being bound to warrant, except ac- cording to the value of the land at the time of the feoffment, it is unreasonable the widow should recover more of the feoffee than he 10 REAL ESTATE. could, in ease of evict inn. of the feoffor.'' In Connecticut, on the contrary, damages are ascertained by the value at the time of evic- tion, because of laud's increasing worth, which is the very reason perhaps it should be otherwise. And although the English practice be adverted to 1>\ the court in giving its opinion, it is supposed to be founded on the permanent value of their lands; but when we recollect thai this has been the rule in Great Britain, at least from the commencement of the fourteenth century, since which time lands have greatly advanced in price, we must attribute its origin to sonic other cause, probably to its intrinsic justice and merit. Even in Connecticut ( Kirhv. 3), the rule applies only to actions on covenant of warrant v, and probably not to those on covenant of seizin, because in the latter case it is supposed the party may immediately acquaint himself with the strength of his title, and bring his action as soon as he discovers it is defective. This reason is not very satisfactory, for with all his diligence a long time may elapse before his title is called in question, or doubts or suspicions raised about its validity. Without saying, then, what ought to be the rule where the estate has been improved after purchase, my opinion is, that where there has been no fraud, and none is alleged here, the party evicted can recover only the sum paid, with interest from the time of payment, where, as is also the case here, the purchaser derived no benefit from the property, owing to a defective title. The plaintiff must also be reimbursed the costs sustained by the action of ejectment. It was his duty to defend the property, and the costs to which he has been exposed being an actual, not an imaginary loss, arising from the de- fendant's want of title, he ought to be made whole. In costs are include! I reasonable fees of counsel,* as well as those which are tax- able. If a grantee be desirous of receiving the value of land at the time of eviction, he may by apt covenants in the deed, if a grantor will consent, secure such benefit to himself. The other judges concurred. * But the courts are disinclined of late years to allow counsel fees as an express item of damage ; and although, in this class of cases, they are allowed in some of the Stales (Robertson v. Lemon, 2 Busn [ Ky.| 801 ; Keeler v. Wood, 30 Vt. 242), this is not the universal rule (White v. Clark, 2 Swan [Tenn.] 230; Leffingwell v. Elliott, 10 Tick. [Mass.] 2041 PRESCOTT v. TRUEMAN. 11 [1808.] Prescott v. Trueman (4 Mass. 927). A paramount right is an incumbrance, and if the plaintiff have, at a fair price, ex- tinguished the incumbrance, such price shall, in an action on a covenant against incumbrances, be the measure of damages ; if he have not removed the incumbrance, he shall have nominal damages only. This was an action of covenant broken. The declaration con- tained several counts, in the fourth of which the plaintiff alleges that the defendant by his deed duly executed, dated September 26th, 1800, in consideration of three hundred dollars paid him by the plaintiff, granted and sold to the plaintiff in fee simple a certain messuage and lands therein described ; and, among other things, covenanted that the granted premises were free of all incumbrances. The plaintiff then sets forth that before and until the 19th day of March, 1795, one Thomas Symmes was seized in fee of the said messuage and lands, having a good and perfect title to the same, and being so seized, by his deed of that date, for a valuable consideration, conveyed the same to one Thomas Russell in fee, and the said Rus- sell, on the 8th day of April, 1796, died intestate, seized of the right to the same premises, from whom the said right descended and came to his children and heirs ; and the plaintiff further avers that, at the date of the defendant's said deed, he had not, nor hath he at any time had, any entry, right or title to the premises aforesaid, but by and under the said Symmes, who thereof disseized the said Russell on the 4th day of August, 1795 ; so that the said right of the said children and heirs of the said Russell, to have the said premises as aforesaid, was at the time the defendant executed his deed aforesaid, and still continues to be, an incumbrance upon the premises afore- said ; and, therefore, that the same were not then free of all incum- brances : and so the defendant his covenant aforesaid hath not kept, but hath broken the same. To this count the defendant demurred generally, and the plaintiff joined in demurrer. Parsons, Chief Justice. — The action is covenant broken, and comes before us on a general demurrer to the fourth count. In this count, the plaintiff alleges that Trueman, on the 26th day of Sep- tember, 1800, being then seized in fee of certain lands in Westford, which seizin he acquired by a conveyance from Thomas Symmes, who was in by disseizin, by his deed of that date granted and sold the same to the plaintiff in fee ; and covenanted that the said lands were free from all incumbrances. The breach alleged is that the heirs of the disseizee had, at the time when the deed was executed, a paramount right to the same lands. 12 REAL ESTATE. All the facts contained in this count, which are well pleaded, are confessed by the demurrer. And the question is, whether this par- amount right to the lands in the heirs of the disseizee, at the time of the grant to the plaintiff, is an incumbrance on the land granted. No authority in point on either side has been produced ; and the question must be decided on general principles. On these principles we are of opinion that every right to, or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance, must be deemed in law an incumbrance. We say, consistent with the passing of the fee of the land by the conveyance, because if nothing passed by the deed, the grantee cannot hold the estate under the grantor. Thus a right to an easement of any kind in the land is an incumbrance. So is a mortgage. So also is a claim of dower, which may partially defeat the plaintiff's title, by taking a freehold in one-third out of it. And for the same reason, a paramount right, which may wholly defeat the plaintiff's title, is an incumbrance. It is a weight on his land which must lessen the value of it. It may be objected, that if a paramount right is an incumbrance for which the grantee may recover damages, it would operate un- reasonably and unjustly as between the parties to the covenant. For after the grantor had paid for the value of the land in damages, the grantee would still hold it, and might never be disturbed by a dormant title. Or, if he should be afterwards evicted, the grantor would again be liable to the grantee on the warranty in consequence of the eviction. If these inconveniences would follow from considering a par- amount right as an incumbrance, the objection would have great weight, not only on this point, but also in cases of mortgages and claims of dower, which, it is not disputed, are incumbrances. But, ~by duly attending to the rule in assessing damages, the objection will vanish. Where a subsisting easement is alleged as the incumbrance, the injury arising from the easement, or the fair and reasonable price paid by the grantee to extinguish it, of which the jury will judge, is the measure of the damages. If a mortgage, which is a collateral security, is the incumbrance, the grantee can recover only nominal damages, unless he has removed it, because the mortgagee can compel the mortgagor to pay the debt by suing the principal security ; but if the grantee has paid it, so that the mortgagor is dis- charged, the sum secured by the mortgage is the measure of dam- ages. If a right to dower is the incumbrance complained of, if it be not extinguished by the grantee, he can recover only nominal dam- PRE SCOTT v. TRUEMAN. 13 ages. But if lie has extinguished it, the jury will allow him in damages the fair price it necessarily cost him. For if this right be extinguished, it can never after be the foundation of any claim on the grantor. So in the case before us, if the plaintiff, the grantee, has not extinguished the paramount right, but it still remains against his title, he shall recover nominal damages only, for the reason on which the objection is founded. For the plaintiff shall not recover the value of the land against the grantor, and still hold the land on a contingency that he may never be disturbed in his possession. Neither shall the grantor, the defendant, after having once paid the value of the land, be afterwards called on by the plaintiff on a sub- sequent eviction. But if it should appear to the jury, who may inquire of the damages, that the plaintiff has, at a just and reason- able price, extinguished this title, so that it can never afterwards prejudice the grantor, they will consider this price as the measure of damages. The law thus settled will be generally convenient. For if we are mistaken in the law, the grantee can have no remedy on the usual covenants in our deeds of conveyance, until he is evicted. In the mean time he may be unwilling to make improvements ; and when he is evicted, the grantor may be unable to make him any compensation. The covenant of seizin is not broken, for it is admitted that the grantor was seized ; neither is the covenant of a right to convey broken, for a man seized has a right to convey ; and on the warranty there is no remedy, until after eviction. In English deeds, there is sometimes inserted a covenant that the grantor has good right to convey an indefeasible estate in fee. On this covenant only nominal damages would be given, until the estate conveyed had been defeated, or the right to defeat it had been ex- tinguished. This covenant is not usually, if ever, introduced into our deeds of conveyance, and upon the construction of covenants against incumbrances is unnecessary. In adopting this construction, we have not been governed entirely by arguments db inconveniently but have used the language of these covenants in the popular sense of the country, and consequently in the sense in which it is generally understood by the parties to con- veyances. A purchaser from one who is seized is not therefore obliged to wait in painful suspense, until he be evicted, before he can obtain an adequate remedy ; but as soon as he can extinguish the incumbrance, he may call on his grantor for an indemnity. Declaration adjudged good. 14 REAL ESTATE. [1809.] PiTcnEit v. Livingston (4 Johns. 1). In an action for the breach of the covenants of seizin and for quiet enjoyment, the pur- chaser cannot recover for the improvements he lias made, nor for the increased value of the land. This was an action of covenant. The declaration contained two counts; the first was for a breach of the covenant of seizin, the sec- ond for a breach of the covenant for quiet enjoyment, contained in a deed from the defendant to the plaintiff, dated the 17th June, 1801, for certain lands in Queensbury, in the county of Washington. The cause was tried at the Washington circuit, before Mr. Justice Thompson, and a verdict taken for the plaintiff, for $2,521 75. The covenants were proved to have been broken, and two questions were raised at the trial : 1. Whether the plaintiff was entitled to re- cover interest on the consideration money ; 2. Whether he w T as en- titled to recover damages for the improvements made by the plaint- iff, and for the increased value of the land. The judge was in favor of the plaintiff on the first question ; but gave no opinion on the second. It was agreed that a verdict should be taken for the plaintiff ; and if the court should be of opinion that the plaintiff was not entitled to interest, that then the sum of $183 75 should be deducted from the amount of the verdict ; and that if the court should be of opinion that the plaintiff was not enti- tled to recover for the improvements, then the further sum of $925 should be deducted from the verdict ; and if the court should be of opinion that the plaintiff was not entitled to recover anything for the increased value of the land, that then the further sum of $750 should be deducted from the verdict. Yan Ness, Justice. — Although it is not expressly stated in the case, I shall assume the fact to be, that the declaration contains an averment that the plaintiff had been evicted, in consequence of a total failure of the title derived to him under the deed from the de- fendant. This fact being assumed, there is no difference between the present case and that of Staats v. The Executors of Ten Eyck (3 Gaines, 111), except that, in this case, beneficial improvements have been made by the plaintiff upon the property, the value of which he contends he is entitled to recover. The case just mentioned is among the most important and interesting of any that have ever been brought before this court for decision ; and, accordingly, it ap- pears to have received the most deliberate consideration. I not only submit to the authority of that case, but I take this occasion to ex- press my perfect acquiescence in the reasons upon which the deter- PITCHER v. LIVINGSTON. 15 urination of it appears to have proceeded. The covenants upon which the breaches were assigned in that case, were the same as in the present, viz. : the covenant of seizin, and for quiet enjoyment. The court decided that the damages, which the plaintiff was entitled to recover, where to be limited to the consideration expressed in the deed, with the interest thereon, and the costs of suit attending the eviction. But in addition to the sum which the plaintiff, according to this rule, would recover, he contends that the defendant is bound to indemnify him for the loss of his improvements. These are esti- mated at $925 ; and the only point left open to discussion is, whether he has a legal right to demand this sum. In Staats v. The Executors of Ten Eyck, the court determined that the plaintiff was not entitled to recover any damages on account of any increased value of the land. Here a distinction is attempted to be made between an apjjreciation of the land itself, and that ap- preciation of it which is produced by the erection of buildings, or the labor bestowed upon it in clearing and cultivating : a very nice and, as I apprehend, a speculative distinction, to which it would be difficult, if not in most cases impossible, to give any practical effect without danger of the most flagrant injustice. The reasoning of the judges, whose opinions are reported in the case alluded to, goes very far, if not conclusively, to prove that such a distinction is utterly without foundation. The admission that it might possibly exist, has probably given rise to this action, which otherwise, I believe, would not, after that decision, have been brought. One, and perhaps the principal, reason why the increased value of the land itself cannot be recovered, is because the covenant cannot be construed to extend to anything beyond the subject-matter of it, that is, the land, and not to the increased value of it subsequently arising from causes not existing when the covenant was entered into. For the same reason, the covenantor ought not to recover for the improvements ; for these are no more the subject-matter of the contract between the parties, than the increased value of the land. The doctrine con- tended for by the plaintiff's counsel is, that the damages sustained by the covenantee at the time of the eviction, ought to be the meas- ure of compensation. Most clearly then, the increased value of the land is as much within the reason of this rule, as the improvements ; and upon the same principle that the covenantee is entitled to the one, he is to the other. But if the value at the time of eviction is to be the measure of damages, upon what principle is the consideration and interest, as such, recoverable in addition to the improvements ? These must be 16 REAL ESTATE. laid out of view ; and the then value be ascertained without refer- ence to them. Besides if, in determining the rule of damages, the increase of value is to be taken into view, by parity of reasoning, it would be proper, and what would be required by a just reciprocity, to take into consideration any contingent diminution of value (Ersk. Inst. 200). But this has never been heard of nor pretended. No such principle is to be found in the common law, notwithstanding these covenants have been in use upwards of two hundred years. I think this circumstance affords an argument against the measure of damages insisted upon by the plaintiff, and which, of itself, is nearly decisive, that the rule is without legal foundation. In illustration of my opinion on this part of the argument, I will state a case. A. gives a conveyance, containing covenants of seizin and for quiet enjoyment, of a house and lot. The house constitutes two-thirds of the whole value. The house is afterwards burnt. Then the grantee is evicted for a failure of the grantor's title. He then resorts to both his covenants, which of course are broken, for indemnity. What would be the measure of damages % the value of the lot, at the time of eviction, being one-third of what the whole cost him ; or the value, as ascertained and agreed upon by the deed itself ? No doubt the latter. "Whenever the grantee's title has proved to be entirely defective, and there is an eviction consequent thereon, the grantee has a right to rescind the contract, and then, as in other cases depending on the same principle, he recovers back, upon his covenants, what he has paid, with the interest (Fielden v. Starkin, 1 II. Bl. 17 ; Flureau v. Thornhill, 2 W. Bl. 1078). In the case just put, I have supposed that both the covenants of seizin and for quiet enjoyment were broken, and that breaches for both were duly assigned ; and I have shown that if the value of the property at the time of eviction is to be the measure of damages, it necessarily follows that such diminished value is all which ought to be recovered. It is conceded that, upon the covenant of seizin only, the recovery is to be confined to the consideration and interest. On the covenant for quiet enjoyment, therefore, the plaintiff must rely to recover compensation for his improvements. Let us then exam- ine whether, consistently with certain fixed legal principles, the covenantee can recover a greater sum of damages in any case un- der the covenant for quiet enjoyment, than under the covenant of seizin. An eviction must be shown before a suit can be maintained on the former covenant. Not so, however, as to the latter ; for that is broken, if the grantor has no title, the moment the deed is delivered ; PITCHER v. LIVINGSTON. 17 and the grantee has an immediate right of action.* Whenever the eviction is occasioned by a total want of title in the grantor, then both the covenants of seizin and for quiet enjoyment are equally broken ; and the grantee has his remedy on both. If he proceeds upon the first, he shall recover the consideration expressed in the deed, and the interest. But if he proceeds upon the last, it is said he shall recover according to the value at the time of eviction ; and, as I have before remarked, he must be content to recover according to the then value, even though it amounts to one-half only of the consideration expressed in the deed. The case would then stand thus. When the deed contains both these covenants, if the property at the time of eviction be worth one half of the consideration and interest, the grantee may notwithstand- ing, upon the covenant of seizin, recover the whole consideration and interest. But if the property happen to be worth double the consideration money and interest, by reason of the improvements made thereon, he may waive the covenant of seizin, and resort to the covenant for quiet enjoyment, and thus recover the whole amount. Can this be possible ? It appears to me that, to give such an effect to these covenants, is not reconcilable with any principle of law or justice. My understanding of the nature of these covenants, when both are contained in the same deed, is this : That the covenant of seizin, which relates to the title, is the principal and superior covenant, to which the covenant for quiet enjoyment, which goes to the posses- sion, is inferior and subordinate. And I am not aware that a case can possibly occur, where the grantor can recover a greater amount in damages for the breach of the latter than of the former ; though there are many cases where he may recover less. The suit here is brought upon both covenants ; and both, in consequence of the total failure of the defendant's title and the eviction, have been broken. The plaintiff, accordingly, has a right to recover on both ; but as the amount of the recovery would, according to my ideas, be the same on each, he must elect on which of them he means to rely, and take nominal damages on the other. The plaintiff is entitled to but one satisfaction, and he has his remedy on either of the covenants, at his election, to obtain it. It will hardly be said that he can have judg- ment for the same sum on both the covenants. • Vide Greenby and Kellogg v. Wilcocks, 2 Johns. 1 ; Waldron v. M'Carty, 3 John?. 471 ; Kortz v. Carpenter, 5 Johns. 120; Hamilton and others v. Wilson, 4 Johns. 72 ; Pol- lard v. Dwight, 4 Cranch, 421. 2 18 REAL ESTATE. The covenant against incumbrances stands upon a different foot- ing, and is governed by different principles. That is strictly a cov- enant of indemnity ; and the grantee may recover to the full extent of any incumbrances upon the land, which he shall have been com- pelled to discharge. But even there it will be found that the same rule prevails, in fixing the amount of damages, as in actions upon the covenants of seizin and for quiet enjoyment : that is, the party recovers what he has paid, with the interest, and no more.* But I consider the question arising in this cause as settled by au- thority ; and that, according to established rules of law, the plaintiff is not entitled to anything more than the value of the land, as set- tled by the consideration in the deed. In suits upon the ancient covenant of warranty, beyond all dis- pute, the recovery was restricted to the value of the land at the time of making the covenant. Cases have occurred in which the value of the land has been enhanced by subsequent beneficial improvements ; but the rule as to the extent of satisfaction has continued inflexibly the same, without regard to the increased value, by whatever cause it may have been produced. A personal action will not lie on the covenant of warranty, upon the eviction of the freehold (Bac. Abi\. tit. Cov. C.),f and for which reason, upon the introduction of aliena- tions by bargain and sale, new covenants were devised, but solely for the purpose of securing to the bargainee the personal responsibility of the bargainor, in case of a failure of his title. I think I am war- ranted in saying that it never was designed, by the insertion of these covenants, to establish any other rule of damages than what pre- viously existed ; because there is nothing in the terms of the cove- nants from which an intention to extend the liability of the cove- nantor can be inferred ; but the contrary is to be presumed, as not a single case is to be found where such a construction of these cove- nants, which were in a great measure substituted for the covenant of warranty, has ever obtained. The covenant for quiet enjoyment, as I have before remarked, is that upon which compensation for the improvements is to be recovered, if at all. This covenant has a more strict analogy to the ancient covenant of warranty than any of the other modern covenants. If then, on the covenant of warranty, the satisfaction recovered in land was to be equivalent to the value of the lands granted, as it existed at the time when the covenant was * And if he has not extinguished the incumbrance, he can only recover nominal dam- ages. Delavergne v. Norris, 7 Johns. 35S; Prescott v. Trueman, 4 Mass. 627. f Contra, Gore v. Brazier, 3 Mass. 544, 545, per Parsons, Ch. J. PITCHES v. LIVINGSTON. 19 made, I do conceive that we are bound to adopt a correspondent rale, when satisfaction is sought to be recovered in money, in a personal action, on the covenant for quiet enjoyment. Such a rule, moreover, I consider to be conformable to the inten- tion of the parties. I question if one grantor out of ten thousand enters into these covenants with the remotest belief that he is expos- ing himself and his posterity to the ruinous consequences which would result from the doctrine contended for by the counsel for the plaintiff. By giving this doctrine our sanction, we should, in my ap- prehension, create a most unexpected and oppressive responsibility, never contemplated by the parties, and inflict an equally unmerited punishment upon grantors acting with good faith, and having a per- fect confidence in the validity of their title to the land, which they have transferred for what it is reasonably worth. If any imposition is practiced by the grantor, by the fraudulent suppression of truth, or suggestion of falsehood, in relation to his title, the grantee may have an action on the case, in the nature of a writ of deceit ; and in such action he would recover to the full ex- tent of his loss (Har. & But. Notes to Co. Litt. 384, a, tit. Warranty ; 1 Fonb. Eq. 366 ; 1 Com. Dig. 236, A. 8). I am aware that it is difficult to lay down any general rule on this subject, wholly free from objection. This is a difficulty which has been felt by the profoundest jurists in all ages. I think, how- ever, that the rule of the common law, which obliges the grantor, when he believes he has a valid title, and acts without fraud, to re- fund what he has received, with the interest, is as equitable as any that has ever been established ; and that this is all which, upon principles of the most rigorous justice, ought to be exacted from him. My opinion therefore, is that, in this case, the plaintiff is entitled to recover the consideration money expressed in the deed, with the interest, and the costs of suit following the eviction, and no more. Spencer, Justice. — It is submitted to the court, by the case made and argued in this cause, what is the correct rule of damages, upon covenants of seizin and for quiet enjoyment, contained in a deed conveying lands, in a case where the grantee has made improve- ments, and where the value of the land has appreciated. It is also made a question, whether the plaintiff is entitled to recover interest on the consideration money paid for the lands. It is to be regretted that the case is so loose in several respects. It is fair, however, to infer from the case as it stands, and as it was argued, that, in point of fact, both covenants were broken ; that the 20 REAL ESTATE. plaintiff was evicted for defect of title in the defendant, and that the plaintiff had made improvements, in the usual course of agricul- ture, on the lands conveyed by the defendant to him, of a substantial kind to the value of $925. The case of Staats v. The Executors of Ten Eyck (3 Caines, 112), ' decides two of the questions which arise out of this case. In that cast', though the value of the land had increased by extrinsic causes, the plaintiff was allowed to recover only the consideration paid, with the interest, costs and counsel fees. The interest was allowed, be- cause the purchaser was subject to an action for the mesne profits ; and in the present case it is to be intended that the plaintiff is liable to pay them to the person who has the title, and consequently it is to be allowed. It will be seen that these two questions have re- ceived a similar determination in the supreme judicial court of Mas- sachusetts (Marston v. Hobbs, 2 Mass. 433). In the case before cited, of Staats v. The Executors of Ten Eyck, the court expressly reserved its opinion, upon a case like the present, where beneficial improvements have been made on the premises after the purchase. It was then considered that there might be a difference between the case of the rise in value by the natural appreciation of lands, depend- ing in a great measure on ideal worth, and the case of improvements of a beneficial kind. This question I do not think has been settled in the English courts. It has never been decided in our own, and consequently it appears to me, that we are at full liberty to fix a rule, which shall bear analogy to other cases, and attain complete justice between the parties. I cannot pretend to say that the rule which I shall lay down will be free from objection when applied to all cases ; and I am not sensible that any general rule, in almost any given case, will invariably be free from exception. It is the very nature of general rules sometimes to operate harshly ; but the necessity of a fixed standard of justice is of more importance to the interests of men, than one that is capricious and fluctuating. It has, I think, been erroneously said that the defect of title is a case of mutual error ; on the contrary, from my observation and knowledge of the sale of lands, I think the defect of title is a matter generally and almost universally in the peculiar knowledge of the vendor. It is a rare case for a purchaser to investigate the seller's title ; and in most cases it is impossible. The buyer relies on the allegations of the vendor, on his apparent responsibility to reimburse in case of eviction, upon his possession of the property, and emphat- ically on his covenants of title and for quiet enjoyment. These PITCHER v. LIVINGSTON. 21 covenants, whenever they occur in a deed, seem to me to indicate, beyond all question, that the purchaser did not mean to rely on the title of the vendor alone, but that he meant to have his personal lia- bility as his guaranty. The language of the vendor corresponds with that of the purchaser, and holds out the idea that he had sold the land at his own peril, and that he would warrant it to be his. Extravagant cases have been put hypothetically to show the enor- mous injustice of the rule, that the vendor must be answerable for improvements. It has been asked if a piece of land thus sold, with covenants, should become the site of a flourishing city, what fortune could, under a rule allowing for improvements, withstand ruin ? It may be retorted to such a question, what is to become of the indus- trious citizen or mechanic who has spent his hard earnings in erect- ing his little house or workshop, relying on the covenant in his deed, if he can only get back his purchase money and interest ? It is not fair, however, to test a rule by extreme cases. To settle a general rule wisely and equitably, we should have an eye to cases which generally occur, and not be startled, on the one hand or the other, by those occurrences which are rare and few. In general, the defect of title happens in sales between man and man, where the improve- ments are of the ordinary and beneficial kind. If the improvements are merely to gratify the eye of the individual, and to pamper his vanity and pride, a jury would be warranted to take those things into consideration in their assessment of damages. I lay it down as a rule, which cannot require much illustration to enforce it, on the score of analogy and justice, that in actions for a breach of covenant, the damages are to be estimated according to the value of the thing when the covenant was broken. Thus, in a cove- nant for the delivery of specific property at a given day, in case of a failure, the rale invariably is to allow in damages the value of the thing on the day it ought to have been delivered, and when the cov- enant was broken. So, also, on contracts for the delivery of stock, the value at the time it ought to have been delivered, and even at the time of trial, has been the criterion of damages (2 Burr. 1010 ; 1 Str. 406 ; 2 East, 211). In the present case, the defendant cove- nanted that the plaintiff should quietly enjoy the land sold. This covenant was violated when the plaintiff was evicted ; and he has lost, by the breach of the covenant, not only the quiet enjoyment of the land, but the usufruct of those erections and improvements, without which, it is fair to say, that the land itself could not have been enjoyed agreeably to the intention of the parties. It necessarily follows, that had the defendant kept his covenant and allowed the 22 REAL ESTATE. plaintiff to enjoy the premises sold, he would not have been de- prived of those improvements made on the tiling itself, the making of which was an inducement to the purchase. How it can be called a severe doctrine to compel the vendor to respond in damages for ordinary and necessary improvements, I confess myself incapable of perceiving, when he has undertaken, for a price paid, to assure to the vendee the validity of his title. Very often, and perhaps generally, there is a want of due caution on the part of a vendor who sells without title ; and not unfrequently there is a mixture of fraud, which sets detection at defiance. The rule I have advanced, whilst it will restore to the innocent vendee no more than he has actually lost, will induce greater caution in sellers, who, if responsible only for the principal and interest, will find the selling of land without title an easy and excellent method of raising money, instead of re- sorting to borrowing. It follows, from the view I have taken of this question, that the plaintiff, under the covenant for quiet enjoyment, may recover the improvements ; and that under the covenant of seizin he could not, unless the grantee was seized by virtue of the deed, and has been evicted under a title paramount. I have not entered into any ex- amination of the ancient method of proceeding under the warrantia chartcv, and the rule which obtained in such case, under the writ of cape ad vahntiam / because the covenants of warranty were then considered as real covenants binding only on the grantor and his heirs. It has, however, been urged that the introduction of the cov- enants of seizin and for quiet enjoyment were substitutes for the covenant of warranty, and that the same rule ought to follow the substituted covenants. It appears to me much more jDroper to con- sider the introduction of personal covenants in the alienation of real property, as immediately assimilating themselves to other j)ersonal covenants and contracts, and as subject to the same rules of con- struction, and the same rule of damages, whenever they are broken. If so, the covenant for quiet enjoyment was not broken until the eviction, and the rule of damages would be the property lost at that time, which would include the price paid for the land, and the value of those erections and improvements which had been added at the plaintiff's expense. It is supposed, that though the covenants of seizin and for quiet enjoyment are distinct, and regard different ob- jects, yet that where the first fails, the latter is merged in it. This principle strikes me as illogical and unfounded in authority. There are authorities (Freem. 450, pi. G12 ; 6 Yin. 426, pi. 20 ; lb. 476, pi. 4) which show that where, in a deed, a man covenants PITCHER v. LIVINGSTON. 23 that he hath a good right to convey, &c, and that the party shall quietly enjoy, one covenant goes to the title and the other to the possession. And why a person who has broken two distinct agree- ments, should protect himself from a responsibility on both, and be liable only on the least extensive one, surpasses my powers of com- prehension. A case has been mentioned as decided in the Supreme Court of Pennsylvania (4 Dal. 436), as bearing on the present ; it will be found to have been on the mere covenant of seizin, and power, &c, to convey in fee. The rule I have adopted meets that case, and is reconcilable with it, for there the covenant was broken as soon as it was made, and the damages then sustained were the consideration money and interest. Kent, Chief Justice. — The declaration in this case is upon two distinct covenants in the deed, to wit, the covenant of seizin and the covenant for quiet enjoyment ; and the verdict was taken for the plaintiff, subject to the opinion of the court as to the rule of dam- ages. We must take it for granted upon this case, and so it seems to have been understood and admitted upon the argument, that both covenants were broken, and the question then is, what is the meas- ure of damages when the two covenants are the subject of one ac- tion, and a breach of each has been duly assigned and proved ? The case of Staats v. The Executors of Ten Eyck, goes very far towards a decision of this question. That was a suit upon the same covenants, and a breach of both was admitted. The point submitted was the rule of damages, " under the covenants mentioned in the deed." The court adjudged that the rule of damages was the con- sideration money and interest ; and I observed, in giving my opinion in that case, that the covenant for quiet enjoyment could have no greater operation, as to damages, than the covenant of seizin. Mr. Justice Livingston, who also gave his opinion, was silent upon that point ; but it was a necessary consequence of the judgment of the court, that the increased value of the land could not be recovered under either of those covenants. The doctrine that the measure of damages, under the covenant for quiet enjoyment, is to be computed from the time of eviction, and to include the then value, even when the title has totally failed, and the covenant of seizin broken, cannot possibly be reconciled with that decision. I do not wish, however, to rest my opinion in this case solely upon that authority. As the question is of great importance, I am content to re-examine it at large. "What would be the rule of damages under a covenant for quiet enjoyment, if a breach of that covenant was shown, which did not 24 REAL ESTATE. amount to a breach of the covenant of seizin, or if that covenant stood alone in a deed, unaccompanied with the covenant of seizin, is not a point at present before us. If, however, it stood alone in a deed, I should think, as at present advised, that upon a total failure of title, the damages would be the same as in the covenant of seizin, and no more, for the analogy is very close between that covenant and the ancient warranty. But when the covenant for quiet enjoy- ment follows a covenant of seizin in the same deed, the intent of the instrument, taken together, appears manifestly to be, that the one covenant is merely auxiliary to the other, as the one covenant re- lates to the title, and the other refers to the future enjoyment of that title. The covenant for quiet enjoyment respects the posses- sion merely, and it would seem to be unreasonable and very incon- sistent for the plaintiff to recover under one covenant the whole value of the estate, as it was intended to be conveyed, and under another covenant in the same deed, distinct and increased damages, because he was not permitted to enjoy that estate. These covenants must be taken in connection to ascertain their import. The covenant for further assurance is one of these secondary covenants, and if the grantor had no title, and the value of the land was recovered back by the grantee, he could not be called upon in damages for further assurance. This would be very idle when it had been ascertained by the recovery under the principal covenant that he had nothing to assure. If the grantee recovers what is to be deemed, upon estab- lished principles, the value of the land, under the covenant of title, it amounts in effect to a satisfaction and extinguishment of the cov- enants relative to the possession, and the grantee cannot receive any- thing more than nominal damages under those covenants. There is no precedent to authorize any greater recovery under the covenant for quiet enjoyment than under the covenant of seizin ; and the uni- versal silence in the books on a point which so frequently gives oc- casion for litigation, is a strong argument to prove that no such rule exists as that contended for by the plaintiff. I believe it has never been the received opinion with us, that in a deed containing the usual covenants, viz. the covenant of title or seizin, and the covenant, relative to the possession, the latter covenants, in a case of no title, and consequently of the breach of the covenant of title, would be- come paramount covenants and afford a larger claim for damages. The latter construction would not only introduce a rule hitherto un- discovered in the common law of England, but a rule of great mo- ment in its immediate consequences to the community ; and I must PITCHER v. LIVINGSTON. 25 be thoroughly persuaded of the soundness of the construction, either upon authority or principle, before I can consent to adopt it. When, therefore, there is no authority for such a construction to be met with in the decisions at Westminster Hall, and it appears to be re- pugnant to the natural and reasonable interpretation of the cove- nants, as found in connection in the same deed, I must adhere to the opinion which I gave in the case of Staats v. The Executors of Ten Eyck, and which must, from a view of that case, have been also the unanimous opinion of the court. The case before us then, resolves itself into this question, What is the extent of the rule of damages on a breach of the covenant of seizin ? Three points are submitted by the case : 1. Whether the plaintiff can recover interest on the consideration paid ; 2. Whether he can recover for the increased value of the land ; and 3. Whether he can recover for his beneficial improvements. The two first points were settled in the case of Staats v. Ten Eyck, and need not again be examined. Nothing has been shown which affects the accuracy of that decision on those points, and it deserves notice as being of great weight in support of that decision, that in the States of Massachusetts and Pennsylvania the same rule of damages is established in an action for the breach of the covenant of seizin. The third point was reserved in the consideration of the former case, and no opinion expressed upon it. It, therefore, re- mains open for discussion. I must own that I never perceived any ground for a distinction as to the damages, between the rise in the value of the land and the improvements. There is no reason for such a distinction, deducible from the nature of the covenant of seizin. Improvements made upon the land were never the subject-matter of the contract of sale, any more than its gradual increase or diminution in value. The sub- ject of the contract was the land as it existed and was worth when the contract was made. The purchaser may have made the purchase under the expectation of a great rise in the value of the land, or of great improvements to be made by the application of his wealth or his labor. But such expectations must have been confined to one party only, and not have entered as an ingredient into the bargain. It was the land and its price, at the time of the sale, which the par- ties had in view, and to that subject the operation of the contract 26 REAL ESTATE. ought to be confined. The argument in favor of the value of the land, and the improvements as they exist at the time of eviction, has generally excepted cases of extraordinary increase and of very ex- pensive improvements. It seems to have been admitted that, with- out such a limitation to the doctrine, it could not be endured. But this destroys everything like a fixed rule on the subject, and places the question of damages in a most inconvenient and dangerous un- certainty. We have a striking illustration of this in the French law. The rule in France upon bona fide sales, according to Pothier (Traite du Contrat de Yente, Nos. 132 to 141), is to make the seller, on eviction of the buyer, refund not only the original price, but the in- creased value of the land, and the expense of the meliorations made. He admits, however, that the intention of the parties is to be the rule in the assessment of damages, and that, in the case of an im- mense augmentation in the price of the land, or in the value of the improvements, the seller is to answer only for the moderate damages which the parties could be supposed to have anticipated when the contract was made. It is plainly to be perceived, that there is no certainty in such a loose application of the rule, and that it leaves the damages to an arbitrary and undefined discretion, and so it ap- pears to have been understood ; for in the " Institution au Droit Francois," by M. Argou (liv. 3, c. 23), it is laid down, that " the question of damages, beyond the price paid, is with them very arbi- trary." This is not consonant to the genius of our law, nor does it recommend itself well for our adoption. On a subject of such gen- eral concern, and of such momentous interest, as the usual covenants in a conveyance of land, the standard for the computation of dam- ages, upon a failure of title (whatever that standard may be), ought, at least, to be certain and notorious. The seller and the purchaser are equally interested in having the rule fixed. I agree, that the contract is to be construed according to the intention of the parties ; but I consider that the intention of the covenant of seizin, as uni- formly expounded in the English law, is only to indemnify the grantee for the consideration paid. This was the settled rule at common law, upon the ancient warranty, of which this covenant of seizin is one of the substitutes ; and all the reasons of policy which prevent the extension of the covenant to the increased value of the land, apply equally, if not more strongly, to prevent its extension to i in provements made by the purchaser. A seller may be presumed, at all times, able to return the consideration which he actually re- ceived ; but to compel him to pay for expensive improvements, of PITCHER v. LIVINGSTON. 27 the extent of which he could have made no calculation, and for which he received no consideration, may suddenly overwhelm him and his family in irretrievable ruin. The common law never left the vendor in such a state of uncertainty ; and it made no distinction between the natural rise of the land and its increased value by build- ings or other improvements. The feoffor was still to answer only for the value of the land as it was worth when the feoffment was made. This was the amount of the decision in the Tear Book, 30 Ed. Ill, 14, b. A man had a wardship, and granted it over with warranty, and afterwards the grantee was impleaded and vouched the grantor. Now the wardship was of more value at the time of the voucher than it was at the time of the grant with warranty, by reason of other lands descending afterwards, or by buildings or otherwise, and it was held that the vouchee could take protestation of this matter when he entered into the warranty, i. e. when he was admitted to defend, instead of the original tenant. And Burton laid this down for law, that if land be better after the feoffment made, by buildings or otherwise, he who receives in value receives but accord- ing as the land was worth at the time of the feoffment, and not more. The same rule was laid down for law by Newton, J., in the Year Book, 19 H. YI, 46, a, and again in 61, a, and he says it had been so adjudged, and he refers to the decision in 30 Ed. Ill, which he said was not controverted. This rule, upon the sanction of these authorities, has been incorporated, as good law, into the Abridg- ments of Fitzherbert, Brooke and Kolle. But the case of Ballet v. Ballet (Godb. 151), in the time of James I, is a much more modern determination upon the same point. That was a case of a writ of warrantia chartce, and upon demurrer, the court held that if there be new buildings, of which the warranty was demanded, which were not at the time of the warranty made, and the deed is shown, the defendant ought not to demur, but to show the special matter, and enter into the warranty for so much as was at the time of the making of the deed, and not for the residue. Indeed, the point is too clear to admit of doubt, that the increased value of the land by buildings or other improvements, made no alteration at common law in the rule of damages ; and, for the reasons given in the former case of Staats v. Ten Eyck, it can make no alteration in the covenant of seizin, which, as to the rule of compensation, is commensurate only with the ancient warranty. I am therefore of opinion, in this case, that the sum allowed for the increased value of the land, and the sum allowed for improve- 28 REAL ESTATE. incuts, be deducted from the verdict, and that judgment be entered for the residue only. Thompson, J., and Yates, J., concurred. Judgment accordingly. So a purchaser of real estate, who enters into possession and makes improve- ments before the title is ascertained, incurs this expense at his own risk, and cannot recover it if the vendor is unable to make a good title (Worthington v. Wanington, 8 C. B. 134 [1849]). But in trespass for mesne profits against a lona fide purchaser, he should be allowed the value of permanent improvements made in good faith, to the extent of the rents and profits claimed (Jackson v. Loomis, 4 Cowen, 1G8; see also Bedell v. Shaw, 59 N. Y. 40). Rights of Parties Fixed at Commencement of Action ; Failure of Title to an Undivided Part of a Specified Tract ; Proportionate Recovery. [1809] Morris v. Phelps (5 Johns. 49). In an action on the covenant of seizin in a deed, the defendant is not allowed to give in evidence a title acquired by him subsequent to bringing the action ; but the rights of the parties must be determined according to their existence and extent at the time when the action was commenced. If A. conveys land to B., with covenant of seizin, that is, I think, an authority for the plaintiffs. I am unable to dis- tinguish it from this case. There, as here, there were two separate and independent contracts ; and I do not think, with deference to my brother Lush, that the assessment of damages against Mors le Blanch was conclusive in his action against Wilson. But sitting here we are not bound by that case, which appears to have pro- ceeded upon a mere dictum of Parke, B., in Tindal v. Bell (11 M. & W. at p. 231). I agree with my lord and my brother Keating in thinking it wrongly decided. Archibald, J. — I am of the same opinion. These costs cannot be claimed by reason of the defendants having given any actual authority to incur them. Nor were the plaintiffs compelled to incur them by reason of the defendants' default. In other words, they were not the natural and necessary consequence of that default. The contracts were wholly independent, and the damages recovered against the plaintiffs by Harding were not of necessity the same as those which the plaintiffs could recover against the defendants. The assessment in the first action could not in any shape be conclusive against the defendants. With regard to Mors le Blanch v. Wilson (Law Kep. 8 C. P. 227), I cannot see any distinction between it and the present case. My brother Lush has pointed out what he considers to be a distinction ; but I cannot see why, in that case, the damages assessed against Mors le Blanch furnished a conclusive test of those which he could recover against Wilson. There, as here, the contracts were separate and independent, and Mors le Blanch might have sued Wilson before he had been sued himself, and so have settled the question of demur- rage, just as here the plaintiffs might at once have sued the defend- ants. If, therefore, it be necessary to pronounce an opinion as to 220 CONTRACTS FOR SALE AND OTHER AGREEMENTS. Mors le Blanch v. Wilson (Law Eep. 8 C. P. 227), I should hold it open to the same objection as the decision of the court below in this case. Judgment reversed. Note. — See the recent case of Fisher v. Val de Travers Asphalte Co. L. R. 1 C. P. D. 511, which follows the foregoing case. CONTRACTS FOR SALE AND OTHER AGREEMENTS. Contract of Sale ; Damages fob non-delivery of Merchandise ; Market Yalue. [1851.] Dana v. Fiedler (12 K Y. 40 ; affirming 1 E. D. S. 4G3). In an action on a contract to recover damages for the non-delivery of goods, the plaintiff is entitled to the difference between the market value of the article contracted for on the day when it should have been delivered, and the price which he agreed to pay for it. To the amount thus ascertained interest should be added as matter of law. An investigation of the actual condition of the market is required : a hypothetical value, supposed by the jury to be the probable result of throwing on the market the supply of the article provided for by the contract, cannot be substituted for such actual market value. Where the action was for the non-delivery of 150 casks of madder, an inquiry as to the market value of madder in a quantity not less than 150 casks, on the day stipulated for its delivery, without its being shown that there was a market value for the article in such quantities, was held to be properly rejected. So a question as to the difference between the price of madder on sales as large as 150 tons, and on sales of two, three, and five tons, in the absence of facts warranting the supposition that the plaintiffs could have procured the quantity which the defendant had agreed to deliver them by a single purchase, was not proper. Where no sales were shown on the day stipulated for the delivery, a reasonable range in the inquiry as to the market value before and after that day, the extent of which is to be determined by the court, was held allowable. But where the stipulated day was the first of April, and sales were shown on the 10th and 15th of that month, no legitimate inference as to the market value prior to those sales could be drawn from a subsequent alteration in the price. An inquiry therefore as to the range of the market for three months before and after the day when the delivery was due, was too broad, and was properly excluded. DANA v. FIEDLER. 221 This was an action to recover damages for the non-delivery of one hundred and fifty casks of madder of one ton each, pursuant to the following contract : " New York, October 23d, 1849. " Bought of Ernest Fiedler, Esq., account of William P. Dana, for Fearing & Hall's acceptance, one hundred and fifty casks ' of one ton each ' best EXFF madder, 12 1-4, 6 ms. The agreement is, that it shall all be delivered on or before the first day of April next, dangers of the sea excepted. The quality to be approved by me. " By your obedient servant, "Randall H. Greene, Broker, &c." Across the face of this instrument the words, " I agree to this contract " were written in the defendant's handwriting, and signed by him. The plaintiffs proved the demand on the 1st of April, 1850, of the madder stipulated in the contract, their tender of Fearing & Hall's acceptance as agreed, and the defendant's refusal to deliver the madder. A dealer in madder called by the plaintiffs as a witness testified that he sold no madder on April 1, 1850 ; that he sold some on the 15th of that month for 15 cents a pound, and that he thought that 15£ cents per pound was the fair market value of the best EXFF madder on April 1, 1850. On cross-examination he said there was but a small quantity of madder in the market on that day. On the cross-examination of witnesses called by the plaintiffs to prove the value of madder on April 1, 1850, the following questions asked by the defendant's counsel, and having reference, as he stated, to the amount of the plaintiffs' damages, were excluded by the pre- siding judge, and the exclusion was excepted to by the defendant's counsel : " What would have been the effect of an additional supply of madder to the extent of 150 casks in the market on the 1st of April, 1850, in the market value or supposed market value of the article ? In reference to the ordinary supply in the market, is or is not 150 tons an unusually large supply ? Would or would not 150 tons constitute a large supply for the New York market at any one time ? What kind of a stock, as regards a usual or ordinary quan- tity for a single printing works, would the quantity of 150 tons be ? What kind of a stock would 150 tons be in reference to supplying the usual demand of the New York market ? " The defendant's counsel asked one of his witnesses the following question : " What was the market value of the best French madder EXFF, for a quantity as large as 150 casks on the first of April, 222 CONTRACTS FOR SALE AND OTHER AGREEMENTS. 1S50 ?" The plaintiffs' counsel objecting to the words "for a quan- tity as large as 150 casks," the presiding judge held that the inquiry as put might be answered, if it were shown that there was a market value for the article in such quantities, saying that the question was what it would have cost the plaintiffs to buy the quantity on the day named, not what it could have been sold for by the defendant. To this ruling the defendant's counsel excepted. The witness then testified that he did not believe that so much as 150 tons could have been sold in the market in one day, and that there was a difference in the price of the article when sold in small quantities and in lots as large as 150 tons. The defendant's counsel then asked, " What is the usual differ- ence in the price of madder on sales of quantities as large as 150 tons, and sales of two, three, or five tons ? " The plaintiffs' counsel objected to the question ; the objection was sustained, and the de- fendant's counsel excepted to the decision. The witness further testified that the market price of madder on the 1st day of April, 1850, at wholesale for cash, was from 13£ to 14 cents a pound. The defendant's counsel then asked, the witness in what quantities at a single sale would 13£ to 14 cents have been the fair market value on that day. This was excluded on the plaintiffs' objection, and the defendant excepted. One of the plaintiffs' witnesses, who was a dealer in madder, hav- ing testified that he did not know the price of the article on the 1st of April, 1850 ; that sales were made about the middle of April at 15£ cents a pound, but that he did not know that the price had risen from April 1st to April 15th, the defendant's counsel asked, him this question : " What was the market value of madder for a period of three months before and after the 1st of April, 1850?" On the objection of the plaintiff's counsel the question was excluded, and the defendant's counsel excepted. The presiding judge charged the jury that the rule of damages was the difference between the market value of the article contracted for on the day when it should have been delivered, and the price which Dana agreed to pay for it. That in ascertaining this differ- ence, they should take into view the fact that the purchase was at six months, and that the most of the prices testified to, were prices of the article on a credit for the periods named by the witnesses. Having, by the proper allowances for credit, ascertained such differ- ence of value, the plaintiffs, if they recovered, were entitled to in- terest thereon from the maturity of their contract. The defendant's counsel excepted to so much of the charge as allowed interest on the difference in value. DANA v. FIEDLER. 223 The jury found a verdict for the plaintiffs for $9,750 difference in value, with interest thereon for seven months and a half. On appeal from the judgment entered on the verdict the general term of the Court of Common Pleas held that there was error in the charge as to interest, and that the jury should have been instructed to allow interest or not, in their discretion, but allowed the judg- ment to stand for the amount of damages and costs on condition that the plaintiffs remitted the interest, which they did. The defendant thereupon appealed to the Court of Appeals of the State of New York. Johnson, J., after deciding a question of evidence, proceeded as follows :— The next question to be considered relates to the exclusion of questions offered to be put by the defendant as bearing upon the measure of damages. The rule of damages laid down in the charge was, that the plaintiffs were entitled to the difference between the market value of the article contracted for, on the day it should have been delivered, and the price which the plaintiffs agreed to pay for it. To this there was no exception, and it is now not affirmed to be incorrect. The questions excluded were put in various forms, but their admissibility is urged upon the ground that, in ascertaining the mar- ket value of the madder, the jury were to consider how the plaintiffs could have disposed of the madder in question if it had been deliv- ered to them. Accordingly, inquiries were made as to the probable effect on the market price of an additional supply of 150 casks - whether a quantity of 150 tons was not a large supply to the market ; in reference to the amount ordinarily in market ; and whether the same quantity would not be a very large supply for a single printing works. The evident object of all these inquiries was to show that, if the defendant had performed, and the plaintiffs had desired to sell the whole quantity, the market price would have been lowered by throwing so large a quantity at once upon the market. A suffi- cient answer to all these exceptions is, that they are founded upon an attempt to substitute a hypothetical market value for the actual market value. They call upon the jury to speculate as to the conse- quences which would have resulted to the plaintiffs if the defendant had performed his contract. The rule of damages was correctly laid down by the court (Clark v. Pinney, 7 Cow. 681 ; Dey v. Dox, 9 Wend. 129 ; Davis v. Shields, 21 Wend. 322) ; and the market value of the article on the day of delivery, which that rule fixes as the test, requires an investigation of the actual condition of the market, and does not warrant the consideration of the conjectural consequences of a state of things which did not exist. 224 CONTRACTS FOR SALE AND OTHER AGREEMENTS. The principle on which the rule rests is the indemnification of the injured party for the injury which he has sustained. In a suit by the vendor against the vendee for non-acceptance of the articles sold, in order to give him a complete indemnity, he must recover the difference between the agreed price and that at which he could sell on the day when the vendee was bound to receive and pay for the thing bought. So, on the other hand, in a suit by the vendee against the vendor for non-delivery, his complete indemnity is to receive that sum which, with the price he had agreed to pay, would enable him to buy the article which the vendor had failed to deliver. The value in the market on the day forms the readiest and most direct method of ascertaining the measure of this indemnity in both cases, and accordingly, where a market value for the article exists, the law has adopted that standard. Some other rulings of the court, in respect to the rejection of questions put by the defendant's counsel, are to be considered. The first was an inquiry as to the market value of madder on the day when, by the contract, it should have been delivered, in as large a quantity as 150 casks. This inquiry was rejected, unless it was first shown that there was a market value for the article in such quanti- ties. The limitation thus imposed by the court was correct, for otherwise the question only called upon the witness to speculate upon the probable consequences of attempting to buy or sell such a quantity upon the day when the delivery ought to have been made. If admitted, it would have brought to the consideration of the jury the same question we have already concluded they were not to pass upon. It moreover called for no matter of fact within his knowl- edge, but only for his judgment upon a question as to which, if a judgment was necessary to be formed by anybody, the jury were the proper tribunal and were competent to form it. Another question alluded to was asked in these terms : " What is the difference in the price of madder on sales as large as 150 tons, and sales of two, three or five tons ? " This question called upon the witness for some aver- age estimate to be formed by him as to the difference in price spoken of, and not for facts lying within his knowledge, and was on that account properly excluded. ISTor do I think it was proper, by way of founding an argument upon the answer sought for, that the plaintiffs should be limited to such a price as could be procured for the whole quantity of 150 tons in a single sale. No facts were in evidence to warrant the supposition that the plaintiffs could have procured the quantity which the defendant had agreed to deliver to them, by a single purchase. In the absence of such facts, at least, DANA v. FIEDLER. 225 the inquiry was in that aspect irrelevant. In every other aspect it only presented the same question which, upon this branch of the case, was first considered. Another question arises upon the exclu- sion of an inquiry by the defendant's counsel as to the range of the market value of madder, for a period of three months before and after the day when the delivery was due. As no sales were shown on the precise day, it was necessary to have recourse to sales before and after the day, and for that inquiry a reasonable range in point of time was allowable ; but, in some degree, the extent of time which shall be included in such an inquiry must rest in the discretion of the court which tries the cause. Sales were shown in this case on the 10th and 15th of April. From a subsequent alteration in the price, no legitimate inference could be drawn as to the market value prior to those sales ; and the question put was too broad in its terms, and embraced too great a period of time, to entitle the defendant to insist, as matter of right, upon its being allowed to be put. Another ground of objection to the judgment is, that the general term of the Common Pleas, having decided that the judge at the trial erred in instructing the jury that interest was to be recovered as part of the damages upon the amount of difference between the con- tract price and the market value, did not grant a new trial absolutely, but only in the event that the plaintiffs should refuse to strike out the amount of interest which had been separately assessed by the jury, and in case of their consent, denied a new trial and awarded costs to them. I think the decision at the trial was correct upon principle. In- terest is a necessary item in the estimate of damages in this class of cases. The party is entitled on the day of performance to the prop- erty agreed to be delivered ; if it is not delivered, the law gives, as the measure of compensation then due, the difference between the contract and market prices. If he is not also entitled to interest from that time as matter of law, this contradictory result follows, that while an indemnity is professedly given, the law adopts such a mode of ascertaining its amount, that the longer a party is delayed in obtaining it, the greater shall its inadequacy become. It is how- ever conceded to be law, that in these cases the jury may give inter- est by way of damages, in their discretion. jSTow, in all cases, unless this be an exception, the measure of damages in an action upon a contract relating to money or property is a question of law, and does not at all rest in the discretion of the jury. If the giving or refus- ing interest rests in discretion, the law, to be consistent, should fur- nish some legitimate means of influencing its exercise by evidence, 15 226 CONTRACTS FOR SALE AND OTHER AGREEMENTS. as by showing that the party in fault has failed to perform, either willfully or by mere accident, and without any moral misconduct. All such considerations are constantly excluded from a jury, and they are properly told that in such an action their duty is to inquire whether a breach of the contract has happened, not what motives induced the breach. That by law a j>arty is to have the difference between the con- tract price and the market price, in order that he may be indemni- fied, and because that rule affords the measure of his injury when it occurred ; that he may not as matter of law recover interest, which is necessary to a complete indemnity ; that nevertheless the jury may, in their discretion, give him a complete indemnity, by includ- ing the amount of interest in their estimate of his damages ; but that he may not give any evidence to influence their discretion, pre- sents a series of propositions, some of which cannot be law. The case of Tan Kensselaer v. Jewett (2 N. Y. 141) establishes a prin- ciple broad enough to include this case, and has freed the law from this as well as other apparent inconsistencies in which it was sup- posed to have become involved. The right to interest, in actions upon contract, depends not upon discretion but upon legal right, and in actions like the present is as much a part of the indemnity to which the party is entitled as the difference between the market value and the contract price. If, therefore, the general term com- mitted any error, it is not one of which the defendant can complain, as it was in his favor, and deprived the plaintiffs of part of the relief to which they were by law entitled. The judgment should be affirmed. Breach of Parol Contract to Cultivate Farm ; Profits ; Bad Faith. SUPREME COURT, PENNSYLVANIA. [1859.] Hoy v. Gronoble (34 Perm. St. 9). In an action to recover damages for the breach of a parol contract, by which the defend- ant engaged to employ the plaintiff to cultivate a farm upon shares, the proper measure of damages is the profit which the plaintiff would have made on the farm, if the contract had not been violated. But the plaintiff cannot, in addition, recover damages for the violation of faith on the part of the defendant. HOY v. GRONOBLE. 227 Error to the Common Pleas of Centre county. This was an action of assumpsit by Philip Gronoble against John Hoy, to recover damages for the breach of a parol contract, whereby the defendant engaged to employ the plaintiff to cultivate a farm upon shares. On the trial, the court below (Buknside, P. J.) instructed the jury, that if they found there was a breach of contract on the part of the defendant, the plaintiff's damages were to be measured by what he could have made on the farm ; and that, in addition, they might allow him damages for violation of faith. To this charge the defendant excepted ; and a verdict and judg- ment having been rendered for the plaintiff for $250, the defend- ant removed the cause to this court, and here assigned the same for error. The opinion of the court was delivered by Strong, J. — The plaintiff below brought suit to recover damages for a breach of a parol contract, by which the defendant engaged to employ him to cultivate a farm upon shares. The only questions raised in this court relate to the proper measure of damages. The plaintiff having, through the alleged default of the defendant, failed in obtaining the employment, the learned judge of the Common Pleas instructed the jury that his damages were to be measured by what he could have made on the farm, and that besides these, they might allow him damages for violation of faith. This instruction, it is contended, was erroneous. There are few subjects more difficult than the proper rule by which damages are to be estimated. It is often said that in actions founded upon contracts, the rule is compensation. But this practic- ally amounts to very little. What is compensation ? In many con- tracts, the parties have themselves fixed the measure. In many others, the contract furnishes no standard, and it is impossible to prescribe any general rule which shall in all cases give to a plaintiff a precise equivalent for what he would have enjoyed if the contract had not been violated. "Without attempting to deduce from adjudi- cated cases any rule of universal application, it may suffice, for the present, to refer to a few principles that seem to be supported by the better authorities. While it is well settled that a jury are not at liberty to allow mere speculative damages, yet there are cases in which a plaintiff has been held entitled to what he would have made had the contract been fulfilled : I mean, to what he would have made immediately out of the contract. The loss of such profits is not consequential, in the sense in 228 CONTRACTS FOR SALE AND OTHER AGREEMENTS. which consequential damages are sometimes said to be too remote. They are in the immediate contemplation of the parties when the contract is made. Thus, in contracts for the sale and delivery of goods at a designated time or place, the damages are measured by the price of the goods on the day named, or at the place specified, if there be a failure on the part of the vendor. This is, in effect, making him responsible for profits. This subject has received a very thorough discussion in New York, in Masterton v. The Mayor of Brooklyn (7 Hill, 62). That was a case in which the plaintiffs had agreed to furnish marble for the City Hall of Brooklyn, for which the defendants agreed to pay as the work progressed. After a por- tion of the marble had been delivered, the defendants refused to re- ceive any more, and the plaintiffs brought covenant for a breach of the contract. They were allowed to recover the profits they would have made from the actual performance of the contract. The court, while denying the right of the plaintiffs to remote and contingent damages, or to profits of collateral enterprises, in which they might have been induced to engage on the faith of the contract with the defendants, remarked that, " profits or advantages, which are the di- rect and immediate fruits of the contract entered into between the parties, stand upon a different footing. They are part and parcel of the contract itself, entering into and constituting a portion of its very elements ; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the enjoyment of any other stipulation." This is also the doctrine of Fox v. Harding (7 Cush. 516) ; Kailroad Company v. Howard (13 How. 307) ; Cook v. The Commissioners of Hamilton (6 McLean, 612) ; Richardson v. Mellish (2 Bingh. 229). So also it is held in this State, that in an action for a breach of a covenant to sell land, a plaintiff is entitled to recover damages for the loss of his bargain, beyond the money paid with in- terest, unless the breach of the covenant has not been in consequence of the fraud or bad faith of the vendor. Bitner v. Brough, (1 Jones, 127). Indeed, the principle does not appear to have been denied. The contest in the reported cases has been, whether the loss of the bargain is not a proper subject to enter into the estimate of damages, even where there was no fraud or breach of faith. In McClowry v. Croghan's Administrator (7 Casey, 22), the measure of damages for the breach of a contract to lease, was declared to be the same as for a breach of a contract to sell ; as indeed it must be, for a lease is but a partial sale, the rent being the consideration. We cannot say, therefore, that the jury were misled in this case by being told that the damages of the plaintiff would be measured by what he could HOY v. GRONOBLE. 229 have made on the farm. This was but another mode of saying that he was entitled to the value of his bargain. The worth of that was what it would have yielded, deducting, of course, the value of the labor necessary to be bestowed. But we think there was error in charging the jury that " besides allowing these damages " (what the plaintiff could have made on the farm), they might also allow damages " for violation of faith." This is something more than compensation. It is an allowance of vindic- tive damages, which is not permitted in actions for a breach of con- tract, with very rare exceptions, perhaps in none, except the single case of breach of promise of marriage. The violation of most con- tracts involves a breach of faith. If a promisor must respond in damages for that, as well as for his violation of his promise, he must make duplicate satisfaction. The learned judge was led into the mistake by a dictum of Judge Rogers, in Holler v. Weiner (3 Har- ris, 242). In that case, there was no question raised respecting the constituents of the damages. The contest was in regard to the plaintiff's right to recover any particular damage which he had suf- fered. The doubt was whether there was any evidence of any dam- age. Judge Rogers, in delivering the opinion, after having shown what was the contract and how it had been violated, remarked, " This is an obvious wrong, for which the plaintiff is entitled to damages, as well for the breach of the contract as for the violation of faith." To hold that it was intended by this to warrant the re- covery of damages for breach of faith, in addition to those which result from violation of the contract, would be a perversion of the meaning of the judge. His only purpose was to show that some damages were recoverable, and the ground was either breach of the contract, or its synonym — violation of faith. The case, therefore, does not sustain the instruction which was given to the jury in the present action. The judgment is reversed, and a venire de novo awarded. 230 CONTRACTS FOR SALE AND OTHER AGREEMENTS. Special Contract ; Refusal of Vendee to accept Goods. SUPREME COURT, NEW HAMPSHIRE. [1870.] Gordon v. Norris (49 K". H. 370). The measure of damages in an action for goods bargained and sold is the contract price for the goods. When the vendee refuses to receive and pay for ordinary goods, wares and merchandise, which he has contracted to purchase, the measure of damages which the vendor is entitled to recover, is not ordinarily the contract price of the goods, but the differ- ence between the contract price and the market price or value of the same goods at the time when the contract was broken. But when an artist prepares a statue or a picture of a particular person, to order, or a mechanic makes a specific article in his line, to order, and after a particular measure, pattern or style, or for a particular use or purpose, when he has fully performed his part of the contract and tendered or offered to deliver the article thus manufactured according to contract, and the vendee refuses to receive and pay for the same, he may recover as damages in an action against the vendee for breach of the contract, the full contract price of the manufactured article. But in such case, or in the case of an ordinary contract for the purchase and sale of goods and merchandise, if the vendee refuses to accept the property, the vendor may, if he choose, after notice to the vendee, sell the property at auction, and recover of the vendee the difference between the contract price and the price for which the goods were sold. Assumpsit, by Nathaniel Gordon against John L. Norris and George B. Neal, on account annexed, and for goods sold and deliv- ered and goods bargained and sold, with a special count for not tak- ing and paying for a quantity of hay alleged to have been sold by the plaintiff to the defendants, on June 5th, 1867, at $38 per ton.' The suit was brought January 30th, 1868, to recover the price of twenty-seven tons and six hundred pounds of hay sold, after deduct- ing the sum of $500, advanced towards it by the defendants. The plaintiff's case was, that he sold to the defendants this hay, then in his barn, the price to be paid in advance, and the hay then to be hauled by plaintiff, and delivered at the Kingston depot, about two miles from the barn. The defendants contended that they pur- chased only the good English hay, and that much of the plaintiff's hay was not of that quality. It appeared that the bargain was made June 5th, 1867, when the defendants paid towards the hay $500, and soon after the price of hay fell considerably ; none of it was deliv- ered, the parties differing as to what hay was sold, and about paying in advance ; and on July 30th, 1867, they entered into an agreement under their hands and seals, reciting the sale and purchase of the GORDON v. NORRIS. 231 hay, and that the parties had agreed upon Winthrop H. Dudley, of Brentwood, to assort the hay, and saying that he "is hereby re- quested to separate the swale hay from the good hay, as the said Norris and Neal are to have the good hay," and the parties will pay him for his services. Either party may read this agreement at the hearing, and also the declaration. Mr. Dudley made no assorting of the hay until April 7th, 1868, when he made his report, that there were 16 tons 1301 lbs. of good hay, and 11 tons 168 lbs. of mixed or swale hay. The assorting was made with the assent of the parties, although the plaintiff objected that it was not done according to agreement, which was to separate it into good hay and swale hay, and not mixed or sivale hay. At the January term, 1869, this action was. referred, and a report made by the referee at January term, 1870, allowing the plaintiff the full price of all the hay at $38 per ton with interest, and thereupon the defendants moved to set aside the report. It appears that the referee went upon the ground that plaintiff ought to recover the full price of the hay, and that the title to it would thereupon vest in the defendants ; finding that defendants examined it before they bought, and knew that it was mixed hay, and that the bargain was for the whole of it at $38 per ton, and he also regarded the agreement of July 30th, 1867, as not carried out, and as not determining definitely that defendants were to take only the good hay, but only as evidence bearing upon the question what was the original contract, which he found to be for the whole hay at $38 per ton. If the court should be of the opinion that the measure of damages would be, under the circumstances here, only the differ- ence between the contract price and the actual value of the hay when it ought to have been taken and paid for, and that the title to the hay would not vest in the defendants, the report is to be set aside, and the case recommitted ; and so if the court should be of the opinion that the agreement of July 30th, 1867, is to be regarded as determining that the purchase was only of the good hay. If the decision should be the other way upon all these points, there is to be judgment on the report. These questions were reserved for the whole court. Sargent, J., after holding that the action could not be main- tained for goods sold, but that the referee's award must be regarded as based on the special count in the writ, proceeded as follows : The remaining question is as to the rule of damages that the referee should have adopted, whether in finding upon the special contract as we assume he did, he should have allowed the plaintiff, as dam- 232 CONTRACTS FOR SALE AND OTHER AGREEMENTS. ages, the whole of the contract price, or only the difference between the contract price and the market price at the time the contract was broken. Sedgwick, in his work on Damages (5th ed. page 312), says : " When the vendee is sued for non-performance of the contract on his part, in not paying the contract price, if the goods had been deliv- ered, the measure of damages is of course the price named in the agreement. But if their possession has not been changed, it has been doubted whether the rule of damages is the price itself, or only the difference between the contract price and the value of the article at the time fixed for its delivery. It seems to be well settled in such cases, that the vendor can resell them if he see fit, and charge the vendee with the difference between the contract price and that real- ized at the sale. " But if the vendor does not pursue this course, and without resell- ing the goods, sues the vendee for his breach of contract, the ques- tion arises, which we have already stated, whether the vendor can recover the contract price or only the difference between that price and the value of the goods which remain in the vendor's hands, and the rule appears to be that the vendor can recover the contract price in full." He cites as an authority, Graham v. Jackson (14 East, 498), which was upon a special contract to purchase three hundred tons of Cam- peachy logwood at 35 pounds per ton, to be of real merchantable quality, and such as might be determined to be otherwise by impar- tial judges to be rejected. Under this contract the plaintiff, the vendor, had shipped the three hundred tons of logwood from New York, and tendered it to the purchaser in England. It was held that under that contract and the circumstances of the case, the vendee was bound to take so much of the wood tendered as turned out to be of the sort described, at the contract price, though it turned out? upon examination, that sixteen out of the three hundred tons was of a different and inferior quality. But this was a construction given to that particular contract, and not the statement of any general principle, to be applied to all cases. He then says, " the question has been considered in New York and decided in the same way. He cites, Bement v. Smith (15 Wend. 493). But an examination of that case shows that the decision is put upon the express grounds that what the plaintiff did in the case amounted to a delivery of the property. The declaration was for work and labor and goods sold, and also upon special counts, setting forth the contract and alleging a delivery of the goods by plaintiff. This cannot be an authority for the doctrine claimed. GORDON v. NORRIS. 233 But there is a distinction between that case and the ordinary cases of goods sold and delivered, which is alluded to in the opinion, viz., the distinction between a contract to sell goods then in exist- ence, and an agreement to furnish materials and manufacture an article in a particular way, and according to order, which is not yet in existence. The latter is said not to be so much a contract for the sale and purchase of goods, as a contract for work and labor merely, and it is held that in that class of cases the statute of frauds does not apply when there is nothing paid and no actual delivery. In a large class of cases of that kind, where the plaintiff has made surgical instruments of a particular kind, and according to order, for the defendant who had patented the same, and which would of course be worthless in the hands of the plaintiff, or where a tailor had made a suit of clothes to order, of a particular description, and for a particular measure, or a shoemaker had made boots or shoes to order, and of a particular size and pattern, or the carriage maker had made a carriage in the same way, of a particular style and pattern, or the artist has painted a portrait of an individual to order, or an engineer has constructed an engine according to order for a particu- lar use, &c, though the mechanic or artist may sell the goods, if he choose, and recover of the defendant the difference between the con- tract price and the price for which the article was sold, yet it is held that he may, if he choose, when he has fully performed his part of the contract and tendered the article thus manufactured to the de- fendant, or offered it at the place appointed, recover the full value of the article, and leave the defendant to sell or use or dispose of the article at his pleasure, and for the reason, in addition to that already stated, that the article thus manufactured for a particular person, or according to a particular pattern, or for a particular use, may be of comparatively little value to anybody else, or for any other use or purpose, but this class of cases are recognized as exceptions to the general rule, which is to be applied in the sale of ordinary goods or merchandise which have a fixed market value (Allen v. Jarvis, 20 Conn. 38 ; Bement v. Smith, 15 Wend. 493, and cases ; Ballantine v. Robinson, 26 Penn. 177). Mr. Sedgwick also cites a case from Massachusetts as sustaining his view (Thompson v. Algier, 12 Met. 428). But an examination of the case shows that it was a contract for the purchase and sale of railway shares, and that there had been a part payment for the same, and that while the contract was in force, the plaintiff had actually transferred the stock on the books of the company to the vendee, so that the plaintiff had actually lost his title to the shares, and upon 231 CONTRACTS FOR SALE AND OTHER AGREEMENTS. this special ground the court held that plaintiff was entitled to re- cover the contract price. But in that case it is stated distinctly that the general rule in that State, is, that in contracts for the sale of per- sonal property, the defendant would be liable to pay the difference between the agreed price and the market value of the goods on the day of delivery. Dewey, J., in the opinion (page 413), says, that in ordinary cases this rule would do entire justice to the vendor. He would retain the property as fully in his hands as before, and a payment of the difference between the market price and the price stipulated would fully indemnify him. And that in that case, if the defendant had repudiated the contract before any transfer of stock had been made to him on the books of the corporation, that rule might have been properly applied here. This case, then, stands upon special grounds, but it states fully and plainly what the general rule is understood to be in that State, and is by no means an authority for the doctrine which the author seeks to establish. Mr. Sedgwick admits that where the plaintiff has not the goods that he agrees to sell, but makes a side contract with another to fur- nish them, he will only be allowed to recover the difference between the original contract price and the market price at the time of the offer, with interest. He then cites some authorities where goods were sold and delivered, to be paid for by bill or note payable at a future day, and the bill or note is not given. There, though the vendor cannot maintain assumpsit for the goods sold and delivered, until the term of credit has expired, yet he may sue immediately for the breach of the special agreement, and may recover as damages the whole value of the goods. But that does not militate against the general rule, because it comes under another general rule, that when the goods are sold and delivered, the contract price is the measure of damages. We have seen that the general rule in Massachusetts, in actions for the non-acceptance of property sold or contracted for, is the dif- ference between the price agreed to be paid for it and its real value or market price (Thompson v. Algier, 12 Met. 428, 443). Such is distinctly stated to be the general rule in Connecticut, in Allen v. Jarvis (20 Conn. 38) ; and in Pennsylvania, Girard v. Tag- gart (5 Serg. & K. 19) ; Ballantine v. Eobinson (46 Penn. 177) ; and in Wisconsin, Ganson v. Madigan (13 Wis. 67) ; and in New York, Dana v. Fiedler (12 N. Y. 41) ; Orr v. Bigelow (14 K Y. 556) ; Dey v. Dox (9 Wend. 129) ; Davis v. Shields (24 Wend. 322) ; Stanton v. Small (3 Sandf. 230) ; Mallory v. Lord (29 Barb. 454, 465) ; and in GORDON v. KORRIS. 235 Missouri, Whittemore v. Coates (14 Mo. 9) ; also, in Kentucky, Wil- liams v. Jones (1 Bush, 621, 627), in which Hardin, J., delivering the opinion, says : " The true measure of damages for the failure to receive and pay for property contracted for is not the contract price, but it is the difference between the contract price and the actual value of the property when it should have been received under the contract." So in a contract for the sale of railway shares. The rule of dam- ages, which either party is entitled to recover, is the difference be- tween the contract price and the market price at the time of deliv- ery (Red. on Rail. [ed. of 1858], 51 ; 1 Red. on Rail. 132, and cases cited). There is some diversity prevailing in regard to the rule of dam- ages for breach of a contract for the sale and purchase of lands. In New York, it is held that in an action against the purchaser for not receiving a deed and paying for lands bargained for, the damages are the whole value of the land, though the purchaser gets no title to it (Richards v. Eddick, 17 Barb. 260). But such is not the rule in the English courts (Laird v. Prince, 7 Mees. & W. 474, and cases cited). Neither is such the rule in Mas- sachusetts, for though there are dicta favoring the New York rule — in Sears v. Boston (16 Pick. 357) ; in Gile v. Bicknell (2 Cush. 358) ; and in Jacobs v. Railroad (8 Cush. 223) — yet the question is directly raised, considered and decided in Old Colony Railroad v. Evans (6 Gray, 25), in which it is held that " upon more full con- sideration of the question of the measure of damages in an action at law, when the defendant has refused to receive the deed tendered him, the court are of opinion that the proper rule of damages in such a case is the difference between the price agreed to be paid for the land, and the salable value of the land at the time the contract was broken. In this State we find it settled, in Stevens v. Lyford (7 N. II. 360), that upon a breach of a contract for the delivery of lumber, the purchaser was entitled to recover the difference between the value of the lumber at the place where it was to be delivered, and the sum to be paid. And in Rand v. Railroad (40 N. H. 79), it is assumed that the same rule would apply to the vendor, and that the proper rule of damages in case the subscriber of railroad stock refuses to pay for and receive the same, when no certificate of the stock has been issued, would be the difference between the price at which he agreed to take the stock, and its actual or market value at the date of the breach of the contract. 236 CONTRACTS FOR SALE AND OTHER AGREEMENTS. And in McKean v. Turner (45 K H. 203, 205), Bellows, J., in commenting upon Rand v. Railroad (stipra), says : " There the claim was upon the contract of the trustee to take and pay for some shares in the capital stock of the corporation, which shares had never been delivered or accepted. The measure of damages, therefore, was the difference between the contract price and the actual value of the stock at the time of the breach of the contract, and ordinarily the market value of stock can readily be determined." In the case before us, we understand from the case that the ref- eree found that the property had not passed to the defendant. It was not a specific article of property that had been manufactured to order for the defendant, but the property in question was hay, which had a market value easily ascertainable. Upon the finding of the referee, as we understand it, this property remained not only in the possession of the plaintiff, but his property. "We think in such a case, it would be in accordance with the great weight of authority, besides being reasonable and just in itself, to hold that the rule in assessing plaintiff's damages, would be to give him the difference between the contract price of the hay and its market value, at the time when the defendants should have received and paid for it ; taking into account, of course, the fact that by the contract the plaintiff was to draw the hay to the depot to be deliv- ered, which was included in the contract price. According to the provisions of the case, the report is set aside and the Cause recommitted to the referee. Contract of Sale; Damages not Allowed fob Injurious Conse- quences which the Plaintiff might have Avoided. SUPREME COURT, MAINE. [1830.] Miller v. Mariner's Church (7 Greenl. 51). If the party entitled to the benefit of a contract, can protect himself from a loss arising from the breach thereof, at a trifling expense, or with reasonable exertions, it is his duty to do it. And he can charge the delinquent party with such damages only as, with reasonable endeavors and expense, he could not prevent. This was an action of assumpsit, brought under a special resolve of the legislature, passed March 5, 1829, for the price of a quantity MILLER v. MARINER'S CHURCH. 237 of hammered stone, the defendants having leave to claim in offset the amount of damages occasioned by any breach of the contract. Several witnesses on the part of the defendants positively testi- fied that the late warden of the State prison agreed that the stones, which he contracted to furnish for the use of the defendants, should be delivered at Portland by the fifteenth day of June, 1828. But the late warden as positively testified that he did not and would not agree absolutely that they should be delivered at that time ; but promised that he would endeavor and do the best he could to cause them to be delivered as early as that. The stones not having been wholly furnished till November fol- lowing, the counsel for the defendants insisted that, from the evi- dence adduced, they were entitled to damages, whether the contract was found to be such as was testified by their witnesses, or by the late warden. If according to the former, then they were entitled to large damages arising from loss of labor, loss of rents, and the de- fective character of the work. If by the latter, they still contended that the contract had been violated, but claimed damages upon a basi& less definite and extensive. The judge instructed the jury that if they believed that the con- tract was such as was testified by the defendants' witnesses, they ought to allow to the defendants the whole or such parts of their claim for damages as the parties, bestowing proper attention upon the subject, at the time of making the contract, might have contem- plated as likely to result from its non-fulfillment. At the request of the counsel for the plaintiff, he further instructed them that if the contract was for delivery of the stones by a fixed time, the defend- ants would, in that case, be entitled to no more damages than they had or would have sustained, if, when the time of delivery had ex- pired, they had stopped the receiving of any more from the warden, and had proceeded, with due diligence, to furnish themselves else- where ; and that, had the materials been bricks or boards, which could readily have been procured at short notice, in the place where their building was being erected, the measure of damages would have been to estimate what would have been sufficient for the neces- sary delay and additional price, if any. The counsel for the defend- ants objecting to this instruction, the judge added, at their request, that if the defendants were prevented or deterred, by the conduct or assurances of the plaintiff after the breach of the contract, from stopping the further receipt of stones from him, and proceeding to supply themselves elsewhere, there ought to be no mitigation of damages upon the ground suggested by the counsel for the plaintiff. 238 CONTRACTS FOR SALE AND OTHER AGREEMENTS. He further proceeded to instruct the jury that, from the encourage- ment which the defendants received from the jjlaintiff, after the al- leged breach of the contract, that the stones should be furnished with all possible dispatch, and the time which would necessarily be required to prepare them, if they had then ordered them from an- other quarter, it did not seem that common prudence, or a due re- gard to their interests, or the interest of the plaintiff, required them to have taken any other course than they did take. The jury, under these instructions, allowed certain damages to the defendants, and returned a verdict for the plaintiff for the balance of his account ; which was taken subject to the opinion of the court upon the correctness of the instructions given, and the admissibility of the parol testimony received from Mr. Cutter. Weston, J. — By the common law, the estimation of damages is within the province of the jury. Courts may, and often do, in cases of manifest excess, interfere by granting a new trial. Where the injury affects the personal feelings, this is rarely done. And in cases of fraud or wanton trespass, considerable latitude has been al- lowed. But where there exists a fixed standard or scale by which damages may be calculated, a jury will not be permitted to depart from it. Thus assumpsit, instead of debt, is now the remedy uni- versally resorted to upon simple contracts for the payment of money. By the form of the action, damages are sought for the non-perform- ance ; but the measure of damages is the debt due, with interest for the detention, for a longer or shorter period, according to circum- stances. In other cases, arising from the non-performance of agree- ments, the standard is less definite ; and necessarily attended with greater uncertainty. In general, the delinquent party is holden to make good the loss occasioned by his delinquency. But his liability is limited to direct damages, which, according to the nature of the subject, may be contemplated or presumed to result from his failure. Remote or speculative damages, although susceptible of proof, and deducible from the non-performance, are not allowed. And if the party injured has it in his power to take measures by which his loss may be less aggravated, this will be expected of him. Thus in a contract of assurance, where the assured may be entitled to recover for a total loss, he, or the master employed by him, be- comes the agent of the assurer to save and turn to the best account such of the property assured as can be preserved. The purchaser of perishable goods at auction fails to complete his contract. What shall be done % Shall the auctioneer leave the goods to perish, and throw the entire loss upon the purchaser ? That MILLER v. MARINER'S CHURCH. 230 would be to aggravate it unreasonably and unnecessarily. It is his duty to sell them a second time, and if they bring less, he may re- cover the difference, with commissions and other expenses of resale, from the first purchaser. If the party entitled to the benefit of a contract can protect him- self from a loss arising from a breach, at a trifling expense, or with reasonable exertions, he fails in social duty, if he omits to do so, re- gardless of the increased amount of damages for which he may intend to hold the other contracting party liable. Qui non prohibet, cum proh ibere possit, jubet. And he who has it in his power to prevent an injury to his neighbor, and does not exercise it, is often in a moral, if not in a legal point of view, accountable for it. The law will not permit him to throw a loss, resulting from a damage to him- self, upon another, arising from causes for which the latter may be responsible, which the party sustaining the damage might by com- mon prudence have prevented. For example, a party contracts for a quantity of bi'icks to build a house, to be delivered at a given time, and engages masons and carpenters to go on with the work. The bricks are not delivered. If other bricks of an equal quality, and for the stipulated price, can be at once purchased on the spot, it would be unreasonable, by neglecting to make the purchase, to claim and receive of the delinquent party damages for the workmen and the amount of rent which might be obtained for the house, if it had been built. The party who is not chargeable with a violation of his con- tract, should do the best he can in such cases, and for any unavoid- able loss occasioned by the failure of the other, he is justly entitled to a liberal and complete indemnity. The instructions of the judge to the jury objected to by the counsel for the defendants at the trial, were in conformity with these principles, and in the opinion of the court not liable to legal objection. Judgment on the verdict. Note. — See Friedlander v. Pugh, Slocomb & Co. 43 Miss. 111. 240 CONTRACTS FOR SALE AND OTHER AGREEMENTS. Action for price of Steamboat ; Recoupment ; Profits. SUPREME COURT, NEW YORK. [1839.] Blanchard v. Ely AND OTHERS (21 Wend. 342). In an action for the recovery of the price stipulated for the building of a steamboat, the plaintiff is entitled to recover the full amount, without any deduction by way of recoupment of damages to the defendant in consequence of damages sustained by him for the loss of trips and the profits resulting therefrom occasioned by defects in the boat or its machinery. The defendant in such case is, however, entitled to an allowance for moneys necessarily expended by him in supplying defects in the vessel or its machinery, so as to make it conform to the plan specified in the contract ; and where it is manifest that an allowance on that account ought to have been made, and was not made by the jury, a new trial will be granted. The courts of common law seem inclined to adopt the rules of the civil law in respect to damages for the breach of contracts relating to personal property, which is that the party entitled to claim performance may claim damages for the non-performance in respect to the particular thing, the object of the contract ; but not such as may have been accidentally occasioned thereby in respect to his own affairs — as, for instance, a lessee who is evicted by a title paramount may claim the expense of removal and indemnity for advanced rents, but is not entitled to recover for loss of custom estab- lished whilst residing in the house. It is no bar to a recovery that one of several defendants has become possessed of the right of action prosecuted against him and his co-defendants, unless his name appears upon the record both as plaintiff and defendant. The doctrine of damages generally considered. This was an action of debt, tried at the New York circuit in October, 1837, before the Hon. Ogden Edwards, one of the circuit judges. In September, 1834, a contract was entered into between the parties, by which the plaintiff engaged to build for the defendants a steamboat, intended to ply on the Susquehanna river between Owego and Wilkesbarre, the boat to be completed and put in opera- tion by the first day of May, 1835, for which the plaintiff was to be paid the sum of $12,500. The boat was built, but not entirely completed, when she was accepted by a committee of the defend- ants, and proceeded down the river about the seventh day of May ; she was accepted on condition that what remained to be done in her completion, should be done, and which was not done until some time in July. On her return to Owego she broke her shafts, which were repaired at the expense of the plaintiff. This delayed her four days, and after she again started for Owego, was delayed sixteen days more by reason of the lowness of the water. On her second BLA.NCHARD v. ELY. 241 trip she again broke her shafts, and the defendants, at their own expense, procured a new set from Xew York, which cost about $700. The defendants, after they had taken possession of the boat, enlarged her wheels and made other alterations, and proved that the guards were too low, and that the expense of altering them would cost $250. Several witnesses for the defendants proved the iron of the shafts to be bad; in this, however, they were contradicted by the plaintiff's witnesses. It was proved that a trip between Owego and Wilkesbarre could be performed in four days at a net profit of $100 per trip, and that the river between those places is navigable only four months in the year. When the plaintiff first rested, the defendants produced in evidence an instrument under seal, bearing date 28th May, 1835, executed by the plaintiff, whereby, for the consideration of $500, the plaintiff assigned to James Pumpelly, one of the defendants in this cause, the contract upon which this suit is brought, and stated therein that he had received and indorsed upon the contract the sum of $7,975 34, and that he had directed his at- torney to pay over the balance due upon the contract, when col- lected, to Mr. Pumpelly, after deducting certain charges. On the production of this instrument, the plaintiff read in evidence an in- strument of the same date, signed by Pumpelly, whereby he engaged to pay over to the plaintiff all moneys he should receive by virtue of the assignment made to him, deducting such sums and interest there- on as he had that day advanced to the plaintiff. The defendants insisted that the assignment thus executed to Pumpelly, one of the defendants in the cause, was a bar to a recovery. The judge, how- ever, ruled otherwise, and instructed the jury that they should de- duct from the amount otherwise due to the plaintiff such sum as would be equal to the expenses necessarily incurred by the defend- ants in remedying such defects as existed in the boat or its ma- chinery ; but that they were not authorized to take into considera- tion the delay of the boat, or loss of trips, or loss of profits con- sequent upon any defect in the boat or machinery in reducing the amount of the plaintiff's recovery — the damages sustained by the defendants from those causes being too remote and consequential to be allowed in this action, and the remedy of the defendants for any injury sustained from those causes being by action against the plaintiff. The jury found a verdict in favor of the plaintiff for $5,240 31, and consequently must have allowed the whole sum of $12,500, with the interest thereof from 1st May, 1835, deducting only the sum admitted by the plaintiff in his assignment to Pum- 16 212 CONTRACTS FOR SALE AND OTHER AGREEMENTS. pelly tohave been received by him, and a sum of about $100 besides. The defendants asked for a new trial. By the Court, Cowen, J. — The objection that the assignment of the articles of agreement by the plaintiff to one of the defendants should have been received as a bar, is founded on the principle that where the right of the creditor and the liability of the debtor, or any one of several debtors, meet in the same person, such coincidence works a release by operation of law. The reason is that a man can- not sue himself ; the action is suspended by the voluntary act of the creditor, and is gone and discharged forever (2 "Wms. Ex. Phila. ed. 1832, p. 811). It is obvious from the bare statement of the argu- ment, that it must mean a vesting of the legal right, or, in other words, a right to sue in the creditor's own name, in the person of his debtor. Otherwise the reason fails. It will, I apprehend, be found applicable to those cases only where the same individual, in order to sue, must appear on the record both as plaintiff and defend- ant (Main waring v. Newman, 2 Bos. & Pul. 120). The case of Yan Ness v. Forrest (8 Cranch, 30) will be found an authority for this distinction. Besides, it is suggested that the assignment in this case was merely by way of pledge, or security to one of the defendants for money lent ; the plaintiff thus still retaining his interest as general owner. It is certainly very clear, that, even if he could have divested his legal interest by an absolute assignment, that could not be done by merely pledging it ; but he could not part with it in either form. This court has held that a defendant may, before suit brought, purchase a chose in action against the plaintiff, and use it as a set-off ; and we have often held that the assignee is the real party, and shall be protected. But this has always been held in an equitable sense, which would rather go to favor the present action than to defeat it. Did the judge narrow the jury too much in the rule of damages ? The plaintiff had failed, in some comparatively trifling respects, to make so perfect a boat as he had stipulated for. The shafts were not of adequate strength, in consequence of which the boat was in- terrupted in some of her trips, and the company incurred expense in procuring repairs to be done, and in towing the boat to a proper place for undergoing her repairs. All this the judge left to the jury to deduct, in their discretion, from the acknowledged balance of account for building her. But he directed them not to allow for delays and for profits which might have been made from the trips that were lost. No common-law authority was cited at the bar, one way or the other, having any direct application to the measure of BLANCHARD v. ELY. 243 damages in such a case as this, nor am I aware that any exists. If there be none, it is somewhat singular, considering the many con- tracts for building boats and other vessels which must have been made in England and this country. We have to regret that the at- tention of the counsel seemed to have been entirely turned from the character of this claim in the abstract, by a remark of the judge implying that damages for loss of profits were admissible in a cross action, but not in mitigation. This led the counsel for the defend- ant to stop with citing Eeab v. McAllister (8 Wend. 115), to show that proof of any damages arising from a plaintiffs breach of the contract upon which he sues, may be received to reduce his claim. This we all understand to be clearly so. The counsel for the defend- ant, too, merely thought it their duty to cite cases showing that in an action on a warranty of land, the plaintiff recovers only the con- sideration money paid, with interest and costs, &c. ; and we were reminded particularly of one reason for that rule as given by Chief Justice Savage, in Dimmick v. Lockwood (10 Wend. 150), viz. : " That it would be ruinous and oppressive to make the seller respond in damages for any accidental rise in value of the land, or the in- creased value in consequence of the improvements by the purchaser." Tie, at the same time, however, notices some technical reasons for the rule which render it less decisive in respect to executory con- tracts, especially those which regard personal property. The prev- alence of the rule is very extensive in its application to covenants of title {vide 1 Selw. N. P. 533, Phil. ed. 1839). The rule is more pertinent when applied, as it has been in several cases to the breach by failure of title of a covenant to convey (Baldwin v. Munn, 2 Wend. 339). Sutherland, J., there adopts a former remark of Chief Justice Kent, importing that it must block up sales of real estate, if the vendor were to be made liable in proportion to the rise of property. It is added on the same authority, that "the safest rule is to limit the recovery as much as possible to an indemnity for the actual injury sustained, without regard to the profits the plaintiff has failed to make " (Id. 406). This was A. D. 1829. As long ago as 1811, in Letcher v. Woodson (1 Brock. 212), Marshall, Ch. J., laid down the rule of damages on a similar covenant, in nearly the same words with Mr. Justice Sutherland (Combs v. Tarlton's Admr's, 2 Dana, 466, Y, S. P. A. D. 1834). This rule would cut off all rise of the value intermediate the contract and time fixed for its execution. The rule on agreement to sell and deliver goods is uni- versally broader, giving the vendee advantage of the rise in market, and the consequent advantage of profit on any sale which he might 244 CONTRACTS FOR SALE AND OTHER AGREEMENTS. have made at the time stipulated for delivery, or whenever it be- comes due (Smee v. Huddlestone, Saver's Dam. 49 ; see many other cases cited in Ch. J. Marshall's note to Letcher v. Woodson, 1 Brock. 218 ; Clark v. Pinney, 7 Cow. 681, 687, and the cases there cited). Nay more, under circumstances, the rise is considered even down to the time of the trial (Id.) The rule of damages in respect to contracts for the sale of chattels is the general one, and some courts have refused to depart from it in measuring damages for breach of covenants to convey real estate (Hopkins v. Lee, 6 Wheat. 109, 117, 118; Cannell v. McLean, 6 Har. & Johns. 297). I do not dwell upon these cases, more of which may perhaps be found. In both classes, the courts are seeking after an indemnity ; that is to say, making good to the vendee what he has paid his money for. Both classes of cases profess to deny the allowance of damages remotely consequential, as of profits resting in speculation. The possible or even probable use to which the vendee may put the property, aside from a market sale, is clearly excluded. Going upon analogy, then, suppose the owners of this boat, the defendants, had sold out ; in the absence of evidence that there had been a rise of the boat's value in market, we must take the stipulated value at which it was to be built (Bailey v. Clay, 4 Eand. 346), and then the sum which would command the materials and work for making good the defects would be the measure of damages in an action, or by way of recoupment in a defense. In like manner, a contract to in- sure a cargo will not, in the event of loss, carry the speculative profits of the adventure, though these may be insured in express terms, even by an open policy (1 Phil, on Ins. 320, 325 ; Id. 46). Yet, insurance is called pre-eminently a contract of indemnity. The damages are what will restore the value of the cargo on shipboard at the port of departure (Id. 46, et seq.) The rule is nearly the same in resj)ect to damages for breach of warranty. The defect arising from the vice warranted against, must be made good in such sense that the article shall fetch a sound price, which prima facie we have seen is the one agreed on between warrantor and warrantee (4 Kand. ut supra ; 2 Leigh's K P. Phil. ed. 1838, p. 1506). Caveat emptor in search of a horse (1 Rural Lib. N". Y. No. 5, for 1837, p. 140 ; Clare v. Maynard, 7 Carr. & Payne, 741 ; s. o, 1 Nev. & Perr. 701 ; Chesterman v. Lamb, 4 Nev. & Mann. 195 ; s. c. 2 Ad. & Ell. 129 ; 1 Selw. N. P. ed. before cited, p. 654, tit. Deceit, I, 1, and notes; Bacon v. Brown, 4 Bibb, 91). Yet, in all the cases men- tioned, as in that of insurance, there is no doubt that by an express contract, on good consideration, the vendor may stipulate expressly BLANCIIARD v. ELY. 215 to indemnify in respect to loss of profits arising from tlie defect against which he contracts. In short, it will be seen by the cases cited, and many more, that on the subject in cpiestion our courts are more and more falling into the track of the civil law, the rule of which is thus laid down by a learned writer : " In general, the par- ties are deemed to have contemplated only the damages and interest which the creditor might suffer from the non-performance of the obligation in respect to the particular thing which is the object of it ; and not such as may have been accidentally occasioned thereby in respect to his own affairs" (1 Evans' Poth. 91, London ed. 1806). He illustrates the rule by the rise of value in goods which the promisor fails to deliver. He adds, if the lessor's title to a house fail, he is bound to pay to his lessee the expense of removal, and indemnify him against the advance of rents, but not against the loss of custom in a business he may have established while residing in the house. He also adverts to the distinction that the vendor may, notwithstanding, incur liability for extrinsic damages of the creditor, if it appear they were stipulated for or tacitly submitted to in the contract. One instance is that of stipulating to deliver a horse in such time that a certain advantage may be gained by reaching such a place. There the debtor shall, on default, pay for the loss of the advantage. The case of tacit submission is illustrated by a case of demising premises expressly for use as an inn. There, if the tenant be evicted, a loss of custom may be taken into the account (Id. 91, 92). This latter rule was in some measure acted upon in the late case of Driggs v. D wight (17 Wend. 71). There was a promise to demise a tavern stand at a day certain, which was refused by the promisor, after the promisee had broken up his former residence, and proceeded with a view to take possession. We allowed to the latter damages for removing his family and furniture ; in this, fol- lowing the case of Ward v. Smith (11 Price, 19). In Brackett v. McNair (14 Johns. 170), the broken contract was to transport goods from one place to another, and the increase of value in the goods at the latter place was allowed as damages ; though even this principle of estimate seems to have been denied in the previous case of Smith v. Richardson (3 Caines, 219). In another case, the plaintiff sued for stone delivered to be used in building a church, and the defendants claimed a recoupment, because they had not been deliv- ered at the day. They insisted among other things, on damages, by reason of their workmen lying idle for want of the material. The court did not deny the claim absolutely, but held that the defend- ants, even if the delivery had been stopped, would have been bound 246 CONTRACTS FOR SALE AND OTHER AGREEMENTS. to use diligence in keeping their workmen employed on other ma- terials, to be supplied as soon as they could be procured, thus avoiding all unnecessary loss, and that the deduction must be gov- erned with a view to that principle (Miller v. Mariner's Church, 7 Greenl. 51, 55). The unreasonable delay of workmen stood some- what on the footing of unreasonably delaying the boat in this case, which the judge refused to allow, though he directed that dam- ages might be due for taking the boat to a proper place for being repaired. But to go the length insisted upon by the defendants would, I apprehend, transgress what the law should allow, even had the plaintiff, without fraud, tortiously broken the machinery of this boat, as by a negligent collision, in navigating his own boat. The profits of a voyage broken up are constantly denied consideration, even in questions relating to marine trespasses (The Amiable Nancy, 3 Wheat. 546, 560, and the cases there cited ; La Amistad de Rues, 5 Id. 385, 389). Of course I lay out of view, as do all the cases, that the transaction is accompanied with wanton outrage, fraud or gross negligence ; the cases just cited from Wheaton show that these are exceptions (and see Merrils v. The Tariff Manufacturing Co. 10 Conn. 384). The case of De Wint v. Wiltse (9 Wend. 325), must, I think, have been regarded by this court as a fraudulent breach of a covenant to keep a ferry in repair, which materially benefited the plaintiff's tavern. The defendant left it unrepaired, in order to favor his own ferry. Therefore damages were allowed for loss of custom at the plaintiff's inn. Pothier, as before cited, main- tains the same distinction. In Nurse v. Barnes (T. Raym. 77), the defendant, in consideration of £10, promised to demise a mill to the plaintiff, who laid in a large stock to employ it, which he lost, be- cause the defendant refused to let him have possession. The jury were held properly to have assessed the damages at £500. Yery likely it appeared that the breach of contract was committed to favor some particular interest of the defendant or his friend, though the case mentions a simple refusal to perform. The case at bar, so far as I have been enabled to discover from the evidence, stands entirely clear of fraud. If some of the iron used for shafts was rotten, there is nothing going to fix knowledge, or that I see, gross negligence in the plaintiff or his superintendent. The extent to which the iron proved bad was doubtful, though the jury were authorized to infer it was by no means all of a good quality. There is no proof, however, that such iron was used inten- tionally ; and we ought not to infer that a fraud was committed by MASTERTON v. MAYOR OF BROOKLYN. 247 any one. ]^o new trial can, therefore, be granted on any error of the judge. Still, we think, complete justice cannot be done without the cause being submitted to another jury ; for the plain inference is, that they totally disallowed anything whatever for defects in the boat. The plaintiffs counsel make a computation by which they show that $62 deduction was made ; but even this assumes that in- terest ran on the balance mentioned in the assignment, $4,524 66, from the first of May. This could not be so. All parties agreed that the boat was not finally completed till pretty well along in July, and she was accepted subject to completion. At most, the in- terest ought not to run till after the job was finished. It is sufficient to say, we think, there is a strong preponderance of evidence in favor of some deduction. New trial granted, on payment of costs. Sale ; Direct Profits ; Profits of Collateral Enterprises. SUPREME COURT, NEW YORK. [1845.] MASTERTOX V. MAYOR OF BROOKLYN (7 Hill 61). Where a contract has been made by A. with B., and through A.'s action B. is prevented from realizing the proceeds of the contract at the time stipulated, any profitable operation or bargain which B. supposes he might have made by the aid of such proceeds, cannot be taken into account in ascertaining his damages. Dependent and collateral engagements entered into on the faith and in expectation of the perform- ance of the principal contract, are too remote and uncertain to be considered in esti- mating the true measure of damages. But profits or advantages which are the direct and immediate fruits of the contract con- stitute a portion of its very elements, and are presumed to have been considered be- fore it was made. The loss of such profits is a proper item in determining the dam- ages. Where an article has no market value, an investigation into the constituent elements of the cost to the party who contracted to furnish it becomes necessary, and that cost compared with the contract price will afford the measure of damages. Action of covenant, tried at the New York circuit in June, 1843. The following facts appeared on the trial : On the 26th of Jan- uary, 1836, the plaintiffs covenanted with the defendants to furnish all the marble necessary for building a city hall in the city of Brook- 248 CONTRACTS FOR SALE AND OTHER AGREEMENTS. lyn ; the marble was to be of a stipulated quality, and was to con- form to drawings and plans to be furnished by the architect or su- perintendent of the building, to be subject to his approval, and de- livered at the site of the building at such times as he should direct. In consideration of these covenants the defendants agreed to pay the plaintiffs the sum of $271,600, of which $240,000 was to be paid in different instalments at successive stages of the work, and the re- mainder when the building should be completed. On the 7th of March, 1836, the plaintiffs contracted with Kain & Morgan, the proprietors of a marble quarry, for all the marble necessary for the building, of the quality required by the plaintiffs' contract with the defendants. It was to be delivered at a wharf in Brooklyn in time for the plaintiffs' use in the performance of their contract with the defendants, for the aggregate sum of $112,395, payable in instalments at the several times when the plaintiffs should receive their money from the defendants. These instalments were to bear the same proportion to the last mentioned sum that the cor- responding payments to be received by the plaintiffs from the de- fendants should bear to the whole sum the plaintiffs were to receive. It was further agreed by Kain & Morgan's contract that they should not .look to the plaintiffs or hold them responsible for any payment until the plaintiffs should first have been enabled to make such pay- ment by receiving the corresponding instalment due them from the defendants. The plaintiffs claimed damages for the breach in 1837 of their contract with the defendants, and also special damages. The contract with Kain & Morgan was read in evidence by the plaintiffs, subject to the defendants' right to object to its admissi- bility during the course of the trial. The plaintiffs proved that they began delivering marble pursuant to their contract with the defend- ants, and continued doing so till July, 1837, when the defendants stopped the construction of the building for want of funds, and re- fused to receive any more marble, though the plaintiffs were ready and offered to deliver it. The whole amount necessary to enable the plaintiffs to fulfill their contract was 88,819 feet. At the time when the work was stopped the plaintiffs had delivered 14,779 feet, for which they were paid at the agreed rate. The plaintiffs then had on hand, at Kain & Morgan's quarry, properly prepared and ready for delivery, about 3,308 feet. A witness testified that this was of little value for other purposes than the one for which it had been pre- pared, and would probably not bring more than two shillings a foot. It was testified by other witnesses that, with ordinary dili- MASTERTON v. MAYOR OF BROOKLYN. 249 gence, the plaintiffs would have required about five years to finish their contract. Evidence was also given of the cost of the marble at the quarry, and the expense of preparing and transporting it. By permission of the circuit judge, the plaintiffs proved, under the de- fendants' objection, the difference between the cost to them of the marble in the contract, and the price to be paid for it by the con- tract in each successive year from 1836 to 1840 both inclusive. It was also proved by the plaintiffs, under the defendants' objection, that the ordinary profit calculated by master stone-cutters was from 10 to 15 per cent., and that 15 per cent, was a fair "living" profit. At the close of the plaintiffs' case the defendants' counsel moved to exclude the contract with Kain & Morgan, and all evidence relat- ing to it, as irrelevant, but the circuit judge denied the motion, and the defendants' counsel excepted. The circuit judge charged the jury that they were to allow the plaintiffs as much for the performance of the contract as it would have benefited them ; that the plaintiffs should recover for the un- finished marble not accepted, deducting its fair market value ; that the jury should only give the plaintiffs damages for their loss, but that the benefits or profits which they would have received from the actual performance constituted such loss. He further charged as follows : " The defendants ought to be allowed what the jury should think just as to interest on the outlays of the plaintiff ; also what the jury might think just for the risk of transportation, and the reasonable value of the marble unaccepted and unquarried. As to damages on the rough marble to be delivered by Kain & Morgan, it appears by the contract with the defendants that the plaintiffs were obliged to procure it from this quarry. The plaintiffs' contract with Kain end upon the magnitude of the claim. The question was entirely and properly left to the jury, both parties having agreed that the question for their consideration was, what was the loss in fact sustained by the ship's not having been delivered by the stipulated day ? The other point was not sug- gested — perhaps because it is an erroneous view — and therefore \ve are not now called upon to decide it. Crowder, J.* — I am of the same opinion. The question as to the amount and the mode of estimating the damages was very fully gone into. The evidence upon the subject was that of mercantile men, peculiarly conversant with the matter : and the jury was a special jury of Liverpool merchants, than whom none could be more fit to decide such a question. And I must say that I do not consider the amount excessive. Willes, J. — I am of the same opinion, though I am not prepared to say that the view suggested by my lord, in the course of the argument, is erroneous. It certainly is very desirable that these matters should be based upon certain and intelligible principles, and that the measure of damages for the breach of a contract for the delivery of a chattel should be governed by a similar rule to that * Williams, J., was absent. 264 CONTRACTS FOR SALE AND OTHER AGREEMENTS. wliicli prevails in the case of a breach of a contract for the payment of money. No matter what the amount of inconvenience sustained by the plaintiff, in the case of nonpayment of money, the measure of damages is the interest of the money only : and it might be a convenient rule, if, as suggested by my lord, the measure of dam- ages in such a case as this was held by analogy to be the average profit made by the use of such a chattel. That question, however, was not made at the trial. Both parties seem to have agreed that the amount of damages was purely a question for the jury. Evi- dence was given of the difference of the value of the voyage at the time the vessel ought to have been delivered to the plaintiffs, and at the time when she was actually delivered, and no evidence was offered on the part of the defendant to show that this was at all exaggerated. And, indeed, if the damages ought to have been com- puted according to the principle suggested, it seems to me that no injustice has been done, for the sum the jury have given is not in that point of view extravagantly large. I therefore think there is no ground for our interference. Rule refused. Note. — A. contracted with B. to build a steamboat, and have it completed at a certain time. The price was to be paid in installments. The vessel was not delivered until two months after the agreed time, but B. made no objections at the time of delivery. In an action by A. for that part of the purchase money which remained unpaid, it was held that B. could not recoup the amount which he lost as freight during the two months, because the damages were speculative (Taylor v. Maguire, 12 Mo. 313; see Singer v. Farnsworth, 1 Carter, 484). Upon the breach of a contract for the delivery of merchandise, the plaintiff is not entitled to recover damages for delay in business caused by the non-delivery of the articles ; nor for expenses incurred in attempting to procure them, nor for speculative profits (Porter v. Wood, 3 Humph. 56). In an action for damages for not furnishing machinery for a steam mill at the stipulated time, the plaintiff cannot recover in damages the estimated value of the profits he might have made if the contract had been complied with. Dam- ages should be allowed upon the principle of a reasonable r?nt and insurance for the building, and the actual loss by decay of the materials, during the period he was prevented from commencing his operations by reason of the defendant's default in not complying with his covenant (M'Boyle v. Reeder, 1 Iredell, 607). In an action for the breach of an executory contract to make and put up cer- tain machinery, the plaintiff is entitled to recover any expenses which he has actually incurred in his business as a consequence of the failure of the defendant to perform his contract, but not for estimated profits upon articles to be manu- factured by means of such machinery (Freeman v. Clute, 3 Barb. 424). PORTMAN v. MIDDLETOX. 2t>5 Contract to repair Threshing Machine in time for Harvest Remote and Special Damages. COURT OF COMMON PLEAS. [1858.] Portman V. MlDDLETON (4 C. B. K S. 322). A. contracted with B. to repair a steam threshing machine, undertaking to get it ready for harvest time. A new fire box being needed, C. engaged to make one for A. " in about a fortnight," but failed in the performance of his contract, and A. (who had paid C. for the article) was obliged to get one made elsewhere, at an additional cost ; but this he did not do in time to enable him to perform his contract with B. (al- though there was ample time for him to have done so after C. had broken his con- tract); whereupon B. sued A., who paid him 20/. to settle the action: Held, that A. was entitled to recover from C. the sum he had paid him for the fire box, and the extra cost incurred in getting another ; but that the compensation paid by A. to B. was not such a damage "as might fairly and reasonably be considered either as arising naturally from C.'s breach of contract, or such as might reasonably be sup- posed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it," — within the rule in Hadley v. Baxendale (9 Exch. 341). This was an action for a breach of contract in not delivering: a fire box within the time stipulated. The declaration stated that the plaintiff, before the time of the making of the agreement with the defendant thereinafter mentioned, had been employed by a certain person to repair and put in order for him a steam threshing engine, the said engine to be finished: and delivered to the said person by a certain specified time, at and on certain reward to be paid to the plaintiff by the said person ; and thereupon the plaintiff retained and employed the defendant to make or repair for him a fire box for the said steam threshing engine of a certain size, and according to certain instructions given to the de- fendant by the plaintiff, and by a time agreed upon between the plaintiff and the defendant, which said retainer the defendant ac- cepted at and for the sum of 12/., and which said sum the plaintiff paid to the defendant before the delivery by the defendant of the fire box thereinafter mentioned : Averment, that although the de- fendant had delivered a fire box as and for the fire box so agreed to be made or repaired by him for the plaintiff, yet he did not do the same by the time agreed upon between the plaintiff and the defend- ant, nor according to the said instructions of the plaintiff, but wholly neglected and disobeyed the same instructions ; and although, when 266 CONTRACTS FOR SALE AND OTHER AGREEMENTS. the plaintiff so employed the defendant to make or repair the said fire box, he informed the defendant for what purpose he required the same, and of what size and materials the same must be, and by what time the plaintiff had contracted with the said person to finish and deliver the said steam threshing machine, and which said time had long elapsed ; yet the defendant had made and delivered to the plaintiff a fire box unsuited to and unfit for the said steam threshing engine, imperfect in materials, and different in size from the fire box agreed to be made by the defendant, and wholly useless to the plaint- iff, and that the defendant had refused to make a fire box fit for the steam threshing engine, or to return the said sum of 121. to the plaintiff ; whereby the plaintiff had not only lost the said sum of 12,1. so paid by him to the defendant, but had incurred great expense in and about constructing a fit and proper fire box for the said steam threshing engine, and was also liable to make compensation to the said person for the delay in delivering the said steam threshing ma- chine to him, such delay being caused by the wrongful conduct of the defendant. There were also counts for money payable by the defendant to the plaintiff, and for money received by the defendant to the use of the plaintiff. The defendant traversed the retainer and the alleged breaches of contract, and also pleaded never indebted ; whereupon issue was joined. The cause was tried before Channell, B., at the last assizes at Worcester. The facts were as follows : In the spring of 1857, the plaintiff, an engineer, was employed by one Sheaf to repair a steam threshing engine ; the work to be finished before harvest, or by the end of July or the beginning of August. It being found necessary to get a new fire box made, the plaintiff in June went to the defend- ants at Birmingham and verbally contracted with them to make one for him for 121. Upon inquiring how long it would take to make it, the defendants' foreman answered, "About a fortnight." The fire box was not sent to the plaintiff until the 3d of September, when it was found to be useless. The plaintiff was then obliged to employ another person to make another fire box, for which he had to pay 201. The threshing engine, in consequence of these delays, not being ready until November, Sheaf brought an action against the plaintiff to recover damages in respect of his breach of contract, claiming 501. ; but he ultimately settled the matter by accepting 201. and costs, making together 251. 17s. It did not appear that the plaintiff, when he gave the defendants PORTMAN v. MIDDLETON. 267 the order for the fire box, communicated to them the nature of his contract with Sheaf ; or that they were made aware of it until after there had been a complete breach of that contract ; although there was some evidence of a conversation between Sheaf and the defend- ants upon the subject in the month of June. Under the direction of the learned Baron, the jury returned a verdict for the plaintiff for the 121. which he had paid the defend- ants for the fire box, 8/. for the extra expenses he had incurred in procuring another, and 201. in respect of the compensation he had paid to Sheaf for the non-performance of his contract with him. A rule nisi having been obtained and argued, Crowder, J., now delivered the judgment of the court : This case was argued on Friday last before my brothers Willes and Byles and myself. The rule sought to reduce the damages : and we are of opinion that it must be made absolute. The action was brought to recover damages for the breach of a contract entered into between the plaintiff and the defendant, under which the de- fendant was to furnish a fire box for the plaintiff by a given time. The article was not furnished within the time, and when it was sent to the plaintiff, it was found to be utterly useless. The plaintiff, who had paid the sum agreed on, viz. 121., sought to recover back that sum, together with the damages which he had sustained by rea- son of the defendants' breach of contract. The jury gave a verdict for 121., the sum paid, and a further sum of 8/. for the extra ex- pense which the plaintiff was put to in procuring another fire box, and about which there is no dispute. They also gave a further sum of 201. as special damage arising from the defendants' breach of con- tract. The question is whether the jury were warranted in giving this latter sum. "We are of opinion that they were not. The special damage was sought to be recovered by reason of the plaintiff's hav- ing entered into a contract with one Sheaf to repair for him a steam threshing machine. The contract between the plaintiff and the de- fendants as to the fire box was quite separate and distinct from that. The defendants had nothing whatever to do with the contract be- tween Sheaf and the plaintiff. But it was said that, inasmuch as Sheaf had brought an action against the plaintiff for his breach of contract — a breach of contract occasioned by the insufficiency of the article furnished by the defendant — and had recovered damages (or been paid a sum of 201.) for the breach of that contract, that was a damage which the plaintiff was entitled to recover against the de- fendants for the breach of their contract. We think, however, that this case is entirely governed by that of Hadley v. Baxendale (9 268 CONTRACTS FOR SALE AND OTHER AGREEMENTS. Excli. 341), to which reference was made, and does not come within that rule by which alone this sum could be recovered as special dam- age. It is laid down by the Court of Exchequer, in Hadley v. Bax- endale, that " where two parties have made a contract which one of them has broken, the damages which the other party ought to re- ceive, in respect of such breach of contract, should be such as may fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such breach of con- tract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the con- tract, as the probable result of the breach of it." Xow, it is quite clear that this special damage was not the ordinary consequence of the breaking of the defendants' contract. The only question was, whether it came within the second part of the rule as above laid down — that the breach of contract was such as that the damage arising from it might be supposed to be in the contemplation of both parties at the time they made the contract. We have looked care- fully at the notes of the learned judge who tried the cause, and we cannot find that there is any such evidence as would lead to the con- clusion that it was in the contemplation of the parties that the breach of the contract entered into between the plaintiff and Sheaf, and the damages recovered by him (Sheaf) in consequence, would be the probable result of the breach by the defendants of their contract to furnish a fire box to the plaintiff. We therefore think that the rule to reduce the damages should be made absolute : and we cannot help thinking — the action being brought to recover back the sum of 12/., the amount agreed to be paid for the fire box — that it would be a monstrous conclusion to arrive at, that the breach of the contract in not furnishing the article contracted for at that price, should give rise to the additional damages of 20/. here sought to be recovered. DO Rule absolute. GRIFFIN v. COLVER. 269 Contract to Deliver an Engine for a specific Purpose ; General Rule of Damages for Breach of Contract. COURT OF APPEALS, NEW YORK. [1858.] Griffin v. Colter (16 N. Y. 489). It is a well-established rule of the common law that the damages to be recovered for a breach of contract must be shown with certainty ; and it is under this rule that profits are excluded from the estimate of damages in such cases, and not because there is anything in their nature which should per se prevent their allowance. Profits which would certainly have been realized but for the defendant's default, are recov- erable ; those which are speculative cr contingent, and which cannot fairly be con- sidered as having been within the contemplation of the parties at the time of entering into the contract, are not. Appeal from a judgment entered in the Supreme Court on the report of a referee. The plaintiffs had agreed to deliver to the defendants, by a stip- ulated day, a steam engine intended, as they knew, to drive certain machinery for the sawing and planing of lumber. The engine was not delivered till a week after the day fixed. In this action, which was brought for the price of the engine, the defendants recouped the damages sustained by them as a consequence of the delay, and on the trial proved that the net average value of the engine, at the time and place and for the purpose intended, was $50 a day, beyond the wear and tear of the machinery, and the cost of running it. This result was obtained by a calculation of the wear and tear of the ma- chinery, of the cost of running it, and of the amount of lumber it would saw and plane in a day, together with the prices which the defendants received for the sawing and planing. The referee re- fused to allow damages on this basis, but reported that $50 was a proper compensation to the defendants " upon their investment, or the value of the property which was partially unoccupied by reason of the plaintiff's default." This finding was excepted to, and the judgment on the report was affirmed by the general term of the Supreme Court. The opinion of the Court of ApjDeals was delivered by Selden, J. — The only point made by the appellants is that, in es- timating their damages on account of the plaintiff's failure to furnish the engine by the time specified in the contract, they should have been allowed what the proof showed they might have earned by the use of such engine, together with their other machinery, during the time lost by the delay. This claim was objected to, and rejected 270 CONTRACTS FOR SALE AND OTHER AGREEMENTS. upon the trial, as coming within the rule which precludes the allow- ance of profits, by way of damages, for the breach of an executory contract. To determine whether this rule was correctly applied by the referee, it is necessary to recur to the reason upon which it is founded. It is not a primary rule, but is a mere deduction from that more general and fundamental rule which requires that the damages claimed should in all cases be shown, by clear and satisfac- tory evidence, to have been actually sustained. It is a well-estab- lished rule of the common law that the damages to be recovered for a breach of contract must be shown with certainty, and not left to speculation or conjecture ; and it is under this rule that profits are excluded from the estimate of damages in such cases, and not be- cause there is anything in their nature which should per se prevent their allowance. Profits which would certainly have been realized but for the defendant's default are recoverable ; those which are speculative or contingent are not. Hence, in an action for the breach of a contract to transport goods, the difference between the price at the point where the goods are and that to which they were to be transported, is taken as the measure of damages ; and in an action against a vendor for not de- livering the chattels sold, the vendee is allowed the market price upon the day fixed for the delivery. Although this, in both cases, amounts to an allowance of profits, yet, as those profits do not depend upon any contingency, their recovery is permitted. It is regarded as certain that the goods would have been worth the estab- lished market price, at the place and on the day when and where they should have been delivered. On the other hand, in cases of illegal capture, or of the insur- ance of goods lost at sea, there can be no recovery for the probable loss of profits at the port of destination. The principal reason for the difference between these cases and that of the failure to trans- port goods upon land is, that, in the latter case, the time when the goods should have been delivered, and consequently that when the market price is to be taken, can be ascertained with reasonable cer- tainty ; while, in the former, the fluctuation of the markets and the contingencies affecting the length of the voyage render every calcu- lation of profits speculative and unsafe. There is also an additional reason, viz., the difficulty of obtaining reliable evidence as to the state of the markets in foreign ports ; that these are the true reasons is shown by the language of Mr. Justice Stoey, in the case of the Schooner Lively (1 Gallis. 315), which was GRIFFIN v. COLVER. 271 a case of illegal capture. He says : " Independent, however, of all authority, I am satisfied upon principle that an allowance of dam- ages, upon the basis of a calculation of profits, is inadmissible. The rule would be in the highest degree unfavorable to the interests of the community. The subject would be involved in utter uncer- tainty. The calculation would proceed upon contingencies, and would require a knowledge of foreign markets to an exactness in point of time and value which would sometimes present embarrass- ing obstacles. Much would depend upon the length of the voyage, and the season of the arrival, much upon the vigilance and activity of the master, and much upon the momentary demand. After all, it would be a calculation upon conjectures and not upon facts." Similar language is used in the cases of the Amiable Xancy (3 Wheat. 546) and L'Amistad de Rues (5 Wheat. 