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 THE LIBRARY 
 
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 THE UNIVERSITY 
 
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 SCHOOL OF LAW 
 
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 asiSKTIfiEWT W
 
 CASES ON 
 
 MEASURE OF 
 DAMAGES 
 
 SELECTED BY 
 
 ISAAC FRANKLIN RUSSELL 
 
 PROFESSOR OF LAW IN NEW YORK UNIVERSITY 
 
 CHICAGO 
 
 CALLAGHAN & COMPANY 
 1909
 
 COPYRIGHT, 1909, 
 
 By 
 
 :ALLAGHAN & COMPANY 
 
 T
 
 PREFACE 
 
 The editor has endeavored to select a list of cases on the law of 
 damages that have a distinct value and adaptability to pedagogic 
 purposes. No effort has been made to furnish materials for briefs 
 or meet the wants of practitioners, who may be pursuing minute 
 and special inquiries. His researches have necessarily covered 
 a wide field, and the matter presented is, in general, in condensed 
 form. The editor makes his acknowledgment of the pre-em- 
 inence of Hadley v. Baxendale by according to that ease the 
 unique distinction of an unabridged report. 
 
 I. F. E. 
 New York University Law School, 
 October 1st, 1909. 
 
 735916
 
 TABLE OF CASES CITED 
 
 [The references are to the pages.] 
 
 Adams v. Popham, 502. 
 Adderly v. Dixon, 72. 
 Aetna Life Ins. Co. v. Nexsen, SO. 
 Ainsworth v. Laking, 645. 
 Albany S. R. R. v. Dayton, 590. 
 Alder V. Keighley, 201. 
 Aldworth v. Lynn, 496, 497, 499. 
 Allen V. Fox, 492. 
 Allen V. Glen Creamery Co., 358. 
 Allen V. Jarvis, 256, 337. 
 Alewyn v. Pryor, 259. 
 Alexander v. Kerr, 20. 
 Allsop V. Allsop, 110, 113, 524. 
 American T. Co. v. Siegel, 360. 
 Amos V. Oakley, 37. 
 Anderson v. Sloane, 83. 
 Andrews v. Booth, 514. 
 Andrews v. Hoover, 605. 
 Andrews v. Keith, 255. 
 Anthony v. N. Y. R. Co., 659. 
 Anvil Mining Co. v. Humble, 121. 
 Archer v. Williams, 199, 624. 
 Armfield v. Xash, 369, 377. 
 Arnold v. Blabon, 359. 
 Ashby V. White, 3, 4, 26. 
 Astley V. Weldon, 175, 185, 186. 
 Ashmore v. Cox, 640. 
 Atchison R. R. v. Thomas, 121. 
 Atkins V. Kinnier, 186. 
 Atkinson v. Bell, 337. 
 Atoka C. & M. Co. v. Miller, 694. 
 Aurora City v. West, 047. 
 Avery v. Ray, 632, 634. 
 Ayres v. D. L. & W., 190. 
 Badostain v. Graside, 512, 673. 
 Bagley v. Peddle. 162. 
 Bagley v. Smith. 238. 
 Bain v. Fothergill, 250. 
 Bailey v. Bailey, 551. 
 
 Baker v. M. R. R. Co., 60. 
 Baker v. Pennsylvania Co., 99. 
 Baldwin v. Porter, 478. 
 Baldwin v. U. S. Tel. Co., 569. 
 Baldy v. Stratton, 560. 
 Ballou V. Farnum, 449. 
 Bait. & O. R. R. V. Carr, 693. 
 Baltimore R. R. v. Baer, 643. 
 Bank v. Bank, 626. 
 Bank v. Marshall, 153. 
 Bank of Commerce v. Goos, 142. 
 Bank of Montgomery v. Reese, 208, 
 
 604, 629. 
 Bannon v. Ins. Co., 562. 
 Barker v. Dixie, 685. 
 Barker v. Lewis, 647. 
 Barker v. W. U. Tel. Co., 581. 
 Barnard v. Poor, 651. 
 Barnes v. Keene. 189. 
 Barnes v. Railroad. 679. 
 Barnes v. W. U. Tel. Co., 581. 
 Barrick v. SchiCferdecker, 496. 
 Bartram v. Stone, 635. 
 Basten v. Butler, 279. 
 Bates V. Warwick, 465. 
 Baxendale v. Railroad, 290, 654. 
 Baxter v. Campbell, 142. 
 Beale v. Hayes. 162. 
 Bealey v. Shaw, 7, 8. 
 Beath v. Rapid R. Co., 121. 
 Beaulieu v. R. R.. 121. 
 Becker v. Dupree, 129. 
 Beckham v. Drake, 367. 
 Bee Pub. Co. v. World, 527. 
 Beeson v. Mining Co.. 4.50. 
 Beisiegel v. N. Y. C. R. R. Co., 49. 
 Bell V. Railway Co.. 106, 113. 116, 
 
 130. 
 Benjamin's Exrs. v. Smith, 435. 
 Bennett v. Gibbons, 136.
 
 VI 
 
 TABLE OP CASES CITED. 
 
 [The references are to the pages.] 
 
 Bennett v. Sweet, 93. 
 
 Benton v. Collins, 685. 
 
 Beuziger v. Miller, 30. 
 
 Beruheiiuer v. Becker, 534. 
 
 Beyer v. Ins. Co., 5(;2. 
 
 Bierbach v. Rubber Co., 83. 
 
 Billings V. Marsh, 93. 
 
 Birchard v. Booth, 495, 636. 
 
 Bird V. Heuipsted, 94. 
 
 Birdseye's Appeal, 62. 
 
 Birmingham v. Railway, 289. 
 
 Bishop V. Journal, 527. 
 
 Bixby V. Dunlap, 132, 142. 
 
 Black V. Baxendale, 196. 
 
 Blackford v. Packing Co., 228. 
 
 Black River R. R. v. Barnard, 590. 
 
 Blake v. Barnard, 508. 
 
 Blake v. Midland Railway Co., 201, 
 
 438. 
 Blanchard v. Baker, 5, 7. 8, 10. 
 Blanchard v. Ely, 75, 77, 78. 
 Block V. Bunnerman. 399. 
 Blood V. Wilkins, 22. 23. 
 Bloomington v. Perdue, 426. 
 Blunt V. McCormick, 496, 497. 
 Blyenburgh v. Welsh, 606. 
 Boardman v. Goldsmith, 639, 681, 
 
 682. 
 Board of Com. v. Arnett, 645. 
 Board of Water Com'n v. Shutts, 
 
 600. 
 Boehrer v. Juergens, 218. 
 Bodley v. Reynolds, 196, 199. 
 Bohm V. Metropolitan R. R., 591. 
 Bolivar v. Neponset, 6. 
 Bonino v. Caledonio, 634. 
 Bonneau v. N. S. R. R., 146. 
 Bonomi v. Backhouse, 42, 43. 
 Booge V. Railroad Co., 369, 378. 
 Boogher v. Bryant, 27. 
 Boorman v. Nash, 67, 71. 
 Booth V. Mill Co., 352, 390. 
 Borradaile V. Brunton, 195, 199. 
 Boston & A. R. R. v. O'Reilly, 413. 
 Botkin V. Miller, 218. 
 Boulard v. Calhoun, 129. 
 Bourdette v. Steward, 27. 
 Bourne v. Ashley, 483. 
 
 Bowas T. Pioneer Tow Line, 210. 
 
 Bower v. Hill, 5. 
 Bowers v. State, 565. 
 Boyce v. Bayliffe, 199. 
 Boydan v. Haberstumpf, 142. 
 Boyd v. Siffkin. 259. 
 Bradlaugh v. Edwards, 528. 
 Bradley v. Wheeler, 315, 471, 472. 
 Bradshaw v. Board, 461. 
 Bradshaw v. R. R. Co., 441. 
 Bragg v. Cole, 278. 
 Braithwaite v. Hall, 94. 
 Brandt v. Bowlby, 196. 
 Brantingham v. Fay, 50. 
 Brass v. Worth, 024. 
 Bratt V. Swift. 121. 
 Brewer v. Dew, 94. 
 Brewster v. Sillimann, 492. 
 Brinkman v. Cotton Oil Co., 121. 
 Bristol Mfg. Co., v. Gridley, 52. 
 British Mill Co. v. Nettleship, 22^ 
 
 258. 
 Brizsee v. Maybee, 486. 
 Brooks V. Harrison, 525. 
 Brooks V. Railway Co., 416, 615. 
 Brown v. Bellows, 178. 
 Brown v. Cummings, 512. 
 Brown v. Evans, 673. 
 Brown v. Asphalt Mfg. Co., 360. 
 Brown v. Smith, 363. 
 Brown v. Weir, 33. 
 Browning v. Jones, 552. 
 Browning v. Simons, 27. 
 Bruske v. Neugent, 511. 
 Bryan v. R. R. Co., 399. 
 Brzezinski v. Tierney, 134. 
 Bullock V. D. L. & W. R. R., 142. 
 Bull V. R. R., 145. 
 Burgoon v. Johnson, 186. 
 Burke v. Melvin, 634. 
 Burrall v. Buskwick R. R. Co., 320. 
 Burrell v. Daggett, 178. 
 Burr V. Burr, 532. 
 Burr V. Plymouth, 135, 136, 509. 
 Burrows v. Marsh Co., 223. 
 Burtis v. Thompson, 370, 372. 
 Burton v. Holley, 80. 
 Burt V. Dutcher, 475.
 
 TABLE OF CASES CITED. 
 
 vu 
 
 [The references are to the pages.] 
 
 Bush V. Cole, 241. 
 
 Bussy V. Donaldson, 604. 
 
 Butler V. Manhattan R. R., 190. 
 
 C. & A. R. R. Co. V. Lewandowski, 
 
 688. 
 Cable Co. v. Lathrop, 572. 
 Callahan v. Chickasha, 679. 
 Caldwell v. Vlcksburg R. Co., 685. 
 Caldwell v. Steamboat Co., 130. 
 Cameron v. White, 31. 
 Campbell v. Car Co., 130. 
 Campbell v. Los Angeles T. Co., 121. 
 Campbell v. Seaman, 506. 
 Canada v. Canada, 335. 
 Canandaigua R. R. v. Payne, 590. 
 Candee v. W. U. Tel. Co., 210. 
 Carney v. Reed, 674. 
 Carpenter v. City of Red Cloud, 145. 
 Carpenter v. Holcomb, 367. 
 Carr v. Miner, 685. 
 Carter v. Wells, 685. 
 Casasa v. N. Y. C. R. R., 145. 
 Cashion v. Telegraph Co., 115. 
 C. B. & Q. R. R. Co. V. Schaffer, 495. 
 Central C. & C. Co. v. Hartman, 228. 
 Central T. Co. v. Clark, 228. 
 Chamberlain v. Chandler, 396, 399. 
 
 Chamberlain V. Lake Shore R. R., 
 145. 
 
 Chamberlain v. Parker, 27. 
 
 Chamberlain v. Williamson, 436. 
 
 Chamberlain v. Morgan, 368, 376. 
 
 Champion v. Short, 278. 
 
 Chapman v. Kirby, 207, 218. 
 
 Chapman v. W. U. Tel. Co., 457. 
 
 Charles v. Lumber Co., 464. 
 
 Chase v. Alaska F. & L. Co., 381. 
 
 Chase v. Allen, 163. 
 
 Chaude v. Shepard, 183, 18.5. 
 
 Cheddick's Executor v. Marsh, 157. 
 
 Chellis V. Chapman, 525, 560. 
 
 Cherbulliez v. Parsons, 145. 
 
 Chesley v. Thompson, 523. 
 
 Chicago & Alton R. R. Co. v. Flagg, 
 403. 
 
 Chicago & A. R. R. v. Lewandowski, 
 
 Chicago & Alton R. R. v. Maher, 
 
 455. 
 Chicago & E. I. R. R. v. Driscoll, 
 
 450. 
 Chicago V. Huenerbein, 120. 
 Chicago V. Lonergan, 600. 
 Chicago & M. R. R. v. Ullrich, 190. 
 Chicago R. R. v. Xolin, 600. 
 Chicago & N. R. Co. v. Scates, 555. 
 Chicago R. R. v. Butler, 121. 
 Chicago V. Tilley, 355. 
 Chicago T. R. Co. v. Gruss, 688. 
 Chicago U. & T. Co. v. Ertrachter, 
 
 679. 
 Cheddick's Executor v. Marsh, 157. 
 Chipman v. Palmer, 502. 
 Chisholm v. Preferred Bankers, 380. 
 Chrysler v. Canaday, 186, 538, 539. 
 Churchill v. Lewus, 552. 
 Cicero & P. R. Co. v. Brown, 688. 
 City of Fort Wayne v. Hamilton, 
 
 656. 
 City of Joliet v. Blower, 630. 
 City of New Britian v. Tel. Co., 186. 
 City of Rock Island v. Starkey, 121. 
 Clare v. Maynard, 65. 
 
 Clark V. Brown, 516. 
 
 Clark V. Clark, 646. 
 
 Clark V. Fitch, 547. 
 
 Clark V. Newsam, 180. 
 
 Clark V. Whittaker, 646. 
 
 Clayton v. Andrews, 332. 
 
 Cleghorn v. Railroad Co., 131, 532. 
 
 Clement v. Cash, 162. 
 
 Clement v. Schuylkill R. R. Co., 158. 
 
 Clements v. Railway Co., 614. 
 
 CliSBOld V. Machell, 130. 
 
 Close V. Crossland, 292. 
 
 C. & M. E. R. R. Co. V. Krempel, 
 120. 
 
 C. & N. W. Ry. Co. V. Hoag, 496. 
 
 Cobb V. Simon, 146. 
 
 Cobb V. Smith, 496. 
 
 Cochran v. Ammon, 97. 
 
 Cochrane v. Com., 659. 
 
 Cockburn v. Lumber Co., 351. 
 
 Cohn V. Norton. 47. 
 
 Colburn v. Woodworth, 378.
 
 VIU 
 
 TABLE OF CASES CITED. 
 
 [The references are to the pages.] 
 
 Cole V. R. R. Co., 397, 402. 
 
 Cole V. Elhvood, 000. 
 
 Collen V. Wright, 289. 
 
 Collins V. De Laporte, 256, 308, 309. 
 
 Collins V. Price, 367. 
 
 Colman v. White, 551. 
 
 Colo. S. R. R. Co. V. Petit, 120. 
 
 Colt V. Owens, 630. 
 
 Col well V. Lawrence, 161. 
 
 Comer v. Taylor, 565. 
 
 Condict V. Grand Trunk R. Co., 421. 
 
 Connecticut Ins. Co. v. R. R. Co., 
 
 446. 
 Cone v.C. R. of N. J., 534. 
 Connelly v. Devoe, 355. 
 Conner v. Henderson, 279. 
 Connor v. State, 416. 
 Cook V. Bartholomew, 449. 
 Cook V. Ellis, 532. 
 Cooke V. England, 496. 
 Cook V. Loomis, 409, 646. 
 Coolidge V. Neat, 564. 
 Cooper V. Elston, 332. 
 Cooper V, Mullins, 403. 
 Cooper V. Randall, 496. 
 Coppin V. Braithwaite, 399. 
 Corcoran v. Harron, 636, 673. 
 Cornelius v. Hambay, 549. 
 Cort V. R. R. Co., 256, 312, 337, 368. 
 Costigan v. The Railroad Co., 365, 
 
 368, 369. 
 Cotheal v. Talmage, 162, 164. 
 Cotton Oil Co. V. Skipper, 120. 
 Cottrill V, Krum, 538. 
 Cox V. Burbidge, 462. 
 Cox V. P. H. & P. Co., 600. 
 Cox V. Walker, 65. 
 Crabtree v. Messermoth, 312. 
 Craft Co. V. Quinnipiac, 133. 
 Craker v. R. R. Co., 398, 402, 458. 
 Crane v. Bennett, 527. 
 Crawford v. Oil Co., 464. 
 Cregin v. B. C. R. R. Co., 4.36, 440. 
 Crescent Manuf'g Co. v. Manuf'g 
 
 Co., 31. 
 Crist V. Armour, 370, 372. 
 Crofoot V. Bennett, 471. 
 Croft V. Alison, 532. 
 
 Crookshank v. Burrell, 299, 332. 
 
 Crowell V. Moley, 218. 
 
 Cruikshank v. Gordon, 138. 
 
 Cud V. Rutter, 629. 
 
 Culver V. Hill, 80. 
 
 Cunningham v. Reardon, 461. 
 
 Currie v. Waverly R. Co., 661. 
 
 Curry v. Sandusky F. Co., 228. 
 
 Cushina v. Drew, 153. 
 
 Cushman v. Ryan, 634. 
 
 Cushman v. Waddell, 688. 
 
 Cutler V. How, 179. 
 
 Dalton V. Biers, 510. 
 
 Dana v. Fiedler, 284, 312. 
 
 Danforth v. Walker, 256, 308. 
 
 Daniels v. Ballantine, 420. 
 
 Daniels v. Clegg, 425. 
 
 Daniels v. C. & N. W. R. R. Co., 456. 
 
 Daniels v. Newton, 38, 374. 
 
 Danube & B. S. Co. v. Xenos, 371. 
 
 Davenport v. Bradley, 54. 
 
 Da vies v. Jenkins, 198. 
 
 Davis V. Ark. R. R., 27. 
 
 Davis V. C. & O. R. R., 534. 
 
 Davis V. Garrett, 222, 223. 
 
 Davis V. Mayor, etc. of N. Y., 502. 
 
 Davis V. M. C. R. R. Co., 585. 
 
 Davis V. Shepstone, 681. 
 
 Davis V. White, 692. 
 
 Deane v. Hathaway, 93. 
 
 Decamp v. Hewitt, 377. 
 
 Delavergne v. Norris, 239. 
 
 Delaware & R. Canal Co. v. Wright, 
 
 496. 
 De Leon v. McKernan, 390. 
 De Vaughn v. Heath, 681. 
 Delp V. Edlis, 642. 
 Deming v. Railway Co., 165. 
 Denver, etc. R. Co., v. Frame, 478. 
 Denver, etc. Co., v. Lorentzen, 95. 
 Derby v. Johnson, 335, 338, 355, 357. 
 Des Arts v. Leggett, 300. 
 Detroit Daily Post Co. v. McArthur, 
 
 129. 
 Detroit, etc. R. R. Co. v. VanStein- 
 
 burg, 424. 
 DeVoe v. Salvador, 200. 
 Dewey v. Peck, 456.
 
 TABLE OP CASES CITED. 
 
 IZ 
 
 [The references are to the pages.] 
 
 Dewire v. Hanley, 27. 
 
 Dey V. Dox, 71. 
 
 Dickins v. N. Y. Cent. R. R. Co., 439. 
 
 Dice V. Sherberneau, 589. 
 
 Diebold v. Sharp, 443. 
 
 Diers v. Edwards, 27. 
 
 Dillard v. Collins, 94. 
 
 Dillon V. Anderson, 308, 312, 368. 
 
 Dollard v. Roberts, 190. 
 
 Donk Bros. C. & C. Co. v. Thil, 122. 
 
 Donnell v. Dounell, 613. 
 
 Donnelly v. Harris, 636, 673. 
 
 Donovan v. C. & N. W. Ry. Co., 514. 
 
 Donovan v. Hahaner, 186. 
 
 Doolittle V. Murray, 360. 
 
 Doran v. Cohen, 94. 
 
 Drake v. Railway Co., 615. 
 
 Draper v. Baker, 673. 
 
 Draper v. Randolph, 335, 338. 
 
 Drew V. Beall, 542. 
 
 Drew v. Sixth Ave. R. R., 190. 
 
 Drewe v. Coultin, 4. 
 
 Driggs V. Dwight, 92: 
 
 Drunim, Glato Co., v. Edmisson, 
 
 647. 
 Dry Dock Co. v. Mcintosh, 50. 
 Duckworth v. Alison. 158. 
 Dugan V. Anderson, 374. 
 Dunlop V. Gregory, 162. 
 Durst V. Burton, 284. 
 Duryea v. Mayor, 496. 
 Duval V. Davey, 643. 
 Dustan v. Andrew, 284, 305. 
 Dwinelle v. N. Y. C. & H. R. R. R. 
 
 Co., 399. 
 Dyas V. S. P. Co., 451. 
 Eado V. Metropolitan St. Ry. Co., 
 
 399. 
 Earle v. Coburn, 254. 
 Earle v. Tupper, 637. 
 East V. Bigelow, 672. 
 East India Co. v. Vincent, 246. 
 Eastland v. Caldwell. 515, 516. 
 Eastman v. Mayor, .54,5. 
 Eaton V. Langley, 493. 
 Eddy V. Rapid Transit Co., 401. 
 Ehrgott V. Mayor, 228. 
 Elderton v. Emmons, 367. 
 
 Eldridge v. Gorman, 52. 
 
 Ellis V. Andrews, 538, 539 
 
 Ellis V. Hilton, 645. 
 
 Emerson v. Brigham, 278. 
 
 Emery v. Boyle, 186. 
 
 Emmons v. Elderton, 368. 
 
 Emmons v. Sheldon, 147. 
 
 Enfield v. Town of Ellington, 45. 
 
 Engle v. Fitch, 241. 
 
 Evans v. Heystone Co., 630. 
 
 Everard v. Hopkins, 196, 257. 
 
 Everrord v. Gabbert, 674. 
 
 Eviston V. Cramer, 130. 
 
 Ewing V. Railway Co., 109. 
 
 Fairfax v. New York C. & H. R. Co., 
 
 478. 
 Fales V. Hemenway, 37. 
 Farwell v. Price, 484. 
 Fay V. Guynon, 37. 
 Fayo V. Parker. 132, 142. 
 Fergusson v. Tel. Co., 581. 
 Fenelon v. Butts, 458, 636, 673. 
 Ferris v. Spooner, 312. 
 Fidler v. McKinley, 663, 664. 
 Field V. Roosa, 255. 
 Filer v. N. Y. C. R. R., 189. 
 Findlater v. Dorland, 546. 
 Fisher v. Asphalt Co., 290, 291. 
 Fitzgerald v. Leonard, 296. 
 Flanders v. Colby, 509. 
 Flint V. Transportation Co., 398. 
 Fleischmann v. Samuel, 483. 
 Fletcher v. Dycke. 158. 
 Fletcher v. Rylands, 42. 
 Flynn v. Butler, 93. 
 Fouldes V, Willoughby, 222. 
 Fohrman v. Consol. T. Co., 146. 
 Foley V. 42nd St., etc. Ry. Co., 415. 
 Fontaine v. Lumber Co., 22. 
 Ford V. Schliessman, 458, 459. 
 Forsyth v. Palmer, 604. 
 Forsythe v. Wells. 481. 
 Fowler v. Armour, 369. 
 Fowler v. Fowler, 514. 
 Fowler V. Gilman, 488. 
 Fowler v. Middlesex, 6.59. 
 Fowler v. Armour, 378. 
 Foxall V. Barnett, 200.
 
 TABLE OF CASES CITED. 
 
 [The references 
 Fox V. Glastenburg, 425. 
 Fox V. Harding. 303. 
 France v. Gaiidet, 629. 
 Fraucbot v. Leach, 308. 
 Francis v. Burnett, 94. 
 Francis v. Schoellkopf, 502. 
 Franklin v. Low, 433. 
 Fraser v. Freeman, 533. 
 Frazer v. Berkeley, 033. 
 Frazer v. Bigelow C. Co., 645, 647. 
 Frieland v. Muscatine, 016. 
 Freeman v. Clute, 77. 
 French v. Ramge, SO. 
 Frost V. Knight, 234, 272, 309, 370, 
 
 371, 372. 
 Ft. Wayne v. Hamilton, 656. 
 Funke v. Allen, 579. 
 Gainsford v. Carroll, 67, 71. 
 Galbraith v. Fleming, 51. 
 Galloway v. C. M. & St. P. R. R., 
 
 145. 
 Gammon v. Hone, 178. 
 Gandell v. Pontigny, 367, 369, 377. 
 Ganstler v. Met. Tel. Co., 506. 
 Gardner v. Village of Newburgh, 6. 
 Garing v. Frazer, 03. 
 Gartside C. Co. v. Turk, 688. 
 Gatzow V. Buening, 140. 
 G. C. & S. F. R. R. Co. V. Copeland, 
 
 403. 
 Geiger v. Railroad Co., 179. 
 General Fire Extinguisher Co. v. R. 
 
 R. Co., 421. 
 Gere v. Ins. Co., 614. 
 Germaine v. Burton, 279. 
 German F. Co. v. Armsby, 360. 
 Georgia v. Bond, 514. 
 Gibney v. Lewis, 134, 135, 136. 
 Giese v. Schultz, 458, 502, 564. 
 Giese v. Schultz, 564. 
 Giles V. O'Toole, 92. 
 Gillett V. Western R. R. Co., 644. 
 Gillis V. Space, 30. 
 Gilman v. Brown, 464. 
 Gil man v. McClatchy, 521, 527. 
 Girard v. Taggart, 004, 005. 
 Glzler V. Witzel, 037, 074. 
 Glasby v. Cabot, 030. 
 
 are to the pages.] 
 Gleeson v. R. R. Co., 420. 
 (Jleghorn v. Railroad Co., 136. 
 (Jlenn v. P. & W. T. Co., 121. 
 Globe F. Co. v. Cotton Oil Co., 359. 
 Glynn v. Dock Co., 222. 
 Gold V. Ives, 53. 
 Goodman v. Pocock, 377. 
 Goodsell V. Railroad Co., 447. 
 Goodwin v. C. & W. Canal Co., 612. 
 Gordon v. Brewster, 309, 378. 
 Gordon v. Norris, 345, 347. 
 Gorton v. Harmon, 450. 
 Gouge V. Roberts, 070. 
 Grable v. Musgran, 550. 
 Grace v. Dempsey, 458. 
 Graeslle v. Carpenter, 615. 
 Graham v. Consol. T. Co., 451. 
 Graham v. Bickham, 132. 
 Graham v. Jackson, 344. 
 Graham v. Jackson, 394. 
 Grand R. R. Co. v. Jarvis, 228. 
 Grand Tower Co. v. Phillips, 360. 
 Grant v. City of Brooklyn 49, 220. 
 Grau V. Grau, 27. 
 Graves v. Moses, 644. 
 Gray v. Howell. 250. 
 Grayblll v. DeYoung, 145. 
 Grebert-Borgnes v. Nugent, 289. 
 Gregory v. Morris, 493. 
 Green v. Boston & L. R. Co., 360, 
 
 477. 
 Green v. Hudson R. R. R. Co., 437. 
 Greenfield v. Railway Co., "615. 
 Gruman v. Smith, 630. 
 Grund v. VanVleck, 129. 
 Guille V. Swan, 218. 
 Gurley v. Railway Co., 692. 
 Hacker v. Helney, 459. 
 Ilackett V. Smelsley, 588. 
 Hadly v. Gano, 34.5. 
 Hadley v. Baxendale, 191. 
 Hadley v. Hey wood, 551. 
 Hagan v. Railroad Co., 131. 
 Halght V. Hayt, 434, 436. 
 Halle V. Railroad Co., 109. 
 Haines v. Schultz, 130, 140, 511. 
 Halleran v. Bell Tel. Co., 410. 
 Hall V. Rupley, 335. 
 Hambleton v. Veere, 39.
 
 TABLE OP CASES CITED, 
 
 XI 
 
 [The references are to the pages.] 
 
 Hambly v. Troth, 432, 
 Hamer v, Hathaway, 483, 
 Hamilton v. Mcl'herson, 36S, 
 Hamilton V. Third Ave., R. R. Co., 
 
 149, 401. 
 Hamlin v. Ry, Co,, 3S3. 389, 
 Hammersley v, DeBiel. 231, 232, 
 Hammond v. Bussey, C54. 
 Hannibal R. Co, v, Martin, 688. 
 Hansen v, Boyd, 692, 
 Hargreaves v. Kimberly, 496, 497, 
 Harman v. Tappeuden, 4. 
 Harris v. Nobbs, 114. 
 Harris v. Panama R. R. Co., 483, 
 
 630. 
 Harry v. Edmonds, 129. 
 Hart V, Direct Cable Co., 570, 
 Harvey v. Coal Co., 416, 
 Hatfield v, C, R, R., 523. 
 Haviland v. Chase, 142. 
 Haven v. Manufacturing Co., 85. 
 Haverley v. Elliott, 488. 
 Hawes v. Knowles, 130, 142. 
 Hawk V. Ridgway, 682. 
 Hayden v. Demets, 317. 
 Hays V, R. R. Co., 27. 
 Heald v. Carey, 222, 
 Healy v, Fallon, 646. 
 Heavilon v. Kramer, 30, 
 Heer v. Warren, 122, 
 Helbing v. Cemetery Co., 415. 
 Hendershott v. Tel. Co., 573, 
 Henderson v. Agon, 512, 
 Henderson v, McReynolds, 528. 
 Henderson V, N, Y. C. R, R., 591, 
 
 592, 
 Herring v. Finch, 3, 
 Herring v. Railroad Co,, 421, 
 Hlbbard v. W. U, Tel. Co., 577. 
 Hickey v. Baird, 85. 
 Hickey v. Welch, 190. 
 Hicks V. Drew, 100. 
 Higgins V. Mansfield. 80. 
 Higgins V. Moore, 472. 
 Higgins V. Railroad Co., 533. 
 Hilliker v. Farr, 589. 
 Hill V, Davis, 261, 
 Hill V, Winsor, 210. 
 
 Hinckley v, Tittsburgh. 322. 
 
 Hine v, Manhattan R. Co., 059. 
 
 Hiues v. Dry Dock, 149. 
 
 Hinton v, Sparkes, 179, 
 
 Hirte v. E. W. Ry, Co., 562, 
 
 Hoadley v. Northern Tram, Co., 421. 
 
 Hoaglaud v. Moore, 33n. 
 
 Hoagland v. Segur, 158, 
 
 Hoag V, Railroad Co., 215, 21(., 217. 
 
 Hobson V, Todd, 5. 
 
 Hochester v. De la Tour, 234. 312, 
 
 338, 339, 370. 371, 372, 373. 
 Hocking v. Windsor, 120, 145. 
 Hogan V, Cregan, 565, 
 Holbrook v, Toby, 153. 
 Holden v. X. Y. C. R. R. Co., 483, 
 Holland & B. Co, v, Nixon, 186. 
 Holmes v. Jones, 520, G94. 
 Homer v, Perkins, 538. 
 Hopevale Electric Co. v. E. S. B, 
 
 Co., 27, 
 Hopkins v. Railroad Co., 132. 
 Hopple V, Higbee, 643, 
 Horn V, Chandler, 39, 
 Hough V. Railway Co., 128, 
 Houston E, & Tel. Co, v, Davidson, 
 
 576, 
 Howard v. Crowther, 94. 
 Howard v. Manufacturing Co., 47, 
 Howell V. Coupland, 275. 
 Howe Machine Co. v. Bryson, 122. 
 Howe V. Newmarch, 398, 
 Howland v. Day. 639. 
 Howell V. Goodrich, 495. 
 Hoy V, Gronoble, 364, 
 Hoyt V, Danbury, 141, 
 Huddleson v. Borough, 674, 
 Hughes V, Auburn, 450. 
 Huling V. Henderson, 142, 
 Hunt V. Bennett, 532, 
 Hunt V, Dowman, 3. 
 Hunt V, Missouri, K. & T. R. R. Co., 
 
 420, 
 Hunt V. Silk, 279. 
 Huntington v, Attrill, 670. 
 Huntington v. R. R, Co., 369. 
 Huntingdon R. R, Co, v. English, 
 
 629,
 
 xu 
 
 TABLE OF CASES CITED. 
 
 [The references are to the pages.] 
 
 Hurd V. Hubbell, 409. 
 
 Huston V. Freeuiansburgh, 415. 
 
 llutcheis V. Cedar Hapids, 121. 
 
 Hutc'bins v. Hutcbins, (>2. 
 
 Hutcbius V. Muun, liOO. 
 
 Hutchinson v. ytern, 512. 
 
 Illinois C. R. Co. v. Byrne, 122. 
 
 Illinois C. R. Co. v. Cole, 121. 
 
 Ingram v. Lawson, 196. 
 
 In re Crocket, 94. 
 
 In re Haensell, 94. 
 
 Int. Ry. Co. v. Nicholson, 478. 
 
 Ireland v. Elliott, 635. 
 
 Irwin .V. Solde, 464. 
 
 Isaacs V. Davies, 377. 
 
 Isaacs V. Railroad Co., 533. 
 
 Ives V. Carter, 540. 
 
 Xackson v. Baker, 162. 
 
 Jackson v. Pesked, 4. 
 
 Jacoby v. Stark, 550. 
 
 Jacobs V. Hoover, 688. 
 
 Jacobs V. Third Ave. R. R. Co., 401. 
 
 James v. Allen Co., 378. 
 
 James v. Morey, 685. 
 
 Jamieson v. K. C. R. Co., 669. 
 
 Jaquith v. Hudson, 186. 
 
 Jennison v. Walker, 595. 
 
 Jerome v. Ross, 6. 
 
 Jerome v. Smith, 681, 682. 
 
 Jewell V. R. R. Co., 666. 
 
 Joch V. Dankwardt, 109. 
 
 Johnson v. Allen, 142. 
 
 Johnson v. Arnold, 363. 
 
 Johnson v. Holyoke, 644. 
 
 Johnson v. Jenkins, 560. 
 
 Johnson v. Macdonald, 259. 
 
 Johnson v. McKee, 637. 
 
 Johnson v. St. Paul Co., 416. 
 
 Johnson v. Strong. 674. 
 
 Johnson v. Wells, Fargo & Co., 110. 
 
 Johnson v. W. U. Tel. Co., 581. 
 
 Jones v. Binford, 163. 
 
 Jones v. Boyce. 114, 213. 
 
 Jones V. Gooday, 199. 
 
 Jones V. Jones, 376. 
 
 Jones V. King, 27. 
 
 Josling V. Kingsford, 295. 
 
 Judy V, Sterrett, 664. 
 
 Kaufman v. Manufacturing Co., 227. 
 
 Kavanagh v. Barber, 502. 
 
 Keeue v. Lizardi, 129. 
 
 Keller v. Paine, 483, 659. 
 
 Kellogg V. Railway Co., 214. 
 
 Kelly V. Partington, 200. 
 
 Kemp V. Ice Co., 161, 162. 
 
 Kennon v. Gilmer, 121, 130. 
 
 Kerrigan v. R. R., 630. 
 
 Kettle V. Hunt, 196. 
 
 Keystone Pub. Co. v. Roman, 381. 
 
 Kiff V. Youmans, 635. 
 
 Kilham v. Ward, 4. 
 
 Kimberly v. Patchin, 471. 
 
 King V. Griffin, 120. 
 
 King V. Root, 532. 
 
 King V. Steiren, 365, 368. 
 
 Kingsland v. Mayor, 599. 
 
 Kingsley v. Sauer, 492. 
 
 Kinney v. Crocker, 51. 
 
 Kinports v. Breon, 360. 
 
 Kirksey v. Jones, 130. 
 
 Klein v. Thompson, 95. 
 
 Kleiner v. R. R. Co., 218, 667. 
 
 Kline v. Railroad, 679. 
 
 Kloths V. Hess, 514. 
 
 Kniffin v. McConnell, 559. 
 
 Knowlden v. Printing Co., 525. 
 
 Knoxville Traction Co. v. Lane, 397. 
 
 Kountz V. Citizens Oil Co., 609. 
 
 Krumm v. Beach, 540, 542. 
 
 Kuukle v. Wberry, 186. 
 
 Laidlow v. Sage, 218. 
 
 Lahr v. Met El. R. R., 189. 
 
 Lake Shore, etc. R. R. Co. v. Miller, 
 
 424. 
 Lamb v. Walker, 43. 
 Lamoreaux v. Rolfe, 37. 
 Lamos v. Snell, 516. 
 Lance v. Apgar, 27. 
 Land Co. v. R. R. Co., 289. 
 Landreaux v. Bell, 398. 
 Langfort v. Tiler, 333. 
 Langridge v. Levy, 112. 
 Lansing v. Dodd, 158. 
 Larrabee v. Badger, 307. 
 Lathers v. Wyman, 486.
 
 TABLE OP CASES CITED. 
 
 Xlll 
 
 [The references are to the pages.] 
 
 Law V. Local Board of Redditch, 
 
 158. 
 Lawrence v. Metropolitan R. Co., 
 
 659. 
 Learock v. Paxson, 488. 
 Leavitt v. Cutler, 564. 
 LeBaron v. Joslin, 424. 
 Lee V. City of Burlington, 120. 
 Lee V. Woolsey, 634. 
 Lee V. Publishers, 685. 
 Legge V. Harlock, 158. 
 Leggett V. Ins. Co., 178. 
 Leggott V. Gt. N. Ry Co., 438. 
 Lehman v. Railroad Co., 109. 
 Leigh V, Paterson, 67. 
 Leonard v. Allen, 515, 516. 
 Levy V. Langridge, 197. 
 Levy V. Lord Herbert, 367. 
 Lewis V. Ins. Co., 80. 
 Lewis V. Greider, 304. 
 Lewis V. N. P. R. Co., 121. 
 Lewis V. Peake, 290. 
 Lincoln v. Claflin, 647. 
 Lincoln v. Hapgood, 4. 
 Lincoln v. Railroad Co., 220, 651. 
 Lincoln Shoe Co. v. Sheldon, 579. 
 Linf ord v. Lake, 634. 
 Ling v. Malcom, 488. 
 Linn v. Duquesne, 120, 121. 
 Linnex v. Bonfield, 534. 
 Linsley v. Bushnell, 135. 
 Lippincott v. Souder, 523. 
 Lipp v. Otis, 449. 
 Little V. Banks. 161, 162, 163. 
 Littlewood v. Mayor, etc., 438, 440. 
 Liverpool Co. v. Phenix, 128. 
 Lobdell V. Stowell, 474. 
 Lock V. Furze, 241. 
 Loder v. Kepule, 629. 
 Loewenthal v. Strong, 688. 
 Lombard v. Lenox, 460, 525. 
 J Long V. Booe, 555. 
 Long V. Pruyn, 360. 
 Lord V. Thomas, 358. 
 Losee v. Buchanan, 520. 
 Lou. & Nash. R. R. Co. v. Ballard. 
 
 399. 
 Louisville R. R. Co. v. Hine, 402. 
 
 Louisville R. Co. v. Ryan, 660. 
 
 Lovatt V. Hamilton, 259. 
 
 Lowe V. Peers, 153. 
 
 Lowe V. Ring, 511. 
 
 Lumley v. Gye, 199. 
 
 Luse v. Jones, 614. 
 
 Lumber Co. v. Wilmore, 614. 
 
 Lynch v. R. R. Co., 413, 530, 532, 
 
 677. 
 Lynde v. Thompson, 153. 
 Machine Co. v. Bryson, 225. 
 Mack v. Patchin, 241. 
 Mac-Lean v. Dunn, 319. 
 Magagnos v, R. R., 146. 
 Magee v. La veil, 172. 
 Maher v. Wilson, 27. 
 Mahoney v. Belford, 514. 
 Mahoney v. Dankwart, 120. 
 Malecek v. R. R. Co., 399. 
 Mali V. Lord, 533. 
 