385). Indeed, it is clear that whenever profits are rejected as an item of damages, it is because they are subject to too many contingencies, and are too de- pendent upon the fluctuations of markets and the chances of busi- ness, to constitute a safe criterion for an estimate of damages. This is to be inferred from the cases in our own courts. The decision in the case of Blanchard v. Ely (21 Wend. 342) must have proceeded upon this ground, and can, as I apprehend, be supported upon no other. It is true that Judge Cowen, in giving his opinion, quotes from Pothier the following rule of the civil law, viz. : " In general, the parties are deemed to have contemplated only the damages and injury which the creditor might suffer from the non-performance of the obliga- tions in respect to the particular thing which is the object of it, and not such as may have been accidentally occasioned thereby in respect to his own (other) affairs." But this rule had no application to the case then before the court. It applies only to cases where, by reason of special circumstances having no necessary connection with the contract broken, damages are sustained which would not ordinarily or naturally flow from such breach : as where a party is prevented by the breacli of one contract from availing himself of some other collateral and independent contract entered into with other parties, or from performing some act in relation to his own business not necessarily connected with the agreement. An instance of the latter kind is where a canon of the church, by reason of the non-delivery of a horse pursuant to agreement, was prevented from arriving at his residence in time to collect his tithes. In such cases the damages sustained are disallowed, not because they are uncertain, nor because they are merely consequential or re- mote, but because they cannot be fairly considered as having been 272 CONTRACTS FOR SALE AND OTHER AGREEMENTS. within the contemplation of the parties at the time of entering into the contract. Hence the objection is removed, if it is shown that the contract was entered into for the express purpose of enabling the party to fulfill his collateral agreement, or perform the act supposed (Seclg. on Dam. ch. 3). In Blanchard v. Ely the damages claimed consisted in the loss of the use of the very article which the plaintiff had agreed to con- struct ; and were, therefore, in the plainest sense, the direct and proximate result of the breach alleged. Moreover, that use was contemplated by the parties in entering into the contract, and con- stituted the object for which the steamboat was built. It is clear, therefore, that the rule of Pothier had nothing to do with the case. Those damages must then have been disallowed, because they con- sisted of profits depending, not, as in the case of a contract to trans- port goods, upon a mere question of market value, but upon the fluctuations of travel and of trade, and many other contingencies. The citation, by Judge Cowen, of the maritime cases to which I have referred, tends to confirm this view. This case, therefore, is a direct authority in support of the doctrine that whenever the profits claimed depend upon contingencies of the character referred to, they are not recoverable. The case of Masterton v. The Mayor, &c. of Brooklyn (7 Hill, 61) decides nothing in opposition to this doctrine. It simply goes to support the other branch of the rule, viz., that profits are allowed where they do not depend upon the chances of trade, but upon the market value of goods, the price of labor, the cost of transportation, and other questions of the like nature, which can be rendered reason- ably certain by evidence. From these authorities and principles it is clear that the defend- ants were not entitled to measure their damages by estimating what they might have earned by the use of the engine and their other machinery had the contract been complied with. Nearly every ele- ment entering into such a computation would have been of that un- certain character which has uniformly prevented a recovery for speculative profits. But it by no means follows that no allowance could be made to the defendants for the loss of the use of their machinery. It is an error to suppose that "the law does not aim at complete compensa- tion for the injury sustained," but " seeks rather to divide than satisfy the loss" (Sedg. on Dam. ch. 3). The broad, general rule in such cases is, that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained ; and this rule GRIFFIN v. COLVER. 273 is subject to but two conditions. The damages must be sucb as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation ; and they must be cer- tain, both in their nature and in respect to the cause from which they proceed.. The familiar rules on the subject are all subordinate to these. For instance : That the damages must flow directly and naturally from the breach of contract, is a mere mode of expressing the first ; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or contingent, are different modifications of the last. These two conditions are entirely separate and independent, and to blend them tends to confusion ; thus the damages claimed may be the ordinary and natural, and even necessary, result of the breach, and yet, if in their nature uncertain, they must be rejected ; as in the case of Blanchard v. Ely, where the loss of the trips was the direct and necessary consequence of the plaintiff's failure to per- form. So they may be definite and certain, and clearly consequent upon the breach of contract, and yet if such as would not naturally flow from such breach but for some special circumstances, collateral to the contract itself or foreign to its apparent object, they cannot be recovered ; as in the case of the loss by the clergyman of his tithes by reason of the failure to deliver the horse. Cases not unfrequently occur in which both these conditions are fulfilled : where it is certain that some loss has been sustained or damage incurred, and that such loss or damage is the direct, imme- diate, and natural consequence of the breach of contract, but where the amount of the damages may be estimated in a variety of ways. In all such cases the law, in strict conformity to the principles al- ready advanced, uniformly adopts that mode of estimating the dam- ages which is most definite and certain. The case of Freeman v. Clute (3 Barb. 424) is a case of this class, and affords an apt illus- tration of the rule. That case was identical in many of its features with the present. The contract there was to construct a steam engine to be used in the process of manufacturing oil, and damages were claimed for delay in furnishing it. It was insisted in that case, as in this, that the damages were to be estimated by ascertaining the amount of business which could have been done by the use of the engine, and the profits that would have thence accrued. This claim was rejected by Mr. Justice Harris, before whom the cause 18 274 CONTRACTS FOR SALE AND OTHER AGREEMENTS. was tried, upon the precise ground taken here. But he nevertheless held that compensation was to be allowed for the "loss of the use of the plaintiff's mill and other machinery." He did not, it is true, . specify in terms the mode in which the value of such use was to be estimated ; but as he had previously rejected the probable profits of the business as the measure of such value, no other appropriate data would seem to have remained but the fair rent or hire of the mill and machinery ; and such I have no doubt was the meaning of the judge. Thus understood, the decision in that case, and the reasoning upon which it was based, were, I think, entirely accurate. Had the defendants in the case of Blanchard v. Ely (supra) taken the ground that they were entitled to recoup, not the uncer- tain and contingent profits of the trips lost, but such sum as they could have realized by chartering the boat for those trips, 1 think their claim must have been sustained. The loss of the trips, which had certainly occurred, was not only the direct, but the immediate and necessary result of the breach of the plaintiffs' contract. The rent of a mill or other similar property, the price which should be paid for the charter of a steamboat, or the use of machin- ery, his contract. BORRIES v. HUTCHINSON. 313 Then, the contract was for the sale of 75 tons, 25 tons of which were to be delivered in June, 25 tons in July, and 25 tons in August. None was delivered until September ; and then only 26 tons in all ; The question is, to what damages the defendant is liable by reason of that late delivery. Now, the purchaser of the caustic soda from the plaintiffs was a merchant residing in St. Petersburg ; and, if the plaintiffs could have had the article at the times stipulated for, viz., in the months of June, July, and August, they could have for- warded it to St. Petersburg at a less charge for freight and insurance than they were compelled to pay. In consequence of the lateness of the season, it cost the plaintiffs 351. 15s. additional for freight, and 51. 2.5. additional for insurance, beyond what they would have had to pay if the soda had been forwarded in time. It was insisted by Mr. Brett that notice to the defendant that the plaintiffs were buying the caustic soda for the purpose of fulfilling a contract with a corre- spondent " on the continent," and that the place of shipment was Hull, was not a notice that the sub-purchaser was a merchant in Russia, and that the destination of the soda was a port in the Baltic ; and, therefore, that this loss by the increase of freight and insurance was not one which the plaintiffs could claim as a matter in respect of which the defendants had had notice at the time of the contract. It seems to me that Mr. Brett has succeeded in making good that ground. I do not think a notice that the sub-purchaser was a person residing " on the continent," was notice that the goods were for ship- ment to the Baltic. But the defendant has broken his contract, and the plaintiffs are entitled to damages for that breach. TThat are those damages \ I think they are such as might reasonably be ex- pected to arise from the breach. The goods were to be sent to Hull, where, if duly delivered, they would have been available for the Bal- tic market. When they were sent, they were not so available for the Baltic market as they would have been if they had been sent to Hull in accordance with the terms of the contract. I agree that it is not competent to a purchaser so to deal with goods delivered un- der such circumstances as to exaggerate the loss ; but if he does all that a man of reasonable skill and care can do to make the damage as small as possible, there is no reason why he should not be recouped to that extent. Receiving the soda in September and October. I think the plaintiffs turned it to the best account they could by f< >r- warding it to Heitmann as they did. I do not see how they could have diminished the loss by sending it elsewhere. Having sent it to St. Petersburg at an increased cost of 4<>/. 17*.. I think that sum fairly represents the amount of deterioration of the article by reason 314 CONTRACTS FOR SALE AND OTHER AGREEMENTS. of the defendant's breach of contract, and that the plaintiffs were en- titled to charge the defendant for that deterioration. The plaintiffs further claimed damages by reason of their haying been called upon to reimburse Heitmann, their vendee, to the extent of 159/., which Heitmann had paid to Heinburger, a manufacturer to whom he had contracted to sell the soda, to compensate him for the breach of his contract with him. It appears to me that that claim is too remote. The defendant had notice at the time of entering into the contract with the plaintiffs that they had contracted with one purchaser on the continent. For the damages resulting from that, it is agreed that he is responsible. But he had no notice of the subse- quent resale ; and it is not to be assumed that the parties contem- plated that he was to be held responsible for the failure of any num- ber of subsales. These could not in any sense be considered as the direct, natural, or necessary consequence of a breach of the contract he was entering into. Willes, J. — I am of the same opinion. As to the damages claimed in respect of the loss on the contract between Heitmann and Heinburs;er, it is consistent with all that was or could have been known to the defendant at the time he made his bargain with the plaintiffs, that such a contract might or might not have been entered into. Even supposing the defendant knew that Heitmann was the purchaser from the plaintiffs, and that it was Heitmann's intention to sell the soda again, I see no principle upon which he could be made liable in respect of that. This is a very different case from Eandall v. Eaper (E. B. & E. 84 ; E. C. L. E. vol. 96), where the de- fendant sold the plaintiffs seed barley with a warranty that it was barley of a particular description. There the seed was subject to an inherent or latent defect, by reason of which it produced an inferior and insufficient crop ; and, whether the damages accrued to the first purchaser or to a sub-purchaser from him, was a matter of compara- tive indifference ; they were equally damages naturally resulting from his breach of contract. But here the purchasers entered into a contract to sell to Heitmann, trusting to the performance of his con- tract by the defendant, to enable them to perform theirs. The de- fendant had notice of this contract ; and I see no injustice in hold- ing him to be liable to that extent. Heitmann chose to take upon himself a similar risk, and to contract for the sale of the soda to Heinbursrer. Even if the defendant had notice of this second con- tract at the time he sold to Heitmann, I think the damages arising from the non-delivery by Heitmann to Heinburger were too remote ; he entered into no bargain to be answerable for such consequences. BORRIES v. HUTCHINSON. 315 As to the additional cost for freight and insurance incurred in send- ing the 26 tons to Russia, by reason of the lateness of the period at which they were forwarded to Hull, it seems to me that that was properly recoverable as damages which were the direct and natural consequence of the defendant's failure to perform his contract, and upon the simple ground stated by my lord. It is not suggested that the plaintiffs could have done other than they did to make the soda more valuable. "What they did seems to have been the only reason- able thing they could do : and it showed in the result what the real worth of the soda was. In ordinary cases, where the article is one which can be bought in the market, the j)roper measure of damages for breach of a contract to deliver, is the difference between the con- tract price and the market price on the day of the breach ; and I can quite understand a case arising where goods are bought for the pur- pose of fulfilling a contract for resale at a price higher than the market price, and the original seller has notice of that fact : the dam- ages in such a case might well be influenced by that fact. That, how- ever, is not this case : there was no such notice ; and there was no market price to which resort could be had as a test of damage. AVe must, therefore, ascertain what was the value of the article con- tracted for at the time it ought to have been, and at the time when it actually was delivered. Now, the value of such an article as this depends upon the existence of facilities for its transport to the place for which it is destined. If the caustic soda had been forwarded to Hull at the times contracted for, it was capable of being sent to St. Petersburg. When it was delivered, it was also capable of being sent to St. Petersburg, but only at a greater cost for freight and in- surance than would have been incurred if it had been delivered in due course at Hull. It necessarily follows, therefore, that the soda was worth less when it was delivered, by the difference between the cost of forwarding it at that time to St. Petersburg and what the cost would have been if delivered at the times mentioned in the con- tract. The plaintiffs are clearly entitled to recover that as the direct and natural consequence of the defendant's breach of contract. The rule will, therefore, be made absolute to reduce the verdict by the 1591. paid by the plaintiffs to Heitmann for the compensation paid by him to Heinburger for the breach of his contract with him. Keating, J. — I also am of opinion that the plaintiffs were en- titled to recover as damages for the defendant's breach of contract the increased amount incurred for freight and insurance by reason of the delay in the delivery of the caustic soda contracted for, on the ground already stated by my lord and my brother Willes, viz., that 316 CONTRACTS FOR SALE AND OTHER AGREEMENTS. the lateness of the delivery occasioned a diminution in the market value of the article. That is entirely in accordance with the prin- ciple upon which this court acted in the case of Wilson v. The Lan- cashire and Yorkshire Kailway Company (9 C. B. IS". S. 632 ; E. C. L. E. vol. 99). That arose out of a contract of carriage. The goods, which consisted of cloth, had been purchased by the plaintiff, a cap manufacturer, for the purpose of being made up into caps ; but, in order to use the cloth to the best advantage, it was necessary that he should have it in time to make it into caps by a certain season. The delay in its transmission by the defendants caused the loss of the sea- son. This court held that the loss of the season might, under the circumstances, fairly be considered as a deterioration or diminution of the market value of the cloth. That is identical in principle with this case. I also entirely agree with the rest of the court that the further damage claimed, viz., the sum paid by Heitmann to compen- sate ITeinburger for the loss of his sub-contract with Heitmann, was too remote, and cannot be recovered by the plaintiffs in this action. Rule absolute accordingly. Note. — In a recent case, where the defendant being informed that certain shirtings to be manufactured according to a sample were intended for shipment, contracted to supply the plaintiff with them at an agreed price by a fixed date, aud shortly before the day notified the plaintiff that he could not supply them within the time, and there were no other goods of the kind in the market, and the plaintiff, to fulfill his contract with his sub-vendee, had to buy elsewhere, at a higher price, goods which were better, but were, in quality and price, the nearest obtainable to those contracted for, he was allowed to recover the differ- ence between the price he had contracted to pay the defendant and that he was forced to pay elsewhere. Hinde v. Lidded, L. R. 10 Q. B. 205. Measure of Damages for Non-delivery of Goods under Con- tract of Sale ; Forbearance of Buyer at Seller's re- quest; Statute of Frauds (29 Car. II, c. 3, s. 17). in the exchequer chamber. [1868.] Ogle v. Earl Vane (L. E. 3 Q. B. 272 ; affi'g L. E. 2 Q. B. 275). The defendant by bought and sold notes contracted to sell to the plaintiff 500 tons of iron, delivery to extend to the 25th of July. Owing to an accident to his furnaces, the defendant delivered none of the iron by that date, nor up to the February fob OGLE v. EARL VANE. 317 lowing, when the plaintiff went into the market; and the price having risen since July, he sought to recover from the defendant, as damages for his breach of the contract of sale, the difference between the contract price and the market price in February. At the trial, correspondence was put in which had passed from August to February between the plaintiff, the defendant, and the brokers who had acted for both parties, and were still acting for the plaintiff; from this correspondence it appeared that the defendant repudiated his liability, on the ground that the non- delivery was owing to inevitable accident, but he proposed that the plaintiff should take iron of a different quality ; this, after consideration, the plaintiff declined ; further negotiation ensued, and on the 29th of December the brokers wrote to the defendant that the persons who had contracts for his iron yet undelivered were pressing them extremely, and threatened to purchase against the defendant ; adding, " when our Mr. T. was with you, he was informed that it might take three months to put the furnaces in repair, and we informed all our friends to this effect, and they have waited considerably over that time When do you think we may promise deliveries ? " The defendant simply acknowledged the letter, and said he could not say what it was intended to do with the furnaces. The jury having returned a verdict for the full amount claimed : Held, that there was evidence from which the jury might infer that the plaintiff's delay was at the defendant's request ; that, as the evidence went to show, not a new con- tract, but simply a forbearance by the plaintiff at the request of the defendant, the statute of frauds did not apply ; and that the plaintiff was entitled to a verdict for the full measure of damages. Appeal from the decision of the Court of Queen's Bench, dis- charging a rule to enter a verdict for the defendant (Law Rep. 2 Q. B. 275). The declaration was on three contracts, by which the defendant sold to the plaintiff certain iron, to be delivered at certain dates (setting out the terms of three bought and sold notes), that the iron was not delivered at the dates specified, claiming damages for the non-delivery. • Blea, payment of 1001. into court. Replication, damages ultra. Issue thereon. At the trial before Martin, B., at the summer assizes, 1866, at Manchester, it appeared that Messrs. Lockhart, Tozer & Co., brokers, of Manchester, made in April, 1865, three contracts by bought and sold notes, signed by them as agents on behalf of the plaintiff and defendant respectively, by which the j)laintiff, an iron merchant at Manchester, bought of the defendant, the pro- prietor of ironworks at Seaham Harbor, 500 tons of iron. The first note was : "April 18, 1865. Sold R. Ogle, Esq., of Manchester, for account of Earl Yane, 200 tons of No. 3 Yane and Seaham pig iron at 57s. per ton, less 2£ per cent, for cash ; monthly payments ; delivery equal to Man- chester, and to extend over present quarter." 318 CONTRACTS FOR SALE AND OTHER AGREEMENTS. The second, dated April 22, was similar, for 200 tons ; and the third, dated April 25th, also similar, for 100 tons, but the delivery- was " to extend over three months." In July, 1865, the blast furnaces in the defendant's ironworks suddenly gave way ; and in consequence the defendant was pre- vented manufacturing iron ; and none of the iron was delivered by the 25th of July 1865. Correspondence was put in evidence between Messrs. Lockhart, Tozer & Co., Mr. Shaw (the defendant's manager at the ironworks), and the plaintiff, of which the following letters are the most material : W. Tozer, for Lockhart, Tozer & Co., to Shaw. " Aug. 5, 1865. If Messrs. Bayley & Co. can arrange with their customer to take No. 4 foundry iron in place of No. 3 at Is. per ton less than their contract, shall I agree with them to furnish it, and can I do the same with Ogle ? With the latter I have as yet said but little, as he has been out of town, and only returned a day or two since." Shaw to Lockhart, Tozer & Co. " August 7, 1865. In reply to your favor of the 5th inst., I beg to inform you that, having No. 4 foundry on hand, I am willing to let Messrs. Bayley and Ogle have it at Is. j>er ton less than the price offered for No. 3, being most desirous of accommodating our customers as far as lies in my power ; but please remember that I do not hold Earl Yane liable to deliver in consequence of the accident to the furnaces until they are repaired." Plaintiff to Shaw. " August 10, 1865. As I have informed Messrs. Lockhart, Tozer & Co., some of my constituents to whom I have sold 500 tons No. 3 Y. & S. which I purchased from you are pressing for deliveries. Mr. Tozer informs me that you cannot deliver any No, 3 for some time to come, and that you have only No. 4 foundry in stock. If I could persuade some of my friends to take No. 4 in lieu of 3, what allowance would you make per ton ? I don't consider that less than 2s. would be any inducement to them to use it, as most founders have a de- cided objection to No. 4 North of England iron. Awaiting the favor of your reply in course." Shaw to plaintiff. " August 11, 1865. In reply to your note of the 10th inst., I can let you have foundry 4 at 4:6s. per ton, in lieu of No. 3, but if you require No. 3 I fear you will have to wait until the furnaces are repaired and blown in, which will be some time." OGLE v. EAKL VANE. 319 Lockhart, Tozer & Co. to Shaw. " October 14, 1865. Some time since we sent an order for some iron No. 3 for R. Ogle, and at the same time for Bellhouse & Co. The latter has been received, but we have heard nothing of the former. Mr. Ogle is most anxious for delivery. Will you please advise us if it is off. or any portion thereof." Shaw to Lockhart, Tozer & Co. " October 16, 1865. In reply to your favor of the 14th inst., I have no No. 3 in stock." Lockhart, Tozer & Co. to Shaw. " October 25, 1865. Will you transfer balance of Bayley & Co.'s contract, as per accompanying note ? We understand from Bayley the delivery is not guaranteed for two to three months at least." Shaw to Lockhart, Tozer & Co. " October 26, 1865. In reply to your note of the 25th inst., I am unable to say when I can send away iron from the furnaces." Lockhart, Tozer & Co. to Shaw. "December 16, 1865. We inclose two letters received this week from parties holding contracts for Yane & Seaham pig iron ; will you please advise us on the subject, as we cannot any longer make them wait for the iron V Lockhart, Tozer & Co., to Shaw. " December 29, 1865. We beg to advise you that those customers who have contracts for your iron yet undelivered are now pressing us extremely, and are threatening to purchase against you, charging you with the differ- ence in amount. When our Mr. Wm. Tozer, from Manchester, waited upon you he was informed that it might take three months to put the furnaces into repair, and we informed all our friends to this effect, who have waited considerably over that time. Now they consider that their contracts are entitled to attention. Will you have the goodness to inform us of the present position of affairs, and say when you think we can promise deliveries % The iron is now very sound and strong, and we think there is a good time for the trade before us." Shaw to Lockhart, Tozer & Co. " January 2, 1866. Your favor of the 29th ult. came duly to hand, and in reply I beg to say that at present I cannot say what it is intended to do with the blast furnaces." Lockhart, Tozer & Co. to Shaw. " January 18, 1866. We inclose letter sent us this morning by Mr. Ogle's solicitors. Will you please advise us immediately what course you wish us to pursue, as we expect Hall & Pickles will pursue the same course ? " 320 CONTRACTS FOR SALE AND OTHER AGREEMENTS. Shaw to Lockliart, Tozer & Co. " January 19, 1866. Your favor of the 18th inst., inclosing letter from Messrs. Slater & Barling [plaintiff's solicitors], came duly to hand, and in reply I can only say that, as the blast furnaces suddenly gave way, and were not blown out, and no iron having been made since, it is a casualty all buyers are subject to." Lockhart, Tozer & Co. to Shaw. " February 9, 1866. We are sorry to again trouble you, but we cannot help, as we have put off and put off our customers till now they seem deter- mined to bring matters to a focus. We wrote you on Monday, with copy of letter from Mr Ogle's attorneys. We now inclose another from that firm and ask your attention to it. Mr. Hall, of Hall & Pickles, has given us notice that he shall commence to suit himself unless you make the best efforts to get the furnaces in blast or to give him other iron. Bellhouse & Bayley are also threaten- ing us." Shaw to Lockhart, Tozer & Co. " February 10, 1866. Your favors of the 6th and 9th instant came duly to hand. I should like to have a copy of the contracts entered into with the different gentlemen, as I am aware in more instances than one when they were not fulfilled to the time we had no redress." W. Tozer for Lockhart, Tozer & Co. to Shaw. " Feb. 13, 1866. Yours received during my absence from home. I inclose copy of the sale note as furnished Ogle and others. I have also re- ceived another communication this morning from Dalham Forge Company. They will not wait any longer for their iron, but say they shall buy, and charge you the difference." The plaintiff bought in the market in February, 1866, the mar- ket price having risen continuously from June, 1865, to February, 1866, and he commenced his action on the 8th of February, claim- ing as damages 2371. 10s., the difference between the market price in February, 66s. 6d. per ton, and the contract price, 57s., of 500 tons of iron of the quality contracted for. The defendant's counsel submitted that there was no legal evi- dence to go to the jury to show that the plaintiff was entitled to more damages than the difference between the contract price and the market price at the end of July, 1865, when the contracts were broken ; and it was agreed that the 100^. paid into court was suffi- cient to cover this. The learned judge reserved the point ; and the jury having returned a verdict for 1371. 10s., the balance of the sum claimed, leave was reserved to move to enter it for the defendant, if the OGLE v. EARL VANE. 321 court should be of opinion that there was no evidence to go to the jury of the plaintiff being entitled to more damages than the sum paid into court. A rule having been obtained accordingly, the Court of Queen's Bench, after Hilary Term, 1867, discharged it (Law Rep. 2 Q. B. 275). T. Jones, Q. C. {Crompton with him), for the defendant. — Each party contracts with reference to the damages which will arise if the contract is broken ; and Shaw, the defendant's agent, has never undertaken to do more than the law implies from the contract to deliver in July, viz., to pay the difference between the then market price and the contract price. Either there is a contract void under the statute of frauds, or there is no contract enabling the plaintiff to recover these larger damages ; otherwise the defendant would be bound, and the plaintiff be at liberty. Suppose the price had fallen between July and February, the plaintiff would still have been entitled to the 100Z., the difference between the market price in July and the contract price. This right has never been abrogated unless there was a fresh contract ; but if there was no new contract, and the price of iron had fallen, the defendant could not have called upon the plaintiff to accept the iron after July. Again, in none of the letters has Shaw asked the plaintiff to wait ; on the contrary, he repudiated all liability, but added, " you had better wait." [Kelly, C. B. — Was it not for the benefit of the defendant that the plaintiff waited ?] The waiting was a mere speculation on the part of the plaintiff ; he knew he could always claim the 100Z. [Montague Smith, J. — Suppose the defendant had actually written in July, " Do not go to this market, but wait," and the plaintiff had waited ?] [Keatestg, J. — The statement in the letter of the brokers of the 29th of December, 1865, coupled with the answer of the defendant of the 20th of January, 1866, which contains no denial of the state- ment, amounts to that.] These are mere extrinsic circumstances which cannot be looked at. In Brady v. Oastler (3 H. & C. 112, 127; 33 L. J. Ex. 300, 305), in measuring the damages the court refused to look beyond the contract. Pollock, C. B., there says : " When a contract is broken, and an action is brought for damages, the heads of damage are for the court ; the amount of damage under each head for the jury ; and I think the heads of damage must be determined by the 21 322 CONTRACTS FOR SALE AND OTHER AGREEMENTS. contract itself, as finally agreed upon by the parties, and pnt into writing." [Kelly, C. B. — What was shut out in that case was what had occurred before breach.] That makes no difference. An agreement in writing cannot be varied by a subsequent parol agreement ; the original agreement remains in full force (Noble v. Ward, 4 II. & C. 149 ; Law Rep. 1 Ex. 117). In the court below both judges base their decision on the ground that there was no new contract ; but it is a contradiction in terms to say that there is no new contract, and yet that the defend- ant is bound to pay damages to which he was not liable under the original contract. Holker, for the plaintiff, was not heard. Kelly, C. B. — We are of opinion that the judgment of the Court of Queen's Bench must be affirmed. There was a contract on the part of the defendant to deliver a quantity of iron, say, by the 25th of July, and when that time arrived none of the iron had been delivered. The defendant's furnaces had met with an accident, and he was therefore unable to prepare the iron, and so unable to perform his- contract ; and there can be no doubt that the plaintiff was entitled to commence an action at once, and if he had, the damages would have been measured, according to the ordinary rule, by the market price at which the plaintiff could have purchased the iron at that time. But, in consequence of a written correspondence and some personal communication, we find the plaintiff forbearing to sue, and the defendant continuing to fail to deliver the iron. It may be that on this correspondence we cannot collect that there was any new binding contract on the plaintiff to forbear for even an indefinite term, nor on the defendant to deliver the iron. It is also true that the defendant in effect denies his liability ; but that did not put the plaintiff under any obligation to reply that the defendant was liable, and that the plaintiff held him so liable. This is what takes place : the defendant (for what Shaw did may be taken as done by the defendant), who has broken his contract, and is then liable for the breach, writes to the plaintiff, and proposes to deliver as a substitute for the iron under the contract a different kind of iron. The plaintiff proceeds to take this proposal into con- sideration, and ultimately it comes to nothing, the persons with whom the plaintiff had sub-contracts refusing, from whatever may have been the cause, to accept the substitution ; and the proposal is not accepted by the plaintiff. But surely the very proposal itself implies a request, in all courtesy, as between men of business, that OGLE v. EAKL VANE. 323 the plaintiff will not commence an action at once, but delay, in order to see whether a compromise cannot be effected ; and surely whether there was that implied request, and consequent delay on the part of the plaintiff, was matter for the consideration of the jury in estimat- ing the damages the plaintiff was entitled to. But the case does not stop there ; there is the letter of the 29th of December, pointed out by my brother Keating, which shows that a personal communica- tion had taken place between the brokers, or one of them, and Shaw, the defendant's agent, and the broker had been informed that it would take three months to put the furnaces in repair, and that this information had been communicated to " all " the brokers' " friends," of whom the plaintiff was one, and they had waited for the three months and more. Surely, again, this communication from the defendant inched a request to the plaintiff and the other parties to forbear, and the plaintiff's waiting was an acquiescence in this re- quest. Can it reasonably be contended that that which has been called a rule of law as to the measure of damages, but which is rather a mere rule of practice, is to prevail under all circumstances % It would be contrary to common sense and justice, when there has been a series of proposals by the defendant, involving delay for his own benefit, and acquiescence on the part of the plaintiff, that because there may be no binding contract, varying the terms of the former contract, the plaintiff is to be tied down to the strict letter of the rule as to the measure of damages for the non-delivery of goods, and not be entitled to the damages consequent upon the delay. I think, without entering into the question whether there is such a positive rule of law or not, we cannot do otherwise, under the circumstances of the present case, than hold the plaintiff to be entitled to the larger measure of damages. Willes, J. — I am of the same opinion. I should like to add, however, that it appears to me there was in this case, in point of fact, a contract to purchase forbearance, — that is, there was, I think, evidence for the jury, who were the proper judges. There was evidence on this correspondence that the plaintiff did assent to forbear, upon the understanding that in the end he was to have iron to the extent contracted for, in satisfaction of any claim that he might have on the original contract ; and, as it appears to me, there is not the absurdity, as put by Mr. Jones, in saying there was a contract and no contract— a contract to affect the damages, and no contract to give a fresh cause of action ; and for this reason — that the contract, wdiich did exist in fact, cannot be sued on at laAv. 1 >y reason of the old rule that an accord not followed by satisfaction 324 CONTRACTS FOR SALE AND OTHER AGREEMENTS. was inoperative to give the defendant a defense, or to give the plaintiff a new remedy. The defendant would have no defense, because there was no satisfaction, and the plaintiff would have no new remedy if iron was not delivered, because he could not recover twice over. That is the true reason why the judges in the court below said there was no contract ; there being no contract that could be enforced at law. But I never heard that that technical rule, as to no action lying on a bare accord, prevented an arrangement, by which, in such a case as this, buying in against a contract is carried over from one market to another, being so far operative as to affect the measure of damages on the original contract ; and, for the reasons stated by the Lord Chief Baron, I entirely agree that there was evidence for the jury that what passed between the parties amounted to such an arrangement ; and the measure of damages was, therefore, to be taken at the time when the purchase was made by the plaintiff, and not according to the general rule relied on by Mr. Jones, to which this case furnishes an exception, so far as that the plaintiff's right to purchase was carried over from July by the defendant requesting forbearance and the plaintiff assenting to the request. The defendant, in effect, bought forbearance, and must pay for it. Channeix, B., and Keating and Montague Smith, JJ., con- curred. Judgment affirmed. Note.— The foregoing case is followed in Hickman v. Hayne, L. R. 10 C. P. 598. See Tyers v. The Rosedale & Terry Hill Iron Co. limited, L. R. 8 Exch. 305; reversed, L. R. 10 Exch. 195. MERRIMACK MANUFACTURING CO. v. QUINTARD. 325 SEVERAL DELIVERIES. Contract for Sale A]std Delivery of Coal m Monthly Portions Delay ; Loss from Increase of Freight ; Waiter. SUPREME COURT, MASSACHUSETTS. [1871.] Merrimack Manufacturing Co. v. Quintard (107 Mass. 127). In an action to recover damages for failure to deliver seasonably goods sold by tbe de- fendants to the plaintiffs, it appeared that, when the time agreed upon for the deliv- ery of the goods was so nearly expired that it was evident that they could not be delivered within it, the defendants asked the plaintiffs whether they would receive the goods afterwards, and the plaintiffs replied that they not only would consent to, but insisted upon, the delivery. The plaintiffs introduced evidence tending to show that they then said that they would claim damages for an}' increase in the cost of the goods, produced by any advance in freights or insurance. The defendants in- troduced evidence tending to contradict this, and to show that the plaintiffs waived any objection on the ground of the delay. The judge instructed the jury that re- ceiving the goods without objection on the ground of delay would be prima facie a waiver of any such objection, but that if, on consenting to receive the goods, the plaintiffs gave notice that they should claim damages for increased expenses grow- ing out of the delay, then receiving the goods would not be evidence of a waiver. The jury found for the plaintiffs. Held, that the question of waiver was properly left to them. The defendants contracted to sell and deliver a large quantity of coal to the plaintiffs at a fixed price, in equal monthly portions, during a certain time, to be transported by vessel and rail, at the plaintiffs' expense, to their factory ; and the plaintiffs agreed to receive the coal if the first cargo should prove satisfactory. Held, in an action to recover for a breach of the contract in delivering coal of an inferior quality, and in failing to deliver it until after the contract time, that the measure of damages for the inferior quality was the difference between the value at the factory of the coal called for by the contract and that of the coal delivered, and the measure of damages for the failure to deliver in time was not the difference in the market value, but the dif- ference between the actual charge for freight and insurance and the average rates during the time covered by the contract, especially in the absence of evidence that the average rates were higher than the rate at the end of the contract period. In an action to recover damages for delay in delivering coal under a contract to sell and deliver coal during the summer, freight to be paid by the purchaser, evidence is ad- missible that freights on coal were usually higher in the autumn than in the summer, to show what was in the contemplation of the parties, and that the loss occasioned by increase in the freight is properly to be recovered as damages. Contract to recover damages for breacli of an agreement, dated February 29, 1868, between tbe defendants, as parties of the first part, and tbe plaintiffs, as parties of tbe second part, tbe provisions of which were as follows : 326 SEVERAL DELIVERIES. " The parties of the first part agree to sell the parties of the second part 14,000 tons of the Preston & Gilberton Locust Mountain coal, deliverable from April 1 to September 1, current year, on board ves- sels at Philadelphia, in equal monthly proportions, as nearly as may be, at the price of $3 50 per ton of 2,240 pounds, free on board, pay- able in cash. If the parties of the first part be interrupted in the delivery of the above coal during the time specified, viz., April 1 and September 1, current year, by strikes or any unforeseen causes, additional time will be allowed them to complete the delivery of the same, not exceeding one month. Bills of lading shall he prima facie proof of delivery in regard to time and quality, and the coal when on board is to be at the risk of the parties of the second part. The parties of the first part agree to use their best exertions in procuring vessels at as low rates of freight as possible for the parties of the second part, and are to attend to the shipping of the coal without charge. Bills of lading are to be made to the treasurer of the parties of the second part, either to the Boston & Lowell Railroad Wharf in Boston, or to Phillips "Wharf in Salem, so as to be conveniently de- livered to the cars at either place, as customary, as the parties of the second part may direct. The parties of the second part agree to purchase and to receive the above coal as above described and specified, and to pay for the same as mentioned above, provided the first cargo, which shall be shipped by the parties of the first part as early as navigation will permit, as a sample cargo of the coal, shall prove sat- isfactory to the parties of the second part ; a reasonable time to be allowed for testing the same ; if not satisfactory, then this agree- ment to be void." The breach alleged was, that a portion of the coal delivered was inferior to the alleged sample, and that another portion was not de- livered at the specified time. At the trial in this court, before Ames, J., the execution of the agreement was admitted, and it appeared " that the sample cargo was received by the plaintiffs," who are a manufacturing corporation, " at Lowell, in April, 1868, and that seven or eight cargoes in about a month afterwards were landed at Boston and Salem and forwarded to the plaintiffs' works at Lowell." And there was evidence tend- ing to show " that the quality of the coal making up these cargoes proved on trial at the plaintiffs' works at Lowell to be inferior to the sample ; that they objected to it, and notified the defendants that no more of that kind would be received ; and that the delivery at Phila- delphia of a large portion of the coal did not take place till after October 1, whereby the plaintiffs were obliged to pay higher prices MERRIMACK MANUFACTURING CO. v. QUINTARD. 327 for freights and insurance." There was conflicting evidence upon the question " whether the plaintiffs agreed to waive all objection to the quality of the coal so complained of, provided the remainder should be such as the contract required, or whether that matter was merely reserved for adjustment on final settlement." " In order to show what increase there had been in freights and insurance, resulting from the delay in delivery, the plaintiffs were permitted to show what had been the actual expense to them, under these heads, upon the coal shipped within the period limited by the contract, and what had been the actual expense for the same items on the coal shipped after that time ; also to show the number of tons received within the period limited by the contract, and the aver- age rate of freight on each ton, and the same things as to that por- tion of the coal that was shipped after that period ; and also the in- crease in the cost of insurance. The treasurer of the plaintiffs, who testified that he had been long in the practice of buying and receiv- ing coal from Philadelphia, was permitted to testify that freights on such shipments were usually higher in the autumn than in the sum- mer months. To all this evidence the defendants objected as inad- missible ; but the judge admitted it. " It appeared that, from a strike of miners or some other cause, the price of coal advanced in Philadelphia from $3 50 per ton in July to $5 00 in October and November, when the last coal was de- livered ; and that freights were usually, but not always, higher in the autumn than in the summer months ; that the plaintiffs paid the freights from Philadelphia on all the cargoes which they received ; that they made no complaint of delay upon any shipment previous to October 1 ; and that they had no opportunity to test the quality of the coal, until they began to use it in their works at Lowell ; and it did not appear that the freights in the latter part of September were lower than the average rate during the three months from July 1. " The defendants offered evidence tending to show that, shortly before the expiration of the time limited by the contract, and when it had become manifest that the coal could not all be delivered within that time, their agent applied to the plaintiffs' treasurer to inquire whether they would receive after the time limited by the contract what remained to be delivered ; and the answer was, that they not only would consent to, but insisted upon, its delivery. The plaint- iffs offered evidence tending to show that the treasurer said at the same time that the plaintiffs would claim damages for any increase in the cost of the coal at Lowell produced by any advance in freights 328 SEVERAL DELIVERIES. and insurance. The defendants denied that any such notice was given to their agent, or any such claim made ; and they introduced evidence tending to show that all objection on the part of the plaint- iffs on the ground of the delay was waived, if the defendants would agree to pay the increased expense of insurance, which they did agree to do. " There was also evidence that the coal objected to as bad in quality arrived at Lowell at different dates, but early in May, and that the defendants were notified that it was not satisfactory, late in that month, and sent one of their firm to Lowell to examine it ; but whether there was any neglect or delay in giving notice of the ob- jection within a proper time was one of the questions of fact sub- mitted to the jury under instructions to which no exception was taken. " The defendants asked the judge to rule that, if the plaintiffs had any claim on the ground of delay in the delivery, their damages were to be estimated by the difference in the market value of the coal between the time embraced in the contract and the time of the actual delivery ; and they objected to all evidence of increased rates of freight and insurance, on that ground. They also asked the judge to rule that, by demanding the delivery of the coal after the expiration of the contract period, and then accepting it, the plaintiffs had waived the element of time in the contract ; and insisted that, if the plaintiffs could recover for difference in freight and insurance, it would be only for the excess paid above the rates paid for shipments made at the termination of the contract period, and not above the average rates of that period ; and that, if they had any claim for de- ficiency in quality, it must be for difference in value at the place of delivery, and not at Lowell, the place of consumption." The judge did not rule as requested, but instructed the jury " that, if the plaintiffs received the coal at Lowell without any com- plaint or objection on account of its bad quality or the delay in de- livery, it would be prima facie evidence of a waiver of all objection on either of these grounds ; but if, on trial of it at their works, and within a reasonable time thereafter, they gave notice to the defend- ants that damages or allowance would be claimed on account of its bad quality, such receiving of the coal would not be evidence of a waiver of that objection ; that if, on consenting to receive that por- tion of the coal which was delivered after the expiration of the con- tract period, they gave notice that they should claim damages for in- creased expenses growing out of such delay, receiving it under such circumstances would not be evidence of a waiver of that objection ; MERRIMACK MANUFACTURING CO. v. QUINTARD. 329 that, if the delay in the delivery of the coal increased its cost to the plaintiffs, by increasing the charges for freight and insurance above the average rate for those items or shipments during the contract period, they would be entitled in this action to recover such actual increase of the cost, unless some waiver or modification of the agree- ment in that respect should be shown ; and that, if the plaintiffs proved that any portion of the coal delivered was inferior in quality to what they were entitled to receive, they were entitled to recover an allowance for such deficiency in value, or for the difference be- tween the value of the coal delivered at Lowell and that of the coal which by the contract they were entitled to receive, unless some waiver of objection for that cause were shown, without reference to the value at the place of shipment." The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions. Colt, J. — The plaintiffs claim damages both on account of the in- ferior quality of coal delivered, and the failure to deliver within the time named in the contract. The defendants insist that both claims were waived. [The learned judge then held that as there had been conflicting evidence as to whether the plaintiffs had unconditionally waived their right to have the coal delivered according to the terms of the contract, in respect to both time and quality, this question had been properly left to the jury, citing Fox v. Harding (7 Cush. 516, 520).] As to the rule of damages, the plaintiffs are entitled to recover for such losses as were the direct and natural consequence of the de- fendants' failure to perform, and also for such as were foreseen, or may reasonably be supposed to have been foreseen, at the time of making the contract. To ascertain what these were, resort must be had to the terms of the contract for its meaning, as applied to the subject-matter, and as interpreted by the general and known usages of the business to which it refers. It was in substance an agree- ment to deliver on board vessels at Philadelphia, to the plaintiffs, who are a manufacturing company at Lowell, at a fixed price, a large quantity of coal, in equal monthly proportions, during the time in- cluded in the contract. A sample was to be sent and tested by the plaintiffs, and bills of lading made to wharves either in Salem or Bos- ton, at the plaintiffs' option, so as to be conveniently delivered to the cars in either place, as customary, and without doubt contem- plating its further transportation by rail to the plaintiffs' place of business. It was therefore not simply the sale of property to be de- livered at a particular time and place, but it was an agreement for 330 SEVERAL DELIVERIES. the delivery of property to be transported by vessels and by railroad, -at the plaintiffs' expense, to their place of business in Lowell. This construction of the contract fully sustains the rule of dam- ages laid down at the trial. The loss from inferior quality, to which the plaintiffs are entitled, is the loss which they sustained at Lowell. There is nothing in the case to show that they were bound, or that it was expected they would be bound, by any prior acceptance of it, at the place of shipment or elsewhere ; and so the loss by the in- creased charges for freight and insurance is a fair measure of dam- age to them, ascertained by the failure to deliver in time. Nor do we perceive that any wrong is done by taking the increased rates of freight and insurance above the average rates during the contract period, especially as it does not appear that the average rates for ship- ment were higher than the rates paid at the termination of the con- tract period. These items of damage are fairly contemplated by the contract. The difference in market value of the coal between the time of actual delivery, and the time it should have been delivered, as a rule of damages, is not applicable. The plaintiffs received all the coal called for by the contract, at the contract price, and do not claim damages for any deficiency in quantity. They are entitled to the benefit of their contract, although the market value had increased by the delay. The objections taken to the admissibility of the plaintiffs' evi- dence appear by this discussion to have been properly overruled. It was clearly competent for the treasurer to testify that he had long been in the practice of buying and receiving coal from Philadelphia, and that freights were usually higher in autumn than in summer. The understanding of the parties must be ascertained by the nature of the traffic to which the contract refers (Cutting v. Grand Trunk Kailway Co. 13 Allen, 381 ; Batchelder v. Sturgis, 3 Cush. 201, 204 ; Bartlett v. Blanchard, 13 Gray, 429). Exceptions overruled. BOOTH v. THE SPUYTEN DUYVIL ROLLING MILL CO. 331 CoOTEACT FOE AbTICLE TO BE MANUFACTURED | SeVEEAL DeLIVEEIES. COLTET OF APPEALS, NEW YOEK. [1875.] Booth v. The Spuyten Duyvil Rolling Mill Co. (60 IS". Y. 487). To charge a party to a contract with responsibility for special consequences which may result from breaking it, notice of such consequences must have been given under circumstances implying that it formed the basis of the agreement. The plaintiff, owning a patent for steel-capped rails, contracted to furnish the New York Central Railroad Company, by May 31, 18G8, with 400 tons of these rails, for which the company agreed to pay $135 per ton. The defendant agreed to make and deliver at its mill to the plaintiff, by April 1, 1868, 100 tons of steel caps for rails, with the privilege to deliver them in several deliveries of not less than twenty tons each, during January, February and March. The defendant, before making this agreement, was informed of the plaintiff's contract with the Central Railroad Co., and that the caps were necessary to be used in making the rails, but was not informed of the price to be paid for the rails. Both parties knew the caps could not be procured elsewhere in time to enable the plaintiff to fulfill the agreement with the Central Co. The iron base and steel caps of the rails, when separated, had no market value, nor was there any market value for the completed rail, which was a newly invented article. The defendant failed to deliver the steel caps as agreed, in consequence of which the plaintiff was prevented from fulfilling his contract with the railroad company. March 10th, 1868, the defend- ant's rolling mill was burned, and the defendant thereby prevented from completing its contract with the plaintiff within the time limited. The action was brought to recover damages for that failure ; and the referee before whom it was tried found that the defendant was liable for the loss of the profits which would have been derived from the sale to the railroad company. The judgment on this report having been affirmed by the general term of the Supreme Court, the defendant appealed to this court. Chuech, C. J., delivering the opinion of the court, after holding that the defendant was not excused from the performance of its contract by the destruction of its mill, proceeded as follows : The 332 SEVERAL DELIVERIES. more important question relates to the proper rule of damages. The referee finds that, prior to the contract with the defendant, the plaintiff had contracted with the New York Central Railroad Com- pany to sell and deliver to it, by the first of June, 400 tons of rails, to be composed of an iron foundation and steel caps, for the invention of which the plaintiff had obtained a patent ; and that when the con- tract was made with the defendant he informed it that he wanted the caps to perform the contract ; that if they had been delivered by the first of April the plaintiff could have performed his contract ; and he finds, also, facts showing that the plaintiff would have realized the amount of profits for which the recovery was ordered. The damages for which a party may recover for a breach of con- tract are such as ordinarily and naturally flow from the non-perform- ance. They must be proximate and certain, or capable of certain ascertainment, and not remote, speculative or contingent. Itjs pre- sumed that the parties contemplate the usual and natural conse- quences of a breach when the contract is made ; and if the contract is made with reference to special circumstances, fixing or affecting the a mount of damages, such special circumstances are regarded within the contemplation of the parties, and damages may be as- sessed accordingly. For a breach of an executory contract to sell and deliver personal property, the measure of damages is, ordinarily, the difference between the contract price and the market value of the article at the time and place of delivery ; but if the contract is made to enable the plaintiff to perform a sub-contract, the terms of which the defendant knows, he may be held liable for the difference between the sub-contract price and the principal contract price, and this is upon the ground that the parties have impliedly fixed the measure of damages themselves, or, rather, made the contract upon the basis of a fixed rule by which they may be assessed. The au- thorities cited on both sides recognize these general rules (16 N. Y. 489 ; 114 C. L. E. 445 ; 7 L. R. C. P. 587 ; 26 L. & Eq. 398 ; 34 N. Y. 364 ; 40 Id. 422 ; 96 C. L. R. 82 ; 54 K Y. 586 ; L. R. 3 Q. B. 181 ; 102 E. C. L. [1 Ell. & Ell.], 602 ; L. R. 3 C. P. 499 ; L. R. 8 C. P. 131). The difficulty is in properly applying general rule to the facts of each particular case. Here it is found, in substance, that the contract was made to enable the plaintiff to perform his contract with the railroad company, and that this was known to the defendant. It is insisted, however, that as the price which the rail- road company was to pay the plaintiff for the rails was not commu- nicated to the defendant, it cannot be said that it made the contract with reference to such price. It is expressly found that there was BOOTH v. THE SPUYTEN DUYVIL ROLLING MILL CO. 333 no market price for the steel caps, and it does not appear that there was any market price for the completed rail. The presumption is, from the facts proved, that there was not. It was a new article, and the contract was made to bring it into use. The result of the able and elaborate argument of the learned counsel for the defendant is, that in such a case, that is when, although the contract is made with reference to and to enable the plaintiff to perform a sub-contract, yet if the terms of the sub-contract, as to price, are unknown to the vendor, and there is no market price for the article, the latter is not liable for any damages, or, what is the same thing, for only nominal damages. I have examined all the authorities referred to, and I do not find any which countenances such a position, and there is no reason for exempting a vendor from all damages in such a case. It is not because the vendee has not suffered loss, as he has lost the profits of his sub-contract ; it is not because such profits are uncer- tain, as they are fixed and definite, and capable of being ascertained with certainty ; it is not because the parties did not contract with reference to the sub-contract, when it appears that the contract was made for the purpose of enabling the vendee to perform it. If the article is one which has a market price, although the sub-contract is contemplated, there is some reason for only imputing to the vendor the contemplation of a sub-contract at that price, and that he should not be held for extravagant or exceptional damages provided for in the sub-contract. But the mere circumstance that the vendor does not know the precise price specified in the contract will not exoner- ate him entirely. Fie cannot, in any case, know the precise market price at the time for performance. Knowledge of the amount of damages is impracticable, and is not requisite. It is only requisite that the parties should have such a knowledge of special circum- stances, affecting the question of damages, as that it may be fairly inferred that they contemplated a particular rule or standard for estimating them, and entered into the contract upon that basis. In Hadley v. Baxendale (9 Ex. 341), which is a leading case on the sub- ject in the English courts, the court, after speaking of the general rule, says : " If the special circumstances under which the contract was actually made were communicated by the plaintiffs to the de- fendants, and, thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of the contract under the special circumstances so known and communicated." This case has been frequently referred to, and the rule, as laid 334 SEVERAL DELIVERIES. down, somewhat criticised ; but the criticism is confined to the char- acter of the notice, or communication of the special circumstances. Some of the judges, in commenting upon it, have held that a bare notice of special consequences which might result from a breach of the contract, unless under such circumstances as to imply that it formed the basis of the agreement, would not be sufficient. I concur with the views expressed in these cases ; and I do not think the court, in Hadley v. Baxendale, intended to lay down any different doctrine (see authorities before cited). Upon the point involved here, whether the defendant is exenrpted from the payment of any damages when there is no market price, and the price in the sub- contract is not known, there is no conflict of authority that I have been able to discover. In the first place, there is considerable rea-i son for the position that where the vendor is distinctly informed that the purchase is made to enable the vendee to fulfill a sub-con- tract, and knows that there is no market price for the article, he assumes the risk of being bound by the price named in the sub-con- tract, whatever that may be, but it is unnecessary to go to that ex- tent. It is sufficient to hold, what appears to me to be clearly just, that he. is bound by the price, unless it is shown that such price is extravagant, or of an unusual and exceptional character. The pre- sumption is, that the price at which the property was sold was its fair value, and that is to be taken as the market price for the pur- pose of adjusting the damages in the particular case. This presump- tion arises here. The profits were not unreasonable, certainly not extravagant. About fifteen per cent, was allowed for profits, includ- ing the use of the patent, and no evidence was offered, or claim made, that the price was not the fair value of the article. We must assume that it was, and, hence, within the contemplation of the par- ties. The case of P.orries v. Hutchinson (114 E. C. L. 443) is quite analogous to this. The article, caustic soda, was purchased to be sold to a foreign correspondent, which the defendant knew. There were several items of damage claimed. The profit on the sub-con- tract was conceded, and the money paid into court, but the court held, in passing judgment, that the plaintiff was entitled to recover such profits. Erle, C. J., said : " Here the vendor had notice that the vendee was buying the caustic soda, an article not ordinarily procurable in the market, for the purpose of resale to a sub-vendee, on the continent. He made the contract, therefore, with the knowl- edge that the buyers were buying for the purpose of fulfilling a con- tract which they had made with a merchant abroad." The case of Elbinger v. Arms trong (L. K. 9 Q. B. 473) also BOOTH v. THE SPUYTEX DCYVIL ROLLING MILL CO. 335 illustrates the rule. That was a contract for the purchase of 666 sets of wheels and axles, which the plaintiff designed to use in the manufacture of wagons, and which he had contracted to sell and deliver to a Russian company by a certain day, or forfeit two rou- bles a day. The defendant was informed of the contract, but not of the amount of penalties. Some delay occurred in the delivery, in consequence of which the plaintiff had to pay 100/. in penalties, and the action was brought to recover that sum. There was no market in which the goods could be obtained, and the same point was made there as here, that the plaintiff was only entitled to nominal dam- ages ; but the court says : " When, from the nature of the article, there is no market in which it can be obtained, this rule (the differ- ence between the contract and market value) is not applicable, but it would be very unjust if, in such cases, the damages must be nom- inal." It is true that the court held that the plaintiff could not recover the penalties as a matter of right, mainly upon the ground that such a consequence was not, from the nature of the notice, contemplated by the parties ; and yet the judgment, directing the amount of the penalties paid, was allowed to stand, as being a sum which the jury might reasonably find. Cory v. Thames Iron Works Co. (L. R. 3 Q. B. 181) decided that when the article purchased was designed by the purchaser for a peculiar and exceptional purpose unknown to the seller, the latter was, nevertheless, liable for the damages which would have been incurred if used for the purpose which the seller supposed it would be used for. The case of Home v. Midland Railway Co. (L. R. 8 C. P. 131) is not in conflict with the position of the plaintiff. In that case the article had a well known market value. The sub-contract was at an unusual and extravagant price, of which the defendant was not in- formed. Besides, the defendant was a carrier, and it was seriously doubted by some of the judges whether the same rule would apply to a carrier as to a vendor. The question in all these cases is, what was the contract ; and a carrier who is bound to take property offered at current rates, would not, perhaps, be brought within the principle by a notice of ulterior consequences, unless such responsibility was sought to be imposed as a condition, and he have an opportunity to refuse the goods ; or unless a special contract at increased rates was shown. The decision was placed upon the ground that the excep- tional price was not within the contemplation of the parties. The authorities in this State support the doctrine of liability in a case like this. The cases of Griffin v. Colver (16 K Y. 189 ; ante, p. 269) 336 SEVERAL DELIVERIES. and Messmore v. K Y. Shot Co. (40 K Y 422 ; ante, p. 302), especially the latter, decide the same principle. The defendant in that case was informed of the price of the sub-contract, bnt the decision was not put upon that ground. This case presents all the elements which have been recognized for the application of the rule of liability. The plaintiff contracted with the defendant expressly to enable him to perform his contract with the railroad company, which the defendant knew. The goods could not have been obtained elsewhere in time ; and in consequence of the failure of the defendant to perform his contract, the plaintiff lost the benefit of his sub-contract. It is not claimed that the price at which the completed rails were agreed to be sold was extravagant or above their value ; and as there was no market price for the article, the fact that the defendant was not informed of the precise price in the sub-contract, does not affect its liability. Nor does the fact that the defendant's contract does not embrace the entire article resold, re- lieve it from the consequences of non-performance. It was a mate- rial portion of the rail, without which it could not be made ; and solely by reason of the failure of the defendant, the plaintiif failed to perform his contract, and thereby lost the amount for which he has recovered. We concur with the opinion of the referee and court below, in their views, holding the defendant liable. The judgment must be afiirmed. All concur. Judgment affirmed. Contract foe Several Deliveries ; Breach Before Time for Complete Performance, court of common pleas. [1873.] Eoper v. Johnson (L. E. 8 C. P. 167 ; 42 L. J. R. K". S. C. P. G5). The defendant, in April, agreed to sell and the plaintiffs to buy 3,000 tons of coal, at 8s. 6d. per ton, "to be taken during the months of May, June, July, and August." No coal having been taken by the plaintiffs in May, the defendant wrote on the 31st of that month, desiring the plaintiffs to consider the contract canceled. The plaintiffs did not assent to this ; but on the 11th of June the defendant definitively refused to deliver any coal, and on the 3d of July the plaintiffs brought an action for this breach. ROPER v. JOHNSON. 337 At the trial, winch took place on the 13th of August, the plaintiffs proved that the price of coal had risen during the whole period since the beginning of May, and was still rising. No evidence was given to show whether the plaintiffs could have gone into the market and obtained a new contract for coals. Hdd, that in the absence of evidence on the part of the defendant, that the plaintiffs could have obtained a new contract on such terms as to mitigate their loss, the true measure of damages was the sum of the differences between the contract price and the market price at the several periods for delivery, notwithstanding that the last period had not elapsed when the action was brought, or when the cause was tried. The cause was tried before Brett, J., at the last summer assizes at Liverpool. The plaintiffs are colliery proprietors and coal mer- chants carrying on business at Ackhurst Hall Colliery, near Wigan, and also at Manchester. The defendant is a colliery proprietor at Hindley Green, St. Helen's. In April, 1872, a negotiation took place between the plaintiffs and the defendant for the sale by the latter to the former of 3,000 tons of coal to be delivered in equal monthly quantities during the months of May, June, July, and August. Subsequently, the following correspondence passed be- tween the parties : April 18th, 1872. Defendant to plaintiffs : " I beg to inform you that my lowest price for coal at pit is 8s. 6d. per ton, less 2£ per cent, discount ; but could not bind myself to supply the quantity named." April 25th, 1872. Defendant to plaintiffs : " According to my promise, to-day, I now offer you 3,000 tons of coal to be delivered during the months of May, June, July, and August, at 8s. Qd. per ton, less 2£ per cent, discount, at my colliery, Hindley. This offer to remain open until Monday next." April 26th, 1872. Plaintiffs to defendant : " We hereby accept your offer of 3,000 tons of Wigan, 4 and 5 foot coal, at 85. 6d. per ton, less 2£ per cent, discount, at your siding, Hindley Green, to be taken during the months of May, June, July, August, and Septem- ber next. We have added September, in accordance with the ar- rangement entered into personally yesterday." April 27th, 1872. " Defendant to plaintiffs : " I can only deliver during the months of May, June, July, and August, and to be ex- empt in case of strikes and accidents. As you are strangers to me, I shall require cash or a satisfactory reference." April 29th, 1872. Plaintiffs to defendant : " We agree to take delivery in the months named, viz., May, June, July, and August, although we think it rather strange, after the previous under- standing. With regard to references, you had better make your 338 SEVERAL DELIVERIES. own inquiries about us ; and, if they do not result satisfactory, we will pay cash." April 30th, 1872. Plaintiffs to defendants; "Your favor of this morning is to hand.* We think you are giving yourself unnec- essary trouble. We thought you would make the usual inquiry through your bankers. However, we beg to refer you to the Man- chester and Liverpool District Bank, Wigan. We purpose taking the coal in regular daily quantities in your wagons, and propose send- ing you instructions in the course of next week." May 31st, 1872. Defendant to plaintiffs : " As you have not taken the coal according to arrangement, you must consider the con- tract canceled." June 1st, 1872. Plaintiffs to defendant : " Yours of the 31st ultimo duly received, in which you say that the contract for 3,000 tons coal must be considered canceled. In reply, we beg to say that we are not aware of any circumstances to justify the same, and there- fore consider the contract as still in force." June 10th, 1872. Plaintiffs to defendant : " We beg to inform you that we have ordered twenty-five wagons to be sent to your col- liery, which be good enough to load and forward to Garston to our order. The wagons will be kept constantly running, so that deliv- eries will be steadily taken." June 11th, 1872. Defendant to plaintiffs: "I am in receipt of yours of yesterday, and beg to state I shall not load your wagons if sent to my colliery. The terms of my offer, in my letter to you of the 25th of April last, not having been accepted, I cannot now supply you with coal until the price and conditions are first arranged. I left the matter opened from the 25th of April to the 31st of May, to enable you to accept my proposal. You not having done so, I wrote you on the latter date to the effect that you might consider our negotiation as to the 3,000 tons at an end." June 12th, 1872. Plaintiffs to defendant : " We are in receipt of your favor of the 11th. The 3,000 tons of coal bought from you are already sold, and we have sent wagons to your colliery to be filled ; in default of which, we shall charge you with demur- rage, as we consider that nothing has occurred to invalidate the contract." June 15th, 1872. Plaintiffs to defendant : " We have forward- ed to Swan Lane Colliery, nine wagons, which arrived at your * The letter referred to was not put in. ROPER v. JOHNSON. 339 siding yesterday. Be good enough to load them on our account, and give them quick dispatch, as we have a vessel waiting to be filled." June 19th, 1872. Plaintiffs' attorney to defendant: '"'Messrs. Roper & Co. have consulted us upon the subject of your breach of contract relative to 3,000 tons of coal; and we beg to inform you that, unless the amount of the damage sustained by our clients, 300Z., be paid to us by Friday next, a writ will be issued against you." The defendant replied, referring to his solicitor ; and the writ in this action was issued on the 3d of July. The plaintiffs claimed to be entitled to damages estimated ac- cording to the advance in the market price of coal at the various periods at which the coal contracted for should have been delivered, viz., in equal monthly quantities, 750 tons in each of the four months of May, June, July, and August. It was proved that, from the 14th to the 29th of May, the market price of coal had advanced (in Liver- pool, where the contract was made), 6d. per ton ; between the 29th and 31st, Is. 6d. per ton ; between the 1st and 30th of June, 2s. per ton ; between the 1st and 15th of July, 2s. 6d. per ton ; between the 15th and 19th, 3s. 6d. per ton ; between the 19th of July and the 15th of August, 5s. per ton ; and between that day and the 31st of August, it was estimated that the rise would be 10s. per ton. The trial took place on the 13th of August. In addition to this, the plaintiffs claimed a sum for wagon expenses or demurrage,* their whole claim amounting to 505Z. 2s. 56?. For the defendant it was insisted that, the plaintiffs not having taken any coal in all the month of May, the defendant was entitled to declare the contract at an end ; that, assuming the plaintiffs to be entitled to recover anything, the utmost damages they could claim would be the difference between the contract price and market price of coal on the day on which the defendant refused to perform the contract ; and that, at all events, they were not entitled to speculate upon the possible rise in the market after the day of trial. A verdict was taken for the plaintiffs for 505?. 2s. 5d., subject to leave reserved to the defendant to enter a verdict for him or a nonsuit, if the court should be of opinion that the plaintiffs, not having performed the contract by taking any coal in May, were not entitled to recover ; or to reduce the damages to such sum as the court should direct. * This claim was abandoned on the argument of the rule. 340 SEVERAL DELIVERIES. A rule was obtained and argued accordingly. C. Russell, Q. C, intimated his willingness to consent to a reduc- tion of the damages, at the suggestion of the court, to 400^. Keating, J. — The question in this case arises upon a contract by which the defendant agreed to deliver coals to the plaintiffs at cer- tain specified periods, at 8s. 6d. per ton. The quantity to be deliv- ered was 3,000 tons, and the deliveries were to take place in the months of May, June, July, and August, 1872. There was some controversy as to the facts ; but there can be no doubt that the de- fendant, soon after the contract was entered into, intimated his de- termination not to perform it ; and it seems to be agreed that, at all events, that repudiation of the contract was accepted by the plaint- iffs on the 3d of July, when they brought this action for the non- performance of it. The difficulty as to the measure of damages, or rather as to the principle on which the damages are to be assessed, arises from the circumstance of the time for delivery of the coal ex- tending over the whole of the month of August. Had the action been delayed until after the expiration of the time for the comple- tion of the contract, we should have entertained but little doubt ; for, the case would then have been distinctly within the authority of Brown v. Muller (Law Rep. 7 Ex. 319), and we should have con- sidered ourselves bound by that decision. But the difficulty here arises from the fact of the action having been brought on the 3d of July. In Brown v. Muller (supra), it was clearly decided that, where the contract is for the delivery of goods in equal proportions in a given number of months, and the action for non-delivery is not brought until after the expiration of the period stijmlated for the last delivery, the proper measure of damages is the sum of the dif- ferences between the contract and market prices on the last day of each month respectively. That was the proper measure of damages there. But here the breach occurred before the end of the period over which the contract extended ; and the question is, what is the proper measure of damages in such a case ? Mr. Herschell, in his very able argument, insisted that the true measure is the loss which had resulted to the plaintiffs at the time of such breach, and that the mode of ascertaining the amount of such loss, is to inquire upon what terms the plaintiffs could have gone into the market and ob- tained a similar contract on that day. That, it is said, is the true and the only measure of damages in such a case ; and hence it is con- tended that it was incumbent on the plaintiffs here to give evidence of loss ascertained in that manner, by showing what would be the difference between tl e contract price and the price at which they ROPER v. JOHNSON. 341 could have obtained a similar contract on the day of the breach, or that they were unable to obtain such a contract at all. Now, it ap- pears to me that the plaintiffs cannot be called upon to give evi- dence of that sort. The rale laid down by the Court of Exchequer, in Brown v. Muller (supra), is to be applied to the present case cy pres. The judges there, in reality, did go into the question which arises here ; and the Lord Chief Baron, and Martin and Channell, BB., pronounced opinions which are distinctly in favor of the plaint- iffs in this case. Mr. Herschell is undoubtedly justified in saying that those judgments are to a certain extent obiter. Still they come to us recommended by very high authority ; and I am disposed to concur in them. The difficulty which presents itself here is intro- duced by the comparatively recent case of Hochster v. De la Tour (2 E. & B. 678 ; 22 L. J. Q. B. 455), the first case which decided that, in the case of an executory contract, the refusal of one party to perform the contract would justify the other in at once treating such refusal as a breach, and suing for damages. That case has been distinctly recognized on many subsequent occasions, and we must now assume it to be law. It has undoubtedly introduced a difficulty in the assessment of damages in similar cases. It was followed in Frost v. Knight (Law Rep. 5 Ex. 322), in the Court of Exchequer, and the Exchequer Chamber (Law Rep. 7 Ex. Ill) also professed to act upon it. It was not necessary, in either case, to decide what the damages actually were in moneys numbered. But we are not left without some light upon the subject ; for Cockburn, C. J., lays down the rule which I for one am prepared to act upon here, and in the same terms in which it was laid down by the three judges in Brown v. Muller (supra), viz., that the periods of time at which the differ- ence of price on a contract of this kind is to be taken, are the periods of time at which the deliveries would have taken place had the con- tract been performed. Cockburn, C. J., in delivering what must be assumed to be the judgment of the whole Court of Exchequer Cham- ber in Frost v. Knight (Law Rep. 7 Ex. at p. 112), says : " The law with reference to a contract to be performed at a future time, where the party bound to performance announces, prior to the time, his in- tention not to perform it, as established by the cases of Hochster v. De la Tour (supra) and The Danube and Black Sea Company v. Zenos (13 C. B. K S. 825 ; 31 L. J. C. P. 284) on the one hand, and Avery v. Bowden (5 E. & B. 714 ; 26 L. J. Q. B. 3), Reid v. Hoskins (6 E. & B. 953 ; 26 L. J. Q. B. 3), and Barrick v. Buba (2 C. B. N. S. 563 ; 26 L. J. C. P. 280), on the other, may be thus stated. The promisee, if he pleases, may treat the notice of intention as inoperative, and 312 SEVERAL DELIVERIES. await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-perform- ance : but, in that case, he keeps the contract alive for the benefit of the other party as well as his own ; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his pre- vious repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it ; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time." And he adds this qualification : " Subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss." That seems to me to get rid of the argument urged on the part of the defendant, viz., that the true and only measure of damages in such a case as this is, the loss which the plaintiffs have sustained in consequence of the defendant's failure to perforin the contract ; that the mode of estimating that loss is by ascertaining the difference between the contract price and the price at which the plaintiffs might have obtained a new contract on the day of the admitted breach ; and that it was for the plaintiffs to show what that difference was, either by having entered into such a contract, or by proof of their inability to obtain one. It seems to me that, when the plaintiffs have shown that there has been a dis- tinct breach of the contract on the part of the defendant, and have further shown that at the periods at which the coal should have been delivered, they could only have obtained them at an advanced price, they were entitled to the difference between that advanced price and the contract price, unless the defendant gave evidence that another similar contract might have been obtained on more mitigated terms. For instance, if there had been a fall in the market, or any other circumstance calculated to diminish the loss, it would be for the de- fendant to show it. This is the best conclusion I have been able to arrive at ; and it has the support of the opinions of three judges of the Exchequer in Brown v. Muller (supra). I think it is the better and the safer rule ; though I am free to confess that the matter is by no means divested of difficulty — a difficulty occasioned by the novel doctrine introduced by the case of Hochster v. De la Tour (supra). But it seems to me that it is a rule which is more likely to avoid those difficulties than the other rule which has been suggested by Mr. Herschell. ROPER v. JOHNSON. 343 The rule will, therefore, be made absolute to reduce the damages to 400£, the sum agreed upon between the parties. Bkett, J. — This is an action brought upon a contract for the pur- chase and sale of marketable goods, whereby the defendant under- took to deliver them in certain quantities at certain specified times ; and the action is brought for the non-performance of that contract. Now, in ordinary cases, the contract is to deliver the goods on a specified day, and there is no breach until that day has passed. In the case of marketable goods, the rule as to damages for breach of the contract to deliver is, the difference between the contract price and the market price on the day of breach. That is perfectly right when the day for performance and the day of breach are the same. Another form of contract is, as in Brown v. Muller (Law Bep. 7 Ex. 319), to deliver goods in certain quantities on different days. The effect of the judgment in that case is that, the contract being wholly unperformed, there is a breach — a partial breach — on each of the specified days ; such breaches occurring on the same days as the days appointed for the performance of the several portions of the con- tract. But the case of Hochster v. De la Tour (2 E. & B. 678 ; 22 L. J. Q. B. 455) introduced this qualification, that, where one party, before the day for the performance of the contract has arrived, de- clares that he will not perform it, the other may treat that as a breach. That complication has arisen here : the contract being for the delivery of the goods on future specified days, the defendant has before the time apj)ointed for the last delivery declared that he will not perform the contract, and the plaintiffs have elected to treat that as a breach and to bring their action. Now, to entitle a plaintiff to recover damages in an action upon a contract, he must show a breach and that he has sustained damage by reason of that breach. These two are quite distinct. All that Hochster v. De la Tour (2 E. & B. 678 ; 22 L. J. Q. B. 455) decided was this, that, if before the day stipulated for performance, the de- fendant declares that he will not perform it, the plaintiff may treat that declaration as a breach of the contract, and sue for it. Now comes the question whether in such a case as this there is to be a dif- ferent rule as to proof of the amount of damage which the plaintiff has suffered. The general rule as to damages for the breach of a contract is, that the plaintiff is to be compensated for the difference of his position from what it would have been if the contract had been performed. In the ordinary case of a contract to deliver mar- ketable goods on a given day, the measure of damages would be the difference between the contract price and the market price on that 344 SEVERAL DELIVERIES. day. Now, although the plaintiff may treat the refusal of the de- fendant to accept or to deliver the goods before the day for perform- ance as a breach, it by no means follows that the damages are to be the difference between the contract price and the market price on the day of the breach. It appears to me that what is laid down by Cockbukn, C. J., in Frost v. Knight, in the Exchequer Chamber (Law Rep. 7 Ex. Ill), involves the very distinction which I am en- deavoring to lay down, viz., that the election to take advantage of the repudiation of the contract, goes only to the question of breach, and not to the question of damages ; and that, when you come to es- timate the damages, it must be by the difference between the con- tract price and the market price at the day or days appointed for performance, and not at the time of breach. Now, how does the Chief Justice deal with the matter ? He deals first with the case of an action brought after the day for performance. He says : " The promisee, if he pleases, may treat the notice of intention as inopera- tive, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non- performance ; but, in that case, he keeps the contract alive for the benefit of the other party as well as his own ; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstand- ing his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it." He then treats of the other case : " On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it ; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time," that is, from non-performance of the contract at the time or times appointed for its performance. That clearly negatives Mr. Herschell's argument, and gives the rule for the assessment of damages in the way I have stated, viz., that they must be such as the plaintiffs would have sus- tained at the day appointed for performance of the contract. Then he goes on and shows the real distinction between the cases he has put : " Subject, however, to abatement in respect of any circum- stances which may have afforded him the means of mitigating his loss." He says further : " The contract having been thus broken by the promisor, and treated as broken by the promisee, performance at the appointed time becomes excluded, and the breach by reason of the future non-performance becomes virtually involved in the action ROPER v. JOHNSON. 345 as one of the consequences of the repudiation of the contract ; and the eventual non-performance may therefore, by anticipation, be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for performance may yet be re- mote. It is obvious that such a course must lead to the convenience of both parties ; and, though we should be unwilling to found our opinion on grounds of convenience alone, yet the latter tend strongly to support the view that such an action ought to be admitted and upheld. By acting on such a notice of the intention of the promisor, and taking timely measures, the promisee may in many cases avert, or at all events materially lessen, the injurious effects which would otherwise flow from the non-fulfillment of the contract ; and, in as- sessing the damages for breach of performance, a jury will of course take into account whatever the plaintiff has done, or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been or would have been diminished." He uses the very term I used in the course of the argument, and which Mr. Herschell objected to, viz., " ought to have done." It seems to me to follow, from that ruling, that the plaintiffs here did all they were bound to do when they proved what was the difference be- tween the contract price and the market price at the several days specified for the performance of the contract, and that prima facie that is the proper measure of damages ; leaving it to the defendant to show circumstances which would entitle him to a mitigation. No such circumstances appeared here : there was nothing to show that the plaintiffs ought to have or could have gone into the market — a rising market — and obtained a similar contract. But I cannot help thinking that the Chief Justice's judgment in the case last referred to goes further, and says in effect that the plaintiffs were not bound to attempt to get a new contract. It was upon precisely the same argument that the Chief Baron in Brown v. Muller {supra) decided against Mr. Herschell that the plaintiff there, as a reasonable man, was not bound to make a forward contract. Baron Martin held the same, though apparently with some reluctance : but no doubt is ex- pressed in the judgment of Baron Channell. If we had been alto- gether without authority, I should have come to the same conclusion. But I think we are bound by the authority of Frost v. Knight (su- pra), and Brown v. Muller {supra). Grove, J. — I have come to the same conclusion, notwithstanding that I have entertained considerable doubt during the argument, particularly upon the first proposition, as to which I desire not to pronounce any opinion. Upon the second point I entirely agree 3-46 SEVERAL DELIVERIES. with the rest of the court, viz., whether there was any evidence upon which we could act. As to the first question I probably should have felt myself bound by the opinions expressed by the judges in Brown v. Muller (Law Eep. 7 Ex. 319), though strictly obiter ; for the ac- tion there was not brought until after the expiration of the last period stipulated for the delivery of the iron, while here, there was evidence that the plaintiffs had accepted the defendant's renuncia- tion of the contract, and had assented to its being put an end to at the latest on the 3d of July. But, taking it upon Mr. Herschell's own view, his second proposition clearly was not made out. There was an admitted breach, and the question was, at what extra cost to themselves could the plaintiffs then have placed themselves in the same position they would have been in if the defendant had per- formed his contract ? Was there any evidence upon which the court could rely in support of the proposition that the plaintiffs could, at the time of the admitted breach, have gone into the market and made a similar contract ? I cannot gather from the notes of the learned judge who tried the cause, that there was any evidence upon which the jury could have come to such a conclusion. I agree that the market price, though commonly used as a test, is not the only one. If in this case the defendant could have shown that the plaint- iffs might have gone into the market on the day of breach and made a forward contract at the then market price, and that they had not attempted to avail themselves of the opportunity, the jury might undoubtedly have taken that into consideration in reduction of the plaintiffs' loss ; and we might have done so too. The case would then have been within the principle of Hochster v. De la Tour (2 E. & B. 678 ; 22 L. J. Q. B. 455). Lord Campbell there says (2 E. & B. at p. 690) : " It is much more rational, and more for the benefit of both parties, that, after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself ab- solved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. Instead of remaining idle, and laying out money in preparations which must be useless, he is at liberty to seek service under another employer, which would go in mitigation of the damages to which he would otherwise be entitled for a breach of the contract." And further on he says (2 E. & B. at p. 691) : " An argument against the action before the 1st of June (the day on which the employment of the plaintiff as courier was to commence) is urged from the difficulty of calculating the damages ; but this argument is equally strong against .an action before the 1st of September, when the three months would McHOSE v. FULMER. 3-i7 expire. In either case, the jury, in assessing the damages, -would be justified in looking to all that had happened, or was likely to hap- pen, to increase or mitigate the loss of the plaintiff down to the day of trial." Now, if there had been any materials here to show that, at the time of the breach, the plaintiffs could, without extraordinary trouble, have entered into a forward contract at the then market price, the jury might have taken them into consideration in mitiga- tion of the damages. But there was no such evidence here ; and we cannot act upon any conjecture of our own; we can only deal with the evidence as it stood before the jury. There is a different mode of dealing in each particular trade : but, upon a rule to reduce the damages, we can only take notice of the ordinary incidents of a con- tract. The expression " mitigation," used in the judgment of Cock- burn, C. J., in Frost v. Knight (Law Eep. 7 Ex. Ill), rather shows that the onus of proof lies on the defendant. The plaintiffs having made out a prima facie case of damages, actual and prospective, to a given amount, the defendant should have given evidence to show how and to what extent that claim ought to be mitigated. Xo such evidence was attempted to be given. It is entirely upon the absence of that evidence that I rest my judgment. The other point is one deserving of serious consideration. The ojnnions of Kelly, C. B., and Channell, B., upon the point, in Brown v. Muller (supra), are clear in favor of the plaintiffs ; and Marten, B., did not dissent, though he seems to have assented with some reluctance. Keating, J. — The result will be that the rule will be made absolute to reduce the damages to 400Z., but discharged as to the rest ; and each party, we think, should bear his own costs of the rule. Bule absolute. SUPREME COURT, PENNSYLVANIA. [1873.] McHose v. Fulmer (73 Penn. St. 3G5). When a vendor fails to comply with his contract, the general rule for the measure of damages is the difference between the contract and market price at the time of the breach. When the article cannot be obtained in the market, the measure is the actual loss the vendee sustains. McHose, a manufacturer, contracted for iron from Fulmer, who failed to comply, and Mc- Hose could not supply himself in the market. Held, that the measure of damage was 348 SEVERAL DELIVERIES. the loss he sustained by having to use an inferior article in his manufacture, or in not receiving the advance on the contract price upon contracts he was to fill relying on Fulmer's contract. Bank of Montgomery v. Reese, 2 Casey, 143, recognized. March 18th, 1873. Before Bead, C. J., Agnew, Sharswood and Mebcub, J J. Williams, J., at Nisi Prius. Error to the Court of Common Pleas of Lehigh county : Of January Term, 1873, No. 165. This was an action of assumpsit, brought January 25th, 1872, by Henry Fulmer and Peter Uhler, trading as the Easton Iron Manu- facturing Company, against Samuel McJIose and others, trading as Samuel McHose & Co. The cause of action was the following note : " $1,237 25. Allentown, Oct. 27th, 1871. Sixty days after date we promise to pay to the order of Easton Iron Manufacturing Co., twelve hundred and thirty-seven dollars and twenty-five cents, at First National Bank of Allentown, Penn., without defalcation, for value received. Samuel McHose & Co." The defendants filed an affidavit of defense, to wit : The plaintiffs and defendants entered into a contract about the 20th of October, 1871, by which the plaintiffs agreed to furnish de- fendants with 100 tons of pig iron, to wit : 50 tons at $30 per ton, and 50 tons at $32 50, to be furnished in the months of October and November, 1871. In October, plaintiffs, in pursuance of said con- tract, did furnish to defendants 40 tons of pig iron, to wit : 30 tons at $30 per ton, and 10 tons at $32 50, making total of $1,225, the amount for which the note in this case was given, with interest added. The residue of the iron, according to said contract, was to be fur- nished in the month of November, and the defendants being en- gaged in the manufacture of iron, relying upon the undertaking of plaintiffs, made no other engagement for iron. In the month of November the defendants gave notice to the plaintiffs that they were in need of said iron, to wit, the 60 tons which the plaintiffs neglected and refused to furnish, although often requested so to do, in the months of November and December. The contract for payment was notes at 60 days. The defendants therefore say, that by the refusal of the plaintiffs to furnish said iron as per contract, they (the defendants) have suf- fered damage to an amount exceeding the whole amount of the note on which suit is brought. The nature of the damage sustained by defendants is as follows : McHOSE v. FITLMER. 349 The defendants are the owners of the Hope Eolling Mill, situated in the city of Allentown, and are carrying on the business of making- merchant bar iron, and employ about sixty hands, and had heavy contracts for iron to be furnished in November and December. By the neglect and refusal of plaintiffs to furnish said iron, defendants were obliged to get an inferior quality of iron than that which plaintiffs were to furnish, in order to carry on the business of said mill, and being inferior they lost the contract with the parties with whom they had contracted for the sale and delivery of iron, and sus- tained other serious damage and loss by the breach of said contract on the part of plaintiffs. They afterwards made a supplemental affidavit of defense, " that by reason of the plaintiffs neglecting and refusing to comply with the contract set forth in said affidavit of defense, the defendants were unable to get the same quality of iron, and iron had advanced in price one dollar per ton, which would make $60 damages in price of iron. " The defendants further say, that the loss of contracts and in the sale of manufactured iron greatly exceed the amount of the note on which suit is brought. That defendants not being able to make good iron for the parties with whom they had contracts, they sus- tained losses as follows : With Brinton & Johnson, of Philadelphia, they sustained losses in iron returned, $639 47, which amount is com- posed of labor and freight in sending and returning said iron, and the damages for the loss of the contract with said Brinton & John- son will exceed the sum of $600. Making a total of more than the amount of said note. That they have suffered other damages by rea- son of the failure of said plaintiffs to comply with their contract." On the 17th of July, 1872, the court (Longaker, P. J.) entered judgment for the plaintiffs for $1,218 45, the amount of the note and interest, " less $60 claimed as the appreciation of the iron." The defendants removed the record to the Supreme Court, and assigned the entering of the judgment for error. The opinion of the court was delivered March 24th, IS 73, by Sharswood, J. — When a vendor fails to comply with his contract, the general rule for the measure of damages undoubtedly is, the dif- ference between the contract and the market price of the article at the time of the breach. This is for the evident reason that the ven- dee can go into the market and obtain the article contracted for at that price. But when the circumstances of the case are such that the vendee cannot thus supply himself the rule does not apply, for the reason of it ceases (Bank of Montgomery v. Reese, 2 Casey, 143). 350 SEVERAL DELIVERIES. " It is manifest," says Mr. Chief Justice Lewis, " that this (the ordi- nary measure) would not remunerate him when the article could not be obtained elsewhere." If an article of the same quality cannot be procured in the market, its market price cannot be ascertained, and we are without the necessary data for the application of the general rule. This is a contingency which must be considered to have been within the contemplation of the parties, for they must be presumed to know whether such articles are of limited production or not. In such a case the true measure is the actual loss which the vendee sus- tains in his own manufacture, by having to use an inferior article or not receiving the advance on his contract price upon any contracts which he had himself made in reliance upon the fulfillment of the contract by the vendor. We do not mean to say, that if he under- takes to fill his own contracts with an inferior article, and in conse- quence such article is returned on his hands, he can recover of his vendor, besides the loss sustained on his contracts, all the extraordi- nary loss incurred by his attempting what was clearly an unwarrant- able experiment. His legitimate loss is the difference between the contract price he was to pay to his vendor and the price he was to receive. This is a loss which springs directly from the non-fulfill- ment of the contract. The affidavits of defense are not as full and precise upon this point as they might and ought to have been, but they state that the defendants below had entered into such contracts, and that they were unable to get the same quality of iron which the plaintiff had agreed to deliver, and this, we think, was enough to have carried the case to a jury. Judgment reversed, and & procedendo awarded. Several Deliveries of Articles to be Manufactured. COURT OF QUEENS BENCH. [1874] Elblnger Actien-Gesellschafft v. Armstrong (L, K. 9 Q. B. 473). The defendant, in January, 1872, agreed to furnish plaintiffs with 666 sets of wheels and axles according to tracings, 100 of which were to be delivered at stated intervals in the months of February, March and April free on board at Hull ; guarantee three years and three months from time of shipments. The plaintiffs were under a contract with a Russian railway company to deliver them 1,000 wagons, 500 on the 1st of ELBINGER ACTIEN-GESELLSCHAFFT v. ARMSTRONG. 351 May, 1872, and 500 on the 31st of May, 1873; and they were bound to pay two roubles per wagon for each day's delay in delivery. In the course of the negotia- tions between plaintiffs and defendant, defendant was informed of this contract, but neither the precise day for the delivery nor the amount of the penalties was men- tioned. Delay occurred in the delivery of the 100 sets of wheels ; and the plaintiffs, in consequence, had to pay certain penalties, but the Russian company consented to take one rouble a day, amounting in the whole to 1001. The plaintiffs, having brought an action against the defendant for the delay, sought to recover as damages the 100/. Held, that the plaintiffs were not entitled to damages, as matter of right, to the amount of penalties; but that the jury might reasonably have assessed the damages at that amount. Declaration setting out an agreement (of which the material parts are stated in the judgment of the court) by which defendant agreed to supply 666 sets of wheels and axles according to tracings, 100 pairs to be delivered at certain intervals in the months of February, March and April, 1872, free on board at Hull. Guarantee three years and three months from time of shipments from Hull. That the defendant delayed delivery in the first 100 sets, whereby the plaintiffs suffered damage.* Plea, inter alia, traversing the agreement as alleged. At the trial before Lush, J., at the sittings in London after Hilary Term, 1873, a verdict passed for the plaintiff's for 100Z. 13s., with leave to the defendant to move to reduce" the verdict to nom- inal damages. The facts and circumstances of the trial are fully given in the judgment of the court. A rule having been obtained accordingly, May 7, 8. H. Williams Q. C, and Cohen, showed cause. Sir H. James, Q. C, and Wadchj, Q. C, in support of the rule. The arguments sufficiently appear in the judgment. The following authorities, in addition to those noticed in the judgment, were cited : Hadley v. Baxendale, 9 Ex. 341 ; 23 L. J. Ex. 179 ; British Columbia Sawmill Co. v. Nettleship, Law Rep. 3 C. P. 499 ; Smeed v. Foord, 1 E. & E. 602 ; 28 L. J. Q. B. 178 ; Ogle v. Earl Yane, Law Rep. 2 Q. B. 275 ; Prior v. Wilson, 8 W. R. 260 ; Cory v. Thames Iron Works Co. Law Rep. 3 Q. B. 181 ; Home v. Midland Ry. Co. Law Rep. 8 C. P. 131 ; Sawdon v. Andrew, 30 L. T. K S. 23 ; Tyers v. Rosedale Iron Co. Law Rep. 8 Ex. 305 ; Gee v. Lancashire & Yorkshire Ry. Co. 6 H. & X. 211 ; 30 L. J. Ex. 11 ; Borries v. Hutchinson, 18 C. B. K. S. 445 ; 34 L. J. C. * The form in which the damages were laid is given in the judgment. 352 SEVERAL DELIVERIES. P. 169 ; Everard v. Hopkins, 2 Buls. 332 ; Benjamin on Sale, p. 727 (2d ed.) Cur. adv. vult. July 6. The judgment of the court (Cockburn, Ch. J., Black- burn, Lush and Quain, JJ.), was delivered by Blackburn, J. — This was an action by a foreign corporation on a contract by which the defendant, on the 20th of January, IS 72, agreed to furnish the plaintiffs' agents with 6Q6 sets of wheels and axles, according to tracings, at the following prices and times of de- livery, viz., 100 sets of tracing No. 1, at 321. per set, of which were to be delivered in that year in Hull, 10 sets up to the 15th of Feb- ruary, 10 sets up to the 1st of March, 20 sets up to the 15th of March, 20 sets up to the 1st of April, and 40 sets up to the 15th of April. The contract specified the prices and times of delivery of the remaining 566 sets, on which nothing turned, and proceeded as follows : " All the foregoing prices are understood of four wheels and two axles for deliveries free on board in Hull. Payment at buyer's option, either in three months approved bills at par or less 1^ discount for cash, fourteen days after date of bills of lading and shipment from Hull. Guarantee three years and three months from time of shipments from Hull, as customary." The action was for delay in delivering the first 100 sets, and in the declaration damages were claimed in the following terms : " Whereby the plaintiffs sustained great loss by being deprived of the said several sets for a long time after the said several agreed times, and by being prevented from carrying out and fulfilling cer- tain contracts entered into by the plaintiffs for the supply of the said sets by the plaintiffs to a certain railway company in Russia, and by losing great profits which the plaintiffs would have made by carrying out and fulfilling the said contracts,and by being compelled to pay damages for not fulfilling the said contracts." Various pleas were pleaded and issues joined on them ; but at the trial before my brother Lush, J., it was admitted that none of them could be supported, and that there had been delay beyond the stipulated times in delivering the 100 sets ; and the only ques- tion was as to damages. As to this the plaintiffs called a witness, who gave evidence that the plaintiffs were under a contract with a Russian railway company to deliver to them 1,000 covered wagons, 500 on the 1st of May, 1S72, and 500 on the 31st of May, 1873; and by the contract they were bound to pay to the Russian company two roubles per wagon for each day's delay in delivering them. ELBINGER ACTIEN-GESELLSCHAFFT v. ARMSTRONG. 353 In the course of the negotiations between the plaintiffs and the defendant, which resulted in the written contract of the 20th of Jan- uary, the defendant was informed that the plaintiffs wanted the wheels and axles to complete wagons which the plaintiffs were bound to deliver to a Russian company under penalties. Neither the amount of those penalties nor the precise day by which the plaintiffs were to deliver the wagons seems to have been mentioned ; but, ac- cording to this evidence, the defendant was expressly told that he would be expected to deliver the sets on the days on which he agreed to deliver them ; and, before entering into the contract, he said he must consult his foreman as to the state of his works, etc., to see within what time he could deliver them. After this, the written contract was sent and accepted. The plaintiffs were unable to procure other sets of wheels, and conse- quently each day's delay in furnishing a set of wheels necessarily occasioned a day's delay in furnishing a wagon. The wagons were not completed in time for the Russian com- pany, and penalties were incurred ; but the company consented to remit half the penalties due to them, and the plaintiffs only paid one rouble a day for delay. The plaintiffs claimed, as the measure of their damage, one rouble for each day's delay of each set of wheels and axles, and this, it was agreed, would amount to 100Z. 13s. The counsel for the defendant contended that there was no evi- dence here of any contract to pay penalties, and that the damages must be nominal. The judge was not asked by either side to leave any question to the jury, but directed the verdict to be entered for 100/. 13s., with leave to the defendant to move to reduce the damages to a nominal sum ; " it being taken that the jury have found the dam- ages under my direction to be 100/. Ids." Sir Henry James, in Easter Term, 1873, obtained a rule to show cause why the verdict should not be reduced to a nominal sum, on the ground that, on the evidence given at the trial, the plaintiffs were not entitled to recover any damages in relation to the penalties paid by them to the Russian company. Owing to the unavoidable delay occasioned by the recent trial at bar, cause was not shown till last term, when the case was argued before my Lord Chief Justice, my brothers Lush and Quain, and my- self, when the court took time to consider. We have no difficulty in saying that the defendant is not entitled to enter a verdict for nominal damages. It is, no doubt, quite settled that, on a contract to supply goods 23 354 SEVERAL DELIVERIES. of a particular sort, which at the time of the breach can be obtained in the market, the measure of the damages is the difference between the contract price and the market price at the time of the breach. Where, from the nature of the article, there is no market in which it can be obtained, this rule is not applicable ; but it would be very unjust if, in such cases, the damages must be nominal ; and there are several decisions showing that such is not the law. In Bridge v. Wain (1 Stark. 504), where the contract was to supply scarlet cuttings in China, and the articles supplied were not scarlet cuttings, Lord Ellenbokough ruled that the plaintiffs were entitled to the value of scarlet cuttings in China. In Borries v. Hutchinson (18 C. B. K S. 445, 465 ; 34 L. J. C. P. 169), the action was to recover damages for delay in delivering caustic soda, which it was admitted was an article which is not kept in stock, so as to be capable of being at any time bought in the market, and consequently there was no ascertainable market price. Willes, J., in that case, says : " In ordinary cases, where the article is one which can be bought in the market, the proper measure of damages for a breach of contract to deliver is the difference between the contract price and the market price on the day of the breach There was no market price to which resort could be had as to a test of damage. We must therefore ascertain what was the value of the article con- tracted for at the time when it ought to have been and at the time when it actually was delivered." In the case now at bar, without traveling out of the written con- tract, it is obvious, from its terms, that the sets of wheels and axle- trees, being made according to tracings, could not be obtained in any market, but that, if they were not delivered according to the con- tract, the plaintiffs must wait till they could get them made else- where. And, from the stipulation at the conclusion of the con- tract, that there was to be a guarantee for three years and three months from time of delivery, it is equally obvious that both parties contemplated that the wheels and axles were to be put into imme- diate use. Under such circumstances, the natural and almost inevit- able consequence of a delay in delivering a set of wheels would be that the plaintiffs, if they meant the wagon for their own use. or their customers, if the wagon was bespoke, would be deprived of the use of a wagon for a period equal to that for which the set of wheels was delayed. At all events the plaintiffs were entitled to recover at a rate per day equal to whatever the jury should find to be reasonable com- pensation for the loss of the use of the wagons (see Cory v. Thames ELBINGER ACTIEN-GESELLSCHAFFT v. ARMSTRONG. 355 Ironworks Co. Law Eep. 3 Q. B. 181). We think, therefore, it would have been a misdirection if the jury had been directed to find no more than nominal damages. We have had more difficulty in determining whether the plaint- iffs are entitled to keep the verdict for the amount as it stands. If we thought that this amount could only be come at by laying down as a proposition of law that the plaintiffs were entitled to recover the penalties actually paid to the Russian company, we should pause before we allowed the verdict to stand. In Hadley v. Baxendale (9 Ex. 341 ; 23 L. J. Ex. 179), it was decided that it was a misdirection in the judge not to tell the jury that, upon the facts before them, they ought not to take the loss of the profits into consideration at all in estimating the damages. That was because the court thought that there was no evidence of any communication to the defendants of such facts as showed that this unusual loss must ensue from the delay in sending on the broken shaft ; and so far as the case decides that the defendant is not liable for any unusual consequences, arising from circumstances of which he has not notice, the case has often been acted upon. But an inference has been drawn from the lan- guage of the judgment, that whenever there has been notice at the time of the contract that some unusual consequence is likely to en- sue if the contract is broken, the damages must include that conse- quence ; but this is not, as yet at least, established law. In Mayne on Damages, p. 10 (2d edition by Lumley Smith), in commenting on Hadley v. Baxendale (supra), it is said : " The principles laid down in the above judgment, that a party can only be held responsible for such consequences as may be reasonably supposed to have been in the contemplation of both parties at the time of making the contract, and that no consequence which is not the necessary result of a breach can be supposed to have been so contemplated, unless it was communicated to the other party, are of course clearly just. But it may be asked, with great deference, whether the mere fact of such consequences being communicated to the other party will be suffi- cient, without going on to show that he was told that he would be answerable for them, and consented to undertake such a liability. . . . The law says that every one who breaks a contract shall pay for its natural consequences ; and in most cases states what these consequences are. Can the other party, by merely acquainting him with a number of further consequences, which the law would not have implied, enlarge his responsibility to the full extent of all those consequences, without any contract to that effect ? " We are not aware of any case in which Hadley v. Baxendale 356 SEVERAL DELIVERIES. {supra), has been acted upon in such a way as to afford an answer to the learned author's doubts ; and in Home v. Midland Kw. Co. (Law Itep. 8 C. P. 131), much that fell from the judges in the Exchequer Chamber tends to confirm those doubts. But we do not think it necessary here to decide any such question. As the plaintiffs did not actually lose more than a rouble a day, which they paid, that forms the extreme limit of the damage they can recover, for they are not entitled to make a profit out of the de- fendant's default. Had the amount of damages been actually left to the jury, the question would have been whether the defendants were liable for as much. If the judge had told the jury expressly that the penalties as such could not be recovered, but that the plaintiffs were entitled to such damage as in their opinion would be fair compensation for the loss which would naturally arise from the delay, including therein the probable liability of the plaintiffs to damages by reason of the breach through the defendant's default of that contract, to which, as both parties knew, the defendant's con- tract with the plaintiffs was subsidiary, the direction would not, at all events, have been too unfavorable to the defendant. We think that, if so directed, a jury in all probability would, and certainly reasonably might, have assessed the damages at 100Z. 13s. which, after all, is no heavy percentage, the contract price being 3,200Z. We think we must construe the reservation as meaning that the verdict should stand if the jury properly directed might reasonably have found this sum. The rule, therefore, must be discharged. Rule discharged. DEVERILL v. BURNELL. 357 ALTERNATIVE CONTRACT. Measure of Damages ; Contract in the Alternative ; Judgment by Default. COURT OF COMMON PLEAS. [1873.] Deverill v. Buexell (L. R. 8 C. P. 475; 42 L. J. R. N. S. 214). Tlie declaration stated that the plaintiff having shipped certain goods to a place abroad, drew against the shipment, and intrusted the drafts to the defendant for present- ment, for reward to the defendant, on the terms that the defendant should return the drafts, if not paid after acceptance, to the plaintiff, or pay the plaintiff the amount of them ; that all conditions were performed, &c, necessary to entitle the plaintiff to a return of the drafts or to payment of the amount of them, yet the defendant did not return the drafts nor pay the amount of them. Judgment was signed for want of a plea : Held (per Keating, Brett, and Grove, JJ., Bovill, C. J., dis?enting), that the damages on the contract alleged in the declaration must be the amount of the bills. Per Bovill, C. J. : The contract as alleged in the declaration being a contract in the al- ternative, it might be performed by performance of either branch of the alternative at the election of the defendant, and therefore the damages might be the value of the bills, if of less value than the amount for which they were drawn. Declaration, for that the plaintiff had caused certain goods to be shipped in London on board ship, to be carried, subject to certain bills of lading, to Rosario, in South America, in order that they might be delivered to one C. W. Bollaert there on his accepting certain drafts drawn by the plaintiff on him against the goods ; and there- upon the plaintiff delivered to the defendant, and the defendant ac- cepted from the plaintiff, the said bills of lading and drafts, upon the terms that the defendant should cause the drafts to be presented at Rosario to Bollaert for acceptance, and that in the event of the said drafts being duly accepted the defendant should deliver over to Boll- aert the said bills of lading on his accepting the drafts, and should cause the drafts to be presented for payment at maturity, and remit to the plaintiff the proceeds of the drafts if the same should be paid ; and that, if the drafts should not be paid, the defendant should either return the same to the plaintiff, or pay him the amount, for reward to the defendant in that behalf ; and although the defendant accord- ingly presented the said drafts for acceptance by Bollaert, and he ac- cepted the same, whereupon the defendant delivered to him the bills of lading, and although all things were done and happened and all 358 ALTERNATIVE CONTRACT. times elapsed necessary to entitle the plaintiff to have the drafts re- turned to him or the amount thereof paid by the defendant to him, and to maintain this action, yet the defendant did not nor would re- turn the drafts, nor did nor would the defendant pay to the plaintiff the amount thereof. Judgment went by default for want of a plea, and on a writ of in- quiry before the sheriff it was contended by the defendant's counsel that upon the declaration as framed the jury were entitled to assess the damages at the value of the bills, and not the amount of 'them. The jury found that the bills were worthless, and a verdict was en- tered for the plaintiff for a farthing damages. A rule nisi had been obtained for a new trial, or to increase the amount of the verdict to 107Z., the balance of the amount of the bills, after deducting certain payments on account. After the argument of the motion for a new trial, the following opinions were delivered. Grove, J. — The question in the present case turns upon the con- struction to be put upon the promise alleged in this declaration. The question is an extremely doubtful one, and unfortunately there is a division of opinion in the court. I think, with the majority of the court, that the true construction of the promise alleged is, that it is not, in the strictest sense, an alternative promise, but a promise that the defendant would return the bills, and if he did not return them he would pay the amount of them. In that case it is clear that the defendant would be bound, if he did not return the bills, to pay the amount of them. The promise relates to a matter of business, and must receive the construction which would be given to the language used by business men in the ordinary course of business. If, in the ordinary affairs of life, I say to a man, I will return your horse to- morrow, or pay you a clay's hire of him, the only reasonable construc- tion is, that, if I do not return the horse, I will pay a day's hire. If the use of the word " or " compels us to regard this as a purely alter- native promise, then the same construction would be applicable to the case I have taken as an illustration, which would be plainly un- reasonable. Here the parties seem to me by their agreement to have said that they will not estimate the damage to accrue to the plaintiff by the non-return of the bills at the actual value of the bills, what- ever it may be ; but they choose to say that, if the bills are not re- turned, the defendant shall be bound to pay the amount of them. The plaintiff might not choose to take the risk of a change of circum- stances, which might affect the value either way, but might prefer to assess the value at the amount of the bills. It seems to me that the DEVERILL v. BURNELL. 359 question is, what is the meaning of this promise in ordinary parlance ? and we are entitled to give it such meaning for the purposes of the present application. I therefore think the rule should be abso- lute. Bkett, J. — I am of the same opinion. The declaration in the present case states facts which show a business relation between these parties, and proceeds to set out a contract made between them bear- ing reference to such relation. It appears to me that when a busi- ness contract with relation to business matters is set out in a declara- tion, the court is entitled to construe it according to the ordinary rules applicable to the construction of mercantile contracts ; that is to say, not merely according to the strict rules of grammar, but so as to give a business meaning, and not a fanciful meaning, to every part of it. The promise here set out is that the defendant would either re- turn the bills or pay the amount of them. That promise must be construed as if we had to construe it directly after it was made ; and we have no right to consider what may have happened at a subse- quent period. If the promise had been simply to return the bills, the law woidd have implied that, if the bills were not returned, the defendant should be bound to pay the damages actually occasioned to the phuntifl:, which might be equal to or less than, the amount of the bills. If the parties making this business contract had intended this, they would have contented themselves with making an agreement that the bills should be returned ; but they are not content with mak- ing this agreement, and they make a further promise, to which, as it seems to me, we are bound to give a meaning. The promise is to re- turn the bills or to pay the amount of them. That is the same as if they had said the defendant should return the bills, or pay 200?., or whatever the amount might be. If that does not mean that he should return the bills, and if not should pay 200Z., I do not see what busi- ness meaning it could have. The plaintiff is intrusting the bills to the defendant in order to be presented for acceptance, and ultimately for payment ; if dishonored, he may wish to deal with them himself ; he therefore makes a stipulation to insure their return — that if the defendant will not return them, he shall pay the amount of them. If this be the proper construction of the promise, we are entitled, as it seems to me, to construe the breach alleged with reference to such promise, and give it a construction which shall not alter the effect of the contract. The whole case, therefore, depends upon the true con- struction of the contract. If this be what I conceive it to be, it fol- lows that the damages for the breach of it are the amount of the bills. I am, therefore, of opinion that the rule should be made absolute. 360 ALTERNATIVE CONTRACT. Keating, J. — I have entertained considerable doubt during the course of the argument, and I cannot say that my doubts are entirely removed. I have come, however, to the conclusion that the contract as alleged in the declaration is not to be considered such as, according to the strictest construction of the words used, it might, perhaps, ap- pear to be ; but that it is really a contract to return the bills to the plaintiff, or, if they are not returned, to pay the amount of them. The difficulty in the case seems to me to arise from the way in which the breach is laid. It appears to me that it would have been competent to the pleader, in declaring on the contract, to treat it as a contract to the effect I have before stated. He seems to have got into difficulty by declaring on it as a purely alternative contract, which would be satisfied by the performance of one thing or the other. It seems to me that the proper way of declaring would have been to declare upon the contract as one to return the bills, and if not pay the amount, and accordingly to have shaped the breach as for non-payment of the amount, alleging that the bills had not been returned. I look at the contract as a mercantile contract made between mercantile men, and it does certainly seem to me 'that the meaning contended for by the defendant makes it one which it is scarcely likely that mercantile men would enter into. The plaintiff is sending out his goods, and intrusts a correspondent with the drafts which he has drawn against them. It is not an unreasonable stipulation to make, that if not accepted, or dishonored, the defendant must return them to the plaintiff, that he may deal with them as he pleases, or, if he does not so return them, must stand paymaster himself. It appears to me that, looking to the declaration, that was probably what the parties did intend. If so, is there any insuperable obstacle, from the form of the breach, to our giving effect to the construction at which we are supposed to arrive as to the contract 1 I agree that the breach must be construed with re- lation to the construction to be put on the contract in the declaration. On the whole, therefore, I think that the rule should be made abso- lute, though I am not without considerable doubts on the subject, which are very materially strengthened by the fact that my lord differs. Bovill, C. J. — I unfortunately differ from the rest of the cqnrt. The question appears to me to be one of great difficulty, and my mind has fluctuated considerably during the course of the argument. The majority of the court have arrived at a conclusion favorable to the plaintiff ; but the inclination of my mind is in favor of the defendant. The matter is one of considerable doubt, and I need hardly say that I have some misgivings as to the correctness of my opinion, seeing that DEVERILL v. BURNELL. 361 the rest of the court are of a contrary opinion. The question, as it seems to me, turns entirely on the construction of the language in which the contract is alleged in the declaration. If the contract as there stated is simply in the alternative, to do one of two things, it would be satisfied by the performance of either, and the damages would be the loss occasioned by non-performance of that alternative which would be least beneficial to the plaintiff. If the true con- struction be that of the two things to be done one depended upon the non-performance of the other, that is, if the defendant did not return the bills, then he should pay the amount of them, the damages would be the non-payment of that amount. The rule of law is clear, that, in the case of alternative contracts, the person who has to perform the contract has the right to elect which branch of the alternative he will perform. On the other hand, it is equally clear, if the contract is to do a thing, and if not to pay a sum of money, then the damages for not doing the thing are the sum of money. Under which class does this contract range itself ? It must depend on the language in which it is stated. I come to the conclusion that the contract stated in this declaration is one of the class which may be called strictly alternative, and would be satisfied by the performance of either branch of the alternative, at election. The rule as to this class of contracts is laid down by Maule, J., in Cockburn v. Alexander (6 C. B. 791, at p. 814; 18 L. J. C. P. 71). Many instances might be put, e. g., the case suggested in argu- ment. A man might contract that immediately after a race he would deliver over his horse Ajax, or pay 1,000^. In that case the contract would be performed by either delivering the horse or the money, at election. There the effect of the alternative might vary according to circumstances, for if the horse lost the race, the owner would probably desire to deliver the horse ; but if it won, he might prefer to part with the money. What would the damages be in such a case ? They would, according to the rule laid down by Maule, J., be the loss occasioned by the non-performance of the contract to the plaint- iff; and, if the contract could have been performed by the perform- ance of the alternative least beneficial to the plaintiff, the measure of damages would be regulated by the loss occasioned by non-perform- ance of that alternative. It may be said that the case I have put is like the present, and such a contract means that the owner is to deliver the horse, and if not to pay the 1,000Z. ; but it seems to me that, if the terms of the contract are, as alleged in the declaration, in the alternative, by reason of the use of the disjunctive conjunction " or," we are not entitled to import it into the condition that if the 362 ALTERNATIVE CONTRACT. one thing is not done the other shall be, which is to turn it from an alternative contract into one of another character. One test, which appears to me to be applicable, is to reverse the order in which the two alternatives are mentioned. Suppose the contract alleged were, to pay l.OOOZ. or to deliver the horse. Clearly under such a contract there would be an option to do either, and it could not be said that it was a contract to pay the 1,000£., or if not to deliver the horse. So also with the present contract, if it were alleged to be to pay the amount of the bills or to deliver them up. Could it then be said that it was anything but a purely alternative contract ; that it was a contract to pay the amount, and if not to deliver up the bills ; and that damages, perhaps exceeding the amount of the bills, might be recovered for the default in returning them ? Here the jury have assessed the value of the bills at one farthing, but in some cases the actual damages for non-return of the bills, might exceed the amount of them. In whatever order the two alternatives are put, it appears to me that, the disjunctive conjunction being used, the contract as alleged in the declaration gives an option which alternative the de- fendant will adopt. It seems to me that, to read the contract as suggested by my learned brethren, is to make a fresh contract for the purpose of giving effect to speculative views as to the intention of the parties, and to alter the natural signification of the language that is used. It is clear, on the face of the declaration, that the pleader treated this as an alternative contract, for the allegation of perform- ance of conditions precedent is, that all things were done necessary to entitle the plaintiff, not to payment of the amount of the bills, but to the return of the bills or the payment of the amount of them. It may have been that it was with reference to this view of the declara- tion that the defendant allowed judgment to go by default. Under these circumstances, I think we ought to construe the declaration strictly, and are not entitled to substitute words which import a con- dition that one alternative shall be performed if the other is not, when, the disjunctive conjunction " or " being used, the natural meaning is a simple alternative. I have had considerable doubt on the matter, and regret to differ from my learned brethren, but I feel bound to express the opinion at which I have arrived. I am of opin- ion that this rule should be discharged. Rule absolute. MONDEL v. STEEL. 363 CONTRACTS FOR WORK. Contract fob "Work according to Specifications ; Abatement of Price for Insufficient Performance ; Recoupment ; Sec- ond Action. EXCHEQUER OF PLEAS. [1841.] Moxdel v. Steel (8 M. & W. 858). Special assumpsit on a contract to build a ship according to a specification, assigning a breach in not building the ship with scantling, fastening, and planking, according to the specification, and alleging special damage. Plea, that the defendant had sued the plaintiff for the balance of the agreed price of the ship, after payment of 3,500/., and also for a sum of 150/. for extra work, in the form of an action for work and labor, and for goods sold and delivered ; that issue was joined, and, on the trial of the cause, the now plaintiff gave evidence in his defense of the same breach of con- tract alleged in the declaration, and insisted, if the amount of compensation to which he was entitled exceeded or equaled the balance and value of the extra work, that he the now plaintiff was entitled to a verdict ; if less, then he was entitled to a de- duction, upon the amount of both, to the extent of such amount of compensation ; that the judge who tried the cause so directed the jury, and the jury found that the now defendant had committed a breach of the contract, and that the now plaintiff was entitled to some compensation, which they deducted from the price of the ship and the value of the extra work ; that the now defendant had judgment for the amount, after such deduction had been made, since the commencement of this suit. Held, that the plea was bad on general demurrer. Held, also, that all that the plaintiff could by law be allowed in diminution of damages on the former trial, was a deduction from the agreed price, according to the differ- ence between the ship as she was at the time of delivery, and what she ought to have been according to the contract ; but that any claim for damages on account of the subsequent necessity for repairs could not be allowed in the former action, and might be recovered in this. In all actions for goods sold and delivered with a warranty, or for work and labor, as well as in actions for goods agreed to be supplied according to a contract, it is competent for the defendant to show how much less the subject-matter of the ac- tion was worth by reason of the breach of the contract : and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of con- tract ; and he is precluded from recovering in another action to that extent, but no more. Special assumpsit on a contract to build a ship for the plaintiff, at a certain rate per ton, and according to a certain specification (set- ting it out) ; and the breach assigned was, for not building the ship 364 CONTRACTS FOR WORK. with scantling, fastening, and planking, according to the specifica- tion ; by reason whereof the ship, in a certain voyage, was so much strained that it became necessary to refasten and repair her ; and thereby the plaintiff lost the use of her during the time she was un- dergoing such repairs. Plea, that the plaintiff ought not further to maintain his said ac- tion in respect of the said alleged breach of contract in the declaration mentioned, because the defendant says that he the defendant, hereto- fore, to wit, on, &c, before the Barons of her Majesty's Court of Ex- chequer at Westminster, in the county of Middlesex, impleaded the plaintiff in an action on promises, and by the said action sought to recover from the plaintiff, over and above a sum of 21. 4s. 9hd. here- inafter mentioned, the sum of 86/. 6s. 4r7., being the balance of the price of the said ship, in the said declaration mentioned, calculated according to the provisions and terms of the said memorandum of agreement therein also mentioned, and which remained unpaid to him the now defendant, after the payment by the now plaintiff to him of the sum of SI. 5s., in the said declaration also mentioned, and after credit being given to the now plaintiff for two other sums hereinafter mentioned ; and also to recover from the now plaintiff the further sum of 134/. 3s, 2d., being the value of certain work, labor, and ma- terials done and provided for the now plaintiff by the now defendant in and about the said ship, and which were extra of and in addition to the work, labor, and materials mentioned and included in the said memorandum of agreement. [The plea then set out the whole of the pleadings in that action, which was indebitatus assumpsit in 4,000/., for work and materials, goods sold and delivered, and on an account stated : pleas, 1st, except as to 21. 4s. 9\d., parcel, &c, non-assump- sit ; 2 Jly, as to the 21. -is. 9\d., payment into court of that sum, which the now defendant accepted ; 3dly, except as to the 21. 4s. 9^d., pay- ment, which was denied by the replication ; 4thly, except as to 21. 4s. 9\d., a set-off for work and materials, goods sold and delivered, money paid, and on an account stated. The plea theft proceeded as follows :] And the defendant further saith, that all the said issues were duly joined between him the now defendant, and the now plaintiff, and afterwards, to wit, at the General Sessions of Assize holden at Liver- pool, in and for the southern division of the county palatine of Lan- caster, on, &c., before Sir William Henry Madle, Knight, one of the justices of our Lady the Queen of her Court of Common Pleas at Westminster, and Sir Robert Mounsey Eolfe, Knight, one of the Barons of our said Lady the Queen of her Court of Exchequer at Westminster, justices of our said Lady the Queen of her Court of MONDEL v. STEEL. 365 Common Pleas of the said county palatine, the said issues so as afore- said joined came on in due and regular form of law, to be tried before the said Sir Robert Mounsey Rolfe, and the same were then tried in due course of law, by a jury of the county duly summoned, chosen, and sworn in that behalf, between the now defendant and the now plaintiff. And the defendant further says, that at the said trial he, the now defendant, duly proved and gave in evidence the said mem- orandum of agreement in the said declaration mentioned, and further proved the delivery to and acceptance by the now plaintiff of the ship thereby contracted to be built, and that the price thereof, calculated according to the provisions and terms of the said memorandum of agreement in that behalf, amounted to the sum of 3,608/. 3s. 10d., whereof the now plaintiff had paid him, the now defendant, the said sum of 3,500/. in the said declaration mentioned, and was also entitled to credit for two other snms, namely, 18/. 7s. 6d. and 31. 10s., leaving the said sum of 86/. 6s. 4d., the balance unpaid to the now defend- ant ; and he the defendant further proved and gave evidence that he, the now defendant, had done and provided for the now plaintiff, and at his request, for the said ship, work, labor, and materials, to the value of 134/. Bs. 2d., which was extra of and in addition to the work, labor, and materials in the said memorandum of agreement men- tioned. And the now defendant further says, that the now plaintiff, at the said trial, and in defense of the said causes of action of him the now defendant, and in answer thereto, averred and gave evidence of the very same and identical breach of contract alleged by the now plaintiff to have been committed by the now defendant in the said declaration in this suit, that is to say, that the now defendant did not build the said ship of the very best materials, in conformity with the said specification in the said declaration mentioned, and did not build the same with the whole of the scantling, fastening, and planking inside and outside, such as is mentioned in Lloyd's Survey Book for a twelve years' ship, but omitted and neglected so to do. And the defendant further says, that the now plaintiff, at the said trial, pro- duced witnesses and gave evidence in support of his said alleged de- fense, and in answer to the said causes of action of him the now de- fendant ; and then insisted at the said trial, that if the said jury were of opinion and found that the now defendant had committed the said breach of contract, or any part thereof, and that the amount of com- pensation or of damages to which he the now plaintiff was entitled by reason thereof, exceeded or equaled the amount of the said bal- ance, and the value of the said extra and additional work, labor, and materials as aforesaid, that he, the now plaintiff, was entitled to have 366 CONTRACTS FOR WORK. the verdict found for him. And further, that if the said jury were of opinion and found that he the said plaintiff was entitled to any compensation or damages in respect of the said alleged breach of con- tract, or any part thereof, although the same might be less in amount than the amount of the said balance, and the said value of the said extra and additional work, labor, and materials, that he the now plaintiff was entitled to have the same deducted from the said last- mentioned amount ; and the said now plaintiff then prayed the said Baron to state to and inform the said jury, that he the now plaintiff was so entitled. And the defendant further saith, that in pursuance of such prayer of the now plaintiff, and in accordance therewith, the said Baron did then, in summing up the evidence at the said trial, state to and direct the said jury, that if they found and were of opin- ion that the now defendant had committed the said alleged breach of contract, or any part thereof, that they should decide and ascertain what was the amount of compensation or damages to which the now plaintiff was entitled by reason thereof ; and that if the said compen- sation or damages equaled or exceeded the amount of the said bal- ance, and the value of the said extra and additional work and labor and materials, that they should find their verdict for the plaintiff in this action ; and that if the amount of compensation or damages to which they found the plaintiff in this action was entitled, was less than the amount of the said balance and the value of the said extra and additional work and labor and materials, that they should deduct such compensation or damages from the said amount, and find their verdict for the defendant in this action for the difference only. And the defendant further says, that the said jury, in pursuance of such direction, did then find that the defendant in this action had com- mitted a breach of the said contract in the declaration in this action mentioned, and that the plaintiff in this action was entitled to com- pensation and damages in respect thereof ; and then found their ver- dict for the now defendant, for the difference only between the said compensation and damages which the/ so found the plaintiff in this action was entitled to by reason of the said breach of contract, and the amount of the said balance, and the value of the said extra and additional work and labor and materials as aforesaid, that is to say, for the sum of 1201. only, which was considerably less than the amount of the said balance as aforesaid, and the value of the said extra and additional work and labor and materials. And the defendant further says, that the said jury then found all the said issues so as aforesaid joined for him the defendant, and assessed his damages on occasion of the premises in the said action, besides his costs and charges by MONDEL v. STEEL. 367 him in his said suit, to the said sum of 120Z. as aforesaid, and those costs and charges to 40.?. ; and such proceedings were afterwards had in her Majesty's said Court of Exchequer at Westminster, that after- wards, and after the commencement of this suit, to wit, on, &c, afore- said, it was considered by the said court that the now defendant should recover against the now plaintiff his said damages, costs, and charges by the jury aforesaid in form aforesaid assessed, and also 2621. for his costs and charges by the said court adjudged of increase to the now defendant, with his assent, which said damages, costs and charges in the whole amounted to 384Z., and the now plaintiff, in mercy, &c, as by the record and proceedings thereof still remaining in the said court of our Lady the Queen, before the Barons of her Exchequer at Westminster, more fully and at large appears, which said judgment still remains in full force and effect, not in the least reversed or made void. And the defendant in fact saith, that the said alleged breach of contract by the now defendant, or by the plaintiff in the declara- tion in this suit alleged, is the very same identical breach of contract so alleged and proved by the now plaintiff at the said trial, and relied upon by him as aforesaid, and for and in respect of which he ob- tained such compensation and damages as aforesaid. Verification and prayer of judgment. Special demurrer, and joinder in demurrer. After argument of the demurrer, and advisement thereon by the court, its judgment was now delivered by Parke, B. — In this case, the declaration is in special assumpsit on a contract to build a ship for the plaintiff, at a certain rate per ton, and according to a certain specification ; and the breach assigned is for not building a vessel with scantlings, fastenings and planking, according to such specification ; by reason whereof the ship, on a voyage from London to New South "Wales and back, was so much strained that it became necessary to refasten and repair her. To this declaration there was one plea, to which it is unnecessary to allude, as it was admitted to be bad on special demurrer, and it is to be amended ; and a second plea, on which the question, which we have taken time to consider, arises. This plea states in substance, that the defendant had sued the plaintiff for the balance of the agreed price of the vessel, after pay- ment of 3,500Z., and also for a sum of 134Z. odd for extra work, in the form of an action for work and labor, and for goods sold and delivered ; that issue was joined, and, on the trial of the cause, the plaintiff gave evidence in his defense of the same breach of contract alleged in the declaration ; and insisted, that if the amount of com- 368 CONTRACTS FOR WORK. pensation to which, he was entitled, exceeded or equaled the balance of the price and the value of the extra work, the now plaintiff was entitled to a verdict ; if it was less, that he was entitled to a deduc- tion from the amount of both, of such amount of compensation. The plea proceeds to state (and, we must assume, correctly, for the purposes of this argument, though the statement has arisen from mistake), that the learned judge before whom the cause was tried, my brother Rolfe, so directed the jury ; and that the jury found that the now defendant had committed a breach of contract, and w T as entitled to some compensation, which they deducted from the price of the vessel and value of the extra work ; and the now defendant had judgment for the amount, after such deduction had been made, since the commencement of this suit. The plaintiff demurred to this plea, assigning several causes of special demurrer, which it is not necessary to notice, as we are all of opinion that it is bad in substance. The ground on which it was endeavored to support the plea, in a very ingenious argument, was this : that a defendant in an action for the stipulated price of a chattel, which the plaintiff had contracted to make for the defendant of a particular quality, or of a specific chattel sold with a warranty, and delivered, had the option of setting up a counter-claim for breach of the contract in the one instance, or the warranty in the other, in the nature of a cross action ; and that if he exercised that option, he was in the same situation as if he had brought such an action ; and consequently, could not, after judgment in one action, bring another ; and the case was likened to a set-off under the statutes. This argument was founded on no other authority than an expression of Lord Tenterden, in giving the judgment of the court in the case of Street v. Blay (2 B. & Aid. [22 E. C. L. R.] 462), his lordship having said that a breach of warranty might be given in evidence in an action for the price of a specific article sold, in mitigation of damages, " on tha. principle, it should seem, of avoid- ing circuity of action." But we are all of opinion that no such inference is to be drawn from that expression ; what was meant was, that the sum to be recovered for the price of the article might be reduced by so much as the article was diminished in value by reason of the non-compliance with the warranty ; and that this abatement was allowed in order to save the necessity of a cross action. For- merly, it w r as the practice, where an action was brought for an agreed price of a specific chattel, sold with a warranty, or of work which was to be performed according to contract, to allow the plaint- iff to recover the stipulated sum, leaving the defendant to a cross MONDEL v. STEEL. 369 action for breach of the warranty or contract ; in which action, as well the difference between the price contracted for and the real value of the articles or of the work done, as any consequential dam- age, might have been recovered ; and this course was simple and consistent. In the one case, the performance of the warranty not being a condition precedent to the payment of the price, the defend- ant, who received the chattel warranted, has thereby the property vested in him indefeasibly, and is incapable of returning it back ; he has all that he stipulated for as the condition of paying the price, and therefore it was held that he ought to pay it, and seek his remedy on the plaintiff's contract of warranty. In the other case, the law ap- pears to have construed the contract as not importing that the jDerformance of every portion of the work should be a condition precedent to the payment of the stipulated price, otherwise the least deviation would have deprived the plaintiff of the whole price ; and therefore the defendant was obliged to pay it, and recover for any breach of contract on the other side. But after the case of Basten v. Butter (7 East, 479), a different practice, which had been partially adopted before in the case of King v. Boston (7 East, 481, n.), began to prevail, and being attended with much practical convenience, has been since generally followed ; aud the defendant is now permitted to show that the chattel, by reason of the non-compliance with the warranty in the one case, and the work, in consequence of the non- performance of the contract in one other, were diminished in value (Kist v. Atkinson, 2 Camp. 64 ; Thornton v. Place, 1 M. & Rob. 218), &c. The same practice has not, however, extended to all cases of work and labor, as for instance that of an attorney (Tempi er v. M'Lachlan, 2 T. R. 136), unless no benefit whatever has been derived from it ; nor in an action for freight (Shi els v. Davies, 4 Camp. 119). It is not so easy to reconcile these deviations from the ancient prac- tice with principle, in those particular cases above-mentioned, as it is in those where an executory contract, such as this, is made for a chattel to be manufactured in a particular manner, or goods to be delivered according to a sample (G-erniaine v. Burton, 3 Stark. [14 E. C. L. E.] 32), where the party may refuse to receive, or may return in a reasonable time, if the article is not such as bargained for ; for in these cases the acceptance or non-return affords evidence of a new contract on a quantum valebat ; whereas, in a case of a delivery with a warranty of a specific chattel, there is no power of returning, and consequently no ground to imply a new contract ; and in some cases of work performed, there is difficulty in finding a rea- son for such presumption. It must however be considered, that in 24 370 CONTRACTS FOR WORK. all these cases of goods sold and delivered with a warranty, and work and labor, as well as the case of goods agreed to be supplied accord- ing to a contract, the rule which has been found so convenient is established ; and that it is competent for the defendant, in all of those, not to set off, by a proceeding in the nature of a cross action, the amount of damages which he has sustained by breach of the contract, but simply to defend himself by showing how much less the subject-matter of the action was worth, by reason of the breach of contract ; and to the extent that he obtains, or is capable of ob- taining an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract, and is precluded from recovering in another action to that extent ; but no more. The opinion, therefore, attributed on this record to the learned judge is, we think, incorrect, and not warranted by law ; and all the plaintiff could by law be allowed in diminution of damages, on the former trial, was a deduction from the agreed price, according to the difference, at the time of the delivery, between the ship as she was, and what she ought to have been according to the contract ; but all claim for damages beyond that, on account of the subsequent neces- sity for more extensive repairs could not have been allowed in the former action, and may now be recovered. We have already observed in the course of the argument, that the defense made in the second plea cannot be supported on the ground that it discloses a mutual agreement by the plaintiff and defendant to leave the amount of the cross claim to the jury as arbi- trators, and that they have made an award. The plea does not state any such agreement, or an equivalent thereto. Our judgment must therefore be for the plaintiff. Judgment for the plaintiff. CLARK v. THE MAYOR OF NEW YORK. 371 Contract; Deviation by Consent; Alterations; Eescission. COURT OF APPEALS, NEW YORK. [1850.] Clajrk v. The Mayor of New York (4 X. Y. 338). When parties deviate from the terms of a special contract, the contract price will, in an action for work, labor and materials, so far as applicable, generally be the rule of damages. But when the contract is terminated by one party against the consent of the other, the latter will not be confined to the contract price, but may bring his action for a breach of the contract, and recover as damages all that he may lose by way of profits in not being allowed to fulfill the contract. Or the contractor may waive the contract, and bring his action on the common counts for work and labor generally, and recover what the work done is actually worth. But in this case he will not be allowed to recover as damans anything for speculative profits. The actual value of the work and materials must be the rule of damages. This was an appeal to the Court of Appeals of New York, from a judgment of the Supreme Court of the State, affirming the decis- ion of the referees before whom the case was heard. The action was to recover for work, labor and materials. In 1838, the plaintiffs made a contract, under seal, with the water commissioners of New York city, to construct a section of the Croton acqueduct, including the receiving reservoir, according to specifications annexed to the contract. The contract specified the rate of compensation to the contractors for the different kinds of work to be done under it. One dollar was the rate per cubic yard for all the rock excavation. It was also stipulated that the plaintiffs should make any changes in the form, dimensions and material of the work which the commissioners or the chief engineer employed by them should direct ; that the engineer should decide how much of the different kinds of work was to be paid for under the contract, and what was to be the amount of the contractors' compensation at the stipulated rates, and all other questions relating to the execution of the contract on the part of the contractors, which decisions were to be final. The declaration contained a special count on the contract, stating it as made by the corporation of the city, and alleging that the plaintiffs provided materials and executed much of the work, and were ready to complete it, but were wrongfully stopped by the plaintiffs during its progress, whereby they lost the gains they would have derived from the contract. 372 CONTRACTS FOR WORK. There were also counts for work, labor and materials, the money counts, and an account stated. On the trial, the plaintiffs' counsel offered the contract in evi- dence. It was objected to on the ground that it purported to be made by the commissioners, whereas the declaration set forth one made by the defendants. The objection was overruled on the ground that the commission- ers were the defendants' agents, and the contract, with the annexed specifications, was read in evidence. On the trial, it appeared that an estimate was submitted at the time of letting the contract, showing that the amount of rock exca- vation was 150,000 yards. It was proved that the work was stopped by the commissioners' orders, and that the amount of rock excavated at that time, was 08,786 yards, and that to finish the work accord- ing to the plans and specifications, would have required 86,000 yards more ; that 6,000 yards of the rock excavation done was worth $4 20 per yard, and the rest about $1 20 per yard. The excavation not done would cost only about 35 cents a yard. After the work was stopped, the engineer estimated the amount of the various kinds of work which had been done under the contract, and gave a certificate of such estimate. A balance of $4,159 06 remained due the plaint- iffs, as was admitted. In ascertaining the balance the rock excava- tion was estimated at the contract price of one dollar a yard. The plaintiffs claimed a large sum in addition for the excavation. The referees found due the plaintiffs $50,950 06, which included $46,800 in addition to the above balance of $4,159 06. The referees made a special report, in which they stated that they had " ascertained from the proofs that the plaintiffs had been stopped by the defendants in the performance of the entire work ; that by the contract between the parties the price of the rock exca- vation was fixed at one dollar per yard, which they had been governed by, taking together the whole quantity originally required to be excavated ; that they had also ascertained the relative value of the quantity excavated and of the quantity not excavated, and on comparing such relative value they found there was due to the plaintiffs for the portion excavated the sum of $46,800." The Supreme Court affirmed the decision of the referees, and after judgment for the sum reported, the defendants appealed to this court. Pratt, J. — The counsel for the plaintiffs abandoned upon the argument all claim to recover upon the special count, and conceded that they must recover, if at all, upon the common count for a quan- tum meruit. Upon this count, therefore, two questions arise in the CLARK v. THE MAYOR OF NEW YORK. 373 case, the first upon the right to recover, and the second upon the rule adopted for the assessment of damages. Much of the apparent difficulty in this case results from the ob- scure manner in which the facts are stated in the special report. It is not easy to ascertain from the report the grounds upon which the plaintiffs' right to recover was placed in the court below, nor the rule adopted in assessing the damages. [The learned justice, after holding that the original contract with the water commissioners gave them the right at any time to change the form, dimensions, or material of the work, but did not author- ize them to stop the work in an unfinished state, and thus arbitrarily annul the contract, then proceeded as follows : ] On the question of damages the special report is more obscure, if possible, than upon the question just considered. It is clear that under the common counts the plaintiffs cannot recover the same amount of damages which they might be entitled to recover in an action for a breach of the special contract. They must be confined, in this action, either to the price of the work stipulated in the con- tract, or the actual worth of the work done. When parties deviate from the terms of a special contract, the contract price will, so far as applicable, generally be the rule of damages. But when the con- tract is terminated by one party against the consent of the other, the latter will not be confined to the contract price, but may bring his action for a breach of the contract and recover as damages all that he may lose by way of profits in not being allowed to fulfill the con- tract ; or he may waive the contract and bring his action on the com- mon counts for work and labor generally, and recover what the work done is actually worth. But in the latter case he will not be allowed to recover as damages anything for speculative profits, but the actual value of the work and materials must be the rule of damages. He cannot assume the contract price as the true value of the work nec- essary to complete the whole job, and then recover the proportion which the work done will bear to the whole job, although it may amount to more than either the contract price or the ac- tual value. This would be allowing indirectly a recovery for speculative profits upon the common counts. If the party seeks to recover more than the actual worth of his work, in a case where he has been prevented from performing the entire contract, he must resort to his action directly upon the contract ; but when he elects to consider the contract rescinded, and goes upon the quant inn meruit, the actual value is the rule of damages. The injustice of any other rule is very apparent in this case. Several different kinds of work are specified in the contract, and a specific price per yard 374 CONTRACTS FOR WORK. attached to each. The plaintiffs have selected the rock excavation from the different kinds of work specified, and proved that the part performed was worth some three times as much per yard as the part remaining unperformed, and have recovered accordingly ; although had all the different kinds of work specified in the contract been taken into consideration, it is quite probable that upon a general average of the work the part performed would be found no more difficult than that remaining unperformed. It is at all events quite clear, that justice could not be done without an investigation of all the different kinds of work specified. The contract is entire, and if it be resorted to at all as regulating the damages, it should only be resorted to in connection with all the kinds of work specified therein. This question then arises : what rule did the referees in fact adopt % The special report, in giving their final conclusion, says, " the price of the rock excavation was fixed at one dollar per yard, which they have been governed by, taking the whole quantity orig- inally required to be excavated ; that they have ascertained the rela- tive value of the whole quantity excavated, and of the quantity re- maining not excavated; and comparing such relative value, they find there is due from the defendants to the plaintiffs, for the por- tion excavated, the sum of $46,800." Although this is anything but a lucid statement, yet, if it means anything, it must mean that the referees neither allowed the actual value of the work performed, nor the price per yard stipulated in the contract ; but assuming the estimated quantity as the whole rock excavation, they ascertained its aggregate value at one dollar per yard. They then assumed that the part performed was worth some three times as much per yard as that remaining unperformed, and assessed the damages accordingly, assuming the average value of the whole work at one dollar per yard, making an aggregate of $150,000. » By this means, it will be noticed that the plaintiffs were enabled to recover for some 66,000 cubic yards of excavation nearly $113,000, a much greater sum than the cubic yards actually excavated would amount to, either at one dol- lar per yard or at the price per yard which the excavation was proved to be worth. At the former price the plaintiffs had received the whole amount due, into some $3,483 49, which was conceded to be due ; and at the highest prices proved for the work done, there would remain due some $34,088, a sum much less than the amount found due by the referees. It is clear, therefore, whether I am right or wrong in the inter- DERMOTT v. JONES. 375 pretation which I have given their report, that an error has been committed by the referees, for which the judgment of the Supreme Court should be reversed and a new trial ordered. Judgment reversed. Executory Contract ; Part Performance ; .Recoupment. SUPREME COURT OF THE UNITED STATES. [1864.] Dermott v. Jones (2 Wall. 1). While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the payment of the price, he may sue either on it or in indebitatus assumpsit, relying, in this last case, upon the common counts ; and in either case the contract will deter- mine the rights of the parties. When he has been guilty of fraud, or has willfully abandoned the work, leaving it un- finished, he cannot recover in any form of action. Where he has in good faith ful- filled, but not in the manner nor within the time prescribed by the contract, and the other party has sanctioned or accepted the work, he may recover upon the com- mon counts in indebitatus assumpsit. He must produce the contract upon the trial, and it will be applied as far as it can be traced; but if, by fault of the defendant, the cost of the work or material has been increased, in so far the jury will be warranted in departing from the contract prices. In such case, the defendant is entitled to recoup for the damages he may have sus- tained by the plaintiff's deviations from the contract, not induced by himself, both as to the manner and time of the performance. Jones, a mason and house-builder, contracted with Miss Dermott to build a house for her, the soil on which the house was to be built being her own. The house was to be built according to very de- tailed plans and specifications, which the " architect " of Miss Der- mott had prepared, and which were made part of the contract. In the contract, Jones covenanted that he would procure and supply all matters requisite for the execution of the work " in all its parts and details, and for the complete finish and fitting for use and occu- pation of all the houses and buildings, and the several apartments of the house and buildings, to be erected pursuant to the plan of the work described and specified in the said schedule; and that the work and the several parts and parcels thereof, shall be executed, finished and ready for use and occupation, and be delivered over, so finished and ready," at a day fixed. Jones built the house accord- ing to the specifications, except in so far as Miss Dermott had com- 376 CONTRACTS FOR WORK. pelled him — according to his account of things — to deviate from them. Owing, however, to a latent defect in the soil, the founda- tion sank, the building became badly cracked, uninhabitable, and so dangerous to passers-by, that Miss Dermott was compelled to take it down, to renew the foundation with artificial "floats," and to rebuild that part of the structure which had given way. This she did at a large expense. As finished on the artificial foundations, the build- ing was perfect. Jones having sued Miss Dermott, in the Federal Court for the District of Columbia, for the price of building, her counsel asked the court to charge that she was entitled to " recoup " the amount which it was necessary for her to expend in order to render the cracked part of the house fit for use and occupation according to the plan and specifications ; an instruction which the court refused to give. The court considered, apparently, that even under the cov- enant made by Jones, and above recited, he was not responsible for injury resulting from inherent defects in the ground, the same hav- ing been Miss Dermott's own ; and judgment went accordingly. Error was taken here. Some other questions were presented in the course of the trial below, and referred to here ; as, for example, how far, when a special contract has been made, a plaintiff must sue upon it ? — how far he may recover in a case where, as was said to have been the fact here, the plaintiff had abandoned his work, leaving it unfinished? — how far "acceptance," when such acceptance consisted only in a party's treating as her own a house built on her ground, waives non-fulfillment, there being no bad faith in the matter ? — and some questions of a kindred kind. The most important question in the case, however, was the refusal of the court to charge, as re- quested, in regard to the " recoupment ;" and the correctness of that refusal rested upon the effect of Jones's covenant to deliver, fit for use and occupation, in connectionjwith the latent defect of soil upon which the foundation was built. S wayne, J., delivering the opinion of the court, held that the defendant in error was bound to fulfill his covenant, and was not excused by the latent defect in the soil which led him to deviate from the stipulated specifications, and proceeded as follows : We are of opinion that the plaintiff below was entitled to recover, but that the court, in denying to the defendant the right of recoupment, committed an error which is fatal to the judgment. While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the payment of the price, he BLACK v. WOODROW AND RICHARDSON. 377 may sue on the contract, or in indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties. When he has been guilty of fraud, or has willfully abandoned the work, leaving it unfinished, he cannot recover in any form of action. Where he has in good faith fulfilled, but not in the manner or not within the time prescribed by the contract, and the other party has sanctioned or accepted the work, he may recover upon the common counts in indebitatus assumpsit. He must produce the contract upon the trial, and it will be ap- plied as far as it can be traced ; but if, by the fault of the defendant, the cost of the work or materials has been increased, in so far the jury will be warranted in departing from the contract prices. In such cases the defendant is entitled to recoup for the damages he may have sustained by the plaintiff's deviations from the contract, not induced by himself, both as to the manner and time of the per- formance. There is great conflict and confusion in the authorities upon this subject. The propositions we have laid down are reasonable and just, and they are sustained by a preponderance of the best consid- ered adjudications (Cutter v. Powell, 2 Smith's Lead. Cas. 1, and notes ; Chitty on Contracts, 612, and notes). Judgment reversed, and the cause remanded for further proceed- ings in conformity with this opinion. Pleading ; Bill of Particulars ; Implied Obligation in Contract ; Incomplete Performance ; Stoppage of Work by Defendant. COURT OF APPEALS, MARYLAND. [1873.] Black v. Woodrow and Eichardson (39 Mil. 194). As a general rule, a bill of particulars, unless restricted to some particular count, applies to all the counts of a declaration, if they be of a character to require such aid in or- der to notify the defendant of the nature and extent of the plaintiff's claim. Where a count furnishes sufficient notice of the nature of the plaintiff's claim, and of the evidence required to support it, a bill of particulars is not demandable. Where a contract, on its face, appears to be obligatory upon one party only, but it is manifest that it was the intention of the parties and the consideration upon which the one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such obligation will be implied. 378 CONTRACTS FOR WORK. In an action for damages, the plaintiffs alleged in the fifth count of their declaration — the first four counts having been stricken out by consent — that they had agreed with the defendant to build him a house, for which he agreed to pay them a certain price; that, in pursuance of said agreement, they began to build the house, and were ready and willing to complete it, but that the defendant prohibited and forcibly prevented them from so doing, and compelled them to desist from the work. The sixth count set forth the contract and the work done under it by the plaintiffs in detail, and al- leged that the plaintiffs were then and there ready, willing, and anxious to comply with the contract in every particular, but were prevented from so doing by the de- fendant. Verdict being for the plaintiffs, upon an appeal from an order overruling a motion in arrest of judgment, Held: 1st. That from this contract an obligation by the defendant to suffer the house to be built was implied. 2d. That though the defendant had the right to stop work on the building, yet, by so doing, he committed a breach of contract, and incurred a liability to pay the damages that might result therefrom. 3d. That the damages in such case would include compensation for the labor done and materials furnished, and such further sum as might, by legal principles, be assessed for the breach of the contract. 4th. That though the declaration omitted in terms to aver the implied promise of the de- fendant, and was not very technical in stating the breach thereof, yet the fact of prevention was alleged as the breach, and this was sufficient ; especially after ver- dict, which is aided by intendment. Appeal from the Superior Court of Baltimore city, to the Court of Appeals of Maryland. The facts are stated in the opinion of the court. The nature of the various exceptions taken at the trial, and of the points of counsel on the argument of the appeal, also sufficiently appear in the opinion. Alvey, J., delivered the opinion of the court. In this case, Woodrow and Richardson sued Black on a contract for the building of a house by the former for the latter. The dec- laration, as originally filed, contained six counts ; the first four being common counts, for work and labor, for materials provided, for money paid, laid out and expended, and for goods bargained and sold ; and the two remaining counts being framed on the special agreement. By the first of these special counts, it is alleged that the appellees, the plaintiffs below, agreed with the appellant to build him a house on his farm, for which the latter agreed to pay to the former six thousand dollars ; and that, in pursuance of the agree- ment, appellees commenced to build the house, and expended large sums of money thereon, and that they were ready and willing to comply with their contract, and complete the house in accordance therewith, but that the appellant prohibited and forcibly prevented them from so doing, and compelled them, at great expense, to take away the materials by them provided for the building of such house ; BLACK v. WOODROW AXD RICHARDSON. 379 and that the appellant refused, and still refuses, to pay the appellees for the work and materials provided, to their damage of six thousand dollars. By the second special count, being the sixth count in the declara- tion as originally filed, it is alleged that the appellees and appellant agreed together that the former would build for the latter a frame house on his farm, in the manner and according to the specifications stated and set forth, and that the appellees, in pursuance of the con- tract, commenced and progressed in the work of erecting such house, and expended large amounts of money in providing materials there- for ; and although the appellees were then and there ready and will- ing and anxious to comply with the contract in every particular, and to build the house in every respect in exact accordance with the con- tract, they were prevented from so doing by the express orders of the appellant, whereby they sustained damage to the amount of six thousand dollars. The four common counts were stricken out by consent after the jury were sworn ; and to the two special counts the appellant pleaded that he did not commit the wrong alleged ; a plea wholly inappropriate to this action, but, as no objection was taken to it in the court below, we must, to give it any effect at all, suppose that it was intended to traverse the breaches assigned in the two counts to which it was pleaded. In the course of the trial in the court below three bills of excep- tion were taken by the appellant ; two of them to rulings upon questions of evidence, and the third to rulings in respect to the pray- ers offered by the appellant. The verdict being against the appel- lant, he also moved in arrest of judgment, and assigned as reasons for the motion : 1st, that the amount of the verdict exceeded the amount claimed by the bill of particulars ; 2dly, that the declaration failed to allege a tender or offer of performance, or a sufficient ex- cuse for non-performance of the contract by the appellees; and. 3dly, that the declaration was, in other respects, defective and in- sufficient. This motion in arrest, going as it does to the right of the ap- pellees to maintain the action on the present declaration, will be first considered. And first, as to the amount of the verdict being in excess of the amount claimed by the particulars of demand. It is clear, we think, that the motion in arrest cannot be sustained on this ground. The bill of particulars makes no reference to any particular count in the declaration ; and it was filed when the declaration embraced the 3S0 CONTRACTS FOR WORK". common counts which were afterwards stricken out. It does not appear to have been the intention of either the appellant in demand- ing the bill of particulars, or the appellees in filing it, to make it ex- tend to any count in the declaration to which it was not reasonably and properly applicable. As a general rule, a bill of particulars, un- less restricted to some particular count, applies to all the counts of a declaration, if they be of a character to require such aid in order to notify the defendant of the nature and extent of the plaintiff's claim. Such were the cases of Carter v. Tuck (3 Gill, 250), and Scott v. Leary (34 Md. 389). In both those cases the declaration contained only the common counts in assumpsit and where the particulars were properly demandable with reference to them all. But it is only " where the pleading is so general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it," that a bill of particulars can be required (Code, art. 75, sec. 22, sub- sec. 107). This criterion prescribed by the Code is but the expres- sion of the previous rule of practice. In cases where the declaration is special, and discloses the nature and extent of the demand, as in cases of counts upon promissory notes or bills of exchange, there is no right in the defendant to require greater particularity than the count affords. In this case, the bill of particulars was proper in ref- erence to the common counts, and perhaps to the fifth count, as that count goes only for the work and labor, and materials furnished under the contract. But as to the sixth count, the particulars were unnecessary, and were not demandable, as the count itself was special, setting out fully the contract, and alleging as a breach the appel- lant's prevention of performance of the contract by the appellees, and the consequent damage sustained by them. The count, there- fore, furnished sufficient notice of the nature and character of the claim, and of the evidence required to support it. This is all that a defendant has a right to demand, in regard to the certainty of the plaintiff's claim. Wherever, says Mr. Tidd (Pr. 597), the particulars of the de- mand are disclosed in the declaration, as in special assumpsit, cove- nant or debt on articles of agreement, &c, or in actions on matters of record, an order to furnish particulars is unnecessary. And it has been expressly decided that the court will not compel a plaintiff suing for the breach of an agreement, and assigning by way of special damage that he has incurred certain expenses, to furnish par- ticulars of such special damage (Retallick v. Hawkes, 1M. & W. 573 ; see also Fisher v. Wainwright, 1 M. & W. 480 ; Stannard v. Ullithorne, 3 Bing. K C. 326, and Day v. Davies, 5 C. & P. 340). BLACK v. WOODROW AND RICHARDSON. 331 And Mr. Evans, in his Maryland Practice (p. 256), states the rule to be, that " where the declaration sufficiently discloses the particulars intended to be relied on, a bill of particulars is not necessary or al- lowed. And if a bill of particulars be actually given, it will produce no effect ; but the party may still prove anything which he might have proved, had there been no bill of particulars." It follows, therefore, as the sixth count was of a character not to require the aid of a bill of particulars, and the bill of particulars fur- nished not professing to apply to it, the appellees' right to recover under this count was in no manner restricted by such particulars, and consequently, the first ground for the motion in arrest fails, even if such question could, in any case, be properly raised on such mo- tion ; a technical question that we do not now decide. Then, as to the second and third grounds for the motion, namely, that there is no sufficient allegation of tender or offer of perform- ance, or of excuse for non-performance of the contract, by the ap- pellees, and that the declaration is in other respects insufficient. By the fifth count in the de'claration, it is alleged, as we have seen, that the appellees were ready and willing to comply with the contract, and to complete the house, but that the appellant pro- hibited and forcibly prevented them from so doing, and compelled them to desist from the work ; and, by the sixth count, it is alleged that the appellees were then and there ready, and willing, and anx- ious, to comply with the contract in every particular, but that they were prevented from so doing by the appellant. Now, it is certainly clear that the appellant, by preventing the appellees from performing their part of the contract, committed a breach of it, for which he is liable. It is said, however, that the contract is silent as to any promise by the appellant to suffer or al- low the house to be built ; and that his only express promise was to pay the price agreed on, part while the house was in course of erec- tion, and the balance after its completion according to contract ; and, that as the appellant could elect to have the house built or not, as he thought proper, and having elected not to have it built, the con- dition alone upon which the appellees could sue upon the contract as subsisting has never been performed by them, namely, the erec- tion of the house according to the contract, and, consequently, there has been no such breach assigned as entitled them to recover on the contract, whatever might be their right to recover in general indebi- tatus assumpsit., as for work and labor done and materials furnished. That the only breach for which the appellant can be liable on the contract itself, as he contends, is the non-payment of the agreed price 3S2 CONTRACTS FOR WORK. for the building of the house, and as the house has not been built, the declaration shows no such breach of the contract on the part of the appellant as will render him liable to the appellees in this action. With respect to the proposition that the appellant was not bound to have the house built, it is certainly true, that the appellees could not persist in building the house against the consent of the appel- lant, and in defiance of his express order to desist ; but with re- spect to the other proposition, that there was no promise of the ap- pellant to allow it to be built according to the contract, and that consequently, his prevention constituted no breach, that cannot for a moment be conceded. It not unfrequently occurs, that contracts on their face and by their express terms appear to be obligatory on one party only ; but in such cases, if it be manifest that it was the intention of the par- ties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obli- gation on the other party, such corresponding and correlative obliga- tion will be implied. Thus, if the act to be done by the party bind- ing himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or al- low to be done the act or things necessary for the completion of the contract will be necessarily implied (Churchward v. The Queen, 6 B. & S. 807). And among the instances given of such implied obli- gation, is the case where A. covenants or contracts with B. to buy an estate of the latter, at a given price, there, although the contract may be silent as to any obligation on the part of B. to sell, the law implies a corresponding covenant or contract by him to sell and con- vey the estate (Pordage v. Cole, 1 Wins. Saund. 319). Indeed, no better instance of the proper application of the principle could be furnished than the present case* The appellees agreed with the ap- pellant to build for the latter a house on his land for a certain price, part to be paid while the house was in course of erection, but the larger part of the price was not to be paid until the house was com- pleted ; and although the appellant could not be compelled to have the house built against his consent, yet, notwithstanding the contract is silent as to the appellant's promise that he would suffer the house to be built, the agreement with the appellees for the building of the house clearly implies that he would allow that to be done, without which it would be impossible for the appellees to do what they had agreed to do. To allow or suffer the house to be built was the corresponding or correlative obligation of the appellant, implied by law, to the obli- BLACK v. WOODROW AKD RICHARDSON. 383 gation of the appellees to build the house, as expressed by the con- tract ; and for any breach of this implied promise or obligation by the appellant, he ia equally liable as upon an express promise. The only question is, whether a sufficient breach of this implied obliga- tion has been properly assigned in the declaration before us. In the case of Cort & Gee v. The Ambergate, &c. R. Co. (17 Adolph. & Ell. N. S. 127), where there was a contract for the manu- facture and supply of a certain quantity of railway chairs by the plaintiffs for the defendants, to be paid for after delivery, and the defendants, having accepted and paid for a portion of the chairs, gave notice to the plaintiffs not to manufacture any more, as they, the defendants, had no occasion for them, and would not accept or pay for them ; in an action upon the contract, it was held, that, as the plaintiffs were desirous and able to complete the contract, they could, without manufacturing and tendering the rest of the chairs, maintain an action against the defendants for a breach of the con- tract. It was also held, that the simple notice by the defendants to the plaintiffs that the latter should not go on to supply the rest of the chairs, entitled the plaintiffs to recover, on a count alleging that they were ready and willing to perform the contract, and that the defendants refused to accept the residue of the chairs, and prevented and discharged the plaintiffs from the further execution of the con- tract ; that such notice by the defendants was a legal prevention, though there was no other act of obstruction. So in the case of Derby et al. v. Johnson et al. (21 Vt. 17). There the plaintiffs and defendants entered into a written contract, by which the former en- gaged to do all the stone work, masonry and blasting upon a certain piece of railroad, at certain specified prices by the cubic yard. The plaintiffs entered upon the performance of the contract, and while they were so engaged, the defendants gave them direction to quit the work, and to do nothing more under the contract ; and the plaintiffs having quit the work as directed, it was held to be no re- linquishment of the contract on their part ; but that the defendants, in giving the notice and stopping the work were in the exercise of a right that belonged to them, leaving themselves liable, of course, for all consequences resulting from their breach of the contract. The same principle was very fully stated and adopted in the case of Clark v. Marsiglia (1 Denio, 317). ISTow, in the case before us, according to the averments of the declaration, the appellees were notified and directed by the appellant to desist from the further prosecution of the work contracted to be done by them, and were thus prevented from performing their part 384 UNAUTHORIZED CONTRACTS. of the contract ; and though the appellant had a right thus to stop the work on the building, yet, by so doing, he committed a breach of the contract, and thereby incurred a liability to pay the damages that might result therefrom. And the damages in such case would in- clude compensation for the labor done and materials furnished, and such further sum in damages as might, upon legal principles, be as- sessed for the breach of the contract (1 Denio, 31 7 ; Phil. "Wil. & Balto. R. Co. v. Howard, 13 How. 307, 344). And although the declaration omits in terms to aver the implied promise on the part of the appellant to allow or suffer the house to be built, but sets out in the sixth count the contract in full, and is not very formal or tech- nical in stating the breach of such implied promise, still the fact of prevention is alleged as the breach, and that- is sufficient, especially after verdict, which is aided by intendment (1 Chit. Plead. 337). Discovering no sufficient defect in the declaration to defeat the verdict in this case, we are of opinion that the motion in arrest of judgment was properly overruled by the court below. [The learned court then passed on questions of evidence, and of the construction of the contract. This part of the opinion not being material to the rules of damages, is here omitted.] Finding no error, we shall affirm the judgment. Judgment affirmed. UNAUTHORIZED CONTRACTS. Contract without Authority ; Extent of Damages for Breach of Implied "Warranty of Authority ; Costs of Litigation under- taken in consequence of the Warranty. COURT OF QUEEN S BENCH. [1864.] Hughes v. Graeme (33 L. J. K S. Q. B. 335). The defendant, acting as broker for both buyer and sellers, made a contract for the sale of some wool on certain terms. The sellers afterwards repudiated the contract, al- leo-ino- (as was tile fact) that they had not authorized the defendant to sell on those terms. The wool had been imported from California, and could therefore have been exported to America free of duty, and there was no other wool similarly circum- stanced in the market. The defendant persisting that he had authority, the buyer filed a bill in chancery for specific performance against the sellers, and obtained an interim injunction; the bill was dismissed and the injunction dissolved, with costs, on the ground of the want of authority in the defendant. In an action by the buyer against the defendant for the breach of his promise that he had authority: HUGHES v. GRAEME. 3S5 Held, that the plaintiff could maintain the action, although the defendant was his a°-ent, as well as of the sellers; that the chancery suit was a reasonable course to adopt; and that the plaintiff was entitled to recover, as damages, the taxed costs of the chancery suit and the plaintiff's own costs taxed as between solicitor and client; and also the difference between the contract price of the wool and the value of that or similar wool, taking into account that it could have been exported duty free to America, and all the mercantile circumstances affecting the value. At the trial, at the sittings at "Westminster after Michaelmas Term, 1862, before Cockburn, C. J., it appeared that the plaintiff was a wool merchant in Liverpool and London, and that the defend- ants were wool brokers at the former jilace. They had had dealings together, and about November, 1861, the defendants, understanding from one Foulkes that he was in a position to act for Messrs. Lloyd & Co., informed the plaintiff that there was some California wool on board of four ships which was the property of Messrs. Lloyd & Co., and that they had authorized them (the defendants) to sell it for them. Samples were shown ; and on the 14th of November a con- tract note was drawn up and signed by the defendants for the sale of the wool by Lloyd & Co. to the plaintiff, on certain conditions, and at a certain price. Lloyd & Co. afterwards repudiated the con- tract, alleging that they had given no authority to the defendants to sell for them on such conditions ; but when the cargoes arrived in England, they offered to sell them to the plaintiff upon other terms, which he would not accede to. The plaintiff subsequently filed a bill in chancery to enforce the performance of the contract, and ob- tained an interim injunction (on the terms alleged in the first count) to restrain the sale of the wool. In support of the plaintiff's case both defendants made affidavits adhering to the statement of their authority. This bill was dismissed, with costs, and the interim in- junction was dissolved, on the ground that, in the opinion of Wood, V. C, the authority alleged by the plaintiff to have been in the present defendants to bind Lloyd & Co. was not established. The present action was then commenced, the plaintiff claiming as damages all the costs and damages incident to the chancery suit, and also the amount of loss sustained by the plaintiff by reason of the loss of the contract. The wool in question was of a special value by reason of its having been imported from California, so that it could be exported to America duty free, and would fetcli such a price there as would have made the contract a very remunerative one to the plaintiff. There was no wool in the English markets under the like conditions at the time. The plaintiff had intended, while making the contract, to export it to America, and thus to avail himself of its special character. 386 UNAUTHORIZED CONTRACTS. The jury found that the defendants acted as agents of Lloyds as well as of the plaintiff, but were not authorized, in fact, to contract for Messrs. Lloyd on the terms they had made with the plaintiff ; and that the plaintiff did not know the circumstances under which the defendants assumed to act for Lloyds. A verdict was entered for the plaintiff for 370Z. ; being the amount of taxed costs, 110/., and damages, GO/., actually paid by the plaintiff to the defendants in the chancery suit, and 200/., the amount of the bill, untaxed, of the plaintiff's solicitor for his own costs. Leave was reserved to the plaintiff to move to increase it by the amount of damages, to be stated by an arbitrator, for breach of the contract ; and leave to the defendants to move to enter a non- suit, on the ground of the defendants not being liable at all, or to reduce the damages by the amount of the costs of the chancery suit, or by the amount taken off on taxation as between solicitor and client. J. D. Coleridge (Hilary Term, Jan. 11) moved accordingly. — First, as the defendants were acting as the brokers or agents of the plaintiff, the action cannot be maintained, as the knowledge of the agent mnst be the knowledge of the principal. Secondly, the chan- cery suit was not the proper remedy for the plaintiff to have taken, but an action at law ; and the defendants were not liable for any of the costs of that suit. Collen v. Wright (7 El. & B. 301 ; s. c. 26 Law J. Eep. K S. Q. B. 117 ; s. c. in error, 8 El. & B. 617 ; 27 Law J. Rep. ]ST. S. Q. B. 215) is distinguishable, for there the chancery suit was the appropriate remedy, the supposed contract relating to land. Bow v. Davis (1 B. & S. 220 ; s. c. 30 Law J. Rep. K S. Q. B. 257) is an authority for the defendants. [Blackburn, J. — No doubt, as a general rule, equity will not en- force the specific performance of a contract relating to chattels ; but where there are peculiar circumstances like the present — the wool having advantages peculiar to itself — a decree for specific perform- ance is the only adequate remedy, and equity would interfere (see 1 Mad. Ch. Br. 515 ; Story's Eq. Jur. §§ 717-720 ; Buxton v. Lister, 3 Atk. 383, 3S5 ; Claringbould v. Curtis, 21 Law J. Rep. K S. Chanc. 511) ; and I do not understand that the vice chancellor dismissed the bill on any such technical ground, but on the broad ground that the authority of the present defendants to bind Lloyds was not made out.] At all events, the defendants can only be liable to pay the amount of the- plaintiff's own costs after taxation. Cockbuen, C. J. — I think there should be no rule, except upon HUGHES v. GRAEME. 387 the last point — namely, with a view to the taxation of the costs. I think that the other points made by Mr. Coleridge may be disposed of very shortly. The defendant Graeme, the broker, was the agent for the plaintiff Hughes, who was led into making this contract by the representation of Graeme that he had authority from his sellers, Lloyds ; and Mr. Coleridge contended that because he was the plaintiff's agent, therefore hia knowledge of the true state of the facts must be taken to be the knowledge of the principal, and that therefore Mr. Hughes must be taken to have known that Graeme had not the authority of the sellers. Now, although for many purposes the knowledge of the agent must be taken to be the knowledge of the principal, yet when it comes to the question whether the agent has misled the principal by a representation which was not according to the fact, it seems to me to be quite monstrous to say that that which was falsely represented by the agent to the principal, must be taken to have been known to the principal to be false, because, in point of fact, it was false. If the complaint in the action is that the representation of authority made by the agent to the principal was false, such a proposition as that would defeat entirely the principle of law that the agent is responsible to the party to whom he makes that representation ; and if, where the agent is the agent of both parties, it is to be taken that when that representation is false in fact, nevertheless the false- hood must be taken to have been known to the party who received it, I think it would be defeating the wholesome rule of law appli- cable to such cases, where the authority is wrongly assumed. I do not think that position can be maintained for a moment. The important question, as the case now stands, is, whether the defendant Graeme is liable in respect of the costs of the proceedings in equity ; and I must say I think he is, and for this reason — that, under the circumstances, we are satisfied that the suit in equity was a reasonable course of proceeding to be adopted by Mr. Hughes, upon the sellers, Lloyds, refusing to complete the contract. Hughes had been induced to enter into this contract upon the representation of Graeme that he had authority to complete it on the part of Lloyds, the sellers ; and the contract being signed on behalf of both parties, Lloyds reject the contract, upon the ground that the terms are inconsistent with those which they had prescribed to their agent, as the only tenns upon which they were prepared to deal. Upon that Hughes says, " I am entitled to enforce this contract. It will not answer my purpose to proceed at law, because what I want is the delivery of these specific wools ; no other will suit the purpose 38S UNAUTHORIZED CONTRACTS. for which I entered into -this contract." The only mode in which he could ohtain the specific performance of the contract was by go- ing to chancery, and instituting a suit for that purpose. He does institute a suit for that purpose, with the incidental further purpose of obtaining an injunction to prevent the sale of the wools, pend- ing the dispute between the parties. Upon the hearing in chancery it appeared that Lloyds, the sellers, denied the authority of the agents to conclude the contract upon the terms on which it had been concluded, and they brought evidence, on affidavit before the vice chancellor, to show that there had been no authority in Graeme to conclude the contract upon those terms. The vice chancellor said, upon this disputed state of facts, and the contest with reference to the authority, he could not give Mr. Hughes the relief he sought, and the bill was dismissed. That was not an unreasonable proceed- ing on the part of Hughes. We are in the position of a jury to determine that question. Mr. Coleridge did not propose that that question should go to the jury, but asked to have it reserved for the consideration of the court. We deal with it as though we were a jury ; and I must say I think that, under all the circumstances, it was not an unreasonable course on the plaintiff's part. It was in consequence of Graeme having represented that he had authority so to sell, that the plaintiff endeavored to enforce the contract made under that assumed authority. Graeme makes an affidavit in the suit with a view of enabling Mr. Hughes to enforce his claim in ■equity against the sellers, Lloyds. In the whole of these proceedings Graeme never for a moment suggests that there was any doubt as to the truth and honesty of his statement as to the authority he had from Lloyds. The consequence is, that acting on that, Hughes, the present plaintiff, proceeds with the suit, and he is defeated. Then there is a loss of the costs of that suit, which LIughes had to pay, and that is a loss which results to him upon the representation of Graeme as to his authority, which was made without any founda- tion in point of fact. If the authority had been true, upon the representation of that authority, it was a reasonable course for Mr. Hughes to pursue, and he, having sustained that loss upon the au- thority not being true, the defendants are liable for the costs. We think there should be no rule upon the above grounds ; but on the minor part of the matter — namely, that the costs for which the de- fendants are liable in this case must be costs as taxed in the proper course of taxation. They have not been taxed. Therefore, so far, I am disposed to grant the rule to reduce the damages to the amount to be ascertained on taxation. HUGHES v. GRAEME. 389 Cbomptox, J. — I am of the same opinion. According to Collen v. Wright, we must assume, in this case, there was a warranty. It is proved there was a breach of warranty, for it was proved that the defendants had not the authority of Lloyds to make the contract. Then, according to the same authority, proceedings in chancery were reasonably adopted on the faith of such a waaranty ; and the costs must be held to be damages naturally and approximately flowing from the breach of warranty, within the rule of what shall be the damages for breach of a contract in such a case. I take the rule to be that which has been referred to : the defendant must pay the costs of the course which the other party has reasonably adopted, acting upon the warranty. I quite agree with the cases Mr. Cole- ridge cited. The case in which the ejectment was tried by my brother Wightman (Pow v. Davis) is not in point. There the plaint- iff had failed in the ejectment from want of title under the statute of frauds, and not from the breach of warranty ; therefore the dam- ages did not flow from the breach of warranty. That is not the case here, because I take it the plaintiff failed in chancery by reason of its not being proved that Graeme had the authority which he warranted he had. If Mr. Coleridge could have shown us there was no jurisdiction in the Court of Chancery to interfere in the matter of goods, which at one time was the rule generally acted upon, I be- lieve, that might have led to a different result. I understand that in this case, as was pointed out, there being an irremediable mischief in this sense, that the defendant could not make the same use of other goods as he could have done of these particular goods, the court would have granted the relief, at all events, preventing the sale of the goods, supposing the authority had been clearly estab- lished. I think here the plaintiff, under the circumstances, had a right to suppose — from Graeme's conduct in making the contract, and when he asserted, what he afterwards reasserted when the plaintiff instituted these proceedings, and what he persisted in by the affidavit in the course of the proceedings — that his assertion was true ; and I can see nothing unreasonable in the plaintiff think- ing he was establishing a fair case in equity. And he would have succeeded if he had made the authority out, and if he had estab- lished it to the satisfaction of the vice chancellor, not leaving it as a doubtful case. But he failed distinctly on the ground that he had not made out a clear case of the truth of the authority having been given. I look upon the rule as this, that it is a question of fact whether the party has instituted a suit reasonably under the circum- stances ; and I think that, after all, the questions that have been 390 UNAUTHORIZED CONTRACTS. raised about notice, and about bow far the parties knew, are all in- gredients in the consideration of that question merely, whether it was reasonable or not. It is not necessary, in point of law, that the party should give notice to the other of the course he intends to pursue ; more especially where, as in the present case, the defendant knew at the time, and was a witness at all events in the case, and a party giving his evidence from time to time. Therefore I do not think the want of notice at all conclusive, although it is a circum- stance generally in the plaintiffs favor that the defendant has had a notice. The question is, how far he is led on by the defendant from time to time to go on with the proceedings. All these are matters, in my mind, for the jury to say whether the costs were incurred by the reasonable act of the one party, to which he is led by the mis- representation of the other. It seems to me all these points really enter into the question of whether it is reasonable or not. It was not wished that this question should be left to the jury, and I am in the situation of a juryman. I think that the plaintiff here, under the circumstances, it being the only chance he had apparently of get- ting what he desired — if he sued for damages probably he would not have got the remedy he desired of being able to send the wool abroad — was taking the readiest and best mode which he could have taken. I think, therefore, these were costs reasonably incurred, owing to the conduct of the defendants, and that the plaintiff, in acting under those representations made by the defendants, was not doing an unreasonable act in trying to get that remedy ; but that he failed, where he would have succeeded, but for the fact that the de- fendants asserted the authority when they had it not. Therefore, I think there should be no rule on that ground. Blackburn, J. — I am of the same opinion. Since Collen v. Wright, the decision being affirmed in the Exchequer Chamber, we must take it to be the rule of law, that where a person makes a bar- gain professing to have authority from another to bind that princi- pal, he impliedly warrants he has got the authority, unless there has been something in the transaction to rebut that implication. I do not think it would necessarily follow in every case that there was a warranty. The facts here are that Graeme, bargaining with Foulkes in Liverpool, supposed that Foulkes had authority from Lloyds. I think it probable that the circumstances might have amounted to an authority, but it would merely be an authority from Foulkes and not from Lloyds, and they would not necessarily justify a warranty that the defendants actually had authority from Lloyds in London. And if the defendant Graeme had told Hughes, " We make this con- HUGHES v. GRAEME. 391 tract, but it is subject to approval if made in twenty-four hours," or something of that sort, " from Lloyds," then there would have been no implication of warranty. But all that has been negatived by the finding of the jury, who found, in substance, that the defendant Graeme, the broker, made this contract professing to act for the sellers, Lloyds, but having no authority from either Lloyds or Foulkes to make the particular contract. I do not say anything upon the point Mr. Coleridge urged, that there was no such war- ranty of authority, because Graeme acted for both parties. I own I scarcely understand the proposition, or why, because a man might say, " I am acting for you, and I had also authority from the other side for making the bargain," the warranty should not arise in that case. It stands, therefore, that Graeme had warranted that he had authority from Lloyds to make this bargain, when, in point of fact, he had no such authority himself, and he must make good the damage resulting from that. Then comes the great question at present before us, whether or not the damages include the costs in this chancery suit ; and I take it, the rule, which my brother Ckompton has alluded to, in Collen v. "Wright, is to be considered here, that if a person takes a particular course, reasonably, naturally, and lo?m fide resulting from the asser- tion of the authority, then the results of that course would be a reasonable and natural consequence of the warranty, and the costs of it would be part of the reasonable and natural damages. That would be, properly speaking, a question of fact, and would be a proper question for the jury ; but the course taken at the trial was, it was treated as a question reserved for this court, and what we are to say is — putting ourselves in the position of a jury — would a reasonable jury, properly directed, have given these damages or not ? And it seems to me that, when the defendant Graeme had warranted he had got authority, and continued to assert he had got that authority, if the assertion was continued, and he never re- called it, it was a reasonable and natural consequence from it that the plaintiff, Mr. Hughes, should, acting upon that belief, proceed in a proper way to vindicate what he believed to be his rights, and what would have been his rights if the fact had been what the de- fendant had warranted it was, and continued to assert that it was. Then the course he took for that purpose was a bill in chancery. I think we must take it, when the interim injunction was granted, that there was a plausible ground for saying that was a right and proper course ; for the vice chancellor would not have granted that injunction if he had thought it apparently unreasonable to go to 392 UNAUTHORIZED CONTRACTS. chancery at all ; and that the mere fact of there being goods in question would not have prevented the plaintiff's remedy being in chancery. His honor would not have otherwise granted the injunc- tion, but he did grant the injunction, and the case proceeds in chan- cery to proof ; and as I understand the vice chancellor's judgment, the ground his honor went on was this : on the case, and on the evi- dence brought before him, it was not proved that there was authority in the present defendants ; his honor rather thought that it was dis- proved, namely, that there was no authority, but, at all events, it was not proved there was authority. Therefore, upon that ground the bill failed. It was not upon the ground, if there had been au- thority, or if the warranty had been true, it would not have been a right or proper course, but on the ground that the plaintiff's case was not established as true. That being so, the case seems to me to be analogous to Collen v. Wright. The proceeding was one, natu- rally, reasonably, and bona fide, instituted in consequence of the warranty, and the continued assertion that there was the authority. That being so, it seems to me that it is right and proper that the costs should be allowed ; but I quite agree that it should be only the amount which the plaintiff actually lost in the proceedings ; and consequently it should not be the amount of the costs that may have been sent in between him and his attorney, but the amount of costs as taxed by the taxing master. Mellok, J. — As to the first matter, I entirely agree with the answer given by the Lord Chief Justice with reference to the war- ranty of authority where the agent is the agent of both parties, and I do not wish to say one word upon it further. With reference to the main question argued in the case, applying the doctrine estab- lished in Collen v. Wright to the findings of the jury, it seems to me the decision must depend upon that case, and I quite agree with the rest of the court, that the costs of the chancery suit may be re- covered as damages. Considering what we must take as the reserva- tion in this case, namely, whether the jury, properly directed, would have found the costs in the chancery suit were properly incurred, and flowing from the warranty of authority by the defendant, I cannot help thinking they were reasonable, and, under the circum- stances of this case, they may be very fairly given. Then as to the reduction which is to be made, the damages ought to be reduced to such amount with reference to the items of the costs in chancery, as shall be certified by the proper taxing officer to be the reasonable costs occasioned in that suit. Rule nisi to reduce the damages by the amount taxed off the plaintiff's costs. ALLEN v. SUYDAM. 393 A rule was also the same day obtained. Per Curiam (Cockburn, C. J., Blackburn, J., Mellor, J., and Shee, J.) — The rule obtained by the defendants must be absolute to reduce the damages by the amount (if any) that may be taxed off the costs of the plaintiff in the chancery suit, on taxation as between solicitor and client. The rule obtained by the plaintiff must be ab- solute to increase the damages by an amount to be arrived at by estimating the difference between the contract price of the several cargoes and the value of that wool, or wool of similar quality, taking into account the fact that it was duty free in America at the times and places when and where it would have been delivered if the con- tract had been binding ; and also taking into account all mercantile circumstances affecting the value of such wool in those places. Rule absolute accordingly.* Note.— See Collen r. Wright, 8 E. & B. 647; affi'g 7 E. & B. (Q. B.) 301 ; also, White, Receiver, v. Madison, 26 K Y. 117. PRINCIPAL AND AGENT. Principal and Agent ; Negligence ; Mitigation. COURT FOR THE CORRECTION OF ERRORS OF THE STATE OF NEW YORK. [1838.] Allen v. Suydam (20 Wend. 321). The law imposes on the agent for the collection of a bill the duty of presenting it for acceptance and payment without unnecessary delay ; and the fact that it was not put into his hands until some time after its date is no excuse for his neglect of this duty. Where, under such circumstances the bill is not collected, the agent is prima facie liable for the whole amount thereof, with interest. But he is at liberty to prove the actual loss attributable to him to be less, and is liable only for such damages as the evi- dence shows were actually sustained by reason of his negligence. Error from the Supreme Court of New York. This was an action by Suydam and Boyd against S. and M. Allen for negligence in omitting to present within a reasonable time for acceptance, a draft for $616 89, received by the plaintiffs on the 16th of August, 1833, from one John Eastabrook, at New York, and which * The formal entry of the rules was modified, in order to facilitate the defendants in appealing. 394 PRINCIPAL AND AGENT. was drawn by him on W. W. and J. E. Eastabrook, a firm at Con- cord, New Hampshire. The draft was dated July 21, 1833, and payable two months after date to the plaintiffs order. They placed it on the day of its receipt by them, in the hands of the defendants, who were to be allowed a commission of one per cent, for collection. The defendants retained the draft till September 2d, 1833, on which day they mailed it to the cashier of a bank at Concord, in a letter which he received on the sixth of that month. On the following day he inquired of the drawees whether they were ready to accept the draft, and was told they were not ; that they did not accept without instructions, and had received none, but that they expected to hear from the drawer in a short time. On the 10th of September the cashier again presented the draft to the drawees for acceptance, and was then informed by them that they had been instructed not to accept, and therefore should not. The draft was then protested for non-acceptance, and returned to the defendants, who received it September 16th, and on the same day sent it to the plaintiffs, with a request for the return of the receipt given for it. The plaintiffs refused to surrender the defendant's receipt or take back the draft. On the 19th of the same month the defendants requested to be in- formed by the plaintiffs whether they wished the draft again sent to Concord and protested for non-payment. The plaintiffs replied that it had been given to the defendants for collection, and if through want of attention any accident should befall it, they would be held responsible. The drawer died insolvent on the 9th of October, 1833. It appeared that he had funds (the amount of which was not shown) in the hands of the drawees at the time when the draft was drawn, but not when it was presented for acceptance. It also appeared that after August 16, 1833, drafts drawn by John Eastabrook on the same drawees, amounting together to $2,000, were accepted and paid or secured. The drawees testified that it was their invariable rule not to accept without instructions from the drawer, and that the time which intervened before the draft was presented did not affect their action in regard to its acceptance. The presiding judge charged the jury that the defendants were bound to present the draft for acceptance with reasonable diligence after its receipt by them, and that if they did not do so, they were liable for all damages sustained by their neglect ; that as the court and jury had no knowledge as to the extent of these damages, except from the amount of the draft, the jury should find a verdict for the plaintiffs for that amount, with interest. This they accordingly did. Judgment on the verdict having been entered in the Superior ALLEN v. SUYDAM. 395 Court of the city of New York, and affirmed on error in the Su- preme Court, the cause was removed by writ of error to this court, where it was argued. By the Chancellor. — Two questions of importance to the com- mercial community are presented for our consideration and decision in this cause : 1st. Whether an agent or broker who receives for col- lection a draft or bill of exchange payable at a particular day, or a certain number of days after its date, is under any obligation to pre- sent the same to the drawee for acceptance immediately, and before the time when the draft is due and payable % And 2d. If he is, whether the person who has given him such draft or bill for collec- tion, can, in case of his neglect to present the same before the day of payment, recover the whole amount due thereon, with interest ; although the owner has not in fact sustained damage to that extent, by the neglect of his broker or agent to present the bill for accept- ance without any unnecessary delay \ [The learned Chancellor having answered the first of these ques- tions in the affirmative, holding that the receiving of a bill by an agent to collect, implies not only an obligation on his part to take the necessary steps to charge the drawer and indorsers by protest and notices in case of its not being accepted and paid by the drawee, but also due diligence on the part of the agent in endeavoring to procure the drawee's acceptance without delay, whenever so doing may be necessary or beneficial to the interests of the principal ; and that the fact that in this case, the bill was not put into the agents' hands till some time after it bore date was no legal excuse for their not sending it on for acceptance and payment without unnecessary delay, proceeded as follows :] In relation to the amount of damages, however, I think the charge of the judge who tried the cause was clearly wrong ; and that it has unquestionably produced great injustice in this case. As we have before seen, the relation between the drawer or indorser of the bill and the person to whom it is transferred for the mere purpose of negotiation or collection, is not the relation of indorser and indorsee, so as to throw the loss of the whole amount of the bill upon the lat- ter, if he neglects to present the same for acceptance and payment in time, or to give notice of its dishonor to the indorser, as required by law. JS"or will the payment of the damages, by the agent, have the effect to subrogate him to all the rights and remedies of the per- son from whom he received the bill, as against other parties who may be liable for the payment thereof ; but it is a mere contract of agency, which leaves the indorser to all his rights and remedies for 396 PRINCIPAL AND AGENT. the recovery of his debt as against other parties, and only renders the indorsee liable as agent for the actual or probable damages which his principal has sustained in consequence of the negligence of such agent. This principle was distinctly recognized by the Court of King's Bench in England, in the case of Yan Wart v. Woolley (5 Dowl. & Kyi. 37-i), where the plaintiff had not lost his remedy against the drawers of the bill, or the persons from whom he re- ceived it, by reason of the neglect of the agents to present it for acceptance in due time ; the drawers of the bill in that case having drawn without authority, when they had no funds in the hands of the drawees, and Irving & Co., who had sent the bill to the plaintiffs in payment, not standing in the situation of indorsers of the bill, as their names did not appear upon it. In that case, however, if there had been any evidence to warrant the belief that the bill would have been accepted if an immediate acceptance or rejection of the bill by the drawees had been insisted on, according to the decision in the case of The Bank of Scotland v. Hamilton, the loss which had arisen from the neglect of the defendant in not pressing for an acceptance, or in not giving due notice of the dishonor of the bill immediately, if it could then probably have been collected from the drawees, should have fallen upon Woolley & Co. instead of Irving & Co., who had remitted the same to Yan Wart ; and the plaintiff would then have been permitted to recover whatever damages had been sustained by such negligence, for the benefit of Irving & Co. In that respect Irving & Co. stood in the same relative situation to Yan Wart, as Dunlop did to the Bank of Scotland, in the case before re- ferred to ; and Woolley & Co. occupied the situation of Hamilton & Co., who were held liable in that case, in exoneration of Dunlop's liability. The only difference in principle which I can see between the two cases is, that in the Scotch case it was evident that the bill would probably have been accepted and saved, if it had been pre- sented for acceptance on Saturday, when it was received by the agent in Glasgow, instead of being kept back until Tuesday evening, when news of the drawers' failure had reached that place ; and therefore, to exonerate Dunlop, who remitted the bill, the agents in Glasgow were very properly charged with the amount of the bill, the whole of which had been lost through their negligence, except the small amount of dividend which the bank would be entitled to out of the drawer's estate under the commission of bankruptcy against him ; whereas in the case of Yan Wart v. Woolley, there was no reason to believe that the bill would have been accepted if the agent had in- sisted upon an answer immediately, and there was as little probabil- ALLEN v. SUYDAM. 397 ity that anything would have been obtained from the drawers if Yan Wart or Irving & Co. had received notice of the dishonor of the bill immediately after it was received by the agent in London. In the latter case, therefore, the damage which either Yan Wart or those who had transmitted him the bill in payment had sustained, was merely nominal. Besides, the Supreme Court of this State hav- ing decided that neither the drawers nor Irving tfc Co. were dis- charged from their liability to the plaintiff by this neglect of his agent, neither of them in fact having been injured by such neglect, the plaintiff upon the second trial was, of course, only held to be en- titled to such damages as he had sustained, and which were nominal only. If the rule laid down by the judge who tried the present case was correct, that the principal was entitled to recover the whole amount of the bill and interest, because there was no other evidence to enable the jury to discover what the damage was, then the plaintiff in the case of Yan Wart v. Woolley should have been permitted to retain his verdict upon the first trial ; as it did not then appear whether he could actually succeed in collecting the money, either from the drawers of the bill or from Irving & Co. ; neither did it then appear whether by the laws of this State, where they resided, they were not actually • discharged from liability, so that no judg- ment could be recovered against them, in consequence of the negli- gence of the agent. The granting of the new trial in that case, therefore, proceeded upon the principle that the agent was not liable for the whole amount of the bill, unless damages to that extent had been sustained by his neglect, and that to recover damages to that extent it was incumbent upon the party claiming, to give sufficient evidence to satisfy the court and jury that it was at least probable that he had sustained damages to that amount. Neither the Scotch or the English case, therefore, is an authority to sustain the charge of the judge in relation to the amount of damages in the present case ; on the contrary, the case of Yan Wart v. Woolley is a direct authority to show that the agent ought not to be charged with the whole amount of the bill, unless there is sufficient evidence to render it at least probable that the whole amount of the debt would have been saved if the agent had discharged the duty which his situation imposed upon him. Where there is a reasonable probability that the bill would have been accepted and paid if the agent had done his duty ; or where, by the negligence of the agent, the liability of a drawer or indorser who was apparently able to pay the bill has been discharged, so that the owner of the bill cannot legally recover against such drawer or 398 PRINCIPAL AND AGENT. indorser, I admit the agent by whose negligence the loss has occurred is prima facie liable for the whole amount thereof with interest, as damages ; unless he is able to satisfy the court and jury that the whole amount of the bill has not been actually lost to the owner in consequence of such negligence. The case under consideration, how- ever, is one of a very different description. Here it is perfectly evi- dent, from the testimony of one of the drawees, that the draft would not have been accepted at any time after it was received by the Aliens for collection, as the drawees had received express directions from the drawer not to accept ; nor would they have accepted it, even without such a prohibition, unless they had previously been advised so to do by the drawer. The fact also, that the drawer's credit was not good at the time this draft was received for collec- tion, he having suffered his note to Boyd & Suydam to lie under protest for some time, and the express directions given by him to the drawees not to accept this draft, rendered it highly improbable that he would have paid the draft himself to save his credit, if it had been sent back protested at an earlier day. From the facts of the case, therefore, I think there was no ground for supposing that the owners had sustained any actual damage from the mistake of the Aliens, in not sending on the bill for acceptance immediately after they received it for collection in New York ; or that their chance of obtaining payment from the drawer was materially impaired by the delay of the protest for a few days. Under the circumstances of this case, therefore, I think the jury should have been instructed that, upon the evidence, the plaintiffs were only entitled to nominal damages ; or at least they should have been told to find only such damages as they should, from the evidence, believe it probable the plaintiffs might have sustained by the delay in presenting the draft for acceptance immediately ; for I do not see how it is possible for any one to believe, or even to suppose it probable from this evidence, that the whole amount of this draft was in fact lost to the plaintiffs below by the delay of the Aliens in presenting it to the drawees, and giving notice of the dishonor thereof immediately to the drawer ; who never intended that it should be accepted and paid. For these reasons I am of opinion that the judgment of the court below should be reversed, and that a venire de novo should be awarded ; to the end that no more damages may be recovered than such as a jury may believe it probable, from the evidence adduced, that the plaintiffs may have sustained from the negligence of their agents. Senator Yerplanck dissenting. — [After holding that there was a ALLEN v. SUYDAM. 399' want of due diligence in the agents' delay in presenting the bill for acceptance, which made them responsible for the damages so caused, the Senator proceeded as follows :] Thus far, then, I think the law quite clear as to the rights of holders of bills, and the duties of collecting agents, but I have had more hesitation as to the rule of damages. Is the plaintiff in similar cases to be obliged to make out in evidence the precise actual amount of the damage he sustained, and thus to give to the party in fault all the numerous and great advantages of doubt, uncertainty and difficulty in the proof 1 Or are we to apply to these cases the doctrine of laches in commercial paper, as between the holder and other parties, and consider the agent as having made the paper his own by his neglect ? Contradictory as these rules are, they have yet each their share of authority, and are just and wise when applied to other questions ; but I am not satisfied with the equity in the com- mercial policy of either, when applied to a collecting agency, and I have sought in the decisions for some safer and more equitable doc- trine on that head. Considering the subject in regard to commercial policy, there is, on one side, the vast amount of paper daily collected through our banks, the great public necessity for giving every facility and induce- ment to such collections, the serious drawback on those facilities and inducements that would be occasioned, and the opportunity of fraud afforded if worthless paper deposited for collection can, whenever parties are discharged by the blunder of a clerk, be saddled irrevo- cably on responsible agents and " made their own " absolutely, and without allowing any defense or mitigation of damages. On the other hand, the policy of holding such agents to strict accountability is equally clear. Our whole system of negotiable paper and its re- sponsibilities, formed, as it is, by long experience, and admirably adjusted to the varied uses of commerce, rests upon the single prin- ciple of strict punctuality in demands, presentments and notices, as well as in payments. Now the policy and necessity of that punctu- ality apply with the same force to the agent of such paper that they do to the principal. I can, therefore, find no sounder rule of dam- ages, nor one better protecting and reconciling all these claims of policy and justice, than that pointed out by the decisions in a large class of cases of agency, and by the analogy of the measure of dam- ages in trover. In those cases, the presumption is, in the first in- stance, to the full nominal amount of the loss, as it appears on the face of the transaction against the agent wanting in diligence, or the party guilty of the tortious conversion. Thus, where an agent or 400 PRINCIPAL AND AGENT. factor neglects to insure for his principal, according to order, lie is held responsible for the default, prima facie, to the total amount which he ought to have covered by insurance. But at the same time he is allowed to put himself in the place of the underwriter, and to prove fraud, deviation, or any other defense which would have been good, had the insurance been made, or which would go to show that nothing at all, or how much was actually lost by the neglect (Delancy v. Stoddart, 1 T. E. 22 ; Wallace v. Tellfair, 2 Id. 188 ; Webster v. De Tastet, 7 Id. 757 ; in the courts of this State, Bundle v. Moore, 3 Johns. Cas. 36 ; and in the courts of the United States, Morris v. Summeril, 2 Wash. It. 203 ; see also 1 Phil, on Ins. 521, and the cases there cited.) So too, in actions against sheriffs, where those official public agents become chargeable with the debt of another, by their own negligence or misconduct. When the default is estab- lished, the amount due the plaintiff in the original suit is the jwima facie evidence of the measure of damages. This presumption may be controlled or rebutted, and the sheriff may give in evidence any fact, showing either that the party has not been actually injured, or to a much less amount. He may show, for instance, the insolvency of the original debtor. But the burden of proof is upon him ; if he leaves the presumption uncontradicted, that establishes the measure of damages. This has been frequently ruled at our circuits, nor can I find that it has ever been questioned in our Supreme Court, and is substantially recognized in Potter v. Lansing (1 Johns. 215), Itus- sell v. Turner (7 Id. 189). The Massachusetts decisions are particu- larly full and express on this very point (see 10 Mass. 470; 11 Id. 89 ; Ibid. 188 ; 13 Id. 187). Similar decisions may be found in the reports of other States. So again in trover. In Ingalls v. Lord (1 Cow. 210), in trover for a note, it was held that the prima facie measure of damages was the face of the note ; but that evidence might be given to reduce the amount, by proving payment in part, or the insolvency of the maker, or any other fact invalidating the note or lessening its value. It is true that Lord Tenterden, in Van Wart v. Woolley, above cited, held that damages must be shown, and that the face of the bill is not the conclusive measure ; but this I think is not in contradic- tion to the view that I have taken. I therefore take the cases before mentioned to point out the sound doctrine here. The face of the bill is the prima facie measure of damages. These may be reduced by any positive evidence proving the real damage to be less ; but the burden of that proof must be upon the negligent agent, and not on the party who suffers by his negligence. Circumstances like those ALLEN v. SUYDAM 401 of the present case may often render it difficult or impossible for either party to prove or even to form a probable estimate of the pre- cise damages incurred by the agent's neglect. In such cases is it not just that those chances of loss which must fall upon one or the other should be thrown upon the party in default, and not upon the inno- cent sufferer ? It was, then, for the defendants here to show that the debt would not have been paid had due diligence been used, or that there were any other circumstances to diminish the actual dam- ages below the nominal amount. I do not see that this was done, and therefore think that Chief Justice Jones was right in his charge, " That the court and jury having no knowledge what the amount of damages was except from the proof of the amount of the draft, the jury should find for the plaintiffs for the amount of the draft, and interest from the day it became due." Perhaps the case was a hard one. So are many others that arise under our law of negotiable paper, in consequence of laches of par- ties. In all such instances, the hardship of the particular case must yield to the necessity of adhering to some general rule founded on broad considerations of public policy. I can find no such rule safer or more conducive to commercial convenience, or sanctioned by stronger authority than the one I have stated. If, however, we abandon this rule, the only alternative, in my judgment, so far as authority governs, is to adopt the stricter doc- trine of our Supreme Court in Le Guen v. Gouverneur & Kemble (1 Johns. Cas. 467, and affirmed in 1800 in this court), " That where the property consists of credits, the agent whose breach of orders causes damages, is bound to answer to the amount of the credits, and the principal may abandon to him." The only defense distinctly recognized as valid in those doctrines is that of fraud, or some simi- lar one going to invalidate the whole contract. Upon this principle, the agents here would be held to have made the paper their own by their default, if the plaintiffs below thought fit to abandon it to them ; and this, perhaps, is the ground on which the Superior Court rested their decision in this case ; the reasons of which I regret that we have not before us. Under the circumstances of the case, either this rule or that which I have stated before, would affirm the judgments of the courts below; but I place my own vote for affirmance upon the ground first stated, as being the most equitable, the most conducive to public policy, and as supported by the analogy and authority of many modern decisions. On the question being put, Shall this judgment be reversed ? the 26 402 PRINCIPAL AND AGENT. members of the court divided as follows : 20 in the affirmative, and 4 in the negative. "Whereupon the judgments in the courts below were reversed, and a venire de novo directed to be awarded by the Superior Court. In the rule for judgment of reversal the following entry was made : "It is further ordered and adjudged, that an agent who re- ceives a bill of exchange for collection which has not been accepted, is bound to present the same for acceptance without unreasonable delay, as well as to present the same for payment when it becomes due, or he will be liable to his principal for the damages which the latter sustains by such negligence." Factor ; Breach of Instruction ; Unauthorized Sale ; Mitigation. COURT OF APPEALS, NEW YORK. [1849.] Blot v. Boiceau and Eusch (3 N. Y. 78). In an action against a factor to recover damages for the sale of goods, at a price less than that mentioned in his instructions, that price should, in the absence of proof to the contrary, be deemed the true value of the goods. But the consignor is at liberty to enhance the damages by proving that the goods are worth more than the minimum price he had put on them. On the other hand, the consignee may reduce the dam- ages by proving that the goods were of less value than the price mentioned in the instructions. Accordingly, in such a case, proof that the goods could not, after diligent effort, be sold at private sale at the invoice prices ; that they were of inferior quality, not worth more than they were actually sold for at auction, and were likely to become unfashion- able and unsalable if kept over to another season, is proper. Per Bronson, J. This rule does not apply to articles which have no market value, such as antique paintings, statues, or vases. This was an appeal from the judgment of the Superior Court of the city of New York in an action of assumpsit. In the summer of 1844, the plaintiff, who was a manufacturer at Amiens, in France, consigned to the defendants, who were commis- sion merchants at New York, certain cases of goods, with instructions to sell them at the invoiced prices, adding thereto the expenses, duties, and commissions. The letters containing these instructions, expressed the plaintiff's wish that the goods should all be disposed of that sea- son. The invoice prices of the goods were frs. 10,908 82. After BLOT v. BOICEAU AND RUSCH. 403 receiving the goods, the defendants made remittances on account, to the consignor, to the amount of $4,900. The plaintiff's goods were, after due advertisement, fairly sold at public auction in New York, Philadelphia a*nd Boston, in September and October, 1844, and brought full auction prices. These prices were much less than the invoices. The fall season for such goods closed in October. The defendants offered to prove that the defendants, on re- ceipt of the goods, and until they were sold, made diligent effort to sell them at private sale, for the prices specified in the invoices, but could not ; also, that the goods were of inferior quality, and not worth, during the season at which they were sold, or afterwards, more than the prices actually obtained ; also, that they were calculated to become unfashionable and unsalable if kept over to a subsequent season ; also, that they were sold in parcels, in connection with other goods belong- ing to the defendants and their correspondents, at different places, where it appeared they would bring the best prices. The offer was overruled, and the defendant's counsel excepted. The jury, under the court's direction, found a verdict for the plaintiff for $1,200, subject to the opinion of the court on a case to be made, and to adjustment as to the amount of damages. After ar- gument of the case, the Superior Court directed judgment in the plaintiff's favor, for the invoice price of the goods, with the expenses, necessarily incurred on them, deducting the defendants' advances. Ruggles, J., after holding that the defendants were liable to the plaintiffs for the damages resulting from the unauthorized sale, con- tinued : The question then arises, by what rule are the damages to be esti- mated ? The plaintiff claimed to recover the difference between the amount of the invoices with charges and interest, and the net pro- ceeds of the goods. The defendants insist that the plaintiff is entitled to recover, if at all, only according to the actual value of the goods after deducting the proceeds and charges. Prima facie the invoice prices with the charges and interest ouscht to be regarded as the actual value, and if no other evi- dence of value had been given or offered, the plaintiff should have recovered, according to his claim (Stevens v. Low, 2 Hill, 132). But the defendants proved that the goods were fairly sold at auction, on due notice with the usual publicity, and that they pro- duced full auction prices. They offered to prove that the goods could not be sold at private sale at the invoice prices after diligent 40± PRINCIPAL AND AGENT. efforts for that purpose ; that the goods were of inferior quality, not worth during the season more than they actually sold for at auction ; and that they were likely to become unfashionable and unsalable if kept over to another season. This evidence was excluded by the court ; and the judge charged the jury that the plaintiff was entitled to recover the difference between the invoice prices with charges and interest and the net proceeds. Exceptions were taken to these ■decisions. We are of opinion that the court erred in excluding the evidence of actual value offered by the defendants, and in the rule of damages stated to the jury. In all cases, excepting those of willful or mali- cious wrong, the recovery should be such as to give the plaintiff a just compensation for the wrong done or the right withheld, and nothing more. This rule applies as well to actions brought by a prin- cipal against his agent as to other cases. Where, in the action against the agent, the breach of duty is clear, it will, in the absence of all evidence of other damage, be presumed that the party has sustained a nominal damage. But to recover more, there must be proof of real loss, or actual damage (Story on Agency, § 217, c). It is a good de- fense that the misconduct of the agent has been followed by no loss or damage to the principal, for then the rule applies that, although it is a wrong, yet it is without any damage, and to maintain an action both must concur, for damnum absque injuria, and injuria absque damno, are in general equally objections to any recovery (Id. § 236). Assuming as true, what the defendants offered to prove, that the goods in question sold for their full value, the plaintiff has sustained no loss, and should have recovered nominal damages only. If this verdict should be upheld, lie will recover damages without having sustained injury, and be placed in better condition than if his instruc- tions had been obeyed. I am not aware that any considerations of public policy require the application to the present case, of a rule which produces such a result. It seems to have been thought in the court below, that if the consignor were not allowed to recover according to this rule, it would render his instructions nugatory, and practically annul the power of the owner of property to fix a price below which it should not be sold. But if the proof offered by the defendants had been admitted, the plaintiff would have been allowed to show that he could have sold the goods to better advantage by reshipping them to France or else- where, and in that case would have been entitled to recover accord- ingly. Or if the market price of such goods had risen after the sale made by the defendants, they would have been liable to pay accord- BLOT v. BOICEAU AND RUSCH. 405 ing to such increased value. A factor thus selling goods in viola- tion of his instructions, takes upon himself the hazard of loss from the fluctuations in the market, without the possibility of gain ; and this is practically a sufficient security against the disobedience of his principal's order. There is no need of subjecting him to a higher penalty. There is a direct adjudication on this point in 12 New Harnp. Rep. 239, 242, in the case of Fro thin gham v. Evertson. Evertson delivered a quantity of wool in the month of March, to be sold at not less than 24 cents the pound. Frothingham made advances. The price of wool fell soon after the consignment, and continued to fall until October, when Frothingham, without calling on his principal to refund the advances, and without notice to him, sold the wool at 14 cents the pound, which was all it was then or afterwards worth. It was held, in an able opinion delivered by Chief Justice Paeker, that the measure of damages was the amount of injury sustained by the sale contrary to the orders of the principal, and that no actual loss ap- pearing to have been sustained by the wrongful act of the factor, the principal was entitled only to nominal damages. The present case should be governed by the same principle. The judgment of the Superior Court should therefore be reversed, and a new trial awarded. Beonson, J. — The consignees had no right to sell the goods below the price mentioned in their instructions from the consignor, without first calling on him for the reimbursement of their advances. As no such demand was made, the defendants are liable to an action, and must pay nominal damages, at the least. In settling the amount of damages in such cases, if there is no proof to the contrary, the price mentioned in the instructions should, I think, be deemed the true value of the goods. But the consignor would be at liberty to enhance the damages, by proving that the goods were worth more than the minimum price w 7 hich he had put upon them ; and I see no reason why the consignee should not be allowed to reduce the damages, by showing that the goods were of less value than the price mentioned in the instructions. If the goods were sold at their full value, the consignor has sustained no damage, and should recover only a nominal sum. The factor should be required to give strong proof for the pur- pose of showing the market value to be less than the instruction price; but he may, I think, give the proof, if he can. Clearly the consignor has sustained no damage beyond the difference between the actual value and the price obtained on the sale; and I see no ground for making this case an exception to the general rule, which gives the 406 PRINCIPAL AND AGENT. injured party compensation for the pecuniary loss which he has sus- tained, and nothing more. In Frothingham v. Evertson (12 1ST. Ramp. 239), the court held that the measure of damages, in cases of this kind, is the amount of injury which the consignor has sustained by selling contrary to orders ; and if there has been no actual loss, he will only 'be entitled to nominal damages. I think this a sound rule ; and am not aware of any case which holds a different doctrine. It is said that this rule of damages will enable factors to violate the instructions of their principals with impunity. But that is a mis- take. If they sell below the instruction price, though at the then market value, they will take the peril of a rise in the value of the goods at any time before an action is brought for the wrong ; and, perhaps, down to the trial. The owner has a right to keep his goods for a better price ; and if the market value advances after the wrong- ful sale, the increased price will form the standard for ascertaining his loss, which the factor who has departed from instructions must make good. If it be a matter of any moment in this action, there is no room for doubt that the defendants, though they mistook the law, in- tended to act in entire good faith towards their principals. And if the evidence which they offered had been received, it would have appeared that the plaintiff, instead of suffering loss, was benefited by the sale. When the consignment is of articles which have no market value, such, for example, as antique paintings, statues or vases, the rule which has been mentioned will not apply. In this case, the _goods had a market value, which could easily be ascertained. I am of opinion that the court erred in rejecting evidence, and in the rule which it gave concerning the measure of damages. Judgment reversed. Note. — In an action against a railroad company to recover damages sustained by the plaintiff, iu leading money on stock fraudulently issued by the treasurer, it was held that the jury in assessing the plaintiff's damages, might give him the sum lent by him, with interest, if they should think proper to give interest, or so much of said sum and interest as they might find to have been the value of the stock, under all the circumstances, at the date of the loan (Tome v. Parkers- burg Branch R. R. Co. 39 Md. 36, 1873). MOODY v. LEVERICH. 407 MASTER AND SERVANT. Master and Servant ; Wrongful Discharge ; Constructive Serv ice ; Damages beyond Wages Due at Time of Discharge. court of common pleas, for the city and county of NEW YORK. [1873.] Moody v. Levekich et al. (4 Daly, 401). A servant wrongfully discharged by his master cannot wait till the expiration of the period for which he was hired, and then sue for his whole wnges on the ground of a constructive service. His only remedy is an action for the breach of the contract of hiring. When wrongfully dismissed, he is restricted either to an action to recover for the services actually rendered, or to a general action for damages for the breach of the contract ; in which he may recover any amount due for services, and also compensation for damages sustained by the further breach of the contract, in wrongfully dismissing him. Appeal by defendant from a judgment of the general term of the Marine Court, affirming a judgment entered upon the decision of a judge at trial term. The action was brought October 28th, 1870, to recover wages due, and the complaint alleged that the plaintiff had been hired by the de- fendants to act as superintendent of certain machine works for a year from March 23d, 1870, at the yearly salary of $3,000, payable in monthly installments, payable at the expiration of each month. That, on August 1st, 1870, he was wrongfully discharged. That he had always held himself ready and willing to perform the services for which he was engaged, but that the defendants had refused to allow him to do so. That he had not been paid for any services rendered since June 23d, 1870. That on September 23d, 1870, there was due him $250, and on October 23d, 1870, the further sum of $250, mak- ing a total of $500, which he claimed to recover. The defendants, by their answer, set up as a bar to the action that, on September 5th, 1870, the plaintiff had commenced an action in the Marine Court for the same cause of action, to wit, the wrongful dis- missal of the plaintiff by the defendants on August 1st, 1870, and therein had claimed to recover his salary for the months ending July 23d, and August 23d, 1870, and that in that action he had recovered a verdict for the amount claimed less an admitted counter-claim due from the plaintiff to the defendants, to wit, $500 less the sum of $32 96. On the trial the facts appeared as stated in the pleadings. A 408 MASTER AND SERVANT. motion was made by the defendant to dismiss the complaint, upon the ground that the plaintiff had recovered judgment against the defend- ants for damages for a breach of the same contract set up in the com- plaint, and for the same cause of action, to wit, the wrongful dismissal of the plaintiff by the defendants, and their refusal to permit him to. render further services. The motion was denied, and the defendants excepted. The judge rendered a decision in favor of the plaintiff for the amount claimed. By the Court,* Daly, Ch. J. — This action is founded upon the assumption that, if the contract for the hiring of the servant is for a year, at a salary payable in monthly installments, and the master wrongfully dismisses the servant before the expiration of the year, the servant, after his dismissal, may sue for and recover each installment as it becomes due, if be has held himself, during the time, ready and willing to render the service contracted for. That there is, in other words, in such a case, a constructive service on the part of the servant. This idea of a constructive service is founded upon a decision of Lord Ellenboeough (Gandell v. Pontigny, 4 Camp. 375), where a servant having been discharged before the expiration of the quarter for which he had been engaged, Lord Ellenboeough said that as the plaintiff had served a part of the quarter, and been willing to serve for the residue, he might, in contemplation of law, be considered to have served the whole. This was merely a nisi jprius decision, and whatever weight it may have derived from the eminence of Lord Ellenboeough, it pos- sesses no longer ; for, as a rule of law, it must now be regarded as re- pudiated. In Archard v. ITornor (3 Car. & Pay. 349) it was held, that if the servant is turned away improperly before the end of the year for which he was engaged, he cannot recover upon a count stating the contract to be one for an entire year, and that if he sues for wages under the contract, he can recover only for the period during which he served. In other words, if he sues upon the contract, for the wages contracted for, performance is essential to a recovery. In Smith v. Ilaynar (7 Ad. tfe El. 544), the court approved the de- cision in Archard v. Iiornor. The four judges who delivered opinions expressed their dissatisfaction with Lord Ellenboeough's decision in Gandell v. Pontigny. Lord Denman said that Archard v. Iiornor was grounded on the better reason. Williams, J., that it had more * Preseut, Daly, Ch. J., Robinson, and J. F. Daly, JJ. MOODY v. LEVERICH. 40O reason and authority to support it. Patterson, J., declared that if it were necessary to choose between the two, he should prefer Archard v. Hornor, and Coleridge, J., said that he was not satisfied with the decision in Gandell v. Pontigny. A few years afterwards the case of Aspen v. Austin (5 Ad. & El. N. S. 691) came up in the same court. It was an action for a breach of covenant in wrongfully dismissing the plaintiff, whom the defend- ant had covenanted to employ for a certain period, at a fixed weekly salary. Lord Denman said that the defendant had covenanted to pay weekly sums to the plaintiff for three years, on condition of the plaintiff performing what was, on his part, a condition precedent ; and that the plaintiff would be entitled to recover these sums, whether he performed the condition or not, if he were ready and willing, and of- fered to perform it, but was prevented by the defendant from doing it. This was sixteen years after the decision of Archard v. Hornor, and seven years after Lord Denman and his associates had, in Smith v. Hayward, approved Archard v. Hornor. It was a decision upon the pleadings, and from what followed in the same and other courts afterwards, I presume that Lord Dexman did not give much consid- eration to the point, as judgment was given for the defendant upon the pleadings, and the point was therefore not directly involved. In Fewing v. Tisdall (1 Exch. R. 295), the servant was dismissed without a month's warning, and her wages being paid only up to the time of her dismissal, she brought an action to recover a month's wages, commencing from the day of her dismissal. It was held, that the action could not be maintained ; all the judges agreeing that Ar- chard v. Hornor, which, Pollock, C. B., said, was recognized by all the courts, was decisive of the case. In Elderton v. Emmons (6 Man. Gr. & Scott, ITS), Baron Parke said, that to hold, where the employer determined the relation by a wrongful dismissal, that the servant may entitle himself to wages for the whole term, by being ready to serve, was a doctrine that, if sanc- tioned, would be of pernicious consequences. In the note of Mr. Smith, to Cutter v. Powell (2 Smith's Leading Cases, 20), that learned commentator states three remedies that a serv- ant has, who has been wrongfully dismissed ; the second of which he states as follows : " 2. He may wait till the termination of the period for which he was hired, and may then perhaps sue for his whole wages in indebitatus assumpsit, relying on the doctrine of con- structive service," for which he cites Lord Ellexborodgh's decision in Gandell v. Pontigny. In Goodman v. Pocock (15 Ad. & El. N. S. 582), Patterson, J., 410 MASTER AND SERVANT. said that Mr. Smith had very properly expressed himself with hesita- tion as to this second proposition ; and Erle, J., in referring to it, said, " I think the servant cannot wait till the expiration of the period for which he was hired, and then sue for his whole wages, on the ground of a constructive service after dismissal. I think the true measure of damages is the loss sustained at the time of dismissal." In Whi taker v. Sandifer (1 Duval [Ky.] 261), and in Chamber- tine v. McAllister (6 Dana [Ky.] 352), C. J. Robertson, a very emi- nent judge, held that readiness and willingness to perform, after a wrongful discharge, was not equivalent to full performance, and that all the employee was entitled to recover was the actual damages he sus- tained for the disappointment and loss of equally profitable employ- ment. In Clark v. Marsiglia (1 Den. 317), the defendant delivered to the plaintiff a number of paintings to be cleaned and repaired, at a certain price for each, and after the plaintiff had proceeded to a certain ex- tent in the work the defendant countermanded it, but the plaintiff went on, finished the cleaning and repairing of the pictures, and re- covered in this court the full contract price. The judgment was re- versed upon the ground that all that the plaintiff could recover was a recompense for the labor done and materials used when the counter- mand was given, and such further sum in damages as might, upon le- gal principles, be assessed for the breach of the contract. And in Durkee v. Mott (8 Barb. 423), an analogous case, a like rule was ap- plied. I cite these two cases, though not strictly cases between mas- ter and servant, because they come under, and serve to illustrate, a rule in the law of contracts, which is as applicable to the contract be- tween master and servant as to any other. I might pursue this examination by citing many cases, both in this country and in England, that are, by analogy, inconsistent with this doctrine of constructive service, and reasons might be adduced to show that there never was any foundation for it; but I deem it sufficient to rely upon the authority of the cases above cited, to show that it is now wholly repudiated. In Thompson v. Wood (1 Hilt. 96), my former colleague, Judge Ingraham, said that a servant wrongfully discharged had his election to sue for his wages as they became due from time to time, or to bring an action for damages. That if he recovered damages it estopped him from bringing any other action ; but that if his action was for wages due when the action was brought, it did not estop him from bringing another action for wages subsequently payable, or an action for dam- ages for the subsequent breach of the agreement, MOODY v. LEVERICH. 411 It may be said, in respect to this case, that the question of con- structive service was not necessarily involved, as in the action set up as a bar, the plaintiff recovered only for the wages due at the time of his discharge, which the court held was no bar to the second action, and it may have been treated as an action for damages for the breach of the contract in discharging the plaintiff before the expiration of the year ; for although the claim was to recover two months' salary, the action is referred to, by Judge Ingraham, as an action for dam- ages. The referee in that case reported in the plaintiff's favor for the full amount of the salary, and in an action for damages the salary may, in the discretion of the jury or referee, be taken, in the particu- lar case, as an adequate and proper measure of damages (Smith v. Thompson, 8 Man. Gr. & Scott, 44). What Judge Ingraham said, therefore, in respect to the right of a servant wrongfully dismissed, to sue thereafter for his salary from time to time, as it becomes due, may be regarded as a dictum, and as no authorities for this proposition are referred to by him, I infer that he stated the law as he supposed it to be, upon the authority of Lord Ellenborough's decision in Gandell v. Pontigny, and that his attention was not called to the subsequent cases impeaching the soundness of that decision. In Heim v. Wolf (1 E. D. Smith, 73), my late colleague, Judge Woodruff, stated the law much more in accordance with these subse- quent cases. He said, " Where the employer discharges the person from his employ, he may wait until his wages become due, and then recover them ; but that rule is to be taken with restrictions. He re- covers, not for services rendered, but damages for breaking the con- tract, by discharging him before the termination of his agreement — that is, for refusing to employ and pay him according to the contract. If it appears that he was idle and could not obtain other employment, his damages would be the whole compensation agreed on ; but if he obtains employment, then he is entitled only to a partial recovery." In Huntington v. The Ogdensburg, &c. Railroad Co. (33 How. Pr. 41G), the plaintiff was employed for a fixed period at a monthly sal- ary, payable on the first of every month. Before the expiration of the period agreed upon, and on the sixth day of the month of June, he was dismissed by the defendants, against which he protested, and offered to continue his services. The plaintiff brought an action to re- cover his salary for the month of June, and it appearing that he had obtained other employment during the month, Potter, J., said : " The plaintiff's right in this action, as I understand the law, is not for services actually rendered, but as for services offered to be performed, which the defendants refused to receive, and that thereby the plaintiff 412 MASTER AND SERVANT. is entitled to recover the amount of wages he was to receive by virtue of his contract. * * * If he seeks and finds employment, as seems to be his legal and moral duty, then the damages he would otherwise be entitled to recover by reason of the breach, are to be diminished or regulated by his actual loss, depending upon the actual value to him of the benefits obtained, or to be obtained, from such new employment." Although the law, as stated in the outset of these remarks, is not in accordance with the authorities that have been cited, the conclusion is correct that the month's wages may be the proper measure of damages, less the value of the employment ob- tained by the plaintiff during the month ; treating the action as one for the recovery of damages for the breach of the contract in wrong- fully dismissing the plaintiff, and not for the recovery of a month's wages upon the contract, the plaintiff having been dismissed before the wages for the month had been earned. In Van Alstyne v. The President, &c. of the Indiana, &c. Rail- road Co. (34 Barb. 28), the plaintiff was employed for a year at a monthly salary. During the year the plaintiff was discharged at his own request, the agreement was vacated by mutual consent, and the plaintiff was paid up in full on the day when he left. He afterwards sued the defendants for two months' salary accruing after he left, and obtained judgment by default. He then brought another action to recover his salary for the two months ensuing, and the court held that the defendants, by suffering the previous judgment to go by default, were not precluded from setting up in the second action that the agreement for the year's service had been vacated by mutual consent. The plaintiff in the case now before us relies strongly upon this case ; but I do not see that it has any material bearing upon the question under consideration. Regarding it as settled, upon the authority of the cases which I have cited, that there can be no recovery of the wages stipulated for by the contract, except where the services contracted for have been rendered, it follows that the remedy which the servant has for any loss or injury he may sustain by his wrongful dismissal before the ex- piration of the period for which he was engaged, is a general action for damages. If at the time of his discharge any amount is due by the terms of the contract, he may of course sue upon the contract and recover it (Archard v. Hornor, supra ; Peck v. Burr, 10 N. Y. 294). If, by the contract, his wages are payable by the month, or the quarter, and by being dismissed before the period arrives he is unable to ren- der the services which, by the terms of the contract, entitle him to the monthly or quarterly stipend, he may, if he thinks proper, treat MOODY v. LEVERIOH. 413 the contract as rescinded, and sue to recover for the value of the serv- ices actually rendered ; or he may bring an action to recover damages for the breach of the contract ; and in that action any installment that may have become due to him by the terms of the contract, or the value of the services rendered up to the time of his discharge (where he is discharged before the expiration of the month or quarter), will be taken into account and allowed him in adjusting the measure of his damages ; but if he were fully paid up to the time of his dis- charge, then the sole measure of his damages will be the loss or injury occasioned by the breach of the contract (Classman v. Lacaste, 28 Eng. L. & Eq. 130 ; Goodman v. Pocock, 15 Ad. & El. K S. 576 ; Hochster v. De La Tour, 2 E. & Bl. 691 ; French v. Brookes, 6 Bing. 354 ; Smith v. Thompson, 6 Man. Gr. & Scott, 44 ; Emmons v. Elderton, 4 House of Lords Cases, 624, on appeal, and in 4 Man. Gr. & Scott, 479, and in 6 Id. 160 ; Smith's Law of Master and Servant, p. 94, notes 9, 99, 100 ; Mayne on Damages, pp. 107, 108, 109). In this action ample, full, and final satisfaction is obtained, and the jury, therefore, in assessing the damages, would be justified, in the language of Lord Campbell, " in looking at all that had happened, or was likely to happen, to increase or mitigate the loss of the plaint- iff down to the day of trial " (Hochster v. De La Tour, supra). In this action, he recovers all the damages he suffers by the breach of the contract, or that may ensue to him in consequence of it, and any amount that may be due to him by the terms of the contract, and the value of any unrequited service he may have rendered up to the day of his discharge. This is, therefore, the appropriate remedy. He cannot pursue both — that is, he cannot sue upon a quantum meruit for the services actually rendered and also have an action for damages ; because by bringing the first action he treats the contract as re- scinded, and because he can have but one action where the claims have all accrued and all grow out of the same contract (Colburn v. Wood worth, 31 Barb. 382; Bendernagle v. Cocks, 19 Wend. 207; Guernsey v. Carver, 8 Id. 492 ; Goodman v. Pocock, 15 Ad. & El. K S. 576 ; Classman v. Lacaste, 28 Eng. Law & Eq. K. p. 141). The good sense, justice, and propriety of the latter rule — that there ought, in such a case, to be but one action — is to my mind very apparent, and is sustained by the authority of the cases above cited ; but it must be regarded in this State, at least, as somewhat unsettled, since the opinions expressed by Justice Strong, in Secor v. Sturgis (16 N. Y. 548), and by Justice Wells, in Mcintosh v. Lown (49 Barb. 550). The general view of the law which I have expressed, and which has been arrived at after an examination of the various authorities 414: MASTER AND SERVANT. brought to our attention by the learned professor* who argued this case with so much ability on the part of the defendant, is, in my judg- ment, the only one that can be reconciled with the rule before stated, that there can be no recovery of the wages stipulated for in the con- tract, unless the services contracted for were performed ; and another rule equally well settled in this State and in England, that it is obli- gatory upon the servant, when wrongfully discharged, to use diligence to find other employment (Emmons v. Elderton, 4 House of Lords Cases, 646 ; Costigan v. Mohawk, &c. R. R Co. 2 Den. 609 ; Dillon v. Anderson, 43 K Y. 231 ; Hamilton v. McPherson, 28 Id. 76) ; a rule which is certainly not consistent with the servant's remaining ready and willing, after his discharge, to fulfill the- contract on his part. These rules, however, can be fully carried out and harmonized where the servant wrongfully dismissed is restricted, either to an ac- tion to recover for the services actually rendered, or to a general ac- tion for damages for the breach of the contract, in which he may re- cover any amount due for services rendered (for the non-payment of it is a breach of the contract), and also compensation for the damages sustained by the further breach of the contract in wrongfully dismiss- ing him. The first action which the plaintiff brought must be regarded as an action of this description, for he alleged that from the 23d of March to the 1st of August, 1870, he continued to render his services and to devote his time and skill, as he had agreed to do, at the monthly sal- ary of two hundred and fifty dollars ; and that after the 1st of Au- gust, 1870, the defendants, without cause or provocation, hindered and prevented him from rendering any further service. Upon these allegations he claimed to recover $250, as due by the terms of the con- tract, for services rendered from the 23d of June to the 23d of July, and the same sum for the ensuing month, ending on the 23d of Au- gust. He recovered $473 02, and (as he rendered no service after the 1st of August), $223 02 of this amount must have been recovered as damages to compensate him for the eight days' service from the 23d of July to the 1st of August, and for the breach of the contract thereafter in wrongfully dismissing him. A judgment in favor of the plaintiff for this $223 02 could, by the law, have been given upon no other ground. It was a recovery of damages for the breach of the contract, and was a bar to any further action upon the contract. The judgment of the Marine Court, there- fore, should be reversed. Judgment reversed. * Theodore W. Dwight, Professor in the Columbia College Law School. POLK v. DALY. 415 Master and Servant ; Duty of Discharged Servant ; Offer of Performance. COURT OF COMMON PLEAS, FOR TIIE CITY AND COUNTY OF NEW YORK. [1873.] Polk v. Daly (4 Daly, 411). riaintiff was engaged to perform as an actor at a certain theater for a definite time, and at a fixed salary, but was discharged before the period for which he was engaged had elapsed. He denied the defendant's right to discharge him, and offered per- formance on his part, which was not accepted. He then left the city, and remained absent until the period for which he was engaged had expired, and did not, during that period, hold himself in readiness to render his services according to the con- tract, nor did he make any efforts to obtain other employment. Held, that he was not entitled to recover anything but the wages due him up to the time of his de- parture. . Appeal by defendant from a judgment entered on the verdict of a pry. Action for wages. The facts are stated in the opinion. By the Court* Robinson, J. — This action was on a contract for the plaintiff's services as an actor in defendant's theater, from Septem- ber 15th, 1870, to June 1st, 1871, at a salary of $65 a week and a benefit, to consist either of one-third the gross receipts, or the net proceeds of the benefit night's receipts. It was brought in September, 1871, and the plaintiff, in his com- plaint, alleged he was wrongfully discharged on the 4th of April, and that he was unable thereafter to procure other employment. He did not, however, allege performance or a tender thereof, or a readiness to perform any service during the period for which such salary is claimed, but asked to recover, firstly, salary of $65 per week for eight and a half weeks, and, secondly, the sum of $300 for the night's bene- fit, of which he claimed to have been deprived by defendant's refusal to afford it to him. The answer, after a general denial as to other matters, admitted the contract ; justified the discharge under an al- leged breach of plaintiff's obligations by his refusal to perform parts in plays or characters assigned him ; alleged that plaintiff thereupon left the city, and remained in or near Baltimore, in the State of Maryland, during the remainder of the season, and did not, at any time after his discharge, perform or offer to perform his contract. The jury, under unexceptionable instructions from the court in that * Present, Daly, Ch. J., Robinson and Loew, JJ. 416 MASTER AND SERVANT. respect, found the plaintiff was justified, under his contract of serv- ice with the defendant as an actor, in refusing to act in a part assigned him inferior to the role of characters which he had agreed to represent, and that he was discharged from his employment without just cause. For this he was awarded in the court helow $688 10 as compensation at the contract rate ($65 per week), as for full performance, with some addition for the benefit. Upon his discharge on the 4th of April, the plaintiff, by letters of the 4th and 6th of that month, denied defendant's right to discharge him, and offered performance on his part, which was not accepted. " About a week afterwards he left the city and went to Baltimore, and for the remainder of the period of his engagement spent his time there or in Virginia. He went a-fishing." Subsequent to his dis- charge he made no effort to get any other employment in his line of business. The justification he offers for this is, " It was not very easy to secure employment after the 4th of April. The season in New York theaters had almost expired, and they don't engage actors then. I don't think I could have got employment of my standing in any theater." Among other grounds for the motion to dismiss the complaint were these : That it appeared from the evidence that the plaintiff made no sufficient tender or offer of his services under the contract ; that he made no effort to secure other employment, and placed it out of his power to receive employment from the defend- ant and others. These several grounds of dismissal were over- ruled, and defendant excepted. At the conclusion of the testimony, defendant's counsel asked the court to charge, that the plaintiff, by leaving the city, rendered it impossible for the defendant to employ him, and to this the court responded, " If you (the jury) are satisfied that he absented himself to avoid the engagement, then he cannot recover." To this qualified charge no exception was taken. Defend- ant's counsel further requested the court to charge, " that the plaint- iff should have applied for employment elsewhere, and cannot recover if he neglected to do so." This was refused, and defendant ex- cepted. Under such circumstances, I am of the opinion the judg- ment cannot be sustained. First. Plaintiff was not entitled to recover either wages for services rendered, during the eight weeks following his discharge, or damages ensuing from his unlawful discharge, com- putable upon the rate of such weekly wages, except upon the as- sumption that he made and sustained such a tender of performance as was equivalent to actual performance. In a week after his dis- charge he left the city for the Southern States, and for all the subse- quent period of his engagement, was absent at the South, and in no FOLK v. DALY. 417 way tendered his services, or rendered himself subservient to the objects of the contract, or to any such use of his services as it con- templated. It could, in no respect, be held that he earned wages for services actually rendered in the employment of the defendant when he was engaged in his own pursuits or amusements at the South, without having obtained any consent or license of the defendant, or having given the defendant any notice of his remaining subject to immediate recall when wanted, or in some other way offering or con- tinuing a tender of his services during this period. There are certain contracts in respect to which tender of performance is deemed equiv- alent to performance, so as to entitle the party ready to perforin, to sustain an action for such compensation as full performance would have insured to him ; to wit, as upon an agreement for the sale and purchase of real estate, where the vendor has tendered a conveyance (Shannon v. Comstock, 21 Wend. 160 ; Richards v. Edick, 17 Barb. 200, and cases cited p. 265) ; or for goods sold, delivery whereof has been tendered (Bement v. Smith, 15 Wend. 193 ; Dustan v. McAn- drew, 41 X. Y. 78, and cases cited). But that the tendered perform- ance should stand as a substitute for the actual can only be maintained upon the ground that the thing agreed to be sold has been in inde- pendent existence, and, the corpus not being perishable or change- able, the title has so far passed that the vendor remains but the trustee of the vendee in respect to it, and on subsequent payment of the price, the specific thing may still be delivered over or duly ac- counted for to the vendee (Shannon v. Comstock, supra). On such a tender the vendor assumes to preserve with ordinary care the thing agreed to be conveyed, ready for transfer on compliance by the vendee with the terms of purchase (unless he chooses to exercise his right to sell under his vendor's lien), and any inconsistent use or diversion of it amounts to an abandonment of the tender. If there exists any analogy in a contract for the hire of services, where the employee has been unjustly discharged, his tender and continued offer and readiness to perform them, and his reasonable efforts to obtain other employment, or his entry in good faith into other employment, are necessary to constitute any similitude by way of a constructive performance and a rendition of such complete service to the purposes of the contract as it calls for on his part. There are some questionable authorities for holding such construc- tive service equivalent to actual performance, and entitling the em- ployee to accruing wages ; but, as in all cases of tender, it is neces- sary, in order to constitute it a substitute for actual performance, that it should be maintained, as the employer has a locus poenitentice, and 27 418 MASTER AND SERVANT. in avoidance of questions of responsibility may at any time, while the tender is preserved, accept performance. In the present case, the departure of the plaintiff from the city and his absence for the eight weeks- in Maryland and Virginia, engaged in his own pursuits, with- out notice to defendant of his whereabouts or address, or of being subject to immediate recall, was not the maintaining of any such tender, nor did it show a case of readiness at all times, during the period of the contract, to render the service for which the plaintiff had contracted. Secondly. In all cases of breach of contract, it be- comes the active duty of the party injured to make reasonable exer- tions to render the damages resulting therefrom as light as possible. The Court of Appeals, in Hamilton v. McPherson (28 N. Y. 76), say : "The law for wise reasons imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exer- tions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this ; and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss falls upon him, and he can recover nothing for damages which, by reasonable diligence on his part, could have been prevented " (p. 77). So, also, in Dillon v. Andrews (43 N. Y. 237), they say : " It was the duty of the plaintiff, as soon as due notice was given, to have so acted as to save the de- fendant from further damages, so far as was in his power." With- out questioning that the burden of proof of failure in this respect was thrown upon the defendant to show by way of recoupment, or in mitigation of damages, the neglect of the plaintiff to make any effort to get other employment, the absence of any such effort appeared in his own testimony, and was conceded. His statements in extenuation, that it was not very easy to procure such other employment, and he did not think he could have got similar employment, presented no justification for his entire omission to make any effort whatever. His obligation in that respect was one of ordinary but active diligence ; and his conduct suggests the natural inquiry, whether, if he had been discharged for cause, he would, under the usual exigencies of life and its claims upon him, to act with diligence and caution in earning a livelihood or making his talents available and profitable, have for eight weeks abandoned every effort to secure any employment, or to earn any money in the line of his profession, and "go a-fishing?" Common sense fully answers the question. If voluntarily idle, he failed in his legal and moral duty, as the law regards such conduct "a fraud upon his employer " (Shannon v. Comstock, supra ; Hunting- ton v. Ogdensburg & L. C. K. R. Co. 33 How. 416). If intending to POLK v. DALY. 419 insist on a continuing, although constructive, performance, and a right to recover as for full compensation under the contract, he could not accept the employer's dismissal as a license to indulge in a relaxa- tion of its requirements, and go about his own business. The mo- tion for a nonsuit, made substantially on this ground at the close of plaintiff's case, was renewed at the end of the trial, in a request to the judge to charge the jury, and substantially presented both the previous questions. Thirdly. The plaintiff's discharge did not, as a matter of law, en- title him, on the expiration of his term of service, to recover the full price for the whole period. The defenses arising from his departure for Maryland, and his continued absence at the South; and his failure after his discharge to attend at the theater, or to apply for employ- ment elsewhere ; or to maintain any continuous offer to perform, were set up by the answer and distinctly proved. The absence of any such tender of services or readiness to perform for eight weeks after he was discharged, disentitled him from such a recovery for services rendered during that period at the contract rates, as has been awarded. There has been much question whether the employee un- justly discharged, but tendering performance, may maintain his action on the contract for accruing wages, or is confined to his single remedy for damages for the unjust dismissal. This subject has been most ably and elaborately examined by C. J. Daly, in Moody v. Lev- erieh {ante, p. 407), decided at the present term (in which I con- curred), sustaining the latter view of the law, and must be regarded as settling the question, so far as this court is concerned. While there may be authorities asserting more or less broadly the right of the employee illegally discharged, on maintaining tender of his serv- ices, to recover compensation from time to time as wages would be- come due under the provisions of the contract (see cases reviewed in Moody v. Leverich), none of them assume to afford such right of re- covery to one who abandons the sphere of his employment and adopts other pursuits for his own profit or pleasure. Fourthly. Notwithstanding the want of a formal exception to the refusal of the judge to charge as requested, " that plaintiff, by leav- ing the city, rendered it impossible for the defendant to employ him," the facts of the case clearly show that plaintiff, by his departure and abiding at the South for the period of time shown, relinquished his employment, and disentitled himself from any recovery after he left; and as the point had been previously taken on the motion to dismiss the complaint, the court on this appeal is required " to give judgment according to the justice of the case, without regard to technical errors 420 PRINCIPAL AND SURETY. and defects which do not affect the merits" (Code, § 366). Those merits, on the pleadings and proofs in the case, in my opinion, de- barred the plaintiff from the recovery of any definite sum beyond the $18 58 tendered or offered. For these reasons the judgment should be reversed, subject to plaintiff's acceptance of that amount. Judgment reversed. PRINCIPAL AND SURETY. Principal and Surety ; Absolute Covenant to Pay. COURT OF EXCHEQUER. [1842] Loosemoke v. Radford (9 Mees. & Wels. 657). The plaintiff and defendant being joint makers of a promissory note, the defendant as principal and the plaintiff as his surety, the defendant covenanted with the plaintiff to pay the amount to the payee of the note on a given day, but made default. Held, in an action on this covenant, that the plaintiff was entitled, though he had not paid the note, to recover the full amount of it by way of damages. Covenant. — The declaration stated, that whereas the defendant, before and at the time of the making of the indenture hereinafter mentioned, was indebted to H. D. and G. B. in the sum of 400?., secured to them by a promissory note made by the defendant, and by the plaintiff as the defendant's surety, and in 951. 5s. 9d. for interest thereon ; and thereupon, by a certain indorsement bearing date, &c, made between the defendant of the one part, and the plaintiff of the other part, the defendant covenanted with the plaintiff, that he the defendant would well and truly pay to the said H. D. and G. B. the sum of 4c00L, with interest as aforesaid, on the 13th day of August then next. Breach, that the defendant did not pay to the said H. D. and G. B., or either of them, the said sum of 4:001. and interest, or any part thereof, on the said 13th day of August, or at any other time. The defendant pleaded payment into court of Is. and no damages ultra, which latter averment was traversed by the replication. At the trial before Lord Abinger, C. B., at the Middlesex sittings after Hilary term, it appeared that the defendant being in embarrassed circumstances, the payees had informed the plaintiff that they should LAMAR INSURANCE CO. v. McGL ASHEN. 421 hold him liable upon the note, whereupon he obtained from the de- fendant the deed mentioned in the declaration. The note was still unpaid at the time of the trial : and it was objected that the plaintiff was therefore entitled to recover nominal damages only. The Lord Chief Baron overruled the objection, and under his direction the plaintiff had a verdict, damages 500?. A motion for a new trial on the ground of misdirection having been made, the following opinions were pronounced. Parke, B. — I think there ought to be no rule. This is an abso- lute and positive covenant by the defendant to pay a sum of money on a day certain. The money was not paid on that day, nor has it been paid since. Under these circumstances, I think the jury were warranted in giving the plaintiff the full amount of the money due upon the covenant. If any money had been paid in respect of the note since the day fixed for the payment, that would relieve the plaintiff pro tanto from his responsibility. The defendant may per- haps have an equity that the money he may pay to the plaintiff shall be applied in discharge of his debt : but at law the plaintiff' is entitled to be placed in the same situation under this agreement, as if he had paid the money to the payees of the bill. Alderson, B. — The question is, to what extent has the plaintiff been injured by the defendant's default % Certainly to the amount of the money that the defendant ought to have paid according to his covenant. The case resembles that of an action of trover for title deeds, where the jury may give the full value of the estate to which they belong by way of damages, although they are generally reduced to 40s. on the deeds being given up. Gurnet, B., and Polfe, B., concurred. Rule refused. Marine Insurance ; Partial Loss ; Items of Loss. SUPREME COURT, ILLINOIS. [1870.] Lamar Insurance Co. v. McGlashen (54 111. 513). Where, by the terms of a contract of insurance upon a cargo of corn shipped from Chi- cago to Montreal, the loss, if any, was payable to the Bank of Montreal, in funds current in the city of New York, it was held, that in estimating the liability of the insurers, a loss occurring, the premium upon gold should not be allowed in favor of the assured. 422 PRINCIPAL AND SURETY. Under a policy of marine insurance, which fixes the value of the goods at the sum in- sured, in case of a partial loss, as where the property insured was grain, a portion of which reached the port of destination in a damaged condition, the actual loss sustained by the assured, as shown by the difference in the market price of sound grain, and the market price of the damaged grain, is not the true measure of the liability of the insurer. In such case, it is proper to inquire as to the difference between the market value, at the port of delivery, of grain in a sound condition, and the grain which has received damage against which it was insured, not, however, with the view to ascertain the direct amount of loss incurred by the assured, but to find the proportionate loss, that is, whether the difference between the sound and damaged grain was one-half, one-fourth, or one-tenth. &c. When this proportion of the loss is thus ascertained, the extent of the liability of the insurer is also ascertained, as he pays the same proportional part. The standard of the liability of the insurer in such case, however, the value of the goods insured being fixed in the policy, is the value so fixed, and not the value in the market, so that, when the proportion of loss is ascertained by the difference between the sound and damaged sales, that gives the aliquot part of the original value which may be considered as destroyed by the perils insured against ; and by applying this liquidated proportion of the loss to the standard of value as fixed in the policy, it gives the proportion of loss, whatever it may be, in terms of money. That gives the precise amount for which the insurer is liable. The charges and expenses incurred in handling and disposing of the goods, in case of a partial loss, in order to be considered a part of the loss, must be reasonable and proper, for the purpose only of ascertaining the amount of the loss. So items for surveys, inspection and sale at auction, may, in such case, be properly chargeable as a part of the loss, those being the appropriate means by which to ascertain the extent of the loss. But storage of the goods not being necessary for such purpose, charges on that account would not be regarded as a part of the loss for which the insurer would be liable. Nor would the amount paid by the consignee for insurance of the goods while thus in store at the place of delivery, be considered a part of the loss occasioned by sea damage. Appeal from the Superior Court of Chicago ; the Hon. William A. Porter, Judge, presiding. The opinion of the court contains a statement of the case. Messrs. Scammon, McCagg <& Fuller, and Mr. Laiorence Proud- foot, for the appellants, cited 2 Parsons on Marine Ins. 399-402 ; 3 Kent, 430-432 ; 2 Arnould on Ins. sec. 3, 90S ; Stevens & Benneck on Averages, 292-294, as laying down the correct rule for com- puting damages in case of partial loss under a policy of marine insurance. The rule is founded on three celebrated decisions : Lewis v. Pucker (2 Burrows, 1167); Usher v. Noble (12 East, 639), and Johnson v. Shedden (2 East, 581). These cases establish the rule for adjusting partial losses on goods subjected to marine risks, which has been in force ever since the times of those decisions. That rule holds,- that it is the proceeds of the gross sales of the LAMAR INSURANCE CO. v. McGLASHEX. 423 sound and damaged goods, which are to be compared in estimating the damages under a partial loss. This would, of course, exclude the expenses of storing, insuring and handling the property insured. It also allows the assured to recover only a sum, less than the total damage to the goods, which is proportioned to the amount insured by the underwriters and the shippers. Mr. Justice McAllister delivered the opinion of the court : This was an action of assumpsit, brought by appellees against appellants, upon a contract of marine insurance, bearing date the first of May, A. D. 1866, whereby appellants insured, under policy !No. 155, for account of appellees, $15,000, on 20,981.18 bushels of corn, valued at the sum insured, on board of the bark Mary Merritt, from Chicago to Montreal. Loss, if any, payable to the Bank of Montreal, in funds current in the city of JS^ew York, with permis- sion to transship at Kingston on standard barges or vessels. Premi- um of insurance, $285 60, acknowledged to have been received by the agents of appellants. The policy referred to provides that the beginning of the adventure shall be from and after the lading thereof, and continue until landed at the port of destination ; but not to exceed forty-eight hours after the arrival and anchorage or mooring of said vessel at the port of destination aforesaid. The bark left the port of Chicago on the thirtieth of April, 1866 ; but, in consequence of a severe storm, she was obliged to return about the third of May. After a survey, and with the consent of appellants' agent, she proceeded again. In the course of the voyage the water got in, and when she arrived at Kingston, about the twen- tieth, it was found that four hundred bushels had become so wet and damaged as to require an immediate sale. The residue was re- ceipted in ajDparent good order, transshipped upon a barge and taken to Montreal, arriving there on the twenty-eighth or twenty-ninth of May. On the thirtieth, it was inspected by an authorized inspector, and declared rejected. It is an undisputed fact that it was then in a heated or heating condition. It was under the care of the con- signees, but permitted to lie in the vessel some three or four days, and then put into store for the purpose of being handled and dried. Consignees obtained an insurance upon it, while in store, paying eighteen dollars as premium. A few days before the fourth of July, 1866, one thousand bushels of it were sold at private sale, at fifty-six cents, and on the fourth, the residue was sold at auction, different lots bringing different prices. These being the main facts, it is now necessary to determine whether the proper measure of appellants' liability was regarded 424 PRINCIPAL AND SURETY. upon the trial. Appellees' statement of account between them and appellants sufficiently shows what that measure was. It was arrived at in this manner : The market price of sound corn at Montreal, at the date of arrival of cargo, was estimated at fifty-six cents per bushel. Appellees find what the whole cargo would have amounted to at that price. They then deduct from that amount the net pro- ceeds of all the corn sold at the times and in the manner above stated ; but, in arriving at the net proceeds of the latter, they deduct $1,106 96 as the charges for handling it, and among the items mak- ing up that amount is the eighteen dollars paid for insurance on it while in store (although the risk of appellants did not extend beyond forty-eight hours after its arrival at Montreal), and $823 77 for storage and drying ; and, after all these deductions, the balance claimed to be due appellees, according to their own statement, was $3,742 96. The jury, having no other data, found a verdict for $6,022 29, and the court below refused to set it aside and grant a new trial. We have been unable, after the most careful ex- amination of the testimony, to resort to any proper calculation by which the amount of this verdict can be sustained, and no theory has been suggested by which it can be sustained. Appellees prefixed to the amount of balance due, according to their statement given in evidence, the word "gold," and it has been suggested that the jury must have allowed the premium on gold in 1866. If so, it was wrong, because, by the terms of the policy, the amount insured is payable in funds current in the city of New York. It is apparent that an incorrect measure of appellants' liability was adopted at the trial. The basis of the verdict was the difference between the market price of the sound and the market price of the damaged corn, including all the particular charges above mentioned. That difference may give the amount of appellees' loss, but it is not the amount appellants are liable to pay, because, first, it would make the market price of the corn the basis of the appellants' liability, when the true basis is the valuation in the policy ; and it would in- volve the insurer in the rise and fall of the markets, with which he has no concern. The extent of loss the appellees sustained on this corn by sea damage is one thing, and the amount which the insur- ance company is bound to pay is quite another ; accordingly when the corn arrived at the port of destination sea-damaged, two points were to be ascertained : first, the extent of depreciation in value which it had suffered ; second, the amount which the insurer ought to pay in respect thereof. The first point could be ascertained by simply comparing the price for which the corn would have sold in LAMAR INSURANCE CO. v. McGLASHEN. 