 Malone v. City of Philadelphia, 158. 
 Mann, Boudoir Co. v. Dupre, 218. 
 Manufacturing Co. v. Fiske, 129. 
 Mapes V. Wicks, 517. 
 Markman v. Jaudon, 475, 619, 623, 
 
 624, 629. 
 Marks v. Jacobs, 681. 
 Marks v. L. I. R. R. Co., 413. 
 Marlow v. S. R., 145. 
 Martin v. Atkinson, 685. 
 Martin v. Bradley, 433. 
 Martin v. Payne, 547. 
 Mary Clark's Case, 437. 
 Maryland D. & R. Co. v. Brown, 
 
 121. 
 Marzetti v. Williams, 5, 27. 
 Mason v. Decker 319. 
 Mason v. Hawes, 135. 
 Mason v. Hill, 6, 7, 8. 
 Masters v. Town of Warren, 134. 
 Mathews v. Coe, 619, 623. 
 Mathews v. Tarry, 651, 631. 
 Matter of Brooklyn E. R. R., 592. 
 Matter of City of N. Y., 250. 
 Matter of Deering, 598. 
 Matter of Furman St., 612. 
 Matter of North River, 598. 
 Matter of N. Y. C. R. R., 591.
 
 XIV 
 
 TABLE OF CASES CITED. 
 
 [The references are to the pages.] 
 
 Matter of N. Y. I.. & W., 591. 
 
 Matter of Thonii)son, 070. 
 
 Matter of Union Village, 51)0. 
 
 Matter of Utica R. R., 590. 
 
 Mattice v. Wilcox, 138. 
 
 Maunder v. Venn, 547. 
 
 Maynard v. Berkeley, G34. 
 
 Mayor of Lynn v. Mayor of Lon- 
 don, 2. 
 
 Meagher v. Driscoll, 105, 121, 130. 
 
 Mellick V. R. R., 506. 
 
 Melone v. Sierra R. R., 122. 
 
 Mellor V. Spateman, 4. 
 
 Menagh v. Whitwell, 315. 
 
 Mentzer v. Tel. Co., 572. 
 
 Merrick v. Brainard, 452. 
 
 M. E. R. R. V. Harby, 227. 
 
 Merrills v. Manufacturing Co., 135. 
 
 Metz. V. St. R. R. Co., 60. 
 
 Meyer v. Houck, 683. 
 
 Michaels v. N. Y. C. R. Co., 421. 
 
 Michalwait v. W. U. Tel. Co., 576. 
 
 Michigan C. R. Co. v. Burrows, 421. 
 
 Mihill's Co. V. Day, 224. 
 
 Milage v. Woodward, 358. 
 
 Millard v. Brown, 532. 
 
 Miller v. Gas Co., 120. 
 
 Miller v. King, 401. 
 
 Miller v. Mariner's Church, 71, 376. 
 
 Mill V. E. Co. V. Anderson, 679. 
 
 Milliken v. Long, 550. 
 
 Milwaukee R. R. v. Arms, 142. 
 
 Mine Supply Co. v. Columbia M. 
 Co., 121. 
 
 Minn. R. Co. v. Gluck, 660. 
 
 Mixer v. Howarth, 300. 
 
 M'Lean v. Dunn, 67. 
 
 M'Mahon v. Field. 223. 
 
 Mockbee v. Gardner, 278. 
 
 Monday Mfg. Co. v. R. R., 601. 
 
 Moody V. Brown, 337. 
 
 Moody V. Leverich, 378. 
 
 Moore v. City of Kalamazoo, 33. 
 
 Moore v. Met. St. Ry., 415. 
 
 Moore v. Railroad, 398. 
 
 Morgan v. S. P. Co., 4.50. 
 
 Morley v. Dunbar, 635. 
 
 Morrison v. Davis, 418, 420. 
 
 Morrison v. Lawrence, 121. 
 
 Morris v. Supplel, 360. 
 
 Morse v. Hutchins, 292, 540, 541. 
 
 Morse v. Shaw, 538. 
 
 Morss V. Gleasou, 315. 
 
 Moth V. Danforth, 604. 
 
 Mott V. Ice Co., 532. 
 
 Mott V. Mott, 162. 
 
 Moulton V. Trask, 335. 
 
 Mowry v. Smith, 634. 
 
 M. & St. P. R. R. V. Kellogg, 214. 
 
 Muhlker v. Harlem R. R. Co., 18. 
 
 Muldoon V. Lynch, 158. 
 
 Mullaly V. Austin, 37. 
 
 Muller V. Eno, 297. 
 
 Murphy v. Hoobs, 142. 
 
 Murphy v. McGraw, 90. 
 
 Murphy v. Railroad Co., 135, 445. 
 
 Murray v. Jennings, 542. 
 
 Musgrave v. Beckendorff, 629. 
 
 Mustek V. Latrohe, 120. 
 
 Myrick v. Railroad Co., 128. 
 
 My Laundry Co. v. Schmiling, 654. 
 
 McAllister v. Detroit Free Press Co., 
 
 521. 
 McAlmont v. McClelland, 548. 
 McBride v. McLoughlin, 688. 
 McCaffrey v. Thomas, 534. 
 McCarthy v. DeArmit, 130. 
 McCarthy v. Niskern, 142. 
 McConnell v. Corona, 190. 
 McConnel v. McKibbe, 495. 
 McCool V. Mahoney, 674. 
 McCue V. Klein, 51. 
 McDermott v. Severe, 122. 
 McDonald v. Mallory, 438. 
 McDonald v. Scaife, 489. 
 McDonald v. Walter, 685. 
 McElligott V. Randolph, 447. 
 McFadden v. Thompson, 464. 
 McGarrahan v. R. R., 9.5. 
 McGarr v. Worsted Mills, 415. 
 McGinness v. Mo. Pac. Ry. Co., 399. 
 McTntyre v. N. Y. C. R. R. Co., 50, 
 
 220. 
 McKee v. Judd. 437. 
 McLean Co. v. Long, 488. 
 McMahon v. Dubuque, 478.
 
 TABLE OF CASES CITED. 
 
 XV 
 
 [The references are to the pages.] 
 
 McMahon v. Railroad Co., 302. 
 
 McNamara v. King, 97. 
 
 McNamara v. Clintonville, 415. 
 
 McNaught V. Dodson, 307. 
 
 McNeill V, Crucible S. Co., 122. 
 
 McNeil V. Lyons, 150, 685. 
 
 Nash V. Sharpe, 413, 077. 
 
 Nebraska City v. Campbell, 220. 
 
 Neetlham v. Grand T. R. R. Co., 441. 
 
 Negley v. Farrou, 681. 
 
 Nelson v. Churchill, 464. 
 
 Nelson v. Plumpton Co., 368. 
 
 Newburgh & C. Turnpike v. Mil- 
 ler, 6. 
 
 Newman v. R. R.. 591, 592. 
 
 Nichol V. Godts, 295. 
 
 Nichols V. Brabazon, 190. 
 
 Nichols V. Dunphy, 674. 
 
 Nicklin v. Williams, 42, 43. 
 
 Nieto V. Clark, 399. 
 
 Niver v. Rossman, 162. 
 
 N. J. S. & C. F. Co. V. B. of Educa- 
 tion, 27. 
 
 Noble V. Am. T. C. Co., 359. 
 
 Nolan V. Traber, 681. 
 
 Noonan v. Orton, 94. 
 
 Noonan v. Pardee. 464. 
 
 Norfolk R. R. Co. v. Spraety, 190. 
 
 Normile v. Wheeling T. Co., 122. 
 
 Norris v. Casel, 637. 
 
 North American Co. v. Morrison, 
 390. 
 
 North C. S. Ry. Co. v. Biddie, 589. 
 
 North C. Railway Co. v. Cotton. 97. 
 
 North Chicago R. Co. v. Wrixon, 
 688. 
 
 Norton v. Warner, 551. 
 
 Norway Plains Co. v. Railroad, 419. 
 
 Nurse v. Barns, 195. 
 
 N. Y. R. R. Co. V. Ansonia, 646, 
 647. 
 
 N. Y. S. Moniter Milk Pan Co. v. 
 Remington, 323. 
 
 Nutting V. C. R. R. R., 419. 
 
 Nysewander v. Louman. 542. 
 
 O'Conner v. Forster, 604. 
 
 Oehlhof V. Soloman, 545. 
 
 Ogden V. Claycomb, 687. 
 
 Old Col. R. R. V. Evans, 250. 
 
 Old Col. R. R. V. Miller, 647. 
 
 Oliver v. Town of LaValle, 212, 214. 
 
 Olmstead v. Burke, 80. 
 
 Olwell V. Spoors, 145. 
 
 Onthank v. L. S. R. R., 595. 
 
 Optenburg v. Skelton, 359. 
 
 Osier V. Walton, 512. 
 
 Ottenot V. N. Y. L. & W. Ry. Co., 
 
 496. 
 Oviat V. Pond, 409, 646. 
 Owen V. O'Reilly, 27. 
 Owen V. Routh, 624, 629. 
 Owens V. Railway Co., 98. 
 Pacific Co., V. Alaska Co., 464. 
 Page V. Parker, 542. 
 Painter v. Stahley, 464. 
 Palmer v. Cook, 555. 
 Palmer v. Crook, 551. 
 Palmer v. Derby, 121. 
 Palmer v. Phila. B. & W. R. R., 142. 
 Palmeri v. Manhattan R. Co., 400. 
 Parker v. Griswold, 20. 
 Parker v. Moulton, 538, 539. 
 Parkev. Seattle, 659. 
 Parkinson v. Lee, 278. 
 Parmelee v. Baldwin, 52. 
 Parmenter v. Fitzpa trick, 483. 
 Parrott v. Railroad Co., 409. 
 Pasley v. Freeman, 111, 112, 
 Passinger v. Thorburn, 323. 
 Patterson v. Hayden, 565. 
 Patterson v. Patterson, 461. 
 Paulmier v. Erie Railway Co., 428. 
 Paul V. Slason, 27. 
 Peacock v. Oaks, 584. 
 Peat V. Ry. Co., 562. 
 Peek V. Traylor. 551. 
 Peeters v. Opie, 367. 
 Pelardis v. Journal Printing Co., 
 
 458, 527. 
 Penn. R. R. v. Allen, 120. 
 Penn. Co. v. Bray. 403. 
 Penn. R. R. Co. v. Connell, 403. 
 Penn. Coal Co. v. Files, 190. 
 People v. Clark, 565. 
 People V. Sauires, 565. 
 People V. Kerr, 502.
 
 XVI 
 
 TABLE OF CASES CITED. 
 
 [The references are to the pages.] 
 
 People V. Gibbs, 433. 
 
 People ex rel. v, Tioga Com. Pleas, 
 
 435, 436, 437, 43S. 
 Perkins v. Vaughan, 634. 
 Peters B. & L. Co. v. Lesh, 493. 
 Peters v. Lake, 97. 
 Peterson v. Drew, 381. 
 Petrie v. Lane, 228. 
 Phelps V. Hunt, 618. 
 Philbrook v. Burgess, 375. 
 Phillips V. Mann, 674. 
 Phillips V. Town, 600. 
 Philpotts V. Evans, 372. 
 Pierce v. Conners, 441. 
 Pierce v. Woodward, 38. 
 Pill V. B. H. R. R. Co., 412. 
 Pinches V. Church, 356. 
 Pinder v. Wadsworth, 5. 
 Pinkerton v. Manchester R. R., 624. 
 Pittsburgh R. R. v. Moore, 228. 
 Pittsburgh S. Co. v. W. P. S. Co., 
 
 359. 
 Planche v. Colburn, 339. 
 Piatt V. Brown, 135. 
 Platz V. McKean, 416. 
 Pollard V. Lyon, 514. 
 Pollen V. LeRoy, 264, 304, 317, 318. 
 Pollock V. Gantt, 80, 130. 
 Poposkey v. Munkwitz, 236. 
 Porter v. Wormser, 319. 
 Postal Tel. v. Lathrop, 570. 
 Post V. Railway Co., 449. 
 Poulton V. Lattimore, 279, 295. 
 Powers V. Cary, 515, 517. 
 Powers V. Council Bluffs, 454, 455. 
 Powers V. Ware, 38. 
 Poulton V. Lattimore, 279, 295. 
 Paed V. Graham, 56. 
 Predmore v. Consumers L. & P. Co., 
 
 145. 
 Preston v. Neale, 255. 
 Prettywian v. Williamson, 552. 
 Prentiss v. Shaw, 632, 637. 
 Price V. Jenkins, 233. 
 Price V. Price, 435. 
 Printz V. People, 614. 
 Pritchard v. Hewitt, 685. 
 Pryor v. Foster, 540. 
 
 Publishing Co. v. Eahn, 146. 
 
 Pugh V. Ry. Co., 113. 
 
 Pullman Palace Car Co. v. Barker, 
 
 214. 
 Pullman's Palace Car Co. v. King, 
 
 401. 
 Pumpelly v. Phelps, 241, 242. 
 Purcell V. Railroad Co., 108, 116. 
 Puritan C. Co. v. Clark, 359. 
 Putman v. Glidden, 254. 
 Quarles v. George, 71. 
 Quill V. So. Pac. Co., 451. 
 Rabe v. Coal Co., 464. 
 Railroad Co. v. Allen, 449. 
 Railroad Co. v. Babcock, 520. 
 Railroad v. Baches, 451. 
 Railroad v. Barrow, 450. 
 Railroad v. Blocher, 398. 
 Railroad v. Carr, 122, 688. 
 Railroad Co. v. Deloney, 403. 
 Railroad v. Derby, 398. 
 Railroad Co. v, Dickerson, 403. 
 Railroad v. Finney, 398. 
 Railroad v. Garvey, 601. 
 Railroad Co. v. Goben, 403. 
 Railroad v. Gunderson, 450. 
 Railroad Co. v. Hale, 164. 
 Railroad Co. v. Hardy, 227. 
 Railroad v. Hinds, 398. 
 Railroad v. Keith, 645. 
 Railroad Co. v. Lockwood, 128. 
 Railroad Co. v. Reeves, 420. 
 Railroad Co. v. Reichert, 181. 
 Railroad Co. v. Trich, 217. 
 Railroad v. Johnson, 688. 
 Railroad v. Mount, 416. 
 Railroad v. Musa, 688. 
 Railroad v. Vandiver. 398. 
 Railroad v. Wallace, 647. 
 Railroad v. Woolridge, 451. 
 Railroad v. Wren, 353. 
 Railway Ad. Co. v. Standard Co., 
 
 358. 
 Railway Co. v. Arm, 129, 130. 
 Railway Co. v. Beckwith, 129. 
 Railway Co. v. Bohn, 424. 
 Railway Co. v. Dunn, 132. 
 Railway Co. v. Earl, 691.
 
 TABLE OF CASES CITED. 
 
 zvu 
 
 [The references are to the pages.] 
 
 Railway CJo. v. Eberle, 656. 
 
 Railway Co. v. Godkin, 691. 
 
 Railway Co. v. Hall, 692. 
 
 Railway Co. v. Harper, 691. 
 
 Railway Co. v. Harris, 129, 130. 
 
 Railway Co. v. Humes, 129. 
 
 Railway Co. v. Nicholson, 478, 614. 
 
 Railway Co. v. Quigley, 129, 130, 139 
 
 Railway Co. v. Smith, 656. 
 
 Railway Co. v. Syfan, 692. 
 
 Randall v. Raper, 296. 
 
 Rand v. R. R. Co., 624. 
 
 Ray V. Traction Co., 401. 
 
 Redmond v. Am. Mfg. Co., 630. 
 
 Reed v. City of Detroit, 33. 
 
 Reed v. McConnell, 323. 
 
 Reed v. Randall, 264. 
 
 Reed v. Spaulding, 421. 
 
 Reed v. State, 496. 
 
 Regan v. Railroad Co., 409, 646, 647. 
 
 Regina v. Baker, 507. 
 
 Regina v. James, 508. 
 
 Regina v. Oxford, 508. 
 
 Regina v. St. George, 508. 
 
 Remelee v. Hall, 37, 375. 
 
 Renihan v. Wright, 121, 458. 
 Renner v. Canfield, 110. 
 Revill V. Salterfit, 547. 
 Rhinehart v. Whitehead, 674. 
 Rice V. Stone, 93. 
 Richardson v. Hine, 635. 
 Richardson v. Woehler, 154. 
 Richmond R. R. v. Elliott, 227. 
 Richmond v. Fisk, 512. 
 Ridenhour v. K. C. R. R., 190. 
 Ripley v. McClure, 372. 
 Ritchie v. Talcott, 492. 
 Robertson v. Parks, 63. 
 Robinson v. Centenary Fund, 186. 
 Robinson v. Rupert, 635. 
 Robinson v. Wiley, 93. 
 Roche V. Redington, 146, 
 Rogers v. Spence, 94. 
 Romaine v. VanAllen, 475, 629. 
 Roper V. Johnson, 572. 
 Ropes V. Upton, 153. 
 Rose V. Buckett, 94. 
 Hose V. Mitchell, 551. 
 
 Rosenberger v. Marsh, 227. 
 
 Rosenkrans v. Barker, 129. 
 
 Ross V. G. N. R. R., 415. 
 
 Roth V. Taysen, 642. 
 
 Rounds V. Railroad Co., 533. 
 
 Rowbotham v. Wilson, 42. 
 
 Rowe V. Railway Co., 615. 
 
 Rowley v. Loudon & N. Y. R. R., 190. 
 
 Royalton v. Turnpike Co., 71, 72. 
 
 Rudd V. Rounds, 551. 
 
 Rueping v. R. R., 146. 
 
 Russell V. Nicoll, 250. 
 
 Russell V. Suubury, 438. 
 
 Russell V. Wash. Post, 527. 
 
 Rust V. Eckler, 297. 
 
 Saladin v. Mitchell, 307. 
 
 Sands v. Taylor, 333. 
 
 Sanders v. Stuart, 567. 
 
 Sanford v. Peck, 478. 
 
 Santa Ana v. Harlin, 659. 
 
 Saunders v. Newman, 8. 
 
 Savage v. Chicago R. Co., 416. 
 
 Savill V. Roberts, 62. 
 
 Sayre v. Sayre, 643. 
 
 Schell V. Plumb, 37. 
 
 Schenkel v. P. & B. T. Co., 122. 
 
 Schlemmer v. Railroad, 450. 
 
 Schmidt v. Zahendorf, 456. 
 
 Schorn v. Berry, 552. 
 
 Schrandt v. Young, 228. 
 
 Schrimpf v. Manufacturing Co., 154. 
 
 Schumaker v. Heinemann, 2.27. 
 
 Scott V. Donald, 142. 
 
 Scott V. Montells, 185. 
 
 Scott V. Shepherd, 211, 218. 
 
 Scripps V. Reilly, 521. 
 
 Scullane v. Kellogg, 95. 
 
 Seger v. Town of Barkhamsted, 134. 
 
 Seifert v. W. M. Tel. Co., 581. 
 
 Selleck v. French, 646. 
 
 Selleck v. Janesville, 415. 
 
 Sell V. Ward, 478. 
 
 Sellman v. Wheeler, 674. 
 
 Seymour v. Greenwood, 398. 
 
 Shanks v. Whitney, 538, 542. 
 
 Shannon v. Comstock, 71. 
 
 Shano V. Bridge Co., 120. 
 
 Shaw V. Nudd, 71.
 
 XVlll 
 
 TABLE OF CASES CITED. 
 
 [The references are to the pages.] 
 
 Shay V. Thompson, 51. 
 
 Shelliourne v. Law I. Co., 228. 
 
 Shepard v. 11. K. Co., 401, 403. 
 
 Shepherd v. Teiiil)le, 278. 
 
 Shepperd v. Ilauiptoii, 71. 
 
 Sherley v. Billiugs. HliO. 
 
 Sherman v. Kawsou. 5t;i0. 
 
 Shury v. Piggot, 8. 
 
 Sibley v. Rider. 375. 
 
 Sigafus V. Porter. 546. 
 
 Silsbury v. McCoou, 466. 
 
 Silsby Mauufg. Co. v. State, 466, 
 
 496. 
 Simouin v.R. R. Co., 413, 677. 
 Simone v. R. I. Co., 122. 
 Siordet v. Hall, 200. 
 Simpson v. Penn. R. R. Co., 122. 
 Six carpenters Case, 27. 
 S. K. R. R. Co. V. Rice, 403. 
 Slater v. Rink, 495. 
 Slavin v. State, 416. 
 Slingerland v. E. J. W. Co., 146. 
 Slingsby v. Barnard, 15, 16. 
 Sloan V. Edwards, 673. 
 Smethurst v. Woolston, 604. 
 Smith V. Bolles, 540, 541, 542. 
 Smith V. Borough of E. M., 122. 
 Smith V. Green, 360. 
 Smith V. Griffith, 607. 
 Smith V. Holcomb, 130. 
 Smith V. Johnson & Co., 114. 
 Smith V. Milburn, 565. 
 Smith V. Railway Co., 615, 667. 
 Smith V. Simon, 51. 
 Smith V. State, 565. 
 Sneesby v. Railway Company, 103. 
 Snow V. Provincetown, 425. 
 Snow V. Pulitzer, 121, 237, 238. 
 SoRelle v. W. M. Tel. Co., 581. 
 Southard v. Rexford. 559. 
 Southern K. R. R. Co. v. Hinsdale, 
 
 398. 
 Southern R. R. v. Jordan, 142. 
 South Park v. Dimlevy, 647. 
 S. P. Co. V. Tomlinson, 691. 
 Speck V. Gray. 555. 
 Spencer v. Tilden, 162. 
 Sperry v. Seidel, 142. 
 
 Sperry v. Miller, 520. 
 
 Spicer v. Waters, 486. 
 
 Spohn V. Mo. P. R. R. Co., 399. 
 
 Sproul V. Huston, 27. 
 
 Squire v. W. U. Tel. Co., 577, 581. 
 
 St. Albans v. Ellis, 153. 
 
 Staal V. R. R. Co., 60. 
 
 Sterling v. Turner, 3. 
 
 Startup V. Cortazzi, 624. 
 
 State V. Brassfleld, 565. 
 
 State V. Burnham, 51. 
 
 State V. Davis, 27. 
 
 State V. Glidden, 62. 
 
 State V. Kreutzberg, 462. 
 
 Street v. Laumier, 644. 
 
 Stevens v. O'Neill. 531. 
 
 Stevenson's Case, 153. 
 
 Stewart v. B. & C. R. R. Co., 399. 
 
 Stewart v. Ripon, 212, 214. 
 
 Steart v. Smith. 550. 
 
 St. J. R. R. V. Orr, 659. 
 
 St. Louis R. R. V. Biggs, 645. 
 
 Stokes v. Stickney, 435. 
 
 Stone V. Railroad, 93. 
 
 Stone V. Varney, 515, 517. 
 
 Story Case, 593. 
 
 Stout V. Wren, 51. 
 
 S towers v. Singer, 565. 
 
 St. Peter's Church v. Beach, 135, 
 
 509. 
 Strand v. Railroad, 145. 
 Strauss v. Meertief, 377. 
 Street v. Laumier, 644. 
 Striegel v. Moore, 615. 
 Strohm v. Railroad. 666. 
 Stroud v. Smith, 142. 
 Stuart V. Wilkins, 278. 
 Sturgess v. Bissell, 483. 
 Stutz V. Railroad Co., 458. 
 Sullens V. Railway Co., 615. 
 Sullivan v. Boston L. R. R., 416. 
 Sullivan v. Old Colony R. Co., 122. 
 Summerfield v. W. U. Tel. Co., 121, 
 
 458, 459. 
 Suther v. State, 565. 
 Suydam v. Jenkins, 476, 484, 623, 
 
 629. 
 Swift V. Barnes, 71.
 
 TABLE OP CASES CITED. 
 
 XIX 
 
 [The references are to the pages.] 
 
 Swift V. Broyles, 27. 
 
 Swift V. Dickeruiau, 514. 
 
 Talbott V. R. R., 121. 
 
 Tappen v. State, 630. 
 
 Tarbell v. West, 317. 
 
 Taylor v. Bradley, 92, 227. 
 
 Taylor v. Caldwell, (541. 
 
 Taylor v. Church, 532. 
 
 Taylor v. Guest, 546. 
 
 Taylor v. Monroe, 52. 
 
 Telegraph Co. v. Edsall, 572. 
 
 Telegraph Co. v. Wood, 110. 
 
 Teller v. B. & R. Co., 464. 
 
 Terry v. Jewett, 450. 
 
 Terry v. Wheeler, 471. 
 
 Trewllliger v. Wands, 514, 523. 
 
 Texas Pac. R. R. Co. v. James, 402. 
 
 Thayer v. Southwlck, 93. 
 
 The Amiable Nancy, 75, 129. 
 
 The C. R. I. & P. R. R. Co. v. Mof- 
 
 fitt, 495. 
 The Golden Gate, 129. 
 The State Rights, 129. 
 Thomas v. Durant, 238. 
 Thomas v. Union Ry. Co., 413. 
 Thompson v. Alger, 252. 
 Thompson v. Boston, 659. 
 Thompson v. Newell. 27. 
 Thompson v. Wood, 369. 
 Thorn v. Knapp, 559, 560. 
 Thrall v. Knapp, 635. 
 Tice V. Munn, 120. 
 Tiffany v. Lord, 483. 
 Tift V. Culver, 532. 
 Tillotson V. Chutham. 532. 
 Tindall v. Bell, 200, 644. 
 Tingley v. Times-Mirror Co., 142. 
 Titley v. Enterprise S. Co., 360. 
 Towlinson v. Derby, 52. 
 Towers v. Osborne, 331, 332. 
 Town of Troy v. Cheshire R. R.. 
 
 454. 496. 
 Tozer v. Railroad Co., 666. 
 Tradesman Co. v. S. M. Co., 381. 
 Trigg V. Railway Co., .389. 
 Tripp V. Thomas, 681. 
 Trout V. Kennedy, 605. 
 Troy V. B. R. R. v. Lee, 590. 
 
 Trull V. Granger, 545. 
 
 Tubbs V. VanKluk, 550, 663, 664. 
 
 Tucker v. Henniker, 426. 
 
 Turner v. B. & M. R. R., 94, 
 
 Turner v, Hearst, 514, 521. 
 
 Turpil V. Lowe, 23. 
 
 Tyler v. Wilkinson, 5, 7, 8. 
 
 Tyler v. W. U. Tel. Co., 570. 
 
 Tyson v. Booth, 634. 
 
 Uline V. N. Y. C. R. R. Co., 189, 496. 
 
 Uufried v. Railroad Co., 692. 
 
 Union Hardware Co. v. Plume, 646. 
 
 Union Nat. Bank v. Cross, 630. 
 
 Unruh v. Taylor, 121. 
 
 Uppington v. City of N. Y., 218. 
 
 U. S. V. Behan, 224, 35.5, 357. 
 
 U. S. Tel. Co. V. Gildersleeve, 568. 
 
 U. S. V. St. Anthony R. R., 464, 630. 
 
 ^'ail V. Reynolds, 540, 542. 
 
 Van Bergen v. Van Bergen, 66. 
 
 Vanderbuilt v. Turnpike Co., 532. 
 
 Van Ingen v. Star Co., 525. 
 
 Van Rensselaer v. Jewett, 647. 
 
 Vicars v. Wilcocks, 296. 
 
 Village of Johnsville v. Smith, 601. 
 
 Vinal V. Core, 692. 
 
 Voak V. Ry. Co.. 426. 
 
 Yogel V. McAuIiffe. 145. 
 
 Volkmar v. Third Ave. R. R. Co.. 
 
 415. 
 ^'oltz V. Glackmar, 142. .531, 639. 
 Voorhees v. Earl, 280, 297. 
 Vooth V. McEachen, 416. 
 Vosburg V. Putney, 679. 
 Wade V. Kalvfleisch, 435. 
 Wade V. Leroy, 220. 
 Waechter v. Second Av. T. Co., 450. 
 Wakeman v. Manufg. Co., 226, 238, 
 
 323. 325. 
 Wakeman v. Wilbur, 502. 
 Wald V. St. L. R. Co.. 421, 
 Waldie v. R. R. Co., 413. 677. 
 Waldron v. Wfildron, 551. 
 Walker v. Erie R. R. Co., 88, 221, 
 
 .•'.91. 
 Walker v. Moore, 65. 
 Walker v. Simmons Mfg. Co., 145. 
 Wales V. Pac. E. M. Co., 451.
 
 XX 
 
 TABLE OF CASES CITED. 
 
 [The refereuces are to the pages.] 
 
 Wallace v. Tenn. R. R.. 122. 
 
 Wallis V. Smith, 172, 173, 179. 
 
 Wallis V. Warreu, 3G7. 
 
 Walsh V. Railway Co., 389, 458. 
 
 Waltou V. Fothergill, 199. 
 
 Ward V. Building Co., 158, 102, 184, 
 
 6(39. 
 Ward V. Rich, 39. 
 Wardrobe v. Stage, 129. 
 Ward V. Smith, 197. 
 Warner v. Publishing Co., 520, 521. 
 Warner v. S. Pac. R. R., 146. 
 Wartman v. Swindell, 27. 
 Washburn v. Hubbard, 82. 
 Wash. & G. R. Co. v. Patterson, 121. 
 Waters v. Towers, 197, 199. 
 Wafson V. Brick Co., 31. 
 Watson V. Bridge, 90, 645. 
 Watson V. Moore, 517. 
 Watson V. Russell, 186. 
 Weaver v. Berwind, 630. 
 Webb V. Oilman, 673. 
 Webb V. Railroad, 121. 
 Weber v. Railroad, 150. 
 Webster v. Enfield, 335, 338. 
 Webster v. Railroad, 190. 
 Welch V. Durand, 135, 509. 
 Weller v. Baker, 4, 26, 27. 
 Wellman v. Minor, 415. 
 Wells V. Association, 225. 
 Wells V. Northampton Co., 496, 497. 
 
 Wells V. Railroad, 142. 
 
 Wetherell v. Julius, 94. 
 
 Westfield v. Mayo, 654. 
 
 W. U. Tel. Co. V. Ferguson, 581. 
 
 W. U. Tel. Co. V. Gilstrap, 581. 
 
 W. r. Tel. Co. V. Hall, 581. 
 
 W. U. Tel. Co. V. Rogers, 459, 581. 
 
 W. U. Tel. Co. V. Smith, 146. 
 
 Westwatee v. Grace Church, 228. 
 
 Weymouth v. Railway Co., 481. 
 
 Wheeler v. Newbould. 472. 
 
 Wheeler v. Townsend, 644. 
 
 Whipple V. Rich, 94. 
 
 Whitefield v. Levy. 158. 
 
 Whitford v. Panama R. R. Co., 435, 
 437, 438, 439. 
 
 Whiting v. Sullivan, 254. 
 
 Whitney v. Milwaukee, 147, 685. 
 
 White V. Miller, 80, 323. 
 
 White V. Murtland, 97. 
 
 White V. Webb, 646. 
 
 Wilde V. Mahauey, 93. 
 
 Wilkes V. Wood, 128, 510. 
 
 Wilkinson v. N. E. Borough, 122. 
 
 Wilkinson v. Verity, 371. 
 
 Wilkins v. Day, 114. 
 
 Williams v. Archer, 624. 
 
 Williams v. McFadden, 542. 
 
 Williams v. Morland, 4. 
 
 Williams v. Thrall, 250. 
 
 Williams v. Vance, 152. 
 
 Willson V. Baltimore, 186. 
 
 Wilson V. Bowen, 142. 
 
 Wilson V. Davis, 608. 
 
 Wilson v. Fitch, 521. 
 
 Wilson V. Granby, 136. 
 
 Wilson V. R. R. Co., 403. 
 
 Wilson Sewing Mach. Co. v. Sloan, 
 
 225. 
 Wilson V. Wernwag, 120. 
 Wilson V. Whitaker, 629. 
 Wilson V. Young, 458, 636. 
 Wineberg v. Du Bois, 416. 
 Winkler v. Racine Co., 381. 
 Winnegar's Administrator v. Cent. 
 
 Pass. Ry. Co., 399. 
 Winslow Bros. v. Du Puy, 360. 
 Witherbee v. Meyer, 122, 237. 
 Withers v. Reynolds, 338. 
 Witmark v. R. R. Co., 670. 
 Wood v. Gunston, 683. 
 Wood V. Ins. Co., 659. 
 Wood V. Morewood, 467, 481. 
 Woodruff V. Little. 428. 
 Woeckner v. Erie E. M. Co., 122. 
 Wolf V. Dietzsch, 360. 
 Wolf V. Frank, 553. 
 Wragg V. Mead, 250. 
 Wright V. Bank of Metropolis, 630. 
 Wright V. Falkner, 378. 
 Wright V. Haskell, 355. 
 Wright V. Howard. 7. 
 Wright V. Wilcox, 532. 
 W. U. Tel. Co. V. Hall, 567, 577.
 
 TABLE OP CASES CITED. 
 
 XXI 
 
 W. U. Tel. Co. V. Rogers, 459. 
 
 Wyman v. Leavitt, 110. 
 
 Wyman v. Robinson, 186. 
 
 Yazoo & M. V. R. Co. v. Millsaps 
 
 421. 
 Yeazel v. Alexander, 555. 
 Yerkes v. N. P. R. R., 416. 
 Yertore v. Wiswall, 438, 439, 441. 
 Young V. Titwood, 659, 
 
 [The references are to the pages.] 
 
 Young V. Harrison, 612. 
 
 Young V. Marshall, 260. 
 Young V. Spencer, 5. 
 Young V. Telegraph Co., 115. 
 Yundt V. Hartrunft, 554. 
 Zabriskie v. Smith, 435, 438. 
 Zillmer v. Kreutzberg, 462. 
 Zimmerman v. Timmerman, 360.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 I. INTRODUCTION. 
 
 General Principles and Theory of Damages. 
 
 1. Injuria sine damno. 
 
 Webb V. Portlaud Manufacturing Co 1 
 
 2. Damnum absque injuria. 
 
 Thurston v. Hancock 11 
 
 II. CLASSIFICATION OF DAMAGES. 
 
 1. 'Nominal Damages. 
 
 Wood V. Waud 19 
 
 Jewett V. Whitney 20 
 
 Tufts V. Bennett 21 
 
 Lowe V. Turpie 21 
 
 The Columbus Company Limited v. Clowes 25 
 
 2. Avoidable Damages. 
 
 Clark V. Marsiglia 27 
 
 Sullivan v. McMillan 29 
 
 Zibbell V. City of Grand Rapids 33 
 
 3. Compensatory Damages. 
 
 Allison V. Chandler 34 
 
 Parker v. Russell 37 
 
 Baltimore and Potomac Railroad v. Fifth Baptist Church 40 
 
 Darley Main Colliery Co. v. Mitchell 41 
 
 Lewis V. Hartford Dredging Co 44 
 
 1) Elements of Compensation. 
 
 (1) Loss of time. 
 
 Leeds v. Metropolitan Gas Light Co 48 
 
 Lund V. Tyler 50 
 
 Smith V. Whittlesey 51 
 
 (2) Earning poiver. 
 
 Johnston v. Great Western Railway Co 54 
 
 (3) Loss of wages. 
 
 Walker v. City of Philadelphia 59 
 
 Camparetti v. Union Ry. Co 59 
 
 Wyman v. Deady 61 
 
 (4) Loss of profits. 
 
 Masterton v. The Mayor of Brooklyn 64 
 
 Griffin v. Colver 73 
 
 Brigham v. Carlisle 79 
 
 xxiii
 
 XXiv TABLE OF CONTENTS. 
 
 II. CLASSIFICATION OF DAMAGES— Continued. 
 
 Wright V. Mulvaney 82 
 
 Bethel & Co. v. Salem Improvement Co 84 
 
 Stevens v. Yale 85 
 
 Weir V. Union Railway Co 86 
 
 (5) Expenses. 
 
 Ellis V. Hilton 89 
 
 Bernstein v. Meech 91 
 
 a. Physician's fees. 
 
 Sibley v. Mason 93 
 
 Schmidt v. Kurrus 95 
 
 (6) Pain and suffering. 
 
 Goodhart v. Pennsylvania R. R. Co 98 
 
 (7) Mental anguish. 
 
 Canning v. Williamstow^n 101 
 
 Victorian Rys. Com'rs v. Coultas 102 
 
 Larson v. Chase 103 
 
 Sloane v. Southern California Ry. Co 105 
 
 Mitchell V. Rochester Ry. Co 109 
 
 Wilkinson v. Downton Ill 
 
 Chappell V. Ellis 114 
 
 Braun v. Craven 116 
 
 Watson V. Dilts 118 
 
 4. Exemplary Damages. 
 
 Merest v. Harvey 123 
 
 Goddard v. Grand Trunk Railway 124 
 
 Lake Shore & M. S. Railway v. Prentice 127 
 
 Maisenbacker v. The Society Concordia 133 
 
 Krug V. Pitass 137 
 
 Haywood v. Hamm 140 
 
 5. Excessive Damages. 
 
 Huckle v. Money 142 
 
 Peterson v. Western Union Telegraph Co 144 
 
 6. Inadequate Damages. 
 
 Robinson v. Town of Waupaca 146 
 
 Samuels v. N. Y. City Ry. Co 148 
 
 Cornish v. North N. J. Street Railway Co 149 
 
 7. Liquidated Damages or Penalty. 
 
 Keeble v. Keeble 150 
 
 Smith V. Bergenren 153 
 
 Tennessee Manufacturing Co. v. James 154 
 
 Monmouth Park Assoc, v. Wallis Iron Works 156 
 
 Curtis v. Van Bergh 159 
 
 Illinois Cent. R. Co. v. Cabinet Co 164 
 
 Clydebank Engineering and Shipbuilding Company v. 
 
 Don Jose Ramos Yzquierdo y Castaneda 166 
 
 Pye V. British Automobile Comm'l Syndicate Limited. .170
 
 TABLE OP CONTENTS. XXV 
 
 II. CLASSIFICATION OF DAMAGES— Continued. 
 
 Kemble v. Farren 174 
 
 Willson V. Mayor of Baltimore 176 
 
 Caesar v. Rubiuson 182 
 
 8. Prospective Damages. 
 
 Bowers v. Mississippi & R. R. Boom Co . .187 
 
 Ceigler v. Hopper-Morgan Co 188 
 
 III. DIRECT AND CONSEQUENTIAL DAMAGE. 
 
 Hadley v. Baxendale 191 
 
 Dubuque Wood and Coal Assoc, v. Dubuque 203 
 
 Lawrence v. Hagerman 205 
 
 McHose V. Fulmer 207 
 
 Brown v. Chicago, Milwaukee and St. Paul Railway 209 
 
 Wood V. Pennsylvania R. R. Co 214 
 
 IV. CERTAINTY. 
 
 1. Contingent, Remote and Speculative Damages. 
 
 Loker v. Damon 219 
 
 Masterton v. Mount Vernon 220 
 
 Lilley v. Doubleday 221 
 
 Hichhorn v. Bradley 224 
 
 V. DAMAGES IN ACTIONS ON CONTRACTS. 
 
 1. Contracts relating to Real Property. 
 
 Flureau v. Thornhill 229 
 
 Synge v. Synge 230 
 
 1) Actions between landlord and tenant. 
 
 Raynor v. Blatz Brewing Co 234 
 
 Eagen v. Browne 237 
 
 2) Sale of land. 
 
 McGuckin v. Milbank 238 
 
 (1) Breach of vendor, 
 
 Hopkins v. Lee 240 
 
 Margraf v. Muir 241 
 
 a. Breach of covenant of title. 
 