425 the market, liad it arrived there sound, with the price for which it might have sold, arriving there damaged. But the object of com- paring the proceeds of the sound and damaged sales, for the pur- pose of indemnity under the policy, is not to ascertain the direct amount of the appellees' loss, but its relative amount — the propor- tion which it bears to the price at which the corn would have sold if sound ; the question being not whether the depreciation amounts to any fixed sum, but whether it amounts to one-half, one-third, or two-thirds, or any other proportion of the sum for which the corn would have sold if sound ; whether, in short, the property was one- half, one-third, or two-thirds the worse for the sea damage. When this is ascertained, the liability of the insurance company is ascer- tained also, for they pay the same proportional part. The corn in question was valued in the policy. It was not claimed that there was more than a partial loss. The mode of meas- uring the liability of the insurer in such case is laid down in the leading case of Lewis v. Rucker (2 Burr. 1167), by Lord Mansfield. " Where," said he, " an entire individual, as one hogshead, happens to be spoiled, no measure can be taken from the prime cost to ascer- tain the quantum of damage ; but if you can fix whether it be a third, a fourth or a fifth worse, the damage is fixed to a mathemat- ical certainty." And this, he says, "is to be done by the price at the port of delivery." In Usher v. Noble (12 East, 64T), Lord Ellenboeough stated the rule thus : " The difference between the sound and damaged sales affords the proportion of loss in any given case, i. e., it gives the aliquot part of the original value, which may be considered as de- stroyed by the perils insured against ; when this is ascertained, it only remains to apply this liquidated proportion of the loss to the standard by which the value, as between the assured and the under- writer, is calculated (i. e., the prime cost or value in the policy), and you have the one-half, the one-fourth, or the one-tenth of the loss, in terms of money." The rule by which to calculate a partial loss, in such a case as this at bar, is the difference between the respective gross proceeds of the same article when sound and when damaged, and not the net proceeds. Johnson v. Shedden (2 East, 581), which case decides that the underwriter is not to bear any loss from fluctuation of markets, or port duties, or charges after the arrival of the goods at their port of destination. It is said (in 2 Arnould on Ins. 969 1, that, " by the gross produce of the sale is meant the market price at which the merchant, after paying freight, duty and landing charges,. 426 PRINCIPAL AND SURETY. can sell the goods to the consumer or purchaser at the port of ar- rival," and that, " by the term net proceeds is meant the gross pro- ceeds, deducting freight, duty and landing charges " (lb. 970). It is claimed by appellants' counsel, that the charges for handling this carffo after its arrival were such as could not be included in the amount of indemnity which appellants are liable to pay. There are charges of a certain class which are to be borne by the underwriter, though not a part nor a direct consequence of the sea damage. Sales by auction are resorted to mainly with the view of comparing the sound and damaged values, so as to ascertain the amount of indem- nity which the insurer has to pay. There may be other modes. The question in all such cases is, was that expense reasonable and proper for the purpose of ascertaining the amount of the loss ? If it be, then it is a part of the loss. In Muir v. United Ins. Co. (1 Caine's R. 49), the court said : " Had the sale at auction been to ascertain the injury the cargo had received, and limited to such parts as were damaged, it would have been a reasonable charge, but that appears not to have been the object or effect of the auction ; " and it was there held, that the charges attending the auction could not, for that reason, be considered as a loss to borne by the under- writers (2 Parsons on Mar. Ins. 399 ; 2 Arnould, 973). The prin- ciple being, that the charges, in order to be considered a part of the loss, must be reasonable and proper for the purpose of ascertaining the amount of the loss, the inquiry as to a particular charge being of that character, might involve questions of fact, but when the facts are undisputed, it is the duty of the court to determine whether such extra charges were necessary to ascertain the partial loss, and, therefore, formed a part of it. That the amount paid for insurance, while retaining this corn in store, was not reasonable or proper, is quite clear, and, under the rules laid down as to the mode of ascertaining the quantum of dam- age, there can be no reason shown to support the charge for storage. The quantum of injury should be ascertained immediately, or within a reasonable time. The storage was not for that purpose, but for the purpose of securing a rising market. The condition of the grain for all the practical purposes of a public sale could have been ascertained by inspection or survey. If it was stored for the purpose of a more advantageous market, or any purpose other than that of a reasonable and proper mode of ascertaining the extent of the injury, the appellants would not be liable to that expense as a part of the loss. For the legitimate ob- ject of determining the extent of injury, it was immaterial whether TAYLOE v. SAXDIFORD. 427 the market, at the time of arrival, was rising or falling. Lord Mansfield, in Lewis v. Rucker {supra), said : " Whether the price there (the port of delivery) be high or low, in either case it equally shows whether the damaged goods are a third, a fourth or a fifth worse than if they had come sound." The items for surveys, inspection and sale at auction, may, under the circumstances above indicated, be properly chargeable as a part of the loss. The court below having, by instructions to the jury, sanctioned a measure of liability on the part of appellants, different from that above enunciated, the judgment must be reversed and the cause remanded. Judgment reversed. LIQUIDATED DAMAGES. Liquidated Damages ; Stipulation to Pat Money in gross foe Breach of Contract ; Application of Payments. supreme court of the united states. [1822.] Tayloe v. Sandifokd (7 Wheat, 13). In general, a sum of money in gross, to be paid for the non-performance of an agreement, is considered as a penalty, and not as liquidated damages. A fortiori, when it is expressly reserved as a penalty. Thus, where in a building contract the following covenant was contained: "The said houses to be completely finished on or before the 24th of December next, under a penalty of $1,000 in case of failure ;" it was Held, that this was not intended as liquidated damages for the breach of that single covenant only, but applied to all the covenants made by the same party in that agreement ; that it was in the nature of a penalty, and could not be set off in an action brought by the party to recover the price of the work. An agreement to perform certain work within a limited time, under a certain penalty, is not to be construed as liquidating the damages which the part}- is to pay for the breach of his covenant. The case of Fletcher v. D}-cke (2 Term Rep. 32), commented on, and distinguished from the present. A person owing money under distinct contracts, has a right to apply his payments to whichever debt he may choose, and this power may be exercised without any ex- press direction given at the time. A direction may be evidenced by circumstances, as well as by words ; and a positive re- fusal to pay one debt, and an acknowledgment of another, with a delivery of the sum due upon it, would be such a circumstance. 428 LIQUIDATED DAMAGES. Mr. Chief Justice Marshall delivered the opinion of the court : This is a writ of error to a judgment of the Circuit Court of the county of Alexandria, rendered in an action of assumpsit brought by T. & S. Sancliford against John Tayloe. It appeared on the trial of the cause, that on the 13th of May, 1816, the parties entered into a written contract, by which the defendants in error undertook to build for the plaintiff, three houses on the Pennsylvania avenue in the city of "Washington. On the 18th day of the same month, the parties entered into a contract, under seal, for the building of three additional houses at a stipulated price. This contract contains the following covenant : " The said houses to be completely finished on or before the 21th day of December next, under a penalty of one thousand dollars in case of failure." The parties entered into a third verbal contract for some ad- ditional work, to be measured and paid for according to measure- ment. These three houses were not completed by the day, and the plaintiff in error claimed the sum of one thousand dollars as stipu- lated damages, and retained it out of the money due to the defend- ants in error. This suit was thereupon brought ; and, on the trial of the cause, the defendant in the Circuit Court claimed to set off in this action one thousand dollars, as in the nature of stipulated damages ; but the court overruled this claim, and decided that the said sum of one thousand dollars had been reserved in the nature of a penalty, and could not be set off in this action. The defendant then moved the court to instruct the jury, that " upon the evidence offered, if believed, the plaintiffs were not enti- tled to recover, in this action, the said sum of one thousand dollars, inasmuch as the same, if due at all, was due under a contract under seal, and that the declarations of the defendant, and the understand- ing between the parties as to the reservation of the said one thousand dollars, given in evidence as aforesaid, was competent and sufficient evidence of the defendants' intention to apply his payment to the extinguishment, in the first instance, of such parts of the said moneys as were due by simple contract, and to reserve the one thousand dollars out of the money due under the said original con- tract." This instruction the court refused to give ; and did instruct the jury " that it was competent to the plaintiffs to recover the said one thousand dollars in this action, unless they should be satisfied by the evidence, that the defendant, at the time of paying the money, had expressly directed the same, or a sufficient part thereof, to the payment of the one thousand five hundred dollars due on the simple contract." TAYLOE v. SANDIFORD. 429 To both these opinions the defendant excepted ; and the jury having given a verdict for the plaintiff in the Circuit Court, this writ of error was brought to the judgment rendered thereon. It is contended, by the plaintiff in error, that the Circuit Court erred. 1st. In overruling the claim to offset the one thousand dollars mentioned in the agreement. 2d. In declaring that the plaintiff in that court might so apply the payments made, as to discharge the contract under seal, and leave the sum retained by the defendant in that court, to be demanded under the simple contract. 1. Is the sum of one thousand dollars, mentioned in the agree- ment of the 13th of May, to be considered as a penalty or as stipu- lated damages ? The words of the reservation are, " The said house to be com- pletely finished on or before the 21th day of December next, under the penalty of one thousand dollars in case of failure." In general, a sum of money in gross, to be paid for the non-per- formance of an agreement, is considered as a penalty, the legal oper- ation of which is to cover the damages which the party, in whose favor the stipulation is made, may have sustained from the breach of contract by the opposite party. It will not of course be consid- ered as liquidated damages ; and it will be incumbent on the party who claims them as such, to show that they were so considered by the contracting parties. Much stronger is the inference in favor of its being a penalty, when it is expressly reserved as one. The par- ties themselves denominate it a penalty ; and it would require very strong evidence to authorize the court to say that their own words do not express their own intention. These writings appear to have been drawn on great deliberation ; and no slight conjecture would justify the court in saying that the parties were mistaken in the import of the terms they have employed. The counsel for the plaintiff in error supposes that the contract furnishes clear evidence that the parties intended this sum as liqui- dated damages. The circumstance that it is annexed to the single covenant, stipulating the time when the work shall be completed, is considered as showing that it was intended to fix the damages for the breach of that covenant. Without deciding on the weight to which this argument would be entitled, if supported by the fact, the court cannot admit that it is so supported. The engagement, that the said houses shall be completely finished on or before the 24th day of December next, is 430 LIQUIDATED DAMAGES. as much an engagement for the manner as for the time of finishing the work, and covers, we think, all the covenants made by the de- fendants in error in that agreement. The case, therefore, presents the single question, whether an agreement to perform certain work by a limited time, under a certain penalty, is to be construed as liquidating the damages which the party is to pay for a breach of his covenant. This question seems to have been decided in the case of Smith v. Dickenson, reported in 3 Bos. & Pull. 630. The plaintiff in error relies on the case of Fletcher v. Dycke, reported in 2 T. R. 32, in which an agreement was entered into to do certain work within a certain time, and if the work should not be done within the time specified, " to forfeit and pay the sum of 101. for every week," until it should be completed. But the words " to forfeit and pay," are not so strongly indica- tive of a stipulation in the nature of a penalty, as the word " pen- alty" itself; and the agreement to pay a specified sum weekly during the failure of the party to perform the work, partakes much more of the character of liquidated damages than the reservation of a sum in gross. The court is well satisfied that this stipulation is in the nature of a penalty, and, consequently, that there was no error in rejecting it as a set-off in this case.* The second objection goes entirely to the form of the action. The declaration is in assumpsit ; and the plaintiff contends that the money claimed was due on a sealed instrument. It is admitted that all the money for the whole work performed by the defendants in error, was paid, except the sum of one thousand dollars, which was retained by the plaintiff in error, expressly on account of that sum which he supposed himself entitled to under the contract of the 18th of May, on account of the failure to complete the buildings by the 21th of December. If this money was due on the simple contract, * (Note from the report in 7 Wheaton). — This subject is discussed, with his usual abil- ity and acuteness, by Mr. Evans, in the Appendix to his Translation of Pothier on Obliga- tions (vol. 2, p. 93-98). He thinks that the penalty ought, in general, to be regarded as stated damages ; and his observations are calculated to excite doubts as to the correctness of some of the decisions on this subject. In addition to the cases collected by him, and those cited in the argument of the above case, in the text (Tayloe v. Sandiford) the follow- ing cases may be referred to: Ponsonby v. Adams, 6 Bro. Paid. Cas. 418; Harrisons. Wright, 13 East, 343 ; Rolfe v. Peterson, 6 Bro. Pari. Cas. 470 ; Sloman v. Walter, 1 Bro. Ch. Rep. 418 ; Hardy v. Martin, Id. 419 ; Love v. Peers, 4 Burr. 2229 ; Cotterel v. Hook, Doug. 101 ; Wilbeam v. Ashton, 1 Campb. N. P. Rep. 78; Barton v. Glover, 1 Holt's N. P. Rep. 43. The learned reader will also find the supposed result of all the English cases summed up by Mr. Holt, in a note to the last mentioned case. 1 Holt's N. P. Rep. 45. TAYLOE v. SAND1FORD. 431 then this action was clearly sustainable ; if it was due under the sealed instrument, then it could be recovered only by an action on that instrument. Its being due on the one or the other depends on the application of the payments made by the plaintiff to the defend- ants in error. The court instructed the jury, that it was competent to the plaintiff to recover the said one thousand dollars in this ac- tion, "unless they should be satisfied by the evidence, that the de- fendant, at the time of paying the money, had expressly directed the same, or a sufficient part thereof, should be applied to the extin- guishment of the one thousand five hundred dollars due on the simple contract." This instruction of the court is given in terms, the correctness of which cannot be entirely admitted. It would exclude an appli- cation of the money made by the creditor himself, with the assent of the debtor to the simple contract debt ; for, in such case, it would not appear that the debtor had " expressly directed " the application. Thus, among the accounts exhibited at the trial, is a receipt for the whole sum due for extra work performed under a verbal con- tract. It was not proved that the application of this money to the discharge of the verbal contract was " expressly directed." Yet no person will say that the creditor was at liberty to controvert this application, or to change it. A person owing money under distinct contracts, has undoubtedly a right to apply his payments to whichever debt he may choose ; and, although prudence might suggest an express direction of the application of his payments at the time of their being made, yet there may be cases in which this power would be completely exer- cised without any express direction given at the time. A direction may be evidenced by circumstances as well as by words. A pay- ment may be attended by circumstances which demonstrate its ap- plication as completely as words could demonstrate it. A positive refusal to pay one debt, and an acknowledgement of another, with a delivery of the sum due upon it, would, we think, be such a circum- stance. The inquiry then, in this case, will be, whether the pay- ments made by the plaintiff to the defendants in error, were accom- panied with circumstances which amount to an exercise of his power to apply them. A circumstance of no light import was given in evidence by the creditor himself. It was that, at the time of discharging the account for the extra work, the debtor confessed " that he had retained in his hands one thousand dollars, as the forfeiture under the original 432 LIQUIDATED DAMAGES. contract for not finishing the houses in the time stipulated by con- tract, and that he would hold it, unless compelled by law to pay it." This one thousand dollars was the penalty stipulated in the agree- ment under seal ; and when all the residue of the money was paid, the inference is very strong that this sum was reserved out of the money stipulated by the same agreement, and that the payments were made in discharge of the sums acknowledged to be due for other work. The final payment was made by Tayloe through the hands of a third person. His original purpose seems to have been to insist on a receipt in full before he would pay the sum which remained due, independent of the sum in contest. But on a representation of the peculiar pressure under which the Sandifords labored, they having a note in bank, which had become due, he agreed to pay the whole money due, under all the contracts, except the sum of one thousand dollars, which he claimed a right to retain, under the stipulation of the sealed instrument. There existed no objection to the payment of the money due under the simple contract. The whole objection was to the payment of that under the sealed instrument, out of which he claimed a right to deduct one thousand dollars, on account of a failure in the performance of that contract. Under these circum- stances, we think that the money retained must be considered as re- served out of the sum due on that contract, and that the simple con- tract was discharged. The court erred then in this direction to the jury, and the judg- ment must be reversed and the cause remanded for a new trial. Liquidated Damages ; Stipulation of various Degrees of Im- portance. THE COURT OF COMMON PLEAS. [1829.] Kemble v. Farren (6 Bingh. [141] 71). Liquidated damages cannot be reserved on an agreement containing various stipulations, of various degrees of importance, unless the agreement specify the particular stipu- lation or stipulations to which the liquidated damages are to be confined. Assumpsit by the manager of Covent Garden Theatre against an actor, to recover liquidated damages for the violation of an engage- ment to perform at Covent Garden for four seasons. KEMBLE v. FARREX. 433 By an agreement between the plaintiff and defendant, the de- fendant had engaged himself to act as a principal comedian at Covent Garden Theatre for four seasons, commencing with October, 1828, and in all things to conform to the regulations of the theatre. The plaintiff' agreed to pay the defendant 31. 6s. 8d. every night on which the theatre should be open for theatrical performances during the ensuing four seasons ; and that the defendant should be allowed one benefit night during each season, on certain terms therein speci- fied. And the agreement contained a clause, that if either of the parties should neglect or refuse to fulfill the said agreement, or any part thereof, or any stipulation therein contained, such party should pay to the other tlie sum of 1,000?., to which sum it was thereby agreed that the damages sustained by any such omission, neglect or refusal should amount ; and which sum was thereby declared by the said parties to be liquidated and ascertained damages, and not a pen- alty or penal sum, or in the nature thereof. The breach alleged was, that the defendant refused to act during the second season ; and at the trial the jury gave a verdict for the plaintiff for 750?. damages, subject to a motion for increasing them to 1,000?., if the court should be of opinion that, upon this agree- ment, the plaintiff was entitled to the whole sum claimed as liqui- dated damages. A rule nisi having been obtained, and the motion argued accord- ingly, the opinion of the court was delivered as follows by Tindal, Ch. J. — This is a rule which calls upon the defendant to show cause why the verdict, which has been entered for the plaintiff for 750?., should not be increased to 1,000?. The action was brought upon an agreement made between the plaintiff and the defendant, whereby the defendant agreed to act as a principal comedian at the Theatre Royal, Covent Garden, during the four then next seasons, commencing October, 1828, and also to conform in all things to the usual regulations of the said Theatre Royal, Covent Garden ; and the plaintiff agreed to pay the defend- ant 3?. 6s. Sd. every night on which the theatre should be open for theatrical performances, during the next four seasons, and that the defendant should be allowed one benefit night during each season, on certain terms therein specified. And the agreement contained a clause, that if either of the parties should neglect or refuse to fulfill the said agreement, or any part thereof, or any stipulation therein contained, such party should pay to the other the sum of 1,000?., to which sum it was thereby agreed that the damages sustained by any such omission, neglect or refusal, should amount ; and which sum 28 434: LIQUIDATED DAMAGES. was thereby declared by the said parties to be liquidated and ascer- tained damages, and not a penalty or penal sum, or in the nature thereof. The breach alleged in the declaration was, that the defendant refused to act during the second season, for which breach, the jury, upon the trial, assessed the damages at 760Z. ; which damages the plaintiff contends ought by the terms of the agreement to have been assessed at 1,000Z. It is, undoubtedly, difficult to suppose any words more precise or explicit than those used in the agreement ; the same declaring not only affirmatively that the sum of 1,000£. should be taken as liqui- dated damages, but negatively also that it should not be considered as a penalty, or in the nature thereof. And if the clause had been limited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascer- taining the damages upon any such breach at 1,000£. For we see nothing illegal or unreasonable in the parties, by their mutual agree- ment, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained : and in all cases it saves the expense and difficulty of bringing witnesses to that point. But in the present case, the clause is not so confined ; it extends to the breach of any stipu- lation by either party. If, therefore, on the one hand, the plaintiff had neglected to make a single payment of 31. 6s. 8d. per day, or on the other hand, the defendant had refused to conform to any usual regulation of the theatre, however minute or unimportant, it must have been contended that the clause in question, in either case, would have given the stipulated damages of 1,000Z. But that a very large sum should become immediately payable, in conse- quence of the non-payment of a very small sum, and that the for- mer should not be considered as a penalty, appears to be a contra- diction in terms ; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavored to relieve, by directing juries to assess the real damages sustained by the breach of the agreement. It has been argued at the bar, that the liquidated damages apply to those breaches of the agreement only which are in their nature uncer- tain, leaving those which are certain to a distinct remedy, by the verdict of a jury. But we can only say, if such is the intention of the parties, they have not expressed it ; but have made the clause relate, by express and positive terms, to all breaches of every DAKIN v. "WILLIAMS. 435 kind. We cannot, therefore, distinguish this case, in principle, from that of Astley v. Weldon, in which it was stipulated that either of the parties neglecting to perform the agreement should pay to the other of them the full sum of 200^., to be recovered in his Majesty's Courts at Westminster. Here there was a distinct agreement, that the sum stipulated should be liquidated and ascer- tained damages : there were clauses in the agreement, some sound- ing in uncertain damages, others relating to certain pecuniary pay- ments ; the action was brought for the breach of a clause of an uncertain nature ; and yet it was held by the court, that for this very reason it would be absurd to construe the sum inserted in the agreement as liquidated damages, and it was held to be a penal sum only. As this case appears to us to be decided on a clear and intelligible principle, and to apply to that under consideration, we think it right to adhere to it, and this makes it unnecessary to consider the subsequent cases, which do not in any way break in upon it. The consequence is, we think the present verdict should stand, and the rule for increasing the damages be discharged. Rule discharged. Note.— See Astley v. Weldon, 2 Bos. & Pul. 346 (1801). An intention to make the sum determined on as liquidated damages, payable on the breach of minor and unimportant parts of the agreement will not be imputed in the ab- sence of language determining such intention with precision. Hoagland v. Segur, 38 N. J. 230. Liquidated Damages ; Stipulations where Damages are uncertain ; Release of Part Performance of Covenant ; Covenants not coupled with Condition. SUPREME COURT, NEW YORK. [1837.1 Darin v. Williams (17 Wend. 447.) Where a contract mentions a certain sum to he forfeited in case of breach, such sum is to be regarded either as a penalty or as liquidated damages, according to the intent of the parties, if such intent can be gathered from a full view of all the provisions of the contract. Bat where the intention of the parties is doubtful, and the dam- ages in case of breach are of such a nature that their amount can be definitely ascertained, the sum named will be deemed a penalty ; if they are uncertain in their nature, it will be regarded as liquidated damages. Where the plaintiffs purchased the printing apparatus, patronage and good will of a newspaper establishment from the defendants, who covenanted they would not 436 LIQUIDATED DAMAGES. publish or assist in publishing any rival paper, and the damages were fixed at $3,000, and the covenant was broken: Held, that the damages were uncertain in their nature, and therefore the $3,000 named must be considered stipulated damages, recoverable as an entirety upon the breach. This was an action of covenant, tried at the Oneida Circuit. By sealed articles of agreement, the plaintiffs, in 1825, purchased from the defendants an establishment for the publication of a news- j>aper called the Utica Sentinel, paying $500 for the printing mate- rials and $3,000 for the "patronage and good will," the defendants at the same time covenanting that they would not establish or aid in establishing or printing " any paper of a literary, political, or miscel- laneous character in the village of Utica or county of Oneida," so long as the plaintiffs or their immediate assigns should continue to publish any paper in that village. By the penal clause of the agree- ment, the defendants " for themselves, their heirs, &c, obligate and bind themselves to the strict and faithful performance of this cove- nant, and every part, term and condition thereof, in the sum of $3,000. It is hereby mutually and expressly agreed, by and between the said parties to these presents, that the aforesaid sum of $3,000 shall be and hereby is fixed and settled as liquidated damages, and not as a penal sum for any violation of the preceding covenant, or any of its terms or conditions." The plaintiffs alleged in their declaration, as a violation of these covenants, that the defendants had at different times been accessary to the publishing in the village of Utica of two different news- papers, called the " Utica Intelligencer" and the "American Citizen," and demanded judgment for the $3,000 mentioned in the agreement as the amount of damages. The defendants traversed these allega- tions, and denied the breaches alleged. The jury, by a special ver- dict found that the instrument declared on was duly executed ; that in January, 1826, Williams was a party to a negotiation between one Tracy and one Merrill, a journeyman printer employed by Williams, for establishing a newspaper in Utica ; that he sold type and let a printing press to Merrill for that purpose ; that a newspaper of a political character, called the " Utica Intelligencer," was immediately thereafter printed by Merrill ; that such paper could not have been established so soon by two or three weeks, had not the type and press been furnished by Williams; that the first number of the " Intelligencer " was set up by Merrill and his apprentices in a build- ing owned by Seward and occupied by Williams ; that the paper thus commenced was continued for sixteen months, although the numbers subsequent to the first were printed in a building other DAKIN v. WILLIAMS. 437 than that occupied by Williams ; and that the press let and one-third of the type sold by Williams to Merrill were the property of Wil- liams. The jury also fonnd that in June, 1830, one Wilson, con- templating the publication in Utica of a paper of a political, miscel- laneous and literary character, to be called the " American Citizen," employed Williams to print 1,000 copies of the first number of such paper, which he did at his printing office in Utica, with his own press, type and ink, and delivered them to Wilson ; that it was stated in the paper that it was printed by Williams ; that the print- ing office of Williams was an old established office, of the first stand- ing and reputation in the country, and that its issuing from that office was calculated to give credit and character to the paper ; that in one month after the issuing of said first number the regular pub- lication of the " Citizen " was commenced by Wilson, and continued for 29 weeks. The jury also found that during the time of the establishment and publication of these two papers, the plaintiffs and their assigns had continued to publish a paper in the village of Utica. The jurors also say that on the 22d of January, 1830, the plaintiff, by an instrument under seal, released the defendants from their covenant as to the publishing of an anti-masonic paper, called the " Elucidator," so long as it should be anti-masonic ; but whether or not, upon the whole matter, the plaintiffs are entitled to recover the $3,000, they submit to the court to determine. By the Court, Nelson, Ch. J. — [After holding that two stipula- tions in the covenant had been violated, namely : 1. The stipulation that the defendants would not suffer a paper to be printed or pub- lished in any building belonging to them or either of them ; and 2. The stipulation that they would not aid or assist, or be in any man- ner accessory to the printing or publishing of the same by any per- son whatever, proceeded as follows :] The next question presented upon the above conclusion is, whether the sum of $3,000 is to be viewed as damages liquidated by the con- tract of the parties, or only in the light of a penalty ? There are many cases in the English books in which this question has been very fully examined and considered, but it would be an unprofitable consumption of time to go over them with a view or expectation of extracting any useful general principle that could be applied to this case. The following are the leading cases : Astley v. Weldon (2 Bos. & Pul. 346) ; Barton v. Glover (Holt's N. P. R 43, and note) ; Reilly v. Jones (1 Bing. 302) ; Davies v. Penton (6 Barn. & Cress. 216); Crisdee v. Bolton (3 Carr. & Payne, 240); Randall v. Everest (2 Id. 577) ; Kemble y. Farren (6 Bing. 141). In our court are the 438 LIQUIDATED DAMAGES. following : Dennis v. Cummins (3 Johns. Cas. 297) ; Slosson v. Beadle (7 Johns. R. 72) ; Spencer v. Tilden (5 Cow. 144, and note, p. 150) ; Nobles v. Bates (7 Id. 307) ; Knapp v. Maltby (13 Wend. 587). From a critical examination of all these cases, and others that might be referred to, it will be found that the business of the court, in construing this clause of the agreement, as in respect to every other part thereof, is, to inquire after the meaning and intent of the parties ; and when that is clearly ascertained from the terms and language used, it must be carried into effect. A court of law pos- sesses no dispensing powers ; it cannot inquire whether the parties have acted wisely or rashly in respect to any stipulation they may have thought proper to introduce into their agreements. If they are competent to contract within the prudential rules the law has fixed as to parties, and there has been no fraud, circumvention or illegality in the case, the court is bound to enforce the agreement. Men may enter into improvident contracts where the advantage is knowingly and strikingly against them ; they may also expend their property upon idle or worthless objects, or give it away if they please without an equivalent, in spite of the powers or interference of the court ; and it is difficult to see why they may not fix for themselves by agreement in advance a measure of compensation, however extravagant it may be, for a violation of their covenant (they surely may after it has accrued), without the intervention of a court or jury. Can it be an exception to their power to bind them- selves by lawful contract ? "We suppose not ; and regarding the in- tent of the parties, it is not to be doubted but that the sum of $3,000 was fixed upon by them " mutually and expressly," as they say, " as the measure of damages for a violation of the covenant, or any of its terms or conditions." If it be said that the measure is a hard one, it may be replied, that the defendants should not have stipulated for it ; or having been thus indiscreet, they should have sought the only exemption which was still within their power, namely, the faithful fulfillment of their agreement. In the case of Astley v. Weldon, Lord Eldon repudiates the idea that had been thrown out in some of the previous cases, that if the sum would be enormous and excessive, considered as liquidated dam- ages, it should then be taken as a penalty ; and maintains the ability of the party to make a contract for himself in fixing the amount of damages as well as in respect to any other matter. All the judges adopt the position that the question must be determined upon the meaning and intent of the parties. A principle is stated in that case which has since been frequently applied, and upon which the DAKIN v. WILLIAMS. 439 «ase was finally disposed of, namely, that where a doubt appears whether the sum inserted be intended as a penalty or not, if a certain damage less than this sum be made payable upon the face of the in- strument, in case the breach occurs, then the same shall be construed to be a penalty. It then partakes of the character of a common money bond, where the payment of a small sum is secured by the forfeiture of a large one in case of default. In that case there were several stipulations in the articles of agreement, and then on either neglecting to perform on his part, the " sum of 2002., to be recov- ered in any of his majesty's courts of record," was to be paid. Some of the breaches were in their nature uncertain, while others were certain, and as the 2002. were given to secure the fulfillment of all of them, upon the principle above stated, the court concluded it was to be deemed in the light of a penalty. Ciiambre, J. (p. 345), observed, " that there was one case in which the sum agreed for must always be considered a penalty ; and that is, where the pay- ment of a smaller sum is secured by a larger." And he held that the court could not garble the covenants, and hold that in respect to those certain the large sum was to be deemed a penalty, but dam- ages liquidated as to those uncertain, as the concluding clause applied equally to all of them. The decision of the case of Kemble v. Far- ren, the strongest one in the books for the defendants, was put upon this principle by Chief Justice Tentdall. There some of the stipula- tions were certain, such as the one in which the plaintiff had agreed to pay the defendant SI. 6s. 8d. every night in which the theater would be open during the season ; others were uncertain. The language of the parties in fixing the sum in case of neglect to fulfill the agreement, or any of the stipulations, was as particular and specific as in the case under consideration, using affirmative and negative terms, to exclude the idea of a penalty ; but as it extended equally to the breach of every stipulation, those certain as well as those uncertain, the case was supposed to be brought directly within the principle of Astley v. Walden. The chief justice concedes that it was difficult to suppose words more precise or explicit, and ad- mitted that if the clause had been limited to breaches which were of an uncertain nature and amount, the court would have considered it as. having the effect of ascertaining the damages of any such breach at the 1,000?. ; and he adds, " for we see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree." The case under consideration falls directly within the above distinction ; for the concluding clause here, secur- 440 LIQUIDATED DAMAGES. ing the fulfillment of the preceding covenant, applies to stipulations wholly uncertain ; and it may be added, that from the nature of the case it would be impossible for a court and jury to ascertain, with any degree of accuracy, the amount of damages actually arising out of the breach of them to the prejudiced party, and was, therefore, a very fit and proper case for the liquidation of the amount by the parties themselves. They have adopted the precise sum which the plaintiffs were to receive for the good will and patronage of the press, the very benefit which this clause was intended more effectu- ally to secure to the purchasers. [The court then held that the covenant between the parties, not being coupled with a condition, was divisible and subject to appor- tionment ; and that, therefore, the release of the covenant in respect to the printing and publishing of the " Elucidator " did not dis- charge it in respect to other matters.] The remainder of the opinion was as follows : It was urged on the argument, assuming there had been a viola- tion of the covenant, that the damages were liquidated, and were not in the nature of a penalty, and that the release had not the effect to discharge them ; still that it was a discharge of a portion of the damages, and therefore an assessment was necessary in order to ascertain those to which the plaintiffs were entitled. The difficulty in this view is, that it assumes what the case does not authorize^ namely, that the whole sum became collectible only upon an entire breach of the covenant, or rather of every stipulation in it ; and that, as a portion of it had been given up, a rateable deduction should be made in the damages. But it will be seen that this sum in damages was stipulated for, not only to secure the faithful per- formance of the whole covenant, but of " every part, term and con- dition thereof," and that it was " fixed and settled as liquidated damages, &c, for any violation of the preceding covenant, or any of its terms or conditions." The contingency, therefore, upon which it was agreed to be paid, is as well upon the doing of one of the prohibited acts as upon all of them ; and if any part of the sum is forfeited, the whole must be. For the above reasons we are of opinion the plaintiffs are entitled to judgment for the $3,000. PRICE v. GREEN. 441 Liquidated Damages ; Divisible Covenant. COURT OF EXCHEQUER CHAMBER. [1847.] Price v. Green, Executor (16 Mees. & Wels. 346). By deed, reciting that A. & B. carried on business as perfumers in partnership, and that it had been agreed between them that B., ia consideration of 2,100/., should assign to A. his moiety of the good 'will, stock in trade, &c, of the copartnership, B., in consideration thereof, covenanted that he would not, during his life, carry on the trade of a perfumer within the cities of London and Westminster, or within the dis- tance of 600 miles from the same respectively; and for the observance of this cove- nant, he bound himself to A., his executors, &c, in the sum of 5,000?., by way of liquidated damages, and not of penalty : Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that this covenant was divisible, and was good so far as it related to the cities of London and Westminster, though void as to the 600 miles; that a breach, that B. carried on the trade in the city of London, was good ; and that A. was entitled to recover, in respect of such breach, the whole sum of 5,000?. Qucere, whether a bill of exception lies for misdirection of a judge on the execution of a writ of inquiry. This was an action of covenant, for the breach of a covenant by the plaintiff in error (the defendant below), contained in an inden- ture made between him and John Gosnell, deceased, whereby he covenanted not to carry on the trade of a perfumer, toyman, and hair-merchant, within the cities of London or Westminster, or within the distance of 600 miles from the same respectively ; and for the observance of which covenant the defendant bound himself, his executors, &c, in the sum of 5,000^., as and by way of liquidated damages, and not by way of penalty. The defendant set out the deed on oyer, and then pleaded that the cities of London and West- minster, and the distance of 600 miles from the same respectively, comprised the whole of England and Wales, and 19-20ths of Scot- land, and that the covenant was therefore void in law. To this plea there was a demurrer, on which the Court of Ex- chequer gave judgment for the plaintiff below (13 M. 6c W. 695). On the execution of the writ of inquiry, before Pollock, C. B., the jury; under the direction of the learned judge, assessed the dam- ages for the breach of covenant at the full sum of 5,0001. To this direction the defendant's counsel tendered a bill of exceptions. A writ of error having been brought, the case was argued in this court, in Michaelmas Vacation, December 1, 1845. 412 LIQUIDATED DAMAGES. The judgment of the court was delivered by Patteson, J. — This was an action of covenant, by the executor of John Gosnell, against the defendant, for the sum of 5,000Z. as liqui- dated damages, for the breach of a covenant contained in an inden- ture, which is set out on oyer upon the record. It appears by the indenture, that Gosnell and the defendant had been partners as hair-dressers and perfumers in London. The part- nership was agreed to be dissolved ; and Gosnell purchased the de- fendant's share of the business at 1,500Z., and also his share of cer- tain leasehold premises at 600^., and his share of their stock in trade at 4,149Z. 18s. Gd. secured by bond. The 1,500Z. is recited to have been paid ; and the covenant of the defendant is in these words : " And in pursuance and performance of the agreement in this be- half, and in consideration of the said sum of 1,500Z. to the said Pees Price by the said John Gosnell paid as hereinbefore mentioned, he the said Pees Price doth hereby covenant, promise, and agree with and to the said John Gosnell, his executors, administrators, and as- signs, that he the said Pees Price shall not nor will, at any time dur- ing his life, either by or for himself, or for or with any person or persons whomsoever in trust for him, or to or for his benefit or ad- vantage, use, exercise, or carry on, within the cities of London or Westminster, or within the distance of 600 miles from the same re- spectively, the trade or business, or trades or businesses, of perfumer, toyman, and hair-merchant, or any other trade or business lately carried on by them the said Pees Price and John Gosnell in copart- nership together, under the herein before-mentioned articles of co- partnership of the 1st of January, 1829. And for the due observ- ance and performance of this covenant by and on the part of him the said Pees Price, he the said Pees Price doth hereby bind himself, his heirs, executors, and administrators, to the said John Gosnell, his executors, administrators, and assigns, in the sum of 5,0001., as and by way of liquidated damages, and not of penalty." The declaration then states a breach of this covenant by the defendant carrying on the business of a perfumer in the city of London. The defendant pleads that the cities of London and Westminster, and 600 miles from the same, include all England, whereby the indenture is void. To the plea the plaintiff demurs, and judgment has been given for him in the court below. Upon the argument in this court, it is conceded that the covenant is void, so far as regards the distance of 600 miles from London and Westminster ; but it is contended for the defendant in error, that the covenant is divisible, and stands good so far as regards the cities PRICE v. GREEN. 443 of London and "Westminster, npon winch part of it the breach is as- signed. The case of Mallan v. May, in the Court of Exchequer (11 M. & W. 653), is an express decision upon the point, in favor of the defendant in error ; but having been decided very recently, the present writ of error is in truth brought to question that decision, as much as the judgment in the principal case. Had the words of this covenant formed part of the condition of a bond, it cannot be denied that they might be taken separately ; for that point has been expressly decided in Chesman v. Nainby (2 Str. 739 ; 2 Lord Raym. 1156), on a writ of error from the Common Pleas, and again in the same case, on a writ of error to the House of Lords (1 Bro. P. C. 231). Again, it cannot be denied, that if this in- denture had contained two covenants in point of form, the one re- lating to London and Westminster, and the other to a distance of 600 miles from them, the invalidity of the latter would in no way have affected the former. The question, therefore, seems to be one of construction ; whether, from the language used, the covenant be capable of division. Now, if such language admits of its being con- strued divisibly in the condition of a bond, it is difficult to see why it is not equally capable of such construction where it occurs in a covenant. No doubt the covenant formed the consideration for the payment of 1,500?., and possibly Gosnell would not have given so large a sum, unless the prohibition to trade had been as extensive as by the whole of the covenant it is made to be ; but this is conjecture only, and, independent of the point that for a covenant under seal no consideration is necessary, it should be observed, that the restric- tion as to 600 miles from London and Westminster is only void, not illegal ; and therefore, the rest of the restriction would have formed a sufficient consideration for the agreement to pay 1,500?. Upon the whole, we are of opinion that this covenant is divisible, and that the judgment of the Court of Exchequer must be affirmed as to that point. The other question arises upon the writ of inquiry executed be- fore the Lord Chief Baron, to whose direction to the jury a bill of exceptions was tendered. The first objection is, that on a writ of in- quiry the judge is but assessor to the sheriff, and that a bill of ex- ceptions will not lie. The second is, that the jury should have been directed to find the actual damage sustained, and not the whole 5,000?. As we are of opinion that the direction of the Lord Chief Baron was right, we are not called upon to give any opinion on the first objection. The 5,000?. is expressly declared by the covenant to be " as and by way of liquidated damages, and not of penalty." It 444 LIQUIDATED DAMAGES. is a sum named in respect of the breach of this one covenant only, and the intention of the parties is clear and unequivocal. The courts have indeed held that, in some cases, the words " liquidated dam- ages" are not to be taken according to their obvious meaning ; but those cases are all where the doing or omitting to do several things of various degrees of importance is secured by the sum named, and, notwithstanding the language used, it is plain from the whole instru- ment that the real intention was different. Here, however, there is but one thing to which the 5,000^. relates, viz., the restriction of trade, though extended to two different districts ; and it is plain that the parties intended, that if the restriction was violated in either dis- trict, the sum should be paid, and not that inquiry should be made as to the actual damage and loss sustained. Upon this point, there- fore, as well as the other, we are of opinion that the judgment must be affirmed. Judgment affirmed. Note. — Sainter v. Ferguson (7 C. B. 716), was an action of assumpsit for breach of the following agreement : " In consideration that Joseph Denby Sainter, of Macclesfield, surgeon and apothecary, will engage me, the undersigned William Edward Ferguson, as assistant to him as a surgeon and apothecary, I the said William Edward Ferguson, promise the said Joseph Denby Sainter that I will not at any time practice, in my own name, or in the name or names of any other person or persons, as a surgeon or apothecary, at Macclesfield, or within seven miles thereof, under a penalty of 500/. : and I, the said Joseph Denby Sainter, do hereby agree with the said William Edward Ferguson to engage the said William Edward Ferguson as an assistant to me as surgeon and apothecary, on the terms aforesaid." Held that there was a sufficient consideration for the promise of B., and that the contract was not void as an unreasonable restraint of trade : Held, also, that the 500Z. was not a penalty, but liquidated damages. Liquidated Damages ; Uncertain Covenants. COURT of appeals, new YORK. [1857.] Bagley v. Peddie et al (10 N. Y. 409). Where an instrument under seal contained covenants of such a nature that the damages arising from their breach would be uncertain and difficult of accurate determination, and was accompanied by a bond which stipulated that the sum of $3,000 should be deemed to be " liquidated damages, and not by way of penalty :" Held, in an action for the breach, that $3,000 should be considered as liquidated damages contemplated by the parties, and that this amount was recoverable, notwithstanding extrinsic evidence might have enabled a jury to determine the amount of some of the items of damage. BAGLEY t. PEDDIE. 445 The defendant, Charles B. Peddie, by sealed articles of agree- ment, covenanted with the plaintiff, a manufacturer of gold pens, to serve him for four years. The agreement also contained covenants against disclosing the secrets of the business or any improvements or discoveries in the machinery or processes employed, against fraud or embezzlement, and for the keeping of just and true accounts. Thomas B. Peddie joined with Charles B. Peddie in executing a bond to the plaintiff, "in the sum of $3,000, as liquidated damages, and not by way of penalty or otherwise," in which, after reciting the above covenants, and avoiding the bond in case of their perform- ance, continues : " But if the said Charles B. Peddie shall refuse to continue with and serve the said Albert G. Bagley, or shall violate any of the covenants in said agreement mentioned, then the above bounden Charles B. Peddie and Thomas B. Peddie, their heirs, ex- ecutors or administrators, shall pay or cause to be paid to the said Albert G. Bagley, his executors, administrators or assigns, the above mentioned sum of three thousand dollars, liquidated damages, and this obligation to remain in full force and virtue." The plaintiff commenced an action on the bond, in the Superior Court of New York city, alleging breach of the agreement, and claimed to recover $3,000 as liquidated damages. No special dam- age was proved at the trial, and the plaintiff was non-suited, on the ground that it was not a case of liquidated damages. The judg- ment was affirmed at general term, and the plaintiff appealed to the Court of Appeals. Shankland, J. — The principal question to be settled in this case is, whether the parties have so contracted as to have fixed the amount of damages to be recovered of the defendants in case of non- performance by Charles B. Peddie. Although the courts have uni- formly conceded to parties the right to fix the amount of damages in advance of the breach of the contract, and at any sum, however disproportioned to the real damages, they shall see fit, and have like- wise conceded that it is a question of intention, to be derived from the scope and tenor of the agreement, yet, when the judicial mind has acted upon this class of cases, it is evident how repugnant it has been to enforce them according to the plainly expressed language of the contracting parties. Hence have sprung up a series of artificial rules peculiar to contracts of this character, which, while they osten- sibly profess to comply with the fundamental canons of construction appertaining to the legal science, contrive to contravene them by artificial distinctions and limitations. I will repeat some of the rules found in the books : First. The language of the agreement is 446 LIQUIDATED DAMAGES. not conclusive, and the effort of the court is to learn the intent of the parties. Hence the term " liquidated damages " is not sufficient to control the construction, if the court can discover in the other parts of the instrument reason even to doubt as to the intention of the parties ; Second. Where the word penalty is used it is generally conclusive against its being held liquidated damages, however strong the language of other parts of the instrument in favor of such con- struction ; Third. If the sum stipulated is to be paid on the non- payment of a less sum which is certain in amount (or, as some judges say, can be easily ascertained by a jury), and made payable by the same instrument, then it will be treated as a penalty ; Fourth. "When the agreement is in the alternative to do an act or pay a given sum of money, the court will hold the party failing to have had his elec- tion, and compel him to pay the money ; Fifth. If the sum be evi- dently fixed to evade the usury laws, or any other statutory laws, or to cloak oppression, t^e court will relieve by treating it as a penalty ; Sixth. If, independently of the stipulated damages, the damages would be wholly uncertain and incapable of being ascertained except by conjecture, in such case the damages will be considered liquidated if they are so denominated in the instrument ; Seventh. If the lan- guage of the parties evince a clear and undoubted intention to fix the sum mentioned as liquidated damages in case of default of per- formance of some act agreed to be done, then the court will enforce the contract, if legal in other respects. The language of the instrument declared on is clear and distinct in denominating the $3,000 liquidated damages, and expressly nega- tives the idea of its being inserted as a penalty. This occurs in that part of the bond where the penal sum is usually inserted, and the same language denominating it liquidated damages is repeated at the close of the condition of the bond. The word penalty is not used in the instrument, nor any other word of a similar import. The lan- guage of the instrument is unambiguous ; and, according to the usual rules of construction, the duty of interpretation is not imposed upon the court. But the rules applied to such agreements are pe- culiar, and it is necessary to see whether the case falls within any of the rules above given, which will enable us to declare the sum de- nominated liquidated damages, and not a penalty, a mere penalty nevertheless. The court below thought some of the covenants such that the damages for their breach could be readily ascertained by a jury ; for instance, the covenant against wrongfully detaining the plaintiff's moneys or property, and that requiring Peddie to give a true ac- count of the things committed to his management. BAGLEY v. PEDDIE. 44T I propose to look into those cases where it has been held that, where the damages are certain, the sum mentioned as liquidated damages may be held as a penalty only, in order to see whether they were as uncertain as in this case. Spear v. Smith (1 Denio, 464), was on an agreement to arbitrate. By the submission, the defendant agreed to give up to the plaintiff the possession of certain property, and the arbitrators were to decide what damages either party was to have in consequence of the non- fulfillment of the contract concerning it and other matters. The submission contained the following clause : " I, the said Moses Smith, agree to pay to said W. M. Spear the sum of one hun- dred dollars, as the ascertained and liquidated damages, if I shall refuse to abide the arbitrator's decision ; and I, the said Vm. M. Spear, agree to pay the like sum to said Smith, as ascertained and liquidated damages, if I shall refuse to abide such decision." The arbitrators awarded that the defendant should pay the plaintiff $10.40 by a specified day, which he failed to pay, and he also failed to give possession of the property in pursuance of the agreement. The Supreme Court held that the sum to be paid was fixed by the arbitrators, with interest, and being thus easily ascertained, the $100 must be regarded as a penalty. Kemble v. Farren (6 Bing. 141), was an action by the manager against an actor for a violation of an agreement to perform at Covent Garden for four years. The plaintiff agreed to pay defend- ant SI. 6s. Sd. every night the theatre should be open, and a benefit night during each season. The agreement contained a clause that if either of the parties should neglect or refuse to fulfill the said agree- ment or any part thereof, or any stipulation therein contained, such party should pay to the other 1,000^. liquidated damages, and not a penalty or penal sum, or in the nature thereof. The breach was the defendant's refusal to act during the second season ; and one ques- tion was, whether this was a case of liquidated damages, and it was held not to be, because the agreed damages applied to a breach of the agreement to pay a certain sum (SI. 6s. Sd. a day to defendant), as well as to covenants where the damages were uncertain ; there- fore, as it could not be considered otherwise than as a penalty, as to such fixed sum, it must also be construed in the same way in respect to those covenants of which the breach would result in uncertain damages ; and it was likewise in this respect in the case of Astley v. Weldon (2 Bos. & Pul. 346). The case of Davies v. Penton (6 Barn. & Cress. 216), seems to have been decided not to be a case of liquidated damages on two 448 LIQUIDATED DAMAGES. grounds : First. Because the words penalty and liquidated damages were both used, and therefore brought the case within the second rule above mentioned ; and Second. Because the greater sum was inserted to secure the payment of a less fixed sum agreed to be paid in the same instrument. The above cases will serve to illustrate the kind of certainty as to the sum to be paid as damages for breach of an agreement in order to hold the larger sum agreed to be paid on such breach a mere penalty. They are cases where the lesser sum is named spe- cifically in the instrument itself, or depends on the award of arbi- trators. These and similar cases are the cases of certain damages to which the courts allude in the third rule. We will now contrast with the above cases those falling within the sixth rule, where the damages are uncertain. Dakin v. Williams (IT Wend. 447), was a case where the defendant sold the plaintiff a printing press and the good will of the business for $3,500, and the defendant agreed not to carry on the business in the county of Oneida, and fixed and liquidated $3,000 as the damages if he vio- lated that provision. This was held to liquidate the damages, be- cause the real damage was uncertain, and the intent of the parties clear to fix the damages. So, in Knapp v. Maltby (13 Wend. 587), it was held that the damages for not assigning a lease to the plaintiff were of uncertain character, and would support an agreement for liquidated damages. So in Price v. Green (16 Mees. tfc Wells. 346), it was held that where the defendant agreed not to carry on the business of perfumery in London, the damages were uncertain within the rule. So in Galsworthy v. Strutt (1 Wels. Hurl. & Gord. Excheq. R. 659), where one attorney agreed with another not to carry on the business of an attorney within fifty miles, nor interfere with or solicit the clients of the late co-partnership, it was held a case of uncertain damages. The case at bar seems to me to fall within the sixth rule, the damages being wholly uncertain and depending entirely on proof aliunde the instrument declared on. The plaintiff was a gold pen manufacturer, and would probably have to intrust those whom he took into his employ with the secrets of his trade and the materials used therein ; and it would be difficult to prove the actual damage he would sustain by their leaving his employ, revealing the secret to others, or embezzling his materials. It was to guard against these contingencies that he required the de- fendant to give the bond in suit, with stipulated damages, in order to supersede proof in case of breach of any of its provisions. From BAGLEY v. PEDDIE. 449 the nature of the employment it would be difficult to prove how much money the person employed would or might detain, or how much of the materials he might refuse to give an account of. The damages to result from a breach of any of the stipulations of the agreement being uncertain and conjectural, I hold the case one of liquidated damages, and the judgment should therefore be reversed, and a new trial awarded in the court below. Paige, J. — The condition of the bond of the defendants in this case required the defendant, Charles B. Peddie, to do several acts specified in an agreement accompanying the bond, the damages for the non-performance of some of which could not be measured by any exact pecuniary standard, but as to others the damages were certain and could be easily ascertained by a jury ; and the bond de- clares that if the defendant, Charles B. Peddie, should violate any of the covenants in the agreement mentioned, the defendants should pay $3,000 liquidated damages. This is a case, therefore, where, within the authorities, the sum stipulated to be paid as damages must be considered as a penalty, and not as liquidated damages. The law on this subject, in my opinion, is correctly laid down by Judge Sandfokd in the court below (5 Sandf. S. C. P. 192). The judgment should be affirmed. Bowen, J., concurred in this opinion ; Comstock, J., expressed no opinion ; all the others concurring with Siianklajstd, J. Judgment reversed and new trial ordered. Note. — See Lamprnan v. Cochran, 10 N. Y. 275. The true principle to be drawn from the decisions is, that the couit must, in each case, gather from the whole instrument what was the real intention of the parties. See Lea v. Whitaker, L. R. 8 C. P. 70 (1872); Magee v. Lavel, L. R. 9 C. P. 107; 30 L. T. N. S. C. P. 1G9; Huff v. Lawlor, 45 Ind. 80 (1873) ; Noyes v. Phillips, CO K Y. 408. In an action on a collateral bond, with a penalty conditioned for the perform- ance of the contract, the penalty limits the recovery. But where the penalty is contained in the agreement inter partes, the plaintiff has his election to sue either for the penalty or for a breach of the contract, and in this case the recovery is not limited to the penalty. lb. A covenant to pay heavy liquidated damages in case of non-performance of a contract, so far as it is clearly applicable, will be enforced, but it will not be ex- tended by implication. Defendant contracted to sell to plaintiff certain premises, and at a specified time and place, upon payment of the purchase money, to execute and deliver a proper deed for the conveyance of the fee simple, free of incum- brances, containing covenants against the acts of the grantor. Jn case of failure or refusal to execute and deliver a proper deed, as specified, defendant agreed to pay $5,000, which was stipulated as liquidated damages for such non-perform- ance. Held, that this covenant applied only to the agreement to execute a deed, 29 450 LIQUIDATED DAMAGES.' not to the -warranty of title implied from the agreement to sell, and that where a deed was tendered in form, as prescribed by the contract, a defect of title beyond the power of defendant to remedy did not render it liable thereon. For a breach of the implied warranty of title, where the contract is made in good faith and is broken by reason of the inability of the vendor to make a good title, the vendee is only entitled to nominal damages beyond his expenses. Leggett v. The Mutual Life Insurance Company of New York, 53 N. Y. 894. Penalty ; Forfeiture ; Vendor and Purchaser. COURT OF APPEALS IN CHANCERY. [1873.] In re Dagenham (Thames) Dock Company, Ex parte Hulse (Law K. 8 Oh. App. 1022). A company incorporated by Act of Parliament for making a dock agreed with a land- owner to purchase a piece of land for 4,000?., of which 2,000?. was to be paid at once, and the remaining 2,000/. on a future day named in the agreement, with a provision that if the whole of the 2,000?. and interest was not paid off by that day, in which respect time was to be of the essence of the contract, the vendors might repossess the land as of their former estate, without any obligation to repay any part of the purchase-money : Held (affirming the decision of the Master of the Rolls), that this stipulation was in the nature of a penalty, from which the company was entitled to be relieved on pay- ment of the balance of the purchase-money, with interest. This was a motion by Sir Edward Hulse and his trustees, by way of appeal from a decision of the Master of the Holls refusing to order delivery up of certain lands to the applicants. The Dagenham (Thames) Dock Company was incorporated by statute 18 & 19 Yict. ch. 162, for the purpose of making a dock on the north side of the Thames, and the time for the purchase of lands and the completion of the works was extended by 25 & 26 Yict. ch. 213, till the expiration of five years from the passing of the latter act. On the 14th of August, 1865, an agreement was entered into be- tween Sir Edward Hulse (tenant for life of a settled estate), of the first part, G. E. Eyre and F. Eyre (trustees with a power of sale), of the second part, and the company, of the third part, that the trustees of the power of sale should sell, and the company should purchase, the lands therein described for 4,000£., of which 2.000Z. was to be paid on the execution of the agreement, whereupon the company was to be let into possession, and the remaining 2,000Z., with interest from the date of the agreement, was to be paid on the 1st of Novem- IN RE DAGEXHAM (THAMES) DOCK CO. 451 ber then next, when the purchase was to be completed. This agree- ment contained a clause providing that in case the second sum of 2,000/. and all interest thereon should not be entirely paid off and discharged by the 7th of August, 1867, in which respect time should be of the essence of the contract, it should be lawful for the trustees to re-enter upon the lands and repossess and enjoy them as in their former estate, and to eject the company, without any obligation on the part of the trustees to repay to the company any part of the 4,000?. which might have been previously paid, or any interest thereon, which should be absolutely forfeited to the vendors. And it was provided that, save as expressed by the agreement, the parties should stand in the same position with reference to the Companies Clauses Consolidation Act, 1845, the Lands Clauses Consolidation Act, 1845, and the Harbors, Docks, and Piers Clauses Act, 1847, and the special act of this company, as if this agreement had not been made. The first 2,0001. was paid on the execution of the agreement, and the company was let into possession. By an agreement of the 6th of August, 1867, indorsed on the above agreement, the time for payment of the remaining 2,000/. was extended until the 1st of August, 1868. By agreement, dated the 1st of August, 1868, made between Sir E. Hulse, of the first part, G. E. Eyre and H. H. Berens (the then trustees) of the second part, and the company, of the third part, it was agreed that the time for payment of the 2,000/., with an arrear of in- terest, should be further extended till the 1st of November, 1869. And it was further agreed that, if the undertaking should be aban- doned, or in case the 2,000/., with all interest from the date of the agreement of the 14th of August, 1865, to the day of payment, should not be entirely paid off and discharged by the 1st of November, 1869, in all which respects time was to be of the essence of the contract, it should be lawful for the trustees, their heirs or assigns, notwithstand- ing that the conveyance might have been executed, and notwithstand- ing any intermediate negotiation or correspondence, to enter into and upon and take possession of the lands and all works thereon, and the same to have again, retain, repossess, and enjoy as in their former es- tate, and to eject the company tflerefrom, without any obligation on the part of the trustees named in the first agreement, or the trustees named in the present agreement, to repay to the company the 2,000/. already paid, or any part of the balance of the 4,000/. still remaining due which might have been previously paid, or any interest thereon, which should be absolutely forfeited to the trustees, any conveyance 452 LIQUIDATED DAMAGES. of the land, and anything therein or in the agreements to the contrary notwithstanding; but nothing in the agreement was to prejudice the right of the vendors to take proceedings to enforce completion if the purchase was not completed by the 1st of November, 1869. And it "was declared, that in all respects and in every case time should be of the essence of the contract ; and that all the powers by the first agree- ment given to the parties thereto of the first and second parts, their respective heirs, executors, administrators, or assigns, might be exer- cised by the parties hereto of the first and second parts, their respect- ive heirs, executors, administrators, and assigns. And the company covenanted with the trustees that the company would, on the 1st of November, 1869, pay to the trustees, their heirs, executors, adminis- trators, and assigns, the 2,000^., the balance of the purchase-money, w T ith interest from the 1-ith of August, 1865, and the cost therein mentioned. The money was not paid. On the 7th of August, 1869, a petition was presented to wind up the company ; and on the 11th of Decem- ber, 1869, an order for winding up was made. On the 25th of May, 1870, the trustees commenced an action of ejectment; and on the 20th of February, 1871, an order was made by consent in the winding-up that the plaintiffs should be at liberty to sign judgment, they undertaking not to issue execution until further order, and to abide by any order the court might make as to the prop- erty affected by the judgment, and as to the costs in the action, or otherwise. On the 26th of March, 1873, the appellants applied for an order that they might be at liberty to issue execution, and that the liquida- tor and the company might deliver up to the applicants possession of the lands free from all claims by the company. The Master of the Rolls offered to the applicants an order for sale and payment, as in the ordinary case of vendor's lien. This offer being declined, His Lordship refused to make any order. Sir W. M. James, L. J. — In my opinion this is an extremely clear case of a mere penalty for non-payment of the purchase-money. If the agreement were to be construed as the appellants contend, I greatly doubt whether it would not be void as being ultra vires. [The learned Lord Justice, after commenting briefly on the griev- ous wrong it would be to the shareholders and debenture-holders, to hold that a company authorized to acquire land for purposes beneficial to the public, could make a valid bargain with a landholder, entitling him, in case any part of the purchase-money should remain unpaid on a particular day, to take back the land with all the works erected on it by the company, closed as follows :] MARZETTI v. WILLIAMS. 453 I agree with the Master of the Rolls that this is a penalty from which the company are entitled to be relieved on payment of the resi- due of the purchase-money with interest. Sir G. Mellish, L. J. — I am of the same opinion. I think that the last agreement makes it more clear than any of the others that this was only a penalty. I have always understood that where there is a stipulation that if, on a certain day, an agreement remains either wholly, or in any part unperformed — in which case the real damage may be either very large or very trifling — there is to be a certain for- feiture incurred, that stipulation is to be treated as in the nature of a penalty. Here, when you look at the last agreement, it provides that if the whole 2,0001. with interest, or any part of it, however small, remains unpaid after a certain day, then the company shall for- feit the land and the portion of the purchase-money which they have paid. It appears to me that this is clearly in the nature of a penalty, from which the court will relieve. CONTRACTS TO PAY MONEY. Nominal Damages foe Breach of Implied Contract to Pay Money. THE COUKT OF KING S BENCH. [1830] Marzetti v. Williams (1 Barn. & Adol. [415] 541). A banker is bound by law to pay a check drawn by a customer, within a reasonable time after he the banker has received sufficient funds belonging to the customer ; and the latter may maintain an action of tort against the banker for refusing payment of a check under such circumstances, although he has not thereby sustained any actual damage. Declaration stated, that the plaintiff long before and at the time of the committing of the grievances thereinafter mentioned, was and from thence hitherto had been a trader, to wit, a wine merchant and a ship and insurance agent, and the trades and businesses of a wine merchant and ship and insurance agent used, exercised, and carried on, and still used, &c. to wit, at London. That the defendants before and at the time of committing the grievance by them thereinafter next mentioned, were, and still were bankers, and the trade and busi- ness of bankers used, exercised, and carried on, and still used, etc., in the city of London, to wit, at, cVrc. ; and, as such bankers, had been 454 CONTRACTS TO PAY MONEY used to receive and take into their charge moneys, bills, notes, and other securities of divers persons, customers of and dealing with the defendants in the way of their trade and commerce in the city of London. That by the usage and custom of trade and commerce in the city of London, persons being bankers, and using the trade and business of bankers within the city of London, and receiving into their care and custody the moneys, bills, notes, and securities of per- sons being the customers of or dealing with such persons as bankers as aforesaid, in the way of their trade and business of bankers, and having; in their hands cash balances of such their customers and persons dealing with them as aforesaid, and not having lent or advanced money to discount any bills or bill, notes or note or other negotiable securities, or made any advances, or incurred, or entered into any engagements or contracts, or incurred or subjected them- selves to any liabilities for or on account of such their customers or persons dealing with them as bankers as aforesaid, nor having any lien or claim on such cash balances, were bound, and it had been and was their duty as bankers as aforesaid, to honor and pay the drafts or checks of such their customers and persons dealiug with them, duly drawn for any part of such cash balances, when duly presented to such bankers for payment by any person or persons lawfully entitled to recover the money specified in such drafts or checks. That long- before and at the time of committing the grievance by the defendants thereinafter next mentioned, plaintiff was a customer of and dealt the defendants in the way of their said trade and business of bank- ers, and at the time of committing the grievance, &c, had in then- hands, as such bankers as aforesaid, a large cash balance, and much more than sufficient to pay and discharge the money specified in the draft or order thereinafter next mentioned, to wit, a cash balance of 1091. 19s. 6d., and defendants had not lent or advanced to the plaint- iff any money, nor discounted any bills or bill, notes or note, or other negotiable securities for, nor made any advances, nor entered into any engagements or contracts, or incurred or subjected themselves to any liabilities for or on account of the plaintiff, who was so a customer of and dealt with them as bankers as aforesaid, nor had they, or any of them, any lien or claim on the said cash balance of the plaintiff so being in their hands as aforesaid. That whilst such cash balance was in the hands of the defendants as his bankers as aforesaid, to wit, on the 18th of December, 1828, to wit, at London aforesaid ; the plaintiff, according to the usage and custom of merchants, made and drew his certain draft or order in writing for the payment of money commonly called a check on a banker, bearing date the day and year last afore- said, and then and there directed the said draft or order to the MARZETTI v. WILLIAMS. 455 defendants, and thereby required them to pay to certain persons by the names, style, &c, of Sampson & Hooper, or bearer, 871. 7s. 6d. : the said sum of 871. 7s. 6d. specified in the said draft or order being a less sum than the said cash balance of the plaintiff, so being in the hands of defendants as his bankers as aforesaid, and then and there delivered the said draft or order to the said Sampson & Hooper, who thereby then and there became, and were the bearers thereof, and from thence until, and at the time of the presentment and refusal thereinafter next mentioned, were lawfully entitled to the money therein speci- fied. That afterwards, and whilst such cash balance of plaintiff, and which so exceeded the said sum of 871. 7s. 6d. in the said draft or order mentioned, was in the hands of the defendants as his bankers as aforesaid, to wit, on, &c, at, &c, the said draft, &c, was duly pre- sented for payment. Yet the defendants, not regarding their duty as such bankers as aforesaid, nor such usage and custom of trade as afore- said, but contriving, &c, to injure the plaintiff in his credit and charac- ter as a trader, to cause it to be believed that he had drawn a draft or order upon them without having effects in their hands to pay and an- swer the same, tfcc, did not, nor would, when the said draft or order was so shown and presented to them for payment as aforesaid, honor the said draft or order, or pay to the said Sampson & Hooper, or either of them, the said sum of 871. 7s. 6d. therein specified, but wholly refused so to do. The second count stated that the defendants were the plaintiff's bankers, and as such had been used to pay his checks ; and that at the time, &c, they, having sufficient money of his in their hands, and no lien or other lawful cause of refusal, did refuse to pay, &c, coutrary to their duty as such bankers, and maliciously intending to injure the plaintiff. The third count stated the facts still more concisely, and there was a general averment of damage to the plaint- iff's circumstances and credit. A count was added in trover for bank notes and pieces of money. Plea, not guilty. At the trial before Parke, J., at the London sittings after Michaelmas term 1829, it appeared that the plaintiff was a wine merchant and ship broker, that the defendants were bankers in London, and that the plaintiff kept a banking account with them. The amount of the balance due from the defendants to the plaintiff, on the evening of the 17th of December, 1828, was 691. 19s. 6d. A few minutes before 11 o'clock on the morning of the 19th, a further sum of 10/., being a Bank of England note, was paid in to his ac- count. On the same day, about ten minutes before three o'clock, a check drawn by the plaintiff in favor of Messrs. Sampson & Hooper, for 871. 7s. 6d., was presented at the banking house of the defend- ants for payment. The clerk, to whom it was presented, after having 456 CONTRACTS TO PAY MONEY. referred to a book, said there were not sufficient assets, but that the check might probably go through the clearing house. The check was paid on the following day. Upon this evidence it was contended by the Attorney General, first, that the plaintiff, having declared in tort as for a breach of duty, must be nonsuited, inasmuch as he had not proved any damage. Secondly, that a banker was not bound to know that a particular sum had been paid in an hour or half an hour before the check of his customer was drawn. He must be allowed a reason- able time to ascertain the state of the account between him and them, and it was not to be supposed he could know without special notice that a sum paid in by a customer, was to be drawn out an hour or two afterwards, the state of the account, in point of practice, being gen- erally ascertained at the close of each day when the books were made up, it could only be expected that the clerk should look at the book at the time when the check was presented, and give an answer according to the state of the account as it then appeared. The learned judge was of opinion, that a banker who received a sum of money belong- ing to his customer, became his debtor the moment he received it, and was bound to pay a check drawn by such customer after the lapse of such a reasonable time as would afford an opportunity to the different persons in his establishment of knowing the fact of the receipt of such money, and that the refusal to pay a check under such circum- stances was a breach of duty for which an action would lie ; and he directed the jury to find for the plaintiff, if they were of opinion that such a reasonable time had intervened between the receipt of the money at eleven o'clock and the presentment of the check at three, observing also, that it could not be expected if a sum of money was paid to a clerk in a large banking office, and immediately afterwards a check presented to another clerk in a different part of the office, that the clerk to whom the check was presented, should be immediately acquainted with the fact of the cash having been paid in, but a rea- sonable time must be allowed for that purpose, and he told the jury, that in forming their judgment, whether such a reasonable time had elapsed, they must consider whether the defendants ought or ought not, between eleven and three o'clock, to have had in some book, an entry of the 40Z. having been paid in, which would have informed all their clerks of the state of the account. The jury having found for the plaintiff on the first three counts, the attorney general asked whether they found that the defendant acted maliciously. The learned judge said, there was no evidence of malice in fact; and if malice was a question for the jury, they must be taken to have nega- tived malice. A rule nisi for a new trial was obtained. MARZETTI v. WILLIAMS. 457 The motion thereon having been argued, the following opinions- were delivered : Lord Tenterden, C. J. — I think that the plaintiff is entitled to have a verdict for nominal damages, although he did not prove any actual damage at the trial. I cannot think there can be any differ- ence, as to the consequences resulting from a breach of contract by reason of that contract being either express or implied. The only difference between an express and an implied contract, is in the mode of substantiating it. An express contract is proved by an actual agreement ; an implied contract by circumstances, and the general course of dealing between the parties ; but whenever a contract is once proved, the consequences resulting from the breach of it must be the same, whether it be proved by direct or circumstantial evidence. The attorney general was compelled to admit, in this case, that if the action were founded on an express contract, the plaintiff would have been entitled to recover nominal damages, although no actual damage were proved. JSTow this action is, in fact, founded on a contract, for the banker does contract with his customer that he will pay checks drawn by him, provided he, the banker, has money in his hands belonging to that customer. Here that contract was broken, for the defendants would not pay the check of the plaintiff, although they had in their hands money belonging to him, and had had a reasonable time to know that such was the fact. In this case a plaintiff might, for the breach of that contract, have declared in assumpsit. So in Burnett v. Lynch (5 B. & C. 589), the plaintiff might have declared as for breach of a contract. It is immaterial in such a case whether the action in form be in tort or in assumpsit. It is substantially founded on a contract ; and the plaintiff, though he may not have sustained a damage in fact, is entitled to recover nominal damages. At the same time I cannot forbear to observe, that it is a discredit to a person, and therefore injurious in fact, to have a draft refused payment for so small a sum, for it shows that the banker had very little confidence in the customer. It is an act particularly calculated to be injurious to a person in trade. My judgment in this case, however, proceeds on the ground that the action is founded on a contract between the plaintiff and the bankers, that the latter, whenever they should have money in their hands belonging to the plaintiff, or within a reasonable time after they should have received such money, would pay his checks ; and there having been a breach of such contract, the plaintiff is enti- tled to recover nominal damages. Parke, J. — I am of the same opinion. This action being sub- stantially founded on a contract, I think it can make no difference 458 CONTRACTS TO PAY MONEY. whether it is in form tort or assumpsit. There is no authority for any such distinction. This case, therefore, must be considered as if the action were founded on a contract by the bankers, to pay all drafts presented within a reasonable time after they receive such money, so as to allow them to pass it to their customer's account. It is admitted that, where there is a breach of an express contract, nom- inal damages may be recovered. The only difference, however, between an express and an implied contract, is as to the mode of proof. An express contract is proved by direct evidence, an implied contract by circumstantial evidence, Whether the contract be proved by evidence direct or circumstantial, the legal consequences resulting from the breach of it must be the same ; one is, that wherever there is a breach of contract or any injury to the right arising out of that contract, nominal damages are recoverable. An extreme case may be put, where a party, who had sustained no inconvenience, might bring an action ; but the remedy, in that case, would be to deprive such party of costs. Taunton, J. — The defendants were guilty of a breach of duty, which duty the plaintiff at the time had a right to have performed. The jury have found that when the check was presented for pay- ment, a reasonable time had elapsed to have enabled the defend- ants to enter the 4:01. to the credit of the plaintiff, and, therefore, that they must or ought to have known that they had funds be- longing to him. That was sufficient to entitle the plaintiff to re- cover nominal damages, for he had a right to have his check paid at the time when it was presented, and the defendants were guilty of a wrong by refusing to pay it. The form of the declaration, whether it be in tort or assumpsit, makes no substantial difference, nor can it be any real ground of distinction whether the foundation of the action be an express or an implied assumpsit. There are many instances where a wrong, by which the right of a party may be injured, is a good cause of action although no actual damage may be sustained. Trespass, quare clausiim f regit, is maintainable for an entry on the land of another, though there be no real damage, because repeated acts of going over the land might be used as evidence of a title to do so, and thereby the right of the plaintiff might be injured. So an action may be maintained by a commoner for an injury done to his common, without proving actual damage.* In Wells v. Watling (2 Sir W. Black. 1233), which was an action by a commoner for sur- charging the common, the evidence was, that the defendant, in the * See note to Mellor v. Spateman, 1 Saund. 415, and Young v. Spencer, 10 B. & C. 145. MAfcZETTI v. WILLIAMS. 459 year 1777, turned on a greater number of sheep than he ought. There was no evidence that the plaintiff had turned on any sheep in that year. It was objected that the action was not maintainable, because the plaintiff, not having used the common during the period of the defendant's misfeasance, could not by possibility have sustained any damage. But it was held that the action was maintainable ; Lord C. J. De Grey said, that it was sufficient if the right be injured, whether it be exercised or not ; and Nakes, J., observed, that in the case of the dippers at Tunbridge Wells (2 Wils. 414), it was held that a probable damage was a sufficient injury on which to ground an action. Here, independently of other considerations, the credit of the plaintiff was likely to be injured by the refusal of the defend- ants to pay the check ; and as it was the duty of the defendants to pay the check when it was presented, and that duty was not per- formed, I think the plaintiff", who had a right to its being performed, is entitled to recover nominal damages. The case put in argument, of the holder of a check being refused payment, and called back within a few minutes and paid, is an extreme case, and a jury prob- ably would consider that as equivalent to instant payment. That, however, is not the present case. Here the refusal to pay was not countermanded till the following day.* Patteson, J. — I think the verdict was right. The action is in form founded in tort, but is in substance founded on a contract. The relation in which the parties stood to each other, viz. that of banker and customer, was created by their own contract, not by the general operation of law. Green -'v. Greenbank (2 Marsh. 485), shows that the circumstance of the action being in form for a tort is immaterial. if the substantial ground of it be a contract. This action, therefore, lies, if the plaintiff could have brought assumpsit, and as it is quite clear that he could have maintained assumpsit for the breach of con- tract, he may on the same ground maintain this action of tort, unless there be some distinction in this respect between an express and an implied contract. But the only distinction between the two species of contracts is as to the mode of proof. The one is proved by the express words used by the parties, the other by circumstances show- ing that the parties intended to contract. As soon as it is made out, either by direct or circumstantial evidence, that there was such a con- tract, either of the parties may maintain an action against the other without showing any actual damage. The rule for entering a nonsuit must therefore be discharged. Rule discharged. * An action on the case will lie for the possibility of a damage and injury ; as for persuading A. not to come and sell his wares at the market of B., the lord of the market may have this action. Per Curiam in Weller v. Baker, 2 Wils. 422. 460 CONTRACTS TO PAY iftONEY. THE COUKT OF COMMON PLEAS. [1854.] Eolin v. Steward (14 0. B. 595). Substantial damages recoverable against banker for dishonoring checks, he having funds to meet them. This was an action against bankers, at the suit of a customer, for dishonoring a bill and certain checks, at a time when they had in their hands sufficient assets of his to meet them. The cause was tried before Lord Campbell, C. J., at the Assizes at Norwich. The facts which appeared in evidence were as follows : The plaintiffs were merchants and shipowners carrying on business at Lynn, in the county of Norfolk. The defendant was the registered public officer of the East of England Bank, who had a branch at Lynn, of which one Wilson was the manager. The plaintiffs were customers at this branch. The state of the account between the plaintiffs and the bank, at the time of the transaction complained of, as appeared by the pass-book, which was made up to the 4th of Feb- ruary, 1854, was as follows : On the debit side, the total amount was 9,388£. 10s. Id.; on the credit side, 9,864?. 16s. 9d. — leaving a balance in the plaintiffs' favor of 476?. 6s. Id. This balance was arrived at in part by the note for 900?., which was entered " in full " in the pass-book, but which the manager (who was called as a witness on the part of the defendant) said the bank had not agreed to treat as cash. Upon this point, however, the jury found that the agreement was that the 900?. should be treated as an immediate available credit in the plaintiffs' favor. It was further proved, on the part of the defendant, that, when the pass-book was returned to the plaintiffs, on the 4th of February, they were informed by the manager that they must arrange with the bank, if they desired any more checks to be paid ; that, on the same day, they wrote to the manager a letter of remonstrance, and afterwards, on the 6th and 7th, drew upon the banks three checks, to the amount of 111?. 13s., which were presented on the 9th, and dishonored. And, on the 6th, the bank had notice that the plaintiffs' acceptance in favor of Gray, for 48?., payable at the London and Westminster Bank, would become due on the 13th. The action was brought for the non-payment of these three checks and the bill, the writ being issued on the 13th of February. There was no evidence given that the plaintiffs had sustained any special damage. ROLIN v. STEWARD. 461 His Lordship, in leaving the case to the jury, told them that they ought not to limit their verdict to nominal damages, but should give the plaintiffs such temperate damages as they should judge to be a reasonable compensation for the injury they must have sustained from the dishonor of their checks. The jury returned a verdict for the plaintiffs, damages 5001. It was objected on the part of the defendant that, inasmuch as the dishonor of the bill and the issuing of the writ took place on the same day, it was incumbent on the plaintiffs to show which was prior in point of time. The Lord Chief Justice, however, overruled the objection, observing that there was no plea to raise it. A rule nisi for a new trial on the ground of misdirection, and also on the ground that the damages were excessive, having been ob- tained, and argument had thereon, the following opinions were delivered : Cresswell, J.* — I am of opinion that, as far as the application in this case depends upon the ground of misdirection, the rule must be discharged. It appears to me that the direction of my Lord Campbell was perfectly right. He told the jury that they ought to give, not nominal, nor excessive, but reasonable and temperate dam- ages. I think the case of Marzetti v. Williams goes the full length of justifying that direction. The declaration in that case was sub- stantially the same as the declaration here. It appeared at the trial that the bankers, at the time the plaintiff's check was presented and dishonored, had ample funds of the plaintiff's in their hands to meet it, and that the non-payment arose from some inadvertence of their clerk ; and that the check was again presented on the following morn- ing, and paid. The report does not show what the direction to the jury was on the subject of damages ; but it seems to have been taken for granted that the plaintiff had sustained no actual damage. On the argument of the rule for a new trial, the counsel for the defend- ants contended that the action was in tort, and therefore not sustain- able without showing actual damage. Lord Tenterdkn, in giving judgment — after stating that the action was in reality founded on contract — says : " In this case a plaintiff might, for the breach of that contract, have declared in assumpsit. So, in Burnett v. Lynch (5 B. & C. 589 [E. C. L. E. vol. 11] ; 8 D. & E. 368 [E. C. L. E. vol. 16]), the plaintiff might have declared as for a breach of a contract. It is immaterial in such a case whether the action in form be in tort or in assumpsit. It is substantially founded on a contract ; and the plaint- * Jervis, C. J., was absent. 462 CONTRACTS TO PAY MONET. iff, though he may not have sustained a damage in fact, is entitled to recover nominal damages." His Lordship is there combating the ar- gument that tort could not be maintained without some proof of actual damage. " At the same time," he continues, " I cannot for- bear to observe that it is a discredit to a person, and therefore inju- rious in fact to have a draft refused payment for so small a sum ; for it shows that the banker had very little confidence in the customer. It is an act particularly calculated to be injurious to a person in trade." His lordship therefore assumes, as a thing not to be dis- puted, that a breach of contract of this sort must of necessity be injurious to a person in trade ; and, if so, the jury might properly take that into consideration, and give damages accordingly. And Taunton, J., in his judgment, after referring to one or two cases, says : "Here, independently of other considerations, the credit of the plaintiff was likely to be injured by the refusal of the defendants to pay the check ; and as it was the duty of the defendants to pay the check when it was presented, and that duty was not performed, I think the plaintiff, who had a right to its being performed, is enti- tled to recover nominal damages." Why ? Because the jury had a right to assume that it would be to some extent injurious ; and, if so, it was for them to say to what extent. For these reasons, I am of opinion that the direction of Lord Campbell to the jury was right. As to the amount of damages — that is a question which it is always extremely difficult for the court to deal with. But inasmuch as we are disposed to think that the jury have, under the circumstances, awarded the plaintiff a very large sum, the counsel may possibly re- lieve us from giving any ultimate opinion as to the extent to which the verdict ought to be reduced. That part of the rule, therefore, may remain open for the present. Williams, J. — I am entirely of the same opinion. As to the al- leged misdirection, I think it cannot be denied that, if one who is not a trader were to bring an action against a banker for dishonor- ing a check, at a time when he had funds of the customer's in his hands sufficient to meet it, and special damage were alleged and proved, the plaintiff would be entitled to recover substantial damages. And when it is alleged and proved that the plaintiff is a trader, I think it is equally clear that the jury, in estimating the damages, may take into their consideration the natural and necessary consequences which must result to the plaintiff from the defendant's breach of contract ; just as in the case of an action for a slander of a person in the way of his trade, or in the case of an imputation of insolvency on a trader, the action lies without proof of special damage. I think, there- BOYD v. FITT. 463 fore, the direction was right. I also agree with my brother Cress- well in thinking that the amount of the damages requires further consideration. Crowdee, J. — I am of the same opinion. The Lord Chief Justice was not bound to tell the jury that they must limit their verdict to nominal damages. I think this was peculiarly a case in which the jury were called upon to exercise their judgment as to the amount of injury the plaintiffs were likely to sustain from the conduct imputed to the bankers. But, at the same time, I cannot help feeling that the sum at which they have estimated it was very high, and that the case in that respect required reconsideration. The parties ultimately agreed that the verdict should be reduced to 200?. Rule accordingly. Consequential Damages for Dishonoring Money Order. IRISH COURT OF EXCHEQUER. [1863.] Boyd v. Fitt (14 Irish Coin. Law, K. S. 43). The defendant, under an agreement in writing, undertook to act as agent in Glasgow, for the plaintiffs, cattle and provision dealers in Dublin ; part of the agreement was, that the defendant should open a cash account at a bank in Glasgow, to the amount of 500/., to be used at any time in honoring and retiring cash orders of the plaintiffs. It was also agreed that no cash order would be drawn by the plaintiffs " without the defendant having in his hands the full amount of such orders previous to his being required to pay the same." While the defendant had cash in bank, and goods in hands, amounting to more than the 500/., upon the day on which a cash order for 250/. fell due in Glasgow, the de- fendant left that city, and the order was returned dishonored to Dublin. It having been proved that, in consequence of the cash order having been dishonored, the plaintiffs' trade in Glasgow was suspended, that their Dublin business was seriously impaired, and that they had lost the agency of an Australian firm ; the jury gave damages for loss upon each of those heads. — Held, that no portion of the damages was too remote, as the losses flowed naturally from the default of the defendant. Simble — That the rule laid down in Hadley v. Baxendale (9 Exch. 341) is too strict, and thatSmeed v. Foord (1 Ell. & Ell. 614), and Gee v. The Lancashire , that the covenant was continuing, and therefore that an action brought thereon by the plaintiff after the gate had been removed, to recover for damages occasioned by cattle coming on to his land in consequence of such removal, and judgment in such action in favor of the plaintiff, were not a bar to another action on the same covenant to recover for damages accruing after the commencement of the first suit. The proper measure of damages in an action upon such a covenant, after the removal or destruction of the gate, is not the cost of rebuilding such gate, but the actual injury sustained by the covenantee upon his land. In December, 1846, "William C. Grain sued Isaac K. Beach and lien r y M. Beach in a justice's court in Herkimer county, and de- clared upon a covenant contained in an instrument executed between the parties in the words following, viz. : " For value received of Henry M. Beach and Isaac K. Beach, and Abram Yan Horn, I, William C. Crain, do hereby grant, release and convey to the said Henry M. Beach, Isaac K. Beach, and Abram Yan Horn, and to their heirs and assigns forever, a right of way or road, through the lands of said William C. Crain, situate in the town of Warren, in the county of Herkimer, and on the late William Tunnacliff farm, and beginning in or near the corner of the garden of Joshua Thomson, on the easterly side of the road leading from the Tunnacliff house to Samuel Coleman's ; thence an easterly course, where the road now runs, and which has been occupied as a road or passway by the said Beaches and others, to where the same intersects the lands of said Beaches, and to use and occupy the same for a road or passway by the said Henry M. Beach, Isaac K. Beach, and Abram Yan Horn, their, and their several heirs and assigns forever. " It is further mentioned, stipulated and agreed by and between the said William C. Crain, and the said Henry M. Beach and Isaac K. Beach, that the said William C. Crain shall, at his own cost, erect a good substantial gate at the terminus of the road, in the corner of the 494 VARIOUS COVENANTS. garden of said Thomson above mentioned, and made to swing both ways, and may keep the said gate there during his pleasure, and all the repairs necessary to be made to said gate to be made by said Beaches, and in passing and repassing said gate said Beaches are to use common care in having said gate shut after them ; it is further agreed that said gate may be taken down and kept down during the winter season in each and every year during the time said Crain shall choose to have a gate kept there. " Witness our hands and seals, this 25th day of August, 1845. " William C. Ckaln. [l. s.] " Isaac K. Beach. [l. s.] " Henry M. Beach, [l. s.] " The declaration averred that the plaintiff, on the 25th day of Au- gust, 1845, erected a gate at the place indicated in the instrument, and in pursuance of the covenant on his part. The breach com- plained of was that the defendants did not, after the erection of the gate, and while it was the pleasure of the plaintiff to have a gate continued at that place, make the necessary repairs thereto, but, on the contrary, on the 19th of October, 1846, suffered the gate to be- come dilapidated, broken down and nearly destroyed, and to remain in that condition until the 30th of November, 184G, by means of which the plaintiff had suffered great damage by cattle, &c. The defendants pleaded the general issue, and gave notice there- with that they w T ould prove that the gate was removed about the 22d of June, 1846, and had not since that time been rebuilt ; that the defendants had refused to replace the gate after it was so removed, and that nothing had been done to it since ; that the plaintiff*, on the 29th of September, 1846, sued the defendants in a justice's court and declared upon the same covenant above set forth, alleging as a breach thereof that after the erection of the gate in question, and while it was the pleasure of the plaintiff to continue it, the defendants did not keep the same in good repair and condition, but suffered it to become dilapidated, destroyed and removed, and would not replace the same by the erection of a new one or otherwise, whereby the plaintiff was damaged by reason of cattle grazing on his land, &c. ; that the defendants pleaded in that suit the general issue, and gave notice therewith that they would prove that the gate had been wholly removed, that they had never refused to repair it, and that the plaint- iff had not kept a gate as he was bound to do ; that on the 19th of October, 1846, the said former suit was tried, and judgment rendered on the same day in the plaintiff's favor for one dollar damages, and costs of suit. BEACH v. CRAIIST. 495 On the trial of the present action, it was admitted that the parties executed the covenant above set forth ; that soon after the execution thereof the plaintiff erected a gate at the place specified therein ; that such gate was removed about the 23d of June, 1846, by some person unknown, and had never been found ; that the gatepost and two iron staples remained ; that before the 1st of September, 1846, the plaint- iff requested the defendants to replace the said gate, which they refused to do ; and that the cost of rebuilding said gate would be one dollar, besides lumber. It was also admitted that a former suit was brought, and that the proceedings and judgment therein were truly stated in the defendants' notice above set forth ; and that on the trial of such former suit the same facts were proved which were admitted on the trial of this cause. It was further admitted that this suit was brought to recover damages on account of the gate remaining unre- paired or not rebuilt from the 19th of October, 1846, to the 30th of November, 1846, as alleged in the declaration. Upon the above pleadings and admissions the cause was submitted to the justice, the parties agreeing that if he found for the plaintiff he might assess such damages as he should think just. The justice decided in favor of the defendants, and his judgment was removed by certiorari into the common pleas of Herkimer county, and was affirmed by that court. The supreme court sitting in the fifth dis- trict, on error brought, reversed the judgments of the common pleas and of the justice, and the defendants thereupon brought error into this court. Weight, J., delivered the opinion of the court. This case in- volves the consideration of two questions, either of which, if deter- mined against the defendant in error, would defeat his recovery. 1st. "Whether, under their covenant to make all necessary repairs to the gate, the duty of rebuilding or replacing it devolved in law upon the Beachs'. 2d. Whether the former suit is a good bar to the present action. [The learned judge having discussed these two questions, and answered the first in the affirmative and the second in the negative, proceeded as follows :] The plaintiffs in error insist that Crain did recover, or legally should have recovered, in the first suit, a sum sufficient to enable him to replace the gate. But this argument supposes that upon the Beachs' refusing to repair, there was a total breach of their covenant, and that they could relieve themselves from subsequent obligation by the payment of a gross sum in damages. If this were so, Crain 's recovery should also have embraced a sum sufficient to keep the gate 496 VARIOUS COVENANTS. in necessary repair, whilst it was his pleasure that it should remain : a sum that I imagine there would be insuperable difficulty to estimate. Whilst the obligation of the plaintiffs in error continued, and it was entirely practicable for them to perform, I do not well see how the value of a new gate could have legitimately formed a part of the damages to be recovered under the pleadings and evidence in the first suit. It is possible, that if Crain, for the protection of his lands, and with the view of making the default of the Beachs' the least expen- sive to them, had, prior to such suit, rebuilt or replaced the gate, he might have recovered the cost thereof in the shape of damages. But it is enough to say that no such thing was done; neither did the law devolve upon him a duty which the plaintiffs in error had covenanted to perform, and which in its performance was neither difficult or im- practicable. As a matter of fact, it is obvious from the pleadings and evidence in the first suit, and the amount of the judgment therein, that the cost of erecting a new gate was not recovered ; as a matter of law, under the circumstances of this case, it ought not to have been. I am of the opinion that the judgment of the justice and common pleas should be reversed, and that of the Supreme Court affirmed. Judgment affirmed. Breach or Covenant not to Forfeit Life Insurance Policy, COURT OF QUEENS BENCH. [1864.] Hawkins v. Coulthukst (5 B. & S. 343). A deed by which the defendant assigned a policy of insurance on his life for 1,000/. to trustees for his creditors, contained a covenant tliat he would not do any act or thing by which the policy should be forfeited. The policy was subject to a condition that if the assured should go beyond the limits of Europe without license from the directors, the policy should be void. In an action for a breach of covenant in that the defendant went beyond the limits of Europe without license from the directors: Held, that the measure of damages was the present value of the policy to be assessed by an actuary, taking into consideration the fact that the defendant covenanted to pay and should pay premiums on the policy. The declaration stated that by deed bearing date the 7th May, 1856, after reciting that the defendant had by policy of insurance dated the 20th March, 1856, effected an insurance on his life in The United Kingdom Assurance Society for the sum of 1,000Z. subject to HAWKINS v. COULTHURST. 497 the annual premium of 20Z. 2s. 6r/., and that the defendant was in- debted to the several persons named in the schedule thereto in the amounts set opposite to their respective names, and that the defend- ant had agreed to assign the policy and all moneys secured and receiv- able thereon to the plaintiffs upon the trusts thereinafter contained for securing the payment of the debts with interest, the defendant assigned to the plaintiffs the policy of assurance and the full benefit and advantage thereof, and of all and every sum of money that should become due or be recoverable upon or by virtue of it, and all the right, title, interest, property, benefit, claim and demand whatsoever both at law and in equity of him the defendant in, to or out of the same : To have, receive and take the policy, sum and sums of money and premises unto the plaintiffs, their executors, administrators and assigns. In trust, nevertheless as a pledge or security for the pay- ment of the several debts mentioned in the schedule, with interest after the rate of 51. per cent, per annum. The deed contained a covenant that the defendant had not at any time theretofore made, done, executed or suffered, and should not nor would at any time thereafter make, do, execute or suffer, any act, deed, matter or thing whatsoever by means whereof the policy of assurance thereby assigned or intended so to be was, could, should or might be impeached, charged, avoided, forfeited, vacated or encumbered, or by means whereof the plaintiffs should or might be hindered or prevented from recovering or receiving the sum or sums recoverable or to be recov- ered thereupon or by virtue thereof ; and that he would during the continuance of the security regularly pay the premiums and do all other things necessary to be paid and done for keeping the policy of insurance on foot, and would in all things conform to the rules of The United Kingdom Assurance Society so far as related to the policy to the intent that the same might be preserved in full force ; and would, within seven days after the premiums should become due, de- liver the receipt for the same to the plaintiffs ; and further, that in case he should neglect to pay the annual sum payable in respect of the policy for keeping the same on foot, or to deliver to the plaintiffs the receipt for the premium, it should be lawful for the plaintiffs to advance and pay such annual sum, and he would, on demand, repay such sum to them with interest. Averment: That the policy of as- surance was made subject to and under the condition or proviso, amongst others, that is to say, that in case the assured should go be- yond the limits of Europe without previous license from the board of directors of the assurance company, for that purpose the policy should be null and void, and all moneys paid by or on behalf of the assured 32 ±98 VARIOUS COVENANTS. on account of the insurance, should be forfeited. Breaches (first and second) : That the defendant neglected to pay the annual premiums, or deliver to the plaintiffs within seven days after the premiums be- came due, the receipts for the same ; and thereupon the plaintiffs, for the purpose of keeping the policy on foot, paid to The United King- dom Assurance Society such annual sums of money ; and although, &c, the defendant had not repaid the same to the plaintiffs. Third : That the defendant went beyond the limits of Europe, to wit, to the Colony of Canada East, without previous license from the board of directors of The United Kingdom Assurance Society for that purpose. Whereby and by reason of the premises, the policy of assurance be- came and was vacated, and became and was null and void, and the plaintiffs lost the benefit and security of the policy for the payment of the premiums and sums of money paid and advanced by them, and the policy became wholly lost as a security to the creditors for the pay- ment of their several debts. First plea : That the deed was not the defendant's deed. Issue thereon : On the trial before Siiee, J., at the sittings in London after Hilary Term, a verdict was entered for the plaintiff for 150/. 17*. on the first breach, 1,?. on the second, and Is. on the third ; with liberty to the plaintiffs to move to increase the damages on the last breach to 1,000/. or such other sum as the court might direct. In Easter Term, a rule accordingly was obtained. II. James showed cause : The proper measure of damages is the present value of the policy to be ascertained by deducting from the full amount assured, the sums which would be estimated as payable by way of premiums, if the policy had not lapsed, according to the average duration of human life. It. A. Fisher {Iluddleston with him), in support of the rule : The security having been destroyed by the voluntary and wrongful act of the assured, the trustees of the creditors are entitled to the 1,000/. [Crompton, J . : You contend that the trustees are entitled to the 1 ,000/. twenty years, it may be, before it is due. Blackburn, J. : Suppose a policy subject to a condition that if the assured die upon the seas it should be void, as in Dormay v. Borradaile, 5 C. B. 380 (E. C. L. R. vol. 57), and the assured had so died.] If this policy were in force the trustees might, by the death of the assured, be en- titled to the 1,000/. immediately ; and where the defendant maybe regarded in the light of a wrongdoer in breaking his contract, the damages are to be assessed on the highest principle. In Chitty on Contracts, p. 793 (7th ed., by Russell, cited in Mayne on the Law of WICKER v. HOPPOCK. 499 Damages, p. 10), it is said that in such cases "a greater latitude is allowed to the jury in assessing the damages ;" as in an action on a bond to resign a liviug (Lord Sondes v. Fletcher, 5 B. & A. 835 [E. C. L. R. vol. 7]). The present is analogous to an action for destroy- ing or detaining title deeds, in which the plaintiff recovers the whole value of the land (see Robertson v. Dumaresq, 2 Moo. P. C. C. N. S. 66, 95). [Crompton, J. : In the latter case, large damages are given in order to constrain the defendant to give up the title deeds. Mellob, J. : The present is more like an action upon the breach of a contract for the purchase of a reversion.] Per curiam (Crompton, Blackbuen, Mellob and Shee, JJ ). Rule absolute in the following terms : " It is ordered that the damages given on the verdict obtained in this cause on the third breach be increased by the same being assessed on the present value of the policy, taking into consideration the fact that the defendant covenanted to pay and should pay premiums on the policy, and that such damages be assessed by an actuary to be agreed on between the attorneys for both parties," &c. SUPREME COUET OF THE UNITED STATES. [1867.] Wicker v. Hoppock (G Wall. 94.) On a breach of a contract to pay, as distinguished from a contract to indemnify, the amount whioh would have been received if the contract had been kept, is the meas- ure of damages if the contract is broken. Error to the Circuit Court for Northern Illinois. Caldwell being owner of a distillery, subject to a mortgage to Hoppock, leased it to Chapin & Co. for three years ; it being agreed by the lease itself that the rent, so much a year, should be paid by Chapin & Co. directly to Caldwell the mortgagee, so as to keep down in part the interest on the mortgage. Chapin & Co., after being for about eighteen months in occupation of the distillery, and accumula- ting at it a considerable amount of personal chattels, such as are com- monly used about such a place, assigned the lease to one Wicker un- der some sort of partnership arrangement, and Wicker went in. The rent not having been paid, according to his agreement, by Chapin Ar Co. to Hoppock, the mortgagee, Hoppock applied now to Wicker to pay it, giving him to understand that unless he did pay it, suit of 500 VARIOUS COVENANTS. foreclosure would have to be brought on the mortgage, and he dis- possessed. After some negotiations, Wicker, who it seemed was de- sirous of becoming owner of the personal chattels which Chapin & Co. had left at the distillery, agreed with Hoppock that if he, IIop- pock, would sue Chapin & Co. for the amount of rent in arrear and obtain judgment and levy on the property, he, Wicker, " would bid it oif for whatever the judgment and costs might be." Hoppock did accordingly sue and obtain judgment against Chapin & Co. ; the judg- ment having been for $2,206. Chapin & Co. were indebted also to Wicker on some transactions growing out of the distillery ; and Wicker, who asserted himself to have advanced money on it, caused most of the property already mentioned as left by Chapin & Co., to be removed to Chicago. Iloppock's counsel meaning to proceed with his execution, gave notice to Wicker of the intention to sell and of the day of sale. Wicker, however, did not attend the sale, nor was any bid made in his name. And all the property of Chapin & Co. that was there and could be levied on was knocked down to Hoppock, the only bidder, for the sum of two dollars. Thereupon Hoppock brought assumpsit in the Circuit Court for Northern Illinois — the suit below — against Wicker, to recover damages for the breach of his agreement to appear at the sheriff's sale and bid off the property levied on for the full amount of the judgment for which the execu- tion issued. The court below, against requests by the defendant's counsel to charge otherwise, considered and charged : 1. That the agreement between Hoppock and Wicker was not in- valid as tending to prevent the fairness of a judicial sale, and there- fore against public policy. 2. That the measure of damages was the amount of the judgments with interest and costs. The case was now here on writ of error by Wicker, for a review on these points. Mr. Justice Swayne, in delivering the opinion of the court, after holding that the agreement in controversy was valid, proceeded as follows : It is urged that the court erred in instructing the jury, that if the plaintiff was entitled to recover, the measure of damages was the amount of the judgments, with interest and the cost. The general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation WICKER v. HOPPOCK. 501 he would have occupied if the wrong had not been committed. In some instances he is made to bear a part of the loss, in others the amount to be recovered is allowed, as a punishment and example, to exceed the limits of a mere equivalent. It has been held that, " where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach thereof, at a trifling expense or with reasonable exertions, it is his duty to do it ; and he can charge the delinquent party with such dam- ages only, as with reasonable endeavors and expense, he could not prevent " (Miller v. Mariners' Church, 7 Greenl. 56 ; Eussell v. Butterfield, 21 Wend. 304 ; Ketch ell v. Burns, 21 lb. 457 ; Taylor v. Read, 4 Paige, 571 ; United States v. Bumham, 1 Mason, 57.) If the contract in the case before us were one of indemnity, the argument of the counsel for the plaintiff in error would be conclusive. In that class of cases the obligee cannot recover until he has been ac- tually damnified, and he can recover only to the extent of the injury he has sustained up to the time of the institution of the suit. But there is a well-settled distinction between an agreement to indemnify and an agreement to pay. In the latter case, a recovery may be had as soon as there is a breach of the contract, and the measure of the dam- ages is the full amount agreed to be paid. In a note of Sergeant Williams to Cutler and others v. Southern and others, it is said that in all cases of covenants to indemnify and save harmless, the proper plea is non damnificatus, and that if there is any injury, the plaintiff must reply to it, but that this plea " cannot be pleaded, when the condition is to discharge or acquit the plaintiff, from such bond or other particular thing, for the defendant must set forth affirmatively the special manner of performance " (Sanders, 117, note 1). In Port v. Jackson (17 Johns. 239), the assignee of a lease cove- nanted to fulfill all the covenants which the lessee was bound to per- form. It was held that the agreement was substantially a covenant to pay the rent reserved, as it should accrue ; that a plea of non dam- nificatus was bad, and that the assignor could recover the amount of the rent in arrear as soon as a default occurred, without showing any injury to himself by the delinquency of the assignee. The assignee was liable also to the lessor for the same rent by privity of estate. The judgment was unanimously affirmed by the Court of Errors. In The Matter of Negus (7 Wend. 503), the covenant was to pay certain partnership debts, and to indemnify the covenantee, a retiring partner, against them. It was held that the covenant to indemnify did not impair the effect of the covenant to pay, and the same prin- 502 VARIOUS COVENANTS. ciple was applied as in the case of Port v. Jackson. We might refer to numerous other authorities to the same effects but it is deemed un- necessary. In the case before us, as in the cases referred to, the defendant made a valid agreement, in effect, to pay certain specific liabilities. They consisted of the judgments of Hoppock against Chapin & Co. If Wicker had fulfilled, the judgments would have been extinguished. As soon as Hoppock performed, the promise of Wicker became abso- lute. No provision was made for the non-performance of Wicker, and the further pursuit by Hoppock of the judgment debtors. In- demnity was not named. That idea seems not to have been present to the minds of the parties. The purpose of Hoppock obviously was to get his money without the necessity of proceeding further against Chapin & Co. than his contract required. There is no ground upon which Wicker can properly claim absolution. He removed and keeps the property he was to have bought in. The consideration for his undertaking became complete, when it was exposed to sale. The amount recovered only puts the other party where he would have been if Wicker had fulfilled, instead of violating the agreement. The rule of damages given to the jury was correct. Judgment affirmed. Breach of Covp:nant to Pay Taxes. COMMISSION OF APPEALS, NEW YORK. [1872.] Bector, &c, of Trinity Church v. Higgins (48 N. Y. 532). A covenant in a lease, that the lessee shall pa}* all taxes and assessments imposed on the premises during the term of the lease, is not a mere contract of indemnity, hut is an agreement that such taxes and assessments shall, -when levied, become the debts of the lessee. Such a covenant is broken whenever the les-ee Deglects to pay any tax or assessment duly imposed, and therefore it is not necessary that the lessor should pay such tax or assessment before commencing suit for breach of the covenant. Such a covenant is not to be construed as one for indemnity, merely because it does not state the particular tax or assessment, nor the time of payment, nor the person to whom the payment is to be made. "That is certain which is capable of being ren- dered certain." KECTOR, 4c, OF TRINITY CHURCH v. HIGGINS. 503 Tarties have the right to make all lawful contracts guarding their rights and securing the performance of their intentions, including that of contravening the rule of actual compensation for actual loss, and when the words of a contract clearly express such an intent, the courts will enforce it. Appeal from an order of the Superior Court of the city of New York, setting aside a verdict for the plaintiffs, and granting a new trial. The plaintiffs leased to the defendant certain premises in New York city for a term of twenty-one years, beginning May 1, 1S56. The lease contained a covenant that the defendant would " bear, pay and discharge all such duties, taxes, assessments and payments, of what nature or kind soever, as should, during the term aforesaid, be im- posed on, or grow due or payable out of or for or by reason of the said demised premises, or any part or parcel thereof." In March, 1859, the city authorities imposed upon the premises two assessments, for the expenses of widening and extending Reade street, which together amounted to $4,875, and constituted liens upon the property. When this action was brought, in 1863, neither of these assessments had been paid, and it did not appear that the corpo- ration of the city of New York had taken any measures to enforce their collection. On the trial, at the close of the evidence, the defendant moved that the complaint be dismissed, on the ground that, as the plaintiffs had not paid the assessments, they had failed to show that they had sustained any damage. The motion was denied, and the defendant's counsel excepted. The court then directed the jury to tind a verdict for the plaintiffs for $8,000, subject to an adjustment of the amount, and directed the exceptions to be heard in the first instance at the general term. It was stipulated that upon this appeal the argument should 1 »e confined to the question of the plaintiffs' right to bring their action before paying the assessments in question. Leonard, C. — The covenant of the defendant is affirmative and positive, not collateral or secondary, in its terms. He covenants to " bear, pay and discharge all taxes and assessments," &c, as an obli- gation or debt of his own, and the language conveys no idea that the plaintiffs are first to bear and pay, before the demand becomes obli- gatory upon the defendant for payment. The covenant is broken when the defendant neglects to pay taxes or assessments duly imposed. The defendant is not at liberty to say that it is the debt of the plaintiffs; let them first pay it, and 1 will 504 VARIOUS COVENANTS. then pay them. It is his own debt, made so by the terms of his cov- enant. The distinction between a covenant or promise whereby the de- fendant makes the amount to be paid his own debt, and one simply of indemnity whereby the covenant or promise is not broken until the amount has been paid by the plaintiff, pervades all the cases upon this subject, from the case of Jackson v. Port (17 Johns. 479), when the rule became somewhat settled and defined, until that of Gilbert v. Wiman (1 N. Y. 550). The former case has been repeatedly approved by the highest courts of this State. In the case of Gilbert v. Wiman {supra), it is said by Judge Gardiner, delivering the opinion of the court, that " the distinction is very important. * * * It is the distinction between an affirmative covenant for a specific tiling, and one of in- demnity against damage by reason of the thing specified. The ob- ject of both may be to save the covenantee from damages, but their legal consequences to the parties are essentially different." The opinion further proceeds to illustrate how a bond or other instrument, designed for indemnity only, may, by its terms, create an immediate liability for the measure of damages to which the claim subjected the obligee, although not previously paid by him. The cases of Thomas v. Allen (1 Hill, 145), and Churchill v. Hunt (3 Denio, 321), are cited with approval. The language of Justice Beardsley, in the last-mentioned case,, that upon obligations of this sort the right of action becomes com- plete on the defendant's failure to do the particular thing he agreed to perform, is commended as an obvious truth. Jackson v. Port (supra) was an action upon a covenant by the defendant, as assignee of a lease executed to the plaintiff, that the defendant would perform, fulfill and keep all the covenants, conditions, provisos, payments and agreements mentioned in the lease on the part of the plaintiff to be paid, done or performed. One question discussed was whether the plaintiff should recover nominal damages only, or the amount of rent due, it being conceded that the plaintiff had not paid any part of the rent. Justice Yan Ness said, in the Supreme Court (p. 245) : " My opinion is that the latter (the rent) is recoverable. The covenant is not that the defendant shall indemnify the plaintiff against his own covenant in the lease, or against any damages which he may sustain, but it is express and positive." Chancellor Kent said, in the same case, on appeal to the Court of Errors (17 Johns. 482) : " Where a defendant has undertaken to do an act in discharge of the plaintiff from such a bond or covenant, he RECTOR, Ac, OF TRINITY CHURCH v. IIIGGINS. 505 must show, especially, matter of performance; and this Jackson ought to have shown in this case. But where the defendant has un- dertaken to acquit and discharge the plaintiff from any damages, by reason of his bond or covenant, he then merely undertakes to indem- nify and save harmless, and the plaintiff is then bound to show his damages. * * * Port was not bound to pay the rent or have it recovered from him by due course of law, before he could resort to Jackson. He was not bound to submit himself to such previous dis- tress or inconvenience. * * * If Jackson suffers the rent to be previously collected from Port, that would surely not be keeping and performing Port's covenant, as he had engaged to do." The rule may be definitely drawn from numerous cases, that where indemnity only is expressed, damages must be sustained before a recovery can be had ; but a positive agreement to do an act which is to prevent damage to the plaintiff, will sustain an action where the defendant neglects or refuses to do such act. (Jackson v. Port, 17 Johns. 239, 479 ; In the Matter of Negus, 7 Wend. 501 ; Chace v. Hinman, 8 Id. 453 ; Mann v. Eckford's Ex'rs, 15 Id. 502, 514 ; Webb v. Pond, 19 Id. 423 ; Thomas v. Allen, 1 Hill, 145 ; Aberdeen v. Blackmar, 6 Id. 324 ; Churchill v. Hunt, 3 Demo, 321 ; Gilbert v. Wiman, 1 K Y. 550 ; Cady v. Allen, 22 Barb. 388 ; McGee v. Roen, 4 Abb. Pr. R. 8 ; Schott v. Schwartz, MSS., Com. of Appeals, Janu- ary, 1872 ; Sedgwick on Damages, 3<»3-314, marg.) I am aware that the author of the treatise on Damages, just re- ferred to, attempts to undermine, while he concedes that the rule is as it has been here stated, and as it is repeated in several cases men- tioned in the text or referred to by the subjoined notes. The author says it is somewhat in conflict with the important and fundamental rule that actual compensation will not be given for merely probable loss, and he further asserts that the argument, that the party must be held in the full amount because he has bound himself to do a particu- lar act, is of no great weight. In my humble opinion, the observation is not warranted. Parties have the just right to make all lawful contracts guarding their rights and securing the performance of their intentions, including that of contravening the rule of actual compensation for actual loss ; and when expressed in apt and suitable language, it would be flagrant wrong if courts of justice should assume to disregard it, in favor of some technical rule framed for other and wholly different circum- stances. I think it a sound and wholesome rule to construe a lawful contract according to its plainly expressed meaning, being governed 506 VARIOUS COVENANTS. also by the rules of construction which have been established by pre- cedents.* It is urged by the counsel for the defendant that the covenant should be construed to be for indemnity merely, because neither the particular tax or assessment, nor the time of payment, nor the person or corporation to whom payable, are stated in the covenant of the de- fendant. The covenant appears to be specific and certain without these particulars. That is certain which is capable of being rendered certain. The covenant is to pay all such taxes and assessments as shall be imposed during the term mentioned in the lease. Before the action was brought, the assessments for certain sums had been im- posed. Several years had elapsed, and the defendant had neglected to pay them, according to his covenant. I am unable to perceive that the objection referred to has been well taken. The learned presiding justice of the New York Superior Court suggests, in his opinion, that the plaintiffs were not personally respon- sible for the assessment, and therefore that they will not necessarily be damnified by the non-payment; and he observes, non constat, that they may not prefer to abandon the lands rather than pay the in- cumbrance, or, at all events, may not be damnified to the full amount of it. The presumption is rather violent. The premises were sub- ject to a sale for the payment of the assessment, whereby they might be lost. Assessments, although often large, as in the present case, do not amount to a confiscation, and the premises are worth more than the tax or assessment. No evidence to the contrary appears. It is notorious that the premises were largely enhanced in value by the improvements for which the assessments were imposed, but evidence of that fact was not material, and the contrary or opposite conclusion ought not to be assumed as a fact. It was doubtless to guard against the contingency of a sale of the premises by the city corporation, to obtain payment of the sums assessed, that the covenant was inserted in the lease. The sale of the premises would involve a loss of the security for the rent reserved, and probably of the reversion. It is j>erhaps superfluous to discuss the question of the liability of the plaintiffs for the amount of the assessments, but I think a different * A note to the sixth edition of Sedgwick on D. images (Note 2, p. 371), relating to the criticism of the learned commissioner, contains the following paragraph : " Perhaps it may be proper to say that the author's observations are directed to the question of the measure of the recovery simply, in case of the breach of a contract to do a particular act, or make a specified payment ; and that a criticism implying that he de- nies that parties, if they choose and if they distinctly so express themselves, may make or should rightfully be at liberty to make a "lawful" contract, providing for a compen- sation exceeding the loss sustained, is hardly justified by the language of the text." SCHELL v. PLUMB. 507 rule from that suggested by the presiding justice has been held by the Court of Appeals (The Mayor v. Colgate, 12 N. Y. 140). The de- fendant in that case was held to be personally liable for the sum as- sessed as upon a judgment, although more than six years had run be- fore the commencement of the action. The hardship and risk attending the recovery of a judgment, without prepayment of the sum by the covenantee, has been com- mented upon. This objection is not substantial. The defendant can make the payment to the city authorities even after judgment, and a court of law is vested with such equitable power that, upon applica- tion after such payment, proceedings for the collection of the judg- ment, except as to the costs, would be stayed, and, upon payment of the costs, satisfaction of the judgment would be ordered. The order of the General Term should be reversed, and the Su- perior Court be directed to adjust the amount due upon the assess- ment against the premises, and render judgment for the plaintiffs upon the verdict of the jury, with the costs of this appeal and of the action. All concur. Order reversed, and judgment in accordance with opinion. Final Breach of Continuing Covenant to Support Another ; Prospective Expense ; Competency of Northampton Tables as Evidence of the probable Duration of Life. COURT OF APPEALS, NEW YORK. [1874.] Schell v. Plumb, Executor, (55 IS". Y. 592). In the case of the total breach of an entire contract by one person to support another for life, the injured party has a right to recover an equivalent in damages, which equiv- alent is the value of the contract to that party at the time of the breach. Full and final damages, in such a case, may be recovered for the future as well as the past, and whether the contract is under seal or by paroL The Northampton tables are proper evidence to show the probable duration of a life. This was an appeal to the Court of Appeals of New York, from the judgment of the Supreme Court of the State. The action was brought to recover damages for the breach, by the defendant's testator, of a parol contract to support the plaintiff for her life. The contract was in 1859. Ten years later, the defendant'.- tes- tator turned the plaintiff away and refused to provide for her. A table of life annuities from the Northampton tables was, under the defendant's objection and exception, admitted in evidence as 508 VARIOUS COVENANTS. testimony, to show the probable duration of the plaintiff's life from the time of the breach of the contract. The following is a portion of the judge's charge at the trial : " If you find she (plaintiff) was turned out in violation of the contract, without any misconduct on her part, then a cause of action is established, and your verdict must be for the plaintiff. " And the only question remaining for your consideration would be the amount of damages which she should recover for this breach of contract. You will first consider the amount, if any, that she should recover as damages for the period prior to this time. She was turned away, if at all, about the 1st of May, 1869, three years ago, and over three years has elapsed since she left his house. How much, if anything, should she recover for those three years? " If she has been able, from the time she was turned from his house to the present time, to support herself by her own earnings, then she has sustained no damages up to this time, and nothing would be recoverable, because actual damages must be shown. But if she has not sustained herself by her own earnings, then you may allow her what difference there is between her own earnings and the value of her support from that day to this, taking into consideration the time when she was sick, the time when she was well, the labor that she performed, and the value of her services, and whether the value of her services were sufficient to more than support her or not. " A more delicate question for your determination is : How much should be allowed her as damages for her future support and maintenance ? Your verdict is all she can ever recover, no matter how long she may live. That ends the contract between these par- ties, and you will decide, considering her age, her health, her condi- tion in life, and the circumstances under which she is placed, how long she will probably live, and how much services she can probably per- form in the future, and say how much more it will cost her to support herself than she will be able to earn, and allow her to recover for such sum." The defendant's counsel excepted to the foregoing portion of the charge. Grover, J. — The contract of the testator to support the plaintiff during her life, and his violation thereof, are found by the verdict. The judge held that upon these facts the plaintiff was entitled to recover, not only the expense of her support to the commencement of the action, but the entire amount of such expense during her life. SCHELL v. PLUMB. 500 To this the defendants excepted, insisting that if the plaintiff was entitled to recover at all, she could only recover for the time prior to the commencement of the action, or, at most, to the time of the trial. Upon this question the authorities are somewhat conflicting ; hut an examination satisfies me that the rule adopted by the judge is sustained by those best considered. Fish v. Foley (6 Hill, 54) was an action upon a covenant of the defendant's intestate with the plaintiff to furnish him with sufficient water from the intestate's mill dam to carry his fulling mill and carding machine, unlimited in duration. It was held that a previous action in which damages were recovered up to the commencement of the action, was a bar to a sub- sequent action for breaches after the commencement of the former action. Nelson, C. J., says in the opinion, that the covenant stipu- lated for a continued supply of water to the plaintiff's mills, and in this respect may be appropriately styled a continuing contract ; yet, like any other entire contract, a total breach put an end to it and gave the plaintiff a right to sue for an equivalent in damages. He obtained that equivalent, or should have obtained it, in the former suit. This is in principle precisely analogous to the present case. Here the contract of the testator was to support the plaintiff during her life. That was a continuing contract during that period, but the contract was entire and a total breach put an end to it, and gave the plaintiff a right to recover an equivalent in damages, which equiva- lent was the present value of her contract. Shaffer v. Lee (8 Bar- bour, 412) was an action upon a bond conditioned to furnish the obligee and his wife with all necessary meat, etc., during both and each of their lives. It was held to be an entire contract, and that a failure to provide according to the substance and spirit of the cove- nant amounted to a total breach, and that full and final damages might be recovered for the future as well as the past. It is obvious that the right to recover a full equivalent upon a breach is the same when the contract is by parol as when it is evidenced by an instru- ment under seal. Dresser v. Dresser (35 Barb. 573) was upon a like contract by parol, and it was held that upon a breach the entire dam- ages might be recovered. The counsel for the appellants insists that such cannot be the rule, for the reason, as he insists, that it is impossible to ascertain the damages, as the duration of life is uncertain, and a further un- certainty arising from the future physical condition of the person. Guthrie v. Pugsley (12 Johns. 126), and "Wager v. Schuyler (1 Wend. 553), show that the former reason has no force. In each of these cases the value of a life estate in real estate was determined in ac- 510 VARIOUS COVENANTS. tions upon the breach of covenants of warranty, as to which the un- certainty as to the duration of life was the same as in the present case. It may be further remarked, that in actions for personal injuries the constant practice is to allow a recovery for such pro- spective damages as the jury are satisfied the party will sustain, notwithstanding the uncertainty of the duration of his life and other contingencies which may possibly affect the amount. The counsel for the appellants, cites cases where it has been held that, in actions for a continuing injury to real estate, damages can only be recovered to the commencement of the action, and that subsequent actions may be brought for damages sustained thereafter. This is the undoubted rule in this class of actions, but has no application to actions upon contracts which are entire. Cases are also cited applying the same rule in actions upon covenants to repair. Beach v. Crain (2 Com- stock, 86) was of the latter class. Ferguson v. Ferguson (Id. 360) was a case, as [appears from the facts stated, of a partial and not total breach of the contract, in which it was correctly held that a recovery could only be had for the partial breaches that had occurred. An exception was taken by the counsel to the reception of the Northampton tables as evidence tending to show the probable dura- tion of the life of the plaintiff. It may be remarked, that the ob- jection thereto was general, not based upon the want of preliminary proof showing their genuineness or want of identity with those long in use by insurance companies and courts for this purpose. These tables were used by the Supreme Court in Wager v. Schuyler (1 Wend. 553), for this very purpose, in an action of covenant, where the probable duration of life was determined by the court in this way, upon a verdict subject to the opinion of the court. That they have been long so used by the Court of Chancery in this State, and courts of equity in England, is too well known to require any cita- tion of cases. They have been adopted by a rule of the Supreme Court for this purpose (Rule 85). It would be singular indeed if, under these facts, they were to be held inadmissible, when the same fact was to be determined by a jury. They were competent in connection with the proof given as to the health, constitution and habits of the plaintiff. No complaint is made of the charge in this respect. There was no error in refusing to charge, as requested, that if the jury found that the contract was to furnish the plaintiff a home in the family of the testator and support her, then the obligation of CUTLER v. HOW. 511 the contract terminated at the death of the testator. The evidence, if proving a contract at all, showed that it was to support the plaint- iff during her life. The judgment appealed from must be affirmed, with costs. All concur. Judgment affirmed. UNCONSCIONABLE CONTRACTS. Unconscionable Contract. SUPREME COURT, NEW HAMPSHIRE. [1811.] Cutler v. How (8 Mass, 257). Where by the terms of a contract the party may, by payment at a day certain, avoid any stipulated penalty, such contract is not usurious. If the contract is unconscionable, what is fairly due only will be allowed. The action was assumpsit on a promissory note, made by the defendant, and bearing date the 17th day of April, 1809, by which he promised the plaintiff to pay and deliver to him nine hundred and twenty-eight bushels of oats by the 7th day of October then next. At the trial, which was had on the general issue, before the Chief Justice, at the sittings at the last October term in this county, the plaintiff proved the making of the note. The defense was usury and fraud in obtaining it ; and to maintain this defense, the defendant proved that the plaintiff, having a few days before the date of the note recovered judgment, and sued out execution against the de- fendant for the sum of $176 06 damages and costs, requested a deputy sheriff to take the execution, and to compel the defendant to pay the amount due in cash in four days, which the deputy sheriff refused to do. The plaintiff then told the deputy sheriff he might take the execution, if he would compel payment in ten days, which he also refused. The plaintiff then went to the defendant with the execution, to settle it with him, and proposed to discharge the execu- tion, if the defendant would give him his note for the amount due upon it, payable in oats at twenty cents the bushel by the 7th of the then next October, reckoning as part of the amount what would be the sheriff's fees for levying the execution, estimated at 512 UNCONSCIONABLE CONTRACTS. $8 54. And he further stipulated that if the defendant would give such note, he would discount upon the note five bushels of oats for each silver dollar paid thereon, if the defendant should pay one half in thirty days, and the other half in sixty days. On these terms the defendant made the note, which is the same that is declared on. On the 23d day of May next after the date of the note, the defend- ant paid one hundred silver dollars to the plaintiff, pursuant to the said agreement, which he indorsed upon the note in lieu of five hun- dred bushels of oats. The defendant further proved that oats had not been known at Hopkinton, where the parties live, to have been lower that 33 cents the bushel for many years past ; and when the note declared on was made, they were not lower than 37 cents the bushel. On these facts, the defendant insisted that the contract was not merely unconscionable, but was at law usurious and void. The Chief Justice, desirous to save the question, directed the jury that they might consider the contract as unconscionable, and, in as- sessing the damages, might value the oats at 20 cents ; and they found a verdict accordingly, including all the oats not indorsed or paid. If, upon the foregoing facts, it should be the opinion of the court that the note was in law usurious and void, the verdict was to be set aside, and a new trial granted. The motion to set aside the verdict having been argued, the court held that including the $8 54 in the note was oppressive, but from the facts, as reported, it did not appear to have been taken as usurious interest. By the terms of the contract, the defendant might, by making payment in thirty and sixty days, have avoided everything but the discharge of what was honestly due from him, for which the note was given as security. It was not then void as an usurious contract. The verdict relieved the defendant from every- thing oppressive in the contract, except the sum included as the offi- cer's fees. That sum was directed to be deducted from the amount found by the verdict, and judgment to be entered on the verdict so amended. DURST v. BURTON. 513 MARKET VALUE. Sale; Fraud of Agent; Market Value, how Shown. COURT OF APPEALS, NEW YORK. [1872.] Durst v. Burton (47 N. Y. 1G7). The rule of damages in the case of contracts of sale and delivery of an article which proves not to conform to the representation of it, is the difference between its actual va'ue at the place of delivery, and what such value would be at that place if the representation were true. The value at another time and place is not material unless it tends to prove the value at that time and place. Appeal to the Court of Appeals of New York, from a judgment in the Supreme Court of the State. The action was to recover damages for an alleged fraud in the sale of a considerable quantity of cheese. The cheese was sold by the defendant to the plaintiff, on or about the 8th of August, 1866, and represented by the owners to be of good quality. Owing to a fraud in the manufacture, by which sour curds were put in the midst of cheeses made from sweet curds, the cheese was very inferior to the quality represented. It was delivered in Frankfort, where it was made, but New York was the market to which it was to be forwarded, as provided by the contract. Such further facts as are material, appear in the opinion of the court. Church, Ch. J., in delivering the opinion of the court, after holding that the defendants, having assumed the responsibility of the business as to the public, were liable for the fraud and misconduct of their agents, proceeded as follows : The court rejected the off er of the defendants to prove, in sub- stance, that the cheese was shipped to and sold in the London mar- ket, and netted the plaintiff sixteen and a half cents a pound, and that the cheese market in New York is regulated and controlled mainly by the price of cheese in London and Liverpool. The defendants ex- cepted to this ruling, and now claim that it was error. The rule of damages in such cases is the difference between the value of the article, if sound, or as represented, and the value as it was at the time and place of delivery (12 N. Y. 40). The place of delivery was 33 514 MARKET VALUE. Frankfort, but by the terras of the contract, New York was the mar- ket to which it was to be forwarded, and where it was to be sold, and the market price there may be regarded as within the contemplation of the parties. The damages accrued immediately, as fixed by the rule above stated. It follows, that the value at another place or at another time would not be material unless it tended to prove the value at that time and place. A reasonable range of time is sometimes allowed in which to average the price, so that sudden, unnatural and spasmodic values, not indicating the real state of the market, may not prevail (3 Hill, 333). So the price at other places may be shown, under some circum- stances, for the purpose of proving the value at the designated place (22 Barb. 154). And to some extent this class of evidence is within the discretion of the court. Where the evidence is clear and explicit at the place of delivery, the value at other places is not strictly com- petent (8 Wend. 435). Nor was it material whether the plaintiff ac- tually realized more or less because the result of his final disposition of it might be produced by contingencies entirely foreign to the prin- ciple upon which the rule rests. The only possible relevancy of the proposed proof was its legitimate bearing upon the value of the cheese in New York on the eleventh day of August, and a majority of the court think it was properly rejected for the reason : First, that there was explicit proof of the value of the cheese in New York. Second, the evidence offered tended not to prove the value at the time, but a considerable period afterwards. Third, the offer should have negatived any material change in the price up to the time of the sale in London, and should have embraced the circum- stances if they existed, which, presumptively, at least, would repel the idea of any claim for reclamation. We have examined the other exceptions and do not think that any of them were well taken ; but as they were not relied upon on the argument, it is unnecessary to discuss them. The judgment must be affirmed with costs. All the judges concurred in the foregoing opinion ; Allen, J.,, who had been of counsel in the case, not voting. Judgment affirmed. KOUNTZ v. KIRKPATRICK. 515 Sale of Chattels ; jSTox-Deliyery ; Artificial Market Yalue. SUPREME COURT, PENNSYLVANIA. 1872 ] Kountz v. Kirkpatrick (72 Perm. St. [22 P. F. Smith], 376). In the sale of chattels the general rule i9, that the measure of damages for non-delivery is the difference between the contract price and the price at the time and place of delivery. When the market price is unnaturally inflated by unlawful means, it is not the true means of ascertaining the measure of damages for non-delivery. The question of damages by a market value is for the jury, who may determine from the price before and after the day of delivery, and from other sources, the actual market value. November 14th, 1872. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Allegheny County : No. 86, to October Terra, 1872. This was an action of assumpsit, brought August 30th, 1870, by Joseph Kirkpatrick and James Lyons, trading as Kirkpatrick ct Lyons, to the use of Frederick Fisher and others, trading as Fisher Brothers, against William J. Kountz. The claim was upon the following memorandum set out in the plaintiff's affidavit : " Pittsburg, June 7th, 1869. " Sold to Kirkpatrick & Lyons two thousand barrels good, green merchantable crude petroleum, forty gallons to the barrel, gravity 40 to 46 degrees, at a temperature of 60° Fahrenheit, to be deliv- ered — seller's option — at any time from this date till December 31st, 1869, in bulk cars or bulk boats, at Cosmos Oil Works. If delivered by Allegheny Yalley or Western Pennsylvania Railroad, the buyer may designate any other point of delivery on line of said roads. If delivered by water, then at any good landing in or near Pittsburg buyer may direct. Payment to be made cash on delivery at the rate of thirteen and one-half cents per gallon, on lots as gauged and delivered. "W. J. Kocntz, Seller." The affidavit further set out : " On the 31st day of December, 18G9, the said defendant was duly notified that the vendees of said oil were ready and willing to 516 MARKET VALUE. receive and pay for the same according to the terms of the contract, and demand was made of the defendant that he deliver the said oil according to the provisions of said contract ; nevertheless the de- fendant, on the day and year last aforesaid, refused to deliver said oil, and never did deliver the same, or any part thereof, although the vendees were ready and willing to receive and pay for the same according to the provisions of said contract. " On the 31st of December, 1869, the market price of oil of the quality specified in said contract, and at the place of delivery therein mentioned, was 18 cents per gallon ; therefore, by reason of his (de- fendant's) failure to perform his said contract, the vendees of said oil, on the 31st day of December, 1869, sustained and suffered loss and damage to the amount of $3,600. " Frederick Fisher." On the 14th of September, 1870, judgment was taken by default against the defendant for $3,753. On the 22d of September, 1870, a rule was granted on the plaintiffs to show cause why the judgment should not be opened, and the defendant let into a defense ; the rule was made absolute on the condition that the defendant, within five days, file " a full and specific affidavit of defense, which shall be subject to the same rules of court as if the same had been filed before a judgment entered." The affidavit of defense was as follows : " That the said plaintiffs, Kirkpatrick & Lyons, between the 7th of June, 1869, and the 31st of December, 1869, with others, entered into a combination to purchase oil here in the county of Allegheny, as well as in the oil-producing districts of Pennsylvania and West Yirginia, and keep it out of the market and thereby create a scarcity, and consequently enhance the price, for the purpose of preventing this affiant (and others who had entered into like writings of the character of the one on which this suit is brought) from fulfilling his engagement, set forth in said writing, so that they might reap great gains and profits by receiving the difference between the price promised your affiant and the advanced price brought on as afore- said, and in furtherance of said illegal object, the said plaintiffs, with others, their confederates, used their influence and efforts to prevent oil from being brought to the city of Pittsburg, from the oil-producing districts for the purpose aforesaid ; and further, said plaintiffs, with their confederates, for the purpose of preventing this affiant (and others who had entered into like writings with the one sued on) from fulfilling his said engagement ; and from having oil shipped on the Allegheny Valley Railroad to the city of Pittsburg from KOUNTZ v. KIRKPATRICK. 517 oil-producing districts in the State of Pennsylvania, monopolized the freight cars of said road (the river, most of the time, being too low to allow oil to be transported by water from the oil regions in the State of Pennsylvania to said city of Pittsburg), and rendered it impossible for this affiant to fulfill his said engagement, as well as others of a like kind, and said illegal proceedings, actions and doings of the said plaintiffs (and others, their confederates), they, the said plaintiffs, and others, their confederates, did succeed in raising the price of oil between the aforesaid two dates from 13£ cents to 18 cents per gallon, thereby to a great extent contributing purposely to prevent this affiant from being ready and prepared to deliver the 2,000 barrels of oil, mentioned in said writing, between the dates aforesaid ; and this affiant would further state (and is prepared to prove), that the fair market price of oil (such as described in said contract sued on), on the 31st of December, 1869, was considerably less than 18 cents per gallon. This affiant expects to be able to prove the whole of the foregoing facts upon the trial of this case, and this affiant would further aver, and expect to prove on the trial of this case, that he would have fulfilled his contract had it not been for the doings and actions of said plaintiffs (and others, their con- federates), above set forth ; and he would further state, that as soon as the market was relieved from the above combination, to wit, within a few days after the 31st of December, 1869, he procured and tendered oil in fulfillment of his said contract ; and he would further aver that the object and intention of the above combination on part of the said plaintiffs (and others, their confederates) were to thwart and prevent him, this defendant, from performing and ful- filling his said contract within the time fixed in the same. " W. J. Kountz." On the trial, January 9th, 1872, before Stekrett, P. J., the plaintiffs gave in evidence the record of the previous proceedings in this case. The defendant then gave evidence tending to show that the legal plaintiffs, with a large number of other persons, holding contracts similar to that in suit for the delivery of oil, entered into a com- bination to raise the price by buying up oil, holding it until after the last of the year, for the purpose of compelling the defendant to pay large differences for non-delivery. He gave other evidence tending to sustain the allegations of his affidavit of defense, especially to show that the price of oil when the delivery was to have been made, except that it had been unnat- urally raised by the combination, was much less than 18 cents. His 518 MARKET VALUE. evidence, amongst other things, was that this combination had been formed in the early part of October, 1869. The plaintiffs, in rebuttal, gave evidence, under objection and exception, that Fisher Brothers had held the contract by assignment from Kirkpatrick & Lyons since June 24th, 1869, and had given defendant notice within two weeks afterwards ; the defendant said it was all right. The contract had been originally made by them for Fisher Brothers, who had no connection with the combina- tion, nor had they any anticipation of such combination when the assignment was made to them. There was a conflict in the evi- dence as to Fisher Brothers having given the defendant notice of the transfer. Various requests to charge were made by the defendant's coun- sel and passed on by the presiding judge, which are not material here. The opinion of the court was delivered January 6th, 1873, by Agnew, J. After holding that certain errors assigned by the defendant were not well assigned, the learned judge proceeded as follows : On the 7th of June, 1S69, Kountz sold to Kirkpatrick & Lyons, two thousand barrels of crude petroleum, to be delivered at his op- tion, at any time from the date, until the 31st of December, 1869, for cash on delivery, at thirteen and a half cents a gallon. On the 21th of June, 1869, Kirkpatrick and Lyons assigned this contract to Fisher & Brothers. Kountz failed to deliver the oil. He defends on the ground that Kirkpatrick & Lyons, and others holding like contracts for delivery of oil, entered into a combination to raise the price, by buying up large quantities of oil, and holding it till the ex- piration of the year 1869, and thus to compel the sellers of oil on option contracts, to pay a heavy difference for non-delivery. Fisher & Brothers, the assignees of Kountz's contracts, were not in the combination, and the principal questions are whether they are affected by the acts of Kirkpatrick & Lyons, subsequent to the assignment ; whether notice of the assignment to Kountz was necessary to protect them, and what is the true measure of dam- ages. The learned judge, after answering the first two of these ques- tions in the negative, continued as follows : The next question is upon the proper measure of damages. In the sale of chattels, the general rule is, that the measure is the dif- ference between the contract price and the market value of the article at the time and place of delivery under the contract. It is unnecessary to cite authority for this well established rule, but as KOUNTZ v. KIRKPATRICK. 519 this case raises a novel and extraordinary question between the true market value of the article, and a stimulated market price, created by artificial and fraudulent practices, it is necessary to fix the true meaning of the rule itself, before we can approach the real question. Ordinarily, when an article of sale is in the market, and has a market value, there is no difference between its value and the market price, and the law adopts the latter as the proper evidence of the value. This is not, however, because value and price are really convertible terms, but only because they are ordinarily so in a fair market. The primary meaning of value is worth, and this worth is made up of the useful or estimable qualities of the thing (See Webster's and Worcester's Dictionaries). Price, on the other hand, is the sum in money or other equivalent set upon an article by a seller, which he demands for it (Id. Ibid.). Value and price are, therefore, not syno- nymes, or the necessary equivalents of each other, though commonly, market value and market price are legal equivalents. When we ex- amine the authorities, we find also that the most accurate writers use the phrase market value, not market price. Mr. Sedgwick, in his standard work on the measure of damages, 4th ed. p. 260, says : " Where contracts for the value of chattels are broken by the ven- dor's failing to deliver property according to the terms of the bar- gain, it seems to be well settled, as a general rule, both in England and the United States, that the measure of damages is the difference between the contract price and the market value of the article at the time it should be delivered upon the ground ; that this is the plaint- iff's real loss, and that with this sum, he can go into the market and supply himself with the same article from another vendor." Judge Rogers uses the same term in Smethurst v. Woolston (5 W. & S. 109) : " The value of the article at or about the time it is to be de- livered, is the measure of damages in a suit by the vendee against the vendor for a breach of the contract." So said C. J. Tilghman, in Girard v. Taggart (5 S. & R. 32). Judge Sergeant, also, in O'Con- ner v. Forster (10 Watts, 422), and in Mott v. Danforth (6 Id. 308). But as even accurate writers do not always use words in a precise sense, it would be unsatisfactory to rely on the common use of a word only, in making a nice distinction between terms. It is there- fore proper to inquire into the true legal idea of damages in order to determine the proper definition of the term value. Except in those cases where oppression, fraud, malice or negligence enter into the question, " the declared object " says Mr. Sedgwick, in his work on Damages, " is to give compensation to the party injured for the actual loss sustained" (1th ed. pp. 28, 29; also, pp. 36, 37). Among the 520 MARKET VALUE. many authorities he gives, he quotes the language of C. J. Shippen,, in Bussy v. Donaldson (4 Dallas, 206) : " As to the assessment of damages " said he, " it is a rational and legal principle, that the compensation should be equivalent to the injury." " The rule," said C. J. Gibson, " is to give actual compensation, by graduating the amount of the damages exactly to the extent of the loss." " The measure is the actual, not the speculative loss " (Forsyth v. Palmer, 2 Harris, 97). Thus, compensation being the true purpose of the law, it is obvious that the means employed, in other words, the evidence to ascertain compensation, must be such as truly reaches, this end. It is equally obvious, when we consider its true nature, that as evidence, the market price of an article is only a means of arriving at compensation ; it is not itself the value of the article, but is the evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. It stands as a criterion of value, because it is a common test of the ability to purchase the thing. But to assert that the price asked in the market for an arti- cle is the true and only test of value, is to abandon the proper object of damages, viz., compensation, in all those cases where the market evidently does not afford the true measure of value. This thought is well expressed by Lewis, C. J., in Bank of Montgomery v. Reese (2 Casey, 146). " The paramount rule in assessing damages " he says, " is that every person unjustly deprived of his rights, should at least be fully compensated for the injury he sustained. "Where arti- cles have a determinate value and an unlimited production, the gen- eral rule is to give their value at the time the owner was deprived of them, with interest to the time of verdict. This rule has been adopted because of its convenience, and because it in general answers the object of the law, which is to compensate for the injury. In relation to such articles, the supply usually keeps pace with the de- mand, and the fluctuations in the value are so inconsiderable as to justify the courts in disregarding them for the sake of convenience and uniformity. In these cases, the reason why the value at the time of conversion, with interest, generally reaches the justice of the case, is that when the owner is deprived of the articles, he may pur- chase others at that price. But it is manifest that this would not remunerate him where the article could not be obtained elsewhere, or where from restrictions on its production, or other causes, its price is necessarily subject to considerable fluctuation." This shows that the market price is not an invariable standard, and that the con- verse of the case then before Judge Lewis is equally true — that is to KOUNTZ v. KIRKPATRICK. 521 say — when the market price is unnaturally inflated by unlawful and fraudulent practices, it cannot be the true means of ascertaining what is just compensation. It is as unjust to the seller to give the purchaser more than just compensation, as it is to the purchaser, to give him less. Right upon this point we have the language of this court in the case of a refusal by a purchaser to accept (Andrews v. Hoover, 8 Watts, 240). It is said : " The jury is bound by a meas- ure of damages where there is one, but not always by a particular means for its ascertainment. Now the measure in a case like the present, is the difference between the price contracted to be paid, and the value of the thing when it ought to have been accepted ; and though a re-sale is a convenient and often satisfactory means, it does not follow that it is, nor was it said in Girard v. Taggert, to be the only one. On the contrary, the propriety of the direction there, that the jury were not bound by it, if they could find another more in accordance with the justice of the case, seems to have been ad- mitted ; the very thing complained of here." Judge Strong took the same view in Trout v. Kennedy (11 Wright, 393). That was the case of a trespasser, and the jury had been told that the plaintiff was entitled to the just and full value of the property, and if at the time of the trespass the market was depressed, too much importance was not to be given to that fact. " If " says Judge Strong, " at any particular time, there be no market demand for an article, it is not of course on that account of no value. What a thing will bring in the market at a given time, is perhaps the measure of its value then ; but it is not the only one." These cases plainly teach that value and market price are not always convertible terms ; and certainly there can be no difference injustice or law, in an unnatural depres- sion and an unnatural exaltation in the market price — neither is the true and only measure of value. These general principles in the doctrine of damages and authori- ties, prove that an inflated speculative market price, not the result of natural causes, but of artificial means to stimulate prices by un- lawful combinations for the purposes of gain, cannot be a legitimate means of estimating just compensation. It gives to the purchaser more than he ought to have, and compels the seller to pay more than he ought to give, and it is therefore not a just criterion. There is a case in our own State, bearing strongly on this point (Blydenburgli et al. v. Welsh et al. Baldwin's Rep. 331). Judge Baldwin had charged the jury in these words : " If you are satisfied from the evi- dence, that there was on that day a fixed price in the market, you must be governed by it ; if the evidence is doubtful as to the price, 522 MARKET VALUE. and witnesses vary in their statements, you must adopt that which you think best accords with the proof in the case." Jn granting a new trial, Judge IIopkinson said: "It is the price — the market price — of the article that is to furnish the measure of damages. Now what is the price of a thing, particularly the market price ? We consider it to be the value, the rate at which the thing is sold. To make a market, there must be buying and selling, purchase and sale. If the owner of an article holds it at a price which nobody will give for it, can that be said to be its market value ? Men some- times put fantastical prices upon their property. For reasons per- sonal and peculiar, they may rate it much above what any one would give for it. Is that the value ? Further, the holders of an article, flour, for instance, under a false rumor, which, if true, would aug- ment its value, may suspend their sales, or put a price upon it, not according to its value in the actual state of the market, but accord- ing to what in their opinion will be its market price or value, pro- vided the rumor shall prove to be true. In such a case, it is clear, that the asking price is not the worth of the thing on the given day, but what it is supposed it will be worth at a future day, if the con- tingency shall happen which is to give it this additional value. To take such a price as the rule of damages, is to make the defendant pay what in truth never was the value of the article, and to give to the plaintiff a profit by a breach of the contract, which he never would have made by its performance." The case of suspended sales upon a rumor tending to enhance the price, put by Judge Hopkinson, bears no comparison to the case alleged here, where a combination is intentionally formed to buy up oil, hold it till the year is out, and thus force the market price up purposely to affect existing contracts, and compel the sellers to pay heavy damages for non-fulfillment of their bargains. In the same case, Judge Hopkinson further said : " We did not intend that they (the jury) should go out of the limits of the market price, nor to take as that price whatever the holders of the coffee might choose to ask for it ; substituting a fictitious, unreal value, which nobody would give, for that at which the article might be bought or sold." " In determining," says an eminent writer on contracts, " what is the market value of property at any particular time, the jury may sometimes take a wide range ; for this is not always ascertainable by precise facts, but must sometimes rest on opinion ; and it would seem that neither party ought to gain or lose by a mere fancy price, ■or an inflated and accidental value, suddenly put in force by some KOUNTZ v. KIRKPATRICK. 523 speculative movement, and as suddenly passing away. The question of damages by a market value is peculiarly one for a jury" (Parsons on Contracts, vol. 2, p. 482, ed. 1857). In Smith v. Griffith (3 Hill, 337-8), C. J. Nelson said: "I admit that a mere speculating price of the article, got up by the contrivance of a few interested dealers, is not the true test. The law, in re^ulatins: the measure of damages, contemplates a range of the entire market, and the average of prices, as thus found, running through a reasonable period of time. Neither a sudden and transient inflation, nor a depression of prices, should control the question. These are often accidental, promoted by inter- ested and illegitimate combinations, for temporary, special and self- ish objects, independent of the objects of lawful commerce ; a forced and violent perversion of the laws of trade, not within the contem- plation of the regular dealer, and not deserving to be regarded as a proper basis upon which to determine the value, when the fact be- comes material in the administration of justice." I may close these sayings of eminent jurists with the language of Chief Justice Gibson, upon stock-jobbing contracts (Wilson v. Davis, 5 W. & S. 523). " To have stipulated," says he, "for a right to recruit on separate account, would have given to the agreement an appearance of trick, like those of stock-jobbing contracts, to deliver a given number of shares at a certain day, in which the seller's performance had been forestalled by what is called cornering ; in other words, buying up all the floating shares in the market. These contracts, like other stock-jobbing transactions, in which parties deal upon honor, are sel- dom subjected to the test of judicial experiment, but they would necessarily be declared fraudulent." Without adding more, I think it is conclusively shown that what is called the market price, or the quotations of the articles for a given day, is not always the only evidence of actual value, but that the true value may be drawn from other sources, when it is shown that the price for the particular day had been unnaturally inflated. It remains only to ascertain whether the defendant gave such evi- dence as to require the court to submit to the jury to ascertain and determine the fair market value of crude oil per gallon, on the 31st of December, 1869, as demanded by the defendant in his fifteenth point. There was evidence from which the jury might have adduced the following facts, viz. : That in the month of October, 1869, a number of persons of large capital, and among them Kirkpatrick & Lyons, combined together to purchase crude oil, and hold it until the close of the year 1869 ; that these persons were the holders, as 521 MARKET VALUE. purchasers, of a large number of sellers' option contracts, similar to the one in suit ; that they bought oil largely, and determined to hold it from the market until the year 1870 before selling; that oil, in consequence of this combination, ran up in price, in the face of an increased supply, until the 31st day of December, 1869, reaching the price of seventeen to eighteen cents per gallon, and then sud- denly dropped as soon as the year closed. Major Frew, one of the number, says : It was our purpose to take the oil, pay for it, and keep it until January 1st, 1870, otherwise we would have been head- ing the market on ourselves. Mr. Long says, that on the 3d of Jan- uary, 1870, he sold oil to Fisher & Brother (the plaintiffs) at thirteen cents a gallon, and could find no other purchaser at that price. Sev- eral witnesses, dealers in oil, testify that they knew of no natural cause to create such a rise in price, or to make the difference in price from December to January. It was testified, on the contrary, that the winter production of oil was greater in December, 1869, than in former years, by several thousand barrels per day, a fact tending to reduce the price when not sustained by other means. Mr. Benn says he knew no cause for the sudden fall in price on the 1st Janu- ary, 1870, except that the so-called combination ceased to buy at the last of December, 1869. It was, therefore, a fair question for the jury to determine whether the price which was demanded for oil on the last day of December, 1869, was not a fictitious, unnatural, inflated and temporary price, the result of a combination to " bull the mar- ket," as it is termed, and to compel sellers to pay a false and swollen price in order to fulfill their contracts. If so, then such price was not a fair test of the value of the oil, and the jury would be at liberty to determine, from the prices before and after the day, and from other sources of information, the actual market value of the oil on the 31st of December, 1869. Any other course would be unjust and injurious to fair dealers, and would enable gamblers in the article to avail themselves of their own wrong, and to wrest from honest dealers the fruits of their business. It cannot be possible that a " corner," such as took place a few weeks since in the market for the stock of a western railroad company, where shares, worth in the ordinary market about sixty dollars each, were by the secret operations of two or three large capital- ists, forced up in a few days to a price over two hundred dollars a share, can be a lawful measure of damages. Men are not to be stripped of their estates by such cruel and wrongful practices ; and BLANEY v. HENDRICKS. 525 courts of justice cannot so wholly ignore justice as to assume such a false standard of compensation. Shaeswood and Williams, JJ., dissented on the question of the measure of damages. Note. — Where the owner of goods shipped them consigned to another, giving the consignee the option to take them at a certain price or return them, that price •with interest from the day when the goods should have reached their destination, and not their market value at that place, furnishes the measure of damages in an action against the carrier for his negligent failure to deliver the goods (Magnin v. Dinsmore, 62 N. Y. 35). Undoubtedly the stipulated price in such a case would properly limit the re- covery. But it is presumed that the learned judge, who delivered the opinion of the court in Magnin v. Dinsmore, assumed that the market price exceeded that fixed between the consignor and consignee. The shipper's instruction as to the price for which he would sell, could not justify a recovery against the carrier leyond the market value. Where goods of a retail dealer, are wrongfully carried away, he is entitled to recover their retail value (Wehle v. Butler, 01 N. Y. 245). INTEREST. Interest on Accounts Stated and Liquidated Sums. COURTS OF WESTMINSTER HALL. [1751] Blaney, Assignee of Bradley v. Hendricks (2 Wm. Bl. 700). Interest is due on an account stated for money lent. Whitaker moved to set aside a writ of inquiry, because the jury had allowed a sum of 811. 6s. 8d. as interest up to the time of the in- quisition, on a balance of 3,597£. due on an account stated between the bankrupt and the defendants. And cited Pinock and Willet (1 Bames, 151), that no interest could be allowed on a writ of inquiry for money due for goods sold and delivered. Burland, for the plaintiff, alleged that it is a settled rule that every liquidated sum due from one man to another, carries interest, both in law and equity, as much as a note of hand payable at a certain time (Barrel and Parker, Cane. July 22 d, 1751, 2 Yes. 363) ; balance of a stated account will carry interest between merchants ; by Lord IIard- wicke, Chancellor. Eobinson and Bland, in the Kings Bench (Burr. 1077) ; money lent carries interest to the judgment : And this bal- ance appears, from the defendant's own affidavit, to be for money lent and advanced. 526 WARRANTIES. Gould, Blackstone, and Napes, JJ. (absent C. J. De Grey), thought the interest was properly allowed : interest is due on all liqui- dated sums from the instant the principal becomes due and payable; * therefore, on all bills of exchange, notes of hand payable at a day cer- tain (or after demand, if payable on demand), and on money lent (Bunb. 119, Vemon and Cholmondeley). Goods sold and delivered are usually upon credit of three months, six months, or indefinite. Nor is the sum liquidated till the jury find the value. Rule discharged. Note. — See Robinson v. Bland (2 Burr. 1077), in which it was settled that in- terest on a liquidated sum may be computed up to the time of entering judg- ment. In the United States interest is recoverable on the value of converted, lost or destroyed property (Andrews v. Durant, 18 N. Y. 496; Parrott v. Knickerbocker Ice Co. 46 N. Y. 361 ; Schwerin v. McKee, 51 N. Y. 180). WARRANTIES. Personal Property Bought with Warranty and Be-sold with Warranty ; Costs of Defending Action for Breach of Yen- dee's Warranty : Improvident Defense. COURT OF COMMON PLEAS. [1839.] Wrightup v. Chamberlain (7 Scott, 598). The plaintiff purchased a horse of the defendant, with a warranty of soundness, and sold it with a like warranty to J. S. ; some months afterwards J. S. returned the horse, finding it to have been unsound at the time of the sale; the plaintiff declining to * Note by Sir Wm. Blackstone. — " These words must be taken in a restricted sense, and I must understand by them something more than an account stated. If an account be stated, and the nature of the transaction be such as to afford evidence of an agreement for interest, as if it be shown to have been allowed before upon a prior settlement of accounts, then it may be warranted. But if it be understood as extending the claim of interest upon money lent generally, without any certain time of payment, or any agreement for interest expresse'd or to be implied, I shall expect a body of authorities more strong and consistent than has yet been bropght forward, before I can venture to say that it is allowable by law. Hitherto it has only been allowed upon written contracts for the payment of money at a given day, and upon contracts, express or implied, for the payment of interest." Per Lord Ellenborough in Calton v. Bragg (15 East. 223), where it was ruled that interest Is not allowable by law upon money lent generally. The statement of the principal case in 3 Wils. 206 is, that " upon an account stated between merchant and merchant, it shall carry interest from the time it was liquidated." WEIGIITUP t. CHAMBERLAIN. 527 take it back, J. S. brought an action on the warranty ; the plaintiff gave the defend- ant notice that the horse was returned to him as unsound, and an action brought; the defendant disregarding this notice, the plaintiff defended the action brought against him by J. S., and failed. In an action against the defendant on his war- ranty — the jury finding that the plaintiff might, by a reasonable examination of the horse, have discovered that it was unsound at the time he sold it to J. fe : II Id, that the plaintiff was not entitled to recover as special damage the costs incurred by him in the defense of the former action, such defense being, under the circum- stances, rash and improvident. This was an action upon the warranty of a horse. The declara- tion assigned for special damage that the plaintiff, confiding in the defendant's warranty, re-sold the horse to one Jolly with a warranty ; and that, the horse proving unsound, Jolly sued the plaintiff, and recovered 391., the price of the horse, and 96/., the costs of that action. The defendant paid into court 19/., the price for which lie had originally sold the horse to the plaintiff. The cause was tried before Parke, B., at the JS"orwich Spring Assizes, 1838. The facts that appeared in evidence were as fol- lows : — On the 3d September, 1836, the horse in cmestion was sold by the defendant to the plaintiff for 19/., with a warranty of sound- ness. On the 21th of the same month, the plaintiff sold it to Jolly for 39/., with a like warranty. On the 17th July following, Jolly offered to return the horse to the plaintiff, alleging that it was un- sound at the time of the sale. The plaintiff refusing to take it back, Jolly, on the 18th August, commenced an action against him on his warranty. The plaintiff afterwards took the horse back, and gave the defendant notice that the horse had been returned and the action brought, and that he should hold him responsible for the result. The defendant refusing to take back the horse, the plaintiff defended Jolly's action, which resulted in a verdict and judgment against him for 135/. — 39/., the price of the horse, and 96/. for Jolly's costs : which sum, and 30/., the costs of his defense to that action, the plaintiff now claimed to be entitled to recover from the present defendant. There was no direct evidence that the horse was unsound at the time of the respective sales, by the defendant to the plaintiff, and by the plaintiff to Jolly: but it was proved, that, when the horse was returned by the latter, upon a strict examina- tion, a defect of long standing was discoverable. On the part of the defendant, it was contended, that, inasmuch as the plaintiff might, by examination of the horse, have discovered the unsoundness, his defense of Jolly's action was heedless and im- provident, and therefore the present defendant was not chargeable therewith. 528 WARRANTIES. On the other hand, it was submitted that the defendant's refusal to take back the horse after it had been returned by Jolly, left the plaintiff no option, but compelled him to defend (Lewis v. Peake [or Peat], 7 Taunt. 153, 2 Marsh. 431 ; Neale v. Wyllie, 5 D. & R. 442, 3 B. & C. 533 ; Smith v. Compton, 3 B. & Ad. 407). Under the direction of the learned judge, a verdict was found for the defendant, with liberty to the plaintiff to move to enter a verdict for the sum claimed, if the court should be of opinion that the special damage was recoverable. By agreement it was to be taken that the jury had found — first, that the plaintiff had only agreed to take the horse back from Jolly, on condition that the defendant would take it back from him — secondly, that the plaintiff might, before he defended Jolly's action, have ascertained, by a rea- sonable examination of the horse, that it was not sound — thirdly, that the damages did not exceed 191., unless the plaintiff was en- titled to recover the damages and costs recovered against him by Jolly, or his own costs of the defense to that action. A rule nisi was obtained and argued accordingly. Tindal, C. J. — The only question in this case was, whether or not the plaintiff was entitled to recover as special damage the costs incurred in the defense of the action brought against him by Jolly for the breach of his warranty. The real point at the trial was, whether or not the plaintiff might have known, by a reasonable ex- amination of the horse, before he defended the action, that the ani- mal was unsound at the time he sold it to Jolly ; for, if so, the de- fense was a rash one, and the plaintiff not entitled to charge the defendant with the costs of such improvident defense. Mr. Baron Parke reports to us that the -plaintiff might by a reasonable exam- ination, have discovered the unsoundness, and that the 191. paid into court was a sufficient sum to cover the plaintiff's demand ; and so the jury have found. ¥e therefore think the rule must be dis- charged. Rule discharged. Note. — The grantee in an action on a covenant of warranty, express as in a deed, or implied as on a sale of personal property, is entitled to recover, as part of the damages sustained by reason of the failure of the title conveyed, the rea- sonable and necessary expenses incurred in a proper course of legal proceedings for the ascertainment and protection of his rights under the purchase, as well as a reasonable compensation for the trouble and expenses to which he may have been put in extinguishing a paramount title. And there is no sound distinction between the case in which the expenses are incurred in the nece-sary and proper prosecution of a suit for such ascertainment and protection of the purchaser's rights, and the case of a defense made for the same purpose (Kingsbury v. Smith, 13 N. H. 109). CLARE v. MAYNARD. 529 Bkeach of Warranty ; Special Damage. THE COURT OF KINGS BENCH. [1837] Clare v. Maynard (6 Ad. & E. 519). In an action for breach of warranty of a horse, the plaintiff cannot recover as special damage the loss of a bargain for resale of the horse, though the contract of resale, at a profit, had been actually completed before the unsoundness was discovered. The plaintiff having bought at 45/., and resold at 55/., but having been obliged to take back the horse in consequence of the unsoundness, and ultimately to sell him at 17/. Qumre, whether the measure of damages, in an action brought as above, be the difference between the price given by the plaintiff and that ultimately obtained by him, or be- tween the last-mentioned price and the actual value of the horse if he had been sound at the time of the last resale ; and, whether the advance of price on the first resale by the plaintiff may be left to the jury as a measure of such value. Qucere, also, whether the plaintiff may recover in respect of such advance of price, as the produce of his care and expense bestowed upon the horse between the times of the purchase and of the first resale. He cannot so recover on a declaration alleging merely that he bought the horse at 45/ , sold him at 55/., and, by reason of the un- soundness, was obliged to refund the 55/. and resell the horse at 17/., whereby he lost the profit which would have accrued to him from selling the horse if sound. Assumpsit on the warranty of a horse bought by plaintiff of de- fendant. • The declaration, after stating the warranty, purchase of the horse by plaintiff at the price of 45/., and breach of warranty, alleged the consequent damage as follows : " Whereby the said horse became and was of no use or value to the plaintiff, and the plaintiff hath necessarily incurred a great charge," Arc, to wit, " 20/., in and about the causing the said horse to be examined, and the feeding, keeping and taking care of the said horse, and incidental thereto; and the plaintiff avers that he, confiding in the said promise of the defendant, did afterwards, and before he knew or discovered the said unsoundness, to wit," &c, "sell the said horse to one William Collins, for a large sum, to wit, 55/., and then warranted and promised the said W. C. that the said horse was sound ; and that, by reason of the said unsoundness, the plaintiff was afterwards, to wit, on the 19th day of March, a. d. 1836, compelled to repay the said sum of 55/., which the said W. C. had paid the plaintiff as and for the price of the said horse at which he bought as aforesaid ; and also the plaintiff was then forced and obliged to pay the said W. C. a large sum, to wit, 3/. 3s., for the expenses of the said W. C, by him necessarily incurred in and about the examining, keeping, feeding and taking care of the said 34 530 WARRANTIES. horse, and incidental thereto, and in and about his returning the same to the plaintiff; and the plaintiff was also afterwards, to Mat, on the 29th day of April, a. d. 1836, forced and obliged to, and did, resell the said horse ; and the produce of such sale, after deducting the ex- penses thereof, amounted to much less than the said sum of 45?., to wit, only 17?. lis. Qd. : and the plaintiff hath, by means of the premises, lost and been deprived of all the benefits, profits and ad- vantages which he might and would have derived and acquired from reselling the said horse, had it been sound ;" and hath been and is otherwise injured, &c. The defendant pleaded a payment of 39?. 2s. into court. Replication, damage to a greater amount. Issue thereon. On the trial, before Lord Denman, Ch. J., at. the London sittings after last Hilary term, it appeared that the horse had been sold to Collins, March 9th, 1836 (about a month after the purchase by the plaintiff), and returned, as stated in the declaration ; and that the plaintiff sold him on the following 29th of April (giving notice to the defendant), for 17?. 4s. Further evidence was gone into on the subject of damage ; and the plaintiff claimed to recover 101., the dif- ference between the price at which he bought of the defendant and the price at which he sold to Collins. The Lord Chief Justice was of opinion that he could not recover the difference as damage by the loss of a bargain ; but it was then contended that, as the value of the horse had increased by 101. while he was in the plaintiff's possession, that sum was the measure of the amount which the plaintiff ought to recover for his expenses and care bestowed upon the horse between the time of the purchase and the sale to Collins. The Lord Chief Justice, in summing up, told the jury that the plaintiff was entitled to recover, in addition to the 45?. paid by him, the expenses, stated in evidence, of keep, feeding and stabling (see Chesterman v. Lamb, 2 Ad. & E. 129), and 11. 8s. lid., the costs of the above-mentioned notice of resale ; and that from the aggregate of these was to be de- ducted 171. 4:8., the produce of the ultimate sale. But his lordship directed the jury not to allow the difference between the 45?. and 55?. The jury found that the 39?. 2s. paid into court was sufficient ; and a verdict was entered for the defendant. Hill now moved for a new trial on the ground of misdirection. It has been held, in former cases, that the plaintiff, in an action for breach of warranty, could not recover for the mere loss of a bargain (see Flureau v. Thornhill, 2 W. B. 1078 ; 1 Sugd. on Vendors, 235 [9th ed.], and the cases there cited) ; but the present case differs from them, inasmuch as the article, here, had actually been resold by the plaintiff at an advanced price. He is clearly entitled to the 10?., as CLARE v. MAYNARD. 531 the amount either of expenses and care bestowed before the bargain, or of profit lost on the bargain ; and the allowance of that sum would have given him the verdict. If the horse had been sound, the plaintiff would have had in his pocket the difference between 4:61. and 557. ; he loses that sum by the breach of warranty, whatever de- nomination may be given to the difference. [Patteson, J. If you claim it as a profit lost, you might make a similar demand if a pur- chaser had given the plaintiff 1007. or 5007.] It might be made, pro- vided there had been no collusion. The plaintiff had received a cer- tain amount of purchase-money, and was obliged to refund it on account of the failure of warranty. [Lord Denman, Ch. J. At the trial, you claimed the 107. on the ground now stated, but I thought it was not so recoverable. Then you said that the amount must be given under the head of expenses.] Supposing the horse, when bought, to have been worth 45/. if sound, the plaintiff, by his care, and choice of a market, had raised the price to 551. [Lord Penman, Ch. J. Sup- pose you had taken the horse to twenty different markets before you sold him, could you have claimed the expenses of taking him to each ?] Only so far as the result of such expense appeared in an increase of the price. [Patteson, J. I doubt if the declaration answers to this view of the case. You do not allege that the value of the horse had been increased. Colereoge, J. It would make no difference, In this way of putting the case, if the plaintiff had not sold the horse at an advance of 101., provided the value had been increased by that amount.] The only difference then would have been in the greater difficulty of proof. The plaintiff would, at any rate, be entitled to damages measured by the additional value which his care and expenses had given to the horse ; and that value is here ascertained, by a ~bona fide sale, to have been 101. Lord Denivian, Ch. J. — The special damage alleged in the declar- ation is, that the plaintiff, who is stated to have bought the horse for 457., and sold him to Collins at 557., was obliged to repay the 557. and give up the bargain with Collins. If the claim, at the trial, had been rested upon the difference in amount between the two bargains, I should have laid down, as in the case of Cox v. "Walker * (which has * Cox v. Walker was tried at the Surrey Lent Assizes, 1S35, before Lord Desman, Ch. J. The action was for breach of warranty of a horse sold as sound ; and the special damage alleged in the declaration was, the plaintiffs expense incurred by reason of the warranty, and his loss of gains and profits in reselling the horse. The only plea was a denial of the unsoundness. The plaintiff had bought t;ie horse of the defendant for 1007., and had been offered 140/. for him ; but, the horse proving unsound, plaintiff had been obliged to give up the bargain, and to sell him for 49/. 7s. The Lord Chief Justice 532 WARRANTIES. been a long time depending before us), that the jury were to say whether it resulted from the price given by Collins that the value of the horse, if sound, would have been 551. at the time when the plaintiff finally sold him. But that view of the case was given up ; and it was then contended that the plaintiff' was entitled to recover for the money he had laid out on the horse in consequence of having bought him with the defendant's warranty. I think, however, that the plaintiff cannot recover that. The damage claimed in the declara- tion is the loss on the bargain ; and the claim, as ultimately made, was not supported in proof. Patteson, J.* — Whether the plaintiff could, under the circum- stances, recover any expense which he has been at in advancing the value of the horse, is a question which does not arise on this declara- tion ; for it merely states that the plaintiff had sold the horse at a dif- ferent price from that at which he bought him ; it does not aver that the plaintiff laid out any money on the horse in the mean time. The statement, therefore, means nothing but the loss of a bargain, the plaintiff having bought at 45Z. and sold at 551., which last sum he was obliged to return. Whether or not he could have recovered if the damage had been differently laid, it is not necessary to say. Coleridge, J. — The plaintiff cannot recover upon this record. The declaration merely alleges that the plaintiff bought the horse at so much, and resold him at so much more, not alleging any cause of the advance. That shows only, that the plaintiff is seeking to recover for a good bargain lost ; which, it is admitted, cannot be done. Rule refused. directed the jury that the plaintiff was entitled to recover the difference between the price at which he had sold, and the actual value of the horse if he had been sound at the time of such sale; and he left to the consideration of the jury, as a measure of the value, the price offered lor the horse while in th ■ plaintiff's hands. The jury found for the plaintiff, damages 90? 13s. A rule nisi was obtained for a new trial on the ground of misdirection, or for a reduction of damages. Cause was shown in Easter term (April 28th), 1836, before Lord Dexman, Ch. J., Littledale, Patteson and Coleridge, JJ., by by Thesic/er and Steer, and the rule was supported by Piatt and Adolphus. The court took time for consideration ; and the case stood over for several terms, and was at length compromised. * Littledale, J., was absent. PASSINGER v. THORBURN. 533 Breach of Warranty ; Consequential Damages. COURT OF APPEALS, NEW YORK. [1866.] Passingek v. Thorburn (34 N. Y. G34). Where there is a special warranty, and a breach, the plaintiff is entitled to such damages as were the natural and necessary consequences of the breach. Where the defendant sold cabbage seed, and warranted the same to produce Bristol cab- bages, which warranty was untrue : Held, the damages would be the value of a crop of Bristol cabbages, such as ordinarily would have been produced that year, deduct- ing the expense of raising the crop, and also the value of the crop actually raised ' therefrom. Appeal to the New York Court of Appeals. Daties, Ch. J. — This is an action brought to recover damages for a breach of warranty. The plaintiff purchased of the defendant a quantity of cabbage seed, and, according to the facts as found by the jury, warranted the same to be Bristol cabbage seed, and that such seed would produce Bristol cabbages. The jury found that _it was not Bristol cabbage seed, and that it did not produce Bristol cabbages. The judge charged the jury that, if the warranty was untrue, then the plaintiff would be entitled to such damages as were the natural and necessary consequence of the breach ; that the dam- ages would be the value of a crop of Bristol cabbages, such as they should believe would ordinarily have been produced that year, de- ducting all expense of raising the crop, and also deducting the pro- duct or value of the crop actually raised. The jury found a verdict for the plaintiff, and judgment thereon was affirmed at General Term, and the defendant now appeals to this court. The question presented for decision is, whether the rule of damages laid down for the government of the juryls the correct one. The fact and nature of the warranty, and the breach thereof) are disposed of adversely to the defendant by the verdict of the jury. The rule upon this subject, as stated by Lord Campbell, in Smeed v. Foord (102 Eng. Com. Law, 612), is found in Hadley v. Baxendale (9 Exch. 341), where it is laid down in accordance with the Code Napoleon, with Pothier, with Chancellor Kent, and with all other authorities, that the damages which one party to a contract ought to receive, in respect of a breach of it by the other, are such as either arise naturally, that is, in the usual course of things, from the breach itself, or such as may reasonably be supposed to have 534 WARRANTIES. been contemplated by the parties when making the contract, as the probable result of the breach. Sedgwick on Damages (p. 290) says, it seems originally to have been held that the measure of damages, when the thing sold with warranty did not answer the warranty, was the difference between the price paid and the actual value ; but it is now well settled that the rule is, the difference between the actual value and the value that the article would have possessed if it had conformed to the warranty. The same rules are enunciated by Selden, J., in delivering the opinion of the court in Griffin v. Col- ver (16 N. Y. 489), when he says: "Profits which would certainly have been realized but for the defendant's default, are recoverable ; those which are speculative or contingent are not. The broad gen- eral rule is, that the party injured is entitled to recover all his dam- ages, including gains prevented as well as losses sustained, and this rule is subject to but two conditions ; the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation, and they must be certain, both in their nature and in respect to the cause from which they proceed." The following cases illustrate the application of these rules : Bonadaile v. Bruxton (8 Term, 535) was an action to recover dam- ages for a breach of warranty, in the sale of a chain cable. The de- fendant sold to the plaintiff a chain cable, as a substitute for a rope cable, of sixteen inches, for the use of the plaintiff's ship, and war- ranted the chain cable should last two years ; that the plaintiff used the chain cable from time to time until it broke, and that, in breach of the warranty, the chain cable did not last two years, as the substi- tute for the rope cable, but, on the contrary, within the two years, and while the plaintiff's ship was held by the chain cable, one of the links thereof broke, and thereby the chain cable and an anchor of the plaintiff to which it was affixed were wholly lost to the plaintiff. The jury found for the plaintiff the value, as well of the lost anchor as of the cable. On motion for a new trial, it was contended that the plaintiff could not recover for the loss of the anchor as for a loss consequent on the failure of the cable, for though the anchor fol- lowed the insufficient cable, yet this was a consequence to which the warranty did not extend, for the cable only was warranted. Dallas, Ch. J., said, the defendant warrants the cable sufficient to hold the anchor, and it is found not to be sufficient. The holding of the anchor by the cable is of the very essence of the warranty. Park, J., said, the use of the cable is to hold the anchor. Upon the break- PASSINGER v. THORBURN. 535 ing of the link, the cable became insufficient to hold the anchor, and the pilot then ordered it to be slipped, in the exercise of a prudent discretion, to save both ship and cargo. In Page v. Pavey (8 Carr. & Payne, 769), the plaintiff sued for a breach of warranty in the sale of wheat. The declaration alleged a sale of old cone wheat for seed, with a warranty that it would grow, and a breach that it did not grow, whereby the wheat became of no value to the plaintiff, and he was deprived of great gains which would have arisen from the straw and corn which would have been produced, if it had grown, and it was held that the plaintiff could give evidence of what the value of the crops might have been with a view to make out his damages, claimed in his declar- ation. Jones v. Bright (5 Bing. 533), was an action for damages on sale of copper for sheathing a ship. The case was decided on the ground that there was an express warranty that the copper sold would answer the purpose for which it was purchased. It did not, and plaintiff recovered. Best, Ch. J., said : " In a contract of this kind, it is not necessary that the seller should say, ' I warrant , ' it is enough if he says the article which he sells is fit for a particular purpose. Here, when Fisher, a mutual acquaintance of the parties, introduced them to each other, he said, ' Mr. Jones is in want of copper for sheathing a vessel,' and one of the defendants answered, 4 ¥e will supply him well.' That constituted a contract, and amounted to a warranty." Again, the chief justice observes : " If a man sells a horse, gen- erally, he warrants no more than that it is a horse ; the buyer puts no question, and perhaps gets the animal the cheaper. But, if he asks for a carriage horse, or a horse to carry a female, or a timid or infirm rider, he who knows the qualities of the animal and sells, un- dertakes, on every principle of honesty, that it is fit for the purpose indicated. The selling upon a demand for a horse with particular qualities, is an affirmation that he possesses these qualities. So it has been decided, if beer be sold to be consumed at Gibraltar, the sale is an affirmation that it is fit to go so far." In Brown v. Edgerton (2 Mann. & Gran. 279), the defendant was applied to, to furnish a rope for a crane to be used for the purpose of hauling up and letting down pipes and other heavy casks. The defendant undertook to supply the rope for the plaintiffs' crane, and the jury found the rope was not fit for that purpose. The rope broke, whereby the plaintiffs lost a pipe of wine, which was being raised by it. The defendant was held liable for the damages occa- ■" 536 WARRANTIES. sioned, for the breach of the warranty, that the rope was fit for the purpose for which it was purchased. Maule, J., said : " The evidence given in the case satisfactorily showed that the defendant undertook to furnish a rope which would fit the crane and raise the pipes of wine. The jury having found that the rope was an unfit one for that purpose, the defendant has been guilty of a breach of the implied warranty alleged in the dec- laration." The case of Randall v. Roper (96 Eng. Com. Law, 82) is, in many particulars, like the case at bar, and deserves a careful consideration. The declaration charged that the defendant, by warranting thirty quarters of seed barley to be chevalier seed barley, sold the same to plaintiffs, and averred that said seed barle} 7 was not chevalier seed barley ; that said plaintiffs, having purchased said seed barley for the purpose of reselling, did, without having any notice or knowledge of said breach of warranty, and believing said seed barley to be chevalier seed barley, resell the same, warranting it to be chevalier seed barley, when in fact it was not chevalier seed barley, and that the buyers had sowed the same without notice of that fact in their respective lands, as and for chevalier seed barley, and the same not being chevalier seed barley, yielded and produced much less and in- ferior crops, and crops of an inferior quality of barley than the same otherwise would have done had the same been chevalier seed barley. It was agreed that the difference in price between chevalier seed barley and the seed barley delivered, was 15£., and that the loss to the parties who had purchased from the plaintiffs, by reason of the difference in their crops, was, in all, 2611. 7s. 6d. These purchasers \ had made claims upon the plaintiffs for compensation, and the plaintiffs agreed to satisfy them. A verdict was taken for 2G11. 7s. 6cl., with leave to the defendant to move to reduce it to 151. The rule was refused. Lord Campbell said : " I am clearly of opinion ~ that, in case the plaintiffs had paid the damages sustained by their vendees, being compelled to do so for breach of a warranty similar to that given by the defendant to the plaintiffs, they would have been entitled to recover such damages as special damage in this ac- tion. It was a probable, a natural, even a necessary consequence of this seed not being chevalier seed barley, that it did not produce the expected quantity of grain. That is a consequence not depending upon the quality of the soil, but one necessarily resulting from the contract as to the quality of the seed not being performed." Erle, J., said, the question is, what amount of damages is to be given for the breach of this warranty ? The warranty is, that the barley sold PASSINGER v. THORBURN. 537 should be chevalier barley. The natural consequence of the breach of such a warranty is, that the barley which has been delivered hav- ing been sown, and not being chevalier barley, an inferior crop has been produced. This damage naturally results from the breach of the warranty, and the ordinary measure of it would be the difference in value between the inferior crop produced and that which would have been produced from chevalier barley. Cromptox, J., said : " Taking the narrowest rule as to the probable and necessary conse- quences of a breach of contract, these damages fall within it, and all the judges held and agreed that the plaintiffs were entitled to re- cover the damages sustained by their vendees upon a breach of the warranty." This is the well-settled law in this country, it having been held that, where an article is sold with a warranty, and the vendee resells with a like warranty, the sum paid by him in an ac- tion by his sub-vendee for a breach of that warranty, is prima facie evidence of the amount which he will be entitled to recover from his vendor in an action in his own behalf (Reggio v. Bragiotti, 7 Cush. 166 ; Armstrong v. Perry, 5 Wend. 535 ; Blasdale v. Babcock, 1 Johns, 518). And this court, in Muller v. Eno (1 Kern. 597), held that a purchaser may recover for a breach of a warranty, although he has sold the goods and no claim has been made on him, and that it was not necessary for him to show the price on the resale. That price may be evidence of the damages, but does not furnish the rule in respect to them. In Smeed v. Foord {supra), the question, what damages the plaintiff was entitled to recover, on failure to deliver a threshing machine according to contract, Lord Campbell observed, that the defendant knew that the plaintiff required the machine for the pur- pose of threshing wheat in the field. Then, was it not contemplated by the parties that, if the machine was not delivered by the time fixed, damage to the wheat would in all probability be the result, particularly in such a variable climate as this ? Owing to the non- delivery of the machine, the wheat was stacked and afterward dam- aged by the rain which ensued. This injury, and the loss and ex- pense which it involved, were the natural results of the defendant's delay. They were also results which the parties must have foreseen. Crompton, J., adopts the rule, that damages which may reasonably be supposed to have been contemplated by the contracting parties. are damages which naturally arise from a breach of the contract. He adds : " I doubt whether, in this case, it is the duty of a judge to lay down more to the jury than that the plaintiff is entitled to such damages as are the natural consequences of the breach of the 538 WARRANTIES. contract. The question, what are such natural consequences, is, I think, in such case, rather for the jury than for the judge, just as it is for them, not for him, to assess the amount of the dam- ages." In the present case, it cannot be doubted that the damages which this plaintiff has sustained are such as arise naturally from the breach of the defendant's warranty. His engagement was, that the seed he sold was Bristol cabbage seed, and would produce Bristol cabbages. It may therefore have been reasonably supposed to have been in the contemplation of the parties that if the seed was not Bristol cabbage seed, and would not consequently produce Bristol cabbages, that damage would necessarily accrue to the plaintiff, and would be a natural consequence of such breach. The jury have so said in this case, and we think they came to a correct conclu- sion. The plaintiff, in establishing the warranty and its breach, was entitled to a full indemnity. In the language of Ch. J. Shaw, in Reggio v. Bragiotti (supra), " In this country the established rule in relation to damages in actions of this nature is, that the plaintiff may recover what he can show that he has actually lost. If the article is wholly worthless, then he shall recover what would have been its value to himself at the time of the warranty, had it corre- sponded to the terms of the warranty." In the case of Cary v. Gorman (4 Hill, 625), Mr. Justice Cowen observed : " A warranty on the sale of a chattel is, in effect, a promise that the subject of sale corresponds with the warranty in title, soundness, or other quality to which it relates: It naturally follows, that if the subject prove defective, within the meaning of the warranty, the stipulation can be satisfied in no other way than by making it good. That cannot be done except by paying to the vendee such sum as, together with the cash value of the defective article, shall amount to what it would have been worth if the defect had not existed." That the measure of damages in a breach of warranty on the sale of goods is the difference between the value of goods, if they had corresponded with the warranty, and their actual value, as they in part were. This rule rests upon sound principles, and is settled by the two carefully considered cases of Voorhees v. Earl (2 Hill, 288) and Cary v. Gorman (4 Id. 625). It follows, therefore, that the rule of dam- ages, as laid down by the learned justice who tried this action, in his charge to the jury, was correct, and the exceptions thereto can- not be sustained. The counsel for the appellant insists that the judge at the circuit erred in refusing to charge that the contract PASSINGER v. THORBURN. 539 must be the result of the minds of both parties meeting and agree- ing, and unless the defendant intended to make a contract that he would pay for the crop in case of its failure because of the bad qual- ity of the seed, he cannot be made liable to such damages. To the refusal to charge both branches of this proposition, there is a general exception. If the counsel had intended to designate the contract of warranty as that upon which the minds of the parties must have met, he was undoubtedly correct in the position ; but this is evi- dently not what he meant. He alludes to the contract, mentioned and referred to in the second branch of his proposition ; that is, that unless the defendant intended to contract that he would pay for the crop in case of failure of the seed to produce the crop warranted, he cannot be made liable in damages. The authorities cited are abund- ant to show that the defendant must be held responsible for the natural consequences of the contract which he did make, and the legal responsibilities following therefrom, whether he intended to be so liable or not. Ignorance of the law, and of the legal effect of the contract made by him, cannot excuse him from its performance. The law assumes that both parties entered into the contract with full knowledge of the legal rights and duties resulting therefrom ; and whether either of them intended to be thus bound, cannot be a subject of proper inquiry. The judge, therefore, justly refused to charge as requested. The supposition of defendant as to the use plaintiff intended to make of the seed, was wholly immaterial. The defendant's liability is to be tested by the fact whether he made the warranty, and whether there was a breach ; and the extent of that liability, if these two preliminary positions are established, was, what sum was neces- sary to compensate the plaintiff for the loss he had sustained by the article sold not being of the quality warranted. The judge, there- fore, properly refused to charge that the extent of defendant's lia- bility, or the rule of damages to be applied, depended in any manner upon the supposition of the defendant as to the use the plaintiff intended making of the thing sold. Upon the principles discussed and the authorities cited, there was no error committed in the ad- mission of evidence. The judgment must be affirmed, with costs. Judgment accordingly. Note. — Where the purchaser of poor seed knows its inferior character before sowing it, he is not liable for damages resulting to either the crop or the land from the use of such seed. Oliver v. Hawley, 5 Neb. 439 (1877). 540 WARRANTIES. Sale ; Breach of Implied "Warranty ; Extent of Recovery of Profits. supreme court, new jersey. [1873.] WOLCOTT, JOHNSON & Co. V. MOUNT (36 N. J. [7 Vroom], 2G2). Loss of profits may be recovered as damages for the breach of a warrant} 7 or other non- performance of a contract, if the loss results directly from the breach of the contract itself, or is such as might reasonably be supposed to have been in the contemplation of both parties at the time of the making of the contract, as the result of non-per- formance; provided that the profits to be compensated for are such as are capable of being ascertained by the rules of evidence, to a reasonable degree of certainty. On certiorari to the Monmouth Pleas, on the trial of an appeal from the judgment of a justice of the peace. The cause was argued in this court on the following statement of the case : On the trial of the appeal, Mount, the appellee and plaintiff be- fore the justice, proved that Wolcott, Johnson & Co. were merchants, keeping a store of general merchandise in the county of Monmouth, and that, among other articles, they advertised and kept agricultural seeds for sale, and sold seeds. Mount went to their store and asked one of the partners, Bloomfield "Wolcott, for early strap-leaf red-top turnip seed, and Wolcott showed him, and sold to him, seed w T hich Wolcott told him was early strap-leaf red-top turnip seed, and sold it to Mount (two pounds) as such, and Mount paid him cents for the same. Mount sowed the same on acres of his ground, which he had prepared with care and great expense for the purpose. Mount had been in the habit, year after year, to sow early strap-leaf red-top turnip seed, to produce turnips for the early New York mar- ket, such kind and description of turnips yielding a large profit, and he, at time of purchase, stated that he wished this description and kind of seed for that purpose. The seed sold to Mount by Wolcott was sown upon the ground prepared for same by Mount, and the turnips produced therefrom were not early strap-leaf red-top turnips, but turnips of a different kind and description, to wit, Russia, late, and not saleable in market, and only fit for cattle, and he lost his entire crop. The plaintiff proved that the seed sold him by Wolcott was not early strap-leaf red- top turnip see'd, but seed of a different kind and description, to wit, WOLCOTT, JOHNSON" & CO. v. MOUKT. 541 Russia turnip seed, and that it produced no profit to him, and that early strap-leaf red-top turnip seed on same ground in other years had produced large profits to Mount, and on adjoining ground, prepared in same way, the same year, had produced great profits to the owner, and that Mount was damaged thereby. It is agreed that Wolcott did not know that the seed he sold Mount was not early strap-leaf red-top turnip seed, and that he did not sell the seed to him fraudulently, the said Wolcott having pur- chased the seed for early strap-leaf red-top turnip seed. It is also agreed that this kind of turnip seed cannot be known and distin- guished, by the examination through sight or touch, from Russia or other kinds, but only by the kind of turnips it produces after sowing, can it be known. The Court of Common Pleas gave judgment for the plaintiff be- low for $99.12 damages. Argued at February term, 1873, before Justices Bedle, Dal- eimple and Depue. Deptje, J. — The action in this case was brought on a contract of warranty and resulted in a judgment against the defendants in the action for damages. Two exceptions to the proceedings are presented by the brief sub- mitted. The first touches the right of the plaintiff' to recover at all. The second, the measure of damages. The learned judge, after holding that the action could be main- tained, proceeded as follows : The second reason for reversal is, that the court was in error in the damages awarded. The judgment was for consequential dam- ages. The contention of the defendants' counsel was, that the damages recoverable should have been limited to the price paid for the seed, and that all damages beyond a restitution of the consideration, were too speculative and remote to come within the rules for measuring dam- ages. As the market price of the seed which the plaintiff got, and had the benefit of in a crop, though of an inferior quality, was probably the same as the market price of the seed ordered, the de- fendants' rule of damages would leave the plaintiff remediless. The earlier cases, both in English and American courts, generally concurred in excluding, as well in actions in tort as in actions on con- tracts, from the damages recoverable, profits which might have been realized if the injury had not been done, or the contract had been performed (Sedgwick on Damages, 69). This abridgment of the power of courts to award compensation 542 WARRANTIES. adequate to the injury suffered, lias been removed iu actions of tort. The wrongdoer must answer in damages for those results injurious to other parties, which are presumed to have been within his con- templation when the wrong was done (Binninger v. Crater, 4 Yroom, 513). Thus, in an action to recover damages for personal injuries caused by the negligence of the defendant, the plaintiff was held to be entitled to recover as damages the loss he sustained in his profes- sion as an architect, by reason of his being incapacitated from pursu- ing his business (New Jersey Express Co. v. Nichols, 4 Vroom, 435). A similar relaxation of this restrictive rule has been made at least to a qualified extent, in action on contracts, and loss of profits result- ing naturally from the breach of the contract, has been allowed to enter into the damages recoverable where the profits that might have been realized from the performance of the contract, are capable of being estimated with a reasonable degree of certainty. In an action on a warranty of goods adapted to the China market, and purchased with a view to that trade, the purchaser was allowed damages with reference to their value in Chiua, as representing the benefit he would have received from the contract, if the defendant had performed it (Bridge v. Wain, 1 Starkie, 504). On an executory contract put an end to by the refusal of the one party to complete it, for such breach the other party may recover such profits as would have accrued to him as the direct and immediate result of the performance of the contract (Fox v. Harding, 7 Cush. 516 ; Masterton v. Mayor of Brooklyn, 7 Hill, 61). In an action against the charterer of a vessel for not load- ing a cargo, the freight she would have earned under the charter party, less expenses and the freight actually received for services dur- ing the period over which the charter extended, was held to be the proper measure of damages (Smith v. McGuire, 3 H. & N. 554). In the cases of the class from which these citations have been made, and they are quite numerous, the damages arising from loss of profits were such as resulted directly from non-performance, and in the ordinary course of business, would be expected as a necessary con- sequence of the breach of the contract. In the two cases cited of Fox v. Harding, and Masterton v. Mayor of Brooklyn, it was said that the profits that might have been realized from independent and col- lateral engagements, entered into on the faith of the principal con- tract, were too remote to be taken into consideration. This latter qualification would exclude compensation for the loss of the profits of a resale by the vendee of the goods purchased, made upon the faith of his expectation, that his contract with his vendor would be per- formed. WOLCOTT, JOHNSON & CO. v. MOUNT. 543 In the much canvassed case of Hadley v. Baxendale (9 Exch. 341), Alderson, B., in pronouncing the judgment of the court, enunciated certain principles on which damages should be awarded for breaches of contracts which assimilated damages in actions on contract to ac- tions in tort. The rule there adopted as resting on the foundation of correct legal principles was, that the damages recoverable for a breach of contract, were either such as might be considered as arising natur- ally, i. wed, the correct measure of damage-; i~ the highest market value within a reasonable time after the property was taken, with interest from the time such value was estimated. Appeal from the District Court of the Fourth District, City and County of San Francisco. The facts are stated in the opinion. 598 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. Temple, J., delivered the opinion of the court, Crockett, J., and Spkague, J., concurring. The main facts of this case are almost precisely the same as in Page v. Fowler (28 Cal. 605, and 37 Cal. 100). The plaintiff was in possession of about eight hundred acres of land, which had been inclosed for many years, and which he claimed to own under the so-called Suscol grant. In the summer of 1862, while crops put in by plaintiff were still growing upon the land, the defendants entered, claiming one hundred and sixty acres of land each, as preemptioners. They built small houses upon their respec- tive claims, where they afterwards lived. They each possessed the requisite qualifications to become preemptioners, and each took the necessary steps to enter the lands in the proper land office of the United States. They were unsuccessful, however, in their attempts to preempt, and the plaintiff finally recovered a judgment against them for the land. In May, 1863, while they were in possession, and before the judgment in ejectment, they cut a quantity of hay upon the land, which was taken by the plaintiff by the writ of re- plevin in this suit. [After considering some questions not relating to the measure of damages, and holding that a joint judgment in favor of several de- fendants having no community of interest or ownership of the property was wrong, the learned judge proceeded as follows :] The only remaining question in the case is as to the rule of dam- ages adopted on the trial. The plaintiff having failed to make out his case, of course the defendants were entitled to recover the value of the hay taken and disposed of by him. The hay was taken in May, 1863, at which time it was worth, in the condition it was in, from three to five dollars per ton. It was baled at an expense of three dollars per ton, hauled to Benicia at an expense not proven, and from there shipped to San Francisco at an expense of two and one-half dollars per ton. It was sold at San Francisco at twelve and one-half dollars per ton, which is not questioned as being the highest price that could have been obtained for it. The defendants proved that in 1861, which was a year of great scarcity — sometimes called the year of the drought — hay was -worth from thirty-eight to forty dollars per ton. At the request of the defendants, court instructed the jury that, " in assessing the value of the property, they might find the highest market value at any time since the hay was taken by the plaintiff, with interest," etc. Under this instruc- tion, the jury assessed the value of the property according to the price in 1864, and the defendants recovered $25,763 23 for property PAGE v. FOWLER. 599 which, at the time it was taken, was not worth more than $2,500. As the trial was in November, A. D. 1869, under the rule, the value could as well have been estimated by the market place at the time of trial, and, if the value of hay had been greater than at any previous time after the taking, that course would undoubtedly have been pursued. When we consider that the object to be attained by this rule is indemnity for loss actually sustained, the result in this case is suffi- ciently startling. But the rule is claimed to be of universal appli- cation, and as to a large class of personal property, to wit : perishable articles, its operation is still more manifestly unjust. If a quantity of fruit — strawberries, for instance — in the season of their greatest abundance, were taken under circumstances which would entitle the owner to indemnity only, and a suit to recover their value were immediately commenced, the trial would not be likely to occur for many months. In the meantime the season of plenty has passed and the fruit bears an extraordinary price. Nevertheless, by this rule, he is permitted to recover the enhanced value which he could never have realized, and this under the pretense that it is necessary to indemnify him for his actual loss. This is, of course, an extreme case, and may be said to prove only that there should be exceptions to the rule ; but I think that the rule is necessarily liable to work injustice in every case. In the cases where it has been inforced it is said to apply only to articles which fluctuate in value. If there is anything which can be said to have a market value that does not fluctuate, of course it can make no difference when the value is ascertained. This distinction, therefore, might as well be omitted, and the rule applied indiscriminately to all descriptions of personal property. If goods belonging to a merchant and designed for im- mediate sale were taken, the trial of a suit brought to recover their value might, for reasons well understood by every member of the bar, and in the usual course of things would be postponed for years. The highest price might be ten years after the sale, and yet it would be morally certain that, had the goods not been taken, the owner would have disposed of them within the next few months. It is obvious that the damages in such a case (and the supposed case is the general rule) might be grossly unjust, and have very little refer- ence to the loss actually sustained. Without the possibility of loss, the owner is allowed the range' of the market for many years in which to choose his price, and perhaps realizes enormous profits, in the face of proof to a moral •certainty that, had he kept the goods, he would not, and, perhaps. 600 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. could not have received them. The best possible speculation would be to have one's property taken by a responsible person, and this under a rule which only indemnified for actual loss, and does not permit speculative or hypothetical damages to be recovered, and in which nothing is exacted a punishment to the wrong-doer.. The cases of Douglass v. Kraft (9 Cal. 562), and Hamer v. Hath- away (33 Cal. 117), are relied upon to support the rule adopted in this case. The first was for the conversion of certain warrants, and the court say that the plaintiff is entitled to the highest value after the conversion, and base their opinion upon the case of Mercer v. Jones (3 Camp. 476), where Abbott, C. J., says, in substance, that the jury may, in their discretion, fix the value at any time after the conversion, and the case of Castelyou v. Lansing, in which Kent says simply that in trover the rule is not always the value of the goods at the time of the conversion. In this case no question arose as to the propriety of estimating the value by the market price at an indefinite period after the taking. In Hamer v. Hathaway the question was, whether the highest price between the taking and the trial, or the price at the time of the taking, was the rule. The court say it is not an open question in this State; that elsewhere there is a great diversity of opinion as to which is the proper rule ; that it is important to have a settled rule for this State, and they approve that in Douglass v. Kraft. In that case, also, as in most cases holding to this rule, the only question discussed was whether the damages must be assesssed at the value of the property at the time of the conversion. The court held differently, and though no question was raised as to what would be the rule under different circumstances, say " some qualification of the rule may be found necessary where there has been unreasonable delay in bringing suit, or under special circumstances, which do not exist in the present case ; but we are content to follow the general rule announced in Douglass v. Kraft." If we leave this State, the cases are exceedingly numerous and very conflicting. It would be impossible to deduce any consistent rule from them ; and I agree with Mr. Justice Rhodes — in Hamer v. Hathaway — that it is, perhaps, more important to have a fixed rule than that it should be entirely above question upon principle ; and the general rule adopted in this State, when properly qualified, com- • mends itself to my mind as founded in justice, and I think the required qualification can be easily derived from the cases by which the rule was established. In Suydam v. Jenkins (3 Sandf. 614), Mr. Justice Dder, in an PAGE v. FOWLER. 601 opinion by far the most able and satisfactory I have been able to find upon the subject, reviews all the authorities upon this subject, both English and American, and, as I think, establishes, beyond question, that this doctrine never did prevail in England, and that the cases of "West v. Went worth (3 Cow. 82), and Clark v. Pinney (7 Cow. 681), were innovations upon the common law, and were founded upon an entire misapprehension of the English cases they profess to follow. I have carefully verified all the references in those cases, and fully concur with Judge Duer that those cases not only do not establish the proposition, but contain no allusion what- ever to the subject. The English rule, so far as I can discover, has always been to leave to the jury, as a matter of discretion, the ques- tion as to the time the property shall be valued, except in the case of stocks, when the value at the time of trial, was the measure of damages. In the United States, on the other hand, it has always been considered a rule of law, and the jury are allowed no discretion in the matter. The doctrine is, therefore, as I think, of American origin, and it may be remarked that all the cases concur in admitting that the general rule is that the damages are to be measured by the value of the property at the time it was taken, the doctrine in question being an exception to the rule ; and though the exception has, perhaps, become the rule, it may be well to bear in mind that it originated in an exception made on the ground that, in certain cases (where the market value is fluctuating) the prevailing rule did not do full just- ice. The exception ought not, therefore, to be carried beyond the purpose for which it was made. That being accomplished, the ordinary rule should jDrevail. The reason for it must have been that, in the usual course of trade or business, it was likely that the owner would have realized the enhanced value if he had not been deprived of his property. All the cases are upon the ground that otherwise he would not be completely indemnified. It could not have been intended to give him profits it is certain he would not have realized. The case of "West v. Wentworth (3 Cow. 82), was the first case in which the doctrine is plainly asserted. It is a short case founded upon a misapprehension of the English cases, and the reason of the decision, further than this erroneous citation of authorities, is not discussed at any length. In the case of Clark v. Pinney (7 Cow. 681), the question was elaborately discussed, and this case may prop- erly be considered the pioneer case upon the subject. The doctrine of West v. Wentworth is sustained, but with an important qualifica- 602 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. tion. The court say : " In such case, therefore, the plaintiff is entitled to the highest price between the day when the delivery should have been made and the day of trial. But where he delays the prosecution of his claim beyond the period which may be considered reasonable, for the purpose of endeavoring to make an amicable arrangement, he must be considered as assenting to the delay, and ought to participate in [the hazard of it. In such cases we are inclined to think the rule of damages should be the value of the article at the commencement of the suit." The case of Smith v. Griffith (5 Hill, 333), was a case against a common carrier for goods damaged while in the possession of the earner. This question was discussed, and the rule of damages is laid down as follows : " The law, in regulating the measure of dam- ages, contemplates a range of the entire market, and the average of prices as thus formed through a reasonable period of time." The phrase " average of prices," is intended as a rule to ascertain what the market price is, and exclude exceptional sales at an extra- ordinary price, and taken in connection with other portions of the opinion, the extract shows the rule adopted in this case to have been the highest market price within a reasonable time after the property was taken, or should have been^delivered. In the case of Romaine v. Van Allen (26 IN". Y. 309), the cases upon this subject are said to be to the effect, that " if the plaintiff, without unnecessary delay, prosecutes his suit, the fluctuations in the price should be exclu- sively at the hazard of the defendant, and the plaintiff was entitled to the highest price between the day when the delivery should have been made and the day of trial." In the case of Wilson v. Mathews (21 Barb. 295), which was an action of trover, the plaintiff' was allowed to recover the highest price intermediate the taking and the trial. The court, in rendering the opinion, remarks : " As no objection was taken on the argument that any delay had intervened, we assume that the plaintiff has not delayed the prosecution of his claim beyond the period which may be considered reasonable, and that, therefore, the proper rule of damages is the highest value of the property at any time between the day of its conversion and the day of trial. In the case of Cannon v. Folsom (2 Iowa, 101), it is said that the rule of damages for not delivering a commodity according to con- tract, where the price has been paid, is " the highest market price between the day for delivery and the time suit is brought, provided the plaintiff does not unreasonably delay the institution of the -suit." PAGE v. FOWLER. 603 The case of Scott v. Rogers (21 !N". Y. 676), was by a principal against his factors for an unauthorized sale of his property. The court decided that the sale was unauthorized, and that the measure of damages was the difference between the price for which the wheat was sold and what it was worth a reasonable time after the date within which to commence the action. This ruling was sus- tained by the Court of Appeals in an extended argument upon this very question. After stating it would be unjust to allow the plaint- iff the whole time allowed by the statute of limitations, in which to commence his action, and the time from the commencement to the trial in addition in which to fix the price, and that the fact that the right of property passes by the judgment can make no difference, Mr. Justice Hogeboom, who delivered the opinion of the court, says the rule is settled " to allow the plaintiff the highest price prevailing between the time of conversion and a reasonable time afterwards for the commencement of the action. Some of the cases carry the period up to the time of trial of a suit commenced within a reason- able time ; as between these two periods, the time of commencing the suit and the time of trial, the rule is somewhat fluctuating. "What this reasonable time shall be has never been definitely settled, and may perhaps fluctuate come what according to the circumstances of the particular case." In the case of Pinkerton v. Railroad (42 !N". H. 424), this rule of damages is rejected, and this reason, among others, given for it : " In that large class of cases where the articles to be delivered enter into the common consumption of the country in the shape of pro- visions, perishable or otherwise, horses, cattle, raw material, such as wool, cotton, hides, leather, dye stuffs, etc., to hold that the plaintiff might elect as the rule of damages, in all cases, the highest market price between the time fixed for the delivery and the day of trial — which is often many years after the breach — would, in many cases, be grossly unjust and give to the plaintiff an amount of damages disproportionate to the injury. For in most of the cases, had the articles been delivered according to the contract, they would have been sold or consumed during the year, and no probability of reap- ing any benefit from future increase of prices. So there may 1 >e repeated trials of the same cause by review, new trial or otherwise. Shall there be different measures of damages for each trial ? " In every case which I have been able to find, where this view of the subject was discussed at all, some qualification of the rule was insisted upon ; and it may be safely affirmed that the unqualified rule laid down in this case lias never been recognized as law any- 601 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. where — although, of course, there are cases in which the rule has been affirmed without allusion to the qualification ; and if the adjudged cases were not so, a rule which would allow one the high- est market price for seven or eight years as the measure of damages for conversion of hay — an annual crop, and almost always annually consumed — is too repugnant to our sense of justice and to the purpose the rule was designed to accomplish — indemnity for actual loss — to be allowed to stand, especially when the rule itself is not supported even by a majority of the adjudications upon the subject. In many of the cases it is said that the plaintiff will be allowed the highest price intermediate the taking and the trial, if the suit has been commenced within a reasonable time and prosecuted with- out unnecessary delay, and no intimation is made as to what the rule would be if the suit were not commenced w T ithin a reasonable time ; but it is evident that the question of damages ought to be the same in either case. The time of the commencement of the action or trial would not seem to have any natural or logical connection or relation to the question of damages ; and the question as to whether a suit was or was not commenced within a reasonable time, would rarely, if ever, depend upon any fact which would affect the indem- nity to which the plaintiff is entitled. The reasonable time men- tioned in the cases cannot mean a reasonable time within which to commence the action independently of the question of damages. It must mean a time within which it would be reasonable to allow the plaintiff to take the highest market price as the measure of his damages. In other words, the rule deducible from the authorities is, that in cases affecting property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages is the highest market value within a reasonable time after the property was taken, with interest computed from the time such value was estimated. This is, in effect, the rule established in Scott v. Rogers, where this precise question was more elaborately dis- cussed than in any other case. The rule thus stated may be somewhat indefinite, but it is certainly not more so than the rule in the New York cases, which have reference to the commencement of the action or its diligent prosecution ; and the rule thus stated has this advantage, that what is a reasonable time would always be determined with reference to the question of indemnity ; and if the old standard of the value at the time of the taking be once departed from, I can think of no rule more definite which would not be arbitrary and liable to work injustice. PAGE v. FOWLER. 605 What would be a reasonable time within which to allow the injured party the range of the markets to fix the value, must depend in a great measure upon the circumstances of each case. In very many cases, this could easily be fixed by the nature of the article, the use for which it was intended or the usual course of business upon which value depended. The object of allowing this range at all, as I have said, is because the owner might, and perhaps would, have obtained the price, if he had been allowed to retain the prop- erty, and the object will control in fixing the limit allowed for estimating the value. When goods are taken from a merchant he should not be allowed a longer period than it would probably require in the usual course of business to dispose of them, or than it would be reasonable to suppose a business man would expect to hold them for a profit. As to the annual products of the soil, which are raised for annual consumption, they are almost universally disposed of by the producers within a few months after they are harvested, and, I may say, invariably consumed, or otherwise disposed of before the next harvest ; and, in my judgment, a longer period than ought never to be allowed within which to estimate the damages as to such prop- erty, at least without some proof that the property would have been retained. In this case the property was taken by means of a writ of replevin, and, as the proof establishes, was disposed of shortly after it was taken. We are not called upon to inquire whether a different measure of damages should be adopted where the property has been retained and can be returned in specie. The price fixed was during the year 186-4 — at what period of the year is not definitely settled by the evidence, though most likely it was after harvest of the hay crop, as the value was proven by one of the defendants, who testifies that he sold hay at that price during that year. At all events, the instruction authorized the jury to estimate the value after that time ; and, as it does not appear that they did not do so, the judg- ment should be reversed, and it is so ordered. By Rhodes, C. J. : I concur in the judgment. Wallace, J., being disqualified, did not participate in the decis- ion of this cause. 606 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. In an Action for the Conversion of Stocks as well as of other Personal Property, the Measure of Damages is the Value of the Property at the Time of the Conversion, with Interest, to the Trial. SUPREME COURT OF ILLINOIS. [1870.] Stukges v. Keith (57 111. 451). Measure of Damages — in trover, for the conversion of railway stocks. The rule in this State is that the proper measure of damages in an action of trover is the current market value of the property at the time of the conversion, with interest from that time until the trial, and no exception is recognized where the property converted happens to be stocks. Same — as to the time of estimating value. Where the demand and refusal either constitute the conversion, or afford presumptive evidence of it, it is do infringement of this rule to regard that as the time for estimating the value. Same — of evidence admissible to fix value. In an action of trover to recover for the alleged conversion of certain railroad stock, it was held to be competent for the plaintiff to give evidence tending to show that the railroad company was about to and did in- crease the stock, and that owners of stock were, by its regulations, to have a certain pro rata of the new stock at reduced rates, — not to enable the plaintiff to recover the value of the new stock as special damages, but as being a circumstance which would legitimately bear upon the question of the value of the stock converted. Appeal from the- Circuit Court of Cook county ; the Hon. Erastus S. Williams, Judge, presiding. Mr. Justice McAllister delivered the opinion of the court : This was an action of trover, brought in the circuit court of Cook county, by appellee against appellants, to recover for the alleged wrongful conversion of 250 shares of the common stock of the Chicago & Alton Railroad Company. It appears from the evidence that, in May, 1864, the appellants, Frank Sturges, Albert Sturges, George Sturges, Buckingham Stur- ges and Shelton Sturges, were engaged as copartners in the business of banking, under the firm name of Solomon Sturges' Sons ; that the appellant William Sturges, was not a member of the firm, but a managing agent thereof ; that appellee, being a customer of this banking house, and himself and partner being indebted to the same in the sum of about $13,000, upon a gold transaction, in the month of May aforesaid, brought to the bank certificates for 250 shares of the above-mentioned stock, and by an arrangement conducted exclu- sively between him and William Sturges, the stock was left in the bank, but whether as security for the indebtedness of appellee and partner to this banking house, or merely for safe keeping, is a fact STURGES v. KEITH. 607 as to which the evidence of the parties is conflicting. It, however, does appear, that at the time of leaving the stock and closing the ar- rangement in reference to it, appellee executed a power of attorney to the Sturges last named, authorizing him to sell and transfer the stock, and there is nothing in this record which discloses that appel- lee ever attempted, by any express act of revocation, or by giving instructions inconsistent with such power of attorney, to revoke the same, until about the 22d day of March, 1866, when he caused a de- mand in writing, for the return of the stock to him, to be served upon said "William, and in July next thereafter commenced this suit against all the parties above named, for the wrongful conversion of the stock. It further appears, by the evidence in the case, that in Septem- ber, 1864, Albert and Buckingham Sturges bought out the other members of the firm, the latter then retiring therefrom, and the for- mer continuing the business. And also that in the latter part of January, 1865, William Sturges sold the stock in question ; but it does not appear that any of the other defendants participated in the act, either by previous command or subsequent ratification, except the mere fact that the transaction was entered in the books of the firm, then composed of Albert and Buckingham Sturges only. [The learned judge, after discussing questions relating to the right of action, proceeded as follows :] The only other question discussed in this case, is the measure of damages, and the propriety of the instruction to the jury by the court below, on that subject, the substance of which was, that if the jury found the defendants guilty, then, inasmuch as the plaintiff had elected to take it, the measure of damages was the market value of the stock at the time of the trial, together with the cash dividends declared since February, 1865, and the jury was at liberty to allow interest on such dividends at the rate of six per cent, per annum from the time of their respective payments by the railroad com- pany. It appears in the case that the stock was sold in January, 1865, for $93 per share, which is claimed to have been its then market value. The demand was made for it by appellee in March, 1866. In July next thereafter, this suit was commenced ; but it was not tried until the October term, 1868, at which time the stock had ad- vanced to $151 50 per share. Under the instructions given, the jury found all the appellants guilty, and assessed appellee's damages at $47,058 06, and must therefore have determined the value of the stock at the market price at the time of the trial. 608 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. Neither the last mentioned instruction nor any other, contained any hypothesis as to whether the suit had been brought within a reasonable time, or prosecuted with diligence, or whether from the evidence the conduct of appellants was fraudulent, or whether from the evidence there was good reason for believing thai appel- lee procured the stock for a permanent investment, or would have kept it so as to have realized the price ruling at the time of the trial. . The rule of damages adopted by the circuit court must, there- fore, have excluded all consideration of punitive or exemplary dam- ages, and have been based upon the sole idea of indemnity to appel- lee, and virtually declares that the bailor may bring his suit at any time within the period of the statute of limitations, and then, upon the arbitrary presumption of law, that he originally obtained the stock for a permanent investment, and would have kept it until the time of the trial, he is allowed to elect to take the price at that time as the measure of damages, thus making the measure of damages depend upon presumptions that may be against the fact — the cir- cumstance of venue, and the strategy of movement as to the time of trial, instead of any fixed or definite rule. In Suydam v. Jenkins (3 Sandf. 626), the court, in an opinion delivered by Duek, J., and remarkable for its ability, research and thoroughness, says : " In trover, the general rule, both in England and the United States, undoubtedly is, that the current or market value of property at the time conversion, with interest from that time until the trial, is the true measure of damages ; " citing, in sup- port of the proposition, a large number of cases, to which may be added : Moody v. Whitney (38 Me. 174) ; Walker v. Borland (21 Mo. 289-291) ; Baltimore M. Ins. Co. v. Dalrymple (25 Md. 272) ; Park v. Boston (15 Pick. 198) ; Greenl. Ev. vol. 2, § 276 ; Id. § 649 ; Sedg. on Dam. (marg. p.) 481 ; Keaggy v. Hite (12 111. R. 99) ; Otter v. Williams (21 Id. 118) ; Yates v. Mullin (24 Ind. R. 277). There can be no doubt but that the rule adopted by the learned circuit judge was based upon a supposed exception to the general rule of damages, on account of the subject-matter of the action being stocks. Such an exception to the general rule of damages in actions ex contractu was made in England as early as 1802, in the case of Shepherd, executor, etc. v. Johnson (2 East, 211). This case was a writ of inquiry to assess damages on a bond given by the de- fendant, conditioned that his co-obligor should replace a certain quantity of stock which the testator had ient him, and which was to have been replaced on the first of August, 1799. By the general STURGES v. KEITH. 609 rule of damages, the recovery would have been for the market value at or about the day it should have been delivered. But because it was stock, an exception was made to this general rule ; and the stock having advanced, the court held the market value at the time of the trial, was the proper rule of damages. Nothing short of that, it was thought, would afford complete indemnity to the plaintiff for the breach of the engagement, and thus this exception to the general rule originated from a ground merely conjectural and speculative, viz. : that the plaintiff would have kept his stock so as to realize the price at the trial. From that time to 1824, the cases of Mc Arthur v. Seaforth (2 Taunt. 258); Downs v. Back (L Stark. R. 318), and Harrison v. Harrison (1 Car. & P. 411), were decided, recognizing the same exception. In Gainsford v. Carroll, it was sought to apply the rule of the foregoing cases in an action of assumpsit for not de- livering goods upon a particular day, but which had not been paid for ; but the court said, " Those cases do not apply to the present. In the case of a loan of stock, the borrower holds in his hands the money of the lender, and thereby prevents him from using it alto- gether." But in Greening v. Wilkinson (1 Car. & P. 623, tried in 1825), which was trover for East India Co.'s warrants for cotton, evidence was given that the cotton was worth sixpence per pound on the day of the refusal to deliver it up, but at the time of the trial would be worth ten pence half-penny. For the defendant it was contended that, on the authority of the case of Mercer v. Jones (3 Camp. 477), the damages should be the value at the time of the conversion ; but for the plaintiff, that it must be the price at the time of the verdict, in the same way as damages for the non-performance of an agreement to replace stock. Abbott, Ch. J., said the case of Mercer v. Jones was hardly law, and that the amount of damages, is for the jury, who may give the value at the time of the conversion, or at any subsequent time, in their discretion, because the plaintiff might have had a good oppor- tunity of selling the goods if they had not been detained. Mercer v. Jones (supra), was trover for a bill of exchange, and Lord Ellexbokough said : " In trover, the rule is that the plaintiff is entitled to damages equal to the value of the article converted, at the time of the conversion," and directed a verdict for the amount of the bill and the interest up to the time of the conversion. Al- though Abbott, Ch. J., declared that this case was hardly law, yet, in Keaggy v. Hite (supra), which was trover for a note and mort- gage, this court, in announcing the rule of damages, said : " The 39 '610 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. plaintiff, if entitled to recover at all, is entitled to a verdict for the full amount due upon tlie note and mortgage at the time of the con- version," and this rule, which was precisely the same as that laid down by Lord Ellenborough in Mercer v. Jones (supra), was again approved by this court in Otter v. Williams (supra). It is true, that in the former case, Mr. Justice Trembull, who delivered the opinion of the court, cited the case of Cortelyou v. Lansing (2 Caine's Cases in Error), in support of the rule. It is dif- ficult to understand why that case was cited for that purpose. That was an action of assumpsit, to recover the value of a depreciation note, which had been left with the defendant as a pledge for the se- curity of a debt, but which had been wrongfully sold by the pledgee more than ten years before the demand and refusal. The court held that the demand and refusal did not show a cause of action, because the plaintiff did not show that at the time of the demand, he was ready and willing to tender the amount of the debt ; and citing the case of Shepherd v. Johnson (2 East), approvingly, further held that, although the demand and refusal did not constitute or afford evidence of the cause of action, but that the sale of the note ten years before, did, yet the plaintiff was entitled to recover the value of the note at the time he chose to demand it. Though this case was decided twenty years before that of Greening v. "Wilkinson (1 Car. & P. supra), the rule of damages is the same as in the latter, and the latter repudiated that of Mercer v. Jones, which is the same this court adopted in Keaggy v. Llite (supra). It is very manifest that this court, in the citation of Cortelyou v. Lansing, did not intend to adopt the rule of damages therein recog- nized.* Because the case in which it was cited was decided at the Mount Vernon term of December, 1850, and at the Springfield term in the same month, the case of Smith et al. v. Dunlap (12 111. 184), was decided ; and in the well-considered opinion of the court, delivered by Chief Justice Treat, the doctrine of Shepherd, exec- utor, v. Johnson (2 East), of McArthur v. Seaforth (2 Taunt.) ; Downs v. Back (1 Stark.), and Harrison v. Harrison (1 Car. & P. * Note by the reporter : On the argument of the case of Barrow v. Paxton, 5 Johns. R. 260, the counsel for the defendant in error cited the case of Cortelyou v. Lansing, when he was interrupted by Mr. Chief Justice Kent, who remarked : " That case was never decided by this court. It was argued once, and I had prepared the written opinion, which appears in the report of Mr. Caines ; but the court directed a second argument, which, for some reason or other, was never brought on, so that no decision took place on the points raised in the cause. How my opinion got into print, I do not know. It was probably lent to some of the bar, and a copy taken, which the reporter has erroneously published as the opinion of this court." STURGES v. KEITH. 611 supra), recognizing this supposed exception to the general rule of damages, when the subject matter of the action was stock, or the delivery of goods, the price of which had been prepaid, is expressly repudiated, and which doctrine, we believe, still remains under the repudiation of a very strong, if not prevailing current of American authorities (Pinkerton v. Manchester cfc Lawrence R. R. (42 Xew I lamp. R. -±-4), and cases there cited ; Sleuter et al. v. Wallbaum (45 111. 43). A majority of the court are unwilling to give our adherence to this doctrine of exception to the general rule of damages because the subject matter of the action happens to be stock ; because, if there were a just foundation for the distinction, in the clays of Mr. Justice Grose, and when Shepherd v. Johnson was decided, the changes of time and commerce have long since worn it away. It is a fact, and one to which we can not shut our eyes, that within the last cpiarter of a century almost numberless private corporations have been brought into existence, whose stocks, real or fictitious, have inundated the country, and supplied both the means and the stimulus for the most active, reckless and corrupting speculations and practices of the age. These are encouraged by the fact that now and then, though the value of the franchise itself is the only capital, though it may be based upon lands, oil wells, mines, patent rights or railroad schemes, yet, by the development of the country, or some fortuitous circumstance, persons occasionally realize great fortunes in these operations. Stocks, that cost the owner little or nothing, now and then advance to par, and above. Suppose the owner of such stocks should pledge them when not worth ten cents on the dollar, and the pledgee convert them. They cost the owner little or nothing. Circumstances arise, however, which enhance their value. By delaying his suit, or the trial of it, until those circumstances have had their full effect, the plaintiff, by invoking the aid of the pre- sumptions: 1st. That he had parted with his money for the stock ; 2d. That he obtained the stock as a permanent investment : and, 3d. That it is to be presumed that he would have kept it until the time of the trial, can elect to take the market value at the time of trial, when each of these presumptions is as baseless as the fabric of a dream. Such a rule, instead of being general, fixed and certain, is merely speculative, conjectural, and dependent upon accidental cir- cumstances. In Smith et al. v. Dunlap (supra), this court said that. " legal rules ought to be general in their application, so far as to embrace all cases depending on the same principles." Believing that to be a 612 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. sound maxim, a majority of the court adhere to the general, well ■established rule in this State, viz. : that the proper measure of dam- ages in an action of trover, is the current market value of the prop- erty at the time of the conversion, with interest from that time un- til the trial, and recognize no exception where the property con- verted happens to be stocks. Where the demand and refusal either constitute the conversion or afford presumptive evidence of it, it is no infringement of this rule to regard that as the time for estimating the value ; and when the article converted is one which has no real market value, but its value is enhanced to the owner by personal or family considerations, then, from the necessity of the case, the rule of damages would be -measurably within the discretion of the jury. We think the evidence offered by the plaintiff, and excluded by the court, tending to show that the railroad company was about to, and did, increase the stock, and that owners of stock were, by its regulations, to have a certain pro rata of the new stock at reduced rates, was admissible — not to enable the plaintiff to recover the value -of the new stock, as special damages, but as being a circumstance which would legitimately bear upon the question of the value of the stock converted. As in trover for a ship, the plaintiff sought to prove, as special damages, the freight she would have earned on the next voyage, but it was held by the court that such circumstance must be included in the value of the ship itself (Mayne on Dam. 213). If the plaintiff had conceived that there was fraudulent miscon- duct on the part of the defendants, which called for exemplary dam- ages, or if he could lay the foundation for special damages, the way was open to him to. join special counts in case, when such miscon- duct would have been directly in issue. But we cannot, from any considerations of supposed hardship of the case, extend the ac- tion of trover beyond its legitimate scope, " for trover, though nominally an action of tort, is usually brought to establish a mere right of property, and does not, like trespass, admit of evidence of aggravation " (Sedg. on Dam. §467). For the errors indicated, the judgment of the court below must be reversed and the cause remanded. Judgment reversed. BAKER v. DRAKE. 613 Rule of Damages in Action for Conversion. COURT OF APPEALS, NEW YORK. [1873.] Baker v. Drake, et at (53 IS". Y. 211). In civil actions the law awards to the party injured a just indemnity for the wrong which has been done him, and no more, whether the action be in contract or tort, and except in those special cases where punitory damages are allowed, the inquiry must always be, what is an adequate indemnity to the party injured, and the answer to that inquiry cannot be affected by the form of the action in which he seeks his remedy. The rule for the measure of damages in cases of unauthorized sale of stock, adopted in Markham v. Jaudon (41 N. Y. 235), giving the plaintiff " the difference between the amount for which the stock w T as sold by the defendants, and the highest market value which it reached at any time after such sale down to the day of trial," allows more than a just indemnity, and cannot be upheld. Where stock purchased upon speculation is s )ld by a broker without orders, the princi- pal may disaffirm the sale and require the broker to replace the stock, and upon the broker's failure to do so, may replace the stock himself, and the expense of so replacing it within a reasonable time is the proper measure of damages. This was an appeal from a judgment of the general term of the Supreme Court in the first judicial department, affirming a judg- ment on a verdict for the plaintiff. The action was brought for the unauthorized sale by the defendants, who were stockbrokers, of 500 shares of stock of the Chicago & Alton Railroad Company. The material facts are stated in the opinion. Rapallo, J. — The most important question in this case is that which relates to the rule of damages. The judge at the trial, following the case of Markham v. Jaudon (41 !N\ Y. 235), instructed the jury that the plaintiff, if entitled to recover, was entitled to the difference between the amount for which the stock was sold by the defendants and the highest market value which it reached at any time after such sale down to the day of trial. This rule of damages has been recognized and adopted in several late adjudications in this State in actions for the conversion of property of fluctuating value ; but its soundness, as a general rule, applicable to all cases of conversion of such property, has been seriously questioned, and is denied in various adjudications in this and other States. This court has, in several instances, intimated a willingness to re- 614 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. examine the subject, and in Mathews v. Goe (49 N. Y. 57), per Church, Ch. J., stated very distinctly that an unqualified rule, giving a plaintiff in all cases of conversion the benefit of the highest price to the time of trial, could not be upheld upon any sound principle of reason or justice, and that we did not regard the rule referred to so firmly settled by authority as to be beyond the reach of review, whenever an occasion should render it nec- essary. "Whether the present action is one for the conversion of property of the plaintiff, or for the breach of a special contract, presents a serious question, but that inquiry is perhaps unimportant on the question of damages and will be deferred for the present, and the case treated as if it were one of conversion. Regarding it in that light, the question is whether or not, under the circumstances of the case, the rule adopted by the court below affords the plaintiff more than a just indemnity for the loss he sus- tained by the sale of the stock. It is not pretended that the defend- ants realized any profit by the transaction, and therefore the inquiry is confined to the loss sustained by the plaintiff. It does not appear that there was any express contract made between the parties, defining the terms upon which the defendants were to purchase or carry stocks for the plaintiff. All that appears upon that subject in the evidence is, that the plaintiff, through his friend Rogers, deposited various sums of money with the defendants, and from time to time directed them to purchase for his account shares of stock to an amount of cost from ten to twenty times greater than the sums deposited ; which they did. No agreement as to margin or as to the carrying of the stock by the defendants is shown by the evidence, but the plaintiff alleges in his complaint that the agreement was that he should deposit with the defendants such collateral security or margin as they should from time to time require ; and that they would purchase the stock and hold and carry the same, subject to the plaintiff's direction as to the sale and disposi- tion thereof, as long as the plaintiff should desire, and would not sell or dispose of the same unless plaintiff's margin should be exhausted or insufficient, and not then, unless they should demand of the plaintiff increased security, or require him to take and pay for the stocks, and give him due notice of the time and place of sale, and due oppor- tunity to make good his margin. The answer denies only the agreement to give notice of the time and place of sale, admitting by implication that in other respects the agreement is correctly set forth. BAKER t. DRAKE. 615 This is all that appears upon the record in reference to the con- tract under which the stocks were purchased. The transactions under this contract appear in detail by a final account rendered by the defendants to the plaintiff, after the stock had been sold. This account was upon the trial admitted to be correct, the plaintiff reserving the right ouly to dispute certain charges of interest, which, however, if successfully assailed, would not vary the result to an extent sufficient to affect the reasoning based upon it. From this account it appears that the plaintiff had, during the whole course of his transactions with the defendants, advanced in the aggregate $4,240 toward the purchase of shares, which, at the time of the alleged wrongful sale, November 14, 1868, had cost the defendants upward of $66,300 over and above all the sums so ad- vanced by the plaintiff. By the stock lists in evidence it appears that these shares were then of the market value of less than $67,000, and the surplus aris- ing from the sale, after paying the amount due the defendants, amounted to only $558, which sum represents the value at that time of the plaintiff's interest in the property sold. It so happened, however, that within a few days after the sale the market price of the stock rose, and that at the time of the commence- ment of this action, November 24, 1868, the shares would have brought some $5,500 more than the sum for which they had been sold. But after the commencement of the action, and before the trial, the stock underwent alternate elevation and depression, and reached its maximum point in August, 1869, at which time one sale, of thirty shares at 170 per cent., was proved. It afterward declined, and on the day preceding the trial, October 20, 1869, the price was 143, having, for a month previous to the trial, ranged between 137 and 145. The jury, in obedience to the rule laid down by the court, found a verdict for the plaintiff for $18,000, being just the difference between 134, which was the average price at which the defendants sold, and 170, the highest price touched before the trial ; thirty-six per cent, on 500 shares. More than two-thirds of this supposed damage, arose after the bringing of the suit. This enormous amount of profit, given under the name of dam- ages, could not have been arrived at except upon the unreasonable supposition, unsupported by any evidence, that the plaintiff would not only have supplied the necessary margin and caused the stock to be carried through all its fluctuations until it reached its highest 61G CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. point, but that he would have been so fortunate as to sieze upon that precise moment to sell, thus avoiding the subsequent decline, and realizing the highest profit which could have possibly been derived from the transaction by one endowed with the supernatural power of prescience. In a case where the loss of probable profits is claimed as an element of damage, if it be ever allowable to mulct a defendant for such a conjectural loss, its amount is a question of fact, and a finding in respect to it should be based upon some evidence. In respect to a dealing which, at the time of its termination, was as likely to result in further loss as in profit, to lay down as an inflexible rule of law that as damages for its wrongful interruption the largest amount of profit which subsequent developments disclose might, under the most favorable circumstances, have been possibly obtained from it, must be awarded to the fortunate individual who occupies the position of plaintiff, without regard to the probabilities of his realizing such profits, seems to me a wide departure from the elementary principles upon which damages have hitherto been awarded. An amount sufficient to indemnify the party injured for the loss, which is the natural, reasonable and proximate result of the wrongful act complained of, and which a proper degree of prudence on the part of the complainant would not have averted, is the measure of damages which juries are usually instructed to award, except in cases where punitive damages are allowable. Before referring to the au- thorities which are supposed to govern the question, I will briefly sug- gest what would be a proper indemnity to the injured party in a case like the present, and how greatly the rule under consideration exceeds that just limit. The plaintiff did not hold the stocks as an investment, but the object of the transaction was to have the chance of realizing a profit by their sale. He had not paid for them. The defendants had sup- plied all the capital embarked in the speculation, except the compara- tively trifling sum which remained in their hands as margin. As- suming that the sale was in violation of the rights of the plaintiff, what was the extent of the injury inflicted upon him ? He was deprived of the chance of a subsequent rise in price. But this was accompanied with the corresponding chance of a decline, or, in case of a rise, of his not availing himself of it at the proper moment ; a continuance of the speculation also required him to supply further margin, and involved a risk of ultimate loss. If, upon being informed of the sale, he desired further to prose- cute the adventure and take the chances of a future market, he had BAKER v. DRAKE. 617 the right to disaffirm the sale and require the defendants to replace the stock. If they failed or refused to do this, his remedy was to do it himself and charge them with the loss reasonably sustained in doing so. The advance in the market price of the stock from the time of the sale up to a reasonable time to replace it, after the plaint- iff received notice of the sale, would afford a complete indemnity. Suppose the stock, instead of advancing, had declined after the sale, and the plaintiff had replaced it, or had full opportunity to replace it, at a lower price, could it be said that he sustained any damage by the sale ; would there be any justice or reason in permitting him to lie by and charge his broker with the result of a rise at some remote subsequent period ? If the stocks had been paid for and owned by the plaintiff', different considerations would arise, but it must be borne in mind that we are treating of a speculation carried on with the capital of the broker, and not of the customer. If the broker has violated his contract, or disposed of the stock without authority, the customer is entitled to recover such damages as would naturally be sustained in restoring himself to the position of which he has been deprived. He certainly has no right to be placed in a better position than he would be in if the wrong had not been done. But the rule adopted in Markham v. Jaudon, passing far beyond the scope of a reasonable indemnity to the customer whose stocks have been improperly sold, places him in a position incomparably superior to that of which he was deprived. It leaves him, with his venture out, for an indefinite period, limited only by what may be deemed a reasonable time to bring a suit and conduct it to its end. The more crowded the calendar, and the more new trials granted in the action, the better for him. He is freed from the trouble of keep- ing his margins good and relieved of all apprehension of being sold out for want of margin. If the stock should fall or become worth- less he can incur no loss, but, if at any period during the months or years occupied in the litigation, the market price of the stock happens to shoot up, though it be but for a moment, he can, at the trial, take a retrospect and sieze upon that happy instant as the opportunity for profit of which he was deprived by his transgressing broker, and compel him to replace with solid funds this imaginary loss. Xo reasons are given, in the prevailing opinion in Markham v. Jaudon, in support of the rule of damages there laid down. All that is said upon the subject is, that the action is for the conversion of the stock, and that the rule of damages was correctly laid down bv the court at the trial. And the cases of Ivomaine v. Van Allen 618 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. (26 N. Y. 309) ; Scott v. Kogers (31 id. 676), and Burt v. Dutcher (31 id. 103), are cited as establishing that proposition. It will be well to refer for a moment to those cases, which are the only ones referred to by the court in Markham v. Jauclon, on the question of damages. Romaine v. Van Allen was an action for the wrongful conversion, by a bank, of shares of stock actually owned by the plaintiff and deposited by him with the bank as security for a loan of money for which the plaintiff had given his personal obligation, with authority to sell the shares only in case the plaintiff should, on demand, fail to repay the loan. It did not appear that the shares were held for spec- ulative purposes, but it was justly inferable, from the circumstances, that they were held for investment, and would have been retained by the plaintiff but for the wrongful sale. The bank sold the shares without any notice or demand ' of payment. On being informed of the sale, the plaintiff promptly refused to ratify it, and required the bank to replace the shares. Pending negotiations with that view the bank failed, and the defendant was appointed receiver. The plaintiff presented Ins claim to the receiver, demanding the highest price which the stock had reached up to the time of the claim, and giving notice that, if compelled to resort to an action, he should claim the highest price down to the time of trial. The trial was had before a referee, and consumed from October 25, 1861, to July 25, 1862, a period of nine months. The stock reached its highest point on the 30th of June, 1862, and the price on that day was adopted in measur- ing the damages. Remarks upon this case will be deferred until the others have been stated. The next case cited is the later one of Scott v. Rogers (31 N". Y. 676), in which a different rule was sanctioned. In that case a sale of wheat by an agent was held to have been in violation of the instruc- tions of his principal, and the agent was determined to be liable as for a conversion of the wheat. The action was not brought until more than four years after the alleged conversion, during which period there had been great fluctuations in the market price of the article. That case was twice argued, the court on the first argument being equally divided. The rule of damages finally adopted was that the plaintiff should be allowed the highest market price which the property reached between the time of the conversion and a reason- able time thereafter to commence the action, and under the special circumstances of that case, a finding that a period of about four months w r as such reasonable time was sustained. This rale neces- BAKER v. DRAKE. 619 sarily limits the range of prices to a period prior to the commence- ment of the action, if brought within a reasonable time, and, if unreasonably delayed, then to the period within which it should have been brought, and, in either case, excludes prices prevailing after the commencement of the action. But it may be justly said that the question whether the prices prevailing after the commencement of the action could be considered was not directly involved in the judg- ment in Scott v. Rogers, as the judgment of the court below in that case limited the inquiry to a reasonable time within which to com- mence the action, and this court merely affirmed that judgment, which it might have done even had it thought the rule too favorable to the defendant, who was the only appellant. Though the rule sanctioned in Scott v. Rogers materially differs from that adopted in Romaine v. Van Allen, the case of later date cannot be regarded as overruling the earlier. Burt v. Dutcher (31 X. Y. 493), was an action for tortiously taking and converting hops belonging to the plaintiff, and the measure of damages was held to be the highest market price of the hops between the time of the taking and that of the trial. The amount dependent upon the rule of damages was very insignificant ; the question was not discussed, but treated as definitely determined by the cases of Romaine v. Tan Allen and Scott v. Rogers. This case adds no force to those decisions, but is independent upon them. Scott v. Rogers, as has been shown, is not an authority in favor of the rale under consideration. Romaine v. Van Allen is the only one referred to in Markham v. Jaudon which gives substantial support to the conclusion there reached. The authorities upon which the decision in Romaine v. Yan Allen was based, should, therefore, be examined. The first case referred to is Cortelyou v. Lansing (2 Caine's Cases in Error, 200). That was an action of assumpsit for the value of a certificate of public debt of the nominal value of 82,600, which had been pledged, under a written contract to restore it on repayment of a loan of $600 and interest, and had been unlawfully sold by the pledgor without demand or notice. The rule of damages adopted was the value of the certificate at the time at which the plaintiff demanded its restoration. It may be as well to remark here as anywhere, that the rule of damages should not depend upon the form of the action. In civil actions the law awards to the party injured a just indemnity I'm- the wrong which has been done him, and no more, whether the action be in contract or tort; except in those special cas,'< where punitory damages are allowed, the inquiry must always be. what is an adequate 620 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. indemnity to the party injured, and the answer to that inquiry cannot be affected by the form of the action in which he seeks his remedy. Chancellor Kent, in delivering the opinion of the Court of Errors (Cortelyou v. Lansing), though the action was in assumpsit, seeks the rule of damages in the principle application to an action for conver- sion. He says : " The value of the chattel, at the time of its conversion, is not in all cases the rule of damages in trover. If the thing be of a determinate and fixed value, it may be the rule, but when there is an uncertainty or fluctuation attending the value, and the chattel afterward rises in value, the plaintiff can only be indem- nified by giving him the price of it at the time he calls upon the defendant to restore it ; and one of the cases even carries the value down to the trial." The case which Chancellor Kent here refers to is that of Shepherd v. Johnson (2 East, 211), and it is principally from a misapplication, if not misapprehension, in later opinions, of what was decided in that case, and in those of McArthur v. Seaforth (2 Taunt. 257), and Harrison v. Harrison (L Carr. & P. 412), which followed it, that the doctrine of allowing the highest price at any time down to the day of trial has arisen. Those three cases were all actions of debt on bonds conditioned for the return of government stocks loaned. It was assumed that the lender had them for investment. The rate of damages allowed was the price at the time of the trial, which was higher than that at the time the stock ought to have been returned ; but there is nothing in these cases sanctioning the allowance of any higher price which might have prevailed at an intermediate day. The ground upon which the price at the time of trial was allowed, was that the plaint- iff should be placed in the same situation in which he would have been had the stock been replaced at the stipulated time, and that the court would not act upon the possibility of his not keeping it, but upon the presumption that he would have retained it till the day of trial, and hence its price at that time was the proper indemnity. This rule necessarily excludes any hypothetical damage based upon the supposed loss of an opportunity to sell the stocks at an intermedi- ate time. A claim for a similar loss was made in one of the cases cited (McArthur v. Seaforth"), where, had the stock been replaced at the proper time, the plaintiff might have availed himself of an option given by the government, of exchanging it for other stock which at the time of trial was of greater value than the stock loaned. But this claim was rejected, it not having been shown to be probable that the plaintiff would have made the exchange (Greening v. "Wilkinson, 10. & P. 025; also cited in romaine v. Van Allen), is a brief nisi BAKER v. DRAKE. 621 jprius decision of Ch. J. xYbbott in an action for the conversion of cotton warrants, in which he says that the amount of damages is for the jury, who may give the value at the time of the conversion or at any subsequent time in their discretion, because the plaintiff might have had a good opportunity of selling the goods if they had not been detained. This is the nearest approach to an authority in favor of Romaine v. Tan Allen to be found in any of the English authorities cited, and although but a nisi jprius decision, is entitled to great respect on account of the eminence of the judge who pronounced it. Still it falls short of sanctioning the doctrine that as a fixed rule the plaintiff is absolutely entitled to recover the highest price prevailing at any time before the end of the trial, without any evidence show- ing that it was even probable that he would have realized such price. Far from laying down any such rule, Abbott, Ch. J., says that the amount of damages is for the jury, who may in their discretion allow the value at a subsequent time to indemnify against the loss of an opportunity of selling. It is to be supposed that in the exercise of this discretion the jury are to be governed by the evidence, and that they must be satisfied that the plaintiff would have made the sale had the goods not been detained. In Kortright v. The Commercial Bank of Buffalo (20 Wend. 91,) the action was assumpsit for refusing to allow a transfer of shares of bank stock upon which the plaintiff had advanced money. The measure of damages adopted was the highest price between the refusal and the commencement of the suit. This was affirmed by the Court of Errors (22 Wend. 348), Senator Yekplaxck going further than the court below, and expressing the opinion that the defendant was liable for the highest price before the trial; citing West v. Wentworth (3 Cow. 82), and Clark v. Pinney (7 Cow. 596). These were actions for the non-delivery of merchandise in pursu- ance of a contract of sale, and the extreme rule was applied of allow- ing to the vendee, as damages, the highest value up to the time of trial. This rule was, however, strictly confined to cases where the purchase-price had been paid in advance, it being conceded that in the ordinary case where the price was to be paid on delivery, the only rule is the market value on the clay appointed by the contract for their delivery. It cannot be disputed that this distinction, though questioned by high authority, has long been acted upon in this State in respect to contracts for the sale and delivery of goods. The reason upon which it is founded is that, where the purchaser has not paid for the goods, he may, on the refusal of his vendee to deliver, go into the market and buy goods of a similar quality, and that what 622 CONVERSION. RULES OF HIGHER INTERMEDIATE VALUE. it would cost him to do this is the just measure of his damages ; but that where he has paid the purchase-money, it is unreasonable to require him to pay it a second time, and therefore all fluctuations in price should be at the risk of the vendor who refuses to deliver, while retaining the purchase-money. The very reasoning upon which these decisions are founded demonstrates their inapplicability to a case like the present, where the purchase-money of the stocks has not been paid by the complaining party, and the only additional payment which he would be required to make for the purpose of replacing the stocks would be such as was occasioned by the rise in the market price. The case of Allen v. Dykers (3 Hill, 593 ; affirmed, 7 id. 497), is also referred to in Romaine v. Van Allen. Shares of stock had been deposited with the defendants as collateral security for a loan, for which a note on time was given, containing authority to sell the stock on non-payment of the note at maturity. The defendants sold a portion of the stock before the maturity of the note, and the plaintiff brought his action to recover the difference between the value of the stock and the amount of the note. There was evidence, consisting of a book kept by the defendants, that they had been dealers in the stock and had realized $99.50 per share for some of it, which they had sold in the interim, and damages were awarded at that rate. In the Supreme Court the question of damages was not discussed. All that there appears upon the subject is in the opinion of Nelson, Ch. J., who says that he does not perceive any ground for interfering with the verdict because of the rule of damages adopted by the circuit judge, and in the Court of Errors the question of damages is not adverted to. Not much aid is to be derived from that case. The most thorough consideration of the subject to be found in any reported case is contained in the extremely able opinion of Duek, J., in Suydam v. Jenkins (3 Sandf. Sup. Court Reports, 619 to 647), where that accomplished jurist reviews, with great discrimination, many of the cases here referred to, and others which have not been cited, and arrives substantially at the same conclusion as that reached by Ciiukcii, Ch. J., in Matthews v. Coe (49 N". Y.), that the highest price which the property has borne at any time between its conver- sion and the trial cannot in all cases be the just measure of damages. The reasoning contained in that opinion is of such force as to out- weigh the apparent preponderance of authority in favor of the rule claimed, and demonstrates its fallacy when applied to the facts of the present case, whether the cause of action be deemed for conversion of property or the breach of a contract. BAKER v. DRAKE. 