 Staats V. Ten Eyck 243 
 
 2. Contracts relating to Personal Property. 
 
 White V. Solomon 253 
 
 1) Bailment. 
 
 Keith V. De Bussigney 253 
 
 (1) Damages against a common carrier for 
 breach of contract to transport personalty. 
 Home V, Midland Railway 254 
 
 2) Sales of personal property. 
 
 (1) Breach of vendor. 
 
 Shields v. Pettie 258 
 
 Messmore v. The New York Shot and Lead Co. .261 
 Cory V. Thomas Ironworks & Shipbuilding Com- 
 pany, Limited 265
 
 XXVI TABLE OF CONTENTS. 
 
 V. DAMAGES IN ACTIONS ON CONTRACTS— Continued. 
 
 Brown v. Muller 271 
 
 Ashmore v. Cox 273 
 
 a. Breach of Warranty. 
 
 Perley v. Balcli 277 
 
 Gary v. Gruman 280 
 
 Cahen v. Piatt 282 
 
 Hammond v. Bussey .284 
 
 Park V. Richardson 291 
 
 Hendrickson v. Back 292 
 
 Bostock V. Nicholson 293 
 
 Isaacs V. Wanamaker 297 
 
 (2) Breach of vendee. 
 
 Ganson v. Madigan 298 
 
 Dustan v. McAndrew 300 
 
 Bridgford v. Crocker 304 
 
 Kadish v. Young 30i! 
 
 Canda v. Wick 310 
 
 Windmuller v. Pope 311 
 
 Unexcelled Fire- Works Co. v. Polites 312 
 
 Van Brocklen v. Smeallie 315 
 
 Roehm v. Horst 321 
 
 3) Contracts to Manufacture. 
 
 (1) Breach of vendor. 
 
 Beeman v. Banta 323 
 
 Jordan v. Patterson 325 
 
 (2) Breach of vendee. 
 
 Bement v. Smith 330 
 
 Hosmer v. Wilson 334 
 
 Ballentine v. Robinson 339 
 
 Shawham v. Van Nest 341 
 
 Todd V. Gamble 347 
 
 Guetzkow Bros. Co. v. Andrews 350 
 
 3. Contracts relating to Work, Labor, and Services. 
 
 Hayward v. Leonard 353 
 
 Valente v. Weinberg 355 
 
 Ware Bros. v. Cortland C. & C. Co 357 
 
 1) Damages for unlawful discharge. 
 
 Dennis v. Maxfield 360 
 
 Wolf V. Studebaker 364 
 
 Howard v. Daly 366 
 
 Sutherland v. Wyer 374 
 
 McMullen v. Dickinson Co 376 
 
 4. Breach of Contract to Transport Passengers. 
 
 Hobbs V. London & Southwestern Railway 381 
 
 Turner v. Great Northern Ry. Co 387
 
 TABLE OF CONTENTS. XXVll 
 
 V. DAMAGES IN ACTIONS ON CONTRACTS— Continued. 
 
 Cooley V. Pennsylvania R. Co 389 
 
 Gillespie v, Brooklyn Heights R. R. Co 391 
 
 5. Contract for Board and Rooms. 
 
 Wilkinson v. Davies 404 
 
 VI. DAMAGES IN ACTIONS FOR WRONGS. 
 
 1. Negligence. 
 
 Richmond Gas Co. v. Baker 407 
 
 Hubbard v. N. Y. & N. H. & H. R. Co 409 
 
 Donahue v. Keystone Gas Co 409 
 
 Kronold v. City of N. Y 410 
 
 Bondy v. N. Y. City R. R. Co 414 
 
 1) Actions against common carriers. 
 
 Denny v. New York Central Railroad 416 
 
 Green- Wheeler Shoe Co. v. Chicago. R. I. & P. Ry. 
 Co 419 
 
 2) Death by negligence, 
 
 Hassenyer v. Michigan Cent. R. R. Co 423 
 
 Demarest v. Little 427 
 
 Hegerich v. Keddie 431 
 
 Denver & R. G. R. Co. v. Spencer 441 
 
 Broughel v. Southern New Eng. Tel. Co 444 
 
 Smith V. Lehigh Valley R, Co 449 
 
 2. Trespass. 
 
 Perrott v. Shearer 451 
 
 Stodghill V. Chicago, Burlington & Quincy Railroad 453 
 
 Koerber v. Patek ^57 
 
 Hadwell v. Righton 462 
 
 3. Trover and Conversion. 
 
 Forsyth v. Wells 465 
 
 Groat V. Gile 468 
 
 Bateman v. Ryder 475 
 
 Barker v. Lewis 477 
 
 White V. Yawkey 479 
 
 Wallingford v. Kaiser 482 
 
 4. Replevin. 
 
 Wiley V. McGrath 488 
 
 Pabst Brewing Co. v. Rapid Safety Filter Co 490 
 
 5. Nuisance. 
 
 Schlitz Brewing Co. v. Compton 493 
 
 Ackerman v. True 499 
 
 Pritchard v. Edison Electric 111. Co 502 
 
 6. Assault and Battery. 
 
 Fetter v. Beal 506 
 
 Beach v. Hancock 507 
 
 Hanna v. Sweeney 509
 
 XXVlll TABLE OF CONTENTS. 
 
 VI. DAMAGES IN ACTIONS FOR WRONGS— Continued. 
 
 7. Slander. 
 
 Lynch v. Knight 512 
 
 Flannigan v. Stauss 513 
 
 8. Libel. 
 
 Sickra v. Small 515 
 
 Smith V. Matthews 518 
 
 Taylor v. Hearst 521 
 
 Butler V. Hoboken Printing and Pub. Co 522 
 
 9. False Imprisonment. 
 
 Wegner v. Risch 527 
 
 Craven v. Bloomingdale 529 
 
 10. Malicious Prosecution. 
 
 Samieloff v. N. Y. & Q. C. Ry. Co 534 
 
 11. Fraud and Deceit. 
 
 Peek V. Derry 537 
 
 Gustaf son v. Rustemeyer 538 
 
 Brown v. Morrill 543 
 
 12.' Seduction. 
 
 Hewitt V, Prime 546 
 
 Mathies v. Mazet 548 
 
 13. Criminal Conversation. 
 
 Angell V. Reynolds 550 
 
 Shannon v. Swanson 553 
 
 VII. BREACH OF PROMISE TO MARRY. 
 
 Kellert v. Robie 556 
 
 Roberts v. Druillard 558 
 
 Salchert v. Reinig 561 
 
 VIII. ACTIONS AGAINST TELEGRAPH COMPANIES. 
 
 Primrose v. W. U. Tel. Co 567 
 
 McPeek v. W. U. Tel. Co 571 
 
 Western Union Tel. Co. v. Nye 574 
 
 IX. ACTIONS UNDER "CIVIL DAMAGE ACT." 
 
 Merrinane v. Miller 582 
 
 Beckerle v. Brandon 586 
 
 X. EMINENT DOMAIN. 
 
 South Buffalo Railway Co. v. Kirkow 590 
 
 Stephens v. N. Y., O. & W. R. R. Co 594 
 
 Henkel v. Wabash P. T. R. R. Co 596 
 
 In re City of New York 597 
 
 XI. VALUE. 
 
 Kountz V. Kirkpatrick 602 
 
 Boom Co. V. Patterson 610 
 
 Hilton V. Phoenix Assurance Co 612 
 
 McMahon v. City of Dubuque 614 
 
 Treanor v. New York Breweries Co 616 
 
 Sills V. Cochems 618
 
 TABLE OF CONTENTS. XXIX 
 
 XI. VALUE— Continued. 
 
 1. Fluctuation in value. 
 
 Baker v. Drake 619 
 
 Ingram v. Rankin 624 
 
 Galigher v. Jones 627 
 
 XII. MITIGATION OP DAMAGES. 
 
 Currier v. Swan 631 
 
 Goldsmith v. Joy 632 
 
 Nicholl V. Ashton 640 
 
 XIII. INTEREST. 
 
 Atwood V. Boston Forwarding & Transfer Co 644 
 
 Bernhard v. Rochester German Ins. Co 645 
 
 XIV. EXPENSES OF LITIGATION. 
 
 Day V. Woodworth 648 
 
 Agius V. Gt. Western Colliery Co 651 
 
 XV. EVIDENCE. 
 
 Louisville, N. A. & C. R. R. v. Sparks 655 
 
 Sharp V. U. S 657 
 
 Poehlmann v. Kertz 662 
 
 Briggs V. N. Y., N. H. & H. R. Co 664 
 
 Hicks V. Monarch Cycle Mfg. Co 667 
 
 Robinson v. N. Y. El. R. R 669 
 
 Bartow v. Erie R. R. Co 671 
 
 Marriott v. Williams 672 
 
 Gombert v. N. Y. C. & H. R. R. R. Co 674 
 
 XVI. PROVINCE OF COURT AND JURY. 
 
 Phillips V. London & S. W. Railway 680 
 
 Gambrell v. Schooley 681 
 
 Tathwell v. City of Cedar Rapids. 682 
 
 Chicago City Ry. Co. v. Gemmill 686 
 
 Southern Pacific Co. v. Fitchett 689
 
 Cases on Measure of Damages 
 
 I. INTRODUCTION. 
 
 GENERAL PRINCIPLES AND THEORY OF 
 DAMAGES 
 
 1, Injuria Sine Damno. 
 WEBB V. PORTLAND MANUFACTURING CO. 
 
 Massachusetts, 183S. 3 Sumner, 189. 
 
 This is a bill in equity for an injunction to prevent the defend- 
 ant from diverting a watercourse from the plaintiff's mill. 
 
 At the Saccarappi Falls, on the Presumpscut river, there were 
 two successive falls, upon which were erected, about 40 or 50 
 rods apart, two milldams, called the upper and the lower dams, 
 in the latter of which the plaintiff and the defendant were en- 
 titled to certain mill privileges. In order to supply water to its 
 factory near the left bank of the river, the defendant opened a 
 canal into the pond just below the upper dam, and returned the 
 water thus withdra\^Tl into the river below the lower dam, insist- 
 ing upon its right so to divert the water because it was a small 
 part only, (about one-fourth), of the water, to which defendant 
 was entitled as mill owner on the lower dam. 
 
 Story, J. The question, which has been argued upon the sug- 
 gestion of the court, is of vital importance in the cause ; and, if 
 decided in favor of the plaintiff, it supersedes many of the in- 
 quiries, to which our attention must otherwise be directed. It is 
 on this account, that we thought it proper to be argued, separately 
 from the general merits of the cause. 
 
 The argument for the defendants then presents two distinct 
 questions. The first is, whether, to maintain the present suit, 
 it is essential for the plaintiff to establish any actual damage. 
 
 1
 
 2 GENERAL PRINCIPLES AND THEORY OP DAMAGES. 
 
 The second is, whether, in point of law, a mill-owner, having a 
 right to a certain portion of the water of a stream for the use 
 of his mill at a particular dam, has a right to draw off the same 
 portion, or any less quantity of the water, at a considerable dis- 
 tance above the dam, without the consent of the owners of other 
 mills on the same dam. In connection with these questions the 
 point will also incidentally arise, whether it makes any difference, 
 that such drawing off of the water above, can be shown to be no 
 sensible injury to the other mill-owners on the lower dam. 
 
 As to the first question, I can very well understand that no 
 action lies in a case where there is damnum absque injuria, that 
 is, where there is a damage done without any wrong or violation 
 of any right of the plaintiff. But I am not able to understand, 
 how it can correctly be said, in a legal sense, that an action will 
 not lie, even in case of a wrong or violation of a right, unless 
 it is followed by some perceptible damage, which can be estab- 
 lished, as a matter of fact; in other words, that injuria sine 
 damno is not actionable. See Mayor of Lynn v. Mayor of Lon- 
 don, 4 Term. R. 130, 141, 143, 144; Com. Dig. "Action on the 
 Case," B, 1, 2. On the contrary, from my earliest reading, I 
 have considered it laid up among the very elements of the com- 
 mon law, that, wherever there is a wrong, there is a remedy to 
 redress it; and that every injury imports damage in the nature 
 of it ; and, if no other damage is established, the party is entitled 
 to a verdict for nominal damages. A fortiori, this doctrine ap- 
 plies where there is not only a violation of a right of the plain- 
 tiff, but the act of the defendant, if continued, may become the 
 foundation, by lapse of time, of an adverse right in the defend- 
 ant ; for then it assumes the character, not merely of a violation 
 of a right, tending to diminish its value, but it goes to the abso- 
 lute destruction and extinguishment of it. Under such circum- 
 stances, unless the party injured can protect his right from such 
 violation by an action, it is plain, that it may be lost or de- 
 stroyed, without any possible remedial redress. In my judg- 
 ment, the common law countenances no such inconsistency, not to 
 call it by a stronger name. Actual, perceptible damage is not 
 indispensable as the foundation of an action. The law tolerates 
 no farther inquiry than whether there has been the violation of a 
 right. If so, the party injured is entitled to maintain his action 
 for nominal damages, in vindication of his right, if no other 
 damages are fit and proper to remunerate him.
 
 INJURIA SINE DAMNO. 3 
 
 So long ago as the great ease of Ashby v. White, 2 Ld. Rayra. 
 938, 6 Mod. 45, Holt, 524, the objection was put forth by some 
 of the judges, and was answered by Lord Holt, with his usual 
 ability and clear learning; and his judgment was supported by 
 the house of lords, and that of his brethren overturned. By the 
 favor of an eminent judge, Lord Holt's opinion, apparently 
 copied from his own manuscript, has been recently printed. In 
 this last printed opinion, (page 14), Lord Holt says: "It is 
 impossible to imagine any such thing, as injuria sine damno. 
 Every injury imports damage in the nature of it." S. P. 2 Ld. 
 Raym. 955. And he cites many cases in support of his position. 
 Among these is Starling v. Turner, 2 Lev. 50, 2 Vent. 25, where 
 the plaintiff was a candidate for the office of bridgemaster of 
 London bridge, and the lord mayor refused his demand of a 
 poll; and it was determined, that the action was maintainable 
 for the refusal of the poll. Although it might have been, that 
 the plaintiff would not have been elected, the action was neverthe- 
 less maintainable; for the refusal was a violation of the plain- 
 tiff's right to be a candidate. So in the case cited, as from 
 "23 Edw. HI. 18, tit. Defense," (it is a mistake in the MS., 
 and should be 29 Edw. III. 18^;; Fitz. Abr. tit. "Defense," pi. 
 5), and 11 Hen. IV. 47, where the owTier of a market, entitled 
 to toll upon all cattle sold within the market, brought an action 
 against the defendant, for hindering a person from going to the 
 market with the intent to sell a horse, it was, on the like ground, 
 held maintainable ; for though the horse might not have been 
 sold, and no toll would have become due ; yet the hindering the 
 plaintiff from the possibility of having toll was such an injury 
 as did import such damage, for which the plaintiff ought to re- 
 cover. So in Hunt v. Dowman, Cro. Jac. 478, 2 Rolle, 21, where 
 the lessor brought an action against the lessee, for disturbing 
 him from entering into the house leased, in order to view it, and 
 to see whether any waste was committed ; and it was held, that 
 the action well lay, though no waste was committed and no ac- 
 tual damage done ; for the lessor had a right so to enter, and the 
 hindering of him was an injury to that right, for which he might 
 maintain an action. So Herring v. Finch, 2 Lev. 250, where it 
 was held, that a person entitled to vote, who was refused his 
 vote at an election, might well maintain an action therefor, al- 
 though the candidate for whom he might have voted might not 
 have been chosen ; and the voter could not sustain any pereep-
 
 4 GENERAL PRINCIPLES AND THEORY OF DAMAGES. 
 
 liblo or actual damage by such refusal of his vote. The law 
 gives the remedy in such ease; for there is a clear violation of 
 the right. And his doctrine, as to a violation of the right to 
 vote, is now incontrovertibly established; and yet it would be 
 impracticable to show any temporal or actual damage thereby. 
 See Harman v. Tappenden, 1 East, 555; Drewe v. Coulton, id. 
 563, note; Kilham v. Ward, 2 Mass. 236; Lincoln v. tiapgood, 
 11 Mass. 350; 2 Vin. Abr. "Actions," [Case] n. c. p]. 3. In the 
 case of Ashby v. White, as reported by Lord Raymond (2 Ld. 
 Raym. 953), Lord Holt said: "If the plaintiff has a right, he 
 must of necessity have a means to vindicate and maintain it, and 
 a remedy, if he is injured in the exercise or enjoyment of it: and 
 indeed, it is a vain thing to imagine a right without a remedy ; 
 for want of right and want of remedy are reciprocal." S. P. 
 6 Mod. 53. The principles laid down by Lord Holt are so 
 strongl}^ commended, not only by authority, but by the common 
 sense and common justice of mankind, that they seem absolutely, 
 in a juridical view, incontrovertible. And they have been fully 
 recognized in many other cases. The note of Mr. Sergeant Wil- 
 liams to Mellor v. Spateman, 1 Saund. 346a, note 2 ; Wells v. 
 Watling, 2 AV. Bl. 1239 ; and the case of the Tunbridge Dippers, 
 Weller v. Baker, 2 Wils. 414, are direct to the purpose. I am 
 aware that some of the old cases inculcate a different doctrine, 
 and perhaps are not reconcilable with that of Lord Holt. There 
 are also some modern cases, which at first view se.em to the con- 
 trary. But they are distinguishable from that now in judgment, 
 and if they were not, ego assentior scoevoloe. The case of Wil- 
 liams v. Morland, 2 Barn. & C. 910, seems to have proceeded 
 upon the ground, that there was neither any damage nor any 
 injury to the right of the plaintiff. Whether that case can be 
 supported upon principle, it is not now necessary to say. Some 
 of the dicta in it have been subsequently impugned; and the 
 general reasoning of the judges seems to admit, that if any 
 right of the plaintiff had been violated, the action would have 
 lain. The case of Jackson v. Pesked, 1 Maule & S. 235, turned 
 upon the supposed defects of the declaration, as applicable to a 
 mere reversionary interest, it not stating any act done to the 
 prejudice of that reversionary interest. I do not stop to in- 
 quire, whether there was not an over-nicety in the application of 
 the technical principles of pleading to that case ; although, not- 
 Avithstanding the elaborate opinion of Lord Ellenborough, one
 
 INJURIA SINE DAMNO. O 
 
 might be inclined to pause upon it. The case of Young v. 
 Spencer, 10 Barn. & C. 145, turned also upon the point, whether 
 any injury was done to a reversionary interest. I confess myself 
 better pleased with the ruling of the learned judge (Mr. Justice 
 Bayley,) at the trial, than with the decision of the court in grant- 
 ing a new trial. But the court admitted, that, if there was any 
 injury to the reversionary right, the action would lie; and 
 although there might be no actual damage proved, yet if any- 
 thing done by the tenant would destroy the evidence of title, the 
 action was maintainable. A fortiori, the action must have been 
 held maintainable, if the act done went to destroy the existing 
 right, or to found an adverse right. 
 
 On the other hand, JMarzetti v. Williams, 1 Barn. & Adol. 415, 
 goes the whole length of Lord Holt's doctrine; for there the 
 plaintiff recovered, notwithstanding no actual damage was 
 proved at the trial; and Mr. Justice Taunton on that occasion 
 cited many authorities to show, that, where a wrong is done, 
 by which the right of the party may be injured, it is a good 
 cause of action, although no actual damage be sustained. In 
 Hobson V. Todd, 4 Term R. 71, 73, the court decided the case 
 upon the very distinction which is most material to the present 
 case, that if a commoner might not maintain an action for an 
 injury, however small, to his right, a mere wrong-doer might, 
 by repeated torts, in the course of time establish evidence of a 
 right of common. The same principle was afterwards recog- 
 nized by Mr. Justice Gross, in Finder v. Wadsworth, 2 East, 
 162. But the case of Bower v. Hill, 1 Bing. N. C. 549, fully 
 sustains the doctrine for which I contend ; and, indeed, a stronger 
 case of its application cannot well be imagined. There the court 
 held, that a permanent obstruction to a navigable drain of the 
 plaintiff's, though choked up with mud for sixteen years, was 
 actionable, although the plaintiff received no immediate damage 
 thereby ; for, if acquiesced in for twenty years, it would become 
 evidence of a renunciation and abandonment of the right of 
 way. The case of Blanchard v. Baker, 8 Greenl. 253, 268, recog- 
 nizes the same doctrine in the most full and satisfactory man- 
 ner, and is directly in point; for it was a case for diverting 
 water from the plaintiff's mill. I should be sorry to have it sup- 
 posed, for a moment, that Tyler v. Wilkinson, 4 Mason, 397, im- 
 ported a different doctrine. On the contrary, I have always con- 
 sidered it as proceeding upon the same doctrine.
 
 b GENERAL PRINCIPLES AND THEORY OF DAMAGES. 
 
 Upon the whole, without going farther into an examination 
 of the authorities on this subject, my judgment is, that when- 
 ever there is a clear violation of a right, it is not necessary in 
 an action of this sort to show actual damage; that every viola- 
 tion imports damage; and if no other be proved, the plaintiff 
 is entitled to a verdict for nominal damages. And, a fortiori, 
 that this doctrine applies, whenever the act done is of such a 
 nature, as that by its repetition or continuance it may become the 
 foundation or evidence of an adverse right. See, also, Mason 
 V. Hill, 3 Barn. & Adol. 304, 5 Barn. & Adol. 1. 
 
 But if the doctrine were otherwise, and no action were main- 
 tainable at law, without proof of actual damage ; that would 
 furnish no ground why a court of equity should not interfere 
 and protect such a right from violation and invasion ; for, in a 
 great variety of cases, the very ground of the interposition of a 
 court of equity is, that the injury done is irremediable at law; 
 and that the right can only be permanently preserved or per- 
 petuated by the powers of a court of equity. And one of the 
 most ordinary processes, to accomplish this end is by a writ of 
 injunction, the nature and efficacy of which for such purpose, I 
 need not state, as the elementary treatises fully expound them. 
 See Eden, Inj.; 2 Story, Eq. Jur. c. 23, §§ 86-959; Bolivar 
 Manuf 'g Co. v. Neponset Manuf'g Co., 16 Pick. 241. If, then, 
 the diversion of water complained of in the present case is a 
 violation of the right of the plaintiff, and may permanently in- 
 jure that right, and become, by lapse of time, the foundation of 
 an adverse right in the defendant, I know of no more fit case 
 for the interposition of a court of equity, by way of injunction, 
 to restrain the defendant from such an injurious act. If there 
 be a remedy for the plaintiff at law for damages, still that remedy 
 is inadequate to prevent and redress the mischief. If there be 
 no such remedy at law, then, a fortiori, a court of equity ought 
 to give its aid to vindicate and perpetuate the right of the plain- 
 tiff. A court of equity will not indeed entertain a bill for an 
 injunction in case of a mere trespass fully remediable at law. 
 But if it might occasion irreparable mischief, or permanent in- 
 jury, or destroy a right, that is the appropriate case for such a 
 bill. See 2 Story, Eq. Jur. §§ 926-928, and the cases there cited; 
 Jerome v. Ross, 7 Johns. Ch. 315; Van Bergen v. Van Bergen, 
 3 Johns. Ch. 282 ; Newburgh & C. Turnpike v. Miller, 5 Johns. 
 Ch. 101 ; Gardner v. Village of Newburgh, 2 Johns. Ch. 162.
 
 INJURIA SINE DxVMNO. 7 
 
 Let US come then, to the only remaining question in the cause ; 
 and that is, whether any right of the plaintiff, as mill-owner on 
 the lower dam, is or will be violated by the diversion of the 
 water by the canal of the defendant. And here it does not 
 seem to me that, upon the present state of the law, there is any 
 real ground for controversy, although there were formerly many 
 vexed questions, and much contrariety of opinion. The true 
 doctrine is laid down in Wright v. Howard, 1 Sim. & S. 190, 
 by Sir John Leach, in regard to riparian proprietors, and his 
 opinion has since been deliberately adopted by the king 's bench. 
 Mason v. Hill, 3 Barn. & Adol. 304, 5 Barn. & Ado. 1. See, 
 also, Bealey v. Shaw, 6 East, 208. ''Prima facie," says that 
 learned judge, "the proprietor of each bank of a stream is the 
 proprietor of half of the land covered by the stream ; but there is 
 no property in the water. Every proprietor has an equal right 
 to use the water, which flows in the stream; and consequently, 
 no proprietor can have the right to use the water to the prejudice 
 of any other proprietor, without the consent of the other pro- 
 prietors, who may be affected by his operations; no proprietor 
 can either diminish the quantity of water, which would other- 
 wise descend to the proprietors below, nor throw the water back 
 upon the proprietors above. Every proprietor, who claims a 
 right either to throw the water back above, or to diminish the 
 quantity of water, which is to descend below, must, in order 
 to maintain his claim, either prove an actual grant or license 
 from the proprietors affected by his operations, or must prove 
 an uninterrupted enjoyment of twenty years, which term of 
 twenty years is now adopted upon a principle of general con- 
 venience, as affording conclusive presumption of a grant." The 
 same doctrine was fully recognized and acted upon in the case 
 of Tyler v. Wilkinson, 4 Mason, 397, and also in the case of 
 Blanchard v. Baker, 8 Greenl. 253, 266. In the latter case the 
 learned judge, (Mr. Justice Weston), who delivered the opinion 
 of the court, used the following emphatic language: "The right 
 to the use of a stream is incident or appurtenant to the land 
 through which it passes. It is an ancient and well-established 
 principle, that it cannot be lawfully diverted, unless it is re- 
 turned again to its accustomed channel, before it passes the 
 land of a proprietor below. Running water is not susceptible 
 of an appropriation, which will justify the diversion or unrea- 
 sonable detention of it. The proprietor of the water-course has
 
 8 GENERAL PRINCIPLKS AND THEORY OF DAMAGES. 
 
 a right to avail himself of its momentum as a power, which may 
 be turned to beneficial purposes." Mr. Chancellor Kent has 
 also summed up the same doctrine, with his usual accuracy, m 
 the brief, but pregnant, text of his Conmientaries, (3 Kent's 
 Comm. Lect. 42, p. 439, 3d ed.) ; and 1 scarcely know, Avhere 
 else it can be found reduced to so elegant and satisfactory a 
 formulary. In the old books, the doctrine is quaintly, though 
 clearly stated ; for it is said, that a water-course begins ex jure 
 naturce, and having taken a certain course naturally, it cannot 
 be [lawfully] diverted. "Aqua currit, et debet currere, ut cur- 
 rere solehat." Shury v. Piggot, 3 Bulst. 339, Poph. 166. 
 
 The same principle applies to the owners of mills on a stream. 
 They have an undoubted right to the flow of the water, as it 
 has been accustomed of right and naturally to flow to their re- 
 spective mills. The proprietor above has no right to divert, or 
 unreasonably to retard, this natural flow to the mills below; 
 and no proprietor below has a right to retard or turn it back 
 upon the mills above, to the prejudice of the right of the pro- 
 prietors thereof. This is clearly established by the authorities 
 already cited; the only distinction between them being, that 
 the right of a riparian proprietor arises by mere operation of 
 laAv, as an incident to his ownership of the bank ; and that of a 
 mill-owner, as an incident to his mill. Bealey v. Shaw, 6 East, 
 208 ; Saunders v. Newman, 1 Barn. & Aid. 258 ; Mason v. Hill, 
 3 Bam. & Adol. 304, 5 Barn. & Adol. 1 ; Blanchard v. Baker, 
 8 Greenl. 253, 268; and Tyler v. Wilkinson, 4 Mason, 397, are 
 fully in point. Mr. Chancellor Kent, in his Commentaries, relies 
 on the same principles, and fully supports them by a large survey 
 of the authorities. 3 Kent Comm. Lect. 52, pp. 441-445, 3d ed. 
 
 Now, if this be the law on this subject, upon what ground 
 can the defendant insist upon a diversion of the natural stream 
 from the plaintiff's mills, as it has been of right accustomed to 
 flow thereto? First, it is said, that there is no perceptible dam- 
 age done to the plaintiff. That suggestion has been already in 
 part answered. If it were true, it could not authorize a diver- 
 sion, because it impairs the right of the plaintiff to the full, nat- 
 ural flow of the stream ; and may become the foundation of an 
 adverse right in the defendant. In such a case, actual damage 
 is not necessary to be established in proof. The law presumes 
 it. The act imports damage to the right, if damage be neces- 
 sary. Such a case is wholly distinguishable from a mere fugi-
 
 INJURIA SINE DAMNO. U 
 
 tive, temporary trespass, by diverting or withdrawing the water 
 a short period, without damage, and without any pretense of 
 right. In such a case the wrong, if there be no sensible damage 
 and it be transient in its nature and character, as it does not 
 touch the right, may possibly (for I give no opinion upon such 
 a case), be without redress at law; and certainly it would found 
 no ground for the interposition of a court of equity by way of 
 injunction. 
 
 But I confess myself w^holly unable to comprehend, how it 
 can be assumed, in a case like the present, that there is not and 
 cannot be an actual damage to the right of the plaintiff. What 
 is that right? It is the right of having the water flow in its 
 natural current at all times of the year to the plaintiff's mills. 
 Now, the value of the mill privileges must essentially depend, 
 not merely upon the velocity of the stream, but upon the head 
 of water, which is permanently maintained. The necessary re- 
 sult of lowering the head of water permanently, would seem, 
 therefore, to be a direct diminution of the value of the privi- 
 leges. And if so, to that extent it must be an actual damage. 
 
 Again, it is said, that the defendants are mill-owners on the 
 lower dam, and are entitled, as such, to their proportion of the 
 water of the stream in its natural flow. Certainly they are. 
 But where are they so entitled to take and use it? At the 
 lower dam; for there is the place, where their right attaches, 
 and not at any place higher up the stream. Suppose they are 
 entitled to use, for their own mills on the lower dam, half the 
 water which descends to it, what ground is there to say, that 
 they have a right to draw off that half at the head of the mill- 
 pond? Suppose, the head of water at the lower dam in ordi- 
 nary times is two feet high, is it not obvious, that by withdraw- 
 ing at the head of the pond one-half of the W'ater, the water at 
 the dam must be proportionately lowered? It makes no differ- 
 ence, that the defendants insist upon drawing off only one-fourth 
 of what, they insist, they are entitled to; for, pro tanto, it will 
 operate in the same manner; and if they have a right to draw 
 off to the extent of one-fourth of their privilege, they have an 
 equal right to draw off the full extent of it. The privilege, 
 attached to the mills of the plaintiff, is not the privilege of 
 using half, or any other proportion merely, of water in the 
 stream, but of having the whole stream, undiminished in its 
 natural flow, come to the lower dam with its full power, and
 
 10 GENERAL PRINCIPLES AND THEORY OF DAMAGES. 
 
 there to use his full share of the water power. The plaintiff 
 has a title, not to a half or other proportion of the water in the 
 pond, but is, if one may so say, entitled per my et per tout to 
 his proportion of the whole bulk of the stream, undivided, and 
 indivisible, except at the lower dam. This doctrine, in my 
 judgment, irresistibly follows from the general principles already 
 stated; and what alone would be decisive, it has the express 
 sanction of the supreme court of Maine, in the case of Blanch- 
 ard V. Baker, 8 Greenl. 253, 270. The court there said, in reply 
 to the suggestion, that the owners of the eastern shore had a 
 right to half the water, and a right to divert it to that extent: 
 "It has been seen, that, if they had been owners of both sides, 
 they h-ad no right to divert the water without again returning 
 it to its original channel, (before it passes the lands of another 
 proprietor). Besides, it was impossible, in the nature of things, 
 that they could take it from their side only. An equal portion 
 from the plaintiff's side must have been mingled with all that 
 was diverted." 
 
 A suggestion has also been made, that the defendants have 
 full}^ indemnified the plaintiff from any injury, and in truth 
 have conferred a benefit on him, by securing the water by 
 means of a raised dam, higher up the stream, at Sebago pond, 
 in a reservoir, so as to be capable of affording a full supply in 
 the stream in the dryest seasons. To this suggestion several 
 answers may be given. In the first place, the plaintiff is no 
 party to the contract for raising the new dam, and has no in- 
 terest therein; and cannot, as a matter of right, insist upon its 
 being kept up, or upon any advantage to be derived therefrom. 
 In the next place, the plaintiff is not compellable to exchange 
 one right for another; or to part with a present interest in 
 favor of the defendants at the mere election of the latter. Even 
 a supposed benefit cannot be forced upon him against his will; 
 and, certainly, there is no pretense to say, that, in point of law, 
 the defendants have any right to substitute, for a present exist- 
 ing right of the plaintiff's, any other, which they may deem to 
 be an equivalent. The private property of one man cannot be 
 taken by another, simply because he can substitute an equivalent 
 benefit. 
 
 Having made these remarks upon the points raised in the argu- 
 ment, the subject, at least so far as it is at present open for the 
 consideration of the court, appears to me to be exhausted.
 
 DAMNUM ABSQUE INJURIA. 11 
 
 Whether, consistently with this opinion, it is practicable for the 
 defendants successfully to establish any substantial defense to the 
 bill, it is for the defendants, and not for the court, to consider. 
 
 I am authorized to say that the district judge concurs in this 
 opinion. 
 
 Decree accordingly. 
 
 2. Damnum Absque Injuria. 
 THURSTON V. HANCOCK. 
 
 Massachusetts, 1815. 12 Mass. 220. 
 
 This was an action on the case. 
 
 A trial was had upon the issue of not guilty, November, 1813, 
 and a verdict found for the defendants, was to be set aside, and a 
 new trial granted, if in the opinion of the court the plaintiff was 
 entitled to maintain his action upon the following state of facts 
 reported by the judge who sat in the trial : viz. That the plaintiff 
 in the year 1802, purchased a parcel of land upon Beacon Hill, 
 so called, in Boston, bounded westwardly on land belonging to 
 the town of Boston on said hill, eastwardly on Bowdoin street 
 so called, and northwardly and southwardly on land of D. D. 
 Rogers. That afterwards in the year 1804, the plaintiff erected a 
 valuable brick dwelling house thereon, which stood at the dis- 
 tance of forty feet from the northern and southern bounds of 
 his land; the back of said house being about two feet from 
 the western bounds of said land. That the foundation of said 
 house was placed about fifteen feet below the ancient surface 
 of the land. That the plaintiff with his family occupied said 
 house and land, from December, 1804, until they were obliged 
 to remove therefrom, as hereafter mentioned. That the de- 
 fendants commenced digging and removing the gravel from the 
 side of said hill in the year 1811. That on January 27, 1811, 
 the plaintiff gave them written notice that his house was en- 
 dangered thereby. That the defendants notwithstanding con- 
 tinued to dig and carry away the earth and gravel from the 
 hill, until the commencement of this action. That the only land 
 belonging to the defendants, which adjoined to the said house 
 and land of the plaintiff, was purchased by them of the town of 
 Boston, and conveyed by deed dated August 6, 1811. That
 
 12 GENERAL PRINCIPLES AND THEORY OF DAMAGES. 
 
 the laud Vaxu bouglil consisted of a lot about 100 feet square, 
 upon the tup of said hill, and a right in a highway 30 feet wide, 
 leading to it from Sumner street. That this lot and highway 
 were laid out by said town more than sixty years since, for the 
 purpose of erecting a beacon, and have never been used for 
 any other purpose, except the erection of a monument. That 
 the town derived its title to said land from long continued pos- 
 session for the purpose aforesaid. That all these facts were 
 known to the defendants, before they purchased said land of tlie 
 town. That this land adjoined the plaintiff's house and land 
 on the western side, and at the time of suing out the plaintiff's 
 writ the defendant's digging and removal of the earth as afore- 
 said had approached on the surface within five or six feet of 
 the plaintiff's house on the western side thereof, and in some 
 places the earth had, by reason of said digging and removal, 
 fallen from the walls thereof. That the defendants had dug 
 and carried away the earth near the northwestwardly corner 
 of said house to the depth of 45 feet, and on the western side 
 thereof to the depth of 30 feet, below the natural surface of 
 their own as well as of the plaintiff's land. That the earth dug 
 and removed by the defendants as aforesaid was upon and 
 from their said land next adjoining the plaintiff's land. That 
 by reason of the digging and removing of the earth as aforesaid, 
 to the depth aforesaid, below the ancient surface of the earth, 
 a part of the plaintiff's earth and soil, on the surface of his said 
 land, had fallen aw^ay and slidden upon the defendant's land; 
 and the foundation of the plaintiff's house was rendered insecure, 
 and it became and was at the time of commencing this action, 
 unsafe and dangerous to dwell in said house; and the plaintiff 
 was obliged to quit and abandon the same, previous to his com- 
 mencing this action, and afterwards to take it down in order 
 to save the materials thereof. 
 
 Parker, C. J. The facts agreed present a case of great mis- 
 fortune and loss, and one which has induced us to look very 
 minutely into the authorities, to see if any remedy exists in law 
 against those who have been the immediate actors in what has 
 occasioned the loss: but after all the researches we have been 
 able to make, we cannot satisfy ourselves that the facts reported 
 will maintain this action. 
 
 The plaintiff' purchased his land in the year 1802, on the sum- 
 mit of Beacon Hill, which has a rapid declivity on all sides. In
 
 DAMNUM ABSQUE INJURIA. 13 
 
 1804 he erected a brick dwelling-house and outhouses on this 
 lot; and laid his foundation, on the western side, within two 
 feet of his boundary line. The inhabitants of the town of Bos- 
 ton were at tliat time the owners, either by original title or by 
 an uninterrupted possession for more than sixty years, of the 
 land on the hill lying westwardly of the lot purchased by the 
 plaintiff. On the 6th of xVugust, 1811, the defendants purchased 
 of the town the land situated westwardly of the said lot owned 
 by the plaintiff; and in the same year commenced levelling the 
 hill, by digging and carrying away the gravel : they not actually 
 digging up to the line of division between them and the plaintiff ; 
 but keeping five or six feet therefrom. Nevertheless by reason 
 of the slope of the hill, the earth fell away, so as in some places 
 to leave the plaintiff's foundation wall bare, and so to endanger 
 the falling of his house, as to make it prudent and necessary, 
 in the opinion of skillful persons, for the safety of the lives of 
 himself and his family, to remove from the house ; and in order 
 to save the materials, to take dovra the house, and to rebuild 
 it on a safer foundation. The defendants were notified of the 
 probable consequences of thus digging by the plaintiff, and were 
 warned that they would be called upon for damages, in case of 
 any loss. 
 
 The manner in which the town of Boston acquired a title to 
 the land, or to the particular use to which it was appropriated, 
 can have no influence upon the question; as the fee was in the 
 town, without any restriction as to the manner in which the 
 land should be used or occupied. 
 
 It is a common principle of the civil and of the common law, 
 that the proprietor of land, unless restrained by covenant or 
 custom, has the entire dominion, not only of the soil, but of the 
 space above and below the surface, to any extent he may choose 
 to occupy it. 
 
 The law, foimded upon principles of reason and common util- 
 ity, has admitted a qualification to this dominion, restricting the 
 proprietor so to use his own, as not to injure the property, or 
 impair any actual existing rights of another. Sic utere tuo ut 
 alienum non ladas. Thus no man, having land adjoining his 
 neighbor's which has been long built upon, shall erect a build- 
 ing in such manner as to interrupt the light or the air of his 
 neighbor's house, or expose it to injury from the weather, or to 
 unwholesome pmell'^.
 