623 When we consider the opposition which this rule has constantly encountered in the courts, the variety of the judgments in the cases in which it has been invoked, and the doubting manner in which it has been referred to by eminent jurists, whose decisions are cited in its support, it cannot be regarded as one of those settled rules to which the principle of stare decisis should apply (See Starbuck v. Cortazzi, 2 Cr. Mees. & Rose. 165 ; 2 K. Com. 637, 11th ed. note , Owen v. Eouth, 14 C. B. 327; Williams v. Archer, 5 Man. Gr. & Scott, 318 ; Archer v. Williams, 2 Car. & Kir. 26 ; Rand v. White Mountains R. R, Co. 40 K H. 79 ; Brass v. Worth, 40 Barb. 648 ; Pinkerton v. Manchester R. R. 42 K H. 424 ; 45 K H. 545, and the able review of the subject in Sedgwick on Damages, pp. 550 to 555, note, 5th ed.). It seems to me, after as full an examination of the subject as circumstances have permitted, that the dissenting opinions of Grover and Woodruff, JJ., in Markham v. Joudon, embody the sounder reasons, and that the rale of damages laid down in that case and fol- lowed in the present one is not well founded, and should not be sus- tained. For this reason, without passing upon the other questions in- volved in the case, I think the judgment should be reversed and a new trial ordered, with costs to abide the event. All concur. Judgment reversed. Note. — See Baltimore City Passenger Railway Co. v. Sewell, 35, Md. 238. In the case of the Bank of Montgomery v. Reese, 26 Penn. St. 143 (185G). it is held as follows : " The case of stock is an exception to the general rule applicable to chattels. It is made an exception in obedience to the paramount obligation to indemify the party for his loss. The rule of convenience gives place to the rule of justice. The moment we proceed, on this ground, to take it out of the general rule, we are obliged to substitute one that will do complete justice to the party injured. 'The question is, what did the plaintiff lose?' Kimmel v. Stoner, 6 Harris, 157. He is entitled to all the advantages he could have derived from the stock, if it had been delivered at the specified time. Harrison v. Harrison, 1 C. & P. 412. Those advantages are the highest market value between the breach and the trial, together with the lomis and dividends which have been received in the mean- time. Vaughan v. Wood, 1 Mylne & Keene, 403. This is the rule where the consideration has been paid. Where it has not been paid the plaintiff should be allowed the difference between it and the value of the stock, together with the difference between the interest on the consideration and the dividends on the stock." The rule of damages laid down in the foregoing case was adhered to by the ccurt. Whelan v. Lynch, GO X. Y. 409. 624 TROVER. TROVER. Trover ; Payment in Advance ; Hesale by Defendant. SUPREME JUDICIAL COURT, MASSACHUSETTS. [1827.] Kennedy v. Whitwell (4 Pick. 4G6). In trover, the value of the article at the time of the conversion, with interest from that time to the time of the trial, is the measure of damages ; and the facts, that before the convention, the plaintiff, as vendee, paid the defendant f<>r the article, and the defendant, before the trial, resold it at an advanced price, do not take the ca^se out of the rule. Trover for forty barrels of gin sold by the defendants to the plaintiff, on the 22d of February, 1826, at the rate of about 30 cents a gallon. On the 22d of March the plaintiff paid the price and de- manded the gin, but the defendants refused to deliver it ; and on the 15th of June, this action was commenced. On the 11th of No- vember, which was before the trial, the defendants resold the gin for about 46 cents a gallon, the terms of sale being cash. The jury found a verdict for the plaintiff, and assessed damages in a sum equal to the value of the gin on the 22d of March, the time of the conversion, with interest from that time to the time of trial. F. Dexter contended that, as the vendee had paid the money for the article sold, and the vendor refused to deliver it, the vendee was entitled to the rise in value of the article ; that he might take as the measure of damages, either the value at the time of the conversion, or the value at the time of the trial, as in the case of contracts for replacing stock ; and as the article had been resold on the 11th of November, the price then obtained, with interest, was the value at the time of the trial (1 Carr. & Payne, 625 ; 2 Barnw. & Cresw. 624 ; 3 Cow. 82 ; 2 East, 211 ; 2 Taunt. 257 ; 3 Wheat. 204). W. Simmons, in support of the verdict, cited 1 Burr. 31 ; 3 Dane's Abr. 194 ; 3 Campb. 477 ; 2 Johns. Eep. 280 ; 3 Stark. Ev. 1503. Per Curiam. We see no reason for departing from the rule which we think has been invariably practised upon in this State, that in actions of trover, the value of the article sued for at the time of the conversion is to fix the damages. Judgment according to verdict. GREENFIELD BANK v. LEAVITT. 635 Trover ; General Rule ; Mitigation ; Restoration of Property ; Charges on it after Recovery ; Reward Paid for its Recovery. SUPREME JUDICIAL COURT, MASSACHUSETTS. [1835.] Greenfield Bank v. Horatio Leavitt (17 Pick. 1). Ia trover, the value of the property when converted, with interest from that time, is in general the measure of damages, and if the property is restored it goes in mitigation of damages; but if the restoration is obtained by the offer and payment of a reason- able reward, this amount, with interest from the time of payment, is to be deducted from the property restored. Trover. At the trial before Wilde, J., the plaintiffs proved that on January 28, 1833, they delivered to the defendant a package con- taining $7, 842 in bank bills, the property of the plaintiffs, and an- other package, the property of the Adams Bank, containing $4,188, which had been sent to the plaintiffs to be forwarded to the Globe Bank in Boston. The money was lost, and on January 30, 1833, the plaintiffs offered a reward of $1,000 to any person who would restore all the money, and a proportion of the reward for a proportion of the money. On February 6, 1833, the package of the Adams Bank was found and restored entire, and all the money belono-ino; to the plaintiffs, except $1,012 ; and on February 21st the plaintiffs paid to the finders $723, part of the reward of $1,000. On February 23d, the plaintiffs offered a further reward of $250 for the residue of the money lost, and on the 8th of May following, the whole of the residue, except $57, was found and restored to the plaintiffs. The property was of equal value when restored as when lost. On De- cember 10, 1833, the plaintiffs paid $155, part of the last-mentioned reward, and were discharged by the finders. The jury were instructed, that if they should return a verdict for the plaintiffs, the rule of damages would be the value of the property when converted ; that the restoration of the property would go in mitigation of damages ; but that if the jury thought the rewards offered were reasonable rewards, they should deduct the amount paid, with interest thereon from the times of payment, from the amount returned, and give the plaintiffs a verdict for the balance. To this instruction the defendant excepted. The jury returned a verdict for the plaintiffs for $1,009, and if 40 626 TROVER. the instruction was wrong, judgment was to be rendered for the plaintiffs for $57, and interest thereon from January 28, 1833, and for interest on the other sums from the time of conversion to the times at which they were restored ; otherwise judgment was to be rendered on the verdict. Putnam, J., delivered the opinion of the court. The general rule in trover, that the measure of damages is the value of the ar- ticles at the time of the conversion, with interest until the time of the verdict, is established in this commonwealth (Kennedy v. Whit- well, 4 Pick. 466). We are aware that it has been ruled differently by Abbott, Ch. J., in Greening v. Wilkinson (1 Carr. & P. 625) ; where he held, that the jury might iind the value at any subsequent time. But we adhere to the value at the time, as a rule which works well : and its certainty is quite an equivalent for its occasional want of perfect exactness. It is also well settled, that if the property for which the action is brought should be returned to and received by the plaintiff, it shall go in mitigation of damages. But if it became subjected to a charge after the conversion and before it was returned ; if, for example, the conversion were of a watch, which the defendant threw into a well, and the plaintiff hired a man to descend into the well and get it, the expense of reclaiming it should be deducted from the value, when returned. It is the charge that regulates the damages, as Thompson, J., said in Murray v. Burling (10 Johns. P. 176. As where one takes another's horse and leaves him at an inn, and the owner re- claims him, subject to the charge for his keeping. The damages are for the injury suffered, notwithstanding the owner has regained his property. And we do not think this comes within the rule of not allowing counsel fees. The fee bill is to be considered as the legal compen- sation for the costs. So that the true question is, whether the property for which this action was brought, and which has been returned and accepted, came into the hands of the plaintiffs, subject to the charge of the reward offered by the plaintiffs. It is contended for the defendant, that this would give to the plaintiffs a power to increase the damages at their discretion. And we know no reason, in the case, why it should not be so, confining the plaintiffs to the exercise of a sound discretion. The jury have settled that matter, and found that the reward was reasonable. We are therefore to presume that it was offered under a belief that it was necessary, and not with a view to oppress the defendants. The CHAMBERLIN v. SHAW. 627 plaintiffs became liable to pay the reward on the production of the money which had been converted by the defendant, and so the in- struction to the jury, that they should deduct the reward from the amount returned, was in our opinion correct. Let the judgment be entered for the plaintiffs according to the verdict. Trover ; Circuity of Action ; Lien. SUPREME JUDICL1L COURT, MASSACHUSETTS. [1836.] Chamberlin v. Shaw (18 Pick. 278). A farm and a certain number of sheep were leased, " to hold one year from the 1st of April, 1833, reserving 550 lbs. of wool of a quality of an average with the flock;" and it was further stipulated in the lease that the sheep should not be counted to the lessee till after shearing in June, 1833, and that they should be counted back to the lessor after shearing in June, 1834. The lessee sheared the sheep in June, 1834, and sold the wool. In trover by the lessor against the lessee and his vendee, it was held, that from April to June, 1834, the lessee had neither the general nor special property in the sheep, nor the legal custody or possession, but that he had a right by implica- tion to enter on the farm at a suitable time to shear them and count them out to the lessor ; that the general property in the sheep, and consequently in their wool, was in the lessor, and the implied stipulation, that the lessee should have all the wool over 550 lbs., was an executory contract, which vested no property in the lessee in any part of the wool before a separation of the 550 lbs. from the remainder, and as no separa- tion had taken place at the time of the sale and of the lessor's demand of the wool, the property continued in the lessor ; that the measure of the plaintiff's damages was the value of the 550 lbs. at the time of the conversion ; that as the two defendants were together and both in possession of the wool, and both refused to deliver it up on demand, there was a joint conversion which would sustain an action againt them jointly ; and that it was not necessary for the plaintiff to prove that the vendee had notice of the invalidity of the lessee's title. Trover for 1,000 lbs. of wool. Ebenezer T. Shaw, one of the defendants, was defaulted ; and the other, dishing Shaw, pleaded the general issue, which was joined. At the trial, before Wilde, J., the plaintiff produced a lease, not under seal, by which he leased to Ebenezer T. Shaw a farm in Wind- sor and 300 sheep, "to hold one year from the 1st of April, 1833, reserving 550 lbs. of wool of a quality of an average with the flock ;" and by the subsequent terms of the lease, it was agreed that the sheep should not be counted to the lessee till after shearing in June. 628 TROVER. 1833, and that they should be counted back to the plaintiff after shearing in June, 1834 ; the lessee to make good any deficiency, and to take the risk of the sheep till they were so counted back. There was no provision made for rent other than is above set forth. It appeared that the farm was, until April, 1833, in the tenancy of one Painter, who, by the terms of his lease, was to have one-half of the wool of the sheep from the shearing of the summer of 1833 ; that the plaintiff and Painter had the wool of that shearing accord- ingly ; that the farm was leased to one Trough, from April 1, 1834, out that he was not to have the wool of the sheep till the shearing of 1S35, the plaintiff and Ebenezer T. Shaw both saying to him, at the time of the letting, that Ebenezer was to have the wool of the shearing of 1834, excepting 550 lbs. thereof, which he was to render to the plaintiff for the rent of the previous year. Ebenezer T. Shaw sheared the sheep in June, 1834 ; and there was evidence tending to show a sale of the wool by him to Cushing Shaw. While Cushing had the wool in his possession, and was on the way with it, in company with Ebenezer, to his own residence, the agent of the plaintiff demanded of them 550 lbs. of the wool, claiming it by virtue of the lease from the plaintiff to Ebenezer; but Cushing refused to give up the wool. The defendants contended that, upon these facts, the plaintiff either had no property in the wool, or was a tenant in common with Ebenezer, and that, in either case, he could not prevail in this suit ; but the judge, for the purposes of the trial, ruled that the plaintiff could maintain the action for 550 lbs. of the wool. It appearing that there was more than 550 lbs. of the wool in the possession of Cushing, the plaintiff insisted that he had such a prop- erty in, or lien upon, the wool ; that damages should be assessed in his favor for the whole amount of the wool, including the excess over 550 lbs. ; but the judge ruled otherwise. The jury assessed damages for the plaintiff at the sum of $304 39.' The court were to render judgment on the verdict, or grant a new trial, or direct a nonsuit, according to the law. Shaw, C. J., delivering the opinion of the court, held that E. T. Shaw had, from April to June, 1834, neither general nor special property in the sheep, nor their legal custody or possession ; but had a right by implication to enter at a suitable time to shear them, and count them out to the owner ; also that the evidence showed a joint conversion sufficient to enable the plaintiff to maintain the action. The remainder of the opinion is as follows : CHAMBERLIN v. SHAW. 629 The court are, therefore, of opinion that, at the time of the shearing, the general property in the whole of the wool was in the plaintiff, and as no separation had taken place, it remained in him at the time of the conversion. It is then asked, if the plaintiff was the owner of the whole at the time of the conversion, why the damages should not have been as- sessed for the whole amount. In an action of trover, though the plaintiff's possession of the property has been violated, lie waives all claim to damages on account of that violation, and seeks an indemnity only for the loss of his property. Hence it is, that the value of the property at the time of the conversion is prima facie the measure of damages. Now if the case is so situated that the plaintiff can be indemnified by a sum of money less than the full value, there seems to be no reason why it should not be done, as where the plaintiff has a special property, sub- ject to which the defendant is entitled to the goods. For instance, a factor has a lien on goods to half their value. The principal be- comes bankrupt, and the property vests in his assignees, subject of course to all legal liens. The assignees denying and intending to contest the factor's lien, get possession of the goods and convert them. The factor brings trover, establishes his lien, and recovers. How shall damages be assessed ? If he recover the full value of the goods, he will be responsible directly back to the defendants them- selves for a moiety of the value. To avoid circuity of action, why should not damages be assessed to the amount of his lien ? He is fully indemnified, the balance of the value is in the hands of those entitled to it, and the whole controversy is settled in one suit. If the plaintiff is responsible over to a third person, or if, for any cause, the defendant is not entitled to the balance of the value, a very dif- ferent rule would prevail, and justice would require that the whole value of the property should be assessed to the plaintiff. Green v. Farmer, 4 Burr. 2214. This is such a case ; on a severance, the de- fendant, Ebenezer T. Shaw, would have been entitled to all over 550 lbs., and he transferred his right and interest to the other defend- ant. The plaintiff is indemnified by a recovery to the value of his 550 lbs., and he will be responsible over to no other person. We think, therefore, there is no reason to disturb the assessment of damages. 630 TROVER, Case for Wrongful taking of Property. SUPREME COURT, NEW YORK. [1838.] Bennett v. Lockwood et al. (20 Wend. 223). "Where a bailor had expended time and money in searching for property wrongfully taken from a bailee : Held, that the search was a natural and proximate consequence of the wrongful act, and therefore the expenses of searching could be recovered as part of the damage. Error from the Oswego Common Pleas. Lockwood and Carter having let for hire a horse and wagon to one Crippen, they were wrongfully taken from Crippen's possession by Bennett, who used them in his own business. The owners of the property brought suit against Bennett in a justice's court, alleging as special damage the expenses of searching for the property. The plaintiffs obtained a verdict for $32, and on appeal to the Oswego Common Pleas, a verdict was rendered in their favor for $53. The plaintiffs were permitted, against the defendant's objection, to prove the expenses of the search, and defendant excepted. The court charged the jury that the plaintiffs were entitled to damages both for the taking of the property and for the expenses of searching for it. The defendant excepted to the charge, and sued out a writ of error. By the Court, Nelson, Ch. J. — The defendant took the horse and wagon of the plaintiffs wrongfully, and used them, by reason of which taking the plaintiffs were induced to believe that the person to whom they had hired it temporarily had absconded, and therefore they went in pursuit of their property, and expended time and money. It is insisted for the plaintiff in error, that the common pleas erred in allowing the plaintiffs to recover for the time spent and expenses in- curred, on the ground that the damages thus claimed were not the natural or necessary consequence of the wrongful taking". Admitting the counsel for the plaintiff to be right in this proposition, it is no objection to the recovery if the damages were proximate and not too remote, and were claimed in the declaration (1 Chitty's E. 333 ; 1 Saund. PL & Ev. 136). Here the damages were duly claimed; they occurred in the use of reasonable means on the part of the plaintiffs to repossess themselves of their property, and were occasioned by the wrongful act of the defendant Judgment affirmed. CHINERY v. VIALL. 631 Trover ; Deprivation of Possession ; Mitigation. COURT OF EXCHEQUER. [i860.] Chlneky v. Viall (5 Hurl. & Nor. 288). A. having bought some sheep on credit left them in the custody of the vendor. Without any default on the part of A. the vendor resold the sheep, — Held : First, that, though the price had not been paid or tendered by A., the resale was a conversion of the sheep by the vendor, in respect of which A. was entitled to maintain trover. Secondly. That the measure of damage was not the value of the sheep, but the loss sus- tained by A., by not having the sheep delivered to him at the price agreed on. Declaration. — First count : That the plaintiff agreed with the defendant to buy, and the defendant agreed with the plaintiff to sell to him, 48 sheep, to be taken and fetched away from the defendant's premises within a fortnight, at 53s. a head ; and though plaintiff was always ready and willing to pay, and all things happened to entitle the plaintiff to have the sheep delivered to him, yet the defendant refused to allow the plaintiff to have or take the sheep, &c. Second count : Trover for 43 sheep. Pleas. — To the first count : Traverse of agreement. To the second count : First, not guilty ; secondly, that the goods, : "Mr. Chinery. "I find by my man that you sent by him 15/., which is 11. 15s. more than five sheep come to ; which I have returned. At the same time I wish to inform you I do not intend letting any more sheep out of my yard before they are paid for. " Yours, &c, " A. P. Viall." 632 TROVER. On the following Monday the plaintiff went to take away 19 l sheep. He saw the defendant, who said he had sent the sheep to London, where in fact he sold them at 52s. a head. The learned judge told the jury that, by the contract, the prop- erty in the sheep passed to the plaintiff, and that the defendant ought not to have parted with them. And his lordship asked the jury whether they thought the bargain was that the plaintiff was not to have the sheep until he paid for them ; also what damages the plaintiff had sustained by not having the sheep delivered to him. The jury found that the plaintiff was to have the sheep before pay- ing for them, and that he had sustained 51. damages. Upon which the learned judge directed a verdict to be entered for the plaintiff on both counts for 118£. 19s., the value of the sheep, reserving leave to the defendant to move to reduce the verdict to 51., and enter a verdict for the defendant on the count in trover. A rule nisi was obtained accordingly, and argument had thereon, after which Bramwell, B., delivering the opinion of the court, held that the plaintiff had such a right of property and possession as was necessary to enable him to maintain the action. The remainder of the learned Baron's opinion is as follows : But it was further urged on the part of the defendant, that, sup- posing trover maintainable, the damages recoverable on either count ought to be no more than were really sustained by the plaintiff, that is, the value of the sheep, minus the price he would have had to pay for them if they had been delivered to him ; and that therefore 51. would be ample damages, and that a farthing would have been suf- ficient. Upon that point our opinion is in favor of the defendant, viz., that the plaintiff is entitled to recover no more than the real damage he has sustained. In Lamond v. Davall (9 Q. B. 1030 [E. C. L. R. vol. 58]), the plaintiff had sold shares to the defendant which he had not accepted, and the plaintiff had resold them ; it was held that after that he could not sue the defendant for goods bargained and sold. If that is so, the defendant could not maintain such an ac- tion in the present case ; and as the vendor could not sue for goods bargained and sold, the result is that he could not in any form of ac- tion recover/ the price ; and it would be singular if the same act which saved the vendee the price of the sheep should vest in him a right of action for their full value without deducting the price. The cases on this subject are well put together in Mayne on Damages (p. 215), and show that in this action it is not an absolute rule of law that the value of the goods is to be taken as the measure of damage. There are several cases which may be mentioned as illustrative of CHINERY v. VIALL. 633 this. For instance, where a defendant, after having been guilty of an act of conversion, delivers the goods back to the plaintiff, the actual damage sustained, and not the value, is the measure of dam- ages. So, where a man has temporary possession of a chattel, the ownership being in another, the bailee, no doubt, may maintain an action ; but only for the real damage sustained by him in the depri- vation of the possession. Other cases might be cited to show that there is no such absolute rule of law as to the damages in trover as that suggested. In Read v. Fairbanks (13 C. B. 692 [E. C. L. E. vol. 76]), an unfinished ship was taken and then completed, and af- ter its completion converted ; it was held that the plaintiff was en- titled to the value at the time when the defendant took it, not at the time when he converted the completed ship to his own use. To the same effect is the case of Brierly v. Kendall (17 Q. B. 937 [E. C. L. B. vol. 79)] ; the principle deducible from the authorities being that a man cannot by merely changing the form of action entitle himself to recover damages greater than the amount to which he is in law en- titled, according to the true facts of the case and the real nature of the transaction. Here the result is, that the plaintiff is entitled to recover 51. only. It is not to be understood that, though in the present case the plaintiff cannot recover more, if a stranger had converted the goods the plaintiff would not have been entitled, as against him, to recover the whole amount of the value or proceeds. That might depend upon whether the plaintiff would be liable to the seller for the con- tract price ; and probably in such a case he would, for there the seller would be in no default ; and if he could not deliver the goods owing to the wrongful act of a third party, it may be that he could recover the whole price, and the vendee would be entitled to recover the amount from the stranger. The verdict must stand as found by the jury, but be reduced to 51. Eule absolute to reduce the damages. 634 TROVER. Trover ; Actual Damage ; Nominal Damages. COURT OF COMMON PLEAS. [1833.] Johnson, Assignee, v. Steak (15 C. B. N. S. 330). A. deposited a dock-warrant for brandies with B., as a security for a loan, which was to be repaid on the 29th of January, or, in default, the brandies were to be forfeited. On the 28th, B. agreed for the sale of the brandies to C, and on the 29th delivered to him the dock-warrant, and C. took actual possession of the brandies on the 30th. Held, that the sale on the 28th, and the delivery of the dock-warrant to the vendee on the 29th — A. having 1 " the whole of that day to redeem it — amounted to a conversion. And held, by Erle, Ch. J., Btles, J., and Keating, J., that the proper measure of dam- ages was the actual damage A. had sustained by the wrongful conversion, which, as there was no intention on his part to redeem the pledge, was merely nominal. But by Williams, J., that the proper measure of damages was the value of the thing con- verted— the bailment having been terminated by the wrongful sale. This was an action brought by the plaintiff as assignee of one Mathew Cumming, a bankrupt, for the alleged wrongful conversion by the defendant of 243 cases of brandy and a pipe of wine. The defendant pleaded not guilty and not possessed, whereupon issue was joined. The cause was tried before Erle, Ch. J. The facts as proved or ad- mitted were as follows : — On the 26th of January, 1862, the bank- rupt, Cumming, applied to the defendant for an advance of 621. 10s. upon the security of certain brandies then lying in the London Docks. The defendant consented to make the advance, and Cum- ming gave him his acceptance at one month for the amount, at the same time handing him the dock-warrant for the brandies and the following memorandum : " I have this day deposited with yon the undermentioned 243 cases of brandy, to be held by you as a security for the payment of my acceptance for 621. 10.?., discounted by you, which will become due January 29th, 1863; and, in case the same be not paid at ma- turity, I authorize you at any time, and without further consent by or notice to me, to sell the goods above mentioned, either by public or private sale, at such price as you think fit, and to apply the pro- ceeds, after all charges, to the payment of the bill ; and, if there should be any deficiency, I engage to pay it. (Signed) " M. Cumming." On the 3d of January, Cumming obtained from the defendant a JOHNSON v. STEAR. 635 farther advance of 25?. upon the security of a warrant for a pipe of port wine, with an I. O. U. and a post-dated check (7th January), but no distinct authority, as in the case of the brandies, to sell on default of payment on a given day. Gumming absconded on the 5th of January, and was declared a bankrupt on the 17th ; and the plaintiff was afterwards appointed assignee. On the 28th of January, the defendant contracted to sell the brandies to Messrs. Ruck & Co. On the 29th (the day on which Cumming's acceptance became due) the dock-warrant was delivered to them, and on the 30th they took actual possession of the brandies. The check given by Gumming for the second advance being also dis- honored, the defendant sold the wine for 401. The demand and re- fusal were on the 27th of February. On the part of the defendant it was submitted that there was no conversion, and that the transactions were protected, the adjudica- tion being now the dividing line ; and that, at all events, the plaintiff was only entitled to nominal damages for the premature sale of the brandies — it being assumed that the bankrupt had no intention to avail himself of his right of redemption. Under the direction of the learned judge, the jury returned a verdict for the plaintiff, assessing the value of the wine at 40?., and that of the brandies at 621. 10s. : and leave was reserved to the de- fendant to move to enter a verdict for him if the court should be of opinion that the plaintiff was not entitled to recover. The rule to show cause having been obtained and argued, and the court having taken time to consider its opinion, Erle, Ch. J., after stating the facts, delivered the judgment of a majority of the court. Upon these facts, the questions are, first, was there a conversion 1 and if yes, secondly, what is the measure of damages ? To the first question our answer is in the affirmative. * * * * Then the second question arises : The plaintiff contends that he is entitled to the full value of the goods sold by the defendant, without any deduction, on the ground that the interest of the defendant as bailee ceased when he made a wrongful sale, and that therefore he became liable to all the dam- ages which a mere wrong-doer who had wilfully appropriated to himself the property of another without any right ought to pay. But we are of opinion that the plaintiff is not entitled to the full value of the goods. The deposit of the goods in question with the defendant to secure repayment of a loan to him on a given day, with 636 TROVER. a power to sell in case of default on that day, created an interest and a right of property in the goods, which was more than a mere lien ; and the wrongful act of the pawnee did not annihilate the contract between the parties nor the interest of the pawnee in the goods under that contract. It is clear that the actual damage was merely nominal. The de- fendant, by mistake, delivered over the dock-warrant a few hours only before the sale and delivery by him would have been lawful ; and by such premature delivery the plaintiff did not lose anything, as the bankrupt had no intention to redeem the pledge by paying the loan. If the plaintiff's action had been for breach of contract in not keeping the pledge till the given day, he would have been entitled to be compensated for the loss he had really sustained, and no more ; and that would be a nominal sum only. The plaintiff's action here is in name for the wrongful conversion ; but, in substance, it is the same cause of action ; and the change of the form of pleading ought not in reason to affect the amount of compensation to be paid. There is authority for holding, that, in measuring the damages to to be paid to the pawnor by the pawnee for a wrongful conversion of the pledge, the interest of the pawnee in the pledge ought to be taken into the account. On this principle the damages were measured in Chinery v. Yiall (5 Hurlst. & K 288). There, the defendant had sold sheep to the plaintiff; and, because there was delay in the pay- ment of the price by the plaintiff, the defendant resold the sheep. For this wrong the court held that trover lay, and that the plaintiff was entitled to recover damages ; but that, in measuring the amount of those damages, although the plaintiff was entitled to be indemni- fied against any loss he had really sustained by the resale, yet the defendant, as an unpaid vendor, had an interest in the sheep against the vendee under the contract of sale, and might deduct the price due to himself from the plaintiff, from the value of the sheep at the time of the conversion. In Story on Bailments (§ 315), it is said : " If the pawnor, in con- sequence of any default or conversion by the pawnee, has recovered back the pawn or its value, still the debt remains and is recoverable, unless in such prior action it has been deducted ; and it seems that, by the conmon law, the pawnee in such action for the value has a right to have the amount of his debt recouped in damages." For this he cites Jarvis v. Rogers (15 Mass. II. 3S9). The principle is also exemplified in Brierly v. Kendall (17 Q. B. 937 [E. C. L. JR. JOHNSON v. STEAR. 637 vol. 79]). There, although the form of the security was a mortgage, and not a pledge ; and although the action was trespass, and not trover ; yet the substance of the transaction was in close analogy with the present case. There was a loan by the defendant to the j)laintiff, secured by a bill of sale of the plaintiff's goods, in which was a reservation to the plaintiff of a right to the possession of the goods till he should make default in some payment. Before any default, the defendant took the goods from the plaintiff", and sold them. For this wrong he was liable in trespass ; but the measure of damages was held to be, not the value of the goods, but the loss which the plaintiff 1 had really sustained by being deprived of the possession. The wrongful act of the defendant did not an- nihilate his interest in the goods under the bill of sale ; and such in- terest was to be considered in measuring the extent of the plaintiff's right to damages. On these authorities we hold that the damages due to the plaintiff for the wrongful conversion of the pledge by the defendant, are to be measured by the loss he has really sustained ; and that, in meas- uring those damages, the interest of the defendant in the pledge at the time of the conversion is to be taken into the account. It fol- lows that the amount is merely nominal, and therefore that the ver- dict for the plaintiff should stand, with damages 40s. Williams, J. — I agree with the rest of the court that there was sufficient proof of a conversion. * * * * But I cannot agree with my lord and my learned brothers as to the other point ; for, I think the damages ought to stand for the full value of the brandies. The general rule is indisputable, that the measure of damages in trover, is, the value of the property at the time of the conversion. To this rule there are admitted exceptions. There is the well-known case of redelivery of the goods before ac- tion brought, which, though it cannot cure the conversion, yet will go in mitigation of damages. Another exception is to be found in cases where the plaintiff has only a partial interest in the thing con- verted. Thus, if one of several joint tenants or tenants in common alone brings an action against a stranger, he can recover only the value of his share. So, if the plaintiff, though solely entitled to the possession of the thing converted, is entitled to an interest limited in duration, he can only recover damages proportionate to such limited interest, in an action against the person entitled to the resi- due of the property (though he may recover the full value in an action against a stranger.) The case of Brierly v. Kendall, which my lord has cited, is an example of this exception. There, the goods 638 TROVER. had been assigned by the plaintiff to the defendant by a deed the terms of which operated as a re-demise, and, since the defendant's quasi estate in remainder was not destroyed or forfeited by his con- version of the qnasi particular estate, the plaintiff, as owner of that estate, was only entitled to recover damages in proportion to the value of it. With respect, however, to liens, the rule, I apprehend is well established, that, if a man having a lien on goods abuses it by wrong- fully parting with them, the lien is annihilated, and the owner's right to possession revives, and he may recover their value in damages in an action of trover. With reference to this doctrine, it may be useful to refer to Story on Bailments. In § 325, that writer says : " The doctrine of the common law now established in England, after some diversity of opinion, is, that a factor having a lien on goods for ad- vances or for a general balance, has no right to pledge the goods, and that, if he does pledge them, he conveys no title to the pledgee. The effect of this doctrine is, in England, to deny to the pledgee any right in such a case to retain the goods even for the advances or bal- ance due to the factor. In short, the transfer is deemed wholly tor- tious ; so that the principal may sue for and recover the pledge, without making any allowance or deduction whatever for the debts due by him to the factor." After stating that the English legisla- ture had at length interfered, the learned author continues, in § 326, — " In America, the general doctrine that a fact or cannot pledge the goods of his principal, has been repeatedly recognized. But it does not appear as yet to have been carried to the extent of declaring the pledge altogether a tortious proceeding, so that the title is not good in the pledgee even to the extent of the lien of the factor, or so that the principal may maintain an action against the pledgee without discharging the lien, or at least giving the pledgee a right to recover the amount of the lien in the damages." But, in the 6th edition, by Mr. Bennett, it is added, — " Later decisions have, how- ever, fully settled the law, that a pledge by a factor of his principal's goods is wholly tortious, and the owner may recover the whole value of the pledgee, without any deduction or recoupment for his claim against the factor." And I may mention that I have reason to be- lieve this rule as to liens was acted upon a few days ago in the Court of Queen's Bench (Siebel v. Springfield, 9 Law T. N. S. 325). But it is said that the maintenance of such a rule in respect of pledges is inconsistent with Chinery v. Yiall, mentioned by my lord. It seems to me, however, that the decision of that case does not in- terfere with the general rule as to damages in trover, but only estab- JOHNSON v. STEAR. 639 lishes a further exception in the peculiar and somewhat anomalous case of an unpaid vendor, whose right in all cases has been deemed to exceed a lien (see Blackburn on Contracts, p. 320). I cannot, however, think, that this exception can be properly extended to the case of a pledgee. An unpaid vendor has rights independent of and antecedent to his lien for the purchase-money. But the property of a pledgee is a mere creature of the transaction of bailment ; and, if the bailment is terminated, must surely perish with it. Accordingly, it is said in Story on Bailments, § 327, — " It has been intimated that there is, or may be, a distinction favorable to the pledgee, which does not apply, or may not apply, to a factor, since the latter has but a lien, whereas the former has a special property in the goods. It is not very easy to point out any substantial distinction between the case of a pledgee and the case of a factor. The latter holds the goods of his principal as a security and pledge for his advances and other dues. He has a special property in them, and may main- tain an action for any violation of this possession, either by the principal or by a stranger. And he is generally treated, in judicial discussions, as in the condition of a pledgee." Again, in § 299, — " As possession is necessary to complete the title by pledge, so, by the common law, the positive loss or the delivery back of the pos- session of the thing with the consent of the pledgee, terminates his title." And, further, in the same section, — " If the pledgee volun- tarily, by his own act, places the pledge beyond his own power, as, by agreeing that it may be attached at the suit of a third person, that will amount to a waiver of his pledge " (see Whitaker v. Sumner, 20 Pick. R. 399). It should seem, then, that the bailment in the present case was terminated by the sale before the stipulated time ; and, conse- quently, that the title of the plaintiff to the goods became as free as if the bailment had never taken place. If he had brought an action against an innocent vendee, the passage I have already cited from Story, § 325, demonstrates that he might have recovered the absolute value of the goods as damages. Why should he be in a worse con- dition in respect of an action against the pledgee who has violated the contract of pledge. The true doctrine, as it seems to me, is that, whenever the plaintiff could have resumed the property, if he could lay his hands on it, and could have rightfully held it when recovered as the full and absolute owner, he is entitled to recover the value of it as damages in the action of trover, which stands in the place of such resumption. 640 TROVER. In the present case, I think it plain that the bailment having been terminated by the wrongful sale, the plaintiff might have re- sumed possession of the goods freed from the bailment, and might have held them rightfully when so resumed, as the absolute owner, against all the world. And I therefore think that he ought to re- cover the full value of them in this action. Nor can I see any injustice in the defendant's being thus remitted to his unsecured debt, because his lien has been forfeited by his own violation of the conditions on which it was created. Rule absolute to reduce the damages to 40s. Note. — In an action of trover brought by a pawnbroker for the illegal dis- traint of goods which had been deposited with him in the way of his trade, and which having been pledged more than twelve months, he, under the provisions of the pawnbrokers' act (39 & 40 Geo. Ill, ch. 99, § 17), had a right to sell, the proper measure of damages was the value of the goods, and not merely that of the plaintiff's interest in them (Surre v. Leach, 18 C. B. N. S. 479 [1865]). Conversion ; Immediate Right of Possession ; Mitigation. COURT OF COMMON PLEAS. 1864.] Edmondson v. Nuttall (17 0. B. N. S. 280). 1. In an action for the conversion of goods of wliich the plaintiff has the immediate right of possession, the true measure of damages is the full value of the goods at the time of the conversion. 2. The plaintiff had certain looms in the defendant's mill, and demanded possession of them, the defendant having no right to detain them. The defendant, however, hav- ing obtained a judgment against the plaintiff in the county court, in respect of which he would be entitled to issue execution against him on the next day, refused to de- liver them up : and the looms were taken in execution on the following morning, and sold. In au action for this wrongful conversion, — Held, that the liability of the looms to the county court process, and the fact that by the wrongful seizure the plaintiff's debt was (apparently) satisfied, were not circumstances wliich the jury ' could take into consideration in estimating the damages. This was an action brought by the plaintiff, a weaver, against the defendant, the owner of a mill at Coates, in the county of Lincoln, to recover damages for the breach of an agreement to provide power for the working of the plaintiff's looms. There was also a count for the conversion by the defendant of seven looms belonging to the plaintiff. To this latter count, — to which alone it is necessary to ad- vert, — the defendant pleaded not guilty and not possessed. EDMONDSON v. NUTTALL. 641 The cause was tried before Blackburn, J., at the last spring assizes for the county of York, when the following facts appeared in evidence : In July, 1860, the plaintiff agreed with the defendant for standing and power for twelve looms in the defendant's mill, for which he was to pay 9f d. per week for each loom.* After the looms had been at work for about two years, the plaintiff being in arrear with his weekly payments, and being unable to pay, it was agreed that the defendant should take five of the looms in satisfa3tion. The plaintiff becoming again in arrear for the standing of his remaining looms, the defendant sued him in the county court, and on Friday the 29th of January, 1864, obtained judgment against him for 28?. debt, and 11/. 15s. costs ; and the judge made an order on the plaint- iff to pay these sums on the following Monday. On Saturday, the 30th, the plaintiff went to the mill for the pur- pose of removing his looms. The defendant did not then refuse to allow him to take them away, but desired him to come on the fol- lowing Monday. On the Monday, the plaintiff made a formal de- mand for the looms, and the defendant said he could not have them then, as he (the defendant) was going out ; and on Tuesday the looms were seized (and subsequently sold for 24Z. 17s.) under an ex- ecution from the county court at the defendant's suit. The writ in this action was issued on the same day. The jury negatived the plaintiff's claim in respect of the breach of the agreement ; and the learned judge reported that he was not dissatisfied with the verdict. As to the count for the conversion, the learned judge told the jury that there was evidence of a conversion of the looms on the Monday, which he would leave to them ; but that, the goods de- tained being lawfully seized on the Tuesday, and the plaintiff having had the benefit of the proceeds in reduction of his debt, they might take that into account in estimating the damages. lie also asked them to say what damages they found for the conversion, if in point of law they were bound to give the value of the looms, without ref- erence to the county court proceedings. The jury returned a verdict for the plaintiff on the trover count, damages \d. ; and they found the value of the looms to be 35/. The learned judge thereupon reserved leave to the plaintiff to move to increase the damages to 35/. if the court should be of opinion that he ought to have directed the jury to find for the * See Hancock v. Austin, 14 C. B. K S. C34 (E. C. L. R. vol. 108), where it was held that these weekly payments could not be distrained for as " rent." 41 642 TROVER. value of the looms seized — neither party to appeal without the leave of the court. A rule nisi having been obtained, and the motion thereon argued, the following opinions were delivered : AVilliams, J. — I am of opinion that the rule must be made abso- lute to enter a verdict for the plaintiff for 351. My brother Black- burn reserved leave to the plaintiff to move to that effect, if the court should be of opinion that he ought to have directed the jury to find for the value of the looms seized. I am of opinion that he' ousrht to have done so. The substance of the transaction was this : The defendant committed a wrong by seizing goods of the plaintiff under circumstances which the jury found to be a conversion of them to his own use. It was clearly established that the goods were wrongfully seized by the defendant, But it is contended that the rule, which is beyond all question a prima facie rule, that for an act of this sort the plaintiff is entitled to recover as damages the full value of the goods seized, ought not to prevail here, because the de- fendant shows mitigating circumstances, viz., that, after he had been guilty of wrongfully converting the goods of the plaintiff, he caused them to be applied so as to be apparently a satisfaction of a judg- ment debt due to himself. In other words, the defendant insists, that, because with the proceeds of the plaintiff's goods which he so< wrongfully converted, he has satisfied his own debt, that fact must be taken into consideration by the jury in ascertaining what measure of damages the plaintiff ought to receive for the wrong done to him.. I utterly decline to acknowledge the soundness of that argument. There is nothing unlawful in a man's withdrawing his goods for the purpose of avoiding an impending execution. He may choose to apply them in satisfaction of the claim of another creditor ; and this he has a perfect right by law to do, apart from any question arising upon the bankrupt or insolvency law. It is clearly no ground for mitigation of damages, for the defendant to say that he has chosen to detain the plaintiff's goods in order that he may seize them and apply the proceeds in satisfaction of his own debt. If he might do this, what is there to prevent his doing so for the purjtose of satis- fying his friend's execution which he knows to be outstanding ? The case has been likened to that of the redelivery of the thing con- verted, which is allowed to go in mitigation of damages ; as in The Countess of Kutland's Case, cited in Itolle's Abridgement, Action sur Case (L.) where it is said, " If a man take my horse and ride him, and then redeliver him to me, still I may have an action against him ; for, it is a conversion, and the redelivery is no bar to the ac- EDMONDSON v. NUTTALL. 643 tion, and only goes in mitigation of damages." So, in Moon v. Raphael (2 K C. 310, E. C. L. R. vol. 29>, where the defendant, a sheriff, who held goods taken in execution, delivered them to the plaintiffs, assignees of a bankrupt, after an action of trover had been commenced by them, and the plaintiffs accepted them without con- dition — it was held that they could not recover in the action more than nominal damages ; at all events, not without alleging special damage in the declaration. The only other case in the books which I am aware of, in which a redelivery after action brought has been allowed to go in mitigation of damages, is that of Williams v. Archer (5 C. B. 318, E. C. L. R vol. 57). There, in detinue for railway scrip which had been delivered up to the plaintiff, after action brought, under a judge's order, it was held by the Exchequer Cham- ber, that, inasmuch as the scrip had already been redelivered, the verdict and judgment had been properly confined to an assessment of damages for the detention ; by analogy to the case of the redeliv- ery of charters (17 E. 3, fo. 45, b, pi. 1), being rendered impossible by reason of their having been burnt. Here, however, the goods were never redelivered to the plaintiff. He never had power to do as he pleased with them. There is no ground whatever for saying- that the defendant ever restored to the plaintiff the control over his. goods. Contrary to the plaintiff's wishes, he devoted them to the payment of his own debt. Then comes the main argument. It was said that, if the plaintiff were allowed to recover by way of damages in this action, the full value of the goods, the consequence will be that the goods will be by virtue of the judgment and execution, re- garded as having been the property of the defendant from the time of the conversion. The obvious answer to that is that, in the result, the seizure of these goods will not have operated in satisfaction of so much of the debt due to the defendant upon his judgment in the county court. The execution, having been satisfied so far out of what turn out to have been the execution creditor's own goods, is no satisfaction at all, and the now defendant may go to the county court and obtain leave to issue fresh process. There is no ground for urg- ing what has been done in mitigation of damages ; and therefore the rule must be made absolute. Willes, J. — I am of the same opinion. The measure of damages for the conversion of goods is prima facte their value. The direc- tion, therefore, of my brother Blackburn to the jury in this ci\roof of the conversion, may fail to prove the taking by the defendant. But when the law does allow this departure from the strict form, it is not in order to ena- ble the plaintiff, by his own choice of actions, to increase his recovery beyond just compensation ; but only to give him a more convenient form for recovering that much. Our case raises a question of taking by mere mistake, because of the uncertainty of boundaries ; and we must confine ourselves to this. The many conflicting opinions on the measure of damages in cases of willful wrong, and especially the very learned and thoughtful opinions in the case of Silsbury v. McCoon (1 Denio, 332, and 3 Comst. 379), warn us to be careful how we express our- selves on that subject. We do find cases of trespass, where judges have adopted a mode of calculating damages for taking coal, that is substantially equivalent to the rule laid down by the Common Pleas in this case, even where no willful wrong was done, unless the taking of the coal out by the plaintiff's entry was regarded as such. But even then, we cannot avoid feeling that there is a taint of arbi- trariness in such a mode of calculation, because it does not truly mete out just compensation (5 M. & W. 351 ; 9 Id. 672 ; 3 Queen's B. 283 ; and see 28 Eng. L. & E. 175). We prefer the rule in Wood v. Morewood (3 Queens B. 440, n.), where Pakke, B„ decided, in a case of trover for taking coals, that if the defendant acted fairly and honestly, in the full belief of his right, then the measure of damages is the fair value of the coals, as if the coal field had been purchased 684 TORTS. from the plaintiffs (see also Bainbriclge on Mines and Minerals, 510 ; 17 Pick. 1). Where the defendant's conduct, measured by the standard of or- dinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, or willful negligence or wrong, the value of the property taken and converted is the measure of just compensation. If raw material has, after appropriation and without such wrong, been changed by manufacture into a new species of property, as grain into whiskey, grapes into wine, furs into hats, hides ■ into leather, or trees into lumber, the law either refuses the action of trover for the new article, or limits the recovery to the value of the original article (6 Hill, 425, and note; 21 Barbour, 92; 23 Conn. 523 ; 38 Maine, 174). Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the pur- pose of all remedies ; and so long as we bear this in mind, we shall have but little difficulty in managing the forms of actions so as to secure a fair result. If the defendant in this case was guilty of no intentional wrong, he ought not to have been charged with the value of the coal after he had been at the expense of mining it ; but only with its value in place, and with such other damage to the land as his mining may have caused. Such would manifestly be the measure in trespass for mesne profits (7 Casey, 456). Judgment reversed, and a new trial awarded. Bead, J., dissented. Note. — If in an action of trespass for breaking and entering the plaintiffs' coal lands, it be made to appear that the defendant mined out coal from said lands, and made excavations thereunder, and removed the coal so excavated, and thereby injured the coal left remaining as pillars, or by bad mining or otherwise, rendered it difficult or impossible for the plaintiffs to get out or remove such pillars of remaining coal, or rendered it of less value to them, then they are enti- tled to recover for such coal as cannot be removed, what it was worth per ton in its native bed, and such damages for so much of said coal as can be removed, but with increased expense, as the evidence may show such coal to be diminished in value. And if the defendant, in mining and excavating under the said lands, thereby rendered it more difficult and expensive for the plaintiffs to obtain access to the coal thereunder, and depreciated the value of said remaining coal, the plaintiffs are entitled to such damages as they may have sustained from the de- preciation of the land and the increased difficulty and expense of obtaining ac- cess to the coal remaining therein. In an action of trespass for breaking and entering the plaintiffs' close, and mining and carrying away their coal, the proper estimate of damages is the value of the coal per ton, after it is severed from its native bed, and before it is put upon the mine-cars, without deducting the ex- pense of severing it ; and rf the defendant knew, at the time the trespass was WOODMAN v. NOTTINGHAM. 685 committed, that the land was not its own, the plaintiffs are entitled to exemplary damages. The Barton Coal Company v. Walter S. Cox and Thomas C. Cox, Ex- ecutors, 39 Md. 1 (1873). It was held in Mississippi, in an action of replevin, where the taking com- plained of was malicious or oppressive, and the damages might, therefore, prop- erly be punative, the defendant should not be allowed for any increased value he might have bestowed on the property by his skill and labor. Heard v. James, 49 Miss. 236. The damages sustained by one who has been prevented from mining mineral which he had a right to mine is the value of the mineral less the reasonable cost of mining it. Mayer. Tappan, 23 Cal. 306; Chamberlain v. Collinson, 45 Iowa, 429. If the plaintiff own the mineral land, the damage done to the real estate is to be added. Stockbridge Iron Co. v. Stove Iron "Works, 102 Mass. 80. Action against a Town for Injuries sustained from a Defect in the Highway ; Extent and Kind of Damages Recoverable ; Construction of Statute giving Damages. SUPREME JUDICIAL COURT, NEW HAMPSHIRE. [1870.] Woodman v. Nottingham (49 N. H. 387). The want of a sufficient railing upon the sides of a bridge or public highway, when nec- essary for the security of the traveller, constitutes a legal defect, for which towns in case of accident will be held liable. Under a statute of New Hampshire, by which towns were " made liable for damages happening to any person, his team or carriage, travelling upon a highway, or bridge thereon, by reason of any obstruction, defect, insufficiency or want of repair, which renders it unsuitable for the travel thereon," damages are recoverable for the prob- able proximate or direct consequences of such defect, where a party has suffered either injury to his person or loss of personal property. The measure of damages in such cases will be full indemnity for any and all injuries oc- casioned thereby, either to the person or the loss of clothing, or money in the pockets of the person at the time of the accident, as well as the team, which em- braces the animals, carriage, or load thereon. The statute, regulating this subject, does not contemplate exemplary or vindictive dam- ages to the suffering party. A bailee, having a special property in the property injured, or money lost, may recover for the whole value of the property, he holding the value beyond his own interest in trust for the general owner, and the judgment recovered b}' the bailee may be pleaded in bar to any action that might afterwards be brought by the general owner for the same property. Case, by Ira H. Woodman against town of Nottingham, to re- cover damages for injuries received in consequence of a defect in a highway in said town. Plaintiff set forth in his declaration that he 686 TORTS. was injured in his person and in his apparel ; that his horses, harnesses and wagon were damaged ; and that in being thrown from the wagon into a brook at the time of the injury, he lost over five hundred dollars in money that was in his pocket, which was never recovered. Defendant objected that plaintiff could not recover for any money tie might have lost in this action, and objected to all evidence tend- ing to show the loss of the money. But the court admitted the testimony, and instructed the jury, that, if they should find that the plaintiff was entitled to recover anything against the town, they might allow him damages for the amount of money he lost, if the loss was caused by the defect in the highway. To all which the de- fendant excepted. It appeared that the horses, harnesses and wagon, which the plaintiff was using at the time of the accident, and which were injured, belonged to plaintiff's uncle, who purchased and paid for the same two years before, and let the plaintiff have them to use as long as he might wish to use them, and that, when done with them, plaintiff was to return them in as good condition as when received, ordinary wear and depreciation excepted. While the plaintiff was thus using this property, it was injured, and defendant objected that upon these facts plaintiff could not recover in this suit for any injury to this property ; but the court admitted the evidence and instructed the jury that if the plaintiff was entitled to recover anything against the town, they might allow him damages for the full amount of injury done to the horses, harnesses and wagon. To which defendant excepted. There was evidence tending to show that some $494 of the money which plaintiff claimed to have lost, had been paid to him the day before for third persons, but the evi- dence also tended to show that he was a common carrier, and re- ceived this money as such ; or that he was the authorized agent of the parties to whom the money was due to receive it for them, and that this fact was known to those who paid him the money. The court instructed the jury that if they found the defendant liable for any of the money, they might give damages for the whole amount he lost. To which instruction defendant excepted. M. C. Tut tie was a witness for the defendant, who saw the money in the plaintiff's pocket-book just before the accident, and when asked, on cross-examination, how much money he thought there was of it, judging from the size of the pile, he said there might have been $150 or $200 of it. For the purpose of contradicting this witness, the plaintiff introduced a witness who was allowed to testi- fy, subject to defendant's exception, that said Tuttle, on a certain occasion, said to him, that, judging from the pile of money which WOODMAN v. NOTTINGHAM. 6$ ( plaintiff had on the occasion referred to, there must have been as much as $500 of it, if he had no bill larger than a $5 bill. The court instructed the jury that they might give exemplary damages, if, in their judgment, the circumstances warranted it. To which defendant excepted. The defect in the highway complained of was the want of a railing on the side of a bridge, which crossed said highway, in consequence of which, it was alleged, that plaintiff, who was crossing said bridge in the night, ran off the side of the bridge and was injured. Evidence as to the darkness of the night was conflicting. The defendant requested the court to instruct the jury, that if the night was so dark that the plaintiff could not see the road, and he was driving without a light, or other means of distinguishing the road, he was not in the exercise of due care and caution. Also, that, if the plaintiff knew of the defect in the bridge, it was negli- gence in him to attempt to cross it in the night when it was so dark that he could not see the way. Also, that a party driving a horse team upon a highway when it is so dark he cannot see the way, does so at his peril, unless he provides himself with a light or some means of distinguishing the road. Also, that towns are not bound by law to construct their highways in such a manner as to be safe for persons to drive horse teams thereon, without a light or some means of distinguishing the way, when it is so dark that thev can- not see the road. Which the court declined to do, and defendant excepted. It appeared that the plaintiff was well acquainted with the road and bridge at the place of the accident, and had driven the same team over this road some four times a week for one or two years be- fore the accident. And the court instructed the jury that the question was, whether or not the plaintiff was in the exercise of ordinary care and prudence in driving over the bridge, under all the circumstances of the case ; that, if the night was so dark that a reasonably prudent man would not have undertaken to go over the bridge without a light, he being as well acquainted with the condition of the road and the bridge as the plaintiff was, then the plaintiff would be in fault, and could not recover. But if they should find that the plaintiff was, considering the darkness of the night and his acquaintance with the May and all the attendant circumstances, in the exercise of ordinary care and caution, and his injuries and damages were caused by a defect in the highway, then the plaintiff might recover. The court also requested the jury, if they found for the plaintiff, 688 TORTS. to state the several items, of which their general verdict should be made up. The jury returned a verdict for plaintiff for $678, which they certified was made up as follows : For damages in plaintiff's person and clothing, $13 00 For damages to horses, harnesses and wagon, 60 00 For whole amount of money lost 505 00 For exemplary damages 100 00 $678 00 Which verdict the defendant moves to set aside. The questions of law were reserved. Xesmith, J. — Under section one of chapter sixty-nine of the General Statutes now in force in this State, " towns are made liable for damages happening to any person, his team or carriage, traveling upon a highway, or bridge thereon, by reason of any obstruction, defect, insufficiency, or want of repair, which renders it unsuitable for the travel thereon." It will be seen that this section is made to differ slightly from the first section of chapter thirty-seven of the Revised Statutes. The words " special damage " are exchanged for the more comprehensive and general term " damages," implying any and all damages, whether specially set forth in the plaintiff's declara- tion or not. Then the word " defect " is for the first time intro- duced into the present statute, a word that gives emphasis and addi- tional strength and meaning to the language of the old statute, viz., " obstruction, insufficiency, or want of repair." The word " travel- ing upon a highway or bridge," appear to be used here for the pur- pose of showing that it was the object of this section of the law to give a remedy to the person honestly and properly using the high- way or bridge, which the town was bound to maintain and keep in suitable repair. The defendant's counsel, and his elaborate brief in this case, con- tends that the court should give a more limited or restrictive con- struction to the aforesaid statute, than it has usually received from the courts in this State. Our decisions in cases like this, in this State, have sustained the rule of giving indemnity for injuries to property, as well as to the person. We have interpreted the word damages to mean here a compensation, recompense, or satisfaction to a party plaintiff for an injury actually received by him from the defendant, and precisely commensurate with the injury, whether it be to his person or estate (2 Greenl. Evid. § 253). The plaintiff first proving the defendant to be in fault, or a WOODMAN t. NOTTINGHAM. 689 wrong-doer, then it legitimately follows that it should be held liable for the natural, proximate and direct consequences of its default (Butler v. Kent, 19 Johns. 223). The default on the part of the de- fendant in this case was a failure to provide a sufficient railing at the side of the bridge, which it was liable to maintain, and as a direct result of such negligence, this accident has happened to plaintiff. In Massachusetts, it has been held, that the want of such a railing at the side of a highway, when necessary to the security of travelers, constitutes a legal deficiency in the way within the meaning of their statute (Williams v. Clinton, 28 Conn. 264 ; Hayden v. Attleborough, 7 Gray, 338). The New Hampshire statute has received a similar construction (Davis v. Hill, 41 K H. 329 ; Willey v. Portsmouth, 35 K H. 303 ; Norris v. Litchfield, 36 K H. 271). The question of liberty in this case was properly submitted to the jury to find, and their verdict settled the fact against the de- fendant. \Ve do not understand the defendant's counsel to complain of the compensation given by the jury for the actual bodily injury, but, he contends against the allowance more especially for the loss of the money in the plaintiff's pocket, and which the jury have found plaintiff did lose, because such loss was the proximate, natural or direct consequence of such accident. In our view, the fair and reasonable construction of our statute requires, or necessarily implies, that the word damage, which shall happen to any person, includes all injury to property as well as per- son, the pecuniary loss to the pocket, as well as the bodily loss of bone, or flesh and blood. Indemnity for damage to the person, therefore, includes neces- sarily compensation for everything then on, about or belonging to the person, as well as for all bodily injuries, which are proved to be the result of the accident, The faulty negligence of the defendant, in the opinion of the jury, brought actual injury to plaintiff's per- son at the same time, when his clothing was torn, and his money lost. The plaintiff also realizes loss and damage of his money, all traceable to the same procuring cause, and without evidence of want due care on his part, and shows himself so far partly entitled to the beneficial remedy of this statute. The law generally seeks out, and casts its burdens or penalties upon the party who is first and most guilty. Culpable negligence is the omission to do something which a reasonable and prudent man would do, or the doing of something which such a man would not 44 690 TORTS. do under the circumstances surrounding each particular case, or it is the want of such care as men of ordinary prudence would use under similar circumstances. With these views, we hold the defendant responsible equally for the loss of plaintiff's money, clothing and bodily vigor. The defendant being found a wrong-doer, the plaintiff may be regarded as bailee both of the horses and money, and in that capac- ity, holding a special property in such chattels, and sufficient to en- title him to recover in his name for the entire injury. A bailee, having a special property, may recover the whole value of the prop- erty, holding the value beyond his own interest in trust for the gen- eral owner, and the judgment recovered by the bailee may be pleaded in bar to any action that might be afterwards brought by the general owner for the same property (2 Hilliard on Torts, 571 ; King v. Dunn, 21 Wend. 253 ; Stanley v. Gaylord, 1 Cush. 536 ; Sedgw. on Dam. 569 ; Barron v. Cobleigh, 11 K H. 560 ; Littlefield v. Bidde- ford, 29 Maine, 320). It has been recently decided that the words " team " or " car- riage," as expressed in this statute, are meant to include whatever animal or animals, drew or carried the load, and their harness, also the load itself (Connery v. Jefferson, 46 N. H. 521). We admit the principle should govern this case, that the defend- ant is not liable for any injury or loss of M T hich a defect in the bridge is not the proximate or direct cause. In Vermont, it has been held, under their statute, not unlike ours in this State, that where a party in attempting to extricate his horse from a hole in a defective bridge, into which his horse had stepped, was injured by the animal, that he could recover against the town, which was bound to repair the bridge (Stickney v. Maidstone, 30 Vt. 738). So where a traveler, in the exercise of ordinary care and prudence, voluntarily leaped from his carriage, because of its near approach to a dangerous defect in the highway, and thereby sustained an injury — the town was held liable, although the carriage did not come in actual contact with the defect (Lund v. Tyngsborough, 11 Cush. 563). 'The defects in the bridge and highway were the proximate, not the remote causes of the injury or damage in these cases, no more than was the want of railing on the bridge, the proximate cause of the loss to the plaintiff in the case before us. Thus far, we are inclined to sustain the rulings of the court, and the special finding of the jury giving the actual damages of $578 to the plaintiff. The court also instructed the jury that they might give exem- plary damages if, in their judgment, the circumstances warranted WOODMAN v. NOTTINGHAM. 601 it ; to which the defendant excepted, and the jury found as exem- plary damages the sum of $100. We are aware that exemplary or vindictive damages have, under instructions of the court, been some- times given by juries in this class of actions against towns. In this State, the case Whipple v. Walpole (10 K H. 130), is referred to as the leading authority to justify such a verdict. The facts in that case seem to have made out a case of gross negligence,, therefore the plaintiff seems to have been entitled to claim a higher compensation than he would have been entitled to had the agents of the town exercised more diligence in meeting the just claims of the plaintiff. It appears to us, the true measure of damages should be limited and measured by the rule to one full, actual compensation for the injury received, neither more or less. Prof. Greenleaf, in his able treatise on this subject, well remarks, if the plaintiff's injury be aggravated by the criminal act or neglect of the defendant, by evidence of reck- lessness, insolence, wanton, or malicious or oppressive violence, and the like on the part of the defendant, all such conduct should be properly considered in estimating the plaintiff 's actual damage, and objects in making up a larger sum in the form of punitive or vin- dictive damages (2 Greenl. Ev. note to § 253 ; also § 273). In a recent English case (Emblem v. Myers, 6 Hurls. Sz N. 51), Justice Pollock says : " I do not say that in actions for negligence there should be vindictive damages, such as are sometimes given in actions of trespass, but the measure of damages should be different accord- ing to the nature of the injury, and the circumstances with which it is accompanied." So in New York, in the case of Wallace v. Mayor of New York (2 Hilton, 440). The court there say, " that where the circumstances show there was a deliberate, preconceived, or positive intention to injure, or that reckless disregard of the safety of person or property, which is equally culpable, vindictive damages are allowable ; but in cases of negligence, simply, the rule is to allow the actual damages only. The award of smart money in mere cases of negligence should not be allowed" (Moody v. McDonald, 4 Cal. 297; Morford y. Wood- worth, 7 Ind. 83 ; 14 Louis. 806). It appears that the negligence found here is not of that aggra- vated character which justifies the allowance of exemplary damages ; nor do we believe it to be necessary or proper in actions generally against towns, under our statute, to instruct the jury to allow vin- dictive damages eo nomine ; for it cannot be presumed that towns, in cases of this kind, are influenced by malice when accidents of this nature occur ; and if the circumstances of any case show even gross 692 TORTS. negligence, it appears to us to be enough for the jury, in making up their verdict, to give all the actual damages the plaintiff has suf- fered, and no more ; nor do we think that the legislature ever contemplated anything more than a full indemnity for the injury received to the person or property, by their statute regulating this subject. Hence we overrule the case of Whipple v. "VValpole as a case of authority on this point. We infer from the fact that our present statute gives less damages than were allowed by the provisional act on this subject, that the legislature has actually intended to restrict them to a compensation equal to the injury in all cases. The vin- dictive or exemplary damages specially found by the jury will be deducted from the verdict in this case, and judgment is rendered on the verdict for the balance, as found by the jury. Flowage ; Allowance for Benefit. SUPREME JUDICIAL COURT, MASSACHUSETTS. [1851.] Luther v. The Wjnnisimmet Co. (9 Cush. 171). In an action for damages, occasioned by the filling up by the defendants of their land, lying adjacent to that of the plaintiff, whereby the free flow of water off the plaint- iff's land, as formerly existing, had been obstructed, instructions to the jury that " they should take into consideration the evidence on both sides bearing on this point, and, if they were satisfied that the filling up had actually benefited the plaintiff's estate in any particular, they would, in assessing the damages, make an allowance for such benefit, and give the plaintiff such sum in damages as they found upon the evi- dence would fully indemnify and compensate him for all the damage he had actu .lly sustained," are correct. This was an action of trespass on the case, tried before Bigelow, J., in this court. The writ contained three counts. The first two alleged the obstruction by the defendants of an ancient water-course, running through the plaintiff's land and land of the defendants ; and the third alleged a right in the plaintiff to have the water, at all times, flow off his land and run through the defendants' land, as appurtenant to the premises described in the writ. The defendants pleaded the general issue. Evidence was given as to the title to the premises in question. LUTHER v. THE WINX1SIMMET CO. 693 It further appeared that, in October, 1849, the defendants tilled up so much of the pond as was on their own land, and built a street through the same ;■ and evidence was offered that thereby the water- course was obstructed, so that, in November, 1849, and on several subsequent occasions, the land and houses of the plaintiff, situate on the premises described, were overflowed and damaged by water standing thereon. The defendants offered evidence which proved, and it was ad- mitted at the trial, that Thomas Williams originally owned all the premises belonging to the plaintiff and defendants, and that, in 1831, he conveyed to Fay and others the entire premises, including the land and pond above described ; that Fay and others, by the deed above mentioned, conveyed the premises described in the writ to the plaintiff, in which deed there was no grant or conveyance of any water-course or right of drainage, the same being a common warranty deed, conveying the described premises with their appurtenances, etc. ; that Fay and others, on the 1st of October, 1833, conveyed to the defendants all the land and premises granted by Williams, except the tract so conveyed to the plaintiff, and some small parcels previ- ously conveyed to other persons ; so that both the plaintiff and de- fendants claimed under a common grantor, by deeds bearing date within twenty years prior to the date of the writ. The defendants offered evidence that the pond was not fed by a water-course or running stream, but was a mere hollow or low place, into which, in seasons of heavy rains or melting snow, the water col- lected from the surrounding higher lands, where it became stagnant ; that there was no outlet thereto, through which the water usually ran ; that there was no water-course or stream of water, or place where water usually flowed, running through the plaintiff's land, and never had been ; that the plaintiff's land, lying easterly of the pond, was part of a tract of low land which sloped gradually towards the de- fendants' land, at the rate of about nine inches in a hundred feet, except on the northerly side, where the land was considerably higher; and that all the water which came into the pond from the plaintiff's land was merely the common surface water which ran off in times of heavy rains or freshets, not confined to any particular channel, but spread over the entire face of the land. The defendants also put in a petition to the board of health of the town of Chelsea, dated in the summer of 1819, signed by the plaintiff and others, praying to have the pond filled up. as a nuisance : and a vote of the board of health thereon, directing the defendants to abate the same as a nuisance ; and it was proved that the filling 694 TORTS. up complained of by the plaintiff was done by the defendants in pur- suance of such order of the board of health, with the approbation of the chairman and other members of the board ; and that the plaint- iff was sometimes present while the work was advancing, and made no objection. The plaintiff offered evidence to show that, by such filling up and obstruction, his land and houses had been injured and greatly dimin- ished in value. To meet this evidence, the defendants called witnesses to prove that but little or no injury had been occasioned to the plaintiff's houses and land, and that the same had been, in fact, benefited and increased in value thereby. * * * * On the question of damages, the judge instructed the jury that they should take into consideration the evidence on both sides bear- ing on this point ; and if they were satisfied that the filling up had actually benefited the plaintiff's estate, in any particular, they would, in assessing the damages, make an allowance for such benefit, and give the plaintiff such sum in damages as they found, upon the evi- dence, would fully indemnify and compensate him for all the damage he had actually sustained. The jury found a verdict for the defendants ; and the plaintiff, feeling aggrieved by the foregoing rulings and instructions, alleged exceptions thereto. By the Court. — The instructions were strictly correct, and well adapted to the case. Exceptions overruled. Tort; Profits; Case for Building Dam, thereby injuring Plaintiff's Land. SUPREME COURT, RHODE ISLAND. Simmons v. Brown (5 B. I. 299). In an action of the case by the owner and operator of a cotton mill, driven by water, against the owner of a mill on the same stream, to recover damages for the unlaw- ful raising of a dam across the stream below, and interrupting- the operation of the cotton mill by backwater and thereby diminishing the profits of the plaintiff, evi- dence of the profits of manufacture, lost by the plaintiff from the interruption, may be submitted to the jury as a basis upon which to estimate the damages of the plaintiff, if not as the measure of them. SIMMONS v. BROWN. 695 This was an action of the case, brought by the plaintiff, as the owner of a water privilege and cotton mill thereon, in Johnston, against the defendants, husband and wife, for erecting a dam across the stream below, on the land of the wife, and thereby casting back- water upon the mill of plaintiff; the declaration claiming damages for the loss of the profits of his manufacture by the plaintiff, during the period of time set forth, in which he was prevented by the obstruc- tion from using his mill. One count in the declaration alleged, that the dam of the defendants had been reduced under a decree of this court, in equity, upon a bill filed against them by the plaintiff; the action being now brought to recover the damages caused by the un- lawful raising of the dam. At the trial of the action (which was brought originally in this court), at the September term, 1857, before Bkayton, J., with a jury, the plaintiff, to prove his damages, offered under the general issue, amongst other things, to prove the profits which he might have made upon the cotton goods which he could have manufactured at his mill, had it not been for the backwater complained of, and which he was, by the backwater caused by the defendants, prevented from making. This evidence was objected to by the defendants ; but notwithstand- ing, was permitted by the court to pass to the jury, for the purpose of enabling the jury to ascertain the loss and damage which the plaintiff had sustained by means of the injuries complained of in the declaration. The defendants also requested the court to charge the jury, that Abby Brown, one of the defendants, being owner in fee of the land on which the dam complained of was, but the premises being in the possession of her husband, could not, as a married woman, be liable in this action, and that no verdict could be rendered against her ; which charge the court refused to give. The defendants having duly excepted at the trial, and a verdict having been rendered against them for $2,500 damages, now moved for a new trial, on account of the admission of the testimony, and refusal to charge, as aforesaid. * Brayton, J. — The first ground for a new trial, assigned by the defendants is, that the court admitted evidence to show the profits which the plaintiff might have made upon the goods, which, but for the injuries complained of, he might have manufactured, and which he was prevented from manufacturing by such injuries. The action was brought to recover damages caused by the raising, The chief justice having been of counsel, did not sit in this ease. 696 TORTS. by the defendants, of their dam below the plaintiff's mill ; causing the water to flow upon the plaintiff's wheel, and impeding the operation of his mill; and the plaintiff claims damages for the loss of profits in the business which he carried on there, of manufacturing cotton goods. The plaintiff's mill was fitted to occupy all the water-power which belonged to the plaintiff, with sufficient machinery for that purpose. By a bill in equity, filed by the plaintiff against the defendants, alleg- ing this nuisance, the right of the defendants to maintain this dam had been in controversy ; and by a decree of the court the dam was reduced to its present height, and this action was brought to recover the damages accrued to the plaintiff before the reduction of the dam, and after the raising of it. In assessing the plaintiff's damages on the trial of the action, the plaintiff was allowed to offer evidence to show the additional quantity of goods which the mill was capable of making, and probably would have made, had the wheel been unob- structed by the dam, the value of those goods when made, the cost of making, and the prices which such goods brought in the market, dur- ing the time; thus showing the general profit of the business which the plaintiff carried on. The defendants objected to the admission of this evidence on the ground that the plaintiff was not entitled to recover the profits of the business which he might have done with this additional water-power, used by the defendants, but was entitled only to a reasonable and fair rent, for the use of it by the defendants. The objection was over- ruled ; and the question is, whether this evidence was properly ad- missible. The plaintiff is to be made good for all the damages which he has suffered from the injurious act of the defendants; and, by the gen- eral rule in actions of trespass, for all the damages which result directly and necessarily from the proximate and natural consequences of the act complained of, as distinguished from remote, uncertain, or contingent results (2 Greenl. on Ev. 256, 261). For this reason, evi- dence as to profits, as a general rule, is rejected ; because, generally, they are uncertain and contingent ; depending upon other circum- stances than the injurious act of the defendants, and not the natural result of it. Nevertheless, the general rule is subject to many excep- tions ; and it will be seen from the cases upon this subject, that where- ever a loss of profits is the natural and necessary result of the act charged, — such as the party probably would have made, not what by chance he might have made, but what any prudent man must natu- rally have made, — evidence has been, if not always, most usually admitted as to them. SIMMONS t. BROWN. 69 T In actions for breaches of contract, the profits resulting to the plaintiff from the contract which he has entered into and which must naturally come to him if it be performed, are allowed him, as the measure of his damages, if it be broken by the defendants, and he is thereby deprived of them. In Masterton v. Mayor of Brooklyn (7 Hill, 61), which was on a contract to furnish marble for the city hall of that city, it was held that the plaintiff was entitled to recover what he would probably have made if the contract had been performed, viz. : the difference between the cost to him of delivering the marble, and the price which, by the contract, he was to receive. In this case, Nelson, C.J., says : "When the books speak of profits as too remote and uncertain to be taken into the account in estimating the damages, they have reference, usually, to dependent and collateral engage- ments entered into in faith of, and in expectation of the execution of the principal contract; but profits, which are the direct fruit of the contract broken, stand upon a different footing. They are part of the contract itself." In Philadelphia, "Wilmington & Baltimore Railroad Co. v. Howard (13 How. 307), there was a similar contract. It was to furnish certain building materials for the road. Upon the breach of this contract, it was held, that in estimating the damages, the dif- ference between the contract price and the cost price to the plaintiff, was the measure of damages ; and the court say, " That the profits were the inducement to the contract, the consideration for which the plaintiff contracted on his part, and which are lost by the breach of it by the defendant, and must be made good. The profits in this case are not only admissible in evidence, but are the measure of damages.'' In McNeill v. Reid (9 Bing. 68), the contract was, that if the plaintiff would not accept the place of master of a ship in the East India service, for a voyage to India, the defendants would admit him as a partner in a firm, to the extent of one-fourth of the profits. It was held, that the plaintiff was entitled to recover the value of such a voyage to him, — what he would reasonably and probably have real- ized from it, had he proceeded upon the voyage ; and evidence was offered as to the usual amount realized from such voyages ; and the jury assessed the damages at 5001. The court refused to disturb the verdict. This amount was not allowed, however, as the measure of damages ; but as Bosanquet, J., said, "as an ingredient for estimating the value set upon the contract by the parties/' In Waters v. Tow- ers (20 Eng. L. & Eq. 410), the action was for breach of contract for the non-delivery of certain machinery, within a reasonable time ; and special damages were laid, that the plaintiffs had been prevented from completing their contract witli a third person, whereby they had lost 698 TORTS. the profits which they would have made, had they completed it. Evidence as to this last contract was admitted, and of the advantage to the plaintiff from its performance. It was held, that the evidence as to the profits was properly admitted ; and that the jury might assess damages to the amount of them, though they were not bound to do so ; and the court said, if reasonable evidence is given that the amount of profits would have been made, if the defeudant had per- formed his contract, the damages may be assessed accordingly ; and this, though the second contract was one which could not have been enforced against the plaintiff on the ground of the statute of frauds. These cases are all for breaches of contract. In the first two, the the profits were not only allowed to be given in evidence, but are made the measure of damages. In the last, though the evidence was held to be properly admitted as the basis for estimating the damages, the profits were not held to be the measure of damages ; and it was left to the jury, with this basis, to estimate them. There is nothing in the term " profits " that excludes their being given in evidence, more than any other item of damages ; but proof of them is made to depend, like all other proof in relation to damages, upon the fact that the loss of them is the natural and direct result of the injury, and not a remote consequence ; and the language of the court, in the last case, is significant : " that if reasonable proof be given that the plaintiff would have made the profits, that is, that those profits were the direct result of the performance by the defendant, and the loss the direct result of the breach, it was sufficient to warrant a recovery of them." There are other cases, not upon contracts, where profits are allowed to be given in evidence. Tarleton v. McGawdy (Peake, N. P. C. 205) was an action on the case for firing upon negroes, on the coast of Africa, near the trading-post of the plaintiff, by which the negroes were deterred from trading with him, and there was a consequent loss by the plaintiff, of the trade with them. The plaintiff was allowed to recover. Whatever was lost to the plaintiff must have been profits ; for upon this, only, depended the value of the trade which he had lost. The value of that trade to him w r as allowed to be put in evi- dence. It must have been admitted, on the ground that the loss of profit and of the trade was the direct and natural result of the unlaw- ful act of the defendant. In Ingram v. Lawson (6 Bing. [N. C] 212) the action was for libel in publishing that the plaintiff's vessel, then fitted and ready for sea, for freight, was unseaworthv, and had been sold to Jews to take out convicts. The plaintiff was allowed to prove the average profits of such a voyage as was broken up ; and upon a motion for a new trial, the court said, that the evidence was not ad- SIMMONS v. BROWN. 699 mitted as the measure of damages, but only that the jury might see the nature of the business and the general profits. Coltmax, J., said : " The jury must have some mode of estimating the damages: ami they could not be in a condition to do so unless they knew something of the plaintiff's business and the general return of his voyages." White v. Mosely (8 Pick. 356) was an action of trespass for destroying part of plaintiff's mill-dam, and thereby interrupting the use of the plaintiff's mill, whereby he lost the profit of the same. Damages were allowed in this case for diminution of the profits ; and the court say, " the interruption of the use of the mill and diminution of the profit were alleged and proved ; and we think this was right. The plaintiff is entitled to recover for all damages." In Williams v. Barton (13 Louis. 404) the court use this language in relation to contract : " The damages for breach of contract are those which are incidental, and caused by the breach ; and may reasonably be supposed to enter into the contemplation of the parties at the time of the contract." There does not seem to be any solid ground for departing from the principle which governs breaches of contract in this respect, or suits for damages occasioned by torts. If the damages be such as the party committing might reasonably conclude would result from the act, since every man is presumed to intend the natu- ral and probable result of the act which he designedly commits, there seems no reason to exclude them. There is therefore no ground for excluding profits simply because they are profits ; but the loss of them must be governed by the same rule as other damages. If the loss of of them be the direct and necessary result of the defendant's acts, whether by breach of contract or tortious act, it can make no differ- ence, the damages are equally proximate and certain, and are no more contingent in the one case than in the other; neither more or less remote. The evidence objected to, we think, was properly admissible to be weighed by the jury in estimating the plaintiff's damages in this case ; and to determine what the plaintiff would have made had he not been prevented by the act of the defendants. No objection is here made to any instruction given to the jury in reference to their consideration of the evidence submitted. It is claimed by the defendants that the mode of estimating the damages, and the only legal mode is, to ascertain the amount of the water-power which is obstructed, and of which the plaintiff is de- prived, and to ascertain the fair reasonable rent for so much power, and to make this amount of rent the measure of damages. If this were matter of contract, and the plaintiff were suing for the use, this 700 TORTS. might be the proper rule. But it is not the purpose of this suit, and cannot be, till the plaintiff chooses to treat the defendant as the right- ful occupier of his fall. The plaintiff is the owner of the whole fall, and of the mill, which he himself is operating for profit. He does not wish, and would not consent, to lease any part of it. It would be an injury to his business to do so. To receive merely a fair rent for the power of which he is wrongfully deprived, would not make his business equal to what it would be, to have the power entire ; his business being adapted to the use of the whole, mere rent would not make him whole. He cannot be made good without treating him not merely as landlord, but as tenant. As landlord, he is entitled to a fair and reasonable rent. But suppose he were a tenant, paying that rea- sonable rent, is it sufficient to say that his rent, as to so much of the power as he cannot use, and for which he is nevertheless bound to pay, shall be paid for him ? If this were the rule, we might expect to find much of this compulsory kind of underletting, — hiring water- power against the occupant's will. It is no sufficient answer to say that further damages are not proximate, or that they are not the natural, probable, direct result of the act. (The remainder of the opinion does not relate to the question of damages.) Judgment upon the verdict. Note. — As to the proper methods of ascertaining the damage to the mill property of a riparian owner, by depriving him of his regular supply of water, see Holden v. Lake Company, 53 N. H. 552. Injury to Personal Property ; Different Measures of Damages ; Province of Jury. SUPREME COURT, ILLINOIS. [1862.] Ottawa Gas light & Coke Co. v. Graham (28 111. 73). In an action on the case for injury to property, and especially to a well, by rendering the water impure, all the circumstances may be proved and considered ; and to ascer- tain the damages, the cost of furnishing water to the family, having regard 1o quality and quantity, may be taken into the account in the estimate — also, the dif- ference in value of the property, owing to the erection of gas or other offensive structures in its vicinity. Jurors may be instructed to weigh evidence by the light of their general knowledge and OTTAWA GAS-LIGHT & COKE CO. v. GRAHAM. 701 experience as applied to the events and transactions of life, but it is erroneous to instruct them to apply special knowledge or circumstances connected with the case in forming their verdict ; unless the jurors shall have been sworn as witnesses. This was an action on the case brought by the plaintiff below against the defendant below for injury to the water of plaintiff's well, occasioned by defendant having " suffered to flow from its gas- works, and to be placed in and around and near the same, certain noxious and offensive substances and materials used in and about the manufacture of gas and coke, and also certain oily, tarry, resinous gaseous and deleterious substances and materials so used in said man- ufacture, which said substances and materials were absorbed by and entered into the earth, and permeated, passed and flowed along and through the earth and into said well of water of said plaintiff, and mingling with the water with which said well was supplied, spoiled the water of said well." The plaintiff also complained, in his declaration, of certain smells, smokes, etc., caused by the manufacture of gas, etc. The defendant pleaded the general issue, and a special plea deny- ing that defendant suffered to flow from its gas-works and to be de- posited on and around the same, certain noxious, tarry, resinous, gas- eous substances, and that said substances permeated through the ground into plaintiff's well. Certain instructions to the jury at the trial, which were excepted to by the defendant's counsel, sufficiently appear in the opinion of the court. AValker, J. — On the trial below, appellant offered to prove how much it would cost to obtain a supply of good water, by purchasing a right from the water company ; or by the construction of a cistern. The court refused to permit the introduction of this evidence, and that decision is assigned as one of the errors on this record. If the erection of the gas-works produced injury to appellee's well, and pol- luted the water, he has the undoubted right to recover a sum suffi- cient to cover any loss he has thereby sustained. The company has the right to so use their franchise as to produce no injury to the rights of others. When they obtained their charter, there was an implied duty imposed, that they should not in its exercise deprive, or even incommode others in the exercise of their rights, without becoming- liable to respond in damages. In ascertaining the true measure of such damages, all the circumstances connected with the injury are proper to be considered by the jury. In this case it may be a fair measure of damages, to ascertain the cost of furnishing a sufficient quantity of water equally pure with that 702 TORTS. which supplied the plaintiff below from his well before its injury by the gas-works. When that cost is ascertained, and the cost of keep- ing the conductors and other machinery in repair, the allowance of such a sum as would produce an annual interest sufficient to furnish the water from the company and make the repairs, would be a fair measure of damages. But if the supply when thus obtained, was in- ferior in salubrity, or taste, that should also be taken into account. So if there was danger that it would not be permanent. Property furnished with an inadequate supply, or with an abundance of water of inferior quality, would be of less value than if supplied with an abundance of water of good quality. If a resort to a cistern is the only means of replacing the proper supply of water, then its quality should be taken into consideration, and if inferior in quality, that fact should have its due weight. In this view of the case, we are of the opinion that this evidence was improperly rejected. Another means of arriving at the damages, would be to ascertain the depreciation of the value of the property by reason of the erection of the gas-works. To ascertain how much less the property would sell for in consequence of the erection, than if it had not been made. And in ascertaining that fact, all the circumstances which might show a depreciation in value should be considered. If the property would sell for the same amount, independent of a rise in similar property, then there would be no loss, but if it would not, then the difference would be the damages sustained. It is also insisted, that the court erred in the qualification annexed to appellee's first instruction. By it the jury were informed, that in making an estimate of the damage?, they might exercise their judg- ment upon the facts in proof, by connecting them with their own knowledge and experience. If this was designed to refer to their general knowledge as intelligent business men, it was correct. Jurors, when the evidence is heard, must test its truth, its weight, and what it all proves, by their knowledge and judgment, derived from expe- rience, observation and reflection, They are not bound to regard evi- dence precisely as given, but must consider its truth and. weight by their knowledge of men, the business affairs of life, together with the motives which influence men. These are all legitimate and necessary means of arriving at the truth, and if the jury so understood the in- struction, it was proper. If, however, the jury understood it to apply to special circum- stances and facts connected with the case, it would be calculated to mislead. In forming their verdict, the jury must be governed by the evidence admitted in the case. If a juror has knowledge of facts not HOLYOKE v. GRAND TRUNK RAILROAD CO. 703 in evidence, they have no right to consider them in making up a ver- dict. Before they can take these into consideration, the juror should be sworn and testify to the facts, precisely as any other witness. The party against whom it may operate, has the right to cross-examine the witness, and must have an opportunity of meeting it with rebutting evidence. This instruction was liable to be understood by the jury, as authorizing them to act upon facts not in evidence, but within their knowledge. It should have been modified so as to exclude such a right, and so as to limit their action to their general knowledge and experience, and this is the extent to which the case of the City of Chicago v. Major (18 111. 349) proceeds. The judgment of the court below is reversed, and the cause re- manded.* Judgment reversed. Note. — In an action against a municipal corporation, for injury to the plaintiff in his business as a grocer, by the negligent and dilatory construction of a sewer, in consequence of which access to hi.-: premises was obstructed, it was held by the Supreme Court of Minnesota, that he could not recover for the loss of prospective profits. Sumner v. City of St. Paul, 23 Minn. 408 (1877). This decision was on the ground of the uncertainty in ascertaining the description of damage. But compensation for the loss of such profits, when fully and definitely ascertainable, is now generally allowed in actions for injuries to property. Law- son v. Price, 45 Md. 123 (1870). See Sedgwick on Damages, 0th ed. p. 89, n. 4. Personal Injury ; Negligence ; Extent of Compensation ; Special Damages ; Concurrent Negligence. SUPREME JUDICAL COURT, NEW HAMPSHIRE. [1809.] HOLYOKE V. GRAND TRUNK R. Co. (48 K H. 541). In this class of case?, the plaintiff is entitled to receive, as damages, one compi nsation for all injuries, past and prospective, in consequence of the defendants' wrongful or neg- ligent acts. They are understood to embrace indemnity for actual nursing and medical expenses, and loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering both of the bod} 7 and mind, which are the immediate and neces- sary consequences of the injury. * The chief justice did not take any part in this decision. 704 TORTS. Plaintiff will not be entitled to special damage on account of his particular calling or profession. The court will not set aside a verdict, when the judge, who tried the case, in his discre- tion, admitted testimony showing the general bad state of the defendants' track for miles distant from the place of accident, as one of the causes probably contributing to the accident, which occasioned the injury to plaintiff. Case for injuries received by plaintiff, August 24, 1864, while traveling as a passenger on defendants' road. Writ dated September 27th, 1865. Plaintiff was described as a " trader," and it was alleged, as one ground of damage, that he had, since the injury, been unable to attend to his business. The declaration contained two counts, one alleging negligence in the management of the train, and the other al- leging that the track was in a defective condition through the negli- gence of the defendants. Either party may refer to the declaration as a part of the case. The court ruled that under this declaration plaintiff could not be allowed to show the profits of his business prior to the accident, but that plaintiff might introduce evidence to show the kind and amount of mental and physicial labor which he was accustomed to do before receiving the injury, as compared with that which he had been able to do since, for the purpose of aiding the jury to determine what compensation he should receive for his loss of mental and physical capacity. Under this ruling, plaintiff testified that his occupation was that of a timber merchant, and testified as to the nature of the business of his firm, and the part he took in it before and since the accident, and that he had, according to the best estimate he could form, lost one-third of his time, in comparison with the years prior to the injury. This evidence was admitted subject to defendants' ex- ception. The court instructed the jury, in reference to this evidence, in substance as follows : " That if the defendants were liable in the action, the plaintiff was entitled to recover, as part of his damages, compensation for his loss of physical and mental capacity, so far as proved to have been caused solely by the defendants' negligence ; that there was no rule of law that one man was or was not exactly like another ; that it was a question of fact for the jury what injury the plaintiff had suffered by the defendants' negligence, not what any other man had suffered ; that the evidence of his occupation and ca- pacity was admissible only in order to enable the jury to judge of the injury to his capacity ; that this was an action for an injury to the man, and not for interfering with his business, and the damages must be limited to the personal injury to him, occasioned by the defendants' HOLYOKE v. GRAND TRUNK RAILROAD CO. 705 negligence. (These instructions are taken from Ballon v. Farnum, 11 Allen, 73, page 74). Plaintiff claimed exemplary damages, and to sustain this claim, after proving the condition of the track at the place of the accident, he offered evidence that the defendants' track, at the time of the ac- cident, was in a defective, unsafe, and dangerous condition in other places ; offering evidence of its condition on the five-mile section, which included the place of the accident, and also evidence of its con- dition between Island Pond, Vermont, and Portland, Maine. The court ruled that the evidence was not admissible for the purpose, and plaintiff excepted. It appeared in evidence that the train on which the plaintiff was a passenger had run from Island Pond to the place of the accident, near Stark ; that it was running at a very rapid rate, at or near mid- night, round a short, sharp curve, when the car in which the plaintiff was riding was precipitated down an embankment into a mill-pond. The court allowed plaintiff" to prove that the track between Island Pond and the place of the accident (about 34 miles) was in an un- even condition, by means of the ties being somewhat decayed, and the rails were very much worn in many places, and had become battered. This evidence was admitted for the sole purpose of showing that the condition of the track was such as would have a tendency to injure the wheels of the train which met with the accident ; and the jury were instructed that the condition of the track in other places was not evidence to be considered on the question of exemplary damages, but that they should consider only the circumstances attendant on this ac- cident, and which tended directly to contribute to it. To the admis- sion of this evidence defendants excepted. Plaintiff offered, as bearing on the question whether the accident was one for which defendants were liable, to show that repairs were made on defendants' track at the place of the accident, under the au- thority and direction of defendants' road-master, within three or four days after the accident. The court rejected the evidence, and plaintiff excepted. The jury returned a verdict for plaintiff, with damages assessed at three thousand dollars. Both sides moved to set aside the verdict, on account of the above rulings, excepted to by them respectively. No exception was taken to the instructions of the court regarding actual and exemplary damages ; but defendants moved to set aside the verdict on the ground that the damages were excessive. Plaintiff's evidence bearing on actual damages was, in brief, that he received injuries on his leg and eye-brow, which soon healed ; that 45 706 TORTS. his shoulder was injured so severely that for several days he suffered a very acute pain, not relieved by large doses of opium, and was much broken of his rest ; that he was for one week or more confined to his house ; that it was two months before he did any business ; that he had been unable to attend to business since the accident as he did be- fore, having lost a third of his time ; that at first he could not move his arm at all, and that he had never recovered the upward motion of his shoulder; and the plaintiff's attendant physician testified that he did not think plaintiff's arm (or shoulder) would ever recover entirely, and that, in his opinion, there was now a decided difference between the plaintiff's right and left shoulder — the injured shoulder "being a little less round than the other; also, that he had been plaintiff's fam- ily physician from ten to fourteen years ; that he thought plaintiff's nervous system was not in so good condition since the accident as before ; and that such an injury as plaintiff received is liable to affect the general health — the nervous system receiving a shock from which it frequently fails to recover perfect tone and power. It also appeared that plaintiff had probably expended more than forty dollars for medicines and medical attendance and advice; and that plaintiff had gone away from home two or three autumns since the accident, and been absent from one to two months, to get rested, and get rid of his troubles, instead of remaining at home and attend- ing to business. It appeared that one set of wheels on the car which ran off were one and one-fourth or one and one-half inches too narrow guage for the road, that the rails where the car ran off were defective, that the train was running at an unusually rapid speed in the night, and that the curve where the accident occurred was short and sharp, and that the car was precipitated down an embankment into a mill-pond, where the car was turned bottom side up, and the lowest part of the car was in three or four feet of water and about twelve feet below the track. The court instructed the jury that if they found the accident was owing to the gross, great, exceeding negligence of defendants, they might, in their discretion, give exemplary damages, but that they were not bound to do so. Defendants called no witnesses. The questions of law arising on the foregoing case were reserved, and assigned to the Law Term. NESMira, J. — The plaintiff claimed indemnity for injuries received by him while a passenger in the cars of the defendants' road, as located in this State. The averments in his writ appear to be such as are generally used in such cases. HOLYOKE y. GRAND TRUNK RAILROAD CO. 707 Some question is made as to plaintiff's right to recover the dam- ages claimed by him under his general declaration. It seems to be settled that he is entitled to recover one compensation for all his in- juries, past and prospective, in consequence of the defendants" "wrong- ful or negligent acts. Damages are presumed to embrace indemnity for actual nursing and medical expenses, also loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering both of the body and mind, which are shown to be the immediate and necessary consequences of the injury wrongfully received. Also exemplary damages may some- times be recovered in this form of action, embracing cases of gross negligence. (Hopkins v. Atlantic & St. Lawrence Railroad, 36 IS r . EL 14 ; Shaw v. The Boston & Worcester Railroad, 8 Gray, 82 ; Ransom v. The New York & Erie Railroad, 1 E. D. Smith, or' 15 K Y. 415 ; Theobald v. The Railway Passenger Insurance Company, 26 Eng. Law & Eq. Reports, 432 ; 18 Adolphus & Ellis Rep. N. S. 93 ; Blake v. The Midland Railway Company, 10 Eng. Law & Eq. Rep. 437 ; Linsley v. Bushnell, 15 Conn. Rep. 225 ; Segar v. The Town of Bark- hamsted, 22 Conn. Rep. 290 ; Canning v. Williamstown, 1 Cush. 451 ; Lincoln v. Saratoga & Schenectady Railroad, 23 Wend. 425 ; Cald- well v. Murphy, 1 Duer, 233 ; Perkins v. The Concord Railroad, 44 K H.) Plaintiff will not be entitled to special damages on account of any particular calling or profession. The injury is personal to the man. The description in plaintiff's writ designating him as a timber mer- chant, was merely d 'esc riptio persona, inserted there for identification and nothing more. We do not understand that plaintiff's declaration in his writ contained any averment under which he could claim dam- ages in consequence of his trade ; or that the law would allow his damages to be enhanced on any such account. Such averment, if made, would simply be immaterial and of no advantage to the plaint- iff. Upon this part of the case we do not think the defendants have any grounds to complain of the ruling of the court (Ballon y. Far- num, 11 Allen, 73). We state the theory of the law on this subject; but in actual practice, juries, in making their estimate of a party's loss of time and sufferings, are apt to be much influenced by his rank in society, or relative merits and position in life, and will be likely to inquire into the particular business or pursuit in which he may have been engaged when the injury was inflicted upon him. Again plaintiff allege! negligence on the part of the defendants. 708 TORTS. in keeping their track in suitable repair and in the management of their train when the accident happened to him. One piece of evi- dence relied on to sustain this view was, that the train was running at an unusually rapid rate of speed, at or near midnight, around a sharp curve. Whether this rapidity of speed constituted negligence must depend in part on what kind of a train it was, or whether the car wheels and other furniture were in good repair or position, or battered or worn, or whether the track over which they had been running was rough or smooth. These are some of the proper elements to be weighed in determining the character of the accident. Previous hard usage of a track would be evidence tending to show present bad condition. If, contrary to the probable presumption, the car wheels were not injured by the bad condition of the road, it was open to the plaintiff to have shown that fact to the satisfaction of the jury. The actual state both of the track and wheels was much more within their knowledge than the plaintiff's. The probability that the defendants' car wheels were unfit when they were originally put on, or were rendered so by the roughness of the track, was enhanced by the fact that one set of wheels on the car, which ran off, were either one and one fourth or one and one- half inches too narrow a guage for the road-bed or track. It is manifest that such wheels were originally unfit to be used as they were, or would be more likely to be battered or injured by de- fective rails, than would wheels of a proper guage, and would be likely to be injured by running for many miles on such defective track. It appears to us that, upon principle, this evidence was legally competent for the jury to weigh. The only doubt is whether it was not too remote ; but we think the decision of the question of remote- ness was within the discretion of the judge who tried the case, and we now think that discretion was properly exercised in this instance; and, therefore, the defendants' exception to this evidence is overruled, and there must be Judgment on the verdict. Note. — It is well settled that in these actions damages are not limited to the time when the suit is brought, but are given for such future pain and continued or permanent disability as may be fairly expected to result from the injury. See Curtis v. Rochester and Syracuse R. Co. 18 N. Y. 534. But damages for future physical suffering must be limited to such as would result, with reasonable cer- tainty, from the injury complained of. Fry v. The Dubuque and Southwestern Railway Co. 43 Iowa, 410. In the case of an infant, damages may be given for the loss of its future serv- PUCKETT v. SMITH. 709 ices during its minority. Kerr v. Forgue, 54 III. 482. Arid it is said that, in estimating prospective damages for future loss of time, medical expenses, and personal suffering, the jury should reduce these losses to such a sum as, being put at interest, would amount to the sum the plaintiff would thereafter lose in these respects by the injury. Fulsome v. Concord, 46 Vt. 135 (1873). In an action by husband and wife against a town for personal injuries to the wife, occasioned by a defective highway, if the jury think that the sum paid for necessary labor substituted for the life's ordinary service, with interest, is a just compensation for the loss of the wife's service, they are at liberty to find damages to that amount. Whether interest eo nomine is recoverable in an action of tort or not, the jury may consider time in fixing the damages. Lindsey v. Town of Dan- ville, 46 Vt. 144 (1873). See also, as to the last rule, Nones v. Northouse, 46 Vt. 587 (1873). Continuing Injury; Damages after Suit Brought. COURT OF APPEALS, SOUTH CAROLINA. [1850] Puckett v. Smith (5 Strobh. S. 0. Law, 20). One tenant in common of a ferry may maintain an action on the case against his co- tenant, to recover his share of the income of the ferry, and damages may be assessed to the time of trial. Wherever the injury is continuous, and continued after action brought, the plaintiff may recover the damages incurred after the commencement of the suit. This was an action on the case, for disturbance of the right of ferry. The plaintiff was the owner of Swansey's Ferry ; two-thirds in his own right, under the charter granted in 1846, and one-third by virtue of a purchase from J. "W. H. Johnson, to whom, with himself, the charter had been granted for ten years. He (the plaintiff) became much involved in debt, and executions pressing him, he selected such portions of his real estate as he could best spare. By his directions, the sheriff of Abbeville levied on and sold two-thirds of the ferry called Swansey's, over Saluda, and 15£ acres of land appurtenant thereto. The plaintiff was present and assenting to the sale. It was bought on the 5th of February, 1849, by William S. Smith, for $1,315. The sheriff's deed was executed 1st March, 1819. On the 6th of February, the defendant took entire possession of the ferry. 710 TORTS. The plaintiff, soon after the sale (in a week), demanded posses- sion of the ferry ; the defendant refused to give it up. The gross income of the ferry was proved to be $S00 per annum. The de- fendant was in possession at the trial. The plaintiffs writ was issued the 28th of February, L849. The circuit judge thought the sheriff could not legally seize and sell the ferry ; that therefore the plaintiff was entitled to recover. He thought, however, and so told the jury, that he could only re- cover damages to the issuing of his writ, twenty-one days. The jury found a sum greatly beyond such damage. The defendant appealed and moved the Court of Appeals for a new trial : 1. Because no damages were proved for plaintiff. 2. Because the jury found damages to an excessive amount, and contrary to the proof. 3. Because the verdict was contrary to law and evidence. Cueia, per Fkost, J. — The jury found for the plaintiff one-third of the gross income of the ferry, from the time the cause of action accrued, to the trial. This is the full extent of the plaintiff's just claim. The only question which it is necessary to decide is, whether, in this action, the plaintiff can recover more than his share of the income of the ferry, which the defendant received before the com- mencement of the suit. In Pepoon v. Clarke (1 Mill's C. R. 371), which was an action of ravishment of ward, to establish the freedom of a slave, by the verdict, hire was allowed to the time of trial. J ohnson, J., delivering the opinion of the court, says, "whenever the injury is in its nature continuous, there can be no question that the party injured is entitled to recover for all damages previous to the trial. If it were otherwise for injuries of this character, the ac- tion must be brought for every hour of its continuance ; or the rem- edy would not be adequate, and thus create that multiplicity of actions which the law so much abhors." This rule governs other forms of action. In trespass to try title, in trover, in assumpsit on interest-bearing demands, damages are recovered to the time of trial. A different rule might be adopted, but it would be arbitrary. The only difference would be that if damages, after the commencement of the action, cannot be recovered, a second suit would be necessary ; but if they are allowed to the time of trial, a complete remedy is afforded by the judgment for all the previous injury which the plaintiff had sustained. The case of Duncan ads. Markley (Harper, 276) is not in conflict with Pepoon v. Clarke. There the defendant put a dam across a navigable creek ; which was a public nuisance. PEOPLE v. MILLER. Til In consequence the plaintiff sustained some special injuries to his mill, for which the action was brought. Evidence was admitted of such injuries after the commencement of the suit. A new trial was granted, because there was no necessary connection between the in- juries sustained before and after the action was brought. For the public nuisance, which was continued, the plaintiff had no action, but only for any particular injury he had suffered. By the act of 1827, every charter of a bridge, ferry or turnpike road shall be in fee simple, and shall be held by the grantees as real estate. The plaintiff is tenant in common, with the defendant, of the ferry. By the statute 4 Ann, c. 16, actions of account may be maintained by one tenant in common against the others, as bailiff, for receiving more than comes to his share and proportion. In a writ of account, the first judgment is, quod computet • and on such account all articles of account, though incurred since the writ, shall be included, and the whole brought down to the time when the au- ditors make an end of the account. By the statute of Gloucester, damages are given in real actions, on a writ of entry to recover the specific lands. The statute gives damages generally, without saying till that time ; yet the construction on it has been, that they shall compute all the damages which have arisen pendente lite. Where a man is accountable for money or goods, case lies against him, on ac- count, at his election. The motion is dismissed. Evans, Wakdlaw, and Withers, JJ., concurred. Motion refused. INTRUSION INTO PUBLIC OFFICE. SUPREME COURT, MICHIGAN. [1872.] People ex rel. Benoit v. Miller (24 Mich. 458). One kept out of a profitable public office by an unlawful intruder, is entitled to recover as damages the whole official salary without deduction either for the services of the incumbent, or for the plaintiff's profitable use of the time during which he was kept out. Information in the nature of quo warranto. Campbell, J. — In this case, which is a proceeding in quo war- ranto, originating in this court, the defendant was convicted of an 712 INTRUSION INTO PUBLIC OFFICE. unlawful intrusion into the office of treasurer of Wayne county, the proceeding having been commence at once after the beginning of the official term in 1867, and the ouster laid as of the earliest period of that term. Judgment having been rendered in favor of the relator, he filed his suggestion of damages, under section 5297 of the compiled laws, and they have been assessed at three thousand three hundred and forty-seven dollars and thirty-three cents, being confined to the offi- cial salary, without fees or other perquisites. Motion being made for judgment, it is opposed, on the ground that the judge before whom the issue was set down to be tried, re- fused to allow in reduction of damages, evidence of the value of Miller's services, or of Benoit's earnings in other pursuits while kept out of the office, or that Benoit did, and offered to do, nothing to- wards the discharge of the official duties. The learned judge, after holding that Benoit was wrongfully ex- cluded by Miller from the office from the beginning of the official term in 1867, proceeded as follows : The only question, therefore, is whether any deduction should have been made from the official salary, for Miller's services or Benoit's outside profits and earnings. The case finds expressly that the whole office and contingent ex- penses, and the services of the deputy and clerks, were paid by Wayne county. ]STo expenditures of Miller are in controversy, for he had none to make. There are no ascertainable pecuniary deduc- tions in question. We do not find any reason or authority for holding that the good faith of the intruder can make any difference touching the pecuniary value of the office to the person kept out. His damages are to be measured by what he has lost, and his loss cannot be lessened by any such consideration. In the present case, however, it is admitted Miller knew all the facts which gave the legal right to the relator, and whether he knew the law or not, he must be held responsible for such knowledge ; and so he has neither equity nor legal claim to favor on any such ground. The case, therefore, is very free from disturbing elements, and the principles which ought to settle it are not complicated. There are not many decisions fixing special rules for the measure of dam- ages, but there are familiar principles which will enable us to come to a safe conclusion. The old remedy for disseizin of offices of profit seems to have been by assize, and the suit was allowed by analogy to proceedings PEOPLE v. MILLER. 713 for the recovery of possessions in lands and their appurtenances Com. Dig. " Assize" [B. 1], [B. 2]; Bac. Ab. "Assize," "Office"). So far as this analogy holds, it would not permit any deduction from the recover of damages based on personal services of the disseizor, or on the outside profits of the disseizee. It is no answer to an action for mesne profits that the plaintiff has made more money in other business than he would have done by farming. And it would be a -strange doctrine to hold that a tres- passer could claim compensation for his personal services in clearing or improving land against the owner's claim of entry. But none of these analogies are perfect, and it might not be quite safe to follow them implicitly, although the law concerning trespassers and dis- seizors of all kinds is not subject to very many variations. In such offices as the one now in question, there are very few, if any duties, which cannot be performed by deputy. There are duties for which no specific payment is made, and which are compensated by the salary, and there are duties which are paid for by fees or other perquisites, only earned by performing those specific duties. There may be reason for deducting from any official earnings the actual cost of obtaining them, which would have been entailed on any person who might have held the office. It is difficult to see how any such question could arise here, be- cause all that expense is paid by the county. How far there might be a recovery for separate perquisites for actual services rendered to individuals or to the public, but which might or might not have be- come necessary and might not have been called for, we are saved from considering by the withdrawal of the claim for those items. The claim left is very simple. The official salary is not made dependent on the amount of work actually done by the treasurer, and does not require his personal services to any considerable extent. He would not forfeit it by leaving the bulk, or possibly the whole, of his substantial duties to the deputy and clerks. He would not necessarily lose it even by misconduct unless removed from office. It is given, no doubt, on the theory that a treasurer is worth so much to the county ; but not upon any specific apportionment whereby the value of his time and his sagacity, and his character, and his business knowledge can be determined separately. But whatever may be the basis of the allow- ance, it is fixed upon the theory that it will usually be paid to a per- son who has been selected by the electors or appointing power as a desirable incumbent. The amount of personal labor done by the officer can form but a small part of his claim to the salary in such. 714 INTRUSION INTO PUBLIC OFFICE. an offise as this, and he may be much less competent than his deputies. But whether it be or be not important that this personal labor should be expended — and in some offices it must be — the inquiry here is, how far it can be regarded as proper to make the person who has been kept out of the office pay for the services of the wrong-doer. They are not services done for him personally. They are not services done at his request, or by his consent. They are services which it must be assumed he would have been willing to perform himself, if not prevented by the intruder. No rule of law permits one to make another his debtor in spite of his protest and against his will. There are some cases where the law raises an implied assumpsit though there has been no express agreement, but none where it could be raised in favor of a naked trespasser. The money which Miller received from the county was paid to him because he was an officer de facto, and as the perquisites of office, and not for private services independent of official charac- ter. Having received it as official property he must restore it as such. An intermeddler might as well charge a commission on rents collected of tenants without authority from the landlord, as an in- truder into office claim pay for his personal services from the legal officer whom he has kept out. Miller's services were not rendered with any design of benefiting Benoit. He cannot now assume the position that he was an agent, or servant, or a benefactor. Where there are no relations there can be no duties, and no claim for services. There is, we think, no foundation for any claim to a deduction on account of Benoit's profitable use of the time during which he was kept out. In private dealings, whether of individuals or private corporations, a person wrongfully excluded from service or office, may be fairly expected to do what he can to gain employment, and if he gets it, he should not be allowed double pay for time which be- longs to his employer ; but should receive no more for his damages than he has suffered. But this is on the ground that all private re- lations of that kind, by Avhatever name they may be called, really rest more or less on contract ; and actions for such injuries are very much governed by the rules applicable to contract. No de- duction can be claimed for time which does not belong to the em- ployer (Geiger v. Harris, 19 Mich. It. 209). Public offices have always been regarded as resting on very dif- ferent grounds. A person who usurps public office commits a pun- ishable misdemeanor, where the public and not the person excluded PEOPLE t. MILLER. 715 is the party directly injured. The perquisites are annexed to the office as such on grounds of public policy, and do not change their legal character by the amount of labor involved in the official duties. There are sinecure or honorary offices, there are offices which may be fulfilled entirely or chiefly by deputy, and there are offices where everything must be done in person. The assize lay in the one case as well as in the other, and lay for the deprivation of office and of official perquisites. It sounded in tort and not in assumpsit, and recognized no relation between the party wronged and the wrong- doer. The right to a deduction can only spring from a duty de- pendent on a legal relation. The mere wrong-doer must be regarded as acting throughout in defiance of his adversary, and as a stranger to him in all respects. It was well suo-o-ested bv the relator's counsel that salaries are not universally fixed at a rate beyond what might be earned in other pursuits, by men selected to fill the offices. There are very few cases where it would be a serious pecuniary damage to be kept out, and many where it would probably be profitable to be excluded. But the common law, and every system of law, recognizes the fact that it is a positive wrong to exclude a rightful claimant from office, whether of pecuniary value or not. The only difference is that under a pecuniary standard the damages are not so purely discretion- ary as where the office is honorary. But it would lead to very absurd results if the quantum of damages could be reduced by out- side earnings. Judgment must be rendered on the verdict for the damages assessed, with costs. Cooley and Graves, JJ., concurred. Christiajtcy, Ch. J., did not sit in this case. 716 VIOLATION OF TRADE-MARK. VIOLATION OF TRADE-MARK. Trade- Makk ; Measure of Damages. SUPREME COURT, CALIFORNIA. [1871.] Graham v. Plate (40 Cal. 593). The whole profit obtained by the defendant may be recovered, although tliis is not the only measure of the plaintiffs damages. Appeal from the District Court of tlie Twelfth District, City and County of San Francisco. This is an action by the plaintiff for damages for an alleged viola- tion of the trade-mark of his intestate, by the defendant. Judgment was rendered for plaintiff, and defendant appealed. The other facts are stated in the opinion. Crockett, J., delivered the opinion of the court, Ehodes, C. J., Wallace, J., and Temple, J., concurring. The two grounds chiefly relied upon by the defendant for a re- versal of the judgment are : First. That the evidence shows that the trade-mark of Henry Deringer was used under a license from him by the defendant; and, Second. That there was no proof that Deringer suffered any damage by the use of the trade-mark, and the damages awarded by the court are excessive. But neither point is tenable. The evidence in respect to the license, when viewed in the light most favorable for the defendant, was, at least, conflicting. Deringer tes- tifies explicitly that he never granted any such license ; and it is highly improbable that he ever did, considering all the circumstances disclosed by the evidence. I think the finding on this point is fully supported by the weight of evidence. On the second point there is as little room for doubt. It clearly appears in proof, that the defendant has made a profit of $1,770 by the sale of pistols made in imitation of the Deringer pistol, and bear- ing Deringer's trademark stamped thereon without his consent ; and the court rendered a judgment for this amount against the defendant. It is insisted, on behalf of the defendant, that the profit realized by him from sales of the spurious article under the simulated trade- mark, is not a proper measure of damages. It is conceded that this is the proper rule in an action for damages for the infringement of a GRAHAM v. PLATE. 717 patent. It is said that the patentee, having the exclusive right to manufacture and vend the patented article, is entitled, legally and equitably, to all the profits made by any one from the manufacture and sale of it in violation of the rights of the patentee ; but that one, who has acquired an exclusive right to use a particular trade-mark, has not thereby acquired an exclusive right to make and vend the commodity to which the trade-mark is affixed ; that any one has the right to make and vend the same commodity, in exact imitation of that made by the owner of the trade-mark, and that the offense con- sists, not in imitating the commodity, but the trade-mark only. Hence, it is argued, the profit made by a sale of the commodity ought not to be a measure of the damages ; but the party is entitled to only such damages as resulted from a piracy of the trade-mark ; and the profit realized by a sale of the commodity does not establish the amount of this damage, which may be greater or less than the amount of the profit. It is evident that the profit realized by the wrong-doer is not the only measure of damages. The spurious article may have injured the credit of the genuine one, and the profits of the owner of the trade-mark may have been greatly re- duced, whilst the MTong-doer has made little or no profit. But whilst the profit made by the latter does not limit the recovery, the owner of the trade-mark is entitled to all the profit which was in fact realized. In sales made under a simulated trade-mark it is impossible to decide how much of the profit resulted from the intrinsic value of the commoditv in the market, and how much from the credit given to it by the trade-mark. In the very nature of the case it would be impossible to ascertain to what extent he could have effected sales, and at what prices except for the use of the trade-mark. No one will deny that on every principle of reason and justice the owner of the trade-mark is entitled to so much of the profit as resulted from the use of the trade-mark. The difficulty lies in ascertaining what proportion of the profit is due to the trade-mark, and what to the intrinsic value of the commodity ; and as this cannot be ascertained with any reasonable certainty, it is more consonant with reason and justice that the owner of the trade-mark should have the whole profit than that he should be deprived of any part of it by the fraudulent act of the defendant. It is the same principle which is applicable to a confusion of goods. If one wrongfully mixes his own goods with those of another, so that they cannot be distinguished and separated, he shall lose the whole, for the reason that the fault is his ; and it is but just that he should suffer the loss rather than an innocent party, who in no degree contributed to the wrong. I think, therefore, 718 VIOLATION OF TRADEMARK. there was no error in awarding to the plaintiff the whole profit made by the defendant. This view of the law appears to be supported by the following authorities (Coats v. Holbrook, 2 Sandf. Ch. R. 611 ; Upton on Trade-Marks, 245 ; Spottswood v. Clark, 2 Sandf. Ch. K. G29). But if there were no authorities on the point, every consideration of reason, justice and sound policy, demands that one who fraudu- lently uses the trade-mark of another should not be allowed to shield himself from liability for the profit he has made by the use of the trade-mark, on the plea that it is impossible to determine how much of the profit is due to the trade-mark, and how much to the intrinsic value of the commodity. The fact that it is impossible to apportion the profit, renders it just that he should lose the whole. Judgment affirmed. Note. — A different view was taken by Wood, V. C, in a case arising under Sir Hugh Cairn's act (21 and 22 Vict, c. 27), Leather Cloth Co. *. Hirschfield, Law II. 1 Eq. Cases, 299. Infringement of Patent ; Profits ; Royalty. SUPREME COURT, UNITED STATES. [1875.] Burdell et al. v. Denig et cd. (92 U. S. R. S. C. 2 Otto, 71G). In cases where profits are the proper measure of damages for the infringement of a patent, such profits as the infringer has made, or ought to have made, govern, and not those which the plaintiff can show that he might have made. The above rule applies peculiarly and mainly to cases in equity, and is based upon the idea that as to such profits the infringer of the patent should be treated as a trustee for the owner thereof. On the other hand, in actions at law, it has been repeatedly held that the rate at which sales of licenses of machines were made, or the estab- lished royalty, constitutes the primary and true criterion of damages. In the absence of satisfactory evidence of that class which is more appropriate in the forum where the case is pending, the other class may be resorted to, as furnish- ing one of the elements on which the damages, or the compensation, may be ascer- tained. Error to the Circuit Court of the United States for the Southern District of Ohio. The facts are stated in the opinion of the court. Mr. Justice Miller delivered the opinion of the court. BURDEI.L v. DENIG. 719 The plaintiffs in error were plaintiffs in the Circuit Court in an action for an infringement of the patent of A. B. Wilson, for a feed- ing device in sewing-machines. They recovered a judgment for one hundred and twenty-five dollars, but insist that they were entitled to a much larger judgment, of which they were deprived by the rulings of the court in the progress of the trial. The objections to these rulings will be considered by us under three heads, to which all the assignments of error relate. 1. As to the measure of damages. Evidence was given tending to prove that plaintiffs had adver- tised to sell their machines, and had actually sold a shop-right to use one of them for twelve dollars and fifty cents, and had given a verbal license to another person to use an old machine in his house for five dollars, but afterwards refused to sell or license for Franklin county, and told defendants they desired to retain the use of the machine as a close monopoly. Evidence had also been given as to profits made by defendants. On this testimony they asked the court to instruct the jury that " this testimony was not sufficient to change the rule of damages from the profits which plaintiffs would have made if they had not been embarrassed by the interference of the defendants, to a mere license-price, because they do not establish a customary charge for the right to use the invention in Franklin county," which the court refused. There are two sufficient objections to this prayer : First, In cases where profits are ' the proper measure, it is the profits which the infringer makes, or ought to make, which govern, and not the profits which plaintiff can show that he might have made. Second, Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly to cases in equity, and is based upon the idea that the infringer shall be converted into a trustee, as to those profits, for the owner of the patent which he infringes — a principle which it is very difficult to apply in a trial before a jury, but quite appropriate on a reference to a master, who can examine defendant's books and papers, and examine him on oath, as well as all his clerks and employees. On the other hand, we have repeatedly held that sales of licenses of machines, or of a royalty established, constitute the primary and true criterion of damages in the action at law. No doubt, in the absence of satisfactory evidence of cither class in the forum to which it is most appropriate, the other may be re- 720 SLANDER. sorted to as one of the elements on which the damages or the com- pensation may be ascertained ; but it cannot be admitted, as the prayer which was refused implies, that in an action at law the profits which the other party might have made is the primary or controlling measure of damages (Packet Company v. Sickles, 19 Wall. 617). Neither of the other two questions considered by the court, for an erroneous ruling, in resj>ect to one of which, by the court below, the judgment of that court was reversed, relate to the general prin- ciple controlling measure of damages. A certain instrument, how- ever, which was imputed a receipt for the use of four of the plaint- iffs machines, was held properly admitted in evidence to reduce the damages to the extent of any claim for such use. SLANDER. Slander ; Special Damages. COUKT OF KING S BENCH. [1806.] Vicars v. Wiloocks (8 East, 1). Where special damage is necessary to sustain an action for slander, it is not sufficient to prove a mere wrongful act of a third person induced by the slander, such as that he dismissed the plaintiff from his employ before the end of the term for which they had contracted ; but the special damage must be a legal and natural consequence of the slander. In an action on the case for slander the plaintiff declared, that whereas he was retained and employed by one J. O. as a journeyman for wages, the defendant knowing the premises, and maliciously in- tending to injure him, and to cause it to be believed by J. O. and others that the plaintiff had been guilty of unlawfully cutting the cordage of the defendant, and to prevent the plaintiff from continuing in the service and employ of J. O., and to cause him to be dismissed therefrom, and to impoverish him ; in a discourse with one J. M. concerning the plaintiff and concerning certain flocking cord of the defendant alleged to have been before then cut, said that he (the de- fendant) had last night some flocking cord cut into six yard lengths, but he knew who did it ; for it was William Yicars, meaning that the plaintiff had unlawfully cut the said cord. And so it stated VICARS v. WILCOCKS. 721 other like discourse with other third persons, imputing to the plaintiff that he had maliciously cut the defendant's cordage in his rope-yard. By reason whereof the said J. O., believing the plaintiff to have been guilty of unlawfully cutting the said flocking cord, &c, discharged him from his service and employment, and has always since refused to employ him ; and also one P. P., to whom the plaintiff applied to be employed after his discharge from J. O., on account of the speak- ing and publishing the said slanderous words, and on no other account whatsoever, refused to receive the plaintiff into his service. And by reason of the premises the plaintiff has been, and still is, out of em- ploy and damnified, &c. It appeared at the trial, before Lawrence, J., at Stafford, that the plaintiff had been retained by J. O. as a journeyman for a year at certain wages, and that, before the expiration of the year, his master had discharged him in consequence of the words spoken by the defend- ant. That the plaintiff afterwards applied to P. P. for employment, who refused to employ him in consequence of the words, and because his former master had discharged him for the offense imputed to him. The plaintiff was thereupon non-suited, it being admitted that the words in themselves were not actionable without special damage ; and the learned judge being of opinion that the plaintiff having been retained by his master under a contract for a certain time then unex- pired, it was not competent for the master to discharge him on account of the words spoken, but it was a mere wrongful act of the master, for which he was answerable in damages to the plaintiff; that the supposed special damage was the loss of those advantages which the plaintiff was entitled to under his contract with his master, which he could not in law be considered as having lost, as he still had a right to claim them of his master, who, without a sufficient cause, had re- fused to continue the plaintiff in his service. 2dly. With respect to the subsequent refusal of P. P. to employ the plaintiff, that it did not appear to be merely on account of the words spoken, but rather on account of his former master having discharged him in conse- quence of the accusation, without which he might not have regarded the words. Jervis now moved to set aside the nonsuit. Lord Ellexborough, C. J., said, that the special damage must be the legal and natural consequence of the words spoken, otherwise it did not sustain the declaration ; and here it was an illegal consequence, a mere wrongful act of the master, for which the defendant was no more answerable than if, in consequence of the words, other persons had afterwards assembled and seized the plaintiff, and thrown him 4G 722 SLANDER. into a horse-pond by way of punishment for his supposed transgres- sion. And his lordship asked whether any case could be mentioned of an action of this sort sustained by proof only of an injury sus- tained by the tortious act of a third person. Upon the second ground, non liquet that the refusal by R. P. to employ the plaintiff was in con- sequence of the words spoken, as it is alleged to be ; there was at least a concurrent cause, the act of his former master in refusing to continue him in his employ, which was more likely to weigh with R. P. than the mere words themselves of the defendant. The other judges concurring. Rule refused. Slander ; Special Damage ; Repetition of Slandek. THE COURT OF COMMON PLEAS. [1830.] Ward v. Weeks (7 Bing. 211). The plaintiff alleged special damage from words spoken by the defendant: Held, that this allegation could not be supported by proof that defendant had spoken the words to B., and that damage ensued in consequence of B.'s repeating them as the words of the defendant. Slander. — The words stated in the declaration to have been spoken by the defendant of the plaintiff, were, " He is a rogue and a swindler ; I know enough about him to hang him : " and the plaint- iff' then alleged, as a special damage, that by means of the commit- ting of the several grievances, one John Bryer, who before and at the time of the committing of those grievances was about to sell goods to the plaintiff' on credit, necessary for the carrying on and commencing of the plaintiff's business as a general shopkeeper, which he was about to commence, refused and declined so to do. The defendant pleaded the general issue. At the trial of the cause, the evidence which the plaintiff was prepared to produce was, that the defendant had spoken the words as laid in the declaration, to one Edward Bryce, and that Bryce had communicated the statement as the statement of the defendant to John Bryer, who thereupon re- fused to trust the plaintiff. Upon this statement of the evidence, the learned judge, who tried the cause, directed the plaintiff' to be called. After argument on a rule nisi for a new trial, the opinion of the court was delivered by WARD v. WEEKS. 723 Tindal, C. J. — This was an action upon the case, in which the words stated in the declaration to have been spoken by the defendant of the plaintiff are, " He is a rogue and a swindler : I know enough about him to hang him : " and the plaintiff then alleges, as a special dam- age, that by means of the committing of the several grievances, one John Bryer, who before and at the time of the committing of those grievances, was about to sell goods to the plaintiff on credit, necessary for the carrying on and commencing of the plaintiff's business as a general shopkeeper, which he was about to commence, refused and declined so to do. The defendant pleaded the general issue. At the trial of the cause, the evidence which the plaintiff was prepared to produce was, that the defendant had spoken the words as laid in the declaration, to one Edward Bryce, and that Bryce had communicated the statement, as the statement of the defendant, to John Bryer, who thereupon refused to trust the plaintiff. Upon this statement of the evidence, the learned judge who tried the cause directed the plaintiff to be called ; and the question before us is, whether this nonsuit should be set aside ? As the words spoken do not contain the charge of any legal definite crime, nor are alleged to be spoken of the plaintiff in the way of any trade or business, so as to impute dishonesty to him in such trade, the words are not actionable per se / and the only ground of action is the special damage which the plaintiff has alleged. The question therefore is, whether the special damage, which is the gist of the action, has been proved as it is alleged, or whether there is a vari- ance between the allegation and the proof ? The substance of the plaintiff's allegation is, that by reason of the defendant's false representations to divers persons, one John Bryer refused to trust the plaintiff. Kow the evidence necessary to support this allegation would have been, either that John Bryer was present and heard the defendant make the representation to some person, or, at the very least, that when the defendant made such representations he directed them to be communicated to Bryer. But neither of these suppositions exist in fact ; on the contrary, the evidence was. that the words were addressed to one Edward Bryce, and that Bryce, at a subsequent time and place, and without any authority from the defendant, repeated the representation to Bryer, the repetition of which words, and not the original statement, occasioned the plaintiff's damage. Every man must be taken to be answerable for the necessary con- sequences of his own wrongful acts ; but such a spontaneous and 724 SLANDER. unauthorized communication cannot be considered as the necessary consequence of the original uttering of the words. For no effect whatever followed from the first speaking of the words to Bryce ; if he had kept them to himself Bryer would still have trusted the plaintiff. It was the repetition of them by Bryce to Bryer, which was the voluntary act of a free agent, over whom the defendant had no control, and for whose acts he is not answerable, that was the im- mediate cause of the plaintiff's damage. We think therefore that as each count in the declaration alleges, as the only grievance, the original false speaking of the words, the allegation, " that by reason of the committing of such grievance, Bryer refused to give the plaintiff credit," is not made out by the evidence ; and on this ground we think the nonsuit is right. It is argued, that unless the plaintiff can recover against the pres- ent defendant he sustains a great injury, and is altogether without remedy ; and the authority in the fourth resolution in Lord North- ampton's Case, 12 Co. 134, is relied upon for that purpose. But even supposing that the proposition laid down in that case is to be taken as an unqualified proposition that the repetition of slanderous words, stating at the time the name of the author, is upon all occasions, and under all circumstances, justifiable, which we agree in thinking is far from the import of the resolution, still we must look to the interests of the defendant as well as those of the plaintiff, and be careful not to make him responsible for a greater measure of damage than flows necessarily from his wrongful acts. But the resolution above referred to, which has at all times been looked at with disapprobation, has in the recent case of M'Pherson v. Daniels (10 B. & C. 263), been in effect overruled by the Court of King's Bench ; and with the judgment of that court, upon that occasion, we entirely concur. We therefore think the rule for setting aside the nonsuit must be discharged. Bule discharged. LYNCH v. KNIGHT. 725 Special Damages in Slander. HOUSE OF LORDS. [1801.] Lynch v. Knight (9 H. of L. Cases, 577; 5 L. T. N. J. 291). Qiuere. Whether a wife can maintain an action against a third person for words occa- sioning to her the loss of the consortium of the husband ? Per Lord Campbell (Lord Chancellor). — She can. If she can, the words must be such that from them the loss of the consortium follows as a natural and reasonable consequence : Where therefore a wife (her husband be'iDg joined for conformity as a plaintiff) brought an action to recover damages from A. for slander uttered by him to her husband, imputing to her that she had been almost seduced by B. before her marriage, and that her husband ought not to let B. visit at his house, and the ground of special damage alleged was, that in consequence of the slander the husband forced her to leave his house and return to her father, whereby she lost the consortium, of her husband : Held, that the cause of complaint thus set forth would not sustain the action, for that the alleged ground of special damage did not show (in the conduct of the husband) a natural and reasonable consequence of the slander. Dub. Lord Wensleydale. Allsop v. Allsop (5 H. & N. 534) confirmed. Per Lord Campbell (Lord Chancellor), though a case is of first impression, if it shows a concurrence of loss and damage arising from the act complained of, the action will be maintainable. The loss by the wife of her maintenance by the husband, occasioned by slander uttered by a third person, may be made the subject of a claim for damages, but such loss cannot be presumed to have so arisen ; it must be distinctly averred. Yicars v. Wilcocks (8 East, 1), observed upon. In such a case, though the act of the husband in sending away his wife was wrongful, because the slander was false, the fact that it was false, cannot be taken advan- tage of by the slanderer as an objection to the husband appearing on the record as a plaintiff. Observations on the unsatisfactory state of the law with regard to slanders on women. In this case an action had been brought in the Court of Queen's Bench in Ireland, in the names of Knight and his wife (the former being joined for conformity), to recover damages for slanderous M r ords spoken of the wife. The words complained of were alleged to have been uttered to the husband, and were thus set forth in the first paragraph of the plaint : " Jane is a notorious liar, and she will do her best to annoy you, as she takes delight in creating disturb- ances wherever she goes, and I advise you not to introduce her into society. Any singularity of conduct which you may have observed in your wife must be attributed to a Dr. Casserly of Roscommon, as 726 SLANDER. she was all but seduced by him ; and I advise you, if Casserly comes to Dublin, not to permit him to enter your place, as he is a libertine and a blackguard ; I have no other object in view in telling you about her conduct, and in speaking to you as I have done, but your own welfare. She is an infamous wretch, and I am sorry that you had the misfortune to marry her ; and if you had asked my advice on the subject, I would have advised you not to marry her." Innuendo : " That the defendant thereby meant to impute to the plaintiff Jane, that she had been guilty of immoral conduct before her marriage, and that she was a person of immoral and abandoned character and habits, and that she was a person likely to be guilty of committing adultery with said Dr. Casserly, if plaintiff AVilliam were to permit him to visit his said wife ; and that the defendant also meant thereby that the plaintiff Jane was a person who, from her bad conduct, habits, and character, was likely to bring disgrace on the plaintiff' William, and that he ought not to allow her to mix in society, lest she might do some act which would bring disgrace on him as her husband ; and that the defendant further meant thereby that the plaintiff "William was to be pitied for having married the plaintiff Jane from her immoral character and abandoned habits, and that he should be on his guard against her bringing him into further trouble and disgrace by future immoral or improper conduct on her part." The second paragraph set forth the following words : " He threatened to shoot me. I told him of his wife's miscon- duct. It was all owing to his wife. She had been insinuating to him that he had seduced her. She is a horrid young villain, and a notorious liar. Her brother, one Thomas Jones, is also a liar, but his lies are of the most harmless kind, whereas hers are of the most dangerous. In fact, she is such a dangerous character to have in the house, that I was obliged to have the back door in the yard nailed up." Innuendo : " That the defendant thereby meant to impute to the plaintiff Jane that she had been guilty of immorality as aforesaid with the said Dr. Casserly, and that, for the purpose of trying to conceal her said guilty conduct, she falsely represented to her hus- band that the defendant himself had tried to seduce her, and had, in fact, seduced her ; and also that the defendant meant thereby to im- pute to the plaintiff' Jane that she was a woman of the most aban- doned habits and character, and that she was capable of inventing any story to suit her own purposes, and that, in fact, it was unsafe for the defendant to have her living in his house from her conduct LYNCH v. KNIGHT. 727 and character, and that defendant had, in fact, been obliged to adopt precautions to prevent her having access to a portion of his premises, lest she might commit some crime therein." The averment of special damages was in these terms : " And the plaintiffs aver that from the said false, scandalous, and malicious statements of the defendant, the plaintiff William was at first led to believe, and that he did in fact believe that his wife, the plaintiff Jane, had been guilty of improper and immoral conduct before her marriage, and that her character and conduct was such as represented as aforesaid by said defendant ; that he, the plaintiff William, ought not any longer to live with the plaintiff Jane as his wife ; and the plaintiff William, influenced solely by the defendant's said slanders, and then believing that the statements so made by the said defendant, who was the stepbrother of his wife, were true, .shortly after the speaking of said matter by the defendant, and in consequence thereof, was induced to refuse, and did in fact refuse to live any longer with the plaintiff Jane as his wife, and on the con- trary, the plaintiff William required the father of the plaintiff Jane, who lived in the country, to take her home to his own house, which he accordingly did ; and the plaintiff Jane, in fact, thereupon left Dublin and returned to her father's house, where she resided for a considerable time, separated from her said husband. And the plaintiffs aver that such separation was solely and entirely caused by and resulted from the acts of the defendant as aforesaid." And the plaintiffs aver that they have sustained damage. The defendant demurred to the plaint upon the grounds, that the words not being actionable in themselves, the special damage assigned was too remote ; also, that the damage, if taken to be dam- age to the wife alone, was not such a temporal loss as a court of common law could take cognizance of ; also, that the damage com- plained of having resulted from the wrongful and illegal act of one of the plaintiffs, he could not maintain an action for it ; also, that in any case the action being for words spoken of the wife, not ac- tionable in themselves, the plaintiff Jane should not have been joined as plaintiff. The defendant also, as a defense, denied the uttering of the words, and further pleaded that they were not spoken in the sense imputed. The issues settled by the court were, first, whether the defendant spoke the words ; secondly, whether they were spoken in the defam- atory sense mentioned in the two paragraphs of the plaint. The jury found a verdict for the plaintiffs, damages 1501. The 728 SLANDER. Court of Queen's Bench having overruled the demurrer, judgment was given for the plaintiffs on this finding. The case was then taken on error to the Exchequer Chamber, where the judges were divided in opinion, but the judgment was affirmed. The present proceeding in error was then brought. After argument the following opinions were delivered : Lord Brougham. — My Lords, in this case I will read the judg- ment of my noble and learned friend, the late Lord Chancellor.* He says : " In addition to hearing the able arguments at the bar in this case, I have had the advantage of reading the judgments in extenso, corrected by themselves, of all the learned judges in Ireland who took part in the decision in the Court of Queen's Bench or in the Court of Exchequer Chamber. I may be permitted to observe, that I have been greatly pleased by the research, the learning, and the talent which they display. " After much consideration, I agree with the two dissenting judges in the Court of Exchequer Chamber. I am far from think- ing the opinions of the majority to be entitled to less weight from the difficulty with .which they were formed, and the hesitation with which they were pronounced. On the contrary, I regard them on this account still more respectfully. " Were it not for one defect in the case of the plaintiffs, I should have agreed with them, and I think that all the other objections to the action were properly overruled. " Although this is a case of the first impression, if it can be shown that there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say that this action lies. Nor can I allow that the loss of corsortium, or conjugal society, can give a cause of action to the husband alone. If the special dam- age alleged to arise from the speaking of slanderous words, not actionable in themselves, results in pecuniary loss, it is a loss only to the husband ; and although it may be the loss of the personal earn- ings of the wife living separate from her husband, she cannot join in the action. But the loss of conjugal society is not a pecuniary loss, and I think it may be a loss which the law may recognize, to the wife as well as to the husband. The wife is not the servant of the husband, and the action for criminal conversation by the husband does not, like the action by a father for seduction of a daughter, rest * The Lord Chancellor (Lord Campbell) died on the 23d June, after the hearing of this case, but before the judgment was delivered. LYNCH v. KNIGHT. 72$ on any snch fiction as a loss of the services of the wife. The better opinion is that a wife could not maintain or join in an action for criminal conversation against the paramour of her husband who had seduced him. But I conceive that this rests on the consideration that, by the adultery of the husband, the wife does not necessarily lose the consortium of her husband ; for she may, and, under certain circumstances, she ought to condone and still enjoy his society ; whereas condonation of conjugal infidelity is not permitted to the husband, and, by reason of the injury of the seducer, the consortium) with the wife is necessarily for ever lost to the husband. " I place no reliance on the objection that in a case like the present, the imputation cast on the wife being false, the act of the husband in separating from her is wrongful, and therefore he cannot join as plaintiff in an action, the foundation of which is his own wrongful act. If his dismissal of the wife from his house would have been reasonably justifiable, had the words spoken been true, and this act was a natural, probable, and direct consequence of the imputation, I do not think that the defendant could avail himself of the objection of the imputation being false, he having intended the husband to believe that it was true, and having intended the hus- band to act upon it. Mr. Bovill observed that, ' the husband ought to have kicked the slanderer out of his house, and not his innocent wife.' But we cannot hear such language from the mouth of his client, the slanderer. " From some expressions of Lord Ellenbokougii in Vicars v. "Wilcocks (8 East, 1), it is argued that such an action will not lie where the act is wrongful as between the party who does the act and the party to whom it is done. But if there be any error in that case, I think it was in supposing that the offense imputed to the servant, even if he had been guilty of it, would not have justi- fied his master in dismissing him from his service. I do not consider Lord Ellenbokocgh to have held that, although the im- putation, if true, would have justified the dismissal, the action would not lie, because the imputation was false, and the dismissal was wrongful. " I am of opinion that in the present case the action is not main- tainable, because, looking to the frame of the declaration, the loss or special damage relied upon is not the natural and probable conse- quence of the injury complained of, viz., the speaking of the slanderous words. It is allowed that the words are not actiona- ble in themselves, and reliance is placed solely on the allegation, 'that in consequence thereof the husband was induced to refuse, (30 SLANDER. and did, in fact, refuse to live any longer with the plaintiff Jane, his wife, and on the contrary thereof the plaintiff William re- quired the father of the plaintiff Jane, who lived in the country, to take her home to his own house, which he accordingly did ; and the plaintiff Jane, in fact, thereupon left Dublin, and returned to her father's house, where she resided for a considerable time separ- ated from her husband.' ISTow, assuming that this rather inartificial language amounts to a sufficient allegation that in consequence of the words spoken by the defendant, the plaintiff Jane had for a time lost the conjugal society of her husband, we must inquire whether this special damage was the natural and probable consequence of the words spoken. Had those words contained a charge of adultery by the wife, which the defendant pretended to know, and which he as- serted as a fact, I should have thought the allegation of special clam- age sufficient to support the action. In that case the husband, be- lieving the charge to be true, would have been justified in separating from his wife, and this separation would have been the natural and direct and probable consequence of the slander. Although not the necessary consequence, it would not have arisen from any idiosyn- cracy in this particular husband. Most husbands would have done the same, and the effect might have been foreseen, and might be taken to have been intended by the defendant when he spoke the words. But, examining the words actually spoken as set out in the plaint, they contain no charge of adultery, nor any imputation of any kind which, if true, would justify the act of the plaintiff "William, or would induce any reasonable man to do such an act. The specific charge excludes adultery, and the general charges amount only to levity of manners, requiring vigilance on the part of the husband, and the advice given was consistent with her remaining in the conjugal society of her husband — that he should keep her at home, k and not allow her to mix in society, lest she should thereafter do some act which would brino- disgrace on him.' " I think that Allsop v. Allsop was well decided, and that mere mental suffering or sickness, supposed to be caused by the speak- ing of words not actionable in themselves, would not be special damage to support an action. But we need not further inquire into the soundness of that decision, for in this case there is no allegation of mental anguish or bodily suffering in consequence of the slander. " Reliance was placed on the action by a young woman for words not actionable in themselves, being supported by the special damage, that her marriage had been broken off by slander, although the LYNCH v. KXIGHT. 731 imputation being untrue, the recreant lover could not justify his breach of contract. But there the words must be such, as if true, would be a justification to him. The act constituting the sj^ecia] damage must be such as might be expected from a reasonable man who believed the truth of the words according to the intention of the slanderer. " I may lament the unsatisfactory state of our law, according to which the imputation by words, however gross, on an occasion, how- ever public, upon the chastity of a modest matron or a pure virgin, is not actionable without proof that it has actually produced special temporal damage to her ; but I am here only to declare the law ; and being of opinion that in this case the special damage relied upon arose, not from the natural and probable effect of the words spoken by the defendant, but from the precipitation or idiosyn- craev of the plaintiff William dismissing the plaintiff Jane from his house when he was only cautioned not to let her mix in so- ciety, I must, with sincere deference for the authority of the ma- jority of the Irish judges advise your Lordships that the judgment be reversed." My Lords, I entirely agree with my late noble and learned friend, in his observations, which I have read, upon this case, with this ex- ception, that I am rather inclined to think (though that has become immaterial) that the action does not lie. The words here are not such as would in an ordinary case, and with ordinary persons, nat- urally produce the effect which they appear to have produced in this case. That is the ground upon which I would hold that the judg- ment of the court below is wrong. The words did not impute to the wife actual criminality before marriage. My late noble and learned friend seems to have thought that if they had imputed actual criminality before marriage the parties would stand in a different position. I rather doubt that ; but, however, it becomes quite unnecessary to decide that, because the words do not impute actual criminality, and therefore we need not now consider what would be the effect of words of that kind. Here the words arc only that she had shown herself false and deceptive, and that before mar- riage she had been, not seduced, but had been all but seduced, by Dr. Casserlv. " All but seduced " — that excludes the actually hav- ing been seduced. I am clearly of opinion that these words in an ordinary case, and with ordinary men, would not have led to the consequence of the wife being turned out of the house, and sent home to her father. I am therefore of opinion that a sufficient ground of action has not been stated, and that the judgment onght to be for the plaintiff in error. 732 SLANDER. I must add, that I entirely agree with what my late noble and learned friend says towards the end of his judgment. He laments the unsatisfactory state of our law, according to which the imputa- tion by words, however gross, on an occasion however public, upon the chastity of a modest matron, or a pure virgin, is not actionable without proof that it has actually produced special temporal damage to her. The only difference of opinion which I have with my noble and learned friend is, that instead of the word " unsatisfactory," I should substitute the word " barbarous." I think that such a state of things can only be described as a barbarous state of our law in that respect. Lord Ckanwortii. — My Lords, we have had, since the argument, an opportunity of fully considering the judgment delivered by the learned judges in the Exchequer Chamber in Ireland. The result, in my mind, is that which I had previously formed, viz., that the view of the case taken by the minority of those judges is correct, so that the judgment below ought to be reversed. In order to sustain the judgment of the court below, the defend- ants in error must maintain two propositions : First, that for slan- derous words spoken of a wife, not actionable in themselves, but occasioning special damage to her by depriving her of the consort- ium, or conjugal society of her husband, the husband and wife may maintain an action against the slanderer ; and secondly, that suppos- ing such an action to be maintainable, the words spoken in this case were such as might naturally occasion the wife to lose the consortium or society of her husband. My late deceased noble and learned friend, the late Lord Chan- cellor, I know, entertained a strong opinion on the first point in favor of the right of action. He thought that the consequential damage arising to the wife in such a case, afforded her a good ground of action ; that the right of action on that ground was not confined to the husband. In the view which I take of this case, I do not feel called on to express a decided opinion on this point. I believe your Lordships are not all agreed on it, and I will therefore only say that I am strongly inclined to think that the view taken by my late noble friend was correct. But the ground on which I am prepared to advise your Lord- ships to reverse the judgment below is, that even supposing such an action would lie,' still this action is not maintainable. The special damage, in order to afford a foundation for such an action, must appear to be the natural, I do not say the necessary LYNCH v. KNIGHT. 733 consequence of the words spoken ; and in this case, I cannot come to the conclusion that the conduct pursued by the husband was that which was, or which the slanderer could have supposed likely to be, the consequence of his slander. The words uttered do not, it must be observed, impute to the wife actual criminality before marriage, but only that she had shown herself false and decep- tive, and that before her marriage she had been all but seduced by Dr. Gasserly. I cannot say, judicially, that the natural result of such slander would be to induce the husband to send his wife back to her parents, and to refuse any longer to live with her. Such conduct on the part of the husband could not have been justified ; he might have been compelled to take back his wife. If the slander had been that she had been guilty of a breach of her marriage vows, that she had, since her marriage, committed adultery — then, indeed, the conduct of the husband in sending his wife to her friends, and refusing any longer to cohabit with her, would have been the natural result of the words spoken. It would not then lie in the mouth of the slanderer to say that they were false, or that the husband ought not to have acted on them ; and supposing such an action to be maintainable at all, the special damage would have been well laid as being the natural conse- quence of the slander. But in the present case I should have thought that the natural result of the imputations would have been to lead the husband to watch his wife more carefully, to take care that she was never allowed to meet Dr. Casserly, and to attempt, as far as possible, to reclaim her from the habits of deception and falsehood into which she was represented to have fallen before her marriage. On the ground, therefore, that the plaint or declaration does not state any consequential damage to the wife as flowing naturally from the words spoken, I am of opinion that judgment ought to be given for the plaintiff in error. Lord Wensleydale. — My Lords, since the argument at your Lordships' bar, we have been furnished with copies of all the judgments delivered in the Queen's Bench, and in the Court of Error in Ireland, in which the case is argued on both sides with very great ability, and every authority, I believe, bearing on the questions, cited. With the great additional aid derived from these judgments, I have given those questions every consideration in my power, and, not without considerable difficulty and doubt, have come to the conclusion that the judgment of the Court of Error 734 SLANDER. ought to be reversed, and judgment given for the plaintiff in error. The questions in the case are two : 1st. Whether a wife can maintain an action for the loss of the consortium of the husband by a wrongful act of the defendant (joining, of course, her husband for conformity) % and 2d. Whether the loss of that consortium is suffi- ciently connected with and shown to be the consequence of the de- fendant's wrongful act in this case, so as to be actionable ? There is a considerable doubt upon both these questions, but particularly on the first. I have made up my mind that no such ac- tion will lie. To test this, suppose an action brought by the wife for false im- prisonment of the husband by the defendant, for a period of time, by which she lost the consortium of the husband during that time. AVould such action lie ? If it would not, a fortiori, no action could be maintained for slander attended with the special damage of the loss of the husband's society, caused immediately by his own act. It is certainly an objection of the greatest weight to such an action that there is no precedent or authority of any kind in favor of it. It is contended that it may be supported by analogy to the ac- tion which the husband may unquestionably maintain for an injury to the wife j)er quod consortium amisit. I agree with Baron Fitzgerald, that the benefit which the hus- band has in the consortium of the wife, is of a different character from that which the wife has in the consortium of the husband. The relation of the husband to the wife is in most respects entirely dissimilar from that of the master to the servant, yet in one respect it has a similar character. The assistance of the wife in the conduct of the household of the husband, and in the education of his chil- dren, resembles the service of a hired domestic, tutor or governess ; is of material value, capable of being estimated in money ; and the loss of it may form the proper subject of an action, the amount of compensation varying with the position in society of the parties. This property is wanting in none. It is to the protection of such material interests that the law chiefly attends. Mental pain or anxiety the law cannot value, and does not pre- tend to redress, when the unlawful act complained of causes that alone ; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested. For instance, where LYNCH v. KXIGHT. 735 a daughter is seduced, however deeply the feelings of the parent may be affected by the wicked act of the seducer, the law gives no redress, unless the daughter is also a servant, the loss of whose serv- ice is a material damage which a jury has to estimate ; when juries estimate that, they usually cannot avoid considering the injured honor and wounded feelings of the parent. The loss of such service of the wife, the husband, who alone has all the property of the married parties, may repair by hiring another servant ; but the wife sustains only the loss of the comfort of her husband's society and affectionate attention, which the law cannot estimate or remedy. She does not lose her maintenance, which he is bound still to supply ; and it cannot be presumed that the wrong- ful act complained of puts an end to the means of that support with- out an averment to that effect. And if there were such an averment, the recovery of a compen- sation must be by joining the husband in the suit, who himself must receive the money, which would not advance the wife's remedy. The wife is, in fact, without redress by any form of action for an injury to her pecuniary interests. That the loss of the comfort of the society and attention of friends by a wrongful act does not support an action for slander is fully settled by the case of Moore v. Meagher (1 Taunt.^9) ; and the wife can have no right of action for a loss of the same character, though of a much higher degree, for the loss of that of her husband. To the same effect is the case of Medhurst v. Balam (cited in 1 Siderf. 397). For these reasons, I think the wife has no remedy in the sup- posed case of the wrongful imprisonment of the husband : and by parity of reasoning, she can have none for being deprived of the society of her husband by the slander of another upon her character, causing him to desert her, especially when we consider that the dam- age in this ease is immediately caused by the husband's own volun- tary act. This view of the case makes it unnecessary to consider whether the slander of the defendant has been proved to be the cause of the loss — the desertion by the husband — so as to make the words action- able, they not being so unless they have caused a special damage. Upon this question 1 am much influenced by the able reasoning of Mr. Justice Christian. I strongly incline to agree with him, that to make the words actionable, by reason of special damage, the con- sequence must be such as, taking human nature as it is, with its in- firmities, and having regard to the relationship of the parties con- 736 SLANDER. cerned, might fairly and reasonably have been anticipated and feared would follow from the speaking the words, not what would reason- ably follow, or we might think ought to follow. I agree with the learned judges, that the husband was not justi- fied in sending his wife away. I think he is to blame ; but I think that such deliberate and continued accusations, of such a character, coming from such a quarter, might reasonably be expected so to op- erate and to produce the result which they did. In the case of Vicars v. Wilcocks (8 East, 1), I must say that the rules laid down by Lord Ellenborough are too restricted. That which I have taken from Mr. Justice Christian seems to me, I own, correct. I cannot agree that the special damage must be the natural and legal consequence of the words, if true. Lord Ellenborough puts as an absurd case, that a plaintiff could recover damages for being thrown into a horse-pond, as a consequence of words spoken ; but I own I can conceive that when the public mind was greatly excited on the subject of some base and disgraceful crime, an ac- cusation of it to an assembled mob might, under particular circum- stances, very naturally produce that result, and a compensation might be given for an act occurring as a consequence of an accusa- tion of that crime. I think the judgment of the Court of Exchequer Chamber should be reversed. Judgment reversed. Note. — Where the plaintiff's business as a trader has been injured, as the natural consequence of anything said, and an action is therefore maintainable, it is sufficient for him to show that from the time of the injury his business has fallen off, and it is unnecessary to prove that any particular persons have ceased to deal with him. Riding v. Smith, 1 L. R. Exch. Div. 91. See Georgia v. Kep- ford, 45 Iowa, 48. DA VIES v. SOLOMON. 73 < COURT OF QUEER'S BENCH. [1871.] Davies v. Solomon (L. R. 7 Q. B. 112). Special damage in slander ; consortium ; slander of married woman ; imputation of un- chastity ; special damage; action by husband and wife; loss of hospitality of friends. Declaration, by husband and wife, charged a slander imputing want of chastity to the wife, whereby she was " injured in her char- acter and reputation, and became alienated from and deprived of the cohabitation of her husband, and lost and was deprived of the com- panionship, and ceased to receive the hospitality of divers friends, and especially of her husband," and others named, who had " by reason of the premises withdrawn from the companionship and ceased to be hospitable to or friendly with her." Demurrer and joinder in demurrer. Blackburn, J. — The sole difficulty in deciding the case is caused by the opinion of Lord Wensleydale, in Lynch v. Knight (9 H. L. C. 577). He held that no action would lie for slander of a wife when the only special damage alleged was the loss to the plaintiff of the consortium of her husband. In the present case, however, it is unnecessary to decide this question, for the declaration, after alleging the loss of cohabitation by the wife, proceeds to aver that " she lost and was deprived of the companionship, and ceased to receive the hospitality of divers friends." Now, first, was that consequence such as might reasonably and naturally be expected to follow from the speaking of the slanderous words? Judging from the habits and manners of society of all the consequences that might be expected to result from a statement that a woman had committed adultery, or had been guilty of unchastity, the most natural would be that those who had invited her and given her hospitality would thenceforth cease to do so. Then Moore v. Meagher (1 Taunt. 39) decides that the loss of the hospitality of friends is sufficient special damage to sustain an ac- tion like the present ; and the hospitality, as the word is there used, means simply that persons receive another into their houses, and give him meat and drink gratis. Perhaps such a definition may rather extend the signification of the word, but it is true in effect — for if they do not receive him, or if they make him pay for his entertain- ment, that is not hospitality. In Roberts v. Roberts (5 B. & S. 3S4 ; L. J. 33 Q. B. 219), it is to be observed, that the loss suffered by the plaintiff in being excluded from a religious society, was not temporal, and was therefore held not to be enough. But in the present case 47 738 EXCESSIVE DAMAGES. there is a matter of temporal damage — small though it be — laid in the declaration. It is also argued, that inasmuch as this action is brought by the wife, the husband being merely joined for conform- ity, the damage necessary to give a right to recover must be damage to her alone, and that the loss of hospitality which she has hitherto enjoyed, is only pecuniary loss to her husband and not to her. That certainly is a plausible argument, as the husband is of course bound to maintain his wife and to supply her with food, although her friends cease to do so. I am, however, unwilling to agree with such artificial reasoning, and I think that the real damage in this case is to the wife herself. Not withstanding that it is the husband's duty to support his wife, he is only bound to provide her with necessaries suitable to his station in life ; and she might, by visiting friends in a higher position than himself, enjoy luxuries which he either could not or might not choose to afford her. But I should be sorry to say that we must enter into a nice inquiry as to whether such hospitality would save the purse of the husband or of the wife. I am, therefore, of opinion that the declaration is good, and the demurrer must be overruled. Mellor and Hannen, JJ., concurred. Judgment for the plaintiffs. Note. — The jury may, in actions for slander, consider the degree of malice with which the slander was uttered, as shown by the defendant's subsequent acts, but cannot give damages for such acts. Stitzell v. Reynolds, 67 Penn. St. 54 (1871). EXCESSIVE DAMAGES. SUPREME COURT, ILLINOIS. [1869.] Illinois Central Railroad Company v. Welch (52 111. 183). Excessive damages ; actions against corporations. Appeal from the Circuit Court of Cook County ; the Hon. E. S. Williams, Judge, presiding. The facts in this case are fully stated in the opinion. Mr. Justice Lawrence delivered the opinion of the court : ILLINOIS CENTRAL R. R. CO. v. WELCH. 739 The facts of this case are stated with substantial correctness in one of the arguments by counsel for appellant, as follows : The Illinois Central Railroad track at Mendota is about 18 inches from the edge of the awning, which projects from the station house, so that when a freight car stands upon the track, the inside edge of the car is about even with the outer edge of the awning. The awning is about 18 inches higher than the top of the car. On the 28th day of February, 1866, Welch was a brakeman on a freight train running on that road. The cars were coming in to Mendota at a rate of speed about as fast as a man could walk. Welch was walking by the side of the train for the purpose of cutting off a portion of it. There was a ladder on each side of the car. The plaintiff had pulled out the pin and disconnected a portion of the train from the engine, anct was walking along beside the train when the engineer signaled for brakes. The plaintiff ran up the ladder on the car on the side next the station house, and before he reached the roof of the car he was struck by the projecting awning, and knocked from the car ; his left arm was broken, and injured so that it had to be amputated. The left side of his head was bruised with a scalp wound over the same. Was treated by physicians until about the 1st of May, 1866. It should be further stated that the attention of the division superintendent and division engineer had been sometime previously called to the dangerous position of this awning. When the engineer called for brakes, it was the duty of the ap- pellee to mount the car for the purpose of applying them. He was therefore injured while in the performance of his duty in obedience to an order. The jury found a verdict for plaintiff for ten thousand dollars, on which the court rendered judgment. After disposing of questions relating to the right of action, the learned judge proceeded as follows. The damages are excessive. It has become a matter of public notoriety, and is evidenced by many of the records brought to this court, that juries may generally assess an amount of damages against railway corporations which, in similar cases between individuals, would be considered unjust in the extreme. It is lamentable that the popular prejudice against these corporations should be so powerful as to taint the administration of justice, but we cannot close our eyes to the fact. When this becomes apparent, the courts must interfere. However natural this prejudice, or however well deserved, it cannot be permitted to find expression in unjust verdicts. A railway com- pany is entitled to, and must receive, the same measure of justice 740 EXCESSIVE DAMAGES. that is meted out in a suit between John Doe and Richard Roe. Juries must be taught, if possible, that when they enter the jury box they are entering upon a duty so high and solemn that they must shrink from the influence of prejudice or passion as they would shrink from crime. Doubtless the twelve men who composed this jury were, individually, honest men, but we cannot believe they had a proper sense of their duty and responsibility as jurors. There was in this case no malice or oppression on the part of the company, and therefore no room for vindictive damages. The injury to the plaint- iff was merely an accident, resulting, it is true, from the carelessness of the company, but still, an accident in the sense that it was unin- tentional. The injury, although severe, is not one that wholly disa- bles the plaintiff. He testifies that he has since been learning the trade of a printer. His wages as a brakeman were forty dollars per month, amounting to 480 dollars per annum. The annual income he would derive from $10,000, the amount of this verdict, would be, at the ordinary rate of interest in this State, one thousand dollars. The wages he was receiving would not amount to this verdict in twenty years. In one sense, it is true, a pecuniary value cannot be placed upon an arm. But inasmuch as the law can give only a pecuniary compensation, and as the plaintiff seeks that by his suit, we are obliged to take a practical and almost unfeeling view of this question, and when the injury is one that will still leave a plaintiff able to earn as much, in many occupations, as he was earning before the ac- cident, we must hold a verdict to be unreasonable which gives him at once a sum larger than the great majority of the community earn by a long life of toil, and the interest of which would amount to more than twice his wages. When we consider this, and remember that such verdicts for injuries inflicted without design or malice, are never rendered in suits between individuals, and that the statute limits the damages for the loss of life to five thousand dollars, we think it our duty to pronounce the damages in this case excessive. The judgment is reversed and the cause remanded. Judgment reversed. COOK v. ELLIS. 741 EXEMPLARY DAMAGES. Exemplary Damages ; Criminal Punishment for the Offense which is the Subject of the Action is no Bar to the Re- covery of Exemplary Damages, and it seems should not be admi'lted in evidence to mltigate the damages. SUPREME COURT, NEW YORK. [1844.] Cook v. Ellis (6 Hill, 466). In vindictive actions for damages jurors are authorized to give exemplary damages, not- withstanding the defendant may have been convicted and punished in a criminal suit for the same offense. It seems that evidence of punishment for the same offense in a criminal suit should not be received, even in mitigation. The defendant committed an aggravated assault upon the plaintiff, for which he was indicted, tried, convicted, and fined $250, which he paid. Subsequently the plaintiff brought this action for assault and battery, in the Circuit Court, Clinton county, alleging the same offense. The defendant proved the former conviction as a bar to any claim beyond actual damages. The defendant's counsel requested the court to charge that the previous conviction and punishment were a bar to vindictive damages. This request was denied, and Willard, C. J., charged that the jury were not prevented by the criminal pro- ceedings from giving exemplary damages, if they thought proper, but that they might consider the fine and its payment in determining the amount of their verdict. The jury found for the plaintiff, assessing the damages at $550, and the defendant moved for a new trial on a case. Per Curiam. This action is for an assault made upon the plaint- iff' with intent to have carnal connection with her. It is not denied that there were circumstances in proof which authorized the jury to give exemplary damages, had not the defendant been convicted and fined $250 for the same assault, which he had paid. This, it is in- sisted, barred all claim beyond the actual damages. The judge charged that the criminal proceedings did not prevent the jury from giving exemplary damages if they chose ; though the fine and payment were proper to be considered. in fixing the amount which they would allow the plaintiff. 742 EXEMPLARY DAMAGES. We have examined the several authorities cited on the part of the defendant, and find none of them so favorable to him as the learned judge was in this case, unless indeed a remark in 1 Chit. General Practice (p. 17, Am. ed. of 1834) forms an exception. But the author does not pretend to be sustained by any adjudged case, at least he cites none ; and we think he is mistaken. In vindictive actions — and this is agreed to come within that class — jurors are always au- thorized to give exemplary damages where the injury is attended with circumstances of aggravation ; and the rule is laid down with- out the qualification that we are to regard either the possible or the actual punishment of the defendant by indictment and conviction at the suit of the people. That the criminal suit is not a bar to the civil, and that no court will drive the prosecutor to elect between them, if the former be by indictment, is entirely settled (Jones v. Clay, 1 Bos. & Pull. 191 ; Jacks v. Bell, 3 Carr. & Payne, 310). He may proceed by both at the same time (Id.) ; nor will the court even stay proceedings in the civil action to govern themselves by the event of a pending criminal prosecution (Caddy v. Barlow, 1 Man. & Kyi. 275). We concede that smart money allowed by a jury, and a fine im- posed at the suit of the people, depend on the same principle. Both are penal, and intended to deter others from the commission of the like crime. The former, however, becomes incidentally compensatory for damages, and, at the same time, answers the purposes of punish- ment. The recovery of such damages ought not to be made depend- ent on what has been done by way of criminal prosecution, any more than on what may be done. Nor are we prepared to concede that either a fine, an imprisonment, or both, should be received in evi- dence to mitigate damages. True, if excluded, a double punishment may sometimes ensue ; but the preventive lies with the criminal rather than the civil courts. The former have ample power, if they choose to exert it, of preventing any great injury from excess of pun- ishment. In a proper case, if the party aggrieved will not release his private injury, or stipulate to waive a suit for it, or at least to waive all claim for smart money, the court may, after conviction, either im- pose a fine merely nominal, or stay proceedings till a trial shall be had in the civil action, and govern themselves accordingly in the final in- fliction of punishment. This, or something equivalent, has often been done. The more usual case in England is, where the party comes as the principal actor in the prosecution by way of applying for a crim- inal information. The court will then make it a condition that he shall waive his right of action (Rex v. Sparrow, 2 T. P. 198 ; see also COOK v. ELLIS. 743 Eex v. Fielding, 2 Burr. 654; 2 Kenyon's Rep. 386, S. C.) Indeed, so common has this become, that the very application by the party is said to be considered as an implied stipulation not to bring a private suit. This will therefore be stayed (Id.; Tidd. Pr. 9 Am. ed. 1840). And even where he proceeds by indictment, the court often, in effect, turn over the whole case to be disposed of by action, in the method before mentioned. The more usual course is to stay proceed- ings on the criminal side, till those on the civil side are at an end (Commonwealth v. Bliss, 1 Mass. 32; Commonwealth v. Elliot, 2 Id. 372). This is not done with us till after conviction (The People v. General Sessions of Genesee, 13 John. 84) ; and such is no doubt the better practice. In Jacks v. Bell (3 Carr. & Payne, 316), the party had received, on the certificate of the judges, a portion of several fines, amounting to more than the actual damage he had sustained by the assault. This was pursuant to the practice mentioned in 1 Chit. Cr. Law, 8, 810. In a civil action, therefore, Lord Tenterden, C. J., directed a verdict for one farthing only, saying that no certificate for the sum received would have been given by the court, unless it had been with the un- derstanding that no action was to be brought. The judges might, without doubt, have prevented an action entirely, had they required a release or stipulation as the condition of their certificate. The dam- ages were properly mitigated, because the party had actually got his full compensation. It is believed that no case goes further ; and even this would not authorize the jury to notice what fine may have been paid to the people. Of that the party gets nothing. The judges in this country are not authorized to give it to him. On the whole, we are of opinion that the charge was quite as favorable to the defendant as he could possibly claim, not to say more so. New trial denied. Note. — See also Edwards v. Leavitt, 46 Vt. 126 (1873). In a late decision in New Hampshire, it is held that, in an action of tort, it is incorrect for the jury to separate what is called actual from what is called exemplary damage. Exem- plary damages are the whole damage, estimated by the more liberal rule which obtains in the case of a malicious wrong (Bixby v. Dunlap, 56 N. H. 456). 744 EXEMPLARY DAMAGES. Exemplary Damages in Action for Consequential Damages. COURT OF EXCHEQUER. [i860.] Emblen v. Myers (C H. and K 54). In an action for willful negligence, the jury may take into consideration the motives of the defendant, and if the negligence is accompanied with a contempt of the plaintiffs rights and convenience, the jury may give exemplary damages. At the trial, before Wilde, B., at the London sittings in last Trinity Terra, it appeared that the plaintiff was the owner of a small piece of land, in Gravel Lane, Houndsditch, on which he bnilt a stable and loft, for the purpose of his trade as a coal and coke dealer. The defendant was the owner of an adjoining house, which, being in a dilapidated state, he was required by the police to pull down. The defendant had applied to the plaintiff to purchase his premises, but the plaintiff refused to sell them. The laborers employed by the de- fendant pulled down his house in such a reckless manner that a large piece of timber fell on the plaintiff's stable and knocked in the roof, which fell upon the horse and cart of the plaintiff. At that time the plaintiff's wife was in the stable. The plaintiff remonstrated with the defendant, but he said that the plaintiff had served him with a lawyer's letter and a writ, and that he would go on. The defendant told the laborers they might " work anyhow," and they threw down upon the stable great quantities of bricks, by which more injury was caused to the stable than by the pulling down of the house ; and it was suggested that this was done with a view to cause the plaintiff to give up the stable. The learned judge told the jury that they should take into con- sideration all the circumstances, both the conduct of the defendant and the expressions he used, and that if they were of opinion that the destruction of the stable was caused by the negligence of the de- fendant in pulling down the houses, they should give such damages as they thought a reasonable compensation for the injury the plaint- iff had sustained ; but if they were of opinion that what was done by the defendant was done willfully, with a high hand, for the purpose of trampling on the plaintiff and driving him out of possession of the stable, they might find exemplary damages. The jury having found a verdict for the plaintiff, with T5Z. damages. A rule nisi for a new trial having been obtained on the grounds that the learned judge's instructions were wrong, and that the dam- EMBLEN v. MYERS. 745 ages were excessive, counsel were heard for and against the rule, whereupon the following opinions were delivered : Pollock, C. B. — We are all of opinion that the rule ought to be discharged. I consider that the direction of the learned judge was substantially this : " In measuring these damages, you may take into consideration expressions used by the defendant showing a contempt of the plaintiff's rights and convenience." It is universally felt, by all persons who have had occasion to consider the question of com- pensation, that there is a difference between an injury which is the mere result of such negligence as amounts to little more than acci- dent, and an injury, willful or negligent, which is accompanied with expressions of insolence. I do not say that in actions of negligence there should be vindictive damages, such as are sometimes given in actions of trespass, but the measure of damage should be different, according to the nature of the injury and the circumstances with which it is accompanied. It appears to me that this declaration may be read as charging a willful wrong. It is true that the complaint is that the defendant acted negligently and with a want of due care ; but it is also stated that he wrongfully and injuriously pulled down the house, and consequently the injury was one which would admit of damages to an amount beyond that which the learned judge, by his direction, invited the jury to give. The courts have always recognized the distinction between damages given with a liberal and a sparing hand ; and, since the language of this declaration is such that it may be read as charging a willful wrong, and as it appears that the wrong was accompanied with expressions of contempt, I think that the direction of the learned judge was correct, that the damages are not excessive, and, consequently, the rule must be dis- charged. Bramwell, B. — I am also of opinion that the direction of the learned judge was perfectly correct. As soon as it is admitted that the plaintiff* may recover more than the actual loss, and that collat- eral facts may be inquired into, that principle applies, whether the injury was caused by the negligent or willful act of the defendant. Suppose a person caused a nuisance in front of another man's house, damages might be given for the insult as well as the actual injury. It is said that the act of the defendant was willful, and therefore the plaintiff cannot recover on this declaration ; but the act was negligent as well as willful. In my opinion the plaintiff is entitled to recover the whole amount which he has chosen to claim. If a plaintiff, in his particulars, claimed 500/. because the defendant walked over his 74G EXEMPLARY DAMAGES. • lawn, the jury miglit award that amount if they thought it was done for the purpose of annoyance and insult. Channell, B. — At first I thought that the declaration might be treated as charging an act of trespass as well as negligence ; but, on looking more closely into it, I think it must be read as charging the defendant with willful negligence. Then it remains to be seen whether the summing up of the learned judge was correct. In sub- stance it was this : " You may take into consideration all the circum- stances, and see whether there is anything to satisfy you that the defendant behaved in an improper and unjustifiable manner ; and if so, you need not give damages strictly, as in the case of mere negli- gence, but you may give them with a liberal hand." If in actions of trespass the plaintiff: may recover damages beyond the amount of the actual injury, I see no reason why the same rule should not ex- tend to willful negligence. As to the statement that the damages are given for something willful, not negligent, the objection should have been taken at the trial, that the evidence was not receivable upon such a declaration. For these reasons I think the rule ought to be discharged. Wilde, B. — I am of the same opinion. I am glad the court have come to the conclusion that upon this declaration it was competent for the jury to give exemplary damages, because it appeared to me at Nisi Prius that the case was a harsh one, and that the defendant acted with a high hand, intending to turn the plaintiff out of posses- sion. It is said that, under this declaration, evidence as to willfully destroying the plaintiff's shed ought not to have been admitted ; but the defendant's counsel permitted it to be given without the slight- est objection. Then, assuming that was one of the matters to be in- quired into, there is no foundation for the objection that the damages are excessive. It is impossible to say that when a wrong is commit- ted in the mode in which it was here committed, the circumstances attending its commission are not to be taken into consideration by the jury, with the view of properly estimating the damage. I did not tell them to find distinct damages in consequence of the de- fendant's conduct, but to take into consideration all the circum- stances, both the conduct of the defendant and the expressions he used. Rule discharged. Note. — It seems settled by the preponderance of authority, that exemplary damages may be recovered, in actions against corporations, for the willful or grossly negligent acts of their servants. See Belknap v. Railroad, 49 N. H. 358; DAY t. WOODWORTH. 747 Caldwell v. N. J. Steamboat Co. 47 KY. 282; Goddard v. Grand Trunk Railway Co. 57 Me. 202 ; Eckert v. St. Louis Transfer Co. 2 Missouri App. 3G. But a master is not liable for punitory damages for the act of his servant. done under circumstances which would give no right to the plaintiff as against the servant, had the suit been against him instead of his master. Hamilton v. The Third Avenue Railroad Co. 53 N. Y. 25. " For injuries for the negligence of a servant, while engaged in the business of the master, within the scope of his employment, the latter is liable for compen- satory damages; but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless he is also chargeable with gross misconduct." Opinion of the N. Y. Court of Appeals, per Church, Ch. J. Cleghorn v. New York Central and Hudson River Railroad Co. 56 N. Y. 44. But if the servant's injurious act be authorized, or be subsequently ratified by the master, the master is liable in punitory damages. Bass v. The Chicago and Northwestern Railway Co. 42 Wise. 654. Where an action against a carrier is ex contracto for breach of his agreement, and not ex delicto for his violation of duty, exemplary damages cannot be al- lowed. Walsh v. The Chicago, Milwaukee and St. Paul Railway Co. 42 Wise. 23. It is held by the Supreme Court of the United States, that to authorize the infliction of exemplary damages, for an iujury to a passenger on a railway train, occasioned by a collision, the absence of the care necessary, under the circum- stances, is not sufficient. There must have been, to do this, some willful mis- conduct or that entire want of care which would raise the presumption of a conscious indifference to consequences. Milwaukee & St. Paul Railway Co. i\ Army et al. 91 U. S. C. R. (1 Otto), 489. COSTS AND COUNSEL FEES. Costs ; Counsel Fees ; Exemplary Damages. SUPREME COURT, UNITED STATES. [1851.] Day v. Woodworth (13 How. 3G3). The suit being brought by the owner of a mill dam below, against the owners of a mill above, for forcibly taking down a part of the dam, upon the allegation that it injured the mill above, it was proper for the court to charge the jury, that, if they found for the plaintiff, upon the ground that his dam caused no injury to the mill above, thev should allow, in damages, the cost of restoring so much of the dam as was taken down, and compensation for the necessary delay of the plaintiff's mill ; and they might also allow such sum for the expenses of prosecuting the action, over and above the taxable costs, as they should find the plaintiff had necessarily incurred, for counsel fees, and the pay of engineers in making surveys, &c. T4S COSTS AND COUNSEL FEES. But if they should find for the plaintiff, on the ground that the defendants bad taken down more of the dam than was necessary to relieve the mill above, then, they would allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess ; but not anything for counsel fees or extra compensation to engineers, unless the taking down of such excess was wanton and malicious. In actions of trespass, and all actions on the case for torts, a jury may give exemplary or vindictive damages, depending upon the peculiar circumstances of each case. But the amount of counsel fees, as such, ought not to be taken as the measure of punish- ment, or a necessary element in its infliction. The doctrine of costs explained. Whether the verdict would carry costs or not, was a question with which the jury had nothing to do. This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts. It was an action of trespass quare clausumf regit brought by Day, a citizen of New York, against the defendants in error, citizens of Massachusetts, for pulling down a mill-dam within the town of Great Barrington, in the county of Berkshire, Massachusetts. The defendants put in a plea of not guilty, and also a special plea of justification, viz. : Mr. Justice Grier delivered the opinion of the court. The plaintiff in error was plaintiff below in an action of trespass, charging the defendants with tearing down and destroying his mill- dam. The defendants pleaded in justification that the Berkshire Woollen Company owned mills above the dam of plaintiff, who ille- gally erected and maintained the same, so as to injure the mills above; that by direction of said company, and as their agents and servants, they did enter plaintiff's close, and did break down and demolish so much of the plaintiff's dam as was necessary to remove the nuisance and injury to the mills above, and no more, and as they lawfully might. To this plea the plaintiff replied de injuria, &c. The learned judge, after affirming the correctness of the ruling of the judge at the trial, in favor of the defendants' right to begin, proceeded as follows : The great question, on the trial of this case, appears to have been whether the plaintiff's dam was higher than he had a right to main- tain it, and if so, whether the defendants had torn down more of it, or made it lower than they had a right to do. The plaintiff's counsel requested the court to instruct the jury that " they might allow counsel fees, &c, if there was any excess in taking down more of the dam than was justifiable, and give as a reason that the defendants thereby became trespassers ab initio." DAY v. WOODWORTH. 749 The court instructed the jury " that if they should find for the plaint- iff on the first ground, viz., that the defendants had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and malicious, then the jury would allow in dam- ages the cost of replacing such excess, and compensation for any delav or damage occasioned by such excess, but not anything for counsel fees or extra compensation to engineers." This instruction of the court is excepted to, on two grounds: First, because " this being an action of trespass, the plaintiff was not limited to actual damages proved ; " and, secondly, that the jury, under the conditions stated in the charge, should have been instructed to include in their verdict for the plaintiff, not only the actual damages- suffered, but his counsel fees and other expenses incurred in prosecut- ing his suit. It is a well-established principle of the common law, that, inactions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defend- ant, having in view the enormity of his offense, rather than the meas- ure of compensation to the plaintiff. AYe are aware that the propriety of this doctrine has been questioned by some writers ; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of ar- gument. By the common, as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punish- ment, given to the party injured. In many civil actions, such as libel, slander, seduction, &c, the wrong done to the plaintiff is incapable of being measured by a money standard ; and the damages assessed de- pend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant's conduct, and may properly be termed exem- plary or vindictive, rather than compensatory. In actions of trespass, where the injury has been wanton and ma- licious, or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff which he would have been en- titled to recover, had the injury been inflicted without design or inten- tion, something farther by way of punishment or example, which has sometimes been called " smart money." This has been always left to the discretion of the jury, as the degree of punishment to be thus in- flicted must depend on the peculiar circumstances of each case. It must be evident, also, that as it depends upon tjie degree of malice, wan- tonness, oppression, or outrage of the defendant's conduct, the punish- ment of his delinquency cannot be measured by the expenses of the 750 COSTS AND COUNSEL FEES. plaintiff in prosecuting his suit. It is true that damages, assessed by way of example, may thus indirectly compensate the plaintiff for money expended in counsel fees ; but the amount of these fees cannot be taken as the measure of punishment or a necessary element in its infliction. This doctrine about the right of the jury to include in their ver- dict, in certain cases, a sum sufficient to indemnify the plaintiff for counsel fees, and other real or supposed expenses over and above taxed costs, seems to have been borrowed from the civil law and the practice of the courts of admiralty. At first, by the common law, no costs were awarded to either party, eo nomine. If the plaintiff failed to recover, he was amerced pro falso clamore. If he recovered judg- ment, the defendant was in misericordia for his unjust detention of the plaintiff's debt, and was not therefore punished with the expensa litis under that title. But this being considered a great hardship, the statute of Gloucester (6 Ed. 1, c. 1) was passed, which gave costs in all cases where the plaintiff recovered damages. This was the origin of costs de incremento / for when the damages were found by the jury, the judges held themselves obliged to tax the moderate fees of counsel and attorneys that attended the cause. (See Bac. Abr. tit. Costs). Under the provisions of this statute every court of common law has an established system of costs, which are allowed to the successful party by way of amends for his expense and trouble in prosecuting his suit. It is true, no doubt, and is especially so in this country (where the legislatures of the different States have so much reduced attorneys' fee-bills, and refused to allow the honorarium paid. to coun- sel to be exacted from the losing party), that the legal taxed costs are far below the real expenses incurred by the litigant ; yet it is all the law allows as expensa litis. If the jury may, " if they see fit," allow counsel fees and expenses as a part of the actual damages incurred by the plaintiff, and then the court add legal costs de incremento, the de- fendants may be truly said to be in misericordia, being at the mercy both of court and jury. Neither the common law, nor the statute law of any State, so far as w r e are informed, has invested the jury with this power or privilege. It has been sometimes exercised by the permis- sion of courts, but its results have not been such as to recommend it for general adoption either by courts or legislatures. The only instance where this power of increasing the ''actual damages " is given by statute, is in the patent laws of the United States. But there it is given to the court and not to the jury. The jury must find the " actual damages " incurred by the plaintiff at the time his suit was brought ; and if, in the opinion of the court, the cle- DAY v. WOODWORTH. 751 fendant has not acted in good faith, or has been stubbornly litigious, or has caused unnecessary expense and trouble to the plaintiff, the court may increase the amount of the verdict, to the extent of trebling it. But this penalty cannot, and ought not, to be twice inflicted ; first, at the discretion of the jury, and again at the discretion of the court. The expenses of the defendant, over and above taxed costs, are usually as great as those of the plaintiff ; and yet neither court nor jury can compensate him, if the verdict and judgment be in his favor, or amerce the plaintiff pro falso clamore beyond tax costs. Where such a rule of law exists allowing the jury to find costs de incremeuto in the shape of counsel fees, or that equally indefinite and unknown quantity denominated (in the plaintiff's prayer for instruc- tion) " &c," they should be permitted to do the same for the defend- ant where he succeeds in his defense, otherwise the parties are not suffered to contend in an equal field. Besides, in actions of debt, covenant, and assumpsit, where the plaintiff always recovers his actual damages, he can recover but legal costs as compensation for his expen- diture in the suit, and as punishment of defendant for his unjust de- tention of the debt ; and it is a moral offense of no higher order to refuse to pay the price of a patent, or the damages for a trespass, which is not willful or malicious, than to refuse the payment of a just debt. There is no reason, therefore, why the law should give the plaintiff such an advantage over the defendant in one case, and refuse it in the other. (See Barnard v. Poor, 21 Pickering, 382 ; and Lin- coln v. The Saratoga Railroad, 29 "Wendell, 435. We are of opinion, therefore, that the instruction given by the court, in answer to the prayer of the plaintiff, was correct. The instruction to the jury, also, was dearly proper as respected the measure of the damages, and that the jury had nothing to do with the question whether their verdict would carry costs. The judgment is therefore affirmed. Note.— Counsel fees cannot even be considered by Ihe jury in estimating damages for the infringement of a patent right (Tecse v. Huntington, 23 How. U.S. 2). So in an action for overflowing the plaintiff's lands, the defendant having pleaded that the suit was wrongfully brought in order to harass him, and claimed damages for the loss of the sale of his land, and for his expenses for attorney's fees caused by the suit, and the jury having found a verdict in his favor, which included compensation for these items, they were both held to have beeu improperly al- lowed for (Salado College v. Davis, 47 Tex. 131). 752 COSTS AND COUNSEL FEES. Legal Expenses and Counsel Fees. SUPREME COURT, MASSACHUSETTS. [1877.] Inhabitants of Westfibld v. Amaziah Mayo (122 Mass. 100). A town, which defends an action brought against it to recover for an injury caused by the negligence of the defendant in creating an obstruction upon the highway, and which notifies him of the pendency thereof, and requests him to defend it, may re- cover not only the amount of the judgment recovered against it, but also reasonable expenses incurred in defending the same, including counsel fees. This was an action of tort tried before a judge of the Superior Court, without a jury, to recover the amount of a judgment paid by the plaintiff to Mary J. Hanchett, for injuries sustained by her through the defendant's negligence, upon a highway which the plaint- iff was bound to keep in repair, and also $150, the expenses of the suit in which that judgment was recovered. The Supreme Court, per Morton, J., affirmed the judgment, which was entered in the court below for the amount of the former judgment, and interest. But, on the point whether the recovery should include the sum of $150, paid out by the plaintiff for counsel fees in the original action, the court directed further argument. "Written arguments having been submitted accordingly, and con- sidered by all the judges, the following opinion was delivered. Lord, J. — The remaining question in this case is, whether the plaintiff shall recover the amount paid as counsel fees in the suit against the town, which, it is agreed, are reasonable, if in law they are to be allowed. The defendant was notified by the town of the pen- dency of the original suit, and was requested to defend it, which lie declined to do. The difficulty is not in stating the rule of damages, but in deter- mining whether in the particular case the damages claimed are within the rule. Natural and necessary consequences are subjects of dam- ages; remote, uncertain and contingent consequences are not. Whether counsel fees are natural and necessary, or remote and con- tingent, in the particular case, we think may be determined upon sat- isfactory principles ; and, as a general rule, when a party is called upon to defend a suit, founded upon a wrong, for which he is held responsible in law without misfeasance on his part, but because of the wrongful act of another, against whom he has a remedy over, counsel fees are the natural and reasonably necessary consequence of the INHABITANTS OF WESTFIELD v. MAYO. 753 wrongful act of the other, if he has notified the other to appear and defend the suit. When, however, the claim against him is upon his own contract, or for his own misfeasance, though he may have a remedy against another and the damages recoverable maybe the same as the amount of the judgment recovered against himself, counsel fees paid in defense of the suit against himself are not recoverable. The decision in Reggio v. Braggiotti (7 Cush. 166), is adverse to the allowance of counsel fees, as falling within the latter class. In that case the plaintiff sold to Henshaw, Ward & Co. an article with a warranty that it was known in commerce as opium ; and Henshaw, Ward & Co. recovered damages against the plaintiff upon his war- ranty. They, having made the warranty, were responsible for dam- ages resulting from the breach of their own contract. The defendant in that case had made a similar warranty to the plaintiffs, and al- though they were liable to him upon that warranty, it was held that they were not liable for counsel fees paid in defending their own war- ranty. Although the reasons for that decision, which are very briefly given, are not the same which we now assign in support of it, the de- cision itself is sustained by the authorities. In Baxendale v. London, Chatham & Dover Railway (L. R. 10 Ex. 35), it appeared that one Harding had contracted with the plaintiff to convey certain valuable pictures from London to Paris. The plaintiff, by another contract, agreed with the defendant for the carriage by the defendant of the same pictures to the same destina- tion. The pictures were damaged in the transportation. Harding brought his action against the plaintiff for damage to the pictures upon the contract between them and recovered. The plaintiff then brought his action against the defendant for breach of its contract with him ; and the defendant denied its liability, but being held liable, the question arose whether counsel fees which the plaintiff had ex- pended in defense of Harding's claim upon him should be added as damages to the amount recovered by Harding; and it was held that they could not be. In Fisher v. Val de Travers Asphalte Co. (1 C. P. D. 511), the same result was reached. In that case the plaintiff made a contract with a tramway company to construct a tramway in a workmanlike manner with Val de Travers asphalte and concrete, and to keep the same in good order for twelve months. The plaintiff also contracted with the defendant to construct for him the same tramway and with like warranty. The plaintiff, however, did not make the contract with the defendant to construct the tramway for himself, but he had agreed to construct it for the Metropolitan Tramway Company, which was 48 754 COSTS AND COUNSEL FEES. the owner of the tramway. One Hicks sustained an injury by reason of the defective condition of the way, and commenced proceedings against the Metropolitan Tramway Company for damages, and the Metropolitan Tramway Company notified the plaintiff, and the plaint- iff notified the defendant. The defendant declined to interfere. The plaintiff, however, took upon himself the defense of the suit against the tramway company, and adjusted it ; and the settlement was found to be a reasonable and proper one. In his action against the defend- ant, he contended that his counsel fees incurred in the previous pro- ceedings should be added to the amount paid to Hicks. Brktt and Lindley, JJ., in their several opinions, felt themselves bound by the decision in Baxendale v. London, Chatham & Dover Railway, above cited, but thought that, if they were not precluded by that decision, they should have great difficulty in refusing to allow counsel fees in addition to the amount paid as damages ; but Lord Coleridge, C. J., while holding that that decision was conclusive, was not prepared to say that it was not right in principle. And he uses this very sug- gestive language : " The tramway company contract with Fisher ; Fisher contracts with the defendants, and the claim of Hicks arises from negligence of the latter. Are the defendants to be liable to three sets of costs, because the actions may have been reasonably de- fended ? If they are, the consequences may be serious. If not, at which link of the chain are the costs to drop out ? " Following this suggestion, if, in the case of Reggio v. Braggiotti, there had been ten successive sales instead of two, and each with the same implied warranty, and successive suits had been brought by the ten successive purchasers, each against his warrantor, would the first seller be liable for such accumulation of counsel fees upon his con- tract of .warranty ? If not, in the pertinent language just quoted, " at which link of the chain are the costs to drop out ? " In each of these cases, it will be observed that the counsel fees were paid in defending a suit upon the party's own contract. In the present case the plaintiff was not compelled to incur the counsel fees by reason of any misfeasance, or of any contract of its own, but was made immediately liable by reason of the wrong-doing of the defendant. There seems, therefore, to be no ground, in prin- ciple, by which it should be precluded from recovering as a part of its damages, the expenses reasonably and properly incurred in conse- quence of the wrong-doing of the defendant. Within this rule a mas- ter, who is immediately responsible for the wrongful acts of a servant, though there is no misfeasance on his part, might recover against such servant not only the amount of the judgment recovered against INHABITANTS OF WESTFIELD v. MAYO. 755 him, but his reasonable expenses including counsel fees, if notified to defend the suit. It may be said in that case, as in this, that there may be a technical misfeasance, or rather nonfeasance, in not guard- ing more carefully the conduct of the servant, or in watching for ob- structions in the street ; but no negligence is necessary to be proved in either case as matter of fact ; the party is directly liable because of the wrong of another, whatever diligence he may have himself exer- cised. It does not, however, apply to cases where one is defending his own wrong or his own contract, although another may be respon- sible to him. In Lowell v. Boston & Lowell Railroad (23 Pick. 24), the question was raised whether the defendant was liable over to the plaintiff for damages which had been recovered against the plaintiff by reason of a defective highway, which defect was caused by the defendant. That is the leading case in this Commonwealth, in which it is settled that the municipal corporation which is bound by law to keep its roads safe and convenient is not in pari delicto with the party by whose di- rect act the defect exists. That decision is based upon the principle that the keeping of roads safe and convenient is a corporate obliga- tion imposed by law ; and although it does not in words declare that it is immaterial whether there was negligence in fact, the existence of the defect during the statute time is recognized as, of itself, conclu- clnsively establishing the legal liability of the municipality. In that case, the question was directly raised whether the costs of suit, in- cluding the reasonable counsel fees, were recoverable. In the discus- sion by Mr. Justice Wilde, who delivered the opinion, no distinction was made between taxable costs and reasonable counsel fees. It was decided that neither taxable costs nor counsel fees could be recovered. We think, however, that the whole course of reasoning is in conform- ity with the views which we adopt. At the time the cause of action accrued (1832), and when the judgment was entered (1839), if dam- ages were recovered for injury sustained because of a defect in a v iv. which had existed for the space of twenty-four hours, and after the town had had reasonable notice of the defect, it was the duty of the court to enter judgment against the defendant for double the amount of the sum returned as damages by the jury (St. 1786, c. 81, § 7 : Kev. Sts. c. 25, § 22). The court says in the opinion : "The ground of defense taken by the town in the former action is well remembered, although it does not appear in the present report." That defense is thus stated : " The ground of defense in that action on the part of the town was, that they had no sufficient notice of the defect in the road, and that the remedy for the injured party was against the present de- fendants. The suit therefore was not defended at the request of the 75G COSTS AND COUNSEL FEES. defendants or for their benefit ; at least, no such request has been proved." And the court adds : " If the claim of the injured parties had been made on the defendants, or if they had had notice that the town defended the suit against them in behalf of the defendants, they might have compromised the claim." The exact point of the decision in this respect was that the town was defending, to a great extent, against its own obligation, for which the defendants were not respon- sible either to them or to the injured party. It was the special par- ticular legal obligation of the defendants themselves, which they de- fended against, and not simply the act of the defendants. The lan- guage of the court immediately preceding the question of liability for costs is : " They are not, however, entitled to a full indemnity, but only to the extent of single damages. To this extent only were the defendants liable to the parties injured, and so far as the plaintiffs have been held beyond that extent, they have suffered from their own neglect; and whether it was actual or constructive is immaterial. The damages were doubled by reason of the neglect of the town ; and al- though there was, in fact, no actual negligence, yet constructive neg- ligence was sufficient to maintain the action against them ; and they must be responsible for the increased amount of damages, and cannot throw the burden on the defendants." Throughout the whole reasoning of that case, we think the prin- ciple which we adopt, though not stated in terms, is clearly recognized. It is simply this : If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit and may call upon him to defend it ; if he fails to defend, then, if liable over, he is liable not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defense. And this rule, while consistent with legal principles, is sanctioned by the highest equitable considerations. If the party ultimately liable for his exclusive wrong-doing has notice that an in- termediate party is sued for the wrong done by him, it is right, le- gally and equitably, that he take upon himself at once the defense of his own act, thereby settling the whole matter in a single suit ; if he requires the intermediate party to defend, there is no rule of law or of morals which should relieve him from the consequences of his addi- tional neglect of duty. Upon the whole, therefore, we are entirely satisfied that the exceptions must be overruled and judgment entered for the plaintiff for the larger sum, which includes what, it is agreed, are reasonable counsel fees. Exceptions overruled. SHERMAN v. RAWSON. 757 BREACH OF PROMISE. Seduction ; Breach of Promise ; Aggravation. SUPREME JUDICAL COURT, MASSACHUSETTS. [1869.] Sherman v. Eawson (102 Mass. 395). Jn an action by a woman for breach of a promise of marriage, the jury, in estimating damages, may take into account the fact of her seduction by the defendant, as tend- ing to increase the mortification and distress suffered by her. Contract for breach of a promise of marriage. The defendant denied the promise. At the trial in the Superior Court, before Devens, J., it appeared that there had been sexual intercourse be- tween the plaintiff and defendant, and the plaintiff had been deliv- ered of a child. The plaintiff contended that this intercourse was procured by her seduction by the defendant, but the defendant con- tended that it was without solicitation on his part. Upon the question of damages, the defendant asked the judge to give the jury several instructions, of which the first and fifth were as follows : " 1. If the jury believe that the defendant seduced the plaintiff under a promise of marriage, still that fact cannot in any event ag- gravate the damages. She cannot recover damages for any mortifi- cation and pain or distress of mind, except such as resulted solely from the defendant's refusing to keep his promise ; and the fact that she had been seduced by him is not an element of damages, directly or indirect!}', and in estimating what amount the plaintiff should re- cover, the jury are to dismiss that consideration from their minds. If, therefore, the jury should believe that the plaintiff was so se- duced, and that her mortification and distress of mind were increased by reason of that fact, still they must exclude it from their compu- tation of damages." "5th. If the defendant promised to marry the plaintiff and re- fused to fulfil his promise, whatever mortification and pain or dis- tress of mind the plaintiff has suffered, resulting from her own criminal conduct, cannot properly be taken into the account in com- puting damages." The judge instructed the jury substantially as requested, except 758 BREACH OF PROMISE. as to the matters embraced in these two prayers for instructions ; and as to these he instructed them that in estimating damages " they might further consider the mortification and distress of mind which she had sustained in other respects than by the injury to her affec- tions by the breach of his promise to marry her ; that in this case the plaintiff claimed to have proved that, } T ielding to the solicitations of the defendant, she had been seduced by him under his promise of marriage, and induced to have sexual intercourse with him, the re- sult of which had been the birth of a child, still living ; that, if these facts stated had been proved, they might consider them in awarding damages for the mortification and distress suffered by the plaint- iff ; and that they would have the legitimate tendency to increase them." The verdict was for the plaintiff ; and the defendant alleged ex- ceptions. Colt, J. — The defendant's prayers for instructions were all given substantially as asked for, except the first and fifth. In these the court was further asked to rule, in substance, that the alleged seduc- tion could not in any event aggravate the damages ; that it was not an element directly or indirectly to be considered by the jury in es- timating what amount the plaintiff should recover, although her mortification and distress of mind had been thereby increased ; and that whatever mortification she had suffered from her own criminal conduct could not be taken into account. These rulings were prop- erly refused. It may be true that damages for the seduction, as a distinct ground of action, cannot be added to the damages which the plaintiff is entitled to recover for a breach of the alleged prom- ise to marry. It would be an indirect mode by which the plaint- iff could recover damages for an act which cannot be the founda- tion of an action in favor of the party seduced, because the policy of the law forbids satisfaction, to a partner in the crime, for a sup- posed injury to which she was consenting. But it does not follow that the fact of the seduction is not to be taken into consideration at all by the jury. The action is nominally for a breach of contract, but the measure of damages is fixed by rules not precisely like those which apply to ordinary contracts where injury to the person is not involved. They are awarded upon principles more commonly applicable in actions of tort. The plaint- iff is entitled to compensation, but that term implies indemnity for all that she has suffered by the defendant's bad faith. It includes injury to her affections and wounded pride. It involves necessarily SHERMAN v. RAWSON. 759 a consideration of all tlie circumstances of the plaintiff's actual situa- tion at the time of the breach of the promise. If, by reason of an imprudent or criminal act, in which both participated, she is brought to such a state that the suffering occasioned to her feelings and af- fections must necessarily be increased by his abandonment, then that would be but an inadequate and poor compensation which did not take it into account. Damages, it is true, must be awarded solely for the suffering which results from the defendant's refusal to per- form his promise. But under this rule even they cannot be justly estimated without regarding the increased exposure to mortification and distress, to which she has been left by a seduction under promise of marriage afterwards broken. We understand this to have long been the law of this common- wealth. The remark of Parsons, Ch. J., in Paul v. Frazier (3 Mass. 71, 72), in reference to the damages to be awarded in these cases, seems to go further. The defendant cannot be heard to plead, in reduction of damages, that the injury was more aggravated than it would have been if his own improper advances had been resisted (Littlehale v. Dix, 11 Cush. 364). The current of American author- ity, if we except the decisions of Pennsylvania and Kentucky, is all consistent with the law here stated. The last decision in Pennsyl- vania, while it follows Weaver v. Bachert (2 Penn. St. 80), in the doctrine that seduction cannot be given in evidence, still states the rule that all the circumstances attending the breach, before, at the time, and after, may be given in evidence in aggravation of dam- ages (Baldy v. Stratton, 11 Penn. St. 316 ; Wells v. Padgett, 8 Barb. 323; Tubbs v. Yan Kleek, 12 111. 446; Kniffen v. McConnell. 30 K Y. 2S5). The instructions of the learned judge upon these points were accurately given in view of the distinctions stated. The jury were told that the plaintiff was entitled to such damages as she was proved to have incurred by the breach of the defendant's promise ; that they might consider the mortification and distress of mind which she had sustained in other respects than by the injury to her affections ; that, if she had been seduced by him, they might consider it, in awarding damages for the mortification and distress Buffered ; and that it would have a legitimate tendency to increase them. * * * * # # •::• * * Exceptions overruled. 760 BREACH OF PROMISE. Breach of Promise ; Pecuniary Circumstances of Defendant ; Mitigation ; Aggravation. COURT OF APPEALS, NEW YORK. [1864.] Kniffen v. McConnell (30 K Y. 285). In an action for breach of promise of marriage, evidence as to the defendant's pecuniary circumstances should be confined to general reputation. To that extent it is admis- sible. Where the answer, in such an action, contains only a denial of the promise, evidence showing acts of improper and lewd conduct on the part of the plaintiff, for the pur- pose of proving criminal intercourse with other men, after the making of the promise, is not admissible, as a bar to the action, for the reason that that defense is not set up in the answer. Such evidence may be received, however, in mitigation of damages, it seems, It is not erroneous for the judge to charge the jury that if they find the defendant seduced the plaintiff under a promise of marriage, it aggravates the damages. It is not erroneous to charge that if the defendant has come into court and attempted to prove the plaintiff guilty of misconduct with other men, of which he knew she was innocent, or when the misconduct was committed with himself, it aggravates the in- jury and strengthens the claim to damages, although such misconduct is not set up in the answer as a defense. This was an action to recover damages for breach of a promise of marriage. The complaint contained a promise of marriage, made by the defendant to the plaintiff, to many her when he should be there- after requested ; averring a request to many and the defendant's re- fusal. It also contained a second allegation on a promise to many the plaintiff: within a reasonable time, a request by the plaintiff and a refusal to marry her, although a reasonable time had elapsed. The answer was a general denial of everything in the complaint. Upon the trial, it appeared the defendant commenced paying at- tentions to the plaintiff in 1852, and continued his attentions till Sept., 1855. During that time he went with the plaintiff to parties, balls, and elsewhere ; would spend his evenings with her, ride out on Sundays, and on his return stay till midnight. On one occasion, when the plaintiff was sick, the defendant visited her two or three times a week, and would fan her, staying from half an hour to two or three hours. On one occasion, when visiting her, he was told by a relative of the plaintiff they were old enough to get married, or to break up keeping company. To which he replied, he was not fool- ino- about the matter. In April, 1855, on a visit he made to the KNIFFEN v. McCONNELL. 761 plaintiff, the defendant was charged by her aunt with causing her condition — she being then pregnant — and asked what he was going to do about the matter. He denied being the father of the child. The plaintiff said no other man had ever had connection with her. He was asked to marry her. He replied, he was not in a condition to marry then. He afterwards said she had proved herself to be treacherous, and he could not marry her. The plaintiff was about twenty-six years of age and the defendant forty. It was proved she had invited other young men in her room, and had gone to parties with them. Other evidence was given as to their riding together ; and a sister of the plaintiff proved that the defendant told her they were engaged. Upon the trial, the judge permitted the plaintiff to prove what the defendant was worth. This was objected to by the defendant, and the objection overruled upon the ground that the evidence was admissible to show the extent of the damage the plaintiff had sus- tained by the defendant's refusal to marry her. To this the defend- ant excepted. When the plaintiff rested, the defendant's counsel moved for a dismissal of the complaint, on the ground that there was no evidence of a sufficient request to marry on the part of the plaintiff. The mo- tion was denied, and the defendant excepted. The defendant offered to prove that the plaintiff was on one occa- sion in a private bedroom with some young men, and they shut them- selves in and remained for some time ; and also acts of a lascivious character, showing that she had prostituted her person to others, after the alleged promise of marriage. This was excluded, on the ground that no such defense was set up in the answer ; to which the defend- ant excepted. The same evidence was afterwards offered and admit- ted in mitigation of damages. It was proved that, in September, 1855, the plaintiff spent the night at a tavern with a young man other than the defendant, and that they lodged together ; and a simi- lar occurrence in July or August, 1854. Some evidence was given to impeach the testimony of these witnesses. The judge, among other things, charged the jury that if they found the defendant had seduced the plaintiff, under a promise of marriage, it aggravated the injury, and they might regard such seduc- tion as an aggravation of damages. That if the defendant had at- tempted to prove her guilty of misconduct with other men, of which he knew she was not guilty, or when the misconduct was committed by himself, it aggravated the damages. To these various points of the charge, and to the refusal to charge '762 BREACH OF PROMISE. the defendant duly excepted. The jury found a verdict in favor of the plaintiff for the sum of $2,350, and the plaintiff remitted to the defendant the sum of $350, and prayed judgment for the residue of the verdict and damages, being the sum of $2,000 demanded in the complaint ; and for the latter sum, with costs, judgment was entered. The general term affirmed an order of the special term denying a motion for a new trial, and judgment was entered on the verdict, for the plaintiff. Ingeaham, J. — There was sufficient evidence of a request on the part of the plaintiff to marry, to warrant the denial of the motion to dismiss the complaint. The uncle and aunt, in her presence, and without objection on her part, asked the defendant to marry her on account of her condition, which he refused ; and when the plaintiff said to him, " McConnell, I don't want your money ; I want your word and honor that you promised me ; " he replied, " There is no use in talking, I can't marry you now," there was evidence enough on the subject of a request to submit that question to the jury. The defendant objected to evidence as to his pecuniary circum- stances. The ground upon which this was admitted was to show the full extent of the loss or damage the plaintiff had sustained by reason of the defendant's refusing to fulfill his engagement. By this, I suppose, it was intended to show that, from the plaintiff's pecuniary condition, she would have been in the enjoyment of comfortable cir- cumstances, and placed in the use of means which, by his refusal, she lias been deprived of. It is now settled that, in action for breach of contract, evidence of the condition of the defendant as to means is not admissible. And in other actions, a similar ruling has been adopted, when the evidence was offered to increase the damages. Thus, in Myers v. Mai com (6 Hill, 292), this evidence was held im- proper in an action for damages, from an explosion of gunpowder improperly stored. And in Daiii v. Wycoff (3 Selden, 191), Gaedi- neb, J., in an action for damages for seduction, says: "If the defend- ant cannot show his poverty in mitigation of damages, there is no reason why the plaintiff should aggravate them by proof of his wealth." In James v. Biddington (6 Car. & P. 589), such evidence was held inadmissible in actions for criminal conversation. But, in the latter case, it is said this rule does not apply in action for breach of promise of marriage, where the amount of the defendant's prop- erty is material as going to show what should have been the station of the plaintiff in society if the promise had not been broken (Sedg. on Dam. p. 541:). His means might have relieved her from labor, or placed her in a condition of comfort and independence which she KNIFFEN v. McCONNELL. 763 would not have otherwise enjoyed. The objection in this case was not to the mode of proof, but to the admissibility of that kind of evidence. It may be objectionable to particularize the defendant's property, and such evidence should be confined to general reputation as to the circumstances of the defendant. To that extent I think it admissible. The defendant offered evidence showing acts of improper and lewd conduct on the part of the nlaintiff, for the purpose of proving criminal intercourse with other men. This was excluded by the court, for the reason that the same was not set up in the answer. There was no error in this ruling. The alleged improprieties had taken place after the promise of marriage had been made. They did not show the contract to be void from the commencement, but they showed acts which relieved the defendant from an obligation of performance, and which constituted a defense to the original cause of action. The Code, section 149, requires an answer to contain either: 1. Denials of the plaintiff's allegations ; or, 2. A statement of any new matter constituting a defense or counter-claim. The wording of this section is imperative. The answer must contain such statements. In this case the answer only contained a denial of the promise. It gave no information of any new defense, or any new matter occurring after the contract, that formed a defense. No issue was formed as to such a defense. In McKyring v. Bull (16 K Y. 297), the effect of this section was held to be such as to require all matter, if it constituted a defense, to be pleaded. (See also "Wright v. Delafield, 25 N. Y. It. 270). While, however, this was not admissible as a bar to the action, the defendant offered, and the court received it in mitigation of dam- ages, and the defendant received the full benefit of it, as much as he Avould have done if received on the first offer. In addition to the admission, the judge gave the defendant the full benefit of the evi- dence as a defense, when he told the jury, if the defendant was not the father of the plaintiff's child, or had any reasonable ground so to believe, at the time of his refusal to marry her, they should find fur the defendant. The judge also charged that, if they found the defendant had se- duced the plaintiff, under a promise of marriage, it aggravated the damages. I do not understand the objection to this ruling to be to its correctness as a rule of law, but that it was not warranted by the evidence; and that the judge submitted to the jury a proposition not sustained by the evidence, and not in the case. The propriety of the rule was fully examined by Mason, J., in Wells v. Padgett (8 Barb. 323), and cases cited by him from Massachusetts. Mississippi, Tennes- '764 BREACH OF PROMISE. see, Kentucky, and Indiana, approving that rule. The only case cited to the contrary is from Pennsylvania, but the propriety of that de- cision has been since questioned. The weight of authority and the general principles upon which such evidence has been admitted, are strongly in favor of sustaining the rule. Was there then evidence enough in the case to warrant the find- ing of the jury on that point. There was proved : 1st. The promise as admitted by the defendant in his acts and conversation. 2d. The pregnancy of the plaintiff, and subsequent birth of the child. 3d- The application to him to marry the plaintiff, on account of her con- dition, and his refusal. 4th. The appeal of the plaintiff to him that she did not want his money, but wanted his word and honor that he had promised her. These and other portions of evidence bearing upon this question were amply sufficient to submit to the jury the question whether he had seduced the girl, and, if so, whether he had promised marriage to carry out his intentions, or had taken advantage of the confidence arising from that promise to effect that purpose. There is no room for the objection that there was not enough evidence on which that question could be submitted to the jury. The judge also charged that " if the defendant had come into court and attempted to prove her guilty of misconduct with other men, of which he knew she was not guilty, or when the misconduct was committed with himself, it aggravates the injury, and aggravates the claim to damages." In Southard v. Rexford (6 Cowen, 254), it was held that an attempt to justify the breach of promise of marriage by stating upon the record, as the cause of desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, is a circumstance which ought to aggra- vate damages. The reason given by the learned judge in that case is that a verdict for nominal damages, under such circumstances, would be fatal to the plaintiff. The rule is undoubtedly founded upon the fact that the justification is placed upon the record, and that it will ever remain there as a reiteration of the charge against the plaintiff, and with such an answer on the record, a trifling verdict would not show that such charge was unfounded. The same rule applies to ac- tions for libel and slander ; but I have not seen any case where the rule has been extended beyond a justification upon the record. The defendant certainly did prove improprieties on the part of the plaint- iff, after the promise was made, not perhaps as to the prostitution, for those witnesses were discredited, to some extent, and may have been disbelieved by the jury. The attempt to submit such conduct to the jury, when the same is not made a part of the record, does not, KNIFFEN v. McCOMNELL. 765 iii my judgment, warrant the charge of the judge in the present case. Such a rule would deprive a party of a right to submit anything in mitigation of damages, as connected with the plaintiff's conduct, with- out assuming the liability of having the damages increased if he fails in establishing the truth of them. It is an anomaly in an action for a breach of contract, to hold that setting up matters to excuse such breach, in an answer,' the proof of which fails, is an aggravation of damages. Certainly the rule should be extended no further than the case of Southard v. Rexford has car- ried it ; and where it is not made a part of the record, and set up by way of justification, there is no good reason for the rale as laid down upon the trial. It has been held that to prove the bad character of the plaintiff in such an action, the representations of character made by third persons may be given in evidence without proving their truth (Foulkes v. Solway, 3 Esp. Rep. 236). If the rule, as laid down at the circuit, be correct, then such proof would only be an aggrava- tion of the damages. I think there was error in this part of the charge, and that the rule should have been confined to the justification set up on the record. For the cause above stated as to the charge that the attempt to prove facts imputing want of chastity to the plaintiff, which failed, was an aggravation, I think a new trial should be ordered ; but a majority of the court are of the opinion that the charge was not erro- neous in this respect ; and that attempting to give such matters in evidence, though not set up in the answer as a defense, if not made out, warrants the charge to the jury that it should aggravate the damages. The judgment, therefore, must be affirmed. Mullin, J., concurred with Ingraham, J., upon the last point. All the other judges being for affirmance, judgment affirmed. Note.— See Sauer v. Schulenberg, 33 Md. 288, and Sheahan v. Barry. 27 Mich. 217, to the same effect. 766 BREACH OF PROMISE. Breach of Promise; Aggravation by Failure to Prove Justi- fication Alleged. COURT OF APPEALS, NEW YORK. [1870.] Thorn v. Knapp (42 N. Y. 474). Actions for breach of promise to marry are, as to the measure of damages, classed with actions for torts, and the motives of the defendant ma}^ be inquired into with the view of furnishing ground for punitive damages. So the defendant may prove, in mitigation of damages, any facts tending to show that he was actuated by proper motives, and that his conduct was neither cruel nor malicious. But if, in such an action, defendant allege in justification, the plaintiff's unchastity, and fail at the trial to prove it, the jury may take into consideration such allegation in aggravation of damages. Appeal from a judgment of the general term of the Supreme Court in the second judicial district, affirming a judgment entered on a verdict for the plaintiff, for $4,000. Action for damages for breach of contract to marry. Defense, the plaintiff's unchastity. On the trial, there being no proof to sustain the allegations of defense, the court charged the jury that : " Where a defendant in his answer, as in this case, attempts to justify his breach of promise of marriage by stating therein, and thus placing upon the record, as the cause of his desertion of the plaintiff, that she has had criminal intercourse with various persons, and fails to prove it, the jury have a right to take this circumstance into consideration in aggravation of the damages to which the plaintiff may be entitled." To this charge the defendant excepted. Earl, Ch. J. — The defendant, in his answer, alleged that, at the time of the alleged promise of marriage, " the plaintiff' was a com- mon prostitute, and still is so, and was then, and still is of a bad character, and was, and is an unchaste woman, and had, and has illicit intercourse with various persons." On the trial, the defendant did not attempt to prove any of these allegations ; and the court, in the charge to the jury, among other things, charged as follows : "Where a defendant, in his answer, attempts to justify his breach of promise of marriage by stating therein, and thus placing upon the record, as the cause of his desertion of the plaintiff, that she has had criminal intercourse with various persons, and fails to prove it, the jury have a right to take this circumstance into consideration, in aggravation THORN v. KNAPP. 767 of the damages to which the plaintiff may be entitled." The only question we are called upon to consider, arises upon the exception to this charge. In Southard v. Rexford (6 Cowen, 254), the action was for breach of promise of marriage. The defendant, with the general issue, gave notice that he would prove in his defense, that the plaintiff had, at various times, and with various persons, specifying them, committed fornication after the alleged promise. He attempted, at the trial, to prove this branch of his defense, but failed. On the question of damages, the judge charged : " That in cases of this kind, the dam- ages are always in the discretion of the jury ; and in fixing the amount, they have a right to take into consideration the nature of the defense set up by the defendant ; that in his defense, he had at- tempted to excuse his abandonment of the plaintiff, on the ground that she was unchaste and had committed fornication with different individuals. But it appeared, from the testimony of his own wit- nesses, that her character in that respect had not been tarnished, even by the breath of suspicion ; that with such a defense on the record, a verdict for nominal or trifling damages might be worse for her reputation than a general verdict for defendant ; that, if the de- fendant had won her affections and promised her marriage, and had not only deserted her without cause, but had also spread this defense upon the record, for the purpose of destroying her character, the jury would be justified in giving exemplary damages." The plaint- iff recovered, and the Supreme Court held this charge to be correct. Judge Sutherland, writing the opinion of the court, says : " Where the defendant attempts to justify his breach of promise of marriage, hj stating upon the record, as the cause of his desertion of the plaintiff, that she had repeatedly had criminal intercourse with va- rious persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the damages. A verdict for nominal or trifling damages, under such circumstances, would be fatal to the character of the plaintiff ; and it would be matter of regret, indeed, if a check upon a license of this description did not exist, in the power of the jury to take it into consideration in aggravation of damages." This case was decided in L826, and, so far as I can dis- cover, has never been questioned. In Parsons on Cont., 551, the author says : " If the defendant has undertaken to rest his defense, in whole or in part, on the general bad character, or the criminal conduct of the plaintiff, and fail altogether in the proof, it has been distinctly held that the jury may consider this in aggravation of damages," and he refers to the case of Southard v. Rexford as his authority. 768 BREACH OF PROMISE. The case of Southard v. Rexford is also cited with approval by Judge Ingraham in Kniffin v. McConnell (30 K Y. 285). That was an action to recover damages for breacli of promise of marriage. The defendant, under a general denial, offered, in mitigation of damages, and was allowed to give, some evidence tending to show acts of improper and lewd conduct on the part of the plaintiff, for the purpose of proving criminal intercourse with other men. The presiding judge, among other things, charged the jury that, if the defendant had attempted to prove plaintiff guilty of misconduct with other men, of which he knew she was not guilty, it aggravated the damages. Judge Ingraham, writing the opinion, recognizes and ap- proves the rule laid down in Southard v. Rexford. But, while he holds that it is an aggravation of the damages to place such allega- tions upon the record, he reaches the conclusion that it is not an ag- gravation of the damages to offer proof of such allegations, when they are not spread upon the record in the answer. A majority of the court, however, differed with him, and held that it was an aggra- vation of the damages even to offer and attempt the proof of such allegations in mitigation of damages, without setting them up in the answer. It does not appear that any member of the court departed from the doctrine laid down in Southard v. Rexford. That case must be regarded as an affirmance of that doctrine, as it cannot be perceived how the offer of the proof can be any more an aggravation of the damages than to put the same matter deliberately in the answer, forever to remain among the records of the court. Hence, if we rested entirely upon authority, we should be obliged to hold that the charge was right. But the charge can also be sustained upon principle and analogy. The general rule as to actions upon contracts is, that the plaintiff can only recover a compensation for the damages he has sustained by the breach of the defendant, and exemplary or punitory damages are not allowed. To this rule an action for breach of contract of marriage is an exception, and, so far as I can now call to mind, the only exception. As to the measure of damages, this action has always been classed with actions of torts ; as libel, slander, seduction, criminal conversation, &c. (Wells v. Pad- gett, 8 Barb. 323 ; Johnson v. Jenkins, 24 K T. 252 ; Sedgwick on Damages, 368 ; Burns v. Buck, 1 Lans. 268) ; and not without reason. It is the policy of the law to encourage matrimony, and society has an interest in contracts of marriage both before and after they are consummated. A man who enters into a contract of marriage with improper motives, and then ruthlessly and unjustifiably breaks it off, does a wrong to the woman, and also, in a more remote sense, to so- THORN v. KNAPP. 769 ciety, and he needs to be punished in the interest of society, as well as the man who commits a tort under circumstances showing a bad heart. The rule of damages applicable to ordinary contracts would be wholly inadequate. So much depends in each case upon the cir- cumstances surrounding it, and upon the conduct, standing and char- acter of the parties. In all cases where vindictive damages are allowed, it is upon the theory that the defendant's conduct has been such that he deserves to be punished ; and with the view of measur- ing out punishment to him, as well as compensation to the plaintiff, it is always competent to inquire into his motives and intentions ; to show that the act complained of was done wantonly, insolently, ma- liciously, or with a bad and wicked heart. In such actions it is not only proper to show the main transaction, but any facts bearing upon or relating to it, showing that it was done wantonly, maliciously and wickedly, with the view of enhancing the damages. It is upon this theory, that, in an action of slander, the plaintiff is permitted to prove the repetition of the slanderous words subsequent to the time alleged in the complaint, even down to the trial. This proof is al- lowed, not to sustain the action, and not for the purpose of recover- ing damages for the words thus repeated, but solely for the purpose of proving the malice which prompted the utterance of the words counted on, and thus bearing upon the damages to be allowed on account of them. And so if, instead of repeating the slanderous words orally, they are repeated by being set up as a justification or in mitigation in the answer, and thus placed upon the records of .the court, and the defendant fails to prove them, for precisely the same reason and upon the same theory, the damages may be enhanced. So in an action for breach of promise of marriage, it is always com- petent, for the purpose of enhancing the damages, to prove the mo- tives that actuated the defendant ; that he entered into the contract and broke it with bad motives and a wicked heart ; and it is compe- tent for him to prove, in mitigation of damages, that his motives were not bad, and that his conduct was neither cruel nor malicious. In the case of Johnson v. Jenkins (24 N. Y. 252), it was held com- petent, in mitigation of damages, for the defendant to prove that, when asked by the plaintiff why he had discontinued his visits to her, he declared that his affection and regard for her were undimin- ished, but that he could not marry her, because his parents were so violently opposed to the match. Judge Allen, writing the opinion of the court, says : " Every circumstance attending the breaking off of the engagement becomes a part of the res gestae. The reasons which were operative and influential with the defendant are mate- 49 770 BREACH OF PROMISE. rial, so far as they can be ascertained ; and whether they are such as, tending to show a willingness to trifle with the contract and with the rights of the plaintiff, should enhance the damages, or, on the contrary, showing a motive consistent with any just appreciation of, and regard for his duties, should confine the damages within the limit of a just compensation, will always be for the jury to deter- mine." " Had the defendant, by his declarations, shown a wicked mind in the transaction, it is evident that they very properly would have been submitted to the jury further to enhance the damages." Suppose he had told the plaintiff, at any time before the trial of the action, that he had discontinued his visits and broken the contract because she was a prostitute ; could she not, upon the same princi- ples, have proved this in enhancement of damages ? No damages could be allowed for defaming her by the utterance of these words ; but they could be proved as showing the mind with which the con- tract was broken, and as thus bearing upon the damages to be allowed for that. So if this language, instead of being uttered orally, is placed upon the record in the answer, for the same reason and upon precisely the same principle, if the defendant fails to prove it and it thus turns out to be untrue, it may be taken into consideration by the jury in aggravation of the damages. I therefore conclude, upon principle as well as upon authority, that the charge excepted to was free from error, and the judgment should be affirmed. E. Darwin Smith, J. — The verdict of the jury establishes the making and breach of the contract of marriage ; and, there being no exception to the charge upon the merits, we must assume that the same was, in every respect, proper and satisfactory to the parties, except upon the single point relating to the damages, upon which there was taken a specific exception. The defendant had, in his answer, spread upon the record as a defense to the action, that the plaintiff, at the time of the making of the said alleged promise of marriage was, and still was, a common prostitute, and then, and still was of bad character, an unchaste woman, and had, and has illicit intercourse with various persons. This is a very serious and, if un- true and unfounded, a most wanton and wicked charge. And yet, if the defendant had promised to marry the plaintiff, and was, at the time, in entire ignorance of her true character, it was a defense to the action, if proved, and would justify his refusal to perform his contract with her ; otherwise, it was simply a matter in mitiga- tion of damages. The charge appears to have been entirely unproved at the trial, and it does not distinctly appear whether proof of it was, or was not THORN v. KNAPP. 771 attempted ; but the defendant would clearly have been entitled to prove it, if he had been able to do so. In the absence of such proof, therefore, of this most injurious and calumnious charge, made upon the record against this plaintiff, the question for the decision of this court is, whether the jury were entitled to consider the fact that such charge had been made, and thus spread upon the record, and whether the judge might properly suggest to them that they had a right to take this circumstance into consideration, in aggravation of the damages to which the plaintiff was entitled. The case of South- ard v. Rexford (6 Cow. 254), is an express authority in favor of the correctness of the charge made by the learned circuit judge. This case was tried by the late Chancellor Walworth, then one of the circuit judges, who instructed the jury in a like case, that, in cases of this kind, the damages are always in the discretion of the jury, and in fixing the amount, they have a right to take into considera- tion the nature of the defense set up by the defendant ; that, in his defense, he had sought to excuse his abandonment of the plaintiff, on the ground that she was unchaste ; that, with such a defense on the record, a verdict for nominal damages might be worse than a general verdict for the defendant ; and that, where such a defense was spread upon the record for the purpose of destroying her char- acter, the jury would be justified in giving exemplary damages." The court in bank, upon a motion for a new trial, affirmed this ruling at the circuit, Judge Sutherland saying: "That where the defend- ant attempts to justify his breach of his promise of marriage, by stating upon the record, as the cause of his desertion, that she had had criminal intercourse with various persons, and fails entirely in proving it, this is a circumstance which ought to aggravate the dam- ages." This court also, in Kniffin v. McConnell (30 N. Y. 288), has substantially approved of this case of Southard v. Rexford, and af- firmed this same rule, in respect to the question of damages in ac- tions of this kind. In this case of Kniffin v. McConnell, the allega- tion of unchastity on the part of the plaintiff was not set up in the answer, and proof of it was not, for that reason, admitted as a de- fense at the trial ; but the proof tending to establish such fact was admitted in mitigation of damages. The proof having been thus received, the circuit judge, in his charge to the jury, among other things, said to them in respect to such proof, that "if the defendant had come into court and at- tempted to prove her guilty of misconduct with other men, of which he knew she was not guilty, or when the misconduct was committed with himself, it aggravates the injury and aggravates 772 BREACH OF PROMISE. the claim to damages." That case was tried by me at the circuit, and this charge was made upon the principle that the jury, in such cases, were entitled, when they found the contract of marriage made and broken, to take into consideration all the facts and circumstances of the case, and the conduct of both parties toward each other, and particularly the conduct of the defendant, in his whole intercourse with, and treatment of the plaintiff, in connection with the making and breach of the contract, and afterward up to and including the defense and trial of the action ; and that, among other facts, it was a legitimate subject for their consideration, if the fact was so, that he not only had abandoned her and trifled with her affections, but had sought to disgrace her and ruin her character. This court vir- tually adopted the same view of the case. In the opinion of Judge Ingraham, who gave the opinion of the court, he assented to the correctness of the rule on this subject as asserted in Southard v. Rexford, and only doubted the correctness of the charge on the ground that the proofs were not given to sustain any allegation upon the record. He says, referring to that case : " The rule is undoubtedly founded upon the fact, that the justification is placed upon the record, and that it will ever remain there as a reiteration of the charge against the plaintiff ; and with such an answer on the record, a trifling verdict would show that such charge was not un- founded. The same rule applies in actions of libel and slander ; but I have not seen any case where the rule has been extended beyond a justification on the record ; " and further, he says : " Certainly the rule should be extended no further than the case of Southard v. Rexford has carried it, and when it is not made part of the record." Although the proof in that case had been given and received for the benefit and at the instance of the defendant, and in mitigation of damages, and against the plaintiff's objection and exception, yet, be- cause there was no allegation on the record to warrant it, the learned judge thought the defendant's exception to the charge relating to such proof a valid one, for the simple reason that the allegation to warrant it was not upon the record. A majority of the court dif- fered with him on that point ; but the case, upon the view of the learned judge himself, is entirely in point in favor of the instruc- tions given by the judge, at the circuit, in this case. These cases rest upon the principle which, I think, is well established in this State : that the action for the breach of the contract of marriage, though in form of an action of assumpsit, is, in fact, and always has been since it was sustained at common law, in respect to this ques- tion of damages, really in the nature of an action for a tort. Dam- SMITH v. CONDRY. 773 ages in this action have never been limited to the simple rule gov- erning actions upon simple contracts for the payment of money. This court asserted a different rule in the case of Johnson v. Jenkins (24 N. Y. 252). In this case, which was an action like this, for a breach of promise to marry, the judge at the circuit had charged, that the action was of a class of cases for which the law allows what are called aggravated damages, that is damages beyond, and in no way measured by, any proof of actual pecuniary loss or injury." Judge Allen said, in respect to this charge : " By this, I understand that the jury was told, that in this class of actions, as in libel, slan- der, seduction, criminal conversation, etc., they are at liberty to give what are termed punitive damages, as distinguished from compen- satory damages ; " and referred to the case of Hunt v. Burnet (19 K. Y. 1T3), and to Keezeler v. Thompson, therein referred to and af- firmed. The learned judge also said : " That damages in this class of cases may be enhanced by such facts and circumstances as aggra- vated the injury itself, as adding to the indignity and contumely, increasing mental agony, and bringing public disgrace and conse- quent loss of reputation upon the injured party." This rule clearly covers and justifies the charge given in this case. I think the charge entirely correct, and that the judgment below should be af- firmed. All concur for affirmance. Judgment affirmed. COLLISION. Collision; Actual Damages only allowed; No Profits. SUPEEME COURT OF THE UNITED STATES. [1843.] Smith v. Condry (1 How. 28). The actual damage sustained by the party at the time and place of injury, and not prob- able profits at the port of destination, ought to be the measure of value in damages, in cases of collision as well as in cases of insurance. By whose fault the accident happened, is a question of fact for the jury, to be decided by them upon the whole of the evidence. This case came up, by writ of error, from the Circuit Court of the United States, for the District of Columbia, and was argued at Janu- 774 COLLISION. ary term, 1842. The court held it under a curia advisare vult, and pronounced their decision at the present term. The facts in the case were these : The plaintiffs in error, who were also plaintiffs in the court below, were the owners of a vessel called the Francis Depau, which was lying in the port of Liverpool, on the 15th of February, 1838, loaded and ready for sea. The barque Tasso, owned by the defendant, in com- ing out of the docks, ran foul of the Francis Depau, and occasioned considerable damage. A suit was brought in consequence, and upon the trial the verdict of the jury was for the defendant. There were three exceptions. The nature of the first two of these appears in the judgment of the court, as given below. The third exception related to instructions given by the judge to the jury at the trial in relation to inferences to be drawn from the evidence as to the seaworthiness of the " Tasso," and as to the responsibility for the collision. Mr. Chief Justice Taney delivered the opinion of the court. This case arises from a collision in the port of Liverpool between the barque Tasso and the ship Francis Depau, in which the latter sus- tained considerable injury. The vessels were both American ; the Francis Depau being owned by the plaintiffs in error, and the Tasso by the defendant. It appears from the evidence that, at the time the accident hap- pened, the Tasso was in charge of a regular pilot, leaving the Prince's dock on her homeward voyage ; and the Francis Depau was at anchor in the harbor, laden with salt and ready to sail. And in order to prove that the injury arose from the unskillful management of the Tosso, the plaintiffs offered in evidence that it is the usage of vessels coming out of the docks of Liverpool into the river, to have their anchors slung in tackle, ready to be thrust over the bows, and in a sit- uation to be dropped immediately on passing through the lock which connects the dock with the basin, and before passing from the latter into the river ; and that the anchor of the Tasso was not put over the bow, nor was it attempted to be done, until she had passed into the river, and was approaching the Francis Depau. The defendant then offered testimony to show that in passing from the basin, between the piers into the river, the Tasso was held in check by a hawser fastened to one of the piers, but that the hawser broke just as the vessel cleared the pier head; and the pilot perceiv- ing that she was approaching the plaintiffs' ship, thereupon gave orders to get an anchor ready. The anchors were accordingly fixed as soon as possible, in the manner that is customary in going out of SMITH v. CONDRY. 775 the port ; and an attempt was made to get one of them over the side, but the tackle broke, and both anchors fell on deck, and the vessel struck the Francis Depau, and thereby occasioned the injury for which this suit is brought ; that everything was done on board the Tasso, according to the directions of the pilot, and every effort made to prevent the collision ; but that it was blowing fresh, and the tide setting towards the plaintiffs' ship, and the Tasso would not mind her helm. To rebut this testimony, the plaintiff offered in evidence, by the pilot, that the defendant's vessel appeared to be badly furnished, and that, at the time the accident happened, the mate who had charge of her under the pilot (the master being absent), declared that he had not a rope on board tit to hang a cat ; and further offered in evidence that where the fish tackle breaks, and it is important that the anchor should be thrown out, it can be accomplished in a minute or two, by fixing another rope by a strop to the anchor, and heaving it over the bows. At the trial, several exceptions were taken by the plaintiffs to different instructions given by the court to the jury ; and the verdict and judgment in the circuit court having been in favor of the defend- ant, the case has been brought here for revision by a writ of error sued out by the plaintiffs. We proceed to examine the directions excepted to, in the order in which they appear in the record. Upon the evidence above stated, the defendant asked the court to instruct the jury that under the statutes of Great Britain, of the 37 Geo. 3, c. 78 ; 52 Geo. 3, c. 39, and 6th of Geo. 4, c. 125, the defend- ant was not responsible for any damage occasioned by the default, negligence or unskillfulness of the pilot. The court gave this in- struction, and that is the subject of the first exception. The collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British stat- utes then in force ; and if doubts exist as to their true construction, w 7 e must of course adopt that which is sanctioned by their own courts. The 52 Geo. 3, mentioned in this exception, is a general act for the regulation of pilots and pilotage, within the limits specified in the law, and requires the masters of vessels under a certain penalty to take a pilot, and provides that no owner or master shall be answerable for any loss or damage, nor be prevented from recovering on any contract of insurance, by reason of any default or neglect on the part of the pilot. But this statute did not repeal the previous one of 37 Geo. 3, for the regulation of pilots conducting ships into and out of 776 COLLISION. the port of Liverpool ; and the last-mentioned law required the master to pay full pilotage to the first who should offer his services, ■whether he was employed or not. This act did not, however, impose any penalty for refusal, and contained no clause exempting the master and owner from liability for loss or damage arising from the default of the pilot, where one was taken on board. Upon these acts of Parliament, the Court of King's Bench held, in the case of Caruthers v. Sydebotham (4 Maule & Selw. 77), that the master or owner of a vessel trading to and from the port of Liverpool, was not answerable for damages occasioned by the fault of the pilot. But in the case of the Attorney-General v. Case (3 Price, 302), the same question was discussed in the argument before the Court of Exchequer, and it appears to have been the opinion of that court that the master and owner were liable in the same manner as if the pilot had not been on board. The question, it is true, did not necessarily arise in the last-men- tioned case, for the vessel was at anchor in the river Mersey when the disaster happened ; and a vessel at anchor was not bound to have a pilot on board. If in that situation the master thought proper to employ one, the pilot was undoubtedly his agent, and consequently he was responsible for his acts. But in deciding the case, the court expressed their opinions on the two statutes of Geo. 3, before men- tioned, in cases where pilots were required to be on board, and held that the provisions of the 52 Geo. 3, exempting masters and owners from liability, did not extend to cases embraced by the local pilot act for Liverpool, and strongly intimated that there was a distinction between the obligation to take a pilot under a penalty and the obliga- tion to pay full pilotage to the first that offered, whether he was taken or not. Since these decisions were made in the King's Bench and Ex- chequer, the 37th Geo. 3 has been repealed by the 5th of Geo. 4, and the 52 Geo. 3 has been repealed by the general pilot act of the 6th of Geo. 4 ; and these two statutes of Geo. 4 were the laws in force at the time of the collision in question. But although some changes were made in the Liverpool pilot act in the first-mentioned statute, and in the general pilot law by the second, yet in regard to the sub- ject now under consideration, these two statutes are the same in sub- stance with the preceding ones which they respectively repealed ; and the adjudged cases above mentioned apply with the same force to the question before us, as if they had been made since the passage of the acts of Geo. 4. In determining, however, the true construction of these acts of SMITH v. COKDRY. 777 Parliament, we are not left to decide between the conflicting opinions of the King's Bench and Court of Exchequer. The same question has since, on more than one occasion, arisen in the British Court of Admiralty, and the decision in the King's Bench has been constantly sustained ; and we presume it is now regarded as the settled construc- tion of these pilot acts (Abb. on Ship. [Shee's ed.] 184, n, z ; The Maria, 1 Rob. New Adm. Rep. 95 ; The Protector, 1 Rob. New Adm. Rep. 45 ; The Diana, 1 Rob. New Adm. Rep.) We think, there- fore, that the Circuit Court was right in the first instruction given to the jury. The second also is free from objection. The question there was as to the rule of damages in case the plaintiffs should show them- selves entitled to a verdict. They offered to prove that if the ship had not been prevented from sailing by the injury complained of, she would in due course have arrived in Georgetown (as was intended when the lading was taken in) in time for the sale of her cargo at the fishing season in the Potomac river, when there is a great demand for salt ; that the injury delayed her, and prevented her arrival until the season was over, and thereby made a difference of ten or eleven cents per bushel in the value of the salt, at her home port, and occa- sioned a loss upon the cargo of $2,101 20. The defendant objected to this testimony, and the court refused to admit it. It has been repeatedly decided in cases of insurance, that the in- sured cannot recover for the loss of probable profits at the port of destination, and that the value of the goods at the place of shipment is the measure of compensation. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party at the' time and j)lace of the in- jury that is the measure of damages. The judgment of the Circuit Court, however, was reversed on the ground of an erroneous instruction to the jury, excepted to in the plaintiffs' third of exception, and not material here. Note. — For a discussion us to the nature and measure of the damages in a case of collision, see The Harriet Newhall, 3 Ware, 105 (1856). It was held at a comparatively early day by the Supreme Court of the United States, that the probable or possible profits of an unfinished voyage never afford a safe rule of damages in case of a marine trespass, but that the prime cost or value of the property lost, and in case of injury, the diminution in value by reason of the injury, with interest, afford the true measure. The Amiable Nancy, 3 Wheat. 54G; The" Anna Maria, 2 Wheat. 327. 778 collision. Collision ; Sunken Yessel. SUPREME COURT OF THE UNITED STATES. [1851.] Williamson v. Barrett (13 How. 101). The proper measure of damages is a sum sufficient to raise the sunken boat, repair her and compensate the owners for the loss of her use during the time when she was being refitted. This case was brought up by writ of error, from the Circuit Court of the United States, for the District of Ohio. It was an action of trespass on the case brought by the owners of the steam-boat Major Barbour (the defendants in error), against the owners of the Paul Jones, another steam-boat, for injuries re- sulting from a collision between the boats. The evidence and proceedings on the trial sufficiently appear from the opinion of the court. Mr. Justice Nelson delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the district of Ohio. The plaintiifs in the court below, the defendants here, who were the owners of the steam-boat Major Barbour, brought an action against the defendants, the owners of the steam-boat Paul Jones, to recover damages occasioned by a collision upon the Ohio river on the 3d February, 1848. The Major Barbour was descending the river at the time, and the Paul Jones ascending, the latter heavily laden and of much larger size than the former. Evidence was given by the plaintiifs tending to show, that their boat was about in the middle of the river at the time the collision took place ; that the defendants' boat was ascending the Indiana shore, and that a short time before the collision she suddenly changed her course and left the shore, running across the river into the Major Barbour, causing the damage in question. While on the part of the defendants, it was claimed, and evidence given to show, that the plaintiffs' boat was descending near the Indiana shore, and that the collision occurred near that shore, and that the plaintiffs' boat a short time before it happened suddenly turned out from the shore and ran across the bow of the Paul Jones, causing the damage. WILLIAMSON v. BARRETT. 779 Evidence was also given tending to show that the engine of the plaintiffs' boat was stopped, and the boat floated as soon as the dan- ger was discovered, and for some time previous to the collision, but, it was admitted she did not back her engines, and it was claimed that she was not bound to do so, according to the rules and usages of the navigation. While, on the part of the defendants, it was claimed, and evidence given to show, that the Paul Jones, some time before the collision, stopped her engines, and reversed the same to back the boat, and had made from one to three revolutions back, and was actually backing at the time of the collision ; and also that the engines of the plaintiffs' boat were not stopped sufficiently early, and owing to that, and not attempting to back her engines, she con- tributed to the collision. Evidence was further given tending to show, that boats navigat- ing the Ohio river were bound to observe the following rules in passing each other : The boat descending, in case of apprehended difficulties, or collision, was bound to stop her engines, and float, at a suitable distance, so as to stop her headway ; and the boat ascend- ing, to make the proper manoeuvre to pass freely. AVhen the evidence closed, the counsel for the defendants re- quested the court to instruct the jury, that the plaintiffs ought not to recover, if the collision could have been avoided by reversing the engines and backing their boat, in addition to stopping and floating ; and, that the master was bound to use all the means in his power to prevent a collision. And thereupon, the court among other things charged, that if the Major Barbour was in her projDer track for a descending boat, near the middle of the river, and the Paul Jones in ascending the river was in her proper track near the Indiana shore, and the latter turned out of her proper course across the river or quartering, as stated by some of the witnesses, so as to threaten a collision ; and that as soon as discovered, the Major Barbour stopped her engine, rang her bell, and floated down the stream, as the custom of the river required, leaving the ascending boat the choice of sides to pass her, and this being the law of the river, she was not on the near approach of the boat, required to back her engine, as that might bring her in contact with the other boat. She had a right to presume the Paul Jones did not intend to run directly into her. And that, if any injury was done to the Major Barbour, the plaintiffs' boat, under such cir- cumstances, by the Paul Jones running into her, the plaintiffs were entitled to recover. The court further charged, that, if the jury should find for the 780 COLLISION. plaintiffs they ought to give such damages as would remunerate them for the loss necessarily incurred in raising the boat, and in repairing her ; and also for the use of her during the time necessary to make the repairs, and fit her for business. The learned judge, after holding that no error had been com- mitted by the Circuit Court in the first branch of its instructions to the jury, proceeded as follows : As to the question of damages. The jury were instructed, if they found for the plaintiffs, to give damages that would remunerate them for the loss necessarily incurred in raising the boat, and repairing her ; and also, for the use of the boat during the time necessary to make the repairs, and lit her for business. By the use of the boat we understand what she would produce to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged. The general rule in regulating damages in cases of collision, is to allow the injured party and indemnity to the extent of the loss sus- tained. This general rule is obvious enough ; but there is a good deal of difficulty in stating the grounds upon which to arrive, in all cases, at the proper measure of that indemnity. The expenses of raising the boat, and of repairs may, of course, be readily ascertained, and in respect to the repairs, no deduction is to be made, as in insurance cases, for the new materials in place of the old. The difficulty lies in estimating the damage sustained by the loss of the service of the vessel while she is undergoing the repairs. That an allowance short of some compensation for this loss would fail to be an indemnity for the injury is apparent. This question was directly before the Court of Admiralty in England, in the case of the Gazelle, decided by Dr. Lushington, in 1814. 2 W. Robinson, 279. That was a case of collision, and in deciding it, the court observed, " that the party who had suffered the injury is clearly entitled to an adequate compensation for any loss he may sustain for the detention of the vessel during the period which is necessary for the completion of the repairs, and furnishing the new articles." In fixing the amount of the damages to be paid for the de- tention, the court allowed the gross freight, deducting so much as would, in ordinary cases, be disbursed on account of the ship's ex- penses in earning it. A case is referred to, decided in the common-law courts, in WILLIAMSON v. BARRETT. 