 14 GENERAL PRINCIPLES AND THEORY OF DAMAGES. 
 
 But this subjection of the use of a man 's own property to the 
 convenience of his neighbor, is founded upon a supposed pre- 
 existing right in his neighbor to have and enjoy the privilege, 
 which by such act is impaired. Therefore it is that by the an- 
 cient common law no man could maintain an action against the 
 owner of an adjoining tract of land, for interrupting the pas- 
 sage of the light or the air to a tenement, unless the tenement 
 thus affected was ancient: so that the plaintiff could prescribe 
 for the privilege, of which he had been deprived ; upon the com- 
 mon notion of prescription, that there was formerly a grant of 
 the privilege, which grant has been lost by lapse of time, al- 
 though the enjoyment of it has continued. 
 
 Now in such case of a grant presumed, it shall for the pur- 
 poses of justice be further presumed, that it was from the 
 ancestor of the man interrupting the privilege; or from those 
 whose estate he has; so as to control him in the use of his owti 
 prjoperty, in any manner that shall interfere with or defeat an 
 ancient grant thus supposed to have been made. This is the only 
 way of accounting for the common-law principle, which gives 
 one neighbor an action against another, for making the same 
 use of his property which he has made of his own. And it is 
 a reasonable principle : for it would be exceedingly unjust that 
 successive purchasers or inheritors of an estate for the space 
 of sixty years, with certain valuable privileges attached to it, 
 should be liable to be disturbed by the representatives or suc- 
 cessors of those who originally granted or consented to, or 
 acquiesced in the use of the privilege. 
 
 It is true that of late years the courts in England have sus- 
 tained actions for the obstruction of such privileges of much 
 shorter duration than sixty years. But the same principle is 
 preserved of the presumption of a grant. And indeed the 
 modern doctrine, with respect to easements and privileges, is 
 but a necessary consequence of the late decisions, that grants 
 and title deeds may be presumed to have been made, although 
 the title or privilege claimed under them is of a much later 
 date than the ancient time of prescription. 
 
 The plaintiff cannot pretend to found his action upon this 
 principle ; for he first became proprietor of the land in 1802, 
 and built his house in 1804, ten years before the commence- 
 ment of his suit. So that if the presumption of a grant were 
 not defeated by showing the commencement of his title to be
 
 DAMNUM ABSQUE INJURIA. 15 
 
 SO recent; yet there is no ease, where less than twenty years 
 has entitled a building to the qualities of an ancient building, 
 so as to give the owner a right to the continued use of privi- 
 leges, the full enjoyment of which necessarily trenches upon 
 his neighbor's right to use his own property in the way he 
 shall deem most to his advantage. A man who purchases a 
 house, or succeeds to one, which has the marks of antiquity 
 about it, may well suppose that all its privileges of right ap- 
 pertain to the house : and indeed they could not have remained 
 so long without the culpable negligence, or friendly acquiescence 
 of those, who might originally have had a right to hinder or 
 obstruct them. But a man who himself builds a house, adjoin- 
 ing his neighbor's land, ought to foresee the probable use by 
 his neighbor of the adjoining land; and by convention with 
 his neighbor, or by a different arrangement of his house, secure 
 himself against future interruption and inconvenience. 
 
 This seems to be the result of the cases anciently settled in 
 England, upon the subject of nuisance or interruption of privi- 
 leges and easements: and it seems to be as much the dictate of 
 common sense and sound reason, as of legal authortiy. 
 
 The decisions cited by the counsel for the plaintiff, (1 Domat, 
 309, 408 ; Fitz. N. B. 183 ; 9 Co. 59 ; Palmer, 536 ; 1 Koll. Abr. 
 140; ibid. 430; Slingsby v. Barnard, 1 Roll. Rep. 88; 2 Roll. 
 Abr. 565 ; 2 Saund. 697 ; Co. Lit. 56 ; 1 Burr, 337 ; 6 D. & E. 
 411; 7 East, 368; 1 B. & P. 405; 3 Wils. 461), in support of 
 this action, generally go to establish only the general principle, 
 that a remedy lies for one who is injured consequentially by 
 the acts of his neighbor done on his own property. The civil- 
 law doctrine cited from Domat will be found upon examination 
 to go no further than the common law upon this subject. For 
 although it is there laid down, that new works on a man's 
 ground are prohibited, provided they are hurtful to others, 
 who have a right to hinder them: and that the person erecting 
 them shall restore things to their former state, and repair the 
 damages; from W'hence probably the common-law remedy of 
 abating a nuisance as well as recovery of damages; yet this 
 is subsequently explained and qualified in another part of the 
 same chapter, where it is said, that if a man does what he has a 
 right to do upon his owm land, without trespassing upon any 
 law, custom, title or possession, he is not liable to damage for 
 injurious consequences; \mless he does it, not for his own ad-
 
 16 GENERAL PRINCIPLES AND THEORY OP DAMAGES. 
 
 vantage, but maliciously; and the damages shall be considered 
 as casualties for which he is not answerable. 
 
 The common law has adopted the same principles, considering 
 the actual enjoyment of an easement for a long course of years, 
 as establishing a right which cannot with impunity be impaired 
 by him who is the owner of the land adjoining. 
 
 The only case cited from common-law authorities, tending to 
 show that a mere priority of building operates to deprive the 
 tenant of an adjoining lot of the right of occupying and using 
 it at his pleasure, without being subjected to damages if by such 
 use he should injure a building previously erected, is that of 
 Slingsby v. Barnard, cited from RoUe. Sir John Slingsby 
 brought his action on the case against Barnard and Ball, and 
 declared that he was seized of a dwelling-house nuper edificatus. 
 and that Barnard was seized of a house next adjoining; and 
 that Barnard and Ball under him, in making a cellar under 
 Biamard's house, dug so near the foundation of the plaintiff's 
 house, that they undermined the same, and one-half of it fell. 
 Judgment upon this declaration was for the plaintiff, no objec- 
 tion having been made as to the right of action, but only to the 
 form of the declaration. 
 
 The report of this case is very short and imsatisfactory ; it 
 not appearing whether the defendant confined himself in his 
 digging to his own land, or whether the house then lately built 
 was upon a new or an old foundation. Indeed it seems impos- 
 sible to maintain that case upon the facts made to appear in 
 the report, without denjnng principles, which seem to have been 
 deliberately laid down in other books, equally respectable as 
 authorities. 
 
 Thus in Siderfin 3 67, upon a special verdict the case was thus. 
 A having a certain quantity of land, erected a new house upon 
 part of it, and leased the house to B and the residue of the land 
 to C who put logs and other things upon the land adjoining 
 said house, so that the windows were darkened, etc. It was 
 holden that B could maintain case against C for this injury. 
 But the reason seems to be that C took his lease seeing that the 
 house was there, and that he should not, any more than the 
 lessor, render the house first leased less valuable by his obstruc- 
 tions. It was however decided in the same case, that if one 
 seized of land lease forty feet of it to A to build upon, and an- 
 other forty feet to B to build upon, and one builds a house, and
 
 DAMNUM ABSQUE INJURIA. 17 
 
 then the other digs a cellar upon his ground, by which the wall 
 of the first house adjoining falls, no action lies; and so, they 
 said, it was adjudged in Pigott & Sui-ies case, for each one may 
 make what advantage he can of his own. The principle of this 
 decision is, that both parties came to the land with equal rights 
 in point of time and title; and that he who first built his house 
 should have taken care to stipulate with his neighbor, or to 
 foresee the accident and provide against it by setting his house 
 sufficiently within his line to avoid the mischief. In the same 
 case it is stated, as resolved by the court, that if a stranger have 
 the land adjoining to a new house, he may build new houses, 
 etc., upon his land, and the other shall be without remedy, when 
 the lights are darkened: otherwise when the house first built 
 was an ancient one. 
 
 In Rolle's Abridgment, 565, A, seized in fee of copyhold es- 
 tate, next adjoining land of B, erects a new hoase upon his copy- 
 hold land, and a part is built upon the confines next adjoining 
 the land of B, and B afterwards digs his land so near the house 
 of A, but on no part of his land, that the foundation of the 
 house, and even the house itself fall; yet no action lies for A 
 against B, because it was the folly of A, that he built his house 
 so near to the land of B. For by his o^vn act he shall not hinder 
 B from the best use of his o^^^a land that he can. And after 
 verdict, judgment was arrested. The reporter adds however, 
 that it seems that a man, who has land next adjoining my land, 
 cannot dig his land so near mine, as to cause mine to slide into 
 the pit ; and if an action be brought for this, it will lie. 
 
 Although at first view the opinion of Rolle seems to be at 
 variance with the decision which he has stated, yet they are 
 easily reconciled with sound principles. A man in digging 
 upon his OAMi land is to have regard to the position of his neigh- 
 bor's land, and the probable consequences to his neighbor, if he 
 digs too near his line ; and if he disturbs the natural state of 
 the soil, he shall answer in damages : but he is answerable only 
 for the natural and necessary consequences of his act, and not 
 for the value of a house put upon or near the line by his neighbor. 
 For in so placing the house, the neighbor was in fault, and 
 ought to have taken better care of his interest. 
 
 If this be the law, the case before us is settled by it : and we 
 
 2
 
 18 GENERAL PRINCIPLES AND THEORY OP DAMAGES. 
 
 have not been able to discover that the doctrine has ever been 
 overruled, nor to discern any good reason why it should ])e. 
 
 The i>laintift' purchased his laud in 1802. At that time the 
 inhabitants of Boston were iu possession, and the owners of the 
 adjoining land now owued by the defendants. The plaintiff 
 built his house within two feet of the western line of the lot, 
 know'ing that the town, or those who should hold uuder it, had 
 a right to build equally near to the line, or to dig down into 
 the soil for any other lawful purpose. He Imew also the shape 
 and nature of the ground, and that it w^as impossible to dig 
 there without causing excavations. He built at his peril: for 
 it was not possible for him, merely by building upon his o\vn 
 ground, to deprive the other party of such use of his, as he 
 should deem most advantageous. There was no right acquired 
 by his ten years' occupation, to keep his neighbor at a convenient 
 distance from him. He could not have maintained an action 
 for obstructing the light or air : because he should have known 
 that, in the course of improvements on the adjoining land, the 
 light and air might be obstructed. It is in fact damnum absque 
 injuria. 
 
 By the authority above cited however, it would appear that 
 for the loss of, or injury to the soil merely, his action may be 
 maintained. The defendants should have anticipated the con- 
 sequence of digging so near the line; and they are answerable 
 for the direct consequential damage to the plaintiff, although 
 not for the adventitious damage arising from his putting his 
 house in a dangerous position. 
 
 Note. "The doctrine of damnum absque injuria is recog- 
 nized as fundamental in New York and Federal courts." Muhl- 
 ker V. Harlem R. R. Co., 197 U. S. 557.
 
 II. CLASSIFICATION OF DAMAGES. 
 
 1. Nominal Damages. 
 WOOD V. WAUD. 
 
 Exchequer, 1849. 3 Ex. 748. 
 
 Pollock, C. B. * * * The fact, as found by the jury, is, 
 that the defendants (whose works have been erected within 
 twenty years, and who have no right, by long enjoyment or grant, 
 so to do) have fouled the water of the natural stream by pour- 
 ing in soap suds, wooleombers' suds, etc.; but that pollution 
 of the natural stream has done no actual damage to the plain- 
 tiffs, because it was already so polluted by similar acts of mill- 
 owners above the defendant's mills, and by dyers still further 
 up the stream, and some sewers of the town of Bradford; that 
 the wrongful act of the defendants made no practical differ- 
 ence, that is, that the pollution by the defendants did not make 
 it less applicable to useful purposes than such water was before. 
 AVe think, notwithstanding, that the plaintiffs have received 
 damage in point of law. They had a right to the natural stream 
 flowing through the land, in its natural state, as an incident 
 to the right to the land, on which the watercourse flowed, as will 
 be hereafter more fully stated; and that right continues, except 
 so far as it may have been derogated from by user or by grant 
 to the neighboring ]ando\\Tiers. 
 
 This is a case, therefore, of an injury to a right. The defend- 
 ants, by continuing the practice for twenty years, might estab- 
 lish the right to the easement of discharging into the stream 
 the foul water from their works. If the dyeworks and other 
 manufactories, and other sources of pollution above the plain- 
 tiffs, should be afterwards discontinued, the plaintiffs, who would 
 otherwise have had, in that ease, pure water, would be com- 
 pellable to submit to this nuisance, which then would do serious 
 damage to them. We think, therefore, that the verdict must 
 
 19
 
 20 CLASSIFICATION OF DAMAGES. 
 
 be entered for the plaintiffs on every part of not guilty to the 
 first count. * * * 
 
 Sote. Where there has been an injury to a right, an action 
 lies, though tliere has been no appreciable damage. Alexander 
 V. Kerr, 2 Rawle, 83 ; Parker v. Griswold, 17 Conn. 288. 
 
 JEWETT V. WHITNEY. 
 
 Maine, 1857. 43 Me. 242. 
 
 This action is trespass quarc clausum and comes on report of 
 May, J., presiding at nisi prius. 
 
 The plaintiff for some time prior to July, 1834, had been in 
 possession of the mill, which is the property in dispute, taking 
 one-half of the profits of the same, at which time the defendant 
 took possession of plaintiff's part, and received his proportion of 
 the earnings. The mill was soon torn down and rebuilt by de- 
 fendant and his co-tenants, using so much of the old as was 
 proper for the new mill. Whereupon this action is brought for 
 expelling the plaintiff, tearing down the mill, converting the 
 same, etc. 
 
 ]\Iay, J. * * * The only remaining question is that of 
 damages. The proof shows that the mill, standing on the 
 premises at the time when the defendant took possession, in 
 July, 1854, had become nearly worthless. It was so rotten that 
 it could not be repaired, and the witness, Lebroke, testifies that 
 it was almost impossible to use it. In its then condition the 
 profits of it could not have exceeded the cost of the repairs. 
 Under these circumstances the defendant co-operated with the 
 co-tenants of the plaintiff in tearing down the old mill and 
 erecting, at an expense of more than two thousand dollars, a 
 new one in its stead. So far as the materials obtained from the 
 old mill were of value, and would answer, they were put into the 
 new. While the plaintiff may, possibly, have lost some imme- 
 diate profits, before the date of his writ, by his expulsion from 
 the mill, he has largely gained in the increased value of his estate. 
 His damages, therefore, can be only nominal. 
 
 Judgment for the plaintiff for one dollar.
 
 NOMINAL DAMAGES. 21 
 
 TUFTS V. BENNETT. 
 Massachusetts, 1895. 163 Mass. 398. 
 
 Contract. To recover the purchase price of goods sold by the 
 plaintiff to the defendant. Judgment was given for the plaintiff 
 in the sum of one dollar. The plaintiff alleged exceptions. 
 
 Morton, J. * * * Part of the goods ordered were kept in 
 stock by the plaintiff', part were to be manufactured by him, 
 part to be purchased elsewhere, and some labor and stock were to 
 be expended in renovating certain apparatus for the defend- 
 ant. * * * 
 
 According to the contract the defendant, upon delivery, was 
 to honor a sight draft for $400, and to execute to the plaintiff 
 notes for the balance, and the title to the goods was to remain 
 in the plaintiff till the notes were paid. The defendant has never 
 honored any draft nor executed any notes, and the action is 
 brought for the breach of his agreement in failing to do so. The 
 court found that the defendant had repudiated the contract. 
 
 The rule seems to be pretty clearly established that the measure 
 of damages in such a case is the difference be ween the market 
 value of the goods at the time and place of delivery and the 
 contract price. (Citing authorities.) 
 
 No evidence, however, was introduced by the plaintiff as to 
 such difference, he relying apparently upon his contention that 
 the measure of damages was the contract price. The only thing, 
 therefore, which the court could do, was to award nominal dam- 
 ages, which it did. Exceptions overruled. 
 
 LOWE V. TURPIE. 
 
 Indiana, 1896. 147 Ind. 652. 
 
 Plaintiff contracted to pay certain debts, liens, on real prop- 
 erty held by him as security and belonging to Turpie, but after- 
 ward refused to do so. The realty was subsequently sold to pay 
 these obligations, and Turpie sues fbr damages by reason thereof. 
 He was aware of Lowe's refusal to perform prior to the time of 
 the bringing of the suits to enforce the incumbrances. 
 
 Monks, J. * * * It is clear, we think, that the measure
 
 22 CLi^SSlFICATION OF DAMAGES. 
 
 of damages for the breach by appellant of his agreement to ad- 
 vance money to pay liens, etc., set forth in the finding, is the same 
 as for breach of a contract to loan money direct. * * * 
 
 It is the rule, settled beyond controversy, that the damages to 
 be recovered must be the natural and proximate consequences 
 of the breach of the contract. Damages which are remote or 
 speculative cannot be recovered. (Citing authorities). 
 
 "When one is indebted to another, and fails to pay the same 
 when due, the damages for the delay in payment are provided 
 for in the allowance of interest. This is the measure of damages 
 adopted by the law in all actions by the creditor against his 
 debtor. (Citing authorities). 
 
 Appellees admit the measure of damages for the failure of a 
 debtor to pay money when due to be as stated, but insist that 
 where the obligation to pay money is special, and has reference 
 to other objects than the mere discharge of debts,— as in this case, 
 to advance or loan money to pay taxes and discharge liens, — 
 damages beyond interest for delay of payment, according to 
 the actual injury, may be recovered; citing 1 Sutherland on 
 Damages p. 164 § 77, where the rule stated by appellees is ap- 
 proved. The author, however, in the same section, says : ' ' Where 
 one person furnishes money to discharge an incumbrance upon 
 the land of the person furnishing the money, and the person un- 
 dertaking to discharge it neglects to do so, and the land is lost 
 to the owner by reason of the neglect, the measure of damages 
 may be the money furnished, with interest, or the value of the 
 land, according to circumstances. If the landowner has knowl- 
 edge of the agent's failure in time to redeem the land himself, 
 the damages will be the money furnished, with interest. But if 
 the lando\\Tier justly relies upon his agent to whom he has fur- 
 nished money to discharge the incumbrance, and the land is 
 lost without his knowledge, and solely through the fault of the 
 agent, the latter will be liable for the value of the land at the 
 time it was lost." See Fontaine v. Lumber Co., 109 Mo. 55. 
 
 In Blood v. Wilkins, 43 Iowa, 565, Blood was the owner of 
 certain land in Jones county, and conveyed the same to Wilkins 
 as security for money advanced and to be advanced by Wilkins, 
 and applied in payment of certain mortgages and tax liens upon
 
 NOMINAL DAMAGES. 23 
 
 the property. Part of the money was paid out directly by Wil- 
 kins in discharge of liens, and a part was retained by him. At 
 the time of the loan the land had been sold for taxes, but the 
 period for redemption had not yet expired. The amount bor- 
 rowed was enough to discharge all liens, and to redeem from said 
 sales. Wilkins, after the execution of said deed given as secur- 
 ity, retained in his hands the money necessary to redeem, under 
 an agreement with Blood that he would redeem. Wilkins failed 
 to redeem, and tax titles accrued against the land, whereby 
 it was lost to Blood, except 40 acres. The court, in speaking 
 of the measure of damages, said: "There only remains to be 
 considered what is the measure of liability. When one person 
 furnishes the money to another to discharge an incumbrance 
 from the land of the person furnishing the money, and the per- 
 son undertaking to discharge the incumbrance neglects to do it, 
 and the land is lost to the owner by reason of the incumbrance, 
 the measure of damages may be the money furnished, with in- 
 terest, or the value of the land lost, according to circumstances. 
 If the lando^^Tier has knowledge of his agent's failure in time to 
 redeem the land himself, his damages will be the money furnished, 
 with interest. But if the landowner justly relies upon his agent, 
 to whom he has furnished money to discharge the incumbrances, 
 and the land is lost without his knowledge, and solely through 
 the fault of the agent, then the agent will be liable for the value 
 of the land lost. ' ' This language was adopted by the author of 
 Sutherland on Damages, in stating the rule. See 1 Sutherland 
 Damages, p. 164, § 77. * * * 
 
 We think the rule concerning the measure of damages in 
 cases where one person furnishes the money to another to dis- 
 charge liens on the land of the one furnishing the money is cor- 
 rectly stated in Blood v. Wilkins, supra. 
 
 In an action for breach of a contract to loan money to pay 
 liens or incumbrances, no more than nominal damages can be 
 recovered unless the facts showing special damages are alleged 
 and proven. Turpie v. Lowe, supra. 
 
 When the person who contracted to make the loan neglects 
 or refuses to do so, and the owner is compelled to procure the 
 money elsewhere, the measure of damages is the difference, if any, 
 between the interest he contracted to pay, and what he was com- 
 pelled to pay to procure the money ; not exceeding, perhaps, the 
 highest rate allowed by law. 2 Sedg. Dam. § 622.
 
 24 CLASSIFICATION OP DAMAGES. 
 
 It is not necessary to determine whether the measure of dam- 
 ages for breach of a contract to loan money to pay liens in 
 case the land is lost is the same as in a case of the neglect of 
 one to whom money is furnished by the landowner to pay liens 
 or incumbrances, for the reason that, if it were conceded that 
 the measure of damages in this case was the same as it would 
 have been had the Turpies furnished appellant the money to 
 discharge all said debts and incumbrances, yet, under the facts 
 as stated in the special finding, the Turpies would not be en- 
 titled to special damages. * * * 
 
 To entitle any one to recover more than nominal damages for 
 a breach of contract to loan money to pay incumbrances, it is 
 necessary not only to allege and prove the contract to loan the 
 money, and its breach, and that the person who agreed to make 
 the loan knew the purpose for which it was to be used, and the 
 necessity therefor, but also that the land was lost to the owner 
 by reason of such liens or incumbrances, and without his knowl- 
 edge, and solely through the fault of the person who was to 
 loan the money, or, if the landowner had notice of the neglect 
 or refusal to loan the money, that it was at such a time as to 
 deprive him of the opportunity to procure the money elsewhere, 
 and pay said liens or incumbrances, or redeem the land, if sold. 
 * * * 
 
 In contemplation of law, money is always in the market, and 
 procurable at the lawful rate of interest. And if the owner of 
 real estate, who has a contract with another to loan him money 
 to pay liens or incumbrances on his land, who refuses to do so, 
 has knowledge of such refusal in time to give him an opportunity 
 to seek for it elsewhere, the fact that he cannot procure the 
 money, on account of being in embarrassed circumstances, will 
 not entitle him to recover more than nominal damages ; for the 
 reason that no party's condition, in respect to the measure of 
 damages, is any worse, for having failed in his engagement to a 
 person whose affairs are embarrassed, than if the same result had 
 occurred with one in prosperous or affluent circumstances. 
 (Citing authorities). * * * 
 
 It follows, therefore, that upon the facts found the Turpies 
 were not entitled to more than nominal damages for the breach 
 by appellant of his contract to loan money to pay liens and in- 
 cumbrances. As the Turpies were not entitled to recover for 
 the breach of said contracts to loan money, it is not necessary
 
 NOMINAL DAMAGES, 25 
 
 to determine whether or not the same are void for uncertainty. 
 * * * For the reasons given the said four judgments are 
 reversed. 
 
 THE COLUMBUS COMPANY, LIMITED v. CLOWES. 
 
 L. R. 1 K. B. 1903, 244. 
 
 Wright, J. This a somewhat singular case, and one which, 
 as far as I can ascertain, is not exactly covered by authority. 
 The plaintiffs employed the defendant, who was an architect, to 
 make plans of a building to be erected on a site of which the 
 plaintiffs were the lessees. The defendant appears to have been 
 informed by some person, who had no authority from the plain- 
 tiffs to give any such information, that the site in question was 
 of certain dimensions, which were in fact considerably less than 
 the real dimensions of the site. The defendant assumed this in- 
 formation to be correct, and, without taking any steps to meas- 
 ure and survey the site, drew his plans on that assumption. It 
 is not contended that he was right in doing so, and I think it 
 was practically admitted that it was his duty to have surveyed 
 the site and measured it, and taken out the proper dimensions 
 before proceeding with his plans. The consequences of the mis- 
 take might have been disastrous ; but as a matter of fact the mis- 
 take had no effect on the position of the plaintiffs, except that 
 they paid him for plans which were in fact incorrect. The plain- 
 tiffs contend that they are entitled to get back the amount which 
 they have paid for the plans because the plans are worthless, and 
 that therefore there is a total failure of consideration. Alter- 
 nativelj', they say that they are entitled to damages for the 
 negligence of the defendant. 
 
 I have come to the conclusion that there was not a complete 
 failure of consideration. The design of the plans is, I think, 
 available to some extent for a site of the real size. The quanti- 
 ties have been taken out in accordance with the plans, and on 
 the evidence I am of opinion that a small addition to those 
 quantities would alone be necessary in case of a building of the 
 proper size. Borings have been made with a view to ascertain- 
 ing the necessary depth for the foundations, and a good deal 
 has been done which is really of the same value as if the plans 
 had been correct. The plaintiffs' claim for damages has, how- 
 ever, to be considered. I think it is plain that they are entitled
 
 26 CLASSIFICATION OF DAMAGES. 
 
 to some damages. The defendant acted negligently, and in the 
 cases such as those against solicitors where negligence is proved 
 the plaintiff is entitled to some damages. But, in order to say 
 what those damages should be, it is necessary to divide the case. 
 With regard to the borings and other work done by the defend- 
 ant, I think, as I have said, that the plaintiffs got full value. 
 But what as to the plans themselves? I have no evidence be- 
 fore me that the plans, whether correct or not, have any value 
 in themselves, and I am therefore thrown back on general prin- 
 ciples. It seems to me that the most that the plaintiffs can get 
 is the reasonable cost of making the plans good. But there 
 comes the difficulty. The defendant himself would have made 
 the plans good without any charge. Indeed, he would have been 
 boimd to do so. If, however, the plaintiffs had called in another 
 architect, he would in all probability have insisted on com- 
 mencing the plans de novo, and would have refused to make 
 any use of the defendant's plans. But would that have been a 
 reasonable course to pursue ? I do not think that it would. One 
 of the first principles of the law of damages is that a plaintiff 
 who has suffered damage must act reasonably, and not incur 
 unnecessary expense against the defendant. It is clear that the 
 plaintiffs suffered no real damage, since they were never in a 
 financial position to make use of the plans. I think, therefore, 
 that they are only entitled to nominal damages. 
 
 The question of quantities is, however, on a different basis. 
 They were necessary in order to enable the plaintiffs to get 
 tenders for the execution of the work, and I think that the 
 plaintiffs are clearly entitled to the cost of adapting them. The 
 evidence shows me that the cost of doing so would be 40 1. ; and 
 I therefore give judgment for the plaintiffs for 401. in respect 
 of the quantities, and 40s. in respect of the plans. Whether the 
 action be one of contract or of tort, it is clearly one which is 
 rightly brought in the High Court. 
 
 Judgment for plaintiffs. 
 
 In the old and leading case of Ashby v. White, 2 Ld. Raym. 938, Lord 
 Chief Justice Holt held that if a free burgess of a municipal corpora- 
 tion has a right to vote for a member of the House of Commons and is 
 refused this right by the election oflieer, an action on the case will lie 
 against such officer. 
 
 In the celebrated case of the Tunbridge dippers. Weller v. Baker, 2 
 Wils. 414, where the plaintiff received only gratuities from visitors at
 
 AVOIDABLE DAMAGES. 27 
 
 certain medicinal springs, it was lield that an action would lie for dis- 
 turbing the dippers in their employment, as an action on the case will 
 lie for a possibility of a damage and injury. 
 
 In Haj-s V. W. & E. P. St. R. R. Co. 204 Pa. 488, it was held that 
 where a railroad gels a right of way and agrees to make improvements, 
 and subsequently abandons the location, the abutting owner can get 
 nominal damages only. 
 
 In Dewire v. Hanley, 79 Conn. 4.54, where a right of way was ob- 
 structed, but no pecuniary loss or expense was shown, nominal damages 
 were awarded. 
 
 In Owen v. O'Reilly, 20 Mo. 603, in an action for wages, where it was 
 proved that services were rendered but no value was established, nomi- 
 nal damages were awarded. 
 
 But, where land was sold under false representations, which neverthe- 
 less did not result in actual loss to plaintiff, no damages were awarded, 
 Thompson v. Newell, 118 Mo. App. 405. 
 
 In a case of nuisance, where no actual damage was shown, nominal 
 damages were allowed. Swift v. Broyles, 115 Ga. 885. 
 
 Nominal damages may be awarded against a banker for refusing to 
 honor his depositor's check, though no actual damage be shown at the 
 trial : so held Lord Chief Justice Tenterden in Marzetti v. Williams, 
 1 Barn. & Adol. 415. 
 
 Poland, J., in Paul v. Slason, 22 Vt. 231, says: "It is true, that by 
 the theory of the law, wherever an invasion of a right is established, 
 through no actual damage be shown, the law infers a damage * * * and 
 gives nominal damages." 
 
 On the subject of nominal damages see also Six Carpenters Case, 
 8 Coke 432; Wartman v. Swindell, 54, N. J. L. 589; Chamberlain v. 
 Parker, 45 N. Y. 569; State v. Davis, 117 Ind. 307; Jones v. King, 33 
 Wis. 422 ; Hopevale Electric Co. v. Electric Storage Battery Co. 184 N. Y. 
 356; Maher v. Wilson, 139 Cal. 514; Bourdette v. Sieward, 107 La. 258; 
 Davis v. Ark. So. R. Co. 117 La. 320; Browning v. Simons, 17 Ind. 45; 
 Grau v. Gran, 37 Ind. 635 ; Diers v. Edwards, 23 Ken. L. R. 500 ; Lance 
 V. Apgar, 60 N. J. L. 447; N. J. School and Church Furniture Co. v. 
 Board of Education, 58 N. J. L. 646; Boogher v. Bryant, 9 Mo. App. 
 592; Sproul v. Huston, 42 Wash. 106. 
 
 2. Avoidable Damages. 
 CLARK V. MARSIGLIA. 
 
 New York, 1845. 1 Denio, 317. 
 
 Error from the New York common pleas. Marsiglia sued 
 Clark in the court below in assumpsit, for work, labor, and 
 materials, in cleaning, repairing, and improving sundry paint-
 
 28 CLAySIKIUATlON OF DAMAGES. 
 
 ings belonging to the defendant. The defendant pleaded non 
 assumpsit. 
 
 The plaintitt' proved that a number of paintings were delivered 
 to him by the defendant to clean and repair, at certain prices 
 for each. They were delivered upon two occasions. As to the 
 first parcel, for the repairing of which the price was seventy-five 
 dollars, no defence was offered. In respect to the other, for 
 which the plaintiff charged one Imndred and fifty-six dollars, the 
 defendant gave evidence tending to show that after the plaintiff 
 had commenced work upon them, he desired him not to go on, 
 as he had concluded not to have the work done. The plaintiff, 
 notwithstanding, finished the cleaning and repairing of the pic- 
 tures, and claimed to recover for doing the whole, and for the 
 materials furnished, insisting that the defendant had no right 
 to countermand the order which he had given. The defendant's 
 counsel requested the court to charge that he had the right to 
 countermand his instructions for the work, and that the plain- 
 tiff could not recover for any Avork done after such countermand. 
 
 The court declined to charge as requested, but, on the contrary, 
 instructed the jury that inasmuch as the plaintiff had commenced 
 the work before the order was revoked, he had a right to finish 
 it, and to recover the whole value of his labor and for the ma- 
 terials furnished. The jury found their verdict accordingly, and 
 the defendant's counsel excepted. Judgment was rendered upon 
 the verdict. 
 
 Per Curiam. The question does not arise as to the right of 
 the defendant below to take away these pictures, upon which the 
 plaintiff had performed some labor, without payment for what 
 he had done, and his damages for the violation of the contract, 
 and upon that point we express no opinion. The plaintiff was 
 allowed to recover as though there had been no countermand of 
 the order; and in this the court erred. The defendant, by re- 
 quiring the plaintiff to stop work upon the paintings, violated his 
 contract, and thereby incurred a liability to pay such damages 
 as the plaintiff should sustain. Such damages would include a 
 recompense for the labor done and materials used, and such 
 further sum in damages as might, upon legal principles, be 
 assessed for the breach of the contract : but the plaintiff had no 
 right, by obstinately persisting in the work, to make the penalty 
 upon the defendant greater than it would otherwise have been. 
 
 To hold that one who employs another to do a piece of work is
 
 AVOIDABLE DAMAGES. 29 
 
 bound to suffer it to be done at all events, would sometimes lead 
 to great injustice. A man may hire another to labor for a year, 
 and within the year his situation may be such as to render the 
 work entirely useless to him. The party employed cannot persist 
 in working, though he is entitled to the damages consequent upon 
 his disappointment. So if one hires another to build a house, 
 and subsequent events put it out of his power to pay for it, it is 
 commendable in him to stop the work, and pay for what has been 
 done and the damages sustained by the contractor. He maj^ be 
 under a necessity to change his residence ; but upon the rule con- 
 tended for, he would be obliged to have a house which he did not 
 need and could not use. In all such cases the just claims of the 
 party employed are satisfied when he is fully recompensed for his 
 part performance and indemnified for his loss in respect to the 
 part left unexecuted ; and to persist in accumulating a larger de- 
 mand is not consistent with good faith towards the employer. 
 The judgment must be reversed, and a venire de novo awarded. 
 
 Judgment reversed. 
 
 SULLIVAN V. jMcMILLAN. 
 
 Florida. 1896. 37 Fla. 134. 
 
 McMiUan and Wiggins agreed to cut and deliver to Sullivan, 
 since deceased, all the logs of certain specified dimensions and 
 free from certain specified defects growing upon certain de- 
 scribed lands of the decedent. Many logs were duly delivered 
 pursuant to the contract; but, following the death of Sullivan, 
 his representative refused to receive any further logs, where- 
 upon this action was brought for damages sustained by Mc- 
 Millan and Wiggins under the contract. The appellants sought 
 to prove what gains and profits were made by the appellees by 
 their own labor and the use of teams in such other work and 
 contracts during the time that it would have taken them to per- 
 form the contract with the appellant's testator, and for the 
 breach of which the suit was brought. The Court below ex- 
 cluded such evidence. 
 
 LroDON, J. It is urged by appellants that the plaintiffs, when 
 they received notice that the defendants would not further com- 
 ply with or perform the contract, should have done all that rea- 
 sonably lay within their power to protect themselves from loss 
 by seeking another contract of like character, and that, the
 
 \iO CLASSIFICATION OF DAilAGES. 
 
 plaiutiffs having sought and obtained such a contract imme- 
 diately after the breach sued upon, the defendants were entitled 
 to have a proportionate amount of the profits applied in mitiga- 
 tion of the damages for which they were liable. Otherwise it is 
 contended that the plaintift's would make two profits for the 
 same time, and with the same teams, and that speculation 
 would be substituted for compensation, which is the basis of the 
 law of damages for breaches of contract. These propositions 
 are undoubtedly correct when applied to some classes of cases. 
 They have special reference to contracts for personal services, 
 or for the use of some special instrumentality, either with or 
 without connection with such personal services. Thus, in a 
 contract for teaching in a school, which was broken by a refusal 
 to receive the services, it was held to be the plaintiff's duty to 
 make reasonable exertion to obtain other like employment in 
 the same vicinity, and thus mitigate the damages. Gillis v. 
 Sp'ace, 63 Barb. (N. Y.) 177; Benziger v. Miller, 50 Ala. 206. 
 The same rule was laid dowTi for a similar breach of a contract 
 with an actress. Howard v. Daly, 61 N. Y. 362. Where the 
 plaintiff, o^^^ler of a portable saw mill, agreed to remove it to 
 the farm of the defendant, and to saw a stated number of logs, 
 to be furnished by the defendant, during certain seasons of the 
 year 1865, and the defendant, after furnishing a portion, broke 
 his contract by refusing to furnish more of such logs, but during 
 the time he (plaintiff) would have been engaged in sawing de- 
 fendant 's logs he was offered other employment of the same kind, 
 so that his mill need not have been idle, it was held that the 
 damages caused by the breach sued upon should have been miti- 
 gated. Heavilon v. Kramer, 31 Ind. 241. (Citing authorities.) 
 
 The contract which was broken in the present case was not 
 one for personal services, nor one which the parties contem- 
 plated should be performed with any special means or instru- 
 mentality. It was simply a contract for the delivery of certain 
 logs at a certain place, and might have been performed by the 
 plaintiffs with their own teams and personal labor, or by any 
 other means or agency to which they might have seen fit to in- 
 trust the performance of the same. There is nothing in the eon- 
 tract to show that the execution of the same required all or any 
 great portion of the time or personal attention of both or either 
 of the plaintiffs ; or that it was impracticable for plaintiffs to be 
 engaged in other business and the performance of other con-
 
 AVOIDABLE DAMAGES. 31 
 
 tracts contemporaneously with the performance of the contract 
 in controversy. We do not think the rule invoked as to mitiga- 
 tion of damages by subsequent earnings and profits applies to 
 this case. A distinction is recognized between a case of the 
 character of that now before us, and those to which we have 
 alluded. (Citing authorities.) 
 
 There was no legal obligation upon the plaintiffs in this case 
 to enter upon the performance of other contracts for the benefit 
 of the defendants. The Supreme Court of Wisconsin, in Cam- 
 eron V. White, 74 Wis. 425, where a contention like that of 
 appellants in this case was made, as we think properly said: "As 
 the plaintiffs could not enhance the damages against the defend- 
 ant by their neglect to make the best of what they had on their 
 hands, so they are not bound to lessen the damages by making 
 other contracts, and performing them, and giving the benefit 
 of the performance of such contracts to the defendant." A 
 very full exposition of this subject, showing the difference in 
 the rules applicable to contracts for personal service and those 
 for the doing of a specific act, can be found in Watson v. Brick 
 Co., 3 Wash. 283. This discussion is too lengthy to insert entire 
 in this opinion. The gist of the whole matter, the conclusion 
 of the court, citing Wolf v. Studebaker, 65 Pa. 459, is thus 
 stated: "The duty to seek employment is dependent upon the 
 original contract being one of employment or hire. It is not ap- 
 plicable to every contract. * * * Ordinary contracts of hire 
 and contracts for the performance of some specified undertaking 
 cannot be governed by the same rule. That in one case the party 
 can earn no more than the wages, and if he gets that his loss 
 will be but nominal; whereas, in the other case, the loss of the 
 party is the loss of the benefit of the contract. The damages 
 may be said to be fixed by the law of the contract the moment 
 it is broken, and cannot be altered by collateral circumstances 
 independent of and totally disconnected from it, and from the 
 party occasioning it. To plead the doctrine of avoidable con- 
 sequences to such case, * * * 'would necessarily involve 
 proof of everything, great and small, no matter how various the 
 items done by the plaintiff during the period of the contract 
 might be, and how much he made in the meantime.' * * * 
 If the rule was to be observed that the damages proven must 
 be direct and proximate, the same rule must be invoked in the 
 reduction of damages." In Crescent Manuf 'g Co. v. N. O. Nelson
 
 32 CLASSIFICATION OF DAMAGES. 
 
 Mauuf'g Co., 100 ]\io. 325, where an attempt was made to offer 
 evidence similar to that exeiiided in the present case, it was said : 
 "AVhere a servant is wrongi'iiUy discharged during his term, 
 and hiys his damages at the contract wages for the bahmee of 
 the term, it is generally held that evidence may be introduced 
 in mitigation of damages of what he might have earned in the 
 interim by using reasonable efforts to procure other employment. 
 So, in general, where a party has been injured or damaged by 
 a breach of a contract, he should do whatever he can to lessen 
 the injury. Many cases asserting these principles of law are 
 cited by the defendant, but they have no application to the 
 case in hand. The plaintiff owned its factory and the machinery, 
 and the contract constituted no such relation as that of master 
 and servant. It had the right to make as few or as many other 
 contracts as it saw fit while executing the contract with defend- 
 ant, and it is entitled to the profits Avhich it might have made 
 on this particular contract. The evidence offered in mitigation 
 of damages was properly excluded." * * * 
 
 The second matter, as already stated, is whether any interest 
 is recoverable, upon the amount of damages found by the jury 
 against the defendants. "There are two tests which are con- 
 stantly applied by the courts, having been found by them more 
 useful than the attempted division into liquidated and unliq- 
 uidated demands. Of these the first is whether the demand is 
 of such a nature that its exact pecuniary amount was either as- 
 certained or ascertainable by simple computation, or by refer- 
 ence to generally recognized standards, such as market price; 
 second, whether the time from which interest, if allowed, must 
 run — that is. a time of definite default or tort feasance, — can be 
 ascertained. ' ' 
 
 Without setting forth even a brief summary of the evidence 
 in the case, we think it is sufficient to say that it was so exact and 
 definite as to the amount of damage sustained by the plaintiffs, 
 and the elements of the same, that it only required a simple 
 computation by the jury to fix the amount. We think the case 
 falls within the rule stated, that the damages could be readily 
 liquidated and ascertained by the jury by simple computation, 
 and that the plaintiffs were entitled to interest thereon. * * * 
 Let the judgment of the Circuit Court he affirmed.
 
 AVOIDABLE DAMAGES. 33 
 
 ZIBBELL V. CITY OF GRAND RAPIDS. 
 
 Michigan, 1902. 129 Mich. 661. 
 
 Montgomery, C. J. Plaintiff recovered a judgment of $3,500, 
 for injuries received by a fall on a sidewalk alleged to have 
 been defective. 
 
 There was testimony that plaintiff, after receiving the injury, 
 called a surgeon to treat her limb, and that he advised rest for 
 the knee. There was also testimony that she did use her limb to 
 some extent. The circuit judge charged: "The plaintiff is not 
 entitled to recover any damages for any disability, suffering, 
 or expense that resulted from her own failure to exercise proper 
 and reasonable care after she received the injury of which she 
 complains, which aggravated her condition, by failure to observe 
 the instructions of her physician ; and the city is not to be held 
 responsible for any damages resulting from such neglect on her 
 part." This instruction correctly embodied the law. Moore v. 
 City of Kalamazoo, 109 Mich. 179 ; Reed v. City of Detroit, 108 
 Mich. 224. But the difficulty arises out of the fact that, when 
 coimsel attempted to argue this question to the jury, he was 
 stopped with the statement that the court would charge that there 
 was no act of the plaintiff which aggravated her condition. This 
 was error. The testimony was for the jury, and, while it may not 
 have been very convincing that she had been guilty of any impru- 
 dence, it should not have been wholly withdrawn from the con- 
 sideration of the jury. 
 
 The other questions do not require discussion. 
 
 Judgment reversed, and new trial ordered. 
 
 Long, J., did not sit. The other justices concurred. 
 
 It is the duty of plaintiff to minimize his losses and use due diligence 
 to that end as well in case of hreaeh of contract as in tort. Woodward, 
 J., in Brown v. Weir, 95 App. Div. N. Y. 78.
 
 34 CLASSIFICATION OF DAMAGES. 
 
 3. Compensatory Damages. 
 ALLISON i'. CHANDLER. 
 
 Michigan, 1S63. 11 IMioli. 543. 
 
 Christiancy, J * * * Tlie only question presented by 
 the present bill of exceptions, and not already disposed of by 
 our former decision, is the question of damages. * * * 
 Since, from the nature of the case, the damages cannot be esti- 
 mated with certainty, and there is a risk of giving by one course 
 of trial less, and by the other more than a fair compensation — 
 to say nothing of justice — does not sound policy require that the 
 risk should be thrown upon the wrong doer instead of the in- 
 jured party? However this question may be answered, we can- 
 not resist the conclusion that it is better to run a slight risk 
 cf giving somewhat more than actual compensation, than to 
 adopt a rule which, luider the circumstances of the case, will, 
 in all reasonable probability, preclude the injured party from 
 the recovery of a large proportion of the damages he has actually 
 sustained from the injury, though the amount thus excluded 
 cannot be estimated with accuracy by a fixed and certain rule. 
 Certainty is doubtless very desirable in estimating damages in 
 all cases: and where, from the nature and circumstances of 
 the case, a rule can be discovered by which adequate com- 
 pensation can be accurately measured, the rule should be ap- 
 plied in actions of tort, as well as in those upon contract. 
 Such is quite generally the case in trespass and trover for 
 the taking or conversion of personal property ; if the prop- 
 erty (as it generally is) be such as can be readily obtained in 
 the market and has a market value. But shall the injured 
 party in an action of tort, which may happen to furnish no 
 element of certainty, be allowed to recover no damages (or 
 merely nominal) because he cannot show the exact amount 
 with certainty, though he is ready to show, to the satisfaction 
 of the jury, that he has suffered large damages by the injury? 
 Certainty, it is true, would thus be attained ; but it would be 
 the certainty of injustice. And, though a rule of certainty may 
 be found which will measure a portion and only a portion of 
 the damages, and exclude a very material portion, which it 
 can be rendered morally certain the injured party has sus- 
 tained, though its exact amount cannot be measured by a fixed
 
 COMPENSATORY DAMAGES. 35 
 
 rule; here to apply any such rule to the whole case, is to mis- 
 apply it : and so far as it excludes all damages which cannot be 
 measured by it, it perpetrates positive injustice under the pre- 
 tence of administering justice. 
 
 The law does not require impossibilities; and cannot there- 
 fore require a higher degree of certainty than the nature of 
 the case admits. And we can see no good reason for requir- 
 ing any higher degree of certainty in respect to the amount 
 of damages, than in respect to any other branch of the cause. 
 Juries are allowed to act upon probable and inferential, as 
 well as direct and positive proof. And when, from the nature 
 of the case, the amount of the damages cannot be estimated 
 with certainty, or only a part of them can be so estimated, we 
 can see no objection to placing before the jury all the facts 
 and circumstances of the case, having any tendency to show 
 damages, or their probable amount; so as to enable them to 
 make the most intelligible and probable estimate which the nature 
 of the case will permit. This should, of course, be done with 
 such instructions and advice from the court as the circum- 
 stances of the case may require, and as may tend to prevent 
 the allowance of such as may be merely possible, or too remote 
 or fanciful in their character to be safely considered as the 
 result of the injury. 
 
 In the adoption of this course it will seldom happen that 
 the court, hearing the evidence, will not thereby possess the 
 means of forming a satisfactory judgment whether the dam- 
 ages are unreasonable, or exorbitant ; and, if satisfied they are 
 so, the court have always the power to set aside the verdict and 
 grant a new trial. 
 
 The justice of the principles we have endeavored to explain 
 will, we think, be sufficiently manifest in their application to 
 the present case. The evidence strongly tended to show an 
 ouster of the plaintiff for the balance of the term, by the de- 
 fendant's act. This term was the property of the plaintiff; 
 and, as proprietor, he was entitled to all the benefits he could 
 derive from it. He could not by law be. compelled to sell it 
 for such sum as it might be worth to others ; and, when tortiously 
 taken from him against his wall, he cannot justly be limited 
 to such sum — or the difference between the rent he was paying 
 and the fair rental value of the premises— if the premises were 
 of much greater and peculiar value to him, on account of the
 
 36 CLASSIFICATION OF DAMAGES. 
 
 business he had established in the store, and the resort of 
 custoinei's to that particuhir place, or the good will of the place, 
 in his trade or business. His right to the full enjoyment of 
 the use of the premises, in any manner not forbidden by the 
 lease, was as clear as that to sell or dispose of it, and was as 
 much his property as the term itself, and entitled to the same 
 protection from the laws. He had used the premises as a 
 jewelry store, and place of business for the repairing of watches, 
 making gold pens, etc. This business must be broken up by 
 the ouster, unless the plaintiff could obtain another fit place 
 for it; and if the only place he could obtain was less fitted 
 and less valuable to him for that purpose, then such business 
 Avould. be injured to the extent of this difference ; and this 
 would be the natural, direct and immediate consequence of 
 the injury. To confine the plaintiff to the difference between 
 the rent paid and the fair rental value of the premises to 
 others, for the balance of the term, would be but a mocker^^ 
 of justice. To test this, suppose the plaintiff is actually pay- 
 ing that full rental value, and has established a business upon 
 the premises, the clear gains or profits of which have been an 
 average of one thousand dollars per year; and he is ousted 
 from the premises and this business entirely broken up for the 
 balance of the time; can he be allowed to recover nothing but 
 six cents damages for his loss? To ask such a question is to 
 answer it. The rule which would confine the plaintiff to the 
 difference between such rental value and the stipulated rent 
 can rest only upon the assumption that the plaintiff might (as 
 in case of personal property) go at once into the market and 
 obtain another building equally well fitted for his business, and 
 that for the same rent ; and to justify such a rule of damages 
 this assumption must be taken as a conclusive presumption of 
 law. However such a presumption might be likely to accord 
 with the fact in the city of New York, in most western cities 
 and towns it would be so obviously contrary to the common 
 experience of the facts, as to make the injustice of the rule gross 
 and palpable. But we need not further discuss this point, as 
 a denial of any such presumption was clearly involved in our 
 former decision. 
 
 The plaintiff in this case did hire another store, "the best 
 he could obtain, but not nearly so good for his business" — 
 "his customers did not come to the new store, and there was
 
 COMPFJJSATORY DAMAGES. U7 
 
 not so much of a tliuroughfare by it, not one quarter of the 
 travel, and he relied much upon chance custom, especially in 
 the watch-repairing and other mechanical business." This in- 
 jury to the plaintiff's business was as clearly a part of his 
 damages as the loss of the term itself. This point also was 
 decided in the former case, and we there further held that the 
 declaration was sufficient to admit the proof of this species of 
 loss. 
 
 Now if the plaintiff is to be allowed to recover for this in- 
 jury to his business, it would seem to follow, as a necessary 
 consequence, that the value of that business before the injury 
 as well as after, not only might but should be shown, as an 
 indispensable means of showing the amount of loss from the 
 injury. If the business w^ere a losing one to the plaintiff be- 
 fore, his loss from its being broken up or diminished (if any- 
 thing) would certainly be less than if it were a profitable one. 
 It is not the amount of business done, but the gain or profit 
 arising from it, which constitutes its value. * * * 
 
 The other Justices concurred. 
 
 PARKER V. RUSSELL. 
 
 Massachusetts, 1882. 133 Mass. 74. 
 
 Field, J. In an action for the breach of a contract to sup- 
 port the plaintiff' during his life, if the contract is regarded as 
 still subsisting, the damages are assessed up to the date of the 
 writ, and not up to the time when the verdict is rendered. Fay 
 V. Guynon, 131 Mass. 31. 
 
 But if the breach has been such that the plaintiff has the 
 right to treat the contract as absolutely and finally broken by 
 the defendant, and he elects so to treat it, the damages are 
 assessed as of a total breach of an entire contract. Amos v. 
 Oakley, 131 Mass. 413 ; Schell v. Plumb, 55 N. Y. 592 ; Remelee 
 V. Hall, 31 Yt. 582 ; Fales v. Hemenway, 64 Maine, 373 ; Suth- 
 erland V. Y^er. 67 jMaine, 64 ; Lamoreaux v. Rolfe, 36 N. H. 33 ; 
 MuUaly v. Austin, 97 IMass. 30 ; Howard v. Daly, 61 N. Y. 362. 
 
 Such damages are not special or prospective damages, but 
 are the damages naturally resulting from a total breach of 
 the contract, and are suffered when the contract is broken, 
 and are assessed as of that time. From the nature of the con- 
 tract they include damages for not performing the contract
 
 38 CLASSIFICATION OF DAMAGES. 
 
 in the future as well as in the past. The value of the contract 
 to the plaintiff at the time it is broken may be somewhat in- 
 definite because the duration of the life of the plaintiff is uncer- 
 tain, but uncertainty in the duration of a life has not, since 
 the adoption of life tables, been regarded as a reason why full 
 relief in damages should not be afforded for a failure to per- 
 form a contract which by its* terms was to continue during life. 
 
 When the defendant, for example, absolutely refuses to per- 
 form such a contract after the time for entering upon the per- 
 formance has begun, it Avould be a great hardship to compel 
 the plaintiff to be ready at all times during his life to be sup- 
 ported by the defendant, if the defendant should at any time 
 change his mind; and to hold that he must resort to successive 
 actions from time to time to obtain his damages piecemeal, or 
 else leave them to be recovered as an entirety by his personal 
 representatives after his death. 
 
 Daniels v. Newton, 114 Mass. 530, decides that an absolute 
 refusal to perform a contract before the performance is due 
 by the terms of the contract is not a present breach of the 
 contract for which any action can be maintained; but it does 
 not decide that an absolute refusal to perform a contract after 
 the time and under the conditions in which the plaintiff is 
 entitled to require performance, is not a breach of the contract, 
 even although the contract is by its terms to continue in the 
 future. 
 
 The cases cited by the defendant are not inconsistent with 
 these views. In Pierce v. Woodward, 6 Pick. 206, the declara- 
 tion was for a breach of a negative promise, namely, "not to 
 set up the business of a grocer" within certain limits; and it 
 was held that the damages could be assessed only to the date 
 of the writ. The defendant might at any time, without the 
 consent of the plaintiff, stop carrying on the business, when 
 the plaintiff's damages would necessarily cease. 
 
 Powers V. Ware, 4 Pick. 106, was an action of covenant 
 broken, brought by the overseers of the poor, under the St. 
 of 1793, c. 59, § 5, for the breach of a covenant to maintain 
 an apprentice under an indenture of apprenticeship. The court 
 in the opinion speak of the common-law rule in assessing dam- 
 ages only to the date of the writ. But the statute under which 
 the action was brought prevented the overseers from treating 
 the contract as wholly at an end, because it gave the apprentice
 
 COMPENSATORY DAMAGES. 39 
 
 a right of action when the term is expired, ''for damages for 
 the causes aforesaid, other than such, if any, for which damages 
 may have been recovered as aforesaid," that is, by the overseers. 
 
 Hambleton v. Veere, 2 Saund. 169, was an action on the case 
 for enticing away an apprentice; and AVard v. Rich, 1 Vent. 
 103, was an action for abducting a wife; and neither throws 
 much light on the rule of damages for breach of a contract. 
 
 Horn v. Chandler, 1 Mod. 271, was covenant broken upon 
 an indenture of an infant apprentice, who under the custom 
 of London had bound himself to serve the plaintiff for seven 
 years; the declaration alleged a loss of service for the whole 
 term, a part of which was unexpired; on demurrer to the 
 plea, the declaration was held good, but it was said "that the 
 plaintiff may take damages for the departure only, not the loss 
 of service duing the term ; and then it will be well enough. ' ' 
 But if this be law to-day in actions on indentures of apprentice- 
 ship, it must be remembered that they are peculiar contracts, 
 in which the rights and obligations of the parties are often 
 affected by statutory regulations, and in some cases they can- 
 not be avoided or treated as at an end at the will of the parties. 
 
 In this case, the declaration alleges in effect a promise to 
 support the plaintiff during his life, from and after receiving 
 the conveyance of certain real estate, an acceptance of such 
 conveyance, and a neglect and refusal to perform the agree- 
 ment. These are sufficient allegations to enable the plaintiff 
 to recover damages as for a total breach. The court instructed 
 the jury that, "if the defendant for a period of about two 
 years neglected to furnish aid or support to the plaintiff, with- 
 out any fault of the plaintiff, the plaintiff might treat the con- 
 tract as at an end, and recover damages for the breach of the con- 
 tact as a whole." We cannot say that this instruction was 
 erroneous as applied to the facts in evidence in the cause, which 
 are not set out. 
 
 The jury must have found that the plaintiff did treat the 
 contract as finally broken by the defendant, and the propriety 
 of this finding on the evidence is not before us. 
 
 Judgment on the verdict for the larger sum.
 
 40 CLASSIFICATION OF DAMAGES. 
 
 BALTIMORE AND POTOMAC RAILROAD v. FIFTH . 
 BAPTIST CHURCH. 
 
 United States Supreme Court, 188:5. 108 U. S. 317. 
 
 Action in the nature of an action on the ease to recover 
 damages for the discomfort occasioned by the establishment of 
 a building for housing the locomotive engines of a railroad com- 
 pany contiguous to a building used for Sunday-schools and 
 public worship by a religious society. 
 
 The court gave a charge to the jury in part, as follows: 
 
 "We can imagine, and it is not a far-fetched imagination 
 either, that the effect of such a workshop in that neighborhood 
 might be to collect a population around it, and thus enhance 
 the population in that neighborhood, and really enhance the 
 value of property; and yet the congregation would be entitled 
 to recover damages (although their property might have been 
 increased in value) because of the inconvenience and discom- 
 fort they have suffered from the use of the shop. The congre- 
 gation has the same right to the comfortable enjoyment of its 
 house for church purposes that a private gentleman has to the 
 comfortable enjoyment of his own house, and it is the discom- 
 fort which is the primary consideration in allowing damages." 
 
 Field, J. * * * The instruction of the court as to the 
 estimate of damages was correct. ]Mere depreciation of the 
 property was not the only element for consideration. That 
 might, indeed, be entirely disregarded. The plaintiff was en- 
 titled to recover because of the inconvenience and discomfort 
 caused to the congregation assembled, thus necessarily tending 
 to destroy the use of the building for the purposes for which 
 it was erected and dedicated. The property might not be de- 
 preciated in its salable or market value, if the building had 
 been entirely closed for those purposes by the noise, smoke, and 
 odors of the defendant's shops. It might then, perhaps, have 
 brought in the market as great a price to be used for some other 
 purpose. But, as the court below very properly said to the 
 jury, the congregation had the same right to the comfortable 
 enjoyment of its house for church purposes that a private gen- 
 tleman has to the comfortable enjoyment of his own house, and 
 it is the discomfort and annoyance in its use for those purposes 
 which is the primary consideration in allowing damages. As 
 with a blow on the face, there may be no arithmetical rule for
 
 COMPENSATORY DAMAGES. 41 
 
 the estimate of damages. There is, however, an injury, the ex- 
 tent of which the jury may measure. 
 
 Judgment affirmed. 
 
 DARLEY MAIN COLLIERY CO. v. MITCHELL. 
 
 House of Lords, 1886. 11 App. Cas. 127. 
 
 Appeal from a decision of the Court of Appeal. 
 
 Lord Halsbury, L.C. My Lords, in this case the plaintiff, 
 the owner of land upon the surface, has sued the lessee of cer- 
 tain seams of coal below and adjacent to the plaintiff's land 
 for having disturbed the plaintiff in the enjoyment of his prop- 
 erty by causing it to subside. The defendants before and up 
 to the year 1868 have worked, that is to say, excavated, the 
 seams of coal, of which they were lessees. Their excavation 
 caused a subsidence of the ground, for which they acknowledged 
 their liability and made satisfaction. There were other sub- 
 sidences after this, and as the case originally came before your 
 Lordships, it was a matter of inference only whether these sub- 
 sidences were or were not in some way connected with, if not 
 forming part of, the original subsidence. The parties have 
 now, by an admission at your Lordships' bar, placed the matter 
 beyond doubt. 
 
 It has been agreed that the owner of the adjoining land 
 worked out his coal subsequently to 1868. That if he had not 
 done so there would have been no further subsidence, and if 
 the defendants' coal had not been taken out, or if sufficient sup- 
 port had been left, the working of the adjoining owner would 
 have done no harm. Under these circumstances, the question 
 is whether the satisfaction for the past subsidence must be taken 
 to have been equivalent to a satisfaction for all succeeding sub- 
 sidences. No one will think of disputing the proposition that 
 for one cause of action you must recover all damages incident 
 to it by law once and forever. A house that has received a 
 shock may not at once show all the damage done to it, but it is 
 damaged none the less then to the extent that it is damaged, 
 and the fact that the damage only manifests itself later on by 
 stages does not alter the fact that the damage is there; and 
 so of the more complex mechanism of the human frame, the dam- 
 age is done in a railway accident, the whole machinery is in- 
 jured, though it may escape the eye or even the consciousness
 
 42 CLASSIFICATION OP DAMAGES. 
 
 of the sufferer at the time ; the later stages of suffering are but 
 the manifestations of the original damage done, and consequent 
 upon the injury originally sustained. 
 
 But the words "cause of action" are somewhat ambiguously 
 used in reasoning upon this subject; what the plaintiff' has a 
 right to complain of in a Court of Law in this case is the dam- 
 age to his land, and by the damage I mean the damage which 
 had in fact occurred, and if this is all that a plaintiff can com- 
 plain of, I do not see why he may not recover toties quoties 
 fresh damage is inflicted. 
 
 Since the decision of this House in Bonomi v. Backhouse, 
 9 II. L. C. 503, it is clear that no action would lie for the ex- 
 cavation. It is not, therefore, a cause of action ; that case estab- 
 lished that it is the damage and not the excavation which is the 
 cause of action. I cannot understand whyevery new subsidence, 
 although proceeding from the same original act or omission of 
 the defendants, is not a new cause of action for which damages 
 may be recovered. I cannot concur in the view that there is 
 a breach of duty in the original excavation. 
 
 In Rowbotham v. Wilson, 8 E. & B. 123, 157, Cresswell, J., 
 said that the owner of the mines might have removed every 
 atom of the minerals without being liable to an action, if the 
 soil above had not fallen; and what is true of the first sub- 
 sidence seems to me to be necessarily true of every subsequent 
 subsidence. The defendant has originally created a state of 
 things which renders him responsible if damage accrues; if 
 by the hypothesis the cause of action is the damage resulting 
 from the defendant's act, or an omission to alter the state of 
 things he has created, why may not a fresh action be brought? 
 A man keeps a ferocious dog which bites his neighbor; can it 
 be contended that when the bitten man brings his action he 
 must assess damages for all possibility of future bites? A man 
 stores water artificially, as in Fletcher v. Rylands, Law Rep. 
 3 H. L. 330; the water escapes and sweeps away the plaintiff's 
 house; he rebuilds it, and the artificial reservoir continues to 
 leak and sweeps it away again. Cannot the plaintiff recover 
 for the second house, or must he have assessed in his first dama- 
 ges the possibility of any future invasion of water flowing from 
 the same reservoir? 
 
 With respect to the authorities, the case of Nicklin v. AVilliams, 
 10, Ex. 259, was urged by the Attorney-General as an authority
 
 COMPENSATORY DAMAGES. 43 
 
 upon the question now before your Lordships, by reason of 
 some words attributed to Lord Westbury in Bonomi v. Back- 
 house. If Lord Westbury really did use the words attributed to 
 him, it is, I think, open to doubt in what sense they are to be 
 understood. Baron Parke in that ease delivered the judgment 
 against the plaintiffs recovering any subsequently accruing 
 damage, because, he said, the cause of action was the original 
 injury to the right by withdrawing support. That principle 
 is admittedly wrong, and was expressly held to be wrong in 
 Bonomi v. Backhouse, since if that had been law there could 
 have been no answer to the plea of the Statute of Limitations in 
 that case. It is difficult to follow the ^Master of the Rolls when 
 he says it was not necessary to overrule Nicklin v. Williams by 
 that decision. It seems to me to have been the whole point de- 
 cided in Nicklin v. Williams, and how that case so decided can 
 be an authority for anything I am at a loss to understand. 
 
 I think the decision of this case must depend as matter of 
 logic upon the decision of your Lordships' House in Bonomi v. 
 Backhouse, and I do not know that it is a very legitimate in- 
 quiry, when a principle has been laid do\Mi hy a tribunal from 
 which there is no appeal, and which is bound by its own de- 
 cisions, whether that principle is upon the whole advantageous 
 or convenient; but if such considerations were permissible, I 
 think Cockbum, C.J., in his judgment in Lamb v. Walker, 3 
 Q. B. D. 389, establishes the balance of convenience to be on 
 the side of the law, as established by Bonomi v. Backhouse. I 
 cannot logically distinguish between a first and a second, or a 
 third, or more subsidences, and after Bonomi v. Backhouse it 
 is impossible to say that it was wrong in any sense for the de- 
 fendant to remove the coal. Cresswell, J., has said, and I think 
 rightly, that he might remove every atom of the mineral. 
 
 The wrong consists, and, as it appears to me wholly consists, 
 in causing another man damage, and I think he may recover 
 for that damage as and when it occurs. 
 
 For these reasons, I think that the judgment appealed from 
 should be affirmed with costs. 
 
 Lord Blackburn writes a dissenting opinion. 
 
 Order appealed from affirmed; and appeal dismissed with 
 costs.
 
 44 CLASSIFICATION OF DAMAGES. 
 
 LEWIS V. HARTFORD DREDGING CO. 
 
 Connecticut, 1896. 08 Conn. 221. 
 
 B.vLDwiN, J. The contract in suit was one for services to be 
 rendered in dredging material from the bed of the Housatonic 
 river at a designated point, and spreading it over the plaintiff's 
 oyster grounds at Westport, by a certain day in August, Avhen 
 the spawning season for oysters was expected to open. These 
 grounds were of such a character that, for raising seed oysters 
 upon them, it was necessary to spread some hard material over 
 them, in order to intercept the floating spawn. This, in the 
 phrase of the trade, is "planting" them, to "catch a set." The 
 material which could be dredged up at the point agreed on was 
 largely shells, and better adapted to use on these grounds than 
 anything else. To do work of this description, a certain kind 
 X)f dredging outfit is required, capable of dumping shells with 
 facility. The defendant had such an outfit, but, instead of em- 
 ploying it in the execution of the contract, employed one Tebo 
 to undertake it, with an inferior and unsuitable plant. Tebo, 
 finding that his outfit was ill adapted to dumping shells, aban- 
 doned the work after a few days, and the superintendent of the 
 defendant then informed the plaintiff that it was doubtful if 
 any other dredging outfit could be obtained to perform the work, 
 and that he "must protect himself by obtaining other material 
 that might be available." Thereupon he bought crushed stone 
 in New York, and had it spread upon part of his grounds, at 
 an expense considerably greater than that to which he would 
 have been subject had they been planted as the contract re- 
 quired. Such stone was the best material then available for 
 planting purposes, and the only material in the market, so far 
 as the plaintiff knew, which was adapted for use upon his 
 grounds. 
 
 The superior court, in assessing the plaintiff's damages, prop- 
 erly allowed him this difference in cost. The breach of a contract 
 to render services ordinarily entails a liability for nothing more 
 than the difference between what it would cost to get the same 
 services performed by another and the contract price. But in 
 the case at bar no other could be found who was able to do the 
 work. It could not be undertaken without a peculiar kind of 
 outfit, which few possessed. The plaintiff only bought the 
 crushed stone after the defendant had informed him that it was
 
 COMPENSATORY DAMAGES. -15 
 
 doubtful if such an outfit could be anywhere procured, and that 
 he must protect himself by procuring other material than that 
 which the contract contemplated. While it was much more 
 costly than the river material would have been, it was the only 
 thing to be had which would answer the purpose, and this pur- 
 pose w^as one of which the defendant had reasonable notice be- 
 fore the contract was executed. The point at which the material 
 :was to be dredged was so far determined that the defendant 
 could easily have ascertained the character of the river bed, 
 and the place of delivery was also fully described. The defend- 
 ant had dredged for oyster growers before, and had done this 
 for the plaintiff, among others, to enable him to plant his oyster 
 grounds for catching a set. Soundings would readily have dis- 
 closed the character of the bottom on which the material ob- 
 tained from the river was to be spread. The defendant had 
 no right to assume that any kind of material which might be 
 dredged up anywhere would be adapted for use upon these 
 grounds, and the plaintiff w^as justified in refusing to accept 
 its tender of the muddy deposit obtained from the Bridgeport 
 bar. He was justified, also, in taking the defendant at its word, 
 and protecting himself against the consequence of its default 
 by procuring suitable material for his purposes elsewhere. That 
 he acted reasonably in the purchases he made is conclusively es- 
 tablished by the findings of the trial court; and the numerous 
 exceptions taken by the defendant to its conclusions of fact from 
 the evidence in this respect are not the subject of an appeal. 
 Enfield v. Town of Ellington, 67 Conn. 459. 
 
 To show that the material dredged from the Bridgeport bar 
 was unsuitable for use on a sticky bottom, and that crushed 
 stone was suitable, and well adapted for catching a set, expert 
 testimony was properly received. Only from those skilled in 
 oyster culture could information on these points be expected. 
 
 The letter from the plaintiff of July 19th, while evidently 
 written in an argumentative strain, was admissible to show that 
 he gave the defendant prompt notice of his intention to set up 
 the claims which are the basis of this suit, and to protect him- 
 self at its expense by the purchase of crushed stone. 
 
 But in the admission of evidence as to the difference in market 
 value on August 12th between an acre of the plaintiff's oyster 
 grounds, unplanted, and an acre planted in the manner provided 
 by the contract, as well as in the award of damages including
 
 46 CLASSIFICATION OF DAMAGES. 
 
 sueli an estimated difference in value, there was error. By its 
 failure to provide the proper material for planting part of these 
 grounds, the defendant became liable to pay the plaintiff such 
 damages as might have been reasonably contemplated, at the 
 date of the contract, as the probable and direct result of its 
 breach. The defendant knew that the material which it was to 
 dredge and spread was wanted to form a bed for oyster culture, 
 and to form it by the opening of the spawning season. These 
 special circumstances were in the minds of both parties; but, 
 if they could in any case avail to create a right to special dam- 
 ages, of the nature claimed, for a failure to prepare the grounds 
 for oyster cultivation, — the sole use to which they could be put, 
 — it- would be only on proof, either that such grounds, when 
 planted with suitable material, were permanently improved, or 
 that such material generally catches a set, and that a set gen- 
 'erally results in a valuable crop of seed oysters. On the con- 
 trary, however, it appeared that the results of planting were 
 uncertain and conjectural in character, and the trial court states 
 that the item of $2,280.13, included in its award of damages, 
 which is now in question, was not based on any consideration 
 of "future profits arising from the actual raising of oysters upon 
 the unplanted area, or the enhanced value of the same from a 
 'set' attached to the material spread thereon, but is based upon 
 a comparison of the market value of the planted and unplanted 
 territory at the time fixed in the contract for its completion, 
 and while the result of such planting was unknown." This 
 difference in market value was fixed at $30 an acre, while the 
 contract price for planting (for which a deduction was allowed 
 in ascertaining the exact loss) averaged less than $14 an acre. 
 No part of this enhanced value of over $16 an acre could be at- 
 tributed to any hardening of the bottom, by which, although no 
 set were obtained, the grounds would be permanently improved. 
 This was explicitly admitted in the trial by counsel for the plain- 
 tiff; and, although that circumstance is not mentioned in the 
 finding of the trial court, as the defendant .specially requested 
 that it be stated, and it appears in an extract from the official 
 stenographic report of the proceedings, filed with the request, 
 which is agreed by counsel for both parties to be a correct narra- 
 tive of what occurred, we consider the finding as if it had been 
 so drawn as to set forth the admission as made. It follows that 
 the expert witnesses and the court must have viewed the in-
 
 COMPENSATORY DAMAGES. 47 
 
 crease of value which would have followed the execution of the 
 contract, as coming from the adaptation of the grounds to oyster 
 culture during the spawning season then about to open. To 
 allow for any enhancement of value on that account is, prac- 
 tically, to speculate on the chances of catching a set and raising 
 a profitable crop. Such consequences were too remote for con- 
 sideration, and too uncertain, both with respect to their nature 
 and to the cause from which they would proceed. Cohn v. Nor- 
 ton, 57 Conn. 480, 494; Howard v. Manufacturing Co., 139 U. 
 S. 199. 
 
 As respects the area necessarily left unplanted in consequence 
 of the defendant's default, damages (in the absence of special 
 circumstances calling for the application of a different rule) 
 should have been limited to compensation for the loss of the 
 use of the land until it again became practicable and proper 
 to plant or otherwise improve it for oyster cultivation, in the 
 usual course of the oyster growers' business. Such loss would, 
 ordinarily, be the fair rental value of the grounds, or, if this 
 could not be ascertained, the interest on their market value, in 
 their unplanted condition, with the amount chargeable for taxes 
 upon them, for the period in question. The finding states, how- 
 ever, that the plaintiff owned several thousand acres of oyster 
 grounds, only a portion of which was under cultivation, and an 
 extensive plant of shops, docks and oyster steamers. Of these 
 grounds, 475 acres lay off Westport, of which only 100 had ever 
 been planted. In the prosecution of the oyster business, "a, 
 certain area of oyster ground is planted each year, that suc- 
 cessive crops may be matured and marketed or sold as seed 
 oysters." If these special circumstances were, or ought to have 
 been, known to the defendant before the execution of the con- 
 tract in suit, and if the plaintiff could show that the failure to 
 plant the whole of the Westport grounds so disarranged the or- 
 dinary and natural succession of his crops, or otherwise disturbed 
 the ordinary and natural course of the business as respects the 
 use of his other property, that he suffered special damages as 
 a probable and direct result, which both parties ought, in reason, 
 to have foreseen, a further recovery might be allowed, upon such 
 an amendment of the complaint as to apprise the defendant of 
 the nature of the loss actually sustained. 
 
 The plaintiff has alleged that he incurred expense in locating 
 and staking out the place in the river where the dredging was
 
 48 CLASSIFICATION OF DAMAGES. 
 
 to be tlone, and securing a license from the government of the 
 United States for dredging there, and hiring inspectors for the 
 ^vork, and for scows and harrows to complete the distribution 
 of the material to be dredged over his grounds, and steamers 
 cliarterc'd to aid in the same work, and that he should be reim- 
 bursed for such part of these payments as was properly made to 
 secure the phnding of the portion of his grounds which was in 
 fact left unplanted. If such special circumstances existed, and 
 were or should have been in the contemplation of the parties 
 when the contract was executed, the plaintiff's claim in this re- 
 s])ect, also, would be a proper one, so far as his expenditures 
 were reasonably necessary for the purpose, subject to a deduc- 
 tion for any benefits which he may have otherwise received from 
 them. 
 
 There is error in the award of the damages on account of the 
 implanted oyster grounds, and a new trial is granted for the 
 sole purpose of reassessing the damages on that account, in ac- 
 cordance with the principles above stated. The other judges 
 concurred. 
 
 1) Elements of Compensation. 
 (1) Loss of Time. 
 
 LEEDS V. METROPOLITAN GAS-LIGHT CO. 
 
 NeAv York, 1882. 90 N. Y. 26. 
 
 Finch, J. We think there was error in the mode of submit- 
 ting to the jury the question of damages. Whether there was 
 any evidence of negligence on the part of the defendant com- 
 pany upon which the verdict can rest, has been the principal 
 controversy on the appeal, but need not be decided, since upon 
 the new trial which must result the facts may be entirely differ- 
 ent. If the evidence is insufficient now, it is possible that it may 
 be made sufficient then. 
 
 The plaintiff was injured by an explosion of gas in the cellar 
 or vault of the house occupied by him, and which had escaped 
 from a break in the defendant's main. The character of his in- 
 juries was described by the evidence, and among other things 
 it was proved that he was engaged in business at the time of
 
 COMPENSATORY DAMAGES. 49 
 
 the injury, but had not been able to attend to business since. 
 It was not shown what his business was, or the value of his time, 
 or any facts as to his occupation from which that value could be 
 estimated. The jury were left to guess or speculate upon this 
 value without any basis for their judgment, so far as loss of time 
 was an element of the damages awarded. The court charged 
 that the plaintiff, if entitled to a verdict, was "entitled to re- 
 cover compensation for the time lost in consequence of confine- 
 ment to the hous^ or in consequence of his disability to labor 
 from the injury sustained." The defendant's counsel excepted 
 to this portion of the charge, assigning as a reason or ground 
 of the exception, that there was no proof in the case of the 
 value of such time. The answer made on behalf of the plaintiff 
 is a criticism on the form of the exception. It is said that "as 
 the defendant 's counsel did not ask the court to instruct the jury 
 that there was no evidence of the value of plaintiff's time, the 
 only question here raised is whether the proposition charged 
 is law. ' ' It was not necessary to make that request. The court 
 had charged, in a case where no value of lost time had been 
 shown, and no facts on which an estimate of such value could 
 be founded, that compensation for such lost time could be 
 awarded by the jury. The exception was aimed at that precise 
 proposition, and the ground upon which it was claimed to be 
 erroneous was definitely pointed out. The charge, therefore, 
 can only be defended upon two grounds: either, that evidence 
 of the value of the lost time was given, or, if not, that the jury 
 were at liberty to guess at and speculate upon that value, and 
 estimate it as they pleased. The first ground we have shown to be 
 untenable, and the exception consequently requires us to de- 
 termine the second. In very numerous actions for negligence, 
 both those where death had resulted and which were prosecuted 
 under the statute, and those for injuries not resulting in death, 
 evidence showing the occupation or business of the injured party 
 and tending to establish his earning power has been held com- 
 petent and material. (Grant v. City of Brooklyn, 41 Barb. 384; 
 Masterton v. Village of Mount Vernon, 58 N. Y. 391 ; Beisiegel 
 v. N. Y. Central R. R. Co., 40 Id. 10.) And that is so because 
 the element of damages which consists of lost time is purely a 
 pecuniar}' loss or injury, and for such only fair and just com- 
 pensation must be given, and the jury have no arbitrary dis-
 
 50 CLASSIFICATION 01-^ DAMAGES. 
 
 cretion, but must be governed by the weight of evidence. (Mc- 
 lutyre v. N. Y. Central K. R. Co., 37 N. Y. 289.) The rule of 
 recovery is compensation. Where the loss is pecuniary and is 
 present and actual and can be measured, but no evidence is 
 given showing its extent, or from which it can be inferred, the 
 jury can allow nominal damages only. (Sedgwick on Damages, 
 chap. 2, p. 47 ; Brantingham v. Fay, 1 Johns. Cas. 264 ; N.' Y. 
 Dry Dock Co. v. Mcintosh, 5 Hill, 290.) In the present case 
 the jury knew simply that time was lost by reason of incapacity 
 to labor. They were bound to consider it of some value, but 
 could not go beyond nominal damages, and give compensation 
 for it upon an arbitrary standard of their own. This they were 
 permitted to do. Without proof of the extent or character of 
 the plaintiff's pecuniary loss, they were left to fix it as they 
 pleased. Among the elements of damage in cases of injury for 
 negligence, is the cost of the cure, the bills and expenses of 
 medical attendance. Suppose that the bare fact was shown that 
 the deceased had a doctor, but the length of his attendance was 
 not given, the amount of his charges not shoAvn, would it do to 
 permit the jury to give compensation for the cost of the cure 
 upon their own guess-or speculation as to its amount? For pain 
 and suffering, or injuries to the feelings, there can be no measure 
 of compensation, save the arbitrary judgment of a jury. But 
 that is a rule of necessity. Where actual pecuniary damages 
 are sought, some evidence must be given showing their existence 
 and extent. If that is not done, the jury cannot indulge in an 
 arbitrary estimate of their own. 
 
 The judgment should be reversed, a new trial granted, costs 
 to abide the event. 
 
 LUND V. TYLER. 
 
 Iowa, 1901. 115 Iowa, 236. 
 