781 which the gross freight was allowed without any deduction for expenses, which was disapproved as inequitable and exceeding an adequate compensation, and the qualification we have stated laid down. This rule may afford a very fair indemnity in cases where the repairs are completed within the period usually occupied in the voy- age in which the freight is to be earned. But, if a longer period is required, it obviously falls short of an adequate allowance. Neither will it apply where the vessel is not engaged in earning freight at the time. The principle, however, governing the court in adopting the freight which the vessel was in the act of earning, as a just measure of compensation in the case, is one of general application. It looks to the capacity of the vessel to earn freight, for the benefit of the owner, and consequent loss sustained while deprived of her service. In other words, to the amount she would earn him on hire. It is true, in that case, the ship was engaged in earning freight at the time of the collision ; and the loss, therefore, more fixed, and certain than in the case where she is not at the time under a charter- party, and where her earnings must in some measure depend upon the contingency of obtaining for her employment. If, how- ever, we look to the demand in the market for vessels of the description that has been disabled, and to the price there, which the owner could obtain or might have obtained for her hire as the measure of compensation, all this uncertainty disappears. If there is no demand for the employment, and, of course, no. hire to be obtained, no compensation for the detention during the repairs will be allowed, as no loss would be sustained. But, if it can be shown, that the vessel might have been chartered during the period of the repairs, it is impossible to deny that the owner has not lost in consequence of the damage, the amount which she might have thus earned. The market price, therefore, of the hire of the vessel, applied as a test of the value of the service will be, if not as certain as in the the case where she is under a charter-party, at least, so certain that, for all practical purposes in the administration of justice, no sub- stantial distinction can be made. It can be ascertained as readily, and with as much precision as the price of any given commodity in the market ; and affords as clear a rule for estimating the damage sustained on account of the loss of her service, as exists in the case of damage to any other description of personal property, of which the party has been deprived. In the case of the Gazelle, for ought that appears, the allowance 782 COLLISION. of the freight afforded a full indemnity for the detention of the vessel while undergoing the repairs. This would be so, as already stated, if they were made within the period she would have been engaged in earning it. If it were otherwise, it is certain, that the indemnity allowed fell short of the rule laid down under which it was made, which was, that the party was entitled to an adequate compensation for any loss he might sustain for the detention of the vessel during the period which was necessary for the completion of the repairs and furnishing the new articles. The allowance of the freight she was earning at the time was but a mode of arriving at the loss in the particular case under the general rule thus broadly stated ; and afforded, doubtless, full indemnity. "We are of opinion, therefore, that the rule of damages laid down by the court below was the correct one, and is properly applicable in all similar cases. There was no question made in respect to the freight of the vessel, and hence the general principle stated was applicable, irrespective of this element, as influencing the result. There were some other questions raised in the case of a technical character, and urged on the argument. But we deem it sufficient to say, that they are so obviously untenable, that it is not important to notice them specially. We are of opinion, therefore, the judgment of the court below was right, and should be affirmed. Mr. Justice Catron dissented, with whom Mr. Chief Justice Taney, and Mr. Justice Daniel concurred. Mr. Justice Catron. — This action is one of owners against own- ers of respective steam-boats. It is an action on the case, in which no vindictive damages can be inflicted on the defendants, as they committed no actual trespass ; and therefore, in assessing damages against them, moderation must be observed. In the next place, the collision occurred on the Ohio river, and the rules of law applicable to the controversy must accommodate themselves to that navigation. The injured boat was sunk, and the plaintiffs declared for a total loss ; but it came out in evidence, that she was raised and repaired, and again commenced running the river. On this state of facts the jury was charged : 1st. That damages should be given for raising the boat : 2d. For repairing her : and 3d. Also damages in addition, " for her use during the time necessary to make the repairs and fit her for business." WILLIAMSON v. BARRETT. 783 The expression " for her use," must mean either the clear profits of her probable earnings ; or, how much she could have been hired for to others during the time of her detention. Both propositions come to the same result, to wit : how much clear gains the owner of the Major Barbour, could have probably made by their boat, had she not been injured, during the time she was detained in consequence of being injured. This - probable gain, the jury was instructed to estimate as a positive loss, and to charge the defendants with it. The suit is merely for loss of the boat, and has no reference to the cargo. It does not appear that she had either cargo, or passengers ; nor does the evidence show in what trade she was engaged. In cases of marine torts, no damages can be allowed for loss of a market ; nor for the probable profits of a voyage. The rule being too uncertain in its nature to entitle it to judicial sanction. Such has been the settled doctrine of this court for more than thirty years. In the case of the Amiable ISTancy, 3 "Wheat. 560, when discuss- ing the propriety of allowing for probable loss of profits on a voy- age that was broken up by illegal conduct of the respondents' agents, this court declared the general and settled rule to be, that the value of the property lost, at the time of the loss ; and in case, of injury, the diminution in value, by reason of the injury, with in- terest on such valuation, afforded the true measure for assessing damages : " This rule," says the court, " may not secure a complete indemnity for all possible injuries ; but it has certainty, and general applicability to recommend it, and in almost all cases, will give a fair and just recompense." And in the suit of Smith v. Condrv (1 How. 35), it is declared, that in cases of collision " the actual dam- age sustained by the party, at the time and place, of the injury, is the measure of damages." In that ease there was detention as well as here, but it never occurred to any one, that loss of time could be added as an item of damages. In other words, that damages might arise after the injury and be consequent to it ; and which might double the amount actually allowed. The decision found in 3 Wheat, was made in 1818, and I had supposed for many years past, the rule was established, that conse- quential damages for loss of time, and which damages might con- tinue to accrue, for months after the injury was inflicted, could not be recovered ; and that there was no distinction in principle, be- tween the loss of the voyage, and loss of time, consequent on the injury. 784 COLLISION. The profits claimed and allowed by the Circuit Court, depended on remote, uncertain, and complicated contingencies, to a greater extent, than was the case, in any one instance, in causes coming be- fore this court, where a claim to damages was rejected for uncer- tainty. Here, full damages are allowed for raising the boat, and for her repairs. To these allowances no objection is made ; it only extends to the additional item for loss of time. That the investigation of this additional charge will greatly increase the stringency, tedious- ness, and charges of litigation, in collision cases, is manifest ; nor should this consideration be overlooked. The expense and harass- ment of these trials have been great when the old rule was applied ; and, the contest, if the rule is extended, must generally double the expense and vexation of a full and fair trial. Nor will it be possi- ble, as it seems to me, for a jury, or for a court (where the proceed- ing is by libel) to settle contingent profits, on grounds more certain, than probable conjecture. The supposition that the amount of damages can be easily fixed, by proof of what the injured boat could have been hired for on a charter-party, during her detention, will turn out to be a barren theory, as no general practice of char- tering steam-boats, is known on the western rivers, nor can it ever exist ; the nature of the vessels, and the contingencies of navigation being opposed to it. In most cases, the proof will be, that the boat could not have found any one to hire her ; and then, the contending parties will be thrown on the contingency, whether she could have earned something, or nothing ; little, or much, hi the hands of her owner, during the time she was necessarily detained ; and this will involve another element of contention of great magnitude ; to wit, whether she was repaired in reasonable time. Forasmuch as no necessity will be imposed on the owner to bestow the repairs, as is now the case, he will rarely, if ever, do so ; and having the colliding boat and her owners in his power, gross oppression will generally follow, in applying this new and severe measure of damages to western river navigation. In a majority of cases of collision on the western waters, partial injury, repairing, and detention of the injured boat occur. Contests before the courts have been numerous where the precise question of compensation here claimed was involved, and yet in an experience of twenty-five years, I have never known it raised until now. The bar, the bench, and those engaged in navigation, have acquiesced in the rule, that full damages for the injury at the time and place when it occurred, with legal interest on the amount, was the proper THE BALTIMORE. 785 measure ; nor do I tliink it should be disturbed ; and that therefore the judgment of the Circuit Court should be reversed, because the jury were improperly instructed, in this particular. Collision; Judiciary Act; Costs; Counsel Fees in Admiralty. UNITED STATES SUPREME COURT. 1809.] The Baltimore (8 Wall. 377). Restitutio in integrum is the leading maxim as to the measure of damages in cases of libel in admiralty, for injury to vessels, for collision ; in other words, where repairs are practicable, the general rule is, that the damages shall be sufficient to restore the injured vessel to the condition in which she was at the time the collision occurred. And tins rule does not allow deduction, as in insurance cases, for the new materials furnished in the place of the old. Although, if a vessel be sunk by collision in so deep water, or otherwise so sunk that she cannot be raised and repaired except at an expense equal to or greater than the sum which she would be worth when repaired, the rule cannot apply, still the mere fact that a vessel is sunk is not, of itself, sufficient to show that the loss is total, nor to justify the master and owner in abandoning her and her cargo. Courts of admiralty cannot properly allow counsel fees to the counsel of a gaining side in admiralty, as an incident to the judgment, beyond the costs and fees allowed by stat- ute. Under the statute now regulating the fees of attorneys, solicitors and proctors (the statute, namely, of 26th of February, 1853, 10 Stat, at Large, 161), a docket fee of twenty dollars may be taxed, on a final hearing in admiralty, if the libellant recover fifty dollars, but, if he recovers less than fifty dollars, only ten. The schooner Woolston, with a cargo of coal, and the steamer Baltimore, collided in the Potomac, on the 16th of December, 1863, and the schooner and her cargo sank. The owners of the schooner accordingly libelled the steamer in the admiralty court of the dis- trict. The libel averred that the collision had been caused wholly by the steamer's fault, and that the schooner had sunk in such deep water as to make both her and her cargo a total loss, since the cost of raising either, or both, would be greater than its or their value. These allegations, both as to the fault and the total loss, the answer explicitly denied. The testimony as to the question of fault, need not be stated, since it appeared that a part of it was given below, and was not in the record sent to this court, and the court therefore did not pass at all upon the merits. On the other matter, the matter of total loss, it rather showed that the water in which the schooner went down, was not so deep but that 50 786 COLLISION. her masts were visible eighteen feet above the water, and that her position, as she lay, was clearly discernible. No proof was given of the fact of a total loss, further than that the vessel sunk. The court, regarding the steamer as in fault, entered a decree for the libellants, and, upon the report of a commissioner, decreed, as damages, notwithstanding exceptions by the respondents, the full value of the schooner and cargo, at the time of the collision, and awarded to the libellants' counsel $500 as a fee. This decree, hav- ing been affirmed by the Supreme Court in General Term, the case was now here on appeal. Mr. Justice Clifford, in delivering the opinion of the court, after recapitulating the facts and discussing some questions not ma- terial to the rule of damages, proceeded as follows : Suppose the libellants are entitled to recover, still the claimants insist that the rule of damages adopted by the district court is erroneous. Owners of ships and vessels are not now liable for any loss, dam- age or injury by collision occasioned without their privity or knowl- edge, beyond the amount of their interest in such ship or vessel and her freight then pending (9 Stat, at Large, 635 ; The Niagara, 21 How. 26). Subject to that provision in the act of Congress, the damages which the owner of the injured vessel is entitled to recover are estimated in the same manner as in other suits of like nature for injuries to personal property, and the owner, as the suffering party, is not limited to compensation for the immediate effects of the injury inflicted, but the claim for compensation may extend to loss of freight, necessary expense incurred in making repairs, and unavoid- able detention (1 Parsons on Shipping, 538 ; Maude & Pollock on Shipping, 411 ; The Ann Caroline, 2 Wall. 538 ; Tindall v. Bell, 11 Mees. & W. 232V Restitutio in integrum is the leading maxim in such cases, and where repairs are practicable the general rule followed by the ad- miralty courts in such cases is that the damages assessed against the respondent shall be sufficient to restore the injured vessel to the condition in which she was at the time the collision occurred ; and in respect to the materials for the repairs the rule is that there shall not, as in insurance cases, be any deduction for the new materials furnished in the place of the old, because the claim of the injured party arises by reason of the wrongful act of the party by whom the damage was occasioned, and the measure of the indemnification is not limited by any contract, but is coextensive with the amount of THE BALTIMORE. 787 the damage (Williamson 'v. Barrett, 13 How. 110; The Gazelle, 2 W. Robinson, 281 ; Sedgwick on Damages [1th ed.], 511 ; Mac- Lachlan on Shipping, 285). Such repairs, in consequence of a collision, may enhance the value of the vessel and render her worth more than she was prior to the accident, and in that state of the case the rule in insurance cases is that one-third of the value of the new material is deducted, be- cause the new material is more valuable than the old, but the rule is not so where the repairs are required in consequence of a culpable collision (The Clyde, Swabey, 21; The Pactolus, lb. 171; The Catharine, 17 How. 170). Restitution or compensation is the rule in all cases where re- pairs are practicable, but if the vessel of the libellants is totally lost, the rule of damage is the market value of the vessel (if the vessel is of a class which has such value) at the time of her destruction (The Clyde, Swabey, 23 ; 1 Parsons on Shipping, 512 ; The Granite State, 3 Wall. 310 ; The Ann Caroline, 2 Id. 538 ; The Rebecca, Bl. & H. 317 ; The New Jersey, Olcott, 411). Allowance for freight is made in such a case, reckoning the gross freight less the charges which would necessarily have been incurred in earning the same, and which were saved to the owner by the acci- dent, together with interest on the same from the date of the prob- able termination of voyage (The Canada, Lush. 586). Evidence, however, that the injured vessel is sunk is not of itself sufficient to show that the loss was total, nor is it sufficient to justify the master and owner in abandoning the vessel or the cargo unless it appears that the circumstances were such that the vessel could not be raised and saved, or that the cost of raising and repairing her would exceed or equal her value after the repairs were made. Experience shows that in many cases where the injured ves- sel is sunk, especially when the disaster happens in rivers or har- bors, the vessel may be raised at moderate expense, and that the cargo, if not perishable, may be saved and restored to the shipper, or carried forward to the port of destination, and the rule in such cases is to award such damages only as will compensate the owners for the loss incurred, which is held to include the expense of raising the vessel and putting her in repair, with a proper allowance for the loss of freight and for the damage to the cargo, and for the deten- tion of the vessel during the time necessary to make the repairs and fit the vessel to resume her voyage (Williamson v. Barrett, 13 How. 110; Sturgis v. Clough, 1 Wall. 272). Justice as well as sound policy forbids that the owner of a ves- 788 COLLISION. sel sunk by collision should be allowed to recover the full value of the vessel and cargo except in cases where the entire property is lost by the disaster, which is not true in a case where, by reasonable exertions, the vessel may be raised and the cargo saved by the use of such nautical skill as the owners of vessels usually employ in such emergencies. Owners of vessels seeking redress in such cases must be prepared to show, not only that those in charge of the other vessel were in fault, but that no negligence on their part has increased or aggravated the injury. Damages are awarded in such cases for the injury done to the vessel and cargo by a wrongful act, but if the party suffering the injury to his property will not employ any reasonable measures to stop the progress of the damage, but wilfully and obstinately, or through gross negligence, suffers the damage to augment, it is his own folly, and the law will not afford him any redress for such part of the damage as proceeded directly from his own culpable default. Persons injured in their property by collision are entitled to full indemnity for their loss, but the respondents are not liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision, on the part of those in charge of the injured ship (The Flying-Fish, B. & Lush. 443 ; s. c. 3 Moore Privy Council [N. S.] 86 ; The Lotus, Holt R. K. 183 ; The Lena, lb. 213). Responsive to these views, the suggestion is, that the libel alleges that the schooner and cargo were sunk in such deep water as to make both a total loss, but the insuperable difficulty in the way of that suggestion is, that the allegation of the libel is expressly denied in the answer, and the libellants failed to introduce any proof to support their allegation. Subsequent to the disaster several wit- nesses saw the schooner, and they concur that her masts were some eighteen feet out of water, and that she lay with her stem to the west-northwest, in the exact course in which she was steering when she was sunk by the steamer. Theory of the libellants is, that the vessel and cargo were of no value, but the court cannot adopt that theory in the absence of any proof to warrant the conclusion (Mil- ler v. Mariner's Church, 7 Me. 51 ; Loker v. Damon, 17 Pick. 284 ; Thompson v. Shattuck, 2 Mete. 615 ; Sedgwick on Damages [4th ed.] 105). Decided cases may be found where it is held that the owner of the injured vessel is not bound to raise the vessel in a case where she was sunk by a collision, but it is clear that the court cannot award damages for a total loss, where it appears probable that the THE SAPPHIRE. 789 vessel and cargo may be raised without much expense, and restored to their owners (The Columbus, 3 W. Robinson, 158 ; The Eugenie, 1 Lush. 139 ; Lowndes on Collision, 148). The remainder of the opinion related to the allowance to the the libellants, by the commissioner, of $500 for counsel fees. This allowance was disapproved, the court holding that attorneys, solicit- ors and proctors can tax nothing as costs in a cause of admiralty and maritime jurisdiction against the opposite party, except the fees and costs regulated by the act of February 26, 1S53. Decree reversed. Collision ; Division or Loss ; Cross-Libel ; Proof of Damage to Claimants ; Costs. SUPREME COURT, UNITED STATES. [1873.] The Sapphire (18 Wall. 51). The rule in admiralty that where both vessels are in fault, the sums representing the damage sustained by each must be added together, and the aggregate divided be- tween the two, is of course applicable only where it appears that both vessels have been injured. And although a cross-libel may not always be necessary in such case, in order to enable the owners of the vessel libelled to set off or recoup the damages sustained by such vessel, if both it and the other vessel be found in fault, yet if it be meant to set off or recoup such damages, it ought to appear in some way that the libelled vessel was injured, and if such injury is not alleged by a cross-libel, it may well be questioned whether it ought not to appear in the answer. At all events, where, in neither the District nor in the Circuit Court, the libellee has set up an allegation that there were other damages sustained than those which the libel- lant alleged had been sustained by his vessel, the libellee cannot make a claim ia this court for damages which he alleges here, for the first time, have been sustained also by him. Accordingly, where a decree in the Circuit Court which, assuming that the fault in a collision case was with the libelled vessel alone, gave -$15,000 damages to the libellant, was reversed in this court, which held " that both vessels were in fault, and that the damages ought to be equally divided;" and remanded the case with a mandate, directing that a decree should be entered "in conformity with this opinion," — held, there having been no allegation in any pleadings, nor any proofs that the libelled vessel had sustained injury, that a decree was rightly entered against her for •$7,500. The libellant, in such a case, held entitled to his costs in the District and Circuit Court as given originally in those courts ; deducting from them the costs of the appellant on reversal ; the matter of costs in admiralty being wholly under the control of the court tnvino; them. 790 COLLISION". Appeal from the Circuit Court for the District of California. In December, 1867, in the District Court of California, the Em- peror of the French, Napoleon III, filed a libel in the admiralty against the ship Sapphire, averring that shortly before, a collision had occurred between the Euryale, a vessel belonging to the French gov- ernment, and the Sapphire, by which the former was damaged to the extent of $15,000; that the collision was occasioned wholly by the negligence and inattention, and want of proper care and skill on the part of the ship Sapphire, her master and crew, and not from any fault, omission, or neglect on the part of the Euryale, her master and crew. The owners of the Sapphire, in their answer, admitting the col- lision, denied that it had been caused by the fault of those on board the Sapphire ; and averred that the Sapphire had her full complement of men and officers on board, was fully and properly manned and equipped ; that the officers and crew, before and at the time of the collision, were on deck, ready to adopt and use any and all measures to prevent any danger or accident happening to her; and they averred that, on the contrary, the Euryale ran into and collided with the Sap- phire, without any fault or negligence on the part of the officers, or any of them, or the crew, or any of them, of the Sapphire ; that what- ever damage was done to the Euryale or the Sapphire was occasioned solely and exclusively by reason of the fault and negligence of the officers of the Euryale. Wherefore they prayed that the court would pronounce against the libel, and condemn the libellant in costs, and otherwise law and justice administer in the premises. No cross-libel was filed, and the answer made no averment that any injury had been sustained by the Sapphire. Upon the pleadings, as thus described, the case went to trial, and decree was that the libellant recover the amount of his damages sus- tained by him in consequence of the collision described in his libel. A commissioner was then appointed to ascertain and compute the amount of the damages due to the libellant, and to make report to the court. Subsequently that commissioner reported the amount of those damages to be $16,474 ; whereupon the court decreed that the claim- ants and owners of the Sapphire pay to the libellant the sum of $15,000, a part of the sum thus reported, and the amount claimed in the libel. This decree was affirmed in the Circuit Court, and the case being brought here for review, this court was of the opinion that " both parties were in fault, and that the damages ought to be equally divided between them ; " and sent down a mandate directing that a decree THE SAPPHIRE. 791 should be entered " in conformity with this opinion " (11 Wallace, 164). The Circuit Court thereupon reversed its prior decision, and de- creed that the libellant recover against the Sapphire and her claimants the sum of $7,500, the same being one-half of the damages decreed by this court in favor of the libellant and against the claimants. It further decreed that the libellant recover against the ship the costs in the District Court, taxed at $115 50, together with his costs in the Circuit Court, taxed at $299 70, amounting in all $415 20, less the sum of $137 43, costs of the claimants expended in the prosecution of their appeal to the Supreme Court of the United States. From this decree the owners of the Sapphire again appealed to this court, alleging that this last decree also of the Circuit Court was erroneous, and did not conform to the mandate : First. In that it decreed in favor of the libellant for $7,500, being one-half of $15,000, the sum previously awarded to the libellant. by the Circuit Court, as and for damage sustained by the libellant as owner of the Euryale, without taking into consideration the damage sustained by the Sapphire. Second. In that the Circuit Court did not ascertain the amount of damage which had been sustained by the Sapphire, without which ascertainment the court could not divide the damages sustained by the two vessels equally between them. Third. In that it allowed the libellant his costs in the District and in the Circuit Courts, to which he was not entitled. Fourth. In that it did not enter a decree in favor of the claimants for $137 43, the costs allowed them by the Supreme Court, and in de- ducting this amount from the costs allowed the libellant. Mr. Justice Stkoxg delivered the opinion of the court. The question now presented is, whether the new decree which the Circuit Court has made conforms to our mandate. Our mandate was not an order to take further proceedings in the case, in conform- ity with the opinion of this court (as was directed in The Schooner Catharine, 17 Howard, 170), or to adjust the loss upon the principles stated in our opinion (as was directed in Cushing et al. v. Owners of the Ship John Frazer et al., 21 Id. 184; see also Rogers v. Steamer St. Charles, 19 Id. 108) ; but it was specially to enter a decree in con- formity with the opinion of this court. Of what damages did we order an equal division ? There were no others asserted or claimed than those sustained by the libellant. "We do not say that a cross- libel is always necessary in a case of collision in order to enable claimants of an offending vessel to set off or recoup the damages sus- 702 COLLISION. tained by such vessels, if both be found in fault. It may, however, well be questioned whether it ought not to appear in the answer that there were such damages. It is undoubtedly the rule in admiralty that where both vessels are in fault, the sums representing the dam- age sustained by each must be added together, and the aggregate divided between the two. This is in effect deducting the lesser from the greater, and dividing the remainder. But this rule is applicable only where it appears that both vessels have been injured. If one in fault has sustained no injury, it is liable for half the damages sus- tained by the other, though that other was also in fault. And, so far as the pleadings show, that is the case now in hand. But without de- ciding that the claimants of the Sapphire were not at liberty to show that their ship was damaged by the collision, and to set off those damages against the damages of the libellant, it must still, we think, be held they have waived any such claim. If our mandate was not a direction to enter a decree for one-half the damages of the libellant, if its meaning was that a decree should be made dividing the aggre- gate of loss sustained by both vessels, wdiich may be conceded, it was the duty of the respondents to assert and to show that the Sapphire had been injured. This they made no attempt to do. When the cause went down, they neither asked to amend their pleadings, nor to offer further proofs, nor to have a new reference to a commissioner. So far as the record shows, they set up no claim, even then, or at any time before the final decree, that there were any other damages than those which the libellant had sustained. It is not competent for them to make such a claim first in this court. "We cannot say, therefore, the court below did not decree in accordance with our mandate. The appellants further complain that it was erroneous to allow the libellant his costs in the District and Circuit Courts, deducting there- from the costs allowed them by this court — i. e., the costs of the re- versal of the former decree. We do not perceive, however, in this any such error as requires our interposition. Costs in admiralty are entirely under the control of the court. They are sometimes, from equitable considerations, denied to the party who recovers his demand, and they are sometimes given to a libellant who fails to recover any- thing, when he was misled to commence the suit by the act of the other party (Benedict's Admiralty, § 549). Doubtless they generally follow the decree, but circumstances of equity, of hardship, of op- pression, or of negligence, induce the court to depart from that rule in a great variety of cases (Id. § 549). In the present case, the costs allowed to the libellant were incurred by him in his effort to recover DALTOX v. THE SOUTH-EASTERN RAILWAY CO. 703 what has been proved to be a just demand, and a denial of them, under the circumstances of the case, would, we think, be in- equitable. Decree affirmed. Xote — Where a collision occurs from the fault of both vessels, and damage is thereby done to an innocent party as the owner of the cargo of either, or to a vessel in tow without fault, a decree should be rendered not against both vessels in solido, for the entire damage, interest, and costs, but against each for a moiety thereof, so far as the stipulated value extends; and it should provide that any balance of such moiety, over and above such stipulated value of either vessel, or which the libelhint shall be unable to collect or enforce, shall be paid by the other vessel, to the extent of her stipulated value beyond the moiety clue from her. The " Alabama " and the " Gamecock," 92 U. S. E. S. C. (2 Otto), 695 (1875). In an action for damages occasioned by a collision, the cost of the repairs, the rental value of the vessel while undergoing them, and interest on both items, are proper allowances as damages. Mailler v. The Express Propeller Line, 61 N. Y. 312 (1874). In a cause of collision, the measure of compensation shall be equal to the amount of injury received, and shall be calculated on the principle that the suf- ferer is entitled to complete indemnification, without any deduction for new ma- terials used in making repairs, as in marine insurance; nor is the guilty party en- titled to deduct from the damages any sum which the libellant has received from an underwriter on account of his severe injury. The "Atlas" (3 Otto), 93 U. S. R. S. C. 302 (1876). " The expenses of the plaintiff necessarily incurred in retaining his crew after the collision, and in attempting to sive the cargo, are proper items of damage." Hoffman v. Union Ferry Company, 68 N. Y. 385 (1877). ACTIONS ALLOWED BY STATUTE FOE INJURIES CAUSING DEATH. Court or Common Pleas. [1858.] Dalton v. The South-Eastekn Railway Co. (4 C. B. K S. 296 ; 27 L. T. E. C. P. 227 ; 4 Jur. ls T . S. 711). In an action founded upon Lord Campbell's Act, 9 & 10 Yict. c. 93, for injury resulting from death, legal liability alone is not the test of injury in respect of which damagi s may be recovered ; but the reasonable expectation of pecuniary advantage by the relation remaining alive may be taken into account by the jury; and damages may be given in respect of that expectation being disappointed, and the probable pecu- niary loss thereby occasioned. Therefore, in an action by a father for injury resulting from the death of his son through the negligence of the servants of a railway company, it appeared that the son, who 794 INJURIES CAUSING DEATH. was twenty-seven years of age, and unmarried, but living away from his parents, had for the last seven or eight years been in the habit of visiting them once a fortnight, and of taking them on those occasions presents of tea, sugar, and other provisions, besides money, amounting in the whole to about 20/. a year: Held, that the jury were war- ranted in inferring that the father had such a reasonable expectation of pecuniary benefit from the continuance of his son's life as to entitle him to recover damages under the statute. But held, that it was not competent to the jury to award him compensation for the ex- penses incurred by him for his son's funeral or for family mourning. This was an action brought by the plaintiff, as administrator of his deceased son, to recover damages under Lord Campbell's Act, 9 & 10 Vict. c. 93, by reason of the deceased having been accident- ally killed through the negligence of the defendants' servants. The cause was tried before Byles, J., at the sittings in Middle- sex after last Hilary Term. It was admitted on the part of the defendants that the death of Thomas Dalton was the consequence of negligence on the part of their servants, and that that negligence was of such a character as would have enabled the deceased himself to recover damages for any injury short of death which might have resulted to him thereby ; but it was insisted that the plaintiff and his wife had sustained no such injury by the death of their son as to enable them to maintain an action under the statute. As to this the facts were these : The deceased, who was about twenty-seven years of age, and unmarried, resided in London, where he worked as a pianoforte maker, earning about SI. a week. For the last seven or eight years he had been in the habit of visiting his father and mother, laboring people at Dartford, once a fortnight, and on these occasions took them presents of tea, coffee, sugar, meat, A:c, which with occasional donations of money averaged about 201. a year. On the part of the company, it was submitted, that, under this statute, the plaintiff could only recover in respect of the loss of some legal right. On the other hand, it was submitted that it was enough that the plaintiff should have had a reasonable expectation of a con- tinuance of pecuniary advantage from the remaining alive of his son ; and, in addition to compensation for that loss, the plaintiff claimed 101. which he had expended upon his son's funeral, and also the cost of providing himself and wife with mourning. The learned judge told the jury, that, in his opinion, the plaintiff and his wife had • sustained such a pecuniary injury from the death of their son as to entitle them to recover damages under the statute ; and he directed them to find separately the sums they thought the DALTON v. THE SOUTH-EASTERN RAILWAY CO. ?95 plaintiff entitled to in respect of the mourning and tlie funeral ex- penses. The jury accordingly returned a verdict for the plaintiff — assess- ing the damages as follows : SOI. for the plaintiff, and 101. for his wife, in respect of the pecuniary loss sustained by their son's death ; 101. for the funeral ; and 151. for mourning; and leave was reserved to the defendants to move to enter a nonsuit, if the court should be of opinion that there was no evidence of such damage as would en- title the plaintiff to maintain an action under the statute, or to re- duce the damages by deducting the sums allowed for funeral ex- penses and mourning. Willes, J., now delivered the judgment of the court : The great question in this case is disposed of by the judgment of the Court of Exchequer, in Franklin v. The South-Eastern Eailway Company, 3 Hurlst. & N. 211, by which it is decided, with our en- tire concurrence, that legal liability alone is not the test of injury in respect of which damages may be recovered under Lord Campbell's Act, 9 & 10 Yict. c. 93 ; but that the reasonable expectation of pecu- niary advantage by the relation remaining alive may he taken into account by the jury, and damages may be given in respect of that expectation being disappointed, and the probable pecuniary loss thereby occasioned.* In respect, therefore, of the sum of 120/., given as damages upon that footing, the verdict must stand. As to the expenses of the funeral and mourning, however, we think they ought not to be allowed. The subject-matter of the statute, is, compensation for injury by reason of the relative not being alive : and there is no language in the statute referring to the * Pollock, C. B. in giving the judgment of the court in that case, says: "The statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does is to show what it does not mean. Now, it is clear that damage must be shown, for, the jury are to 'give such damages as they think proportioned to the injury.' It has been held that these damages are not to be given as a solatium, but are to be given in reference to a pecuniary loss. That was so decided for the first time iu banc, iu Blake v. The Midland Railway Company, 18 Q. B. 93 (E. C. L. R. vol. 83). It is also clear that the damages are not to be given merely in reference to the loss of a legal right, for, they are to be distributed among relations only, and not to all individuals sustaining such a loss; and accordingly the practice has not been to ascertain what benefit could have been enforced by the claimants had the deceased lived, and give damages limited thereby. If, then, the damages are not to be calculated on either of these principles, nothing remains except that they should be calculated in reference to a reasonable expectation of pecu- niary benefit, as of right or otherwise, from the continuance of the life." *J9Q INJURIES CAUSING DEATH. cost of tlie ceremonial of respect paid to the memory "of the deceased in his funeral, or in putting on mourning for his loss. The rule must, therefore, he absolute to reduce the verdict by those expenses, and discharged as to the residue. Rule accordingly. Action foe Death by Negligence ; Prospective Loss ; Pecuniary Value of a Mother's Care. COURT OF APPEALS, NEW YORK. [1864.] Tilley, Admr., v. The Hudson River R. R. Co. (29 N. Y. 252). In an action bya father, as administrator of his wife, who was killed by the negligence of the defendants, it is not improper for the judge to charge the jury that, in esti- mating the pecuniary injury, they may take into consideration the nurture, instruc- tion, and physical, moral and intellectual training which the mother gave to the children. Such a charge does not imply that the children are necessarily and inevitably subjected to such a loss, but leaves it to the jury to determine whether any such loss has been in fact sustained, and, if so, the amount of the loss. There is no sufficient legal reason for limiting the damages, in such an action, to the minority of the children, if the jury are legally persuaded they will continue after that age. It is not erroneous to instruct the jury, in such a case, that while they must assess the damages with reference to the pecuniary injuries sustained by the next of kin in consequence of the death of the mother, they are not limited to the losses actually sustained at the precise period of her death, but may include, also, prospective losses, provided they are such as the jury believe, from the evidence, will actually result to the next of kin as the proximate damages arising from the wrongful death. In such an action evidence in relation to the capacity of the mother to conduct business and make money, is proper, as aiding the jury in arriving at a correct result in re- gard to the pecuniary benefit which the mother was to her children, and her capacity to bestow such training, instruction and education as would be pecuniarily service- able to the children in after life. Appeal by the defendant from a judgment of the Supreme Court rendered in the Third District in favor of the plaintiff. The action was brought by the plaintiff, as administrator of his wife, to recover damages sustained by her death from injuries alleged to have been caused by the negligence of the defendant. The cause has been twice tried. The judgment rendered in favor of the plain- tiff on the first trial was reversed by this court and a new trial TILLEY v. THE HUDSON R. R. R. CO. 797 ordered (24 X: Y. R. 471). A second trial was had before Mr. Justice Hogeboom and a jury at the Rensselaer circuit in December, 1802, and the plaintiff recovered a verdict. jS r o question was made but that the death of the plaintiff's intestate was caused by the neg- ligence of the defendant. The only questions made by the defend- ant related to the rule of damages. The injury which caused the death happened on the 18th of January, 1860, near Sing Sing, by a collision of trains on the defendant's road, in one of which the de- ceased was a passenger. It appeared that prior to her death the plain- tiff, who was a carpenter by trade, resided with his wife and family in the town of Grafton, in the county of Rensselaer. The deceased, at the time of her death, was 48 years of age — the plaintiff about 50 ; and there were five children, the oldest 23 and married, the next 21, one 17, one 11, and one 9 years of age. To the admission of evi- dence of the plaintiff's occupation the defendant excepted. The plaintiff was also allowed to show, under the objection and exception of the counsel for the defendant, that the deceased carried on the shirt and bosom making business. That she also attended to her household affairs ; that she instructed her children and sent them to school, instructed them in domestic affairs, nursed them in sickness, was a member of the Baptist church, the superintendent of a Sunday- school, and frequently took part in the exercises of the church, and addressed and exhorted at meetings. The judge, among other things, instructed the jury that in estimating the damages they had a right to consider the loss which the children had sustained in reference to their mother's nurture, intellectual, moral, and physical training, and of such instruction as can only proceed from a mother, and as they would otherwise have required at her hands. That they were not at liberty to speculate upon the probabilities of their loss being wholly or partially supplied by their father's exertions, or by his second marriage, or from any other source, and make an allowance to the de- fendant by way of deduction from the damages on that account. That in estimating the pecuniary damages the jury should consider the age of the mother, her physical and mental capabilities, her capacity for business, the ages of her children, and the fact that at the time of her decease she and her children were residing together as a family. That the damages were to be assessed with reference to the pecuniary injuries sustained by the next of kin on account of the death, and they are not confined to the actual present loss, which could be proved, but prospective loss also, provided the prospective loss is such as the jury believe, from the evidence, will actually result to the next of kin as the proximate damages arising from the wrong- 79S INJURIES CAUSING DEATH. ful death. That the injuries to the children by the death of the mother is a legitimate ground of damage, and that in estimating such damages the jury have a right to consider the loss of the children of the deceased in reference to such intellectual, moral, and physical training, and such instruction as they would otherwise have received at her hands. That the jury had the right to consider the business and other capabilities of the mother with reference to her competency to discharge her duties towards the pecuniary benefit of the children, in her intellectual, moral, and physical training of the children. To all the foregoing directions the counsel for the defendant excepted. The judge, upon request, declined to charge that the only damages the jury could give were those sustained by the infant children of the deceased, but instructed the jury that if, under the evidence, they could fairly conclude that the children at any age would receive pecuniary benefit from the instruction and counsel of the mother, they were entitled to allow for it such damages as would naturally and proximately result. The judge also refused to charge that no damages could be given for any loss sustained by Mrs. Burdick, one of the children, who was of age before the mother died. And in various forms the judge refused to charge the jury, that in estimating the damages they were limited to such pecuniary loss as the children would sustain during the period of their minority, but did instruct them that in this respect they were not limited to any age, and, in effect, that they were at liberty to allow damages through the whole period of their probable lives; and to all these directions the defend- ant's counsel excepted. The jury found for the plaintiff a verdict for $5,000. Hosebdom, J. — Whatever may be said of the precise points in judgment when this case was here upon a former occasion, it is plain that the judge on the second trial charged the jury in conformity with the views presented in the prevailing opinion on the former ap- peal. Those views are supposed to have received the concurrence and approval of a majority of the court, and at all events to have sug- gested themselves to the court as probably sound, whether or not they were entitled to absolute authority in controlling the proceedings on the second trial. It is not, perhaps, well to be unduly critical in con- cluding the parties by the former decision. The questions now arise and call for direct and precise adjudication ; and as they have been fully, ably and learnedly discussed, perhaps no more fit occasion will be presented for a judicial exposition of the statute under which these proceedings were had, so far as the same remains open for examina- tion. TILLEY v. THE HUDSON R. R. R. CO. T99 Although, the briefs now presented are somewhat voluminous, the points are few and are confined to exceptions to a single species of evidence, and to exceptions to the charge and refusals to charge. They may be ranged under the following heads : 1. Exceptions to the charge that the jury might take into con- sideration the nurture, instruction and physical, moral and intellectual training which the mother gave to the children. 2. Exceptions to the refusal of the judge to restrict the damages to the minority of the children. 3. Exceptions to the charge that prospective damages were allow- able. 4. Exceptions to the evidence of the business capacity of the mother. The charge of the judge was explicit that the damages must be limited to pecuniary injuries ; and he said that in estimating them they had a right to consider the loss (that is, the pecuniary loss) which the children had sustained in reference to their mother's nurture and instruction, and moral, physical and intellectual training. I think this does not imply that the children are necessarily and inevitably subjected to such a loss, but leaves it to the jury to determine whether any such loss has been in fact sustained, and if so, the amount of such loss. This is the fair scope and meaning of the charge, and if it was not sufficiently explicit, should have been made so by a direct request for such purpose. This understood, I regard it as unexceptionable. It is certainly possible, and not only so but highly probable, that a mother's nurture, instruction and training, if judiciously administered, will operate favorably upon the worldly prospects and pecuniary in- terests of the child. The object of such training and education is not simply to prepare them for another world, but to act well their part in this, and to promote their temporal welfare. If they acquire health, knowledge, a sound bodily constitution and ample intellectual development under the judicious training and discipline of a com- petent and careful mother, it is very likely to tell favorably upon their pecuniary interests. These are better, even in a pecuniary or merce- nary point of view, than a feeble constitution, impaired health, in- tellectual ignorance and degradation and moral turpitude. To sustain the charge, it is enough that these circumstances might affect their pecuniary prospects. It was left to the jury to say whether in the given case they did so or not, and if so, to what extent. It is no answer to this view to say that wealth is sometimes associated with in- firm health, mental degradation and moral turpitude. Cases of this kind do occur, but they do not make the rule, nor tend to show that 800 INJURIES CAUSING DEATH. the healthy growth and expansion of the physical, intellectual and moral powers with which a kind providence has endowed us do not tend to our worldly advantage. I do not understand from the phrase- ology of the statute that an extremely nice and contracted interpre- tation should.be put upon the term "pecuniary injuries." A liberal scope was designedly left for the action of the jury. They are to give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death. They are not tied down to any precise rule. Within the limit of the statute as to amount, and the species of injury sustained, the matter is to be submitted to their sound judgment and sense of justice. They must be satisfied that pecuniary injuries resulted. If so satisfied, they are at liberty to allow them from whatever source they actually pro- ceeded which could produce them. If they are satisfied from the his- tory of the family, or the intrinsic probabilities of the case, that they were sustained by the loss of bodily care, or intellectual culture, or moral training, which the mother had before supplied, they are at liberty to allow for it. The statute has set no bounds to the sources of these pecuniary injuries. If 'the rule is a dangerous one, and liable to abuse, the legislature and not the courts must apply the corrective. The charge is supposed to have been particularly objectionable be- cause it set before the jury moral training and culture as one of the sources of pecuniary benefit, which the jury were at liberty to con- sider. It would be an effectual though technical answer to this ex- ception to say that the charge was not objected to specifically on that ground, and that if the charge is sustainable on the score of physical and mental training supplied by the mother, it cannot be rejected as erroneous because in the same sentence moral culture was included without a specific objection. But I think it defensible on the grounds already advanced, that moral culture, like bodily health and mental developement, improve and perfect the man and fit him not only for a more useful but a more prosperous career, for worldly success as well as social consideration. It is not essential to show that they nec- essarily result in direct pecuniary advantage ; it is sufficient that they may do so ; that they often do so ; that it is possible and not improba- ble that such may be the result, and that, therefore, these items may be set forth and presented for the consideration and deliberation of the jury, to be disposed of as they shall deem to be just. 1 think the exception is not well taken if they may possibly result in pecuniary benefit and do not tend in a contrary direction. I concede these are quite general and to some extent loose and indefinite elements to enter into a safe and judicious estimate of actual pecuniary damage, but I TILLEY v. THE HUDSON K. R. R CO. 801 am unable to find in the statute a restriction which shall confine it within narrower limits. Nor do I perceive any sufficient legal reason for limiting the dam- ages to the minority of the children if the jury are legally persuaded they would continue after that age. It cannot be denied that the de- privation of parental instruction and training and discipline, after, that age, is more or less detrimental to the child in a pecuniary point of view, and I see no arbitrary injunction in the statute peremptorily to exclude such considerations from the jury. The judge seems to have submitted this part of the case to the jury with cautious direc- tions. He instructed the jury that if they could, under the evidence fairly conclude that the children, at any age, would receive pecuniary benefit from the instructions and counsel of the mother, they were entitled to allow for it such damages as would naturally and, proxi- mately result. The judge further charged that beyond the age of twenty-one years the jury must proceed with caution, and allow only those damages which, under the evidence, they should find would and did reasonably and proximately result from the death of the mother by the wrongful act of the defendants! He further stated to the jury that he did not charge that the jury must allow for damages beyond twenty-one years. Assuming, as I think we must, that there is not, either in the statute or in principle, any peremptory injunction to confine the damages absolutely to the minority of the children, the case seems to have been put to the jury on this point with proper limitations. Nor do I think it was erroneous to instruct the jury that while they must assess the damages with reference to the pecuniary injuries sustained by the next of kin in consequence of the death of Mrs. Tilley, they were not limited to the losses actually sustained at the precise period of her death, but might include also prospective losses, provided they were such as the jury believed, from the evidence, would actually result to the next of kin as the proximate damages arising from the wrongful death. If damages of the character alluded to, to wit: those arising from the deprivation of the training and education which the parent would bestow were allowable at all, the loss which the children would sus- tain by the death must necessarily be such as should arise from the nurture and training to be subsequently bestowed. That which had been already given, and of which the children had already reaped the benefit, could not be increased by the continued life of the parent, nor curtailed by her sudden death. The result had been already re- alized. But her sudden and wrongful removal was 'the withdrawal — 51 802? INJURIES CAUSING DEATH. the permanent and p3rpetual withdrawal — of a moral and intellectual fund from which the children were constantly deriving pecuniary aliment and support. And it is this withdrawal which formed the basis of the whole allowance for any damage arising from this source. The length of time such benefit would have been enjoyed was left to the jury, under proper instructions. They were charged to find it from the evidence ; they were charged to limit the recovery to such damages as would actually result, and to such damages as were proxi- mate and not remote. The only remaining question concerns the admission of evidence in relation to the capacity of the mother to conduct business and make money. If the results already announced rest on a sound foundation, then this evidence was proper, as aiding the jury in arriving at a proper result in regard to the pecuniary benefit which the mother was to her children, and the capacity of the mother to bestow such training, in- struction and education as would be pecuniarily serviceable to the chil- dren in after life. It is not denied that if the mother had, by her in- dustry and business capacity, acquired a certain pecuniary capital, the amount of it would be proper to be proved. Would it be improper to show that it was likely to be increased by her industry, her econ- omy, her capacity for business, and her judicious conduct of business affairs ? All these are elements of pecuniary success — component parts in fact of that pecuniary capital, of the continued exercises and employment of which the children were entitled to the benefit, and of which the wrongful act of the defendants deprived them. This was evidence, moreover, of the circumstances, situation, engagements and surroundings of the family, which seems on general principles always proper to give with the view of daguerreotyping to the jury the actual condition of affairs, which it is so important for them to understand, the extent and details of which must generally be left to the sound discretion of the trial judge. It contains no positive illegal element, and may often be of essential service in giving to the jury a practical view of the case. Most of the views here presented are discussed and elaborated in the opinion pronounced when the case was here on a former occasion (24 IS". Y. 477), and there pertinency sustained by considerations more direct and practical than those which are here urged. I refer to them for additional light on this subject. My object here has been mainly to present some general additional views which might possibly aid in a proper interpretation of the statute in question. I think no error was committed at the trial, and that the judgment of the supreme court should be affirmed. RAILROAD COMPANY v. BARRON. 803 Wright, Mullin, Ingraham, Davii<:s and Denio, Justices, were also in favor of affirmance. Johnson, J., was also for affirmance, on the authority of the former decision in this case ; but if the question was open he would agree with Selden, J., who read an opinion for reversal, and a new trial. Judgment affirmed. SUPREME COURT, UNITED STATES. [1366.] Bailroad Company v. Barron (5 Wall. 90, affi'gl Bissell, 453). When a statute — giving a right of action to the executor of a person killed by such an act as would, if death had not ensued, entitled such person to maintain an action for damages — provides, that the amount recovered shall be for the exclusive benefit of the widow, and next of kin. in the proportion provided by law in the distribu'ion of personal property left by persons dying intestate ; and that " in every such action the jury may give damages as they shall deem a fair and just c mpensation with reference to pecuniary injuries resulting from such death, nt. And that it is incumbent on the plaintiff, before he can recover anything more than nominal damages, to show by the evidence that there are per- sons in existence entitled to claim the indemnity given by the law, and that they have sustained a pecuniary loss justifying their claim. " 2d. That to entitle the plaintiff to recover anything beyond merely nominal damages, the parties for whose benefit the action is brought must be shown by the evidence to have had at the time of the death of Barron a legal interest in his life, and that by his death they have been deprived of something to which they had a legal right. " 3d. That if the persons for whose benefit this action is brought have received in consequence of the death of said Barron, and out of this estate inherited by them from him, a pecuniary benefit greater than the maximum amount of damages which could, under any cir- cumstances, be recovered in this action, then, as a matter of law, they have by the death of said Barron sustained no actual pecuniary injury for which compensation can be recovered in this action. "4th. That if the collision of the two trains of cars in question, and the death resulting therefrom, was occasioned solely by the care- lessness or default of the persons in charge of the express train, and that the defendant had no authority or control over such persons, but that that they were wholly under the authority and direction of the Michigan Central Railroad Company, then the defendant is not liable in this action, even for nominal damages." But the court refused so to charge the jury; and charged as follows : It is contended by the defendant that, as Barron was never mar- ried, the next of kin, being his father, brothers, and sisters, had no claim on him for support or services, and therefore there could have been no pecuniary loss to them by his death. We cannot adopt this construction of the law, but charge you that there can be a recovery if the deceased left no kin surviving him who had any legal claim on him if living, for support. The cause of action is given in the first section of the act in clear and unmistakable tenns. If the injured party, by the common law, 806 INJURIES CAUSING DEATH. had a right to sue if he had lived, then if he dies his representatives can bring an action. Many individuals who lose their lives by the fault of persons and corporations are of age, unmarried, and have no next of kin depend- ent on them for support. We cannot suppose that the statute in- tended to give the representatives of such persons the right to sue in one section and make that right nugatory in the second section, by depriving them of all damages. The policy of the law was evidently to make common carriers more circumspect in regard to the lives intrusted to their care. They were responsible at common law if through their fault broken limbs were the result, but escaped responsibility if death ensued. To rem- edy this evil and provide a continuing responsibility, was in the opinion of the court, the object of the law. We do not think it requisite to prove present actual pecuniary loss. It can rarely be done. The attempt to do it would substitute the opinion of witnesses for the conclusions of the jury. The facts proved will enable the jury to decide on the proper measure of responsibility. Some cases are harder than others, and the law in- tends that the jury shall discriminate in different cases. There is no fixed measure of damages, and no artificial rule by which the dam- ages in a given case can be computed. The jury are not to take in consideration the pain suffered by the deceased, or the wounded feelings of surviving relatives, and no damages are to be given by way of punishment. In this case the next of kin are the parties who were interested in the life of the deceased. They were interested in the further accu- mulations which he might have added to his estate, and which might hereafter descend to them. The jury have a right, in estimating the amount of pecuniary injury, to take into consideration all the circumstances attending the death of Barron — the relations between him and his next of kin, the amount of his property, the character of his business, and the prospective increase in wealth likely to accrue to a man of his age with the business and means which he had. There is a possibility in the chances of business that Barron's estate might have decreased rather than increased, and this possibility the jury may consider. The jury also have a right to take into consideration the contingency that he might have married, and his property descended in another channel. And there may be other circumstances which might affect the question of pecuniary loss, which it is difficult for the court to par- RAILROAD COMPANY v. BARRON. 80T ticularize, but which will occur to you. The intention of the statute was to give a compensation for the pecuniary loss which the widow (if any) or the next of kin might sustain by the death of the part}- ; and the jury are to determine, as men of experience and observation, from the proof what that loss is. In order to render a verdict for the plaintiff it is necessary that the defendant should have been in fault. The Illinois Central Railroad Company engaged to carry Judge Barron safely from Hyde Park to Chicago, and as a common carrier was bound to the most exact care and diligence required for the safety of passengers. * * * * It is not a question which train was mostly in fault, but whether the train of the defendant was in fault at all. It is for the jury to say from the evidence whether the employees of the Illinois Central road used the necessary degree of care and diligence in the manage- ment of their train on that morning. * * * * We understand that the road on which the accident occurred belonged to the defendants, and by its charter was under its sole control to carry passengers and property, and if it allowed the trains of the Michigan Central to run over it under the management of the agents of the Michigan Central, it should be done in such a manner as not to interfere with the safety of the passengers of the defendant, and as to such passengers the fault of the Michigan Cen- tral road in running their train is the fault of the defendant. Yerdict and judgment for $3,750 damages. The case was now here on exceptions to the charge as made, and on the refusal to charge as requested. Mr. Justice Nelson delivered the opinion of the court. There are only two questions raised in the course of the trial in the court below that it is material to notice. After affirming the ruling of the court below, that the defendants were liable, the learned justice proceeded as follows : The second question is, as to the proper measure of damages. The only direction on this subject in the statute is, that the jury may give such damages as they shall deem a fair and just compensa- tion, regard being had to the pecuniary injuries resulting from the death to the wife or next of kin, not to exceed live thousand dollars. The first section gives the action against the company for the wrongful act, if death happens, in cases where, if the deceased had survived, a suit might have been maintained by him. The second restricts the damages in respect both to the principles which are to govern the jury, and the amount. They are confined to the pecun- 808 INJURIES CAUSING DEATH. iary injuries resulting to the wife and next of kin, whereas if the de- ceased had survived, a wider range of inquiry would have been admitted. It would have embraced personal suffering as well as pecuniary loss, and ' there would have been no fixed limitation as to the amount. The damages in these cases, whether the suit is in the name of the injured party, or, in case of his death, under the statute, by the legal representative, must depend very much on the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case. If the suit is brought by the party, there can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body. So when the suit is brought by the rep- resentative, the pecuniary injury resulting from the death to the next of kin is equally uncertain and indefinite. If the deceased had lived, they may not have been benefited, and if not, then no pecuniary injury could have resulted to them from his death. But the statute in respect to this measure of damages seems to have been enacted upon the idea that, as a general fact, the personal assets of the de- ceased would take the direction given them by the law, and hence the amount recovered is to be distributed to the wife and next of kin in the proportion provided for in the distribution of personal prop- erty left by a person dying intestate. If the person injured had sur- vived and recovered, he would have added so much to his personal estate, which the law, on his death, if intestate, would have passed to his wife and next of- kin ; in case of his death by the injury the equivalent is given by a suit in the name of his representative. There is difficulty in either case in getting at the pecuniary loss with precision or accuracy, more difficulty in the latter than in the former, but differing only in degree, and in both cases the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury. It has been suggested frequently in cases under these acts, for they are found in several of the States, and the suggestion is very much urged in this case, that the widow and next of kin are not en- titled to recover any damages unless it be shown they had a legal claim on the deceased, if he had survived, for support. The two sections of the act taken together clearly negative any such construc- tion, as a suit is given against the wrong-doer in every case by the representative for the benefit of the widow and next of kin, where, if death had not ensued, the injured party could have maintained the suit. The only relation mentioned by the statute to the deceased TELEGRAPHS. 809 essential to the maintenance of this suit, is that of widow or next of kin ; to say, they must have a legal claim on hiin for support, would he an interpolation in the statute changing the fair import of its terms, and hence not warranted. This construction, we believe, has been rejected by every court before which the question has been presented. These cases have frequently been before the courts of Illinois, and the exposition of the act given by the learned judge in the present case is substantially in conformity with those cases. (City of Chicago v. Major, 18 Illinois, 349 ; Chicago and Rock Island Railroad v. Morris, 26 Id. 400 ; 21 Id. 606 ? ; Pennsylvania Railroad Company v. McCloskey, 23 Pennsylvania State, 526 ; Old- field v. New York and Harlem Railroad Company, 3 E. D. Smith, 103). Judgment affirmed. TELEGRAPHS. As the cases relating to the measure of damages for neglect ana mistakes in the transmission of telegraphic messages, which have oc- curred up to 1873, are collected in " Allen's Telegraph Cases," re- ports of such cases are omitted here. The following more recent decisions, however, may be mentioned : One Brown sent a dispatch by the defendants' line to the plain- tiff, asking for $500. By the negligence of the defendants' em- ployees the sum named was changed to $5,000, which the plaintiff sent to Brown, who absconded with it. In an action for damages the referee allowed the amount of the loss. This was held to be wrong ; as Brown's embezzlement did not naturally result from the defendants' negligence (Lowry v. The Western Union Telegraph Co., 60 N. Y. 198). The defendant's business was the collection of messages for trans- mission by telegraph. The plaintiffs gave him for transmission to America, a message in cipher, which was unintelligible to him. He negligently omitted to send the message, in consequence of which the plaintiffs lost a sum of money which they would have earned for com- missions on an order to which the message related. It was held by the learned judges of the Common Pleas division of the High Court of Justice, that the plaintiffs could recover only nominal damages (Sanders and others v. Stuart, L. R. 1 C. P. D. 326). 810 FIRE INSURANCE. FIRE INSURANCE. Fire Insurance; General Average; Contribution. SUPREME COURT, MASSACHUSETTS. [1828] George Welles el al. v. Boston Insurance Com- pany (25 Mass. [6 Pick.], 182). Insurance against fire was made on stock in trade, consisting of cutlery and jewelry, con- tained in a store. A fire happening in the neighborhood, the insured, with the ap- probation of the insurer, procured blankets and spread them on the outside of the store, whereby the building and its contents were preserved, but the blankets were rendered worthless. Held, that this loss was not covered by the policy, but that it was a subject of general average, to which the insurer and insured should contribute in proportion to the amount which they respectively had at risk in the store and its contents. Held also, that buildings in the neighborhood which would have been en- dangered if the store had taken fire, and upon some of which the defendants had made iusurance, were too remotely affected to be liable to contribution. Assumpsit oh a policy of assurance, whereby the defendant caused the plaintiffs to be assured $20,000 on goods, being their stock in trade, contained in store No. 69 Washington street, Boston, against loss by fire, for the term of one year. At the trial, it appeared that a fire took place within the year, viz., in November, 1825, in Court street, near which the store was situated, and that by means thereof the store and its contents were in great danger. The stock, consisting of valuable military imple- ments and jewelry, and such articles as are usually comprehended in a jeweller's stock, was removed to places of security, and the loss and damage happening to it was adjusted and paid. While the fire raged, the store being in imminent danger, and the heat so great as to render it hazardous to continue long in packing up and removing the goods, it was proposed by a witness, who was then aiding in the preservation of the property, to procure blankets to spread on the outside of the store, where it was exposed to the flames. The presi- dent of the insurance company was there, and upon being asked by Welles his opinion of it, said, if it was thought to be useful, he should like to have it tried. Whereupon a bale of blankets was procured by Welles, which, being wet and hung out of the windows, were of essential service in stopping the progress of the flames, and in enabling the persons in the store to remove the goods. From the WELLES v. BOSTON INSURANCE CO. 811 state of the weather and the course of the wind, it was considered by many persons present, that had this building taken fire, the flames would have been communicated to the old State House, in State street, and that then the conflagration would have been very extensive. The defendants were largely engaged in insuring against fire, and at this time there was a subsisting policy for $30,000 on a building near the State House. The cost of the blankets used for the above purpose was $93, and they were so nearly destroyed by the fire as to be wholly worth- less. The plaintiffs paid for them, and demanded from the defend- ants an entire indemnity. The defendants contended that, if they were liable at all, it was only for the proportion which they had at risk upon the policy, taken in connection with the store of which the plaintiffs had a lease for ten years, and the value of the stock over and above the sum insured upon it. The amount of the plaint- iffs' stock at the time of the loss was stated by them at $35,000. The store was estimated to be worth $5,000 and the lease $5,000. On these data the defendants estimated their proportion of the loss by the blankets, and they brought into court, under the common rule, a sum of money exceeding such estimate. If the defendants were right in supposing that they were not- liable for the loss, beyond a fair proportion calculated on the above principles, and in regard to the subjects of contribution, the plaint- iffs were to become nonsuit ; otherwise, &c. In the policy it is provided that the " company shall not be liable for more than the sum insured in any case whatever," — and that, " in case of any loss, the same is to be paid without any deduction." Per Curiam. The defendants refuse to pay the whole of the loss on the blankets, on the ground that they were not included in the policy ; offering however to contribute in proportion to the interest which the parties respectively had at risk. The plaintiffs refuse to accept less than the whole, because they say that the blankets were part of their stock in trade. But there seems to be no founda- tion for this pretension. The plaintiffs can claim, then, only on the ground of a sacrifice made by them for the preservation of the property endangered by the fire, and for a proportion of which sacrifice they are equitably, if not legally entitled to recover. They contend, however, that this is not a case proper for contribution, it being customary on fire poli- cies to pay the whole loss. We believe the practice to be as stated, but as the present claim is not within the contract, it certainly is reasonable that the plaintiffs should bear a proportion of the sacrifice §12 FIRE INSURANCE. made for the common benefit. This decision does not call in question the general principle, that a loss under a policy against fire is to be paid without contribution. But it is said that the plaintiffs and the defendants are not the only parties who ought to contribute, since all the property in the neighborhood, on some of which the defendants had underwritten, was protected by the expenses in question. But it will not do to take so wide a range in the application of the principle of contribu- tion. All the buildings in the city may remotely have been pro- tected, and it would be impossible to draw the line. It is necessary, therefore, to limit the contribution to the building, and the property therein, immediately saved. The money brought into court is suffi- cient to cover the defendants' proportion of the expenses, and the plaintiffs must be nonsuited. Fire Insurance '; Open Policy ; Loss on Property in a Foreign Country ; Merchandise as Distinguished from Property. SUPREME COURT, MASSACHUSETTS. [1863.] Burgess and Others v. Alliance Insurance Com- pany ; Same v. New England Mutual Marine Insurance Company (92 Mass. [10 Allen], 221). If a partial loss occurs upon a policy, for a sum expressed in dollars, made here, upon property situated in a foreign country, the rule for estimating damages is to deter- mine the loss at the place where it occurred, in the currency of that country, and then to find the equivalent in the country where suit is brought, by determining the actual intrinsic value of the currency of that country, as compared with the currency of the other; and it is immaterial, in reference to this, that the policy contains a provision that in case of loss the company shall have the right to replace the ar- ticles lost or damaged with others of the same kind and equal goodness. An open policy of insurance upon merchandise will not cover articles kept wholly or par- tially for use in and about a building, but only articles kept for sale ; but an open policy upon " property " contained in specified buildings will cover articles kept for use as well as those kept for sale. Two actions of contract upon policies of insurance. The first action was upon an open fire policy issued to the plaintiffs, for whom it concerns, by the Alliance Insurance Company, for " any sum not exceeding fifteen thousand dollars in any one place in any one time on merchandise in the buildings and on the wharf occupied by H. R. BURGESS v. ALLIANCE INSURANCE CO. 813 Bishop, located in Cabarien, Cuba, indorsements to be reported to this company at the close of each month. Liberty to have other in- surance." This policy was indorsed as follows : " 1864 Jan. 1. 1 mo. to Feb. 1, '64. $15,000 \ 37.50." The second action was upon two open fire policies issued to the plaintiffs, for whom it concerns, by the New England Mutual Ma- rine Insurance Company, one of which was for ten thousand dollars, " on property contained in buildings, sheds, yards and wharf in the ports of Cienfuegos and Cabarien, Cuba. Liberty of other insur- ance ; " and the other was for five thousand dollars on the same sub- ject. The first of these policies was indorsed as follows : Date. Amount. Rate. Premium. Situation. Time. 1864, Jan. 5. 10,000. \ 25,00 Cabarien. 1 mo. to Feb. 5, '64. The second was similarly indorsed for $5,000, for one month from December 28th, 1863. All of the policies contained the following provision : " And the assured further covenants and agrees that, in case of loss or damage, the said company shall have the right to re- place the articles lost or damaged with others of the same kind and of equal goodness, at any time after sixty days after notice of any loss." The cases were reserved in this court upon the following agreed statement of facts : " The defendants made to the plaintiffs the policies declared on. and a part of the property mentioned in the policies was destroyed by fire at Cabarien on the ninth day of January, 1864, and the de- fendants received due notice and proof of the loss. At the time of the insurance and of the loss, and at the time when the loss became payable, the value, at said Cabarien, of the property destroyed, was twenty thousand seven hundred and twenty-nine and -j 5 -^ dollars in the currency at Cabarien, and the currency of Cabarien was gold and silver ; that is to say, gold doubloons and Spanish dollars. If with the coined dollars of the United States a purchase of exchange on Cabarien could be made here at par, the dollar of the United States would be treated as equal to the dollar of Cuba. " The schedule hereto annexed contains a true statement of the property destroyed, and the value of each item thereof at said Ca- barien, in gold and silver as aforesaid ; and all of said property was covered by said policies and the indorsements thereon, provided said policies attached, except the items referred to in the statement signed by H. R. Bishop, hereto annexed ; and in regard to said items the question is left to the determination of the court upon said state- ment, whether the species of property as described in said statement is covered by the terms of said policies. 814 FIRE INSURANCE. " The premiums on said policies were paid at Boston by the plaintiffs in paper currency of the United States. "H. R. Bishop, a resident of said Cabarien, was owner of the property destroyed, and, if parol evidence of the fact would be ad- missible, the plaintiffs effected said insurance as the agents and in behalf of said Bishop ; and the plaintiffs were duly authorized to ef- fect the same, but such ownership was not communicated to the de- fendants or known by them. " The plaintiffs claim that the judgments here should be for an amount which would make good to said Bishop at said Cabarien his said loss ; and that, to effect this, judgments should be rendered for a sum which would have purchased a remittance payable in Cuba to the amount of the plaintiffs' loss at the time when the same was due and payable. " The defendants, among other things, claim that by the terms of the policies they were, if liable at all, only liable to pay the amount of the loss at Boston, without the addition of any premium of ex- change. " If upon the foregoing facts the plaintiffs are entitled to recover, the causes are to be sent to an assessor to ascertain and make up the amount of the judgments, under the direction of the court ; other- wise the plaintiffs to be nonsuit." The schedule annexed contained items, chiefly of sugar and mo- lasses, amounting in all to $20,729 54. The statement of II. R. Bishop as to certain items in the schedule, concerning which special questions were raised, was as follows : " The mast and boom had been taken by me from the lighter ' Don Quixote ' some few months prior to the fire, and were stored for sale, end were not in use or kept for use by me. " The two large molasses-pumps were not attached to the build- ings, but could be and were transferred to different parts of the same building and of different buildings, as I had occasion to use them. " The four water-tanks were not attached to the buildings, but were round and movable, although very large ; they had been re- moved from another place to the place where they were standing when burnt but a few months prior to the fire. " The tanks were kept by us for the purpose of catching water to sell. Of course I used such of the water as 1 needed for my own use, but the greater portion I sold. There is no drinking water at Cabarien, except rain water, which is caught in this way and sold to the inhabitants and the shipping ; principally to the latter. "The two large cars were used by me on a railroad track, con- BURGESS v. ALLIANCE INSURANCE CO. 815 necting my warehouses with my wharf ; they were platform cars and used for hauling freight. I had then offered them for sale, as I had other cars more suitable for my purpose on their way to me. The other car was a small car not used by me, as it was too small for my track, and I had it for sale. " The four large street lanterns were hung on a hook attached to pulleys, so that they could be hoisted and lowered for cleaning and filling. " The stationery was papers, pens, ink and memorandum books, all of which were new and unused. "■ The custom-house book is a printed book of the rates of cus- toms." Hoar, J. — The court are of opinion that only the mast and boom, stored for sale, and the small railroad car, of the articles named in the statement of Bishop, can be considered as merchandise, within the meaning of the policy of the Alliance Insurance Company, and that they are to be so regarded. The word " property " has a much more extended meaning, and that being the word used in the policy of the New England Mutual Marine Insurance Company, we have no doubt that it includes all the articles enumerated in the statement. The principal question is common to both cases, and it is this : whether, in case of a partial loss of property situated in another country, and insured here, in computing the sum to be recovered, anything is to be allowed for the expense of transmitting to that country the sum of money, which, paid there, would furnish an equivalent for the value of the property destroyed by fire ? And we are of opinion that no such allowance can legally be made. In other words, nothing can be added for the cost of exchange in transmitting the funds which are of intrinsically equal value in this country with those which represent the pecuniary measure of the loss in the country where it occurred. The cases of Adams v. Cordis (8 Pick. 260) ; Alcock v. Hopkins (6 Cush. 484) ; Lodge v. Spooner (8 Gray, 166) ; and the recent case of Hussey v. Farlow (9 Allen, 263). are decisive as authorities upon the point in this commonwealth, and we are satisfied with the cor- rectness of the principle in its application to the cases now before us. The argument for the plaintiffs is, that the contract of insurance is a contract of indemnity ; and that an indemnity for the loss re- covered here is such a sum of money as would purchase a remit- tance, which, when collected at the place where the loss occurred, would be an exact equivalent there to the value of the property de- stroyed. And it is urged that this view is sustained by the clause in 816 FIRE INSURANCE. the policy which gives the insurer the right to replace the property destroyed by other property of like kind and equal value. The latter provision is made for the benefit of the insurer, and serves to protect him from an overvaluation. If he elects to avail himself of it, he must of course replace the property at the place of the loss. But in that case he may avail himself of means which he may have there, or which he may procure from any other quarter. The expense he incurs has no necessary relation to the rate of ex- change between the country of the loss and any other country in particular. On the other hand, if he does not elect to repair the loss, the obligation to pay the value of the property in money is not confined in its operation to any country. It may be enforced in any country in which the debtor may be found, or wherever jurisdiction can be obtained of the cause or the parties. There is nothing local about it. The debtor must pay where he is found or can be sued, and the creditor may not wish to transfer the money to the place where the cause of action accrued ; certainly he is under no obliga- tion to do" so. In the same country, the matter is very plain. If a man loses by fire property in New Orleans valued there at $1,000, would it be contended that he would recover a different sum if he sued his in- surer in New Orleans, or in Mobile, or St. Louis, or Boston ? The only difference in principle between such an example and a loss in a foreign country, would seem to be, that the loss is estimated in a different currency from that in which judgment is recovered in the latter case, and in the same currency in the former. Suppose the insurance companies, immediately after the loss occurred in Cuba, had ascertained its amount in Spanish dollars, and had given a prom- issory note for that number of dollars, without specifying the place of payment, would there be any allowance made for exchange if the note were afterward sued in another country ? It is true that the object of a policy of insurance is indemnity to the insured ; but the standard of value used in estimating the amount of the loss may not under all circumstances produce the re- sult of giving an exact indemnity at the place where a judgment is recovered upon the policy. The best practical rule for indemnity seems to us to be, to estimate the loss at the place where it occurred in the currency of that country, and then to find the equivalent in the country where suit is brought by determining the actual intrin- sic value of the currency of that country as compared with that of the other, thus computing the value according to the real par of ex- change. If the market value of exchange be regarded, the amount THE COMMONWEALTH INSURANCE CO. v. SENNETT. 817 to be paid to constitute an indemnity, would depend on the rate of exchange when the debt should finally be collected on the execution. We are aware that the doctrines of this court on this subject are not uniformly approved by text writers, or by other courts, and that a considerable diversity of opinion has prevailed upon it. But it has been sanctioned by those whose opinion is entitled to respect, and best accords with our own judgment of the law (1 Arnould on Ins. 330; Marsh. Ins. [1th ed.] 502-3, note k). The cases will therefore be sent to an assessor, according to the agreement of the parties, to fix the sums which the plaintiffs shall recover in pursuance of the views of the court above expressed. Fire Insurance ; Indemnity ; Stipulations as to ascertainment of Yalue ; Agreement to Eepair or Replace Destroyed Prop- eety. SUPREME COURT, PENNSYLVANIA. [i860.] The Commonwealth Insurance Company v. Sen- nett, Barr & Co. (37 Perm. St. 205). Insurance is a contract of indemnity, in which the parties may stipulate for the manner in which that indemnity shall be made, and the time when it shall be valued ; and when they do so, the law will carry out their contracts, as in other cases, if there be no fraud in either case. Where an open policy of insurance specifies that the damages are to be estimated at the " true and actual cash \alue of the property at the time the loss may happen," the measure of damages is that which was agreed upon by the parties, and it is error to allow the jury to adopt any other rule. The privilege reserved by insurers to repair or replace the property destroyed is a reservation for the benefit of the company, which they may adopt or not, as they think proper ; and therefore the expense of repairing or replacing the property is not a proper rule for estimating the damages. The fact that the property destroyed was patented cannot affect a contract to measure the damages by its value when the loss occurred. Error to the Common Pleas of Erie county. This was an action of debt, brought in the court below by Pardon Sennett, M. P. Barr, Conrad Brown, and J. J. Finley, part- 52 818 FIRE INSURANCE. ners doing business as Sennett, Barr & Co., against The Common- wealth Insurance Company. To a narr. in debt, the defendants filed a special plea, averring concealments and misrepresentation on the part of the plaintiffs, adding the formal pleas of non est factum and nil debet. To this a replication and demurrer was filed, which demurrer was after- wards withdrawn. The plaintiffs then replied to and traversed the defendants' plea, and, on the issue thus made up, the parties went to trial. The plaintiffs below were owners of a number of machines called mowers and reapers, which they had manufactured for sale, and stored in a warehouse at Erie. They were insured against loss or damage by fire by the defendants below, in a policy in the usual form, in the sum of $3,000. The policy was dated May 25th, 1857, and was for the term of six months. On the 25th of Novem- ber, 1857, the policy was renewed by J. J. Lints, agent of defend- ants, for a further period of six months. On the night of the 10th of February, 1858, the property insured was totally destroyed by fire. On the trial, the defendants offered to show, by Matthew Dick- son and others, that the kind of machine known as Danforth's reaper and mower, and manufactured by the plaintiffs, and being the same kind of machine insured and destroyed, were of little or no value — were worthless as an agricultural instrument, or for any other use or purpose — and that they had no value, save as mere wood and old iron — and that the machines were worthless both on account of defects in construction, and in the principle of the machines themselves. To this the plaintiffs objected, but the court said : " We will admit evidence to show that the machines could be manufactured at a less price than the jDlaintiffs' witnesses say they were made and sold for, or that the plaintiffs knew, when making them, that they were worthless in principle, and that they were defective in workmanship, but not that they were defective in prin- ciple, as it was a patented one." To this ruling the defendants excepted. The policy provided, among other things, as follows: "And the said company do hereby promise and agree to make good unto the said assured, their executors, administrators, or assigns, all such im- mediate loss or damage not exceeding the sum hereby insured, as shall happen by fire to the property above specified — the said loss or damage to be estimated according to the true and actual cash value of the said property at the time the same shall happen." THE COMMONWEALTH INSURANCE CO. v. SENNETT. 819 The defendants requested the court to instruct the jury as to the measure of damages, that the jury were not to be confined to the evidence of the cost of manufacturing the machines as given by plaintiffs, but might be governed by the actual cash value, as proved by defendants, without reference to the cost of construction. The court refused so to charge the jury, but instructed them that " the value as estimated in the manufacture of each machine, and before it was tried in the field, would be the standard of valuation." And further, on this point, the court said to the jury : " Admitting that many of the machines did not work when they were put to the trial, and this because of a defect in the principle upon which they were got up, and not in the mechanism of them, that would not interfere with the plaintiffs' right to recover according to their estimated or actual value when the insurance was made, unless, as before stated, the plaintiffs were aware of the defect. The asking or selling price would not be the standard of value, for the company would have the option to replace by similar articles or pay the cash, but the cost of construction." The jury found in favor of the plaintiffs the sum of $3,262 50, and judgment having been entered thereon, the case was removed into this court by the defendants, who assigned for error the instruc- tion of the court below, as to the measure of damages. The opinion of the court was delivered, October 25th, 1860, by Thompson, J. — There is nothing in the policy of the law which abridges the right and power of parties to a contract of insurance from stipulating in regard to the mode and manner of estimating or valuing a loss when it shall occur, or as to the time which shall be the period of the valuation of the property destroyed, or such other matters within the scope of a fair transaction as they may see proper. Insurance is a contract of indemnity, and if the parties stipulate for the manner in which that indemnity shall be made, on the con- tingency of liability, it is their right to do so, and the law will carry out their contracts as made, if there be no fraud in them, as in other cases. Trask v. The State Fire & Marine Ins. Co. (5 Casey, 198) ; North-Western Ins. Co. v. Phoenix Oil & Candle Co. (7 Casey, 448). Mr. Phillips, in his Treatise on Insurance, chap. 1, § 3, says : " The indemnity intended in insurance is not the putting the party insured into as good a condition as he would in fact have been if no loss had happened ; it means the repayment of the expense incurred, and the payment for as much of the insured subject as is lost, at its market value, or its value as agreed upon in the policy." The policy in this case was an open one, as contradistinguished 820 FIRE INSURANCE. from' a valued policy, and in it the parties have chosen to fix for themselves the standard of valuation, and have stipulated that it should be the " true actual cash value of the property," and the time for ascertaining such value to be the date of its injury or de- struction by fire. Now, unless it can be shown that they had not the right so to contract, or have used terms possessing some other than their ordinary meaning and import, this basis for estimating the loss thus established must control and govern. It is the law of the contract established by the parties themselves. Nothing has or can be shown, we think, to countervail their right so to contract in regard to the subject-matter mentioned, or which controls the or- dinary meaning of the terms used by them, This has not and can- not be done. The contract is so plain that interpretation is not needed to arrive at what was meant. The parties meant only what they have plainly said ; and it was a plain mistake to disregard the language used, and construe the contract as if no stipulation existed. It is usual, in the absence of a stipulation in marine insurance, to value the goods lost and covered by an open policy, as of the time of the commencement of the risk, and this was the nature 6f the insur- ance treated of by Mr. Phillips, as cited by the counsel for the de- fendant in error. I will not attempt to point out the distinctive differences in this respect between marine and fire insurances, and wherein they con- sist. If we were dealing with a policy in which no stipulation ex- isted for determining when or how the valuation should be made, and the question were to be determined by principles of law ex- clusively, we might be required to look more closely to them. But such is not the case here. The parties have made the law of this contract in this particular for themselves, and we must administer it. They have covered the whole ground. The case of Niblo v. The North American Ins. Co. (1 Sandf. 558), has no possible bearing on the point in question. There the policy contained no stipulation such as we find here, and the court allowed the full value of the tenement insured, without regard to the extrinsic circumstance that it was to be removed within fifteen days. They held that perad venture the lease of the ground might be renewed, or the insured might sell it to the owner of the ground, or its value might not be impaired by removing it to an adjacent vacant lot. Intrinsically it was not impaired by the circumstance that the ground lease was soon to end. Such had been the doctrine laid down in Laurent v. The Chatham Fire Ins. Co. (1 Hall. 41). THE COMMONWEALTH INSURANCE CO. v. SEXNETT. 821 Such cases as these are good enough law where they belong, but furnish no rule where the parties have fixed a law for themselves. These views apply as well to the restricted operation of the testi- mony received, as to the ruling in answer to the defendant's eleventh point. There was error in both. The option to replace the machinery, if destroyed, was a reserva- tion for the benefit of the company ; they were not bound to adopt it. "What it would cost to replace it, was, therefore, not to furnish the rule for the damages which the company must pay to make good the loss. If this were to be held, it would be equivalent to enforc- ing the option as an obligation. It is stated, in Angell on Insurance r injury by backwater caused by dam, 694. for contaminating well, 700. against co-tenant of ferry, for share of earnings, 709. CATTLE. See Animals. CHARTER PARTIES, damages in actions on, 111. CHECKS, damages of depositor against banker for refusal to pay, 453, 460. CIVIL LAW, rule of damages under, for breach of contracts relating to personal property, 240. 830 GENERAL INDEX. COLLECTION, agent for, damages against, for negligence, 393. COLLISION, actual damages only allowed, no profits, 773. who was in fault for, a question for the jury, 773. measure of damages in cases of, 777 »., 785, 793 n. compensation for loss of use of sunken boat, 778. for raising and repairing sunken boat, 778, 785. allowance of counsel fees in actions for, 785. rule of damages where both vessels are in fault, 789, 793 n. recoupment of damages, cross libel, 789. division of loss where both vessels are in fault, 789, 793 n. allowance of costs in actions for, 789. allowance of costs of repairs, 793 n. expenses in retaining crew after, 793 n. in attempting to save cargo, 793 n. COMMON CARRIERS. See Carriers. COMPENSATION of officer, recoverable for intrusion into office, 711. as rule of damages, see Compensatory Damages. COMPENSATORY DAMAGES, must be full indemnity, in action of tort, 561. are the measure in actions for conversion of stock, 613. in case, for injury to freehold, 662. for injury from defect in highway, 685, 709 n. CONCURRING NEGLIGENCE, effect of, in action for personal injuries, 703. CONSEQUENTIAL DAMAGES, not usually recoverable, 165. directly caused by breach of contract, recoverable, 165. when recoverable on contracts, 284. against carriers, 126. carriers of passengers, 152. not allowed for breach of covenants in deeds, 3. as to counsel fees, 4, 747, 752. are recoverable for dishonoring money order, 463. for breach of warranty of seed measured by value of ordinary crop, 533, 540. in trespass for destroying dam, 657. in actions for personal injuries, 703, 708 n. exemplary damages recoverable in actions for, when, 744. CONSIDERATION MONEY, fixes the damages in cases of eviction, 40 w., 85 n., 86 n. recovery of, on breach of covenant of seizin, 28. CONSIDERATIONS other than money, 97. for contract not to practice medicine in a town named, 444 n. CONTRACTS to convey lands, 1, 36 »., 40, 45, 86 n., 87. where vendor has no title, 3, 45. real damages in, as against vendee, 34. GENERAL INDEX. 831 CONTRACTS - con tinned. for sale of personal property, 220 et seq. for delivery of property in future, 258. for exchange of lands, 87. for carriage of goods, 99 el seq., 123, 196. parol contract to cultivate farm, 226. to build and deliver ship by certain date, 258. to deliver engine for a speciric purpose, 269. measure of damages for not delivering goods pursuant to contract of sale, 316. for delivery of coal in monthly portions, 325. for article to be manufactured, 331. for several deliveries, 325 et seq. breach of, before time for complete performance, 336. of sale, general rule for measure of damages in actions on, 347. alternative contract, measure of damages for breach of, 357. to build ship according to specification, 363. deviation by consent, measure of damages in case of, 371. executory, actions on, 375. for work, acceptance of incomplete performance of, 375. implied obligation of one party to suffer the other to perform, 377. unauthorized ; damages for breach of implied warranty of author- ity, 384. of hiring ; damages for breach of, 407. stipulation to pay sum in gross, for breach of, 427. for liquidated damages, sufficiency of, 432, 435 n. in restraint of trade, 441, 444 n. to pay money, 453 et seq., 499. to pay in speciric articles, 490 n. damages for breach of implied, 453. to honor money order, damages for breach, 463. acceptances, 475 to support another for life, damages on breach, 507. unconscionable contracts, 511. CONTRIBUTORY NEGLIGENCE. See Concurrinq Negligence. CONVERSION. See Trover. CONVEYANCES, breach of contract to convey, 1, 3,4,14,34,40,45, 85 »., 87. breach of covenants in, see Covenants. CORPORATIONS, exemplary damages for willful acts of agents of, 746 n. COSTS, when recoverable in cases of warranty, 4, 526, 528 n. liability of vendor for, on eviction of purchaser, 4. in actions against carriers, 211. of litigation undertaken in consequence of implied warranty of authority to contract, 384. 832 GENERAL INDEX. COSTS — continued. of former action for breach of covenant, when recoverable, 490. of improvident defense, not recoverable, 526. COUNSEL FEES, when not allowed, 10 n. in ejectment suit, 4. in Massachusetts, 10 n. allowed to plaintiff in action for destroying dam, 747. in actions on warranty of title, 528 n. not allowed in action for infringement of patent right, 751 ft. or in action for flowing lands, 751 n. allowed in action for obstructing highway, 752. COVENANTS, to do particular acts, 90. against incumbrances, 11, 36, 90. for quiet enjoyment, rule as to, 4, 11, 40 ft. in respect to leases, 85 ft., 86 n. of seizin, 4, 14, 28, 97. of warranty, 40 n. where title fails in part, 28. in conveyances, 1. for title, 4. to pay mortgage, 90. of right to convey, 97. to discharge incumbrance by a certain day, 90. of principal, to pay note, damages of surety for breach, 420. to pay money in gross for breach of contract, damages for breach, 427. to pay liquidated damages on breach, sufficiency of, 432, 435 ft. release of part performance of, 435. not coupled with condition, 435. liquidated damages for breach of divisible, 441. in restraint of trade, 441, 444 ft. liquidated damages for breach of uncertain, 444. interpretation of covenant for liquidated damages, 3, 449 ft. to repair ; costs of former action, 490. by grantee of right of way, to repair gate, 493. not to furfeit life policy, damages for breach by insured, 496. of lessee, to pay taxes, breach of, damages on, 502. to support another for life, damages on breach of, 507. measure of damages on breach of, on sale of horse, 526, 529, 531 ft. of seed, 533, 539 ft., 540. of diseased cattle, 545, 546 ft. on sale of corporate stock, with warranty of value, 546. CUSTOM, evidence of, to limit recovery of freight, 111. GENERAL INDEX. 333 DAMAGES, under the modern civil law, 240. general theory of measuring, 126, 136, 240, 269, 275, 347. substantial, when allowed for breach of contract, 275. for breach of contract to convey land, 1, 3, 36 n., 40, 45, 85 n., 86 n. in trespass, for mesne profits, 1, 4. must be certain, 269. and within contemplation of the parties, 126, 269, 293, 302. as to covenants of warranty, 3, 4. in cases of evictiou, 3, 4. on covenant for quiet enjoyment, 4, 14, 21, 40 n. on covenant of seizin, 4, 21, 28, 45, 97. * on covenants in leases, 86. measure of, as to contracts generally, 136. on sales of chattels, 220 el seq. as against common carriers, 99 el seq. on refusal of vendee to receive deed, 34. for breach of contract to exchange lands, 87. for breach of covenant to discharge incumbrance, 90. for non-delivery of goods sold, 316. for delay in delivery. 325. measure of, for refusal to deliver, under contract for several deliv- eries, 336. when penalties recoverable as, 350. measure of, for breach of alternative contract, 357. abatement of, for insufficient performance, 363. measure of, where work is stopped by defendant, 377, for breach of implied warranty of authority to make contract, 384. measure of, against collecting ngent, for neglect, 393. against factor for unauthorized sale, 302. on money loaned on stock fraudulently issued, 406 n. measure of, for wrongful discharge of servant, 407, 415. of surety against principal, for breach of covenant to pay note, 420. measure of, in case of partial loss in marine insurance, 421. liquidated damages generally, 427 etseq. See Liquidated Damages. stipulation for liquidated, where actual are uncertain, 435. nominal, for breach of implied contract to pay cheek, 453.' substantial, for dishonoring cheek, 460. consequential, for dishonoring money order, 463. for breach of contract to honor acceptance, 475. measure of, in actions on notes payable in specific articles, 481, 490 n. measure of, for breach of covenant to repair gate, 493. for breach of covenant not to forfeit life policy, 496. for breach of contract to pay as distinguished from contract to indemnify, 499. against lessee on breach of covenant to pay taxes, 502. 53 834 GENERAL INDEX. DAMAGES — continued. for breach of covenant to support another for life, 507. allowance of what is fairly due on unconscionable contract, 511. where article delivered fails to conform to vendor's representa- tions, 513. artificial market value not measure on non-delivery of goods sold, 515. for breach of warranty on sale of horse, 526, 529, 531 n. on sale of cabbage seed, consequential damages, 533, 539 n. turnip seed, recovery of loss of profits, 540. on warranty of diseased cattle, vendor knowing vendee's intention of placing them with other cattle, 545, 546 n. on warranty of value of corporate stock sold, 546. speculative, not recoverable to cover loss of possible gain, 584. for conversion by agent, 588. measure of, in actions for recovery of personal property, 597. measure of, for conversion of stocks, 606, 613, 623 n. hypothetical, not recoverable, 620. for conversion of property sold by vendor after payment of price, 624. in other cases of conversion, 624, 625, 627, 631, 634, 640, 646, 649 n. mitigation of, on restoring property converted, 625. measure of, against lessee of sheep, for conversion of wool, 627. expenses of bailor, in search for property wrongfully taken from bailee, 630. in trover, for deprivation of possession, 631. in action by pawnbroker, for conversion of pledge, 640 n. for refusal to deliver to vendee, who has re-sold, 646. mitigation of, in action fur conversion of grain, 649 n. for value of use, in addition to value of property, in replevin, 650. in action against sheriff for escape, 654. consequential, for destroying dam, 657. for continuing nuisance, 658. in case, for injury to freehold, 662. for land taken for municipal purposes, 667. for negligent repairs by landlord, 670. against railroad company, for negligent burning, 674. in trespass, for mining coal, 677, 684 n. in trover, for coal mined, 679. against town, for defect in highway, 685. for flowage, allowance for benefit, 692. for injury to plaintiff's land by building dam, 694. for contamination of well, 700. against railroad company, for injury to passenger, 703. against co-tenant of ferry, for share of earnings, 709. for intrusion into public office, 711. GENERAL INDEX. 835 DAMAGES— continued. for violation of trade-mark, 716. for infringement of patent, 718. special, for slander, 720, 722, 725, 736 n., 737. excessive, against corporations, 738. criminal punishment no bar to exemplary, 741. exemplary, in action fur consequential, 744. costs and counsel fees, 747 et seq. for breach of promise, 757, 760, 766. for seduction, 757, 760. for collision, 773 et seq. for injuries causing death, 793 et seq. against telegraph companies, for negligence, &c, 809. after suit brought, when recoverable, 709. DEATH, statutory action for injuries causing, 793 et seq. measure of damages in, 793, 795 n., 803. recovery for loss of service, 793. for funeral expenses, 793. prospective loss, 796. pecuniary value of a mother's care, 796. evidence in action for causing, 796. right to sue, of widow or next of kin, 803. DEBTOR AND CREDITOR, application of payments, right of debtor to direct, 427. DECEIT, damages for, in sale of soap-stone quarry, 553. in sale of partner's interest in firm property, 559. in exchange of cattle, 559 n. DEEDS, damages for breach of covenants in, 1, 28. DEFECTS in highway, damages against town for, 685. DELAY of carrier, damages for, 138, 145, 151 n., 165, 177, 194. of carrier by sea, 182, 182 n. in delivering coal in monthly portions, 325. in delivery of articles to be manufactured, damages for, 350. DELIVERY, rule of damages for non-delivery of goods, 170, 220, 264 n., 316. of coal in monthly portions, 325. waiver of delay in, of goods sold, 325. several deliveries, 325 et seq. damages for delay in several deliveries, 350. DETENTION of goods by carrier, 181 n. of property replevied, value of use as damages, 650. of passengers by carrier, 152, 155. DEVIATION from contract, by consent, 371. DISCHARGE of servant, damages for wrongful, 407. duty to seek other employment, 415. S36 GENERAL INDEX. DURATION OF LIFE, competency of, Northampton tables as evidence of, 507. DUTY of party to contract to reduce or prevent loss, 165, 238. of carrier, in emergency, 182. of discharged servant, to seek other employment, 415. breach of, by agent, measure of damages for, 588. EJECTMENT, damages in, 1, costs of, recoverable in action for mesne profits, 4. ELECTION of form of action for work and labor, 371. on executory contract, 375. between suit for penalty and action for breach of bond, 449 n. EMINENT DOMAIN, valuation of land taken by municipal corporation, 667. EQUITY, rule of damages in, in suit for infringement of patent, 718. ESCAPE, damages for, against sheriff, 654. evidence in mitigation, 654. EVICTION, damages for, 4. under the civil law, 240. in New York, 4, 85 »., 240. from demised premises, 85 n. damages for partial, 28. EVIDENCE of consequential injury, 152. in aggravation and mitigation, 104. as to value, 104, 220. of inconvenience to business arising from breach of contract, 284. of seller's knowledge of buyer's intent to resell, 302. in action for delay in delivery of goods sold, 325. in action for breach of contract for several deliveries, 336. of value of goods sold contrary to instructions, 402. competency of Northampton tables as to probable duration of life, 507. of value, when price paid is, 553. to fix value in actions for conversion of stocks, 606. in mitigation of damages in action for escape, 654. in action for removing eaves of plaintiff's house, 658. in case, for contaminating water-course, 662. in case, for injury caused by dam, 694. in case, for contaminating well, 700. of criminal punishment, not admissible to mitigate damages in ac- tion for assault, 741. of seduction, in breach of promise, to aggravate damages, 757. of defendant's wealth, in breach of promise, 760. of intercourse with other men, 760, 766. in mitigation of damages in breach of promise, 766. GENERAL INDEX. 83T EXCESSIVE DAMAGES, in action against railroad company for injuries to employee, 738. EXCHANGE OF LANDS, damages for breach of contract to exchange, 87. EXECUTORY CONTRACTS, liability of vendor for breach of, 40. for work and labor, abandonment of work, 375. EXEMPLARY DAMAGES, for servant wrongfully discharged, 407. for injuries from defects in highways, when not allowed, 685. criminal punishment of defendant no bar to recovery of, 741. by what rule estimated in actions founded on malice, 743 n. when granted in actions for consequential damages, 744. for willful or negligent acts of servants, 746 n. in actions against carriers, 747 n. for injuries to passengers on railway trains, 747 n. for injuries occasioned by collision, 747 n. in action for tearing down dam, 747. in actions for breach of promise, 757 et seq. EXPENSES, right to recover sustained, 275, 309. in actions on contract, 264 n., 275. arising from breach of contract to repair mill, 264 n. from defect in chattel purchased from plaintiff, 240. from want of punctuality in delivering threshing machine, 275. in handling goods after partial loss, what allowed, 421. what recoverable in action on letter of credit, 475. prospective, on breach of contract to support another for life, 507. of protecting vendee's rights under warranty, when recoverable against vendor, 526, 528 n. reward paid for restoration of property converted, 625. of bailor, in search of property w T rongfully taken from bailee, 630. of mining coal, not allowed in trespass for mining it, 677. of being cured, in action for personal injuries, 703. of replacing dam taken down, 747. for repairs of vessel injured by collision, 778, 785, 793 n. FACTOR. See Principal and Agent. FAILURE OF TITLE, partial. 28. loss of bargain not recoverable, 3, 45. even though vendor knew he had no title, 79. FALSE REPRESENTATIONS, what recoverable as damages for, 549. FEELINGS. See Mental Suffering ; Pain. FIRE INSURANCE, contribution, 810. general average, 810. limit of contribution, 810. remote loss, 810. open policy of, 812. 838 GENERAL INDEX. FIRE INSURANCE— continued. rule for estimating loss payable in dollars on policy made here on property abroad, 812. merchandise as distinguished from property, 812. parties may stipulate how indemnity shall be made, 817. the measure of damages agreed on by parties is binding, 817. expense of repairing and replacing property not proper rule for estimating damages, 817. contract to measure damages not affected by the circumstance that the insured property is patented, 817. contract to have goods insured means, in the absence of controling testimony, contract to insure at their value, 822. such value, in case of loss, is the measure of damages, 822. FLOWAGE OF LAND, allowance for benefit in action for, 692. actual indemnity for damages caused by the rule, 692. defendant prevailing, not entitled to counsel fees, 751 n. FLUREAU v. THORNH1LL, criticisms on, 49 et seq. FORBEARANCE of buyer of goods, at seller's request, 316. FRAUDS, English statute of, as to sales of chattels, 316. fraud as a defense, 375. rule of damages in case of false representations in sale of chattels, 513, 549. proximate damages, costs, &c, 549. FREEHOLD, damages for injuries to, G62. FREIGHT, measure of damages in action to recover, 111. loss from increase of, by delay in delivery, 325. FUTURE DAMAGES. See Prospective Damages. GAS COMPANIES, damages for refusal to furnish gas, 284. measure of damages against, for contaminating well, 700. GOOD FAITH, nominal damages against vendor, on ground of, in case of failure of title, 449 n. 'GOODS, measure of damages for non-delivery of goods sold, 316. measure of damages in suits on notes payable in, 481. 490 n. depreciation of through carrier's fault, 182. HADLEY v. BAXENDALE, rule in, 126, 196, 262 »., 265, 275. extent of notice required by, 138 n. does not apply to covenants in deeds, 136. rule in, as to remote damages, deemed too strict, 463. HEALTH, damages for injuries to, from neglect of carrier of passengers, 155. injury to, not ground of special damages in slander, 730. See also Mental Suffering ; Pain. GENERAL IXDEX. 839 HIGHWAYS, damages against town, for defects in, G85. rule of damages under New Hampshire statute, 685. damages of husband for injury to wife, loss of service, 709 n. recovery over, by town, for defending suit for obstructions, 752. HOPKINS v. GRAZEBROOK, rule cf damages in, disapproved, 78 et seq. HORSES. See Animals. HUSBAND, damages for loss of service, injury of wife, 709 n. for slander of wife, 737. ILLNESS, caused by carrier's delay, 155. not ground of special damages in slander, 730. IMPLIED CONTRACTS, damages for breach of, 453. IMPROVEMENTS, when allowed for breach of covenant for quiet en- joyment, 14, 22, 25, 28 n. when allowed in trespass for mesne profits, 28 n. when allowed for in case of eviction, 14. valuation of land taken for public, 667. INCUMBRANCES, covenant against, 11. rule of damages as to, 11, 36. damages for breach of covenant to discharge, 90. for breach of covenant against, in New York, 36. nominal damages, 11. INFANTS, damages for personal injuries to, 708 n. loss of service an element of damages, 708 n. INJURY, damages for actual, in case of cattle damage feasant, 493. to real property, 657 et seq. damages for permanent, from continuing nuisance, 662 n. remote damages not recoverable for unintentional, 662. to leasehold, damages for, 670. to land, by mining coal, 679. damages for, against town for defect in highway, 685. to plaintiff's land, by building dam, 694. to personal property, different measures of damages, 700. to business, by negligent construction of sewer, 703 n. to the person, caused by negligence, 703, 708 n. continuing, damages after suit brought, 709. to trade or business, ground of special damages in slander, 736 n. damages for, in actions for collision, 773 et seq. causing death, damages in actions for, 793 et seq. INSTRUCTIONS, breach of by agent, damages for, 402. to jury as to computing damages, 662, 700. INSURANCE, breach by insured of covenant not to forfeit life policy, dam- ages for, 496. recovery of, no bar to action against railroad for burning build- ing, 674. 84:0 GENERAL INDEX. INSURANCE— continued. Insurance, marine. See Marine Insurance. Insurance, fire. See Fire Insurance. INTENT of parties to stipulation for liquidated damages, 435,449 n. to commit rape, action for assault with, 741. INTEREST, in case of breach of covenants for title to real estate, 4, 36, 40 n. in case of sales of chattels, 220. on purchase money of real estate, 4, 40 n., 86 n. in case of breach of covenant to discharge incumbrance, 90. on money loaned on stock fraudulently issued, 406 n. on accounts stated, and liquidated sums, 525, 526 n. may be computed up to time of entry of judgment, 526 n. recoverable on value of converted, lost, or destroyed property, 526 n. upon market value of property replevied, 597. on value of stocks converted, 606. INTERMEDIATE VALUE, rules of higher, in actions for conversion, 561 el seq. in conversion by agent, 588. INTRUSION INTO PUBLIC OFFICE, measure of damages against in- truder, 711. whole salary recoverable, 711. JUDGMENT, by default, in action for breach of alternative contract, 357. in former action, when no bar, 493. against insurers, no bar to suit against railroad company for burn- ing building, 674. JURISDICTION, of admiralty, in collision cases, 773 et seq. to allow counsel fees, costs, &c, 747 et seq., 785, 789. JURY, province of, in measuring damages to personal property, 700. what may consider in slander, 738 n. duty of, in estimating exemplary damages, 743 n. may consider motive in action for willful negligence, 744. no right to consider whether verdict will carry costs, 747. cannot give counsel fees in action for infringement of patent, 751 n. or for overflowing lands, 751 n. duty of, in actions for breach of promise, 757 et seq. LADING, bills of, damages on, 182. LAND, valuation of, taken by municipal corporation, 667. measure of damages for trespass on, 657, 662 n. for nuisances in respect to, 658, 662 n. damages for failure of title to, 3, 28, 36 n., 45. trespass for mining coal in, 677, 684 n. trover for coal mined in, 679. GENERAL INDEX. 841 LAND — continued. action for flooding, allowance for benefits, 692. for injury to, by building dam, 694. LANDLORD AND TENANT, damages of tenant, on landlord's failure to give possession, $6 n. or make repairs, 86 n., 490. damages on breach of lessee's covenant to pay taxes, 520. trover against lessee of sheep, for conversion of wool, 627. damages against landlord for negligent repairs, 670. LEASES, covenant of quiet enjoyment implied from, 85 n. damages for breach of, 85 ?i., 86 n. lessee's action for value of lease after eviction, 85 n. damages for breach of covenant to repair, 490. damages of lessee for injury to leasehold, 670. LETTER OF CREDIT, measure of damages in action on, 475. LIQUIDATED DAMAGES, stipulation to pay gross sum for breach of contract, 427. stipulations of various degrees of importance, 432. for breach of minor and unimportant parts of the agreement, 435 n. stipulations where damages are uncertain, 435. when granted for breach of divisible covenant, 441. for breach of covenant not to practice medicine, 444 n. granted where damages would be uncertain and difficult of accurate computation, 444. for breach of covenant not to disclose secrets of business, 444. when recovery is limited by penalty, 449 n. interpretation of covenant for, 449 n. for breach of stipulation not to publish rival newspaper, 435. LITIGATION, allowance of costs and expenses of, 211, 384, 490, 7A7 etseq. in actions against carriers, 21 1 . LOSS, prevention of, duty of contracting party as to, 165. plaintiff's duty to reduce or prevent, 165, 236. of bargain, in contracts to convey land,when compensated, 3,45, 85 n. remote loss not ground for damages, J 45. direct loss, only, recoverable, 165, 275. of profits, when recoverable from carrier, 170. in market value, from carrier's delay, 181 n. recoupment for loss of profits in action for price of steamboat, 240. direct loss for breach of contract to deliver threshing machine, 275. loss occasioned by refusal of defendant to furnish gas, 284. from increase of freight by delay in delivery, 325. when actual, the measure of damages, 347. how computed in marine insurance, partial loss, 421. of business, caused by dishonoring money order, 463. 84:2 GENERAL INDEX. LOSS — continued. of profits, when recoverable in trespass, 657. by tenant, in consequence of negligent repairs by landlord, 670. what recoverable against railroad company for burning plaintiff's building, 674. of profits of mill, by building clam lower down, 694. of prospective profits, by obstruction of access to place of busi- ness, 703 n. of time, or ability to work, in consequence of personal injuries, 703. of services of person injured, 709 n. of society of husband, in action by wife, for slander, 725, 737. of hospitality of friends, in action for slander, 737. of probable profits, not allowed in collision, 773, 777 n. of use of sunken vessel, in collision cases, 778. MARINE INSURANCE, extent of insurer's liability, partial loss, 421. what will be deemed a loss by sea damage, 421. MARKET VALUE, how determined,"l04, 220. of goods lost by carrier, 104. or delayed by carrier, 177, 181 n. for breach of contract to deliver goods sold, 220. damages where article has no market value, 247, 402. fall in market price, when element of damages, 275. when difference between, and contract price, the measure of dam- ages, 347. how far measure of damages in case of partial loss, in marine in- surance, 421. rule as to, on sales of chattels, 513 et sej. artificial, not measure in case of non-delivery of goods sold, 515. is a question for the jury, 515. compensatory damages in addition to, 561. time of fixing, in case of conversion by agent, 588, 613, 623 n. in action for recovery of personal property, 597. MARKHAM v. JAUDON, rule of damages in for conversion of stocks, overruled, 613. MARRIAGE, action for breach of promise to marry, 757 et seq. MASTER AND SERVANT, damages for wrongful discharge, 407. duty of discharged servant, offer to perform, 415. exemplary damages for negligence of servants, 747 n. MENTAL SUFFERING, is an element of damages in actions for personal injuries caused by negligence, 703. must be immediate consequence of injury, 703. not ground of special damages in slander, 730. GENERAL INDEX. 843 MESNE PROFITS, damages in action for, 1. recovery of costs of ejectment suit in action for, 1. MILL-DAMS, consequential damages in trespass for destroying. G57. in case, for obstructing mill-pond, 662. for back water stopping mill, 694. exemplary damages for tearing down, 747. MITIGATION OF DAMAGES, as to common carriers, 101 et seq. where full damages would be ruinous, 125. where goods are delivered to owner, 101. against agent, for failure to collect, 393. against factor, for unauthorized sale, 402. in trover, by restoration of property, 625. other grounds ©f, in trover, 631, 640, 649 n. in action against sheriff, for escape, 654. in trespass, for mining coal, 677. allowance for benefit to land, in action for flooding, 692. in action for intrusion into public office, 711. action for assault, criminal punishment not evidence in, 741. in action for breach of promise, 760. MONEY LOANED on stock fraudulently issued, by railroad company, damages for, 406 n. interest on account stated for, 525. MORTGAGE, damages for breach of covenant to pay, 90. MOTIVE, subsequent acts of defendant as proof of, in action for slander, 738 n. may be considered in fixing damages in actions fur injuries occa- sioned by negligence, 744. MUNICIPAL CORPORATIONS, estimation of value of land taken by, 667. damages against, for negligent construction of sewer, 703 n. NEGLIGENCE, in transporting goods, 101, 104, 177. of carrier of passengers, 152, 703. of carrier by sea, 182, 182 n. of collecting agent, damages for, 393. damages against sheriff, for escape, 654. of landlord, in making repairs, damages for, 670. of railroad company, in burning plaintiff's building, 674. personal injury caused by, damages for, 703. effect of concurring negligence, 703. special damages for, 703, 708 n. exemplary damages recoverable for willful, 744. liability for injuries by, causing death, 793 el seq, NEGOTIABLE PAPER. See Bills of Exchange ; Promissory Notes. S44 GENERAL INDEX. NOMINAL DAMAGES, when recovery restricted to, 145. in actions on covenants against incumbrances, 11, 18 n. in actions against carriers, 125, 145. for breach of implied contract to pay money, 453. when the measure in trover, 634. for failure to transmit telegraphic dispatch, 809. NON-DELIVERY OF GOODS, rule of damages for, 170, 220, 264 n. delay in delivery of coal in monthly portions, 325. artificial market value not measure in action for, 515. NON-NEGOTIABLE INSTRUMENTS, notes payable in specific articles, measure of damages on, 481, 490 n. NOTES. See Promissory Notes. NOTICE, to carrier, of shipper's object, to increase liability, 126, 13S «., 196. to charge party to contract with special consequences of breach, 331. to vendor, of vendee's intended use of chattel purchased, 545. NUISANCES, continuing, measure of damages, 658. for removing eaves of house, 658. repeated actions for, 658, 662 n. OFFICE, damages for unlawful intrusion into, 711. quo warranto against intruder, 711. whole salary of, recoverable, 711. OFFICERS, recovery of salary by, against intruder, 711. quo warranto to try title to office, 711. PAIN is an element of damage in actions for personal injuries, 703. damages for future, may be recovered, 708 n. future, limited to what must necessarily result from injury, 708 n. mental, not ground of special damage in slander, 730. PAROL CONTRACTS concerning land, 220. PART PERFORMANCE, of contract for work, abatement of price for, 363. damages for, when full performance is prevented by defendant, 371,377. recoupment for, in action for price of work, 375. of covenant, release of, 435. PARTIAL EVICTION, measure of damages for, 28. PARTIAL LOSS. See Loss ; Marine Insurance. PASSENGERS, damages for delaying, 152, 155. damages for injuries to health, 155. See, also, Negligence ; Railroad Companies. PATENTS, measure of damages for infringement, 718. recovery of profits in cases of infringement, 718. counsel fees no part of damages in action for infringement, 751 n. GENERAL INDEX. 845 PAYMENT, application of, right of debtor to direct, 427. of money value, whether it satisfies note payable in goods, 481, 490 n. PENALTIES, when recoverable for delay in delivery, 350. when stipulation to pay sum in gross for breach of contract, is a penalty, 427. should be regarded as stated damages, 430 n. distinction between liquidated damages and, 435. relief against, on performance after default, 450. PERFORMANCE, several deliveries, breach before time for complete, 336. of alternative contract, 357. abatement of price for insufficient, 363. damages for preventing plaintiff from performing, 371, 377. part, of contract to build house, 375. implied obligation to permit, 377. incomplete, prevention by other party, 377. offer of, by discharged servant, 415. partial, of covenant, release of, 435. PERSONAL INJURY, mental distress from, compensated, 155. extent of compensation for, 703. loss of bodily and mental powers, 703. medical expenses, 703. damages for future pain or disability, 708 n. loss of future services of infant injured, 708 n. loss of service of wife injured, 709 n. injuries from defective highway, 709 n. PERSONAL PROPERTY, measure of damages in actions for recovery of, 561, 597. for conversion of, 606 et seq. damages for deprivation of right of possession of, 640, 640 n. for injury to, different measures of damages, 700. PLEADING, declaration in action for preventing plaintiff from fulfilling building contract, 377. PREVENTING LOSS, duty of party to contract to reduce damages, 165, 236. of carrier, in emergency, 182. of discharged servant, to seek other employment, 415. PRINCIPAL AND AGENT, damages against agent for breach of implied warranty of authority to contract, 3S4. damages against agent for failure to collect, 393. damages against factor for unauthorized sale, 402. liability of agent for breach of instructions, 40^2. rule of damages in cases of conversion by agent, 588. conversion of stock by broker, 606, 613, 623 n. 846 GENERAL INDEX. PRINCIPAL AND SURETY, on promissory note, damages of surety against principal, 420. PROFITS, principle of allowance of, 247, 269. of vessels, when recoverable, 240, 258. in case of breach of agreement to cultivate farm, 2-6. in action for defects in engine sold, 275 n. when recovered generally, 240, 247. loss of, when allowed in damages, 90, 247, 269, 275 n., 347. loss of, when allowed in cases of sales, 247. loss of, must be contemplated, to be recoverable in contract, 247. loss of, how proved, 90. loss of, for not delivering machine, 269, 275 n. loss of, for not delivering proposal for contract, 145. loss of, on breach of covenant to discharge mortgage, 90. recoupment of, for breach of contract to build ship, 258. contingent, generally, 269. contingent, in actions for price of steamboat, 240. direct, 145. on construction of mill, by reason of steam engine not being fur- nished, 264 n. loss of, by carrier's neglect to deliver shaft of engine, 126. how far recoverable for carrier's delay, 126, T45, 151 n., 170. loss of, in not being allowed to fulfill contract, 371. when speculative, not recoverable, 371. loss of, when recoverable in trespass, 657. in case, for backwater caused by'dam, 694. prospective, when not recoverable, 703 n. now generally allowed for injuries to property, 703 n. recovery of, in cases of violation of trade-marks, 716. what recoverable in action for infringement of patent, 718. probable, not allowed in cases of collision, 773, 777 n. PROMISSORY NOTES, damages of surety against principal for breach ot covenant to pay, 420. payable in specific articles, 481, 490 n. PROSPECTIVE DAMAGES, what, when allowed, 151 n. for failure of title to land sold, 3, 14, 45. on breach of contract to support another for life, 507. not allowed for obstructing access to place of business, 703 n. now generally allowed for injuries to property, 733 n. are proper in actions for personal injuries, 703, 708 n. for injuries causing death, 793 el seg. PROTEST, expenses of, recoverable in action on letter of credit, 475. PROXIMATE DAMAGES, in actions against carriers, 211. what are, in actions for false representations, 549. for injuries from defects in highways, 685. GENERAL INDEX. 847 PUBLIC IMPROVEMENTS. Estimation of value of land taken for, 667. damages for injuries caused by negligent construction, 703 n. PUNITIVE DAMAGES. See Exemplary Damages. PURCHASE MONEY and interest, when measure of damages, 4. in actions for breach of contracts for real estate, 4. for breach of covenants of warranty, 40 n. fixes damages in cases of eviction, 40 n., 85 n., 86 n. for breach of covenant of seizin, 28. QUANTUM MERUIT, in assumpsit for work and labor, 375. for part performance, 375. QUIET ENJOYMENT, rule for breach of covenant for, in New York, 14. in England, 85 n. implied from lease, in New York, 85 n. QUO WARRANTO, damages in, for intrusion into public office, 711. RAILWAY COMPANIES, damages against, for negligence in burning plaintiff's building, 674. for injuries to passengers, 703. damages for future pain or disability, 70S n. excessive damages in actions against, 738. liability of, for injuries causing death, 793, 795 n., 79G, 803. REAL COVENANTS. See Covenants. REAL ESTATE, agreement for sale and purchase of, damages on breach of, 1,3,4, 11, 14. breach of contract to convey, in general, 1, 3. rule of damages in regard to, where no fraud, 3, 45. failure to convey for want of title, 3, 26. trespass for injuries to, damages in, 657 et seq. valuation of, taken for municipal purposes, 667. injury to, by building dam, 6W4. RECOUPMENT, in action for price of steamboat, 210, 264 n. of damages on former trial, 363. in actions for work and labor, 375. RELEASE of part performance of contract, 435. REMOTE DAMAGES, in actions against carriers, 145, 211. on contract to repair threshing machine in time for harvest, 265. on failure to deliver property sold, 309. recoupment of, 264 n. what are, in suit for dishonoring money order, 463. not recoverable for unintentional injuries, 662. RENTS AND PROFITS, recovery of, in ejectment, 1. damages in actions for, 1. costs of ejectment suit, in action for, 1. 84:8 GENERAL INDEX. REPLEVIN, plaintiff entitled to damages on election to take judgment for value, 561. computation of value in, 561. when measure of damages is same as in trover, 561. measure of damages where property is of fluctuating value, 597. damages for value of use in addition to value of property, 650. RESALE, vendor's right of, where price not paid, 230. whether within contemplation of contracting parties, 302. effect of seller's knowledge of buyer's intent to resell, 309. damages on vendee's warranty, on resale of goods purchased with warranty, 526. damages for, as a conversion, 624, 631. damages of vendee, who resells before delivery, against vendor for refusal to deliver, 646. RESCISSION by one party against the other's consent, 371. RETURN of property converted, to mitigate damages, 625. REWARD for return of property converted, an item of damages, 625. RULE OF COMPUTING as to breaches of contract, generally, 269. contracts for real estate, 3, 45. in actions for work and labor, 371. of higher intermediate value, in cases of conversion, 561, 613. computing the damages in replevin, 561. in case of conversion of stocks, 606, 613, 623 n. or other personal property, 624, 625, 627,631, 634, 640, 646. as to land taken for municipal purposes, 667. for injuries from defects in highways, 685. in action for flooding land, 692. for lessening mill-owner's supply of water, 700 n. various rules in cases of injury to personal property, 700. in actions for personal injuries, 703 et seq. estimating exemplary damages, 743 n. in actions for breach of promise, 757 et seq. in actions for injuries causing death, 793 et seq. SALE OF CHATTELS, damages on, as against vendor, 220, 275. vendee, 230. rule in New York, 220. where article is to be manufactured, 230, 258, 264 n., 302. loss of profits on, 264 n. implied warranty of ownership, 51. according to modern civil law, 2i0. refusal of vendee to accept goods, 230. duty of plaintiff to prevent avoidable injury, 236. action for price of steamboat, 240. GENERAL INDEX. 849 SALE OF CHATTELS— continued, allowance to buyer for defects, in action for price, 240. damages where vendor understood a purpose to be intended which was not that intended by vendee, 293. effect of vendor's knowledge of vendee's intent to resell, 309. damages for non-delivery of goods, 316. statute of frauds as to, in England, 316. of coal, to be delivered in monthly portions, 325. waiver of delay in delivery, by receiving goods, 325. damages for refusal to deliver, 336. measure of damages for failure to deliver, 347, 646. damages in actions on warranties, 363. by factor, contrary to instructions, damages for, 402. measure of damages, market value, 513. measure of damages for non-delivery, artificial market value not the measure, 515. of personal property, with warranty generally, 526 et seq, special damage for breach of warranty of horse, 529, 531 n. consequential damages for breach of warranty of cabbage seed, 533, 539 n. recovery of loss of profits for breach of warranty of seed sold, 540. consequential damages on warranty of diseased cattle as sound, 545, 546 n. damages for breach of warranty on sale of corporate stock, 546. in trover, against vendor for wrongful resale, 624, 631. SALE OF LAND. See Vendee ; Vendor. SEDUCTION, under breach of promise, aggravates damages, 757, 760. mitigation of damages in action for, 760. damages for mortification and distress, 757. SEIZIN, covenant of, damages for breach, 14, 17 n., 28, 97. SEIZURE, wrongful, mitigation of damages for, 640. SERVANTS. See Master and Servant. SERVICES, damages under contracts for, discussed, 226. for work according to specifications, 363. recovery on common counts, 371. abandonment of work defeats recovery, 375. assumpsit for part performance, recoupment, 375. implied obligation in contract for, to permit performance, 377. stoppage of work by defendant, 377. constructive, after wrongful discharge of servant, 407. liquidated damages for breach of contract for, 427. SEVERAL DELIVERIES, of coal, in monthly portions, 325, 336. special damages for breach, 331. 54 850 GENERAL INDEX. SEVERAL DELIVERIES— continued. breach before time for complete performance, 336. of articles to be manufactured, 350. damages for delay in, 350. SHERIFFS, damages against for escape of prisoner, 654. mitigation, evidence in, 654. SLANDER, special damages for, 720 et seq. dismissal of plaintiff before end of term of service as evidence of special damages, 720. repetition of defamatory words, 722. whether wife can maintain, for words causing loss of consortium of husband, 725, 737. by trader, for words causing injury to his business, 736 n. for imputation of unchastity, 737. special damages for loss of hospitality of friends, 737. effect of defendant's subsequent acts as evidence of malice, 738 n. SPECIAL DAMAGES, for breach of warranty on sale of horse, loss on resale, 529, 531 n. for refusal to deliver to vendee, who has resold, 646. for personal injuries caused by negligence, 703, 708 n. not allowed on account of plaintiff's calling or profession, 703. in actions for slander, 720 el seq. SPECIFIC PERFORMANCE, when damages granted in action for, 40. SPECULATIVE DAMAGES, not recoverable for unintentional injuries, 662. nor in replevin or trover, 561, 613. STATUTES of frauds, as to sales, in England, 316. of New Hampshire, giving damages for injuries from defects in highways, 685. allowing actions for injuries causing death, 793 et seq. STOCKS, damages for breach of warranty on sale of, 546. measure of damages for conversion of, 606, 613, 623 n. SUBSTANTIAL DAMAGES, of drawer of check, against banker, for dis- honoring it, 460. SURETY. See Principal and Surety. TAXES, damages on breach of lessee's covenant to pay, 502. TELEGRAPH COMPANIES, liability for loss occasioned by error in dispatch, 809. for failure to transmit, 809. nominal damages against, 809. responsible only for damages naturally resulting from default, 809. TIME for delivery of goods, 177. of detention, when recovered for, 152. GENERAL INDEX. 851 TIME — continued. of computing market value of goods sold, 220. damages for failure to deliver goods sold in, 325. for complete performance, breach before, 336. for servant to sue for wrongful discharge, 407. of valuation of property sold under false representations by vendor, 513. to limit inquiry as to market price of property converted, 588. of fixing market value in replevin, 597. of estimating value in case of conversion of stocks, 606, 613, 623 n. of estimating value in trover, 624. of limiting damages in actions for personal injuries, 703, 708 n. may be considered in fixing damages for personal injuries, even though interest not recoverable, 709 n. TITLE, not implied in sale of land, 3, 45, 51. damages for failure of, 3, 28, 36 n., 45. damages for breach of covenants for, 3, 28. nominal damages for breach of implied warranty of, in absence of bad faith, 449 n. to public office, quo warranto to try, 711. TORT, exemplary damages in actions of, 747. action of, against banker for refusal to pay check, 453. case lies for possibility of injury, 459 n. compensatory damages in actions of, 561, 662. right to recover interest, 561. damages for injuries to real property, 657 et seq. case, for injury from building dam, 694. for contaminating well, 700. actions for personal injuries, 703 et seq. allowance of counsel fees in actions of, 747. TOWNS, damages against, for defects in highways, 685. action against, by husband, for injury to wife, 709 n. allowance of legal expenses of defending highway suit, ^52. TRADE-MARKS, measure of damages for violation of, 716. recovery of profits made by defendant, 716. TRANSPORTATION. See Carriers; Railway Companies. TRESPASS, for mesne profits, 1. recovery of loss of profits in, 657. consequential damages for destroying dam, 657. measure of damages in quare clausum, 657 et seq. for continuing, 662 n. for mining coal, 677, 684 n. counsel fees not allowed in, 747. 852 GENERAL INDEX. TRIAL, instructions to jury as to computing damages, generally, 662. in case for obstructing flow of water, 692. for contaminating well, 700. when damages may be computed to time of, 709. TROVER, conversion of goods of retail dealer, retail price the measure of damages, 525. interest recoverable on value of property converted, 526 n. rules of higher intermediate value in, 561, 573. measure of damages in, 571, 624, 625, 631. market value not always exclusive measure, 572. rul-e in New York, 579. conversion by agent, rule of damages, 588. measure of damages for conversion of stocks, 606, 613, 623 n. mitigation of damages by restoring property converted, 625. against lessee of sheep, for conversion of wool, 627. damages for expenses of search for property converted, 630. actual damages in, 634. nominal damages in, 634. what amounts to conversion, 634. in action by pawn-broker for conversion of pledge, 640 n. when full value the measure, 640. for wrongful seizure under judicial process, 640. for mining coal on plaintiff's land by mistake, 679. TRUSTEE, infringer of patent regarded as trustee for patentee, 718. UNAUTHORIZED CONTRACTS, damages for breach of implied war- ranty of authority, 384. damages against factor for unauthorized sale, 402. UNAUTHORIZED SALES, measure of damages for, generally, 613. when made by agent to sell, 402. UNCONSCIONABLE CONTRACTS, allowance of what is fairly due, 511. USE, value of, recoverable in replevin, 650. of freehold, damages for injuries to, 662. of vessel, loss of, in collision cases, 778, 793 n. USURY, what contract is not usurious, payment to avoid penalty, 511. VALUATION of partial loss, in marine insurance, 421. of land taken for municipal purposes, 667. VALUE, market value of goods, how determined, 104. in actions against carriers, 104. at place of delivery, when measure of damages in actions against carriers, 99. of goods sold by factor contrary to instructions, 402. stated in policy, effect of, on insurer's liability, 421. GENERAL INDEX. 853 VALUE — continued. rule as to, in actions on notes payable in goods, 481, 490 n. damages for fraudulent representations as to, 549, 553. price paid as evidence of, 553. rule of higher intermediate, in cases of conversion, 561, 623 n. meaning of the term, with respect to replevin suits, 587. at time of conversion, with interest to trial, the measure of dam- ages for conversion of stocks, 606. or other personal property, 624. measure in trover by pawn-broker for conversion of pledge, 640. of use, as well as of property, recoverable in replevin, 650. diminution of, not measure in action for nuisance to real estate, 658, 662 n. of land taken by municipal corporation, 667. of coal mined, the measure, in trespass for mining it, 677. of coal in place ; where suit is in trover, 679. increased value, when not measure in replevin, 685 n. of continuance of life, in action for causing death, 796, 803. VENDEE of goods, failure of, to complete purchase, 230. of land, measure of damages against, 34. forbearance of, at vendor's request, 316. damages to, in case of non-delivery of goods purchased, 316. waiver of delay in delivery, by receiving goods, 325. forfeiture of purchase money for failure to pay installment, 450. VENDOR of land, measure of damages against, 293. where title wholly fails, 3, 4. damages for refusing to perform, 1, 40. liability for waste pending contract to sell, 40. damages of, against vendee refusing to accept goods, 230. effect of knowledge of vendee's intent to resell, 302, 309. damages against, for non-delivery of goods, 316. knowledge of vendee's intended use of chattel purchased, 545, 546 n. VERDICT, how arrived at in action for contaminating well, 700. not set aside for admission of evidence, under proper limitation, ot contributing cause of accident, 703. how arrived at in action for slander, 738 n. VINDICTIVE DAMAGES. See Exemplary Damages. VIOLATION of trade-marks, damages for, 710. of patents, damages for, 718. WAGES, damages beyond, after wrongful discharge, 407. amount due at time of discharge, the measure, 415. unless plaintiff continuously ready to render service, 415. S>1<& 854 GENERAL INDEX. WAIVER of delay in delivery of goods sold, 325. WARRANTY, how far implied on sales, considered, 45. of title to personal property, 45. consequential damages on, 269, 275 n. rule in Had ley v. Baxendale applied to, 265. damages in actions for breach, abatement of damages, 863. of authority to make contract, implied, damages for breach, 384. nominal damages for breach, 449 n. costs of defending action for breach, 526. special damage for breach, loss of bargain for resale of horse, 529, 531 n. consequential damages for breach of warranty of cabbage seed, 533, 539 n. extent of recovery of profits for breach of, 540. sale of diseased cattle, consequential damages, 545, 546. breach of, on sale of corporate stock, 546. WASTE, by vendor, pending contract to sell, 40, 41, 43 et seq. WATER COURSE, damages for obstructing flow of, 692. for contamination of, 700. WEALTH OF DEFENDANT, evidence of, in action for breach of prom- ise, 760^ WIFE, loss of seivice of, an element of damages in action for personal in- nh * jury to, by negligence, 709 n. slander of, damages for loss of consortium of husband, 725, 737. for imputation of un chastity, causing loss of hospitality, 737. ri»ht of action for causing death of husband, 803. WORK AND LABOR, contracts for, 363 et seq. assumpsit for part performance, recoupment, 375. contracts for, implied obligation to permit performance, 377. pleading in actions for, 877. incomplete performance, stoppage by defendant, 377. liquidated damages for failure to perform, 427. WRONGS, assault, 741. conversion, 561. false representations, 519. injuries causing death, 793. nuisances, 658. seduction, 757. slander, 720. WHOLE NUMBER OF PAGES, 886. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. JUL 2 3 1979 JUL 1 6 198A 41585 (' ^SOUTHERN REGIONAL LIBRARY FACILITY AA 000 836 286 5 1