 Action to recover damages for assault and battery. Verdict 
 and judgment for plaintiff. Defendant appeals. 
 
 McClain, J. There was evidence tending to show that at the 
 beginning of the fight which resulted in the injury to plain- 
 tiff, the plaintiff had challenged the defendant to combat, using 
 insulting language in doing so; and the principal complaint of 
 appellant is of the refusal of the trial court to instruct that 
 if plaintiff, by his actions and words, invited the fight m which
 
 COMPENSATORY DAMAGES. 51 
 
 he was injured, he cannot recover damages for such injuries. 
 There seems to be some authority for such a proposition, and 
 counsel have cited Galbraith v. Fleming, 60 Mich. 408 ; Smith v. 
 Simon, 69 i\IJch. 481. But the weight of authority is that, where 
 a combat involves a breach of the peace, the mutual consent of 
 the parties thereto is to be regarded as unlawful, and as not 
 depriving the injured party, or for that matter, each injured 
 party, from recovering damages for injuries received from the 
 unlawful acts of the other. Shay v. Thompson, 59 Wis. 540; 
 Stout V. Wren, 8 N. C. 420 ; McCue v. Klein, 60 Tex. 168 ; State 
 V. Burnham, 56 Vt. 445. This view of the law is stated without 
 qualification in Cooley, Torts (2d Ed.) 187. Insulting conduct 
 and language of the plaintiff towards the defendants might, no 
 doubt, have been considered in mitigation of damages, if so 
 pleaded ; but that question was not presented in the town court. 
 
 Plaintiff', as a witness, testified that at the time of the injury 
 he was engaged in fishing for a living, and that he lost two 
 weeks' time in consequence of defendant's act. Appellant 
 argues that plaintiff was improperly allowed to answer as to the 
 reasonable worth of his time. Certainly plaintiff might recover 
 for loss of earnings during the time. The business was one in- 
 volving not speculative profits but mainly the personal efforts 
 of the plaintiff, the profits in which could be considered as 
 earnings, and therefore loss of time therein might be shown as 
 resulting in loss of earnings. Kinney v. Crocker, 18 Wis. 74, 
 82. It seems to us that the question properly called for an 
 answer as to what plaintiff's reasonable earnings during such 
 time would have been. If defendant desired more specific in- 
 formation, he could have secured it by cross-examination. 
 
 Other objections to evidence seem to us not to raise any ques- 
 tion on which a discussion of the law would be profitable. 
 
 Affirmed. 
 
 SMITH V. WHITTLESEY. 
 
 Connecticut, 190G. 79 Conn. 189! 
 
 Appeal from Court of Common pleas, Hartford County. 
 
 Action to recover damages for injury caused by negligence in 
 driving an automobile on the public highway and for treble dam- 
 ages under Gen. St. 1902, §§ 2035, 2036. There was a judgment 
 for plaintiff', and defendant appeals.
 
 52 CLASSIFICATION OF DAMAGES. 
 
 TTamersi,ey, J. In Parinelee v. J>aldvvin, 1 Conn. 317, Chief 
 Justice Swift, speaking for the court, said: "In actions for torts, 
 where the hiw necessarily iin[)lics that the phiintitf has sustained 
 damage by the act coniphiined of, it is not necessary to make an 
 allegation of special damages in the declaration ; but where the 
 law does not necessarily imply such damage it is essential to the 
 validity of the declaration that the resulting damages should be 
 stated with particularity." We have uniformly enforced this 
 technical rule of pleading as well since as before the adoption of 
 the practice law. When the wrongful act ccmiplained of consists 
 in intlieting a severe bodily injury, the consequent endurance of 
 pain and loss of time are a necessary direct result of the injury 
 intiic.ted, and constitute a damage which the law implies that the 
 plaintiff has sustained by the act complained of. Such damage 
 may be shown under the general allegation of damage, and need 
 not be specially stated. Bristol Mfg. Co. v. Gridley, 28 Conn. 
 201, 212. Inability to follow one's ordinary avocations, conse- 
 quent upon an injury inflicted, may be proved to characterize 
 the extent of such injury; but when damage is claimed for 
 special consequences which must depend on the peculiar circum- 
 stances of the plaintiff at the time of and previous to the injury, 
 as that he was actually engaged in some special business yield- 
 ing a pecuniary profit, such special consequences are a special 
 damage which must be stated with particularity. The averment 
 that the plaintiff was prevented from attending to his ordinary 
 business serves to characterize the injury and its extent and 
 permanence in a general way, but does not lay the foundation 
 for proof of special damages. Tomlinson v. Derby, 43 Conn. 
 562, 567; Taylor v. ]\Ionroe, 43 Conn. 36, 46, affirmed in Eld- 
 ridge V. Gorman, 77 Conn. 699. 
 
 The complainant before us alleges no special damage involved 
 in a loss of time by reason of the peculiar circumstances of the 
 plaintiff', and alleges no loss of time except as it may be implied 
 in the statement of the injury inflicted. The court might prop- 
 erly have instructed the jury that, in determining the reasonable 
 damage necessarily resulting from the injury inflicted, they 
 might take into consideration the loss of time and pain and 
 .suffering, mental and physical, actually proved as tending to 
 show the nature and extent of the injury and enhance the dam- 
 age actually suffered. But we cannot find any satisfactory reason 
 for treating as the substantial equivalent of this the instrue-
 
 COMPENSATOKV DAMAGES. 53 
 
 tion the court did give. It appears from the finding that there 
 was evidence tending to show that the plaintiff lost some time on 
 account of his injuries, but that there was substantially no evi- 
 dence of the money value of the time lost. This state of the 
 evidence might have justified the court in telling the jury that 
 the loss of time proved might be considered in determining the 
 extent of the injury and the amount of damage necessarily suf- 
 fered therefrom, but did not justify the court in assuming that 
 special damages were properly claimed and in instructing the 
 jury as it did in respect to assessing such damages. The court in 
 substance told the jury that, in addition to the damage implied 
 by law from the infliction of an injury of the extent proved, 
 they should assess as damages the pecuniary loss to the plaintiff 
 by reason of the loss of time proved and in the absence of any 
 evidence of the value of his time to the plaintiff and of the 
 exact data from which they could compute the amount of dam- 
 age to him for that loss, they must assess the damage on this ac- 
 count, if damages have been proved, at such reasonable sum as 
 would fairly compensate the plaintiff for his loss on account of 
 time lost. We think that, in view of the state of the pleadings 
 and evidence and claims, this instruction was erroneous, and 
 that it was calculated to induce the jury to believe they were 
 authorized to ascertain the money value of the time lost by the 
 plaintiff to him, and to assess as special damage that pecuniary 
 loss, and, in the absence of any proof of value or of exact data 
 for computing the amount lost, they were bound to conjecture 
 some reasonable amount which, in their judgment, would fairly 
 compensate the plaintiff. An ascertainment of the amount of 
 general damages, or damages implied by law as the necessary 
 results of a bodily injury wrongfully inflicted, is ex necessitate 
 rei largely controlled by conjecture. But, in ascertaining the 
 amount of a pecuniary loss not necessarily a result of the injury 
 but dependent for its existence and amount upon facts and cir- 
 cumstances requiring appropriate evidence, the jury must be 
 governed by such evidence, and, in its absence, are not permit- 
 ted to resort to mere conjecture. Gold v. Ives, 29 Conn. 119, 124. 
 « * * 
 
 The only error apparent in the record or claimed upon appeal 
 is one affecting the assessment of damages. Other material is- 
 sues submitted to the jury have been found for the plaintiff, to 
 wit : that while plaintiff and defendant were traveling the same
 
 54 CLASSIFICATION OF DAMAGES. 
 
 course on the public highwa}', the defendant carelessly drove 
 his vehicle against that of the plaintiff and hurled the plaintiff 
 against the wheel of his vehicle, whereby the plaintiff was severely 
 injured; that the plaintiff', as well as the defendant, at the time 
 of the injury, was traveling in a vehicle for the conveyance of 
 persons as described in sections 2035, 2036, Gen. ^t. 1902. These 
 issues have been legally settled, and the error of the court in 
 respect to damages may be fully corrected without a retrial of 
 these issues. In such a case it is plain that the issues rightly 
 settled ought not to be reopened, and this court has the power 
 to qualify its order for a new trial by limiting the retrial to that 
 part of the case in which alone there is any error. Davenport 
 V. Bradley, 4 Conn. 309. * * * "vVe think the present case 
 calls for the application of this principle, and that the new trial 
 should be limited to the assessment by a jury of the damage al- 
 leged in the complaint. 
 ' There is error, and a new trial is ordered limited to the assess- 
 ment of damages. In this opinion the other judges concurred. 
 
 (2) Earning Power. 
 JOHNSTON V. GREAT WESTERN RAILWAY COMPANY. 
 
 L. R. 2 K. B. 1904, 250, 
 
 The action was brought to recover damages for personal injur- 
 ies. The only question was as to the amomit of damages. 
 
 The muscles of the plaintiff's left thigh were seriously injured, 
 and he was under medical treatment for some months. After 
 he was able to walk about again his left knee was very liable to 
 give way, and on several occasions he fell in consequence of this. 
 
 The action was tried by Grantham J. with a jury. The 
 medical evidence showed that the plaintiff's leg would probably 
 never be in the same condition as before the accident; that, if 
 he would undergo an operation (which he was willing to do), the 
 state of the leg would in all probability be much improved ; that 
 there was necessarily some, though but small, risk, attending 
 the operation; and that if it was successful he would still have 
 to be very careful, especially in going up or down a ladder or 
 in moving about among machinery. 
 
 The plaintiff had been trained as an engineer, and had passed 
 examinations with great distinction, and had obtained a first-
 
 COMPENSATORY DAMAGES. 00 
 
 class certificate. His intention was to obtain, if possible, the 
 appointment of a superintending marine engineer. He had good 
 prospects of obtaining such an appointment, because his uncles 
 were the o^v^lers of a line of steamships, called the Johnston 
 Line. At the time of the accident the plaintiff was residing with 
 his father, and was employed by him at a salary of 3 1. a week 
 on some engineering business, in connection with which he was 
 travelling when the accident happened. 
 
 Verdict for 3000 1. and defendants apply for a new trial. 
 
 Vaughan-William L. J. * * * If the Court, from the 
 circumstances of the case and the amount of the damages, can 
 draw the inference that the jury must have applied a wrong 
 measure of damage in contravention of the direction of the judge, 
 the Court may order a new trial, although it is not in a position 
 to say that the mere ciuantum of excess is so large that no reason- 
 able jury could have arrived at such an amount. I would refer 
 to the following passage in the judgment of Cockbum L. C. J., 
 4 Q. B. D. at p. 407; "But we think that a jury cannot be said 
 to take a reasonable view of the case unless they consider and 
 take into account all the heads of damage in respect of which 
 a plaintiff complaining of a personal injury sustained; the pain 
 undergone ; the effect on the health of the sufferer, according 
 to its degree and its probable duration as likely to be temporary 
 or permanent ; the expenses incidental to attempts to effect a 
 cure, or to lessen the amount of injury ; the pecuniary loss sus- 
 tained through inability to attend to a profession or business as 
 to which, again, the injury may be of a temporary character, 
 or may be such as to incapacitate the party for the remainder 
 of his life. If a jury have taken all these elements of dam- 
 age into consideration, and have awarded what they deemed 
 to be fair and reasonable compensation under all the circum- 
 stances of the case, a Court ought not, luiless under very excep- 
 tional circumstances, to disturb their verdict. But looking to 
 the figures in the present case, it seems to us that the jury must 
 have omitted to take into account some of the heads of damage 
 which were properly involved in the plaintiff's claim." So in 
 the present case, if I could come to the conclusion that, looking 
 at the figures, the jury must have taken into account some head 
 or some measure of damage not properly involved in or applied 
 to the plaintiff's claim, I should say that we ought to order a 
 new trial. The Court of Appeal affirmed the judgment of Cock-
 
 56 CLASSIFICATION OF DAMAGES. 
 
 burn L. C. J., and Jamos L. J. said, 5 Q. B. D. at p. 85: "We 
 agree that judges have no right to overrule the verdict of a jury 
 as to the amount of damages, merely because they take a differ- 
 ent view, and think that if they had been the jury they would 
 have given more or would have given less, still the verdicts of 
 juries as to the amount of damages are subject, and must, for the 
 sake of justice, be subject, to the supervision of a Court of first 
 instance, and if necessary of a Court of Appeal, in this way, 
 that is to say, if in the judgment of the Court the damages are 
 unreasonably large or unreasonably small, then the Court is 
 boimd to send the matter for reconsideration by another jury." 
 It seems to me that there is nothing in these words of James L. J. 
 inconsistent with Lord Esher's rule in Praed v. Graham, 24 Q. 
 B. D. 53. The Lord Justice continued: "The Queen's Bench 
 Division came to the conclusion in this case that the amount of 
 the damages was unreasonably small, and for the reasons which 
 were given by the Lord Chief Justice, pointing out certain 
 topics which the jury could not have taken into consideration. 
 I am of opinion, and I believe my colleagues are also of opinion, 
 for the same reasons and upon the same grounds, that the dam- 
 ages are unreasonably small, to what extent, of course, we must 
 not speculate, and have no business to say." 
 
 Now, in my opinion, the only way in which the figure of the 
 damages and the circumstances of the present case could prove 
 that the jury in measuring the damages took into consideration 
 topics which they ought not to have taken into consideration, or 
 applied a measure of damage which they ought not to have ap- 
 plied, would be, if we could draw the inference that the amount 
 of the verdict proved that the jury had disregarded the fact to 
 which their attention was called by Grantham J., that the acci- 
 dents of life and other elements ought to be taken into con- 
 sideration so as to prevent a jury from giving a plaintiff such 
 a sum as would be simply an investment, enabling him to do 
 nothing to earn his livelihood. Now one could only come to such 
 a conclusion if it could properly be said that no jury, having 
 regard to the evidence, could have put tlie difference between the 
 prospective earnings of the plaintiff if he had been uninjured 
 and those earnings after his injury at a higher figure than, say, 
 Lx a year, and then if you foimd that the amount of the ver- 
 dict, after deducting all special damage and all damages given 
 for personal pain and suffering, was a sum which equalled or
 
 COMPENSATORY DAMxVGES, 57 
 
 exceeded the sum which would purchase a life annuity for a 
 person of the plaintiff's age equal to the difference to which I 
 have referred. In such a case I think a new trial might be 
 ordered without reference to any perversity of mind of the jury 
 in regard to the quantum. In any case in which you are able 
 to draw the inference that the jury either included a topic which 
 ought not to have been included, or measured the damages by a 
 measure which ought not to have been applied, I think there 
 ought to be a new trial. But I am not prepared to say that 
 that is so in the present case. 
 
 It is, no doubt, very difficult in the present case to estimate 
 the damages, but I think that, taking the evidence as a whole, 
 it is not unreasonable to say that the jury were entitled to take 
 into consideration as a material and substantial matter the pos- 
 sibility that the plaintiff would never be able to accept the posi- 
 tion of a superintending marine engineer. It is obvious that he 
 was intended for that ; at the time of the accident that was the 
 intention of his life. He was just putting a finishing touch to 
 his education, not in respect of the special matter of marine en- 
 gineering, but in respect of the general knowledge which every 
 engineer ought to have, and he was doing this because, having 
 regard to the interest of his family in shipping, it was reasonably 
 certain that as soon as he was qualified he would obtain such <a, 
 post ; and that he was qualified, and highly qualified, there can 
 be no doubt. 
 
 What, then, ought we to do if there is evidence which would 
 justify a jury in coming to a conclusion that it was extremely 
 doubtful whether the plaintiff ever would be able to fill such 
 post? Apparently from the evidence the position of a superin- 
 tending marine engineer is a well-paid position, some such 
 engineers getting as high a salary as 1500 1. a year, and many 
 getting from 700 1. to 1000 1. Under these circumstances it is 
 extremely difficult to form any positive opinion as to the amount 
 of the difference in the plaintiff's prospective earnings — the dif- 
 ference between what he would have got if there had been no 
 accident and what he would be able to get since the accident ; 
 and I do not see my way, by reason of the amount of the dam- 
 ages or of the evidence, to say that the jury have taken into 
 consideration either topics or a measure of damages which they 
 ought not to have taken into consideration. * * * 
 
 Stirling, L. J. I am of the same opinion, and T have really
 
 58 CLASSIFICATION OF DAMAGES. 
 
 very little to add ; but, out of respect to the argument which has 
 been addressed to us, I wish to state very shortly the grounds 
 on which I have arrived at my conclusion. The question is as to 
 the amount of damages to which the plaintiff is entitled by reason 
 of a railway accident. The plaintiff is a young man of twenty- 
 eight, who has been trained for the position of a superintending 
 marine engineer. He has trained himself for that, not merely 
 because engineering is a profession to which he desires to apply 
 himself, but because he had the prospect through his relatives 
 of filling such a post. At the time of the accident he had not 
 obtained that position. He was then only in the employment of 
 his father's firm temporarilj^, at salary of 3 1. a week, and 
 living at home. Then occurred this accident, and after it he 
 made an attempt to obtain employment in connection with some 
 steamers abroad; his application was refused on the ground of 
 his physical condition. The salary attached to that appoint- 
 ment would have been over 500 1. a year, rising annually. There 
 is ample evidence that he was well qualified to fill that position. 
 That is how matters stood at the time of the trial. But it was 
 said that he might submit to an operation which, if successful, 
 would greatly improve his condition, and he was willing to sub- 
 mit to it. Of course, there is always a certain amount of risk 
 attending any operation, but in the present state of surgical skill, 
 as I read the evidence, the danger in this • case would not be 
 great. But what would be the position supposing that the 
 operation was successful? Dr. Pepper, the plaintiff's principal 
 medical witness, said: "Impossible for him ever to be as good 
 as before the accident" (that is, even if the operation was suc- 
 cessful). "I do not think he can or ought to take any place 
 requiring him to go up and down ladders." Now that being 
 the general outline of the case, for I think there is no great dif- 
 ference in the medical opinions, the question is whether the .jury 
 have come to a conclusion which we can call in question by 
 reason of their having given a verdict for 3000 1. Of that sum 
 about 450 1. is in respect of expenses and loss of income, which at 
 the date of the trial had been already incurred. There remains, 
 therefore, a sum of 2550 1., which is the compensation for the 
 prospective loss to this young man in his profession. Look- 
 ing at all the circumstances, and weighing them, I am unable 
 to come to the conclusion that the jury have either taken into 
 consideration matters which they ought not to have taken into
 
 COMPENSATORY DAMAGES. 59 
 
 consideration or that the sum is one which twelve sensible men 
 could not reasonably have awarded. In these circumstances, 
 although I do not think I should myself have come to the same 
 conclusion as to the amount of damages, I do not see my way to 
 interfere with the verdict and judgment. 
 
 Application refused. 
 
 (3) Loss of Wages. 
 WALKER V. CITY OF PHILADELPHIA. 
 
 Pennsylvania, 1900. 195 Pa. 168. 
 
 Action to recover for personal injuries to wife of plaintiff. 
 
 Mitchell, J. * * * There was also error on the subject 
 of damages, in permitting plaintiff's daughter to testify to what 
 she was earning in her employment as a dressmaker, which she 
 gave up to wait on her mother after the injury. Conceding 
 (though the sufficiency of the evidence is questionable) that 
 plaintiff had proved an express contract to pay his daughter for 
 services which, as a member of the family, were prima facie pre- 
 sumed to be rendered gratuitously (Goodhart v. Railroad Co., 
 177 Pa. St. 1), yet the measure of compensation for which the 
 city could be held liable was the ordinary wages of such at- 
 tendance. What the daughter had earned or could earn at her 
 independent trade was wholly irrelevant and misleading. 
 
 CAMPARETTI v. UNION RY. CO. 
 
 New York, 1904. 95 App. Div. 66. 
 
 HiRSCHBERG, P. J. This appeal presents but one question for 
 review, viz., the accuracy of the charge of the court to the effect 
 that the jury might award to the plaintiff whatever sum they saw 
 fit to allow him for loss of earnings during the time he was absent 
 from his work because of the personal injuries complained of. 
 He was injured while a passenger on one of the defendant's cars, 
 on December 8, 1903, and he alleged in his complaint that by 
 reason of such injury he was "entirely incapacitated from at- 
 tending to any business whatsoever for a period of several 
 weeks." A bill of particulars was afterwards filed by him, stat- 
 ing the nature of his injuries, and a further bill was also filed 
 in reference to his loss of earnings, stating that "plaintiff is a 
 stone and brick mason, and earns $4 a day. He was totally in-
 
 60 CLASSIFICATION OF DAMAGES. 
 
 capacitated for a period of about three weeks and a half after 
 the accident, being conlined to his room." 
 
 No evidence was given on the trial of the amount of the 
 plaintiff's wages or earnings. There was proof that his doctor's 
 bill amounted to $20. The court charged the jury as follows : 
 
 "The maximum that you may find, if you do find for the 
 plaintiff, will be $249, made up in his claim and bill of particu- 
 lars, of three weeks and a half at $4 a day as stone mason, and 
 $20 which the doctor says he has charged for services for some- 
 thing like 12 or 13 visits. The balance would represent the suffer- 
 ing as much as you say you think he was entitled to under the 
 circumstances, provided you find for the plaintiff." 
 
 The defendant excepted to the charge as to the $4 a day, where- 
 upon the court charged that : 
 
 "In reference to earning $4 a day that he was detained from 
 his work, I think he testified, as a stone mason, 22 days, and, the 
 amount of the salary not being stated, you may allow him what 
 you think is right and fair, and an honest compensation to him 
 for being kept from his work." 
 
 Exception was taken to this, and the court then said : 
 
 "I will not charge that if the attorney for the defendant ob- 
 jects, inasmuch as there seems to be a difference of opinion 
 whether or not there was any testimony given as to how much the 
 plaintiff earned at his trade. I will leave that matter to the jury. 
 You may allow him such sum as you see fit, from the testimony 
 that you have heard, to compensate him for the 22 days away 
 from his work, and a balance of $20 for doctor's fees, and as 
 much as you see fit for his suffering. ' ' 
 
 This was also excepted to, the defendant insisting that only a 
 nominal allowance could be made for loss of earnings. The ver- 
 dict of the jury was for $249, the maximum amoimt stated by 
 the court, including an allowance of $4 per day for the loss of 
 wages. There could be no recovery, however, for this item beyond 
 a nominal sum, in the absence of proof of the amount of the loss. 
 Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26; Staal v. The 
 Grand Street & Newtown R. R. Co., 107 N. Y. 625; Baker v. M. 
 R. R. Co., 118 N. Y. 537 ; Metz v. Metropolitan St. R. R. Co., 
 82 App. Div. 168. 
 
 The judgment should be reversed. 
 
 Judgment of the municipal court reversed, and new trial or- 
 dered ; costs to abide the event. All concur.
 
 COMPENSATORY DAMAGES. 61 
 
 WYMAN V. DEADY. 
 
 Connecticut, 190(5. 79 Conn. 414. 
 
 Action to recover damages caused by the act of the defendants 
 in procuring the plaintiff, by threats and intimidation, to be dis- 
 charged by his employers. Verdict for the plaintiff. Defendants ' 
 motion to set aside the verdict denied by the court. Appeal by 
 defendants. 
 
 Hall, J. The amended complaint in this action contains sub- 
 stantially these allegations : The plaintiff is a painter, decorator, 
 and wood finisher, and, as such, has been in the emploj^ of David 
 R. and Frank M. Hawley, who are painters and contractors. The 
 defendant, the Painters, Decorators & Paper Plangers of America, 
 Local Union No. 481, a voluntary association located in Hart- 
 ford, is a trade union whose proceedings are secret, and which 
 is organized for the purpose of maintaining high rates of wages, 
 reducing the hours of labor, preventing the employment of non- 
 union men, and similar purposes. The defendant Deady is a 
 member of said association, and its business agent or walking 
 delegate. 
 
 On or before the 25th of October, 1905, the defendants "mali- 
 ciously and unlawfully conspired, combined, and confederated 
 with each other, and with other persons to the plaintiff unknown, 
 to injure the plaintiff, and to prevent him from working at his 
 trade, and from obtaining employment," and on said day, "in 
 pursuance of said conspiracy, willfull}^ and maliciously, and by 
 means of threats and intimidations, induced the said David R. 
 and Frank ]\I. Hawley to discharge the plaintiff from their em- 
 ploy" and "because of the threats and intimidations of the de- 
 fendants" the said Hawleys, on said day, discharged the plaintiff 
 from their employ. At that time the plaintiff was receiving 
 wages at the rate of $3 per day. Since his discharge he has been 
 unable to obtain steady employment, and has thereby lost a large 
 sum of money, which he would otherwise have earned, and "has 
 been greatly injured in his business, and has been greatly dam- 
 aged by the unlawful action of the defendants." The complaint 
 is dated November 16, 1905, and claims $1,500 damages. The 
 answer in effect denies the above-stated allegations of the com- 
 plaint. The jury rendered a verdict for the plaintiff for $425 
 damages. The defendants filed a motion to set aside the verdict 
 and for a new trial, upon the ground that it was against the
 
 (J2 CLASSIFICATION OF DAMAGES. 
 
 evidence, and that the damages awarded were excessive, which 
 motion was denied by the trial court. The denial of said motion 
 is the only error assigned in the appeal. The decision of the trial 
 judge should be sustained if it appears from the printed record 
 before us that there was some evidence upon which the jury could 
 reasonably have found the issues submitted to them in favor of 
 the plaintiff, and could properly have awarded him damages to 
 the amount named in the verdict. Birdseye's Appeal, 77 Conn. 
 623-625. 
 
 The defendants contend that the record contains no evidence 
 of the alleged conspiracy, nor of the alleged malice, at least, upon 
 the part of the union, nor of any authority of Deady from the 
 union to make the claimed threats; and that as it appears from 
 *he plaintiff's owm testimony that he was unemployed but 86 
 days during the period between the day of his discharge, and 
 thg date of the commencement of this action, and could have 
 earned but $3 a day, the damages recoverable could not have 
 exceeded $258. Section 1296 of the General Statutes of 1902 
 makes it a criminal offense to threaten or use any means to in- 
 timidate any person to compel him to do or abstain from doing 
 against his will any act which such person has a right to do. To 
 deprive a workman of his employment by threatening and in- 
 timidating his employer is a criminal offense under this statute. 
 State V. Glidden, 55 Conn. 46-74. That one who, by such means, 
 has so injured an employe would also be liable in damages in a 
 civil action is not questioned in this action. When such an 
 injury results from the execution of a conspiracy it is the wrong- 
 ful act done in carrying out the concerted plan, and not the con- 
 spiracy itself which furnishes the real ground for a civil action. 
 Savill V. Roberts, 1 Ld. Raymond, 374. Hutchins v. Hutchins, 
 7 Hill (N. Y.) 107. 
 
 The gist, therefore, of the present action is not the alleged con- 
 spiracy, but the injury to the plaintiff caused by the unlawful 
 acts of the defendants in procuring his dismissal by threatening 
 and intimidating his employers. Bulkley v. Storer, 2 Day, 531. 
 To entitle the plaintiff to a verdict against both defendants no 
 further proof of a conspiracy was required than that they were 
 joint tort-feasors in procuring the dismissal of the plaintiff by 
 means of such threats and intimidation ; and had the proof been 
 that but one of the defendants so procured the discharge the
 
 COMPENSATORY DAMAGES. 63 
 
 plaintiff, under section 760 of the General Statutes of 1902, would 
 have been entitled to a verdict against that one. 
 
 Neither was it necessary for the plaintiff, to entitle him to a 
 verdict under the allegations of the complaint, to prove any- 
 other malice than that which the law might imply from the un- 
 lawful act proved. The allegations of conspiracy and of malice 
 contained in the complaint were neither of them essential to a 
 sufficient statement of the plaintiff 's cause of action. The former 
 may be regarded either as an averment of a fact, the proof of 
 which might aid the plaintiff in establishing a joint liability of 
 the defendants, or like the averment of malice, as an allegation 
 of a fact in aggravation of the injury complained of. Robertson 
 V. Parks, 76 Md. 118. Garing v. Frazer, 76 Me. 37. 
 
 Upon the question of whether the procurement of the plaintiff's 
 discharge by the means alleged, was the joint act of the de- 
 fendants, the testimony of the plaintiff, of his said employers, 
 of the defendant Deady, and of other officers and members of the 
 union, and the records of the doings at various meetings of the 
 union were presented in the trial court. It is not our purpose 
 to repeat that evidence here. It is sufficient for us to say of it 
 that the record shows that there was evidence before the jury 
 from which, in our opinion, they might reasonably have con- 
 cluded that the plaintiff was discharged from his employment 
 on account of the threats to his employers, and the means to' in- 
 timidate them made and used by the defendant Deady for the 
 purpose of compelling the plaintiff's discharge; that Deady was 
 the business agent and so-called walking delegate of the defendant 
 union, and did said acts not only with the knowledge and ap- 
 proval, but by the authority of the union. Such facts would 
 render both defendants liable as joint tort-feasors. The damages 
 awarded are not necessarily excessive. Punitive damages might 
 have been awarded even against the union if it either directed 
 Deady to do the particular acts complained of, or if it afterwards 
 approved them (Maisenbacker v. Society Concordia, 71 Conn. 
 369-379), or the jury may have found, as alleged in the com- 
 plaint, that the plaintiff was otherwise injured in his business, 
 than by the loss of emploj^ment during said period. 
 
 There is no error. 
 
 The other Judges concurred.
 
 64 CLASSIFICATION OF DAMAGES. 
 
 (4) Loss of Profits. 
 
 MASTERTON r. TTTK MAYOR OP BROOKLYN. 
 
 Xew York. 1845. 7 Hill, 62. 
 
 The plaintiffs agreed to furnish and deliver marble from the 
 quarry of Kain and Morgan for building the City Hall in Brook- 
 lyn. The amount required was 88819 feet, for which they 
 w^ere to be paid a specified price. Plaintiffs then contracted with 
 the owners of the quarry for the marble. When the plaintiffs 
 had delivered 14779 feet and had on hand at the quarry 3308 
 feet ready for delivery, the City of Brooklyn stopped the work 
 and obliged the plaintiffs to break their contract wath Kain and 
 ^lorgan, without any fault on the part of the plaintiffs. Plain- 
 tiffs sought to recover the profits of the contract and also the 
 damages to which they were subjected through the violation of 
 the subcontract for the marble at the quarry. 
 
 Nelson, C. J. The damages for the marble on hand, ready 
 to be delivered, was not a matter in dispute on the argument. 
 The true measure of allowance in respect to that item was con- 
 ceded to be the difference between the contract price, and the 
 market value of the article at the place of delivery. This loss 
 the plaintiffs had actually sustained, regard being had to their 
 rights as acquired under the contract. 
 
 The contest arises out of the claim for damages in respect 
 to the remainder of the marble which the plaintiffs had agreed 
 to furnish, but which they were prevented from furnishing by 
 the suspension of the work in July, 1837. This portion was 
 not ready to be delivered at the time the defendants broke up 
 the contract, but the plaintiffs w^ere then willing and offered 
 to perform in all things on their part, and the case assumes 
 that they were possessed of sufficient means and ability to have 
 done so. 
 
 The plaintiffs insist that the gains they would have real- 
 ized, over and above all expenses, in case they had been allowed 
 to perform the contract, enter into and properly constitute a 
 part of the loss and damage occasioned by the breach ; and they 
 were accordingly permitted, in the course of the trial, to give 
 evidence tending to show what amount of gains they would 
 have realized if the contract had been carried into execution. 
 
 On the other hand, the defendants say that this claim ex-
 
 COMPENSATORY DAMAGES. 65 
 
 ceeds the measure of damages allowed by the common law for 
 the breach of an executory contract. They insist that it is 
 simply a claim for the profits anticipated from a supposed good 
 bargain, and that these are too uncertain, speculative, and re- 
 mote to form the basis of a recovery. 
 
 It is not to be denied that there are profits or gains deriv- 
 able from a contract which are uniformly rejected as too con- 
 tingent and speculative in their nature, and too dependent upon 
 the fluctuation of markets and the chances of business, to enter 
 into a safe or reasonable estimate of damages. Thus, any sup- 
 posed successful operation the party might have made, if he 
 had not been prevented from realizing the proceeds of the con- 
 tract at the time stipulated, is a consideration not to be taken 
 into the estimate. Besides the uncertain and contingent issue 
 of such an operation in itself considered, it has no legal or neces- 
 sary connection with the stipulations between the parties, and 
 cannot therefore be presumed to have entered into their con- 
 sideration at the time of contracting. It has accordingly been 
 held that the loss of any speculation or enterprise in which a 
 party may have embarked, relying on the proceeds to be de- 
 rived from the fulfillment of an existing contract, constitutes no 
 part of the damages to be recovered in case of breach. So a 
 good bargain made by a vendor, in anticipation of the price 
 of the article sold, or an advantageous contract of resale made 
 by a vendee, confiding in the vendor's promise to deliver the 
 article, are considerations always excluded as too remote and 
 contingent to affect the question of damages. Clare v. May- 
 nard, 6 Adol. & Ellis, 519, and Cox v. AValker, in the note to 
 that case ; Walker v. Moor, 10 Bam. & Cress, 416 ; Cary v. Gru- 
 man, 4 Hill, 627, 628 ; Chitty on Contracts, 458, 870. 
 
 The civil law is in accordance with this rule. "In general." 
 says Pothier, "the parties 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 par- 
 ticular thing which is the object of it, and not such as may have 
 been incidentally occasioned thereby in respect to his other 
 affairs; the debtor is therefore not answerable for these; but 
 only for such as are suffered with respect to the thing which 
 is the object of the obligation, dam7ii et intcresne ipsam rem non 
 Jiabitam.'' 1 Evans' Poth. 91; and see Dom. B. 3, tit. 5, § 2, art. 
 3, 4, 5, 6. 
 
 5
 
 66 CLASSIFICATION OF DAMAGES. 
 
 AVlion the books and cases speak of the profits anticipated 
 from a good bargain as matters too remote and uncertain to be 
 taken into the account in ascertaining the true measure of 
 damages, they usually have reference to dependent and col- 
 lateral engagements entered into on the faith and in expec- 
 tation of the performance of the principal contract. The per- 
 formance or non-performance of the latter may and doubtless 
 often does exert a material influence upon the collateral enter- 
 prises of the party; and the same may be said as to his gen- 
 eral affairs and business transactions. But the influence is 
 altogether too remote and subtile to be reached by legal proof 
 or judicial investigation. And besides, the consequences, when 
 injurious, are as often perhaps attributable to the indiscretion 
 and fault of the party himself, as to the conduct of the delinquent 
 contractor. His condition, in respect to the measure of dam- 
 ages, ought not to be v^^orse for having failed in his engagement 
 to a person whose affairs were embarrassed, than if it had been 
 made with one in prosperous or affluent circumstances. Dom. 
 B. 3, tit. 5, § 2, art. 4. 
 
 But profits or advantages which are the direct and imme- 
 diate fruits of the contract entered into between the parties, 
 stand upon a different footing. These 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 fulfil- 
 ment of any other stipulation. They are presumed to have 
 been taken into consideration and deliberated upon before the 
 contract was made, and formed perhaps the only inducement 
 to the arrangement. The parties may indeed have entertained 
 different opinions concerning the advantages of the bargain, 
 each supposing and believing that he had the best of it; but 
 this is mere matter of judgment going to the formation of the 
 contract, for which each has shown himself willing to take the- 
 responsibility, and must therefore abide the hazard. 
 
 Such being the relative position of the contracting parties, 
 it is difficult to comprehend why, in case one party ha.s de- 
 prived the other of the gains or profits of the contract by 
 refusing to perform it, this loss should not constitute a proper 
 item in estimating the damages. To separate it from the general 
 loss would seem to be doing violence to the intention and under- 
 standing of the parties, and severing the contract itself.
 
 COMPENSATORY DAMAGES. 67 
 
 The civil-law writers plainly include the loss of profits, in 
 cases like the present, within the damages to which the com- 
 plaining party is entitled. They hold that he is to be indem- 
 nified for "the loss which the non-performance of the obli- 
 gation has occasioned him, and for the gain of which it has 
 deprived him." 1 Evans' Poth. 90; Dom. B. 3, tit. 5, § 2, 
 art. 6, 12. And upon looking into the common-law authori- 
 ties bearing upon the question, especially the later ones, they 
 will be found to come nearly if not quite up to the rule of the 
 civil law. 
 
 In Boorman v. Nash, 9 Barn. & Cress. 145, it appeared that 
 the defendant contracted in November for a quantity of oil, 
 one half to be delivered to him in February following, and 
 the rest in March ; but he refused to receive any part of it. 
 And the court held that the plaintiff was entitled to the dif- 
 ference between the contract price, and that which might have 
 been obtained in market on the days when the contract ought 
 to have been completed. See M'Lean v. Dunn, 4 Bing. 722. 
 The case of Leigh v. Paterson, 8 Taunt. 540, was one in which 
 the vendor was sued for not delivering goods on the 31st of 
 December, according to his contract. It appeared that, in the 
 month of October preceding, he had apprised the vendee that 
 the goods would not be delivered, at which time the market value 
 was considerably less than on the 31st of December. The court 
 held that the vendee had a right to regard the contract as sub- 
 sisting until the 31st of December, if he chose, and recover the 
 difference between the contract price, and the market value on 
 that day. See also Gainsford v. Carroll, 2 Barn. & Cress. 624. 
 
 The above are cases, it will be seen, in which the profits of 
 a good bargain were regarded as a legitimate item of dam- 
 ages, and constituted almost the only ground of recovery. And 
 it appears to me that we have only to apply the principle of 
 these cases to the one in hand, in order to determine the measure 
 of damages which must govern it. The contract here is for the 
 delivery of marble, WTought in a particular manner, so as to 
 be fitted for use in the erection of a certain building. The 
 plaintiff's claim is substantially one for not accepting goods 
 bargained and sold; as much so as if the subject matter of the 
 contract had been bricks, rough stone, or any other article of 
 commerce used in the process of building. The only difficulty 
 or embarrassment in applying the general rule grows out of the
 
 68 CLASSIFICATION OF DAMAGES, 
 
 fact that the artiek^ iu question does not appear to have any 
 well-aseertained market value. But this cannot change the 
 principle which must govern, but only the mode c)i' ascertaining 
 the actual value of the article, or rather the cost to the party 
 producing it. Where the article has no market value, an in- 
 vestigation into the constituent elements of the cost to the party 
 who has contracted to furnish it, becomes necessary; and that, 
 compared with the contract price, Avill afford the measure of 
 damages. The jury will be able to settle this upon evidence of 
 the outlaw's, trouble, risk, etc., which enter into and make up 
 the cost of the article in the condition required by the con- 
 tract, at the place of delivery. If the cost equals or exceeds the 
 contract price, the recovery will of course be nominal ; but if the 
 contract price exceeds the cost, the difference will constitute the 
 measure of damages. 
 
 'It has been argued that, inasmuch as the furnishing of the 
 marble would have run through a period of five years — of 
 which about one year and a half only had expired at the time 
 of the suspension — the benefits which the party might have 
 realized from the execution of the contract, must necessarily 
 be speculative and conjectural ; the court and jury having no 
 certain data upon which to make the estimate. If it were 
 necessary to make the estimate upon any such basis, the argu- 
 ment would be decisive of the present claim. But in my 
 judgment no such necessity exists. Where the contract, as 
 in this case, is broken before the arrival of the time for full per- 
 formance, and the opposite party elects to consider it in that 
 light, the market price on the day of the breach is to govern 
 in the assessment of damages. In other words, the damages 
 are to be settled and ascertained according to the existing state 
 of the market at the time the cause of action arose, and not at 
 the time fixed for full performance. The basis upon which to 
 estimate the damages, therefore, is just as fixed and easily as- 
 certained in cases like the present, as in actions predicated 
 upon a failure to perform at the day. 
 
 It will be seen that we have laid altogether out of view the sub- 
 contract of Kain & ]\Iorgan, and all others that may have been 
 entered into by the plaintiffs as preparatory and subsidiary to 
 the fulfilment of the principal one with the defendants. In- 
 deed, I am unable to comprehend how these can be taken into 
 the account, or become the subject matter of consideration at
 
 COMPENSATORY DAMAGES. 69 
 
 all, in settling the amount of damages to be recovered for a 
 breach of the principal contract. The defendants had no con- 
 trol over or participation in the making of the sub-contracts, 
 and are certainly not to be compelled to assume them if im- 
 providently entered into. On the other hand, if they were made so 
 as to secure great advantages to the plaintiffs, surely the defend- 
 ants are not entitled to the gains which might be realized from 
 them. In any aspect, therefore, these sub-contracts present a 
 most unfit as well as unsatisfactory basis upon which to esti- 
 mate the real damages and loss occasioned by the default of the 
 defendants. The idea of assuming that the plaintiffs were 
 necessarily compelled to break all their sub-contracts, as a con- 
 sequence of the breach of the principal one, and that the dam- 
 ages to which they may thus be subjected ought to enter into 
 the estimate of the amount recoverable against the defendants 
 is too hypothetical and remote to lead to any safe or equitable 
 result. And yet, the fact that these sub-contracts must ordi- 
 narily be entered into preparatory to the fulfilment of the prin- 
 cipal one, shows the injustice of restricting the damages in 
 cases like the present, to compensation for the work actually 
 done, and the item of materials on hand. "We should thus 
 throw the whole loss and damage that would or might arise out 
 of contracts for further materials, etc., entirely upon the party 
 not in fault. 
 
 If there was a market value of the article in this case, the 
 question would be a simple one. As there is none, however, 
 the parties will be obliged to go into an inquiry as to the 
 actual cost of furnishing the article at the place of delivery; 
 and the court and jury should see that in estimating this 
 amount, it be made upon a substantial basis, and not left to 
 rest upon the loose and speculative opinions of witnesses. The 
 constituent elements of the cost should be ascertained from 
 sound and reliable sources; from practical men, having ex- 
 perience in the particular department of labor to which the 
 contract relates. It is a very easy matter to figure out large 
 profits upon paper ; but it will be found that these, in a great 
 majority of the cases, become serioasly reduced when sub- 
 jected to the contingencies and hazards incident to actual 
 performance. A jury should scrutinize vnth care and watch- 
 fulness any speculative or conjectural account of the cost of 
 furnishing the article that would result in a very unequal bar-
 
 70 CLASSIFICATION OP DAMAGES. 
 
 gain between the parties, by which the gains and benefits, or, 
 in other words, the measure of damages against the defend- 
 ants, are unreasonably enhanced. They should not overlook 
 the risks and contingencies which are almost inseparable from 
 the execution of contracts like the one in question, and which 
 increase the expense independently of the outlays in labor and 
 capital. 
 
 These views, it will be seen, when contrasted with the law 
 as expounded and applied by the Circuit Judge, necessarily 
 lead to the granting of a new trial. 
 
 Beardsley, J. The Circuit Judge clearly erred in that part 
 of his charge to the jury which related to the contract of the 
 plaintiffs with Kain & Morgan. No damages are allowable on 
 account of this contract, nor am I able to see how it can be 
 regarded as relevant evidence upon any disputed point con- 
 neeied with the amount for which the defendants are liable. 
 
 The main question in the case arises out of the claim of 
 the plaintiffs in respect to that portion of their contract with 
 the defendants which remained wholly unexecuted in July, 
 1837. I think the plaintiffs are entitled to recover the amount 
 they would have realized as profits, had they been allowed 
 fully to execute their contract. The defendants are not to 
 gain by their wrongful act, nor is that to deprive the plain- 
 tiffs of the advantages they had secured by the contract, and 
 which would have resulted to them from its performance. The 
 jury must therefore ascertain what it would probably have 
 cost them to complete the contract, over and above the materials 
 on hand; including the value of the marble required, the 
 labor of quarrying and preparing it for use, the expense of trans- 
 portation, superintendence, and insurance against all hazards, 
 together with every other expense incident to the fulfilment 
 of the undertaking. The aggregate of these expenditures is to 
 be deducted from the amount which would be payable for the 
 performance of this part of the contract, according to the prices 
 therein stipulated, and the balance will be the damages which 
 the jury should allow for the item under consideration. 
 
 Eemote and contingent damages, depending on the result 
 of successive schemes or investments, are never allowed for 
 the violation of any contract. But profits to be earned and 
 made by the faithful execution of a fair contract are not of 
 this description. A right to damages equivalent to such profits
 
 COMPENSATORY DAMAGES. 
 
 71 
 
 resiilts directly and immediately from the act of the party v.ho 
 prevents the contract from being performed. 
 
 Where a vendor has agreed to sell and deliver personal 
 property at a particular day, and fails to perform his contract, 
 the vendee may recover in damages the difference between the 
 contract price, and the market value of the property at the 
 time when it should have been delivered. Chit, on Contracts, 
 445, 5th Am. ed. ; Dey v. Dox, 9 Wend. 129 ; Gainsford v. Car- 
 roll, 2 Barns. & Cress. 624; Shepperd v. Hampton, 3 Wheat. 
 200 : Quarles v. George, 20 Pick. 400 ; Shaw v. Nudd, 8 Id. 9 ; 
 2 Phill. Ev. 104. So, if a person who has agreed to purchase 
 goods at a certain price refuses to receive them, he must pay 
 the difference between their market value and the enhanced 
 price which he contracted to pay. 2 Stark. Ev. 1201, 7th Am. 
 ed. ; Boorman v. Nash, 9 Barn. & Cress. 145. 
 
 These principles are strictly applicable to the present case. 
 In reason and justice there can be no difference between the 
 damages which should be recovered for the breach of an ordi- 
 nary agreement to buy or sell goods, and one to procure build- 
 ing materials, fit them for use, and deliver them in a finished 
 state, at a stipulated price. In neither case should the wrong- 
 doer be allowed to profit by his wrongful act. The party who 
 is ready to perform is entitled to a full indemnity for the loss 
 of his contract. He should not be made to suffer by the de- 
 linquency of the other party, but ought to recover precisely 
 what he would have made by performance. This is as sound 
 in morals as it is in law. Shannon v. Comstock, 21 Wend. 461 ; 
 Miller v. Mariner's Church, 7 Greenl. 51; Shaw v. Nudd, 8 
 Pick. 13 ; Swift v. Barnes, 16 Id. 196 ; Royalton v. The Royal- 
 ton & Woodstock Turnpike Co., 14 Verm. Rep. 311. 
 
 The plaintiffs were not bound to wait till the period had 
 elapsed for the complete performance of the agreement, nor 
 to make successive offers of performance, in order to recover 
 all their damages. They might regard the contract as broken 
 up, so far as to absolve them from making further efforts to 
 perform and give them a right to recover full damages as for 
 a total breach. I am not prepared to say that the plaintiffs 
 might not have brought successive suits on this covenant, had 
 they from time to time made repeated offers to perform on 
 their part, which were refused by the defendants ; but this the 
 plaintiffs were not bound to do.
 
 72 CLASSIFICATION OF DAMAGES. 
 
 There can be no serious diffieiilt}' in assessing damages ac- 
 cording to the principles which have been stated. Tlie con- 
 tract was made in 1830; and, according to the testimony, 
 about live yeai's would have been a reasonable time for iLs 
 execution. That time has gone by. The expense of execut- 
 ing the contract must necessarily depend upon the prices of 
 labor and materials. If prices tiuctualed during the period 
 in question, that may be shown by testimony. In this respect 
 there is no need of resorting to conjecture ; for all the data 
 necessary to form a correct estimate of the entire expense of 
 executing the contract, can now be furnished by witnesses. 
 
 If the cause had been brought to trial before the time for 
 completing the contract expired, it would have been im- 
 practicable to make an accurate assessment of the damages. 
 This is no reason, however, why the injured party should not 
 have his damages; although the difficulty in making a just 
 assessment in such a case has been deemed a sufficient ground 
 for decreeing specific performance. Adderly v. Dixon, 1 Sim. 
 & Stu. 607, and the cases there cited. In Royalton v. Tiie 
 Royalton & Woodstock Turnpike Co., 14 Verm. R. 311, 32-i, 
 an action was brought on a contract which had about tw^elve 
 years to run. And the court held, in granting a new trial, that 
 the rule of damages "should have been to give the plaintiffs 
 the difference between what they were to pay the defendants, 
 and the probable expense of performing the contract; and 
 thus assess the entire damages for the remaining twelve years." 
 No rule which will be absolutely certain to do justice between 
 the parties can be laid down for such a case. Some time must 
 be taken arbitrarily at which prices are to be ascertained and 
 estimated; and the day of the breach of the contract, or of 
 the commencement of the suit, should perhaps be adopted under 
 such circumstances. But w^e need not, in the present case, ex- 
 press any opinion on that point. No conjectural estimate is 
 required to ascertain what would have been the expense of a 
 complete execution of this contract ; but the state of the market, 
 in respect to prices, is now susceptible of explicit and intelligible 
 proof. And where that is so, it seems to me unsuitable to adopt 
 an arbitrary period ; especially as the estimate of damages must 
 in any event be somewhat conjectural. 
 
 I think the defendants are entitled to a new trial, and that 
 the damages should be assessed upon the principles stated.
 
 COMPENSATORY DAMAGES. 73 
 
 Bronson, J. As the marble had no market value, the ques- 
 tion of profits involves an inquiry into the cost of the rough 
 material in the quarry, and the expense of raising, dressing, 
 and transporting it to the place of delivery. There may have 
 been fluctuations in the prices of labor and materials between 
 the day of the breach and the time when the contract was to 
 have been fully performed; and this makes the question upon 
 which my brethren are not agreed. I concur in opinion with 
 the Chief Justice, that such fluctuations in prices should not 
 be taken into the account in ascertaining the amount of dam- 
 ages, but that the court and jury should be governed entirely 
 by the state of things which existed at the time the contract 
 was broken. This is the most plain and simple rule: it will 
 best preserve the analogies of the law ; and will be as likely 
 as any other to do substantial justice to both parties. 
 
 New trial granted. 
 
 GRIFFIN V. COLVER. 
 
 New York, 1858. 16 X. Y. 489. 
 
 Selden, J. The only point made by the appellants is, that 
 in estimating 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 upon the trial as coming within the rule 
 which precludes the allowance 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 showia, by clear 
 and satisfactory evidence, to have been actually sustained. It is 
 a well established rule of the common law that the damages to 
 be recovered for a breach of contract must be sho\\Ti with cer- 
 tainty, 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 because there is anything in their nature 
 which should per se prevent their allowance. Profits which
 
 74 CLASSIFICATION OF DAMAGES. 
 
 wonld certainly have been realized but for the defendant's de- 
 fault 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 delivering 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 established 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 in- 
 surance 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 fail- 
 ure to transport goods upon land is, that in the latter case the 
 time when the goods should have been delivered, and conse- 
 quently that when the market price is to be taken, can be as- 
 certained with reasonable certainty; while in the former the 
 fluctuation of the markets and the contingencies affecting the 
 length of the voyage render every calculation of profits spec- 
 ulative and unsafe. 
 
 There is also an additional reason, viz., the difficulty of ob- 
 taining 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 Story, in the case of the Schooner Lively, 1 Gallis. 
 315, which was a case of illegal capture. He says : ' ' Independ- 
 ent, however, of all authority, I am satisfied upon principle that 
 an allowance of damages, 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 uncertainty. 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 embarrassing 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^
 
 COMPENSATORY DAMAGEo. lO 
 
 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 Nancy, 
 3 Wheat. 546, and L'Amistad de Rues, 5 Wheat. 385. Indeed, 
 it is clear that whenever profits are rejected as an item of dam- 
 ages, it is because they are subject to too many contingencies, 
 and are too dependent upon the tiuctuations of markets and the 
 chances of business, 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 ap- 
 prehend, 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 there- 
 by m respect to his o^\^l (other) affairs." But this rule had no 
 application to the case then before the court. It applies only 
 to eases 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 breach of 
 one contract from availing himself of some other collateral and 
 independent contract entered into with other parties, or from 
 perfoming some act in relation to his own business not neces- 
 sarily connected with the agreement. An instance of the latter 
 kind is where a Canon of the church, by reason of the non-de- 
 livery of a horse pursuant to agreement, was prevented from ar- 
 riving at his residence in time to collect his tithes. 
 
 In such cases the damages sustained are disallowed, not be- 
 cause they are uncertain, nor because they are merely conse- 
 quential or remote, but because they cannot be fairly considered 
 as having been 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 fulfil his collateral 
 agreement, or perform the act supposed. (Sedg. 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
 
 76 CLASSIFICATION OF DAMAGES. 
 
 t'onstruet ; and were, therefore, in the plainest sense, the direct 
 and proximate result of the breach alleged. IMoreover, that use 
 was contemplated by the parties in entering into the contract, 
 and constituted the object for which the steamboat was built. 
 It is clear, therefore, that the rvile of Pothier had nothing to do 
 with the ease. Those damages must then have been disallo-wed, 
 because thej^ consisted of prolits depending, not, as in the case 
 of a contract to transport 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 mari- 
 time 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 con- 
 tingencies 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 reasonably certain by evidence. 
 
 From these authorities and principles it is clear that the de- 
 fendants were not entitled to measure their damages by esti- 
 mating what they might have earned by the use of the engine and 
 their other machinery had the contract been complied with. 
 Nearly every element entering into such a computation would 
 have been of that uncertain character which has uniformly pre- 
 vented 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 
 compensation 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 is subject to but two con- 
 ditions : 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
 
 COMPENSATORY DAMAGES. 77 
 
 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 tiow directly and nat- 
 urally 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 con- 
 ;tingent, 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 re- 
 jected; 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 perform. 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, 
 immediate 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 already advanced, imiformly adopts that mode of 
 estimating the damages which is most definite and certain. The 
 case of Freeman v. Clute, 3 Barb. S. C. R., 424, is a case of this 
 class, and affords an apt illustration 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 was tried, 
 and upon the precise ground taken here. But he nevertheless 
 held that compensation was to be allowed for the "loss of the
 
 78 CLASSIFICATION OF DAMAGES. 
 
 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 imderstood, 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 un- 
 certain and contingent profits of the trips lost, but such sum as 
 they could have realized by chartering the boat for those trips, 
 I 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 plain- 
 tiffs' 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 ma- 
 chinery, &c., &c., are not only susceptible of more exact and 
 definite proof, but in a majority of cases would, I think, be 
 found to be a more accurate measure of the damages actually 
 sustained in the class of cases referred to, considering the con- 
 tingencies and hazards attending the prosecution of most kinds 
 of business, than any estimate of anticipated profits ; just as the 
 ordinary rate of interest is upon the whole a more accurate 
 measure of the damages sustained in consequence of the non-pay- 
 ment of a debt than any speculative profit which the creditor 
 might expect to realize from the use of the money. It is no an- 
 swer to this to say that, in estimating what would be the fair 
 rent of a mill, we must take into consideration all the risks of the 
 business in which it is to be used. Rents are graduated according 
 to the value of the property and to an average of profits arrived 
 at by very extended observation ; and so accurate are the results 
 of experience in this respect that rents are rendered nearly if not 
 quite as certain as the market value of commodities at a partic- 
 ular time and place. 
 
 The proper rule for estimating this portion of the damages in 
 the present case was, to ascertain what would have been a fair 
 price to pay for the use of the engine and machinery, in view of 
 all the hazards and chances of the business ; and this is the rule
 
 COMPENSATORY DAMAGES. 79 
 
 which I understand the referee to have adopted. There is no 
 error in the other allowances made by the referee. The judg- 
 ment should therefore be affirmed. 
 
 BRIGIIAM V. CARLISLE. 
 
 Alabama, 1884. 78 Ala. 243. 
 
 Clopton, J. * * * The material question is the measure 
 of damages. The primary purpose of awarding damages is 
 actual compensation to the party injured, whether by a tort 
 or by breach of contract, though there are exceptional cases, 
 in which exemplary or punitive damages are allowed. Owing 
 to the ever-occurring differences in the circumstances and in 
 the special conditions of the contracting parties, it has been 
 found difficult, if not impossible, to lay down general and defi- 
 nite rules as to the measure of damages, applicable to all cases 
 of a class. From a misconstruction of expressions of eminent 
 jurists, not sufficiently guarded for general use, but adapted 
 to the case in hand, the applications of rules, commonly recog- 
 nized, have been as various as the cases. The proposition, that 
 all damages are recoverable which are in the contemplation of 
 the parties, is not strictly correct. The primary rules are, the 
 damages must be the natural and proximate results of the wrong 
 complained of and the law must not be merely speculative, or 
 conjectural. These must concur, though founded on different 
 principles, and are distinct and independent of each other. 
 The law presumes that a party foresees the natural and proxi- 
 mate results of a breach of his contract or tort, and hence these 
 are presumed to be in his legal contemplation. For such dam- 
 ages, as a general rule, the party at fault is liable. 
 
 But there are damages, which are in the contemplation of 
 the parties at the time of making the contract, and are the 
 natural and proximate results of its breach, which are not re- 
 coverable. The parties must necessarily contemplate the loss 
 of profits as the direct and necessary consequences of the breach 
 of a contract, and yet all profits are not within the scope of re- 
 coverable damages. There are numerous cases, however, in 
 which profits constitute, not only an element, but the measure 
 of damage. While the line of demarcation is often dim and 
 shadowy, the distinctive features consist in the nature and char- 
 acter of the profits. "When they form an elemental constituent
 
 80 CLASSIFICATION OF DAMAGES. 
 
 of the contract, their loss, the natural result of its breach, and 
 the amount can be estimated with reasonable certainty, such cer- 
 tainty as satisfies the mind of a prudent and impartial person, 
 they are allowed. The requisite to their allowance is some stand- 
 ard, as regular market values or other established data, by ref- 
 erence to which the amount may be satisfactorily ascertained. 
 Illustrations of profits recoverable are found in cases of sales 
 of personal property at a fixed price, evictions of tenants by 
 landlords, articles of partnership, and many commercial con- 
 tracts. 
 
 On the other hand, "mere speculative profits, such as might 
 be conjectured would be the probable result of an adventure, 
 defeated by the breach of a contract, the gains from which are 
 entirely' conjectural, and with respect to which no means exist 
 of ascertaining even approximately the probable results, cannot 
 under any circumstances be brought within the range of recov- 
 erable damages." 1 Suth. Dam. 141. Profits speculative, con- 
 jectural, or remote, are not generally regarded as an element in 
 estimating the damages. In Pollock v. Gantt, 69 Ala. 373 ; s. c, 
 44 Am. Rep. 519, it is said: "What are termed speculative 
 damages — that is possible, or even probable gains, that it is 
 claimed would have been realized, but for the tortious act or 
 breach of contract charged against a defendant — are too remote, 
 and cannot be recovered." The same rule has been repeatedly 
 asserted by this court. Culver v. Hill, 68 Ala. 66 ; Iliggins v. 
 Mansfield, 62 Ala. 267; Burton v. Holley, 29 Ala. 318; s. c, 
 65 Am. Dec. 401 ; White v. Miller, 71 N. Y. 118 ; s. c, 27 Am. 
 Rep. 13; French v. Ramge, 2 Neb. 254; 2 Smith Lead. Cases, 
 574; Olmstead v. Burke, 25 111. 86. The two following cases may 
 serve to illustrate the difference between profits recoverable and 
 not recoverable. In Aetna Life Ins. Co. v. Nexsen, 84 Ind. 347 ; 
 s. c, 43 Am. Rep. 91, an insurance agent who had been dis- 
 charged without cause before the expiration of his contract, was 
 allowed to include in his recovery the probable value of renewals 
 on policies previously obtained by him, upon which future pre- 
 miums would, in the usual course of business, be received by the 
 company, on the ground that the amount of compensation, due 
 on such renewals, can be ascertained with requisite certainty 
 by the use of actuary's life-tables and comparisons, and that 
 the basis of the right to damages existed and was not to be built 
 in the future. In Lewis v. Atlas Mut. Ins. Co., 61 Mo. 534,
 
 COMPENSATORY DAMAGES. 81 
 
 which is cited with approval in the other case, the same rule as 
 to the probable value of renewals was held, but it was also held, 
 that an estimate of the probable earnings of the agent there- 
 after, derived from proof of the amount of his collections and 
 commissions before the breach of the contract, in the absence 
 of other proof, is too speculative to be admissible. 
 
 Profits are not excluded from recovery, because they are 
 profits; but when excluded, it is on the ground that there are 
 no criteria b}^ which to estimate the amount with the certainty 
 on which the adjudications of courts, and the findings of juries 
 should be based. The amount is not susceptible of proof. In 
 3 Suth. Dam. 157, the author discriminatingly observes : ' ' When 
 it is advisedly said that profits are uncertain and speculative, 
 and cannot be recovered, when there is an alleged loss of them, 
 it is not meant that profits are not recoverable merely because 
 they are such, nor because profits are necessarily speculative, 
 contingent and too uncertain to be proved ; but they are rejected 
 Avhen they are so ; and it is probable that the inquirj^ for them 
 has been generally proposed when it must end in fruitless un- 
 certainty ; and therefore it is more a general truth than a general 
 principle, that a loss of profits is no groimd on which damages 
 can be given." When not allowed because speculative, con- 
 tingent, and uncertain, their exclusion is founded by some on 
 the ground of remoteness, and by others, on the presumption 
 that they are not in the legal contemplation of the parties. 
 
 The plaintiff, by the contract, undertook the business of trav- 
 eling salesman for the defendants. The amount of his commis- 
 sions depended not merely on the number and amounts of sales 
 he might make, but also on the proportional quantity of the 
 two cla.sses of goods sold, his commissions being different on each. 
 The number and amounts of sales depended on many contin- 
 gencies, the state of trade, the demand for such goods, their suit- 
 ableness to the different markets, the fluctuations of business, 
 the skill, energy, and industry with which he prosecuted the 
 business, the time employed in effecting different sales, and upon 
 the acceptance of sales by the defendants. There are no criteria, 
 no established data, by reference to which the profits are capable 
 of any estimate. They are purely speculative and conjectural. 
 Besides, the evidence is the mere opinion and conjecture of the 
 plaintiff without giving any facts on which it was based. The 
 bare statement, uncorroborated by any facts, and without a basis.
 
 82 CLASSIFICATION OF DAMAGES. 
 
 that "the reasonable sales would have been $15,000, and that 
 the net prolits on that aniovint of sales would have been $4:50," 
 is too conjectural to be admissible. Washburn v. Hubbard, 6 
 Lans. 11. 
 
 Reversed and remanded. 
 
 WRIGHT V. MULVANEY. 
 
 Wisconsin, 1890. 78 Wis. 89. 
 
 The plaintiffs were fishermen in Green Bay, and had what is 
 called a pound or a pot net set near the direct route from the 
 mouth of Oconto river to Peshtigo Plarbor. The defendant neg- 
 ligently ran into the net with a steam tug and injured it while 
 en route toward Peshtigo Harbor. The plaintiff recovered a 
 judgment for $310. Defendant appeals. 
 ' Lyon, j, * * * There is, included in the judgment, $200 
 for damages to the plaintiffs' business resulting from the in- 
 jury to their net — that is to say, for loss of the profits of their 
 business during the time necessarily required to restore the net. 
 The net was never restored, and the plaintiffs' fishing in that 
 vicinity for the remainder of the season was all done with another 
 net located about one-half mile south of the injured net. The 
 testimony tends to show that the plaintiffs lifted the pot of their 
 net and took the fish therefrom about every alternate day be- 
 fore the injury; that the profits of each lift were from $40 to 
 $50 ; and that it would have required about 10 days to restore 
 the injured net, had it been restored. There was no other testi- 
 mony introduced bearing upon the question of profits. Hence, 
 the jury necessarily assessed the damages to plaintiffs' business 
 on the basis of four or five lifts of fish, at a profit of from $40 
 to $50 each. 
 
 There was no testimony as to whether the conditions of suc- 
 cessful fishing remained for 10 days after the injury as favor- 
 able as they were immediately before the same, — ^none to show 
 that the weather continued favorable during the 10 days; that 
 storms did not intervene to interrupt the business ; that the fish 
 continued to run over the same ground in equal abundance ; that 
 other fishermen operating in the vicinity were equally as suc- 
 cessful in their business after as before the injury ; nor that the 
 market price of fish remained as high. Without any testimony 
 concerning these essential conditions, the jury must have made
 
 COMPENSATORY DAMAGES. 83 
 
 their assessment of damages to plaintiffs' business largely upon 
 mere conjecture. They must have assumed without proof that 
 a business proverbially uncertain in results, depending for its 
 success upon numerous conditions which the persons engaged 
 therein cannot control or influence, and the presence or absence 
 of which at a future time cannot be foretold with any degree of 
 accuracy, would have continued after the net was injured to be 
 just as profitable as it was before the injury. Such an assump- 
 tion, under such circumstances, is unwarranted in the law, and 
 probably we should be compelled to reverse this judgment for 
 want of sufficient evidence to support the assessment of dam- 
 ages for profits, even though it should be held that, under proper 
 proofs, the plaintiffs might recover prospective profits. 
 
 But we are of the opinion that prospective profits cannot prop- 
 erly be awarded as damages in this case. The reasons therefor 
 has already been suggested, which is that under any state of the 
 testimony, in view of the character and conditions of the business, 
 the jury could have no sufficient basis for ascertaining such pros- 
 pective profits. At best, the assessment thereof must necessarily 
 rest largely upon conjecture. This feature of the case brings it 
 within the rule of Bierbach v. Rubber Co., 54 Wis. 208, and 
 Anderson v. Sloane, 72 Wis. 566, and the cases cited in the opin- 
 ions therein. In the latter case, Mr. Justice Taylor has pointed 
 out the distinction between that ease and those cases in this 
 court in which prospective profits have been allowed as dam- 
 ages. It is unnecessary to repeat the discussion here. It is some- 
 times quite difficult to determine to which of the above classes 
 a given case belongs, and such determination must be gov- 
 erned largely by the special circumstances of each particular 
 case. 
 
 The jury^ assessed the damages to the net at $110. This in- 
 cludes not only the cost of repairing it, but also the value of the 
 services of the plaintiffs and their servants in resetting it. We 
 conclude that the plaintiffs are entitled to recover no other dam- 
 ages, except the value of the use of the net during the time they 
 were necessarily deprived of its use, which was about 10 days. 
 
 By the Court. The judgment of the Circuit Court is re- 
 versed, and the cause will he remanded ivith directions to award 
 a new trial, or, at the option of the plaintiffs, to give judgment 
 for them for $110 and interest thereon from the date of the 
 verdict, besides costs.
 
 84 CLASSIFICATION 01'^ DAMAGES, 
 
 BETHEL & CO. v. SALEM LMrROVEAlENT CO. 
 
 Virginia. 1S96. 93 Va. 354. 
 
 The defendant company agreed by contract under seal to 
 purchase of plaintiff 1,500,000 bricks, to be burned for it by 
 plaintiff. After plaintiff had manufactured 803,491 bricks the 
 defendant notified the plaintiff' that it would not receive any 
 more. It did not pay for those already manufactured, except- 
 ing the sum of $3,212.31. Plaintiff' seeks to recover a profit, 
 which he alleges would have been made, of $3 per thousand on 
 the bricks imburned, and also to recover the balance due on the 
 purchase price of those completed. A verdict of $1,403.04 for 
 plaintiff" was set aside by the lower court, and the plaintiff com- 
 plains thereof. The ground for such action was the giving of 
 an instruction authorizing the recovery of the profits claimed. 
 
 Keith, President. * * * The failure to pay the money 
 is the cause alleged in the instruction, that forced the plaintiffs 
 to stop the manufacture of the bricks, and which entitles the 
 plaintiffs to recover, not only for the bricks manufactured by 
 them according to said contract, but for the profit on the differ- 
 ence between the number of the bricks so manufactured by them, 
 and the 3,500,000 bricks manufactured according to the terms 
 of the contract, to be ascertained by placing the bricks at the 
 price fixed in the contract, and deducting therefrom the cost 
 of the bricks as shown by the evidence. 
 
 For the breach of contract to pay money, no matter what the 
 amount of inconvenience sustained by the plaintiff, the measure 
 of damages is the interest of the money only. Wood's Mayne, 
 Dam. (1st Am. Ed.) p. 15. (Citing authorities.) * * * 
 
 Many instances of a like character might be given, but we 
 have seen no case which will sustain the instruction under con- 
 sideration. It is the ordinary case of a failure to comply with a 
 contract to pay money at a stipulated time. In such cases the 
 measure of damages for the breach of the contract is the prin- 
 cipal sum due, and legal interest thereon. To make a defend- 
 ant responsible for the profits which might have accrued to the 
 plaintiff by the use of the money in addition to the interest would 
 be harsh and oppressive, and should not be sanctioned by the 
 court, Tuiless the plaintiff can bring his case within some well- 
 recognized exception to the rule. * * * 
 
 Affirmed.
 
 COMPENSATORY DAMAGES. 85 
 
 STEVENS V. YALE. 
 
 Michigan, 1897. 113 Mich. 680. 
 
 The plaintiffs, druggists, purchased of defendant an order 
 of toilet preparations, "beautifiers for women," and defendant 
 agreed to print plaintiffs' names at the bottom of all defendant's 
 advertisements in the Detroit newspapers as carrying defend- 
 ant's preparations for sale. After eight months defendant 
 ceased to so print plaintiffs' names, and inserted instead that 
 of another house as wholesale agents in Detroit. Action to re- 
 cover damages for failure so to print plaintiffs' names. Verdict 
 directed for defendant, the judge holding that there was a want 
 of mutuality in the contract ; and second, that all damages, at- 
 tempted to be showTi, were speculative 
 
 Hooker, j. * * * ^e need not discuss the question of 
 the validity of this contract. If it be treated as valid, and it be 
 admitted that there was a breach of the contract by the defend- 
 ant, the damages sought to be recovered were speculative. The 
 injury suffered, if any, was a loss of such profits as would have 
 resulted from advertising, — a matter of mere conjecture, de- 
 pending upon the number who might read and act upon the ad- 
 vertisement. [Citing authorities.] We have held in several 
 cases that loss of profits may be recovered where the loss of 
 profits and their amount can be shown with certainty. But here 
 the effect of this failure to advertise is most uncertain, and the 
 circuit court was correct in holding that such damages were not 
 recoverable. 
 
 Counsel for the defendant urge that a new trial should be 
 granted because the plaintiff was entitled to nominal damages. 
 This action was commenced in circuit court, and under the stat- 
 ute the plaintiff would not be entitled to costs upon a judgment 
 for nominal damages, and the judgment should not be reversed 
 upon this ground. Hickey v. Baird, 9 Mich. 38 ; Haven v. Manu- 
 facturing Co., 40 Mich. 290. 
 
 The judgment is affirmed. 
 The other Justices concurred.
 
 86 CLASSIFICATION OF DAMAGES. 
 
 WEIR V. UNION RAILWAY CO. 
 
 New York, 1907. 188 N. Y. 416. 
 
 Chase, J. The plaintiff recovered judgment in this action 
 against the defendant for personal injuries resulting from the 
 fall of a fare indicator or register in one of defendant's street 
 cars on which the plaintiff was a passenger. An appeal was 
 taken from said judgment to the Appellate Division of the Su- 
 preme Court, where it was unanimously affirmed. The appeal 
 is taken to this court pursuant to an order of the said Appellate 
 Division allowing the same, and in which order it is certified that, 
 in the opinion of the court, a question of law is involved which 
 ought to be reviewed by this court. The only question of law 
 involved arises upon rulings of the trial court upon objections 
 to questions involving the profits of the business conducted by 
 the plaintiff. 
 
 The plaintiff, who is usually employed as a boatman, had for 
 six or seven months prior to the accident rented a room which 
 immediately adjoined the street along the side of a liquor store. 
 In the room, the dimensions of which were 5 by 16 feet, he con- 
 ducted a lunch business and sold oysters, clams, crabs, lobsters, 
 beef stew, and fish. There were sittings in the room for six or 
 eight people, and the food was eaten by purchasers at the plaint- 
 iff's place of business. During some portion of the time that 
 he was conducting such business he employed therein two or 
 three men, and at the time of the accident he was employing one 
 man. Oysters and clams were opened as ordered, and they were 
 the principal articles of food sold, and the plaintiff purchased 
 them by the barrel. The supplies purchased by the plaintiff 
 varied in price and the amounts sold varied to such an extent 
 that the number of persons employed had to be changed from 
 time to time. It does not appear that it required any particular 
 skill or ability to do the work of managing the business that the 
 plaintiff was conducting, or that the plaintiff had any particular 
 skill or ability in opening oysters or clams or in serving food 
 to others. The trial court allowed the plaintiff to testify that 
 he was doing a business of about $120 and sometimes $140 a 
 week, and that his expenses each week for help were $10 or $12, 
 and for stock $40, and that his rent was $10 a month, and that 
 the remainder of the proceeds of his business was profit. This 
 testimony was given subject to objections on the part of the de-
 
 COMPENSATORY DAMAGES. 87 
 
 fendant that it was incompetent, immaterial and irrelevant, and 
 as calling for special damages not pleaded by the plaintiff, and 
 that it related to a business in which the plaintiff had capital 
 invested. The objections of the defendant were overruled, and 
 the defendant excepted to the ruling of the court. 
 
 Where a person by reason of personal injuries has been pre- 
 vented from performing the work or services in which he was 
 engaged at the time of the injury, the loss of time occasioned 
 thereby and also any loss or diminution of future earning power 
 are elements of damage to be considered by a jury. A loss of 
 income can be shown and considered when such income is de- 
 rived from personal effort or particular skill and ability as dis- 
 tinguished from the profits of a business in which capital is in- 
 vested and which is dependent upon the continuance of the busi- 
 ness as well as the capital, but mere profits of a business as such 
 cannot be considered in measuring the damages arising from 
 such loss of time or diminution of earning power. In this case 
 the business did not require a large capital or many employees, 
 but the questions expressly called for the profits of a business, 
 and not for the value of plaintiff's personal services in connec- 
 tion therewith. This is apparent from all the testimony in the 
 case, and it is particularly shown from the fact that it had been 
 the practice of the plaintiff to leave the business with his em- 
 ployees when he was absent, and from the further fact that the 
 business was continued for several weeks after the accident, 
 although the plaintiff was not personally present. At the time 
 when the plaintiff, as he says, wound up the business he had 
 sufficiently recovered, so that he went to the office of his physi- 
 cian frequently for treatment, and it does not appear that the 
 plaintiff could not have continued the business by the employ- 
 ment of help until he had fully recovered, or until he could have 
 attended at the place of business to supervise the same. The 
 testimony should have been confined to the value of the plaint- 
 iff's individual services during the time he was unable by reason 
 of his personal injuries, to perform the same. 
 
 In Masterton v. Village of Mt. Vernon, 58 N. Y. 391, 396, the 
 court, referring to cases therein mentioned, says: "In none 
 of these cases is any intimation given that proof may be given 
 as to the uncertain future profits of commercial business, or that 
 the amount of past profits derived therefrom may be shown, to 
 enable the jury to conjecture what the future might probably
 
 88 CLASSIFICATION OF DAMAGES. 
 
 be. These profits depend upon too many contingencies, and are 
 altogether too uncertain to furnish any safe guide in fixing the 
 amount of damages." In referring to the case of Walker v. 
 Erie R. R. Co., 63 Barb. 260, in which it was held that proof 
 of the amount of the income derived by the plaintiff in that 
 action in the practice of his profession as a lawyer was com- 
 petent, the court say: "This goes beyond the rule adopted 
 in any of the other cases, and it certainly ought not to be further 
 extended." The court further say: "The profits of import- 
 ing and selling teas are still more uncertain. In some years they 
 may be large, and in others attended with loss. The plaintiff 
 had the right to prove the business in which he was engaged, 
 its extent, and the particular part transacted by him, and, if 
 he could, the compensation usually paid to persons doing such 
 business for others. These are circumstances the jury have a 
 right to consider in fixing the value of his time." 
 
 In this case the profits of the business were subject to many 
 uncertainties and contingencies, among which were his ability 
 to continue the business in the place and as theretofore con- 
 ducted, the amount of competition that he might at any time 
 encounter, and the variation in the price of supplies to be pur- 
 chased. The respondent refers to the recent case of Kronold v. 
 City of New York, 186 N. Y., 40, as sustaining his contention. In 
 that case, although the plaintiff maintained an office and had 
 invested about $1,000 of capital, nevertheless his income was de- 
 rived from the sale of Swiss embroideries. The embroideries 
 were sold from designs or drawings shown from sample em- 
 broideries, and the orders were procured by the plaintiff as a 
 canvasser and by his personal solicitation. In that case, after 
 reviewing the authorities, it was held in substance that where 
 the facts disclose such a preponderance of the business element 
 over the personal equation, or such an admixture of the two, 
 that the question of personal earnings could not be safely or 
 properly segregated from returns upon capital invested, the in- 
 come or profits from a business should not be considered in de- 
 termining the amount of the damages to which the plaintiff is 
 entitled. 
 
 The question of personal earnings is too much involved in 
 this case with the ordinary chances of a business venture to allow 
 the profit on the plaintiff's business to be considered in determin- 
 ing what damages the defendant should pay to the plaintiff.
 
 COMPENSATORY DAMAGES. 89 
 
 The judgment should be reversed and a new trial granted, 
 with costs to abide the event. 
 
 (5) Expenses. 
 
 ELLIS V. HILTON. 
 
 Michigan, 1S89. 78 Mich. 150. 
 
 Long, J. This is an action to recover damages against the 
 defendant for negligently placing a stake in a public street in 
 Traverse City, which plaintiff's horse ran against, and was in- 
 jured. 
 
 It was conceded on the trial by counsel for defendant that 
 the horse of plaintiff was so injured that it was entirely worth- 
 less. Plaintiff claimed damages, not only for the full value 
 of the horse, but also for what he expended in attempting to 
 effect a cure, and on the trial stated to the court that plaintiff' 
 was entitled to recover a reasonable expense in trying to cure the 
 horse before it was decided that she was actually worthless. 
 The court ruled, however, that the damages could not exceed the 
 value of the animal. 
 
 A claim is made by the declaration for moneys expended in 
 trying to effect a cure of the horse after the injury. Upon the 
 trial the plaintiff testified that he put the horse, after the injury, 
 into the hands of a veterinary, and paid him $35 for cure and 
 treatment. On his cross-examination, he also testified that the 
 veterinary said "there was hopes of curing her, if the muscles 
 were not too badly bruised. He didn't say he could cure her. 
 He thought there was a chance he might." 
 
 Dr. DeCow, the veterinary, was called, and testified, as to the 
 injury, that the stake entered the breast of the horse, on the 
 left side, about six inches; that the muscles were bruised, and 
 the left leg perfectly helpless. He got the wound healed, but 
 on account of the severe bruise of the muscles the leg became 
 paralyzed and useless. On being asked whether he thought she 
 could be helped when he first saw her, he stated that he did not 
 know but she might; that she might be helped, and kept for 
 breeding purposes, and be of some value. 
 
 It is evident from the testimony that the plaintiff acted in 
 good faith in attempting the cure, and under the belief that 
 the mare could be helped, and be of some value. The court
 
 90 CLASSIFICATION OF DAMAGES. 
 
 below, however, seems to have based its ruling that no greater 
 damages could be recovered than the value of the animal, and 
 that these moneys expended in attempting a cure could not be 
 recovered, upon the ground that the defendant was not con- 
 sulted in relation to the matter of the attempted cure. What- 
 ever damages the plaintiff sustained were occasioned by the neg- 
 ligent conduct of the defendant, and recovery in such cases is 
 always permitted for such amoimt as shall compensate for the 
 actual loss. If the horse had been killed outright, the only loss 
 would have been its actual value. The horse was seriously in- 
 jured; but the plaintiff, acting in good faith, and in the belief 
 that she might be helped and made of some value, expended this 
 $35 in care and medical treatment. He is the loser of the actual 
 value of the horse, and what he in good faith thus expended. 
 He is permitted to recover the value, but cut off from what he 
 has paid out. This is not compensation. 
 
 Counsel for defendant contends that such damages cannot 
 exceed the actual value of the property lost, because the loss or 
 destruction is total. There may be cases holding to this rule; 
 but it seems to me the rule is well stated, and based upon good 
 reason, in Watson v. Bridge, 14 Me. 201, in which the court says: 
 "Plaintiff is entitled to a fair indemnity for his loss. He has 
 lost the value of his horse, and also what he has expended in 
 endeavoring to cure him. The jury having allowed this part of 
 his claim, it must be understood that it was an expense pru- 
 dently incurred, in the reasonable expectation that it would 
 prove beneficial. It was incurred, not to aggravate, but to less- 
 en the amount for which the defendants might be held liable. 
 Had it proved successful, they would have had the benefit of it. 
 As it turned out otherwise, it is but just, in our judgment, that 
 they should sustain the loss. ' ' In Murphy v. McGraw, 41 N. W. 
 Eep. 917, it appeared on the trial that the horse was worthless 
 at the time of purchase by reason of a disease called ' ' eczema. ' ' 
 The court charged the jury that if the plaintiff w^as led by de- 
 fendant to keep on trying to cure the horse the expense thereof 
 would be chargeable to the defendant, as would also be the ease 
 if there w^ere any circumstances, in the judgment of the jury, 
 which rendered it reasonable that he should keep on trying as 
 long as he did to effect the cure. The plaintiff recovered for such 
 expense, and on the hearing here the charge of the trial court 
 was held correct.
 
 COMPENSATORY DAMAGES. 91 
 
 It is a question, under the circumstances, for the jury to 
 determine whether the plaintiff acted in good faith, and upon 
 a reasonable belief that the horse could be cured, or made of 
 some value, if properly taken care of; and the trial court was 
 in error in withdrawing that part of the case from them. Such 
 damages, of course, must always be confined within reasonable 
 bounds, and no one would be justified, under any circumstances, 
 in expending more than the animal was worth in attempting a 
 cure. This is the only error we need notice. The judgment of 
 the court below must be reversed, with costs, and a new trial 
 ordered. '^H concur. 
 
 BERNSTEIN v. MEECH. 
 
 New York, 1891. 130 K Y. 354, 
 
 Bradley, J. By contract of date August 4, 1887, between 
 the parties, the defendants agreed to furnish to the plaintiff 
 the opera house known as the Academy of Music, in the city 
 of Buffalo, December twenty-second, twenty-third, and twenty- 
 fourth, for four performances by the Jarbeau Comedy Company, 
 and for that purpose the plaintiff agreed to furnish the services 
 of that company during that time, and to take as the consider- 
 ation fifty per cent of the gross recefpts of all sums realized from 
 the performances. When this contract was executed, each of 
 the parties had the right to assume that the other would observe 
 its stipulations. The performances did not take place, and the 
 reason why they did not, the plaintiff charges, was attributable 
 to the breach of the contract by the defendants. The purpose 
 of this action was to recover damages as the consequence. 
 
 The controversy involved the construction of correspondence 
 had between the parties. * * * 
 
 There was no error in the refusal of the court to direct a 
 verdict for the defendants. 
 
 The remaining questions have relation to the damages which 
 were the subject of the plaintiff's recovery. The general rule 
 on the subject would permit him, in case of breach by the de- 
 fendants, to recover the value of his contract. And that was 
 dependent upon the receipts to be realized from the con- 
 templated performances by the plaintiff's company. The results 
 which would in that respect have been produced if the com- 
 pany had been permitted to perform the contract were specula-
 
 92 CLASSTFIOATTON OP DAMAGES. 
 
 tive, and by no probative moans ascertainable. It is contended 
 on the part of the defendants that recovery could be founded on 
 no other basis, and therefore the plaintiff could recover nominal 
 damages only. The value of the contract to the plaintiff w^as in 
 the proiits, and in the amount of them which may have been 
 realized over his expenses attending its performance. Those 
 profits not being susceptible of proof, were not the subject of 
 recovery. But by the breach of the contract by the defendants, 
 the plaintiff was denied the opportunity which the observance of 
 it could have given him to realize fifty per centum of such re- 
 ceipts a^ would have been produced by it. His loss also con- 
 sisted of the expenses by him incurred to prepare and provide 
 for such performance. While the plaintiff was unable to prove 
 the value in profits of his contract, he was properly permitted 
 to recover the amount of such loss, as it appeared he had suf- 
 fered by the defendants' breach. Griffin v. Colver, 16 N. Y. 489. 
 The evidence warranted the conclusion that the plaintiff, 
 through his agent, made preparations for the performance of the 
 contract, and that the plaintiff with his troupe appeared at Buf- 
 falo, prepared and in readiness to do so. The amount of his 
 expenses incurred for the purpose of such performance was 
 proved, and they were the basis of the recovery. It is unneces- 
 sary to refer specifically to the items of those expenses. The 
 jury were, upon the evidence, permitted to find that, to the 
 amount of the recovery, they were legitimately incurred for the 
 purposes of the performance of the contract, and that with a 
 view to such purpose the plaintiff suffered a loss to that extent. 
 Those expenses may be deemed to have been fairly within con- 
 templation when the contract was made. It cannot be assumed 
 that any part of this loss would have been sustained by the 
 plaintiff if he had been permitted to perform his contract. And 
 assuming, as we must here, that the exclusion of the plaintiff's 
 company from the use of the opera house at the time in question 
 was caused by the defendants' breach of the contract, the plain- 
 tiff's loss, equal to the amount of his expenses legitimately and 
 essentially incurred for the purpose of its performance, was the 
 consequence of their default, and properly recoverable by him. 
 Driggs V. Dwight, 17 Wend. 71 ; Giles v. 'Toole, 4 Barb. 261; 
 Taylor v. Bradley, 39 N. Y. 129, 142. These views lead to the 
 conclusion that none of the exceptions were well taken, and 
 that the judgment should be afdrmed.
 
 COMPENSATORY DAMAGES. L>3 
 
 a Physician's Fees. 
 
 SIBLEY V. NASON. 
 Massachusetts, 1907. 196 Mass. 125. 
 
 Several questions are raised respecting the effect upon the 
 plaintiff's right to maintain his action and the damages he may 
 recover, growing out of the fact that in ]\Iarch, 1904, he was duly 
 adjudged a bankrupt and the ordinary proceedings were had ; 
 the accident having occurred on the 11th day of July, 1902, and 
 this action having been begun on the 9th of August, 1902. It 
 is first urged that the plaintiff is debarred from the right to 
 maintain his action by reason of the bankruptcy. The bankruptcy 
 act (Act July 1, 1898, c. 541, 30 Stat. 565, 566 [U. S. Comp. St. 
 1901, p. 3451]) provides in section 70a that "the trustee 
 * * * shall * * * be vested by operation of law with 
 the title of the bankrupt as of the date he was adjudged bank- 
 rupt, * * * to all (5) property which prior to the filing of 
 the petition he could by any means have transferred, or which 
 might have been levied upon and sold imder judicial process 
 against him; * * * (6) rights of action arising upon con- 
 tracts or from the unlawful taking or detention or from injury 
 to his property." This action, having been brought for damages 
 to the person of the plaintiff, could not by any means have been 
 transferred by him. Rice v. Stone, 1 Allen, 566 ; Robinson v. 
 Wiley, 188 Mass. 533 ; Flynn v. Butler, 189 Mass. 377. It was 
 not property nor a right of property until it was reduced to a 
 judgment. Stone v. Boston & Maine Railroad, 7 Gray, 539. It 
 could not be reached by trustee process. Thayer v. Southwick, 
 8 Gray, 229 ; Wilde v. Mahaney, 183 Mass. 455. Nor could it be 
 reached in equity by a creditors' bill. Bennett v. Sweet, 171 
 Mass. 600; Billings v. Marsh, 153 ]\Iass. 311. The liability being 
 disputed, the claim was not subject to taxation and therefore 
 could not be levied upon or reached by the assessor or tax col- 
 lector. Deane v. Hathaway, 136 Mass. 129. Thus it appears that 
 the claim which the plaintiff was prosecuting against the de- 
 fendant is not properly described by any of the phraseology in 
 subsection 5. Subsection 6 is limited to rights of action arising 
 upon contract or respecting property and does not include an 
 action of tort for personal injuries. It is not. and never has 
 been, the policy of the law to coin into money for the profit of 
 his creditors the bodily pain, mental anguish or outraged feelings
 
 04 CLASSIFICATION OF DAMAGES. 
 
 of a bankrupt. None of the federal or English bankruptcy acts, 
 nor our own insolvency statutes, have gone to that length. It has 
 been held that the following actions do not pass to the trustee or 
 assignee: Malicious prosecution (In re Ilaensell [D. C] 91 Fed. 
 357 ; Noonan v. Orton, 34 Wis. 259 ; Francis v. Burnett, 84 Ky. 
 223) ; slander (Dillard v. Collins, 25 Grat. [Va.] 343) ; seduction 
 of servant (Howard v. Cro^vther, 8 M. & W. 601) ; malicious 
 attachment (Brewer v. Dew, 11 M. & W. 625) ; deceit (In re 
 Crocket, Fed. Cas. No. 3,402) ; malicious trespass (Rogers v. 
 Spence, 12 CI. & Fin. 700) ; trespass to ship (Bird v. Hempsted, 3 
 Day [Conn.] 272) ; trespass accompanied by personal annoyance 
 (Rose v. Buckett [1901] 2 K. B. D. 449) ; negligence of an at- 
 torney (Wetherell v. Julius, 10 C. B. 267). 
 
 It is also urged that the plaintiff is not entitled to recover, as 
 an element of damage, for the wages which he would have earned 
 between the date of his accident and his adjudication in bank- 
 ruptcy. If the defendant 's requests for instructions be construed 
 narrowly, they were properly refused, for the reason that under 
 the bankruptcy act property acquired between the date of the 
 filing of the petition and the date of the adjudication in bank- 
 ruptcy does not pass. But, looking at the question broadly, the 
 contention cannot be sustained. The cause of action for which 
 the plaintiff was entitled to recover damages on account of the 
 pain and suffering which he had endured and was likely to en- 
 dure, as well as his loss of time, was indivisible. Doran v. Cohen, 
 147 Mass, 342. Moreover, the wages which the plaintiff might 
 have earned, if not injured, are not strictly recoverable. The 
 value of his time, while prevented from working by reason of the 
 negligence of the defendant, is a proper element to be considered 
 in fixing the damages. Braithwaite v. Hall, 168 Mass. 38 ; 
 Whipple V. Rich, 180 Mass. 477. The personal injury is the gist 
 of the action. The other elements of damage are incidents only 
 of this main cause of action. Prayers 8 and 9 were therefore 
 properly refused. 
 
 The final question argued is that the plaintiff was not entitled 
 to recover for debts incurred for physicians ' services, never paid 
 by the plaintiff, but proved against his estate in bankruptcy or 
 included in his schedules. A plaintiff in an action for personal 
 injury is entitled to recover for reasonable expenditures for nurs- 
 ing and physicians' care rendered necessary by the wrongful act 
 of the defendant. Turner v. B. & M. R. R., 158 Mass. 261;
 
 COMPENSATORY DAMAGES. 95 
 
 McGarrahan v. N. Y., N. H. & H. R. R., 171 Mass. 211 ; Atwood 
 V. Boston Forwarding & Transfer Co., 185 Mass. 557 ; Scullane v. 
 Kellogg, 169 Mass. 544. It may be assumed that the bills incurred 
 by the present plaintiff for physicians' services would be barred 
 by his discharge in bankruptcy. This fact, however, does not pre- 
 vent the plaintiff from treating such obligations as debts of 
 honor. It is through no virtue of the defendant that the plaintiff 
 will be enabled to interpose any. defense to the payment of a 
 reasonable charge for these services for the amelioration of his 
 suffering, but rather the clemency of the law to his financial dis- 
 tress. Under these circumstances, the law ought not to prevent 
 or discourage the exercise of a debtor's conscience respecting his 
 past indebtedness. See Klein v. Thompson, 19 Ohio St. 569 ; 
 Denver, etc., Co. v. Lorentzen, 79 Fed. 291. 
 
 Exceptions overruled. 
 
 SCHMITT V. KURRUS. 
 
 Illinois, 1908. 234 111. 578. 
 
 Action for assault and battery. 
 
 Cartwright, C. J. John Schmitt, the appellee, brought this 
 action of trespass for assault and battery against F. J. Kurrus, 
 the appellant, in the city court of East St. Louis. There was a 
 plea of not guilty and a trial by jury, which ended with a ver- 
 dict finding the appellant guilty and assessing appellee 's damages 
 at $1,690.10. The court overruled a motion for a new trial and 
 entered judgment on the verdict. The Appellate Court for the 
 Fourth District affirmed the judgment. 
 
 The facts proved are substantially as follows: The defendant 
 had attended a meeting of his lodge on the night of July 6, 1906, 
 and afterward went with five of his friends to a restaurant, where 
 he had a supply of fresh croppies which he had previously ar- 
 ranged to have fried for a supper. The party remained at the 
 restaurant until near midnight and had supper, during which 
 they each drank four glasses of beer. They left the restaurant 
 about midnight, and in passing along the street came to the place 
 of business of the Bodenburg Commission Company, which dealt 
 in fruits and green vegetables of all kinds. The plaintiff was a 
 salesman, and was the foreman in charge of the store after 11 
 o'clock at night. The store was kept open at night, and melons 
 and other fruits were piled on the sidewalk to be ready for busi-
 
 96 CLASSIFICATION OF DAMAGES. 
 
 ness in the morning. As tlie party reached the store two colored 
 men were sitting on the sidewalk eating a melon. The party 
 stopped, and there was evidence tending to prove that one of 
 them dropped a melon and broke it. At any rate, the defendant 
 took a melon from the pile and walked off with it. The plaintiff 
 had been to Innch, and coming back saw a broken melon on the 
 walk and called upon the party to pay for it. One of them 
 gave the plaintiff 50 cents, which he received as pay for the 
 broken melon, and in the meantime another clerk had followed 
 the defendant for the purpose of getting the melon which he took 
 or securing pay for it. The defendant gave the melon back, 
 saying that it was only a joke, and then came back to the store, 
 where he learned that his companion had paid the plaintiff 50 
 cents. ■ He testified that he understood that the 50 cents w^as for 
 the melon that he had returned, but the plaintiff understood that 
 it was for the broken melon. The defendant demanded from the 
 plaintiff a return of the money, but plaintiff told him that he 
 could not return it, that he had rung it up in the cash register, 
 and that defendant would have to see Mr. Bodenburg about it. 
 There was an altercation, in which the defendant used violent 
 and profane language, and continued to demand the money. The 
 plaintiff said that he w^ould call a policeman, and went into the 
 store and inside of the office, which was partitioned off. He went 
 into the telephone booth, intending to call Mr. Bodenburg, and 
 took down the receiver and was waiting for the answer from 
 the central office. The defendant had followed him to the door 
 of the booth, and the evidence for the plaintiff was that the 
 defendant struck the glass door of the booth with his fist and 
 broke it. A piece of the glass went into the plaintiff's eye, and a 
 board nailed on the inside of the door with a list of grocerymen 
 that the store would ring for on the telephone was knocked off. 
 Defendant testified that he did not strike the glass, and that was 
 his only defense. 
 
 During the course of the trial the plaintiff sought to prove 
 what he had paid to doctors for medical and surgical treatment 
 for his injury, and the defendant objected, stating that his ob- 
 jection was that the proper method was to prove what would be 
 a fair and reasonable charge, and there was then no evidence 
 to show that the fee charged was the usual and customary one. 
 The objection was overruled and the evidence admitted. In or- 
 der to recover for medical and surgical services and treatment.
 
 COMPENSATORY DAMAGES. 97 
 
 it was necessary for the plaintiff to prove two things: First, that 
 he had paid or become liable to pay a specified amount; and, 
 second, that the charges made were the usual and reasonable 
 charges for services of that nature. He could recover no more 
 than the amount which he had paid or become liable to pay, 
 even if it was less than the usual and reasonable charge for such 
 services ; and, on the other hand, he could not recover more than 
 such usual and reasonable charge even if he had paid more. 
 North Chicago Street Railway Co. v. Cotton, 140 111. 486. The 
 first essential fact to be proved was what the plaintiff had paid. 
 The defendant might properly have insisted upon an assurance 
 that the further requisite proof would be made and the court 
 might properly have required such an assurance from plaintiff, 
 but the evidence was competent when offered, and the court did 
 not err in the ruling. When it was not followed by proof that 
 the charge was the usual and reasonable one, the defendant might 
 have moved the court to strike out the evidence, which the court 
 undoubtedly would have done, and advised the jury that no 
 allowance could be made on account of it. 
 
 It is also contended that the court erred in admitting evidence 
 of the financial condition of the parties. The plaintiff was al- 
 lowed to prove that he was a poor man, having nothing but a 
 little household furniture and owing considerable debts, and also 
 to prove the value of defendant's property. The actual damages 
 suffered could not be increased or diminished on account of the 
 financial condition of the parties ; but it was early settled in this 
 state in the case of McNamara v. King, 2 Oilman, 432, that, in 
 actions of trespass for assault and battery, the condition in life 
 and circumstances of the parties are proper subjects for the con- 
 sideration of the jury in estimating the damages. In such actions 
 the jury may allow damages, not only to compensate the plaintiff, 
 but also to pimish the defendant according to the circumstances 
 of the case, and for that purpose may take into consideration the 
 pecuniary resources of the defendant. The principle has been 
 extended to other classes of cases where exemplary damages are 
 recoverfible. Cochran v. Aramon, 16 111. 316; Peters v. Lake, 
 66 111. 206 ; White v. Murtland, 71 111. 250. This was a proper case 
 for the allowance of exemplary damages and the evidence of 
 financial condition was proper. The money which the defendant 
 was demanding was not his, and there was no excuse whatever for 
 the assault.
 
 98 CLASSIFICATION OF DAMAGES. 
 
 The seventh instruction authorized the jury to take into ac- 
 count the tiuancial circumstances of the plaintiff and the de- 
 fendant if they found that the defendant committed the assault 
 and caused the injury to the plaintiff's eye, as alleged in the 
 declaration. If the assault was proved, the case was clearly one 
 where exemplary damages might be recovered, and the instruction 
 was not erroneous. 
 
 The judgment of the Appellate Court is affirmed. 
 
 Judgment affirmed. 
 
 (6) Pain and Suffering. 
 • GOODHART v. PENNSYLVANIA R. R. CO. 
 
 Pennsylvania, 1896. 177 Pa. ,1. 
 
 Williams, J. The plaintiff received the injury complained of 
 while a passenger on one of the trains of the defendant company. 
 * * * Damages for a personal injury consist of three prin- 
 cipal items: First, the expenses to which the injured person is 
 subjected by reason of the injury complained of; second, the in- 
 convenience and suffering naturally resulting from it ; third, the 
 loss of earning power if any, and whether temporary or per- 
 manent, consequent upon the character of the injury. Owens 
 V. Railway Co., 155 Pa. 334. 
 
 The expenses for which a plaintiff may recover must be such 
 as have been actually paid, or such as, in the judgment of the 
 jury, are reasonably necessary to be incurred. The plaintiff 
 cannot recover for the nursing and attendance of the members 
 of his own household, unless they are hired servants. The care 
 of his wife and minor children in ministering to his needs in- 
 volves the performance of the ordinary offices of affection, which 
 is their duty; but it involves no legal liability on his part, and^ 
 therefore affords no basis for a claim against a defendant for ex- 
 penses incurred. A man may hire his own adult children to 
 work for him in the same manner and with same effect that he 
 may hire other persons, but, in the absence of an express con- 
 tract, the law will not presume one, so long as the family re- 
 lation continues. 
 
 Pain and suffering are not capable of being exactly measured 
 by an equivalent in money, and we have repeatedly said that 
 they have no market price. The question in any given case is
 
 COMPENSATORY DAMAGES. 99 
 
 not what it would cost to hire some one to undergo the measure 
 of pain alleged to have been suffered by the plaintiff, but what, 
 under all the circumstances, should be allowed the plaintiff in 
 addition to the other items of damage to which he is entitled, in 
 consideration of suffering necessarily endured. Baker v. Penn- 
 sylvania Co., 142 Pa. 503. This should not be estimated by a 
 sentimental or fanciful standard, but in a reasonable manner, 
 as it is wholly additional to a pecuniary compensation afforded 
 by the first and third items that enter into the amount of the 
 verdict in such cases. 
 
 By way of illustration, let us assume that a plaintiff has been 
 wholly disabled from labor for a period of 20 days in conse- 
 quence of an injury resulting from the negligence of another. 
 This lost time is capable of exact compensation. It will require 
 so much money as the injured man might have reasonably 
 earned in the same time by the pursuit of his ordinary calling. 
 But let us further assume that these days of enforced idleness 
 have been days of severe bodily suffering. The question then 
 presented for the consideration of the jury would be: What is 
 it reasonable to add to the value of the lost time in view of the 
 fact that the days were filled with pain, instead of being devoted 
 to labor? Some allowance has been held to be proper; but, in 
 answer to the question, "How much?" the only reply yet made 
 it that it should be reasonable in amount. 
 
 Pain cannot be measured in money. It is a circumstance, 
 however, that may be taken into the account in fixing the allow- 
 ance that should be made to an injured party by way of dam- 
 ages. An instruction that leaves the jury to regard it as an 
 independent item of damages, to be compensated by a sum of 
 money that may be regarded as a pecuniary equivalent, is not 
 only inexact, but it is erroneous. The word ' ' compensation, ' ' in 
 the phrase ''compensation for pain and suffering," is not to be 
 understood as meaning price or value, but as describing an 
 allowance looking toward recompense for or made because of the 
 suffering consequent upon the injury. In computing the dam- 
 ages sustained by an injured person, therefore, the calculation 
 may include not only loss of time and loss of earning power, 
 but, in a proper case, an allowance because of suffering. 
 
 The third item, the loss of earning power, is not always easy of 
 calculation. It involves an inquiry into the value of the labor, 
 physical or intellectual, of the person injured, before the acci-
 
 100 CLASSIFICATION OF DAMAGES. 
 
 cU'iit happened to hiin, and the ability of the same person to earn 
 money by hibor physical or intellectual, after the injury was 
 received. 
 
 Profits derived from an investment or the management of a 
 business enterprise are not earnings. The deduction from such 
 profits of the legal rate of interest on the money employed does 
 not give to the balance of the profits the character of earnings. 
 The word "earnings" means the fruit or reward of labor; the 
 price of services performed. Anderson's Law Dictionary, 390. 
 Profits represent the net gain made from an investment, or from 
 the prosecution of some business, after the payment of all ex- 
 penses incurred. The net gain depends largely on other cir- 
 cumstances than the earning capacity of the persons managing 
 the business. The size and location of the town selected, the 
 character of the commodities dealt in, the degree of competition 
 enc.ountered, the measure of prosperity enjoyed by the commu- 
 nity, may make an enterprise a decided success, which under less 
 favorable circumstances, in the hands of the same persons, might 
 turn out a failure. The profits of a business with which one is 
 connected cannot, therefore, be made use of as a measure of his 
 earning power. Such evidence may tend to show the possession 
 of business qualities, but it does not fix their value. Its admis- 
 sion for that purpose w^as error. 
 
 It was also error to treat this subject of the value of earning 
 power as one to be settled by expert testimony. An expert in 
 banking or merchandizing might form an opinion about what a 
 man possessing given business qualifications ought to be able to 
 earn, but this is not the question the jury is to determine. They 
 are interested only in knowing what he did actually earn, or 
 what his services were reasonably worth, prior to the time of 
 his injury. In settling this question, they should consider not 
 only his past earnings, or the fair value of services such as he 
 was able to render, but his age, state of health, business habits, 
 and manner of living. * * * 
 
 Another subject requires consideration. The verdict rendered 
 by the jury gives the calculation upon which the enormous sum 
 awarded to the plaintiff was based. From this it appears that 
 the sura of $19,526.50 was given as the cost of an annuity of 
 $1,750 per annum for 19 years. This calculation assumes (1) 
 that the plaintiff's earning power was nearly twice as great as 
 he hr.d himself offered it for to the company w^hose president
 
 COMPENSATORY DAMAGES. 101 
 
 and manager he was. It assumes (2) that he had a reasonable 
 expectation of life for 19 years, being at the time of the trial 
 about 53 years old. It assumes (3) that his earning power in- 
 stead of steadily decreasing with increasing years, would hold 
 up at its maximum to the very end of life. It assumes, in the 
 fourth place, that he is entitled to recover, not only the present 
 worth of his future earnings, as the jury has estimated them, but 
 a sufficient sum to enable him to go out into the market, and 
 purchase an annuity now, equal to his estimated earnings. 
 
 The first, second, and third of these are assumptions of fact. 
 The fourth is an assumption of law, and is clearly wrong. AVhen 
 future payments are to be anticipated and capitalized in a ver- 
 dict, the plaintiff is entitled only to their present worth. This 
 is the exact equivalent of the anticipated sums. * * * 
 
 From what has been now said, it follows that substantially all 
 of the assignments of error are sustained. The judgment is re- 
 versed and a venire facias de novo awarded. 
 
 Sterrett, C. J. dissents. 
 
 (7) Mental Anguish. 
 CANNING V. WILLIAMSTOWN. 
 
 Massachusetts, 1848. 1 Cush. 451. 
 
 This was an action on the case to recover damages for an 
 injury sustained by the plaintiff, in consequence of a defect 
 in a bridge in the town of Williamstown. 
 
 Plaintiff was riding over a bridge in a light carriage drawn 
 by two horses. When he reached the center of the bridge it 
 gave way, and plaintiff fell upon rocks in the stream below and 
 was injured in the face, and was put in considerable peril. 
 
 Metcalf, J. The Rev. Sts. c. 25, § 22, provide, that if any 
 person "shall receive any injury in his person," by reason of 
 any defect or want of repair in a road, he may recover of the 
 party, that is by law obliged to repair the road, the amoimt of 
 damage sustained by such injury. 
 
 The argument for the defendants assumes that the plaintiff 
 sustained no injury in his person, within the meaning of the 
 statute, but merely incurred risk and peril, which caused fright 
 and mental suffering. If such were the fact, the verdict would 
 be contrary to law. But we must suppose that the jury, under
 
 102 CLASSIFICATION OF DAMAGES. 
 
 the iiistnietions given to them, found that the plaintiff received 
 an injury in his person— a bodily injury — and that they did 
 not return their verdict for damages sustained by mere mental 
 suffering caused by the risk and peril which he incurred. And 
 though that bodily injury may have been very small, yet if it 
 was a ground of action, within the statute, and caused mental 
 suffering to the plaintiff, that suffering was a part of the injury 
 for which he was entitled to damages. 
 
 We are of opinion, that there was no error in the instructions ; 
 and Ave cannot presume that they were misunderstood or dis- 
 regarded by the jury. Exceptions overruled. 
 
 VICTORIAN RYS. COM'RS v. COULTAS. 
 
 House of Lords, 1888. L. R. 13 App. Cas. 222. 
 
 Appeal from the Supreme Court of Victoria. 
 
 The plaintiffs, James and Mary Coultas, were driving over 
 a level crossing and were in imminent peril of being killed by 
 a train. On coming to the track of the railway they found the 
 gates closed. The gateman opened the gate nearest them and 
 they drove upon the track, when they saw an approaching train. 
 James Coultas whipped up his horse, so that he managed to get 
 the buggy across and through the farther gate, so that the train 
 did not touch the buggy. It passed very close, however, and 
 Mary Coultas fainted from fright. She suffered a severe ill- 
 ness and her nervous system was greatly shocked. There was 
 no impact or physical damage. Judgment was rendered in favor 
 of the plaintiff's in two several sums of £342 2s. and £400 and 
 costs. 
 
 Sir Richard Couch. * * * According to the evidence 
 of the female plaintiff her fright was caused by seeing the train 
 approaching, and thinking they were going to be killed. Dam- 
 ages arising from mere sudden terror unaccompanied by any 
 actual physical injury, but occasioning a nervous or mental 
 shock, cannot under such circumstances, their Lordships think, 
 be considered a consequence which, in the ordinary course of 
 things, would flow from the negligence of the gate-keeper. If 
 it were held that they can, it appears to their Lordships that it 
 would be extending the liability for negligence much beyond 
 what that liability has hitherto been held to be. Not only in 
 such a case as the present, but in every case where an accident
 
 COMPENSATORY DAMAGES. 103 
 
 caused by negligence had given a person a serious nervous shock, 
 there might be a claim for damages on acount of mental injury. 
 The difficulty which now often exists in case of alleged physical 
 injuries of determining Avhether they were caused by the negli- 
 gent act would be greatly increased, and a wide field opened 
 for imaginary claims. The learned counsel for the respondents 
 was unable to produce any decision of the English courts in 
 which, upon such facts as were proved in this case, damages 
 were recovered. The decision of the Supreme Court of New 
 York which he referred to in support of his contention was a 
 case of palpable injury caused by a boy, who was frightened 
 by the defendant 's violence, seeking to escape from it, and is like 
 the case of Sneesby v. Lancashire & Yorkshire Railway Com- 
 pany, 1 Q. B. D. 42. It is remarkable that no precedent has 
 been cited of an action similar to the present having been main- 
 tained or even instituted, and their Lordships decline to estab- 
 lish such a precedent. They are of opinion that the first ques- 
 tion, whether the damages are too remote, should have been 
 answered in the affirmative, and on that ground, without say- 
 ing that "impact" is necessary, that the judgment should have 
 been for the defendants. They will therefore humbly advise 
 Her Majesty to reverse the judgment for the plaintiffs and to 
 order judgment to be entered for the defendants, with the costs, 
 etc. 
 
 LARSON V. CHASE. 
 
 Minnesota, 1891. 47 Minn. 307. 
 
 IMiTCHELL, J. This was an action for damages for the imlaw- 
 ful mutilation and dissection of the body of plaintiff's deceased 
 husband. The complaint alleges that she was the person charged 
 with the burial of the body, and entitled to the exclusive charge 
 and control of same. The only damages alleged are mental suf- 
 fering and nervous shock. A demurrer to the complaint, as not 
 stating a cause of action, was overruled, and the defendant ap- 
 pealed. * * * 
 
 It is elementary that while the law, as a general rule only 
 gives compensation for actual injury, yet, whenever the breach 
 of a contract, or the invasion of a legal right is established the 
 law infers some damage, and if no evidence is given of any par- 
 ticular amount of loss, it declares the right by awarding nominal
 
 104 CLASSIFICATION OF DAMAGES. 
 
 damages. Every injury imports a damage. Hence the com- 
 plaint stated a cause of action for at least nominal damages. 
 We think it states more. There has been a great deal of mis- 
 conception and confusion as to when, if ever, mental suffering, 
 as a distinct element of damage, is a subject for compensation. 
 This has frequently resulted from courts giving a wrong reason 
 for a correct conclusion that in a given case no recovery could 
 be had for mental suffering, placing it on the groimd that men- 
 tal suffering, as a distinct element of damage, is never a proper 
 subject of compensation, when the correct ground was that the 
 act complained of was not an infraction of any legal right, and 
 hence not an actionable wrong at all, or else that the mental 
 suffering was not the direct and proximate effect of the wrong- 
 ful act. Counsel cites the leading case of Lynch v. Knight, 9 
 H. L. Cas. 577-598. We think he is laboring under the same mis- 
 conception of the meaning of the language used in that case 
 into which courts have not infrequently fallen. Taking 
 the language in connection with the question actually before the 
 court, that case is not authority for defendant's position. It 
 is unquestionably the law, as claimed by appellant, that "for 
 the law to furnish redress there must be an act which, under 
 the circumstances, is wrongful; and it must take effect upon 
 the person, the property, or some other legal interest, of the 
 party complaining. Neither one without the other is sufficient." 
 This is but another way of saying that no action for damages 
 will lie for an act which, though wrongful, infringed no legal 
 right of the plaintiff, although it may have caused him mental 
 suffering. But, where the wrongful act constitutes an infringe- 
 ment on a legal right, mental suffering may be recovered for, 
 if it is the direct, proximate, and natural result of the wrongful 
 act. It was early settled that substantial damages might be 
 recovered in a class of torts where the only injury suffered is 
 mental, — as, for example, an assault without physical contact. 
 So. too, in actions for false imprisonment, where the plaintiff 
 was not touched by the defendant, substantial damages have 
 been recovered, though physically the plaintiff did not suffer 
 any actual detriment. In an action for seduction substantial dam- 
 ages are allowed for mental sufferings, although there be no 
 proof of actual pecuniary damages other than the nominal dam- 
 ages which the law presumes. The same is true in actions for 
 breach of promise of marriage. Wherever the act complained
 
 COMPENSATORY DAMAGES. 105 
 
 of constitutes a violation of some legal right of the plaintiff, 
 which always, in contemplation of law, causes injury, he is 
 entitled to recover all damages v/hich are the proximate and 
 natural consequence of the wrongful act. That mental suffer- 
 ing and injury to the feelings would be ordinarily the natural 
 and proximate result of knowledge that the remains of a de- 
 ceased husband had been mutilated is too plain to admit of argu- 
 ment. In Meagher v. Driscoll, 99 Mass. 281, where the defend- 
 ant entered upon plaintiff's land, and dug up and removed the 
 dead body of his child, it was held that plaintiff might recover 
 compensation for the mental anguish caused thereby. It is true 
 that in that case the court takes occasion to repeat the old say- 
 ing that a dead body is not property, and makes the gist of the 
 action the trespass upon plaintiff's land; but it would be a re- 
 proach to the law if a plaintiff's right to recover for mental 
 anguish resulting from the mutilation or other disturbance of 
 the remains of his dead should be made to depend upon whether 
 in committing the act the defendant also committed a technical 
 trespass upon plaintiff's premises, while everybody's common 
 sense would tell him that the real and substantial wrong was 
 not the trespass on the land, but the indignity to the dead. 
 
 Order affirmed. 
 
 SLOANE V. SOUTHERN CALIFORNIA RY. CO. 
 
 California, 1896. Ill Cal. 668. 
 
 The plaintiff, Anna L. Sloane, purchased a ticket from the 
 defendant railroad and duly surrendered it to the conductor, 
 who gave her no check in return. She w^as subsequently put 
 off the ear by a second conductor, who demanded a ticket or pay- 
 ment of fare. No personal violence was used toward her, and 
 she left the car by the direction of the second conductor. She 
 had no money wdth her. She walked three miles, spent the night 
 with her sister, borrowed some money and went on the next day 
 to San Diego. The present action was brought to recover dam- 
 ages sustained by reason of defendant's wrongful acts. 
 
 Harrison, J. Evidence was given at the trial tending to 
 show that Mrs. Sloane had been previously subject to insomnia, 
 «nd also to nervous shocks and paroxysms, and that, owing to 
 her physical condition, she was subject to a recurrence of these 
 shocks or nervous disorder if placed under any great mental
 
 106 CLASSIFICATION OF DAMAGES. 
 
 excitemont ; and that, by reason of the excitement caused by her 
 exclusion from the car there had been a recurrence of insomnia 
 and of these paroxysms. 
 
 Counsel for the appellant has discussed, in his brief, the want 
 of liability on the part of the defendant for any damages for 
 mental suffering, and has cited many authorities in support of 
 the proposition that mere mental anxiety, unaccompanied with 
 bodil}^ injury or apprehended peril, does not afford a right of 
 action. Although mental suffering alone will not support an 
 action, yet it constitutes an aggravation of damages when it 
 naturally ensues from the act complained of. 3 Sutherland on 
 Damages — sec. 1245. 
 
 The real question presented by the objections and exception 
 of the appellant is whether the subsequent nervous disturbance 
 of the plaintiff' was a suffering of the body or of the mind. The 
 interdependence of the mind and body is in many respects so 
 close that it is impossible to distinguish their respective in- 
 fluence upon each other. It must be conceded that a nervous 
 shock or paroxysm, or a disturbance of the nervous system, is 
 distinct from mental anguish, and falls within the physiological, 
 rather than the psychological, branch of the human organism. 
 It is a matter of general knowledge that an attack of sudden 
 fright, or an exposure to imminent peril, has produced in indi- 
 viduals a complete change in their nervous system, and rendered 
 one who was physically strong and vigorous weak and timid. 
 Such a result must be regarded as an injury to the body rather 
 than to the mind, even though the mind be at the same time 
 injuriously affected. "Whatever may be the influence by which 
 the nervous system is affected, its action under that influence 
 is entirely distinct from the mental process which is set in 
 motion by the brain. The nerves and nerve centers of the body 
 are a part of the physical system, and are not only susceptible 
 of lesion from external causes, but are also liable to be weak- 
 ened and destroyed from causes primarily acting upon the mind. 
 If these nerves, or the entire nervous system, are thus affected, 
 there is a physical injury thereby produced; and, if the primal 
 cause of this injury is tortious, it is immaterial whether it is di- 
 rect, as by a blow, or indirect, through some action upon the mind. 
 
 This subject received a very careful and elaborate considera- 
 tion in the case of Bell v. Railway Co., L. R. 26 Ir. 428. Mrs. 
 Bell was a passenger upon one of the defendant's trains, and
 
 COMPENSATORY DAMAGES. 107 
 
 by reason of the defendant's negligence in the management of 
 its train suffered great fright, in consequence of which her 
 health was seriously impaired. She had previously been a 
 strong, healthy woman, but it was shown that, after this occur- 
 rence, she suffered from fright and nervous shock, and was 
 troubled with insomjiia, and that her health was seriously im- 
 paired. The juiy were instructed that if, in their opinion, 
 great fright was a reasonable and natural consequence of the 
 circumstances in which the defendant by its negligence had 
 placed her, and that she was actually put in fright by ■those 
 circumstances, and if the injury to her health was, in their 
 opinion, the reasonable and natural consequence of such great 
 fright, and was actually occasioned thereby, the plaintiff was 
 entitled to recover damages for such injury. It was objected 
 to this instruction that, unless the fright was accompanied by 
 physical injury, even though there might be a nervous shock 
 occasioned by the fright, such damages would be too remote. In 
 holding that this objection was not well founded, and that the 
 nervous shock was to be considered as a bodily injury, the court 
 held that, if such bodily injury might be a natural consequence 
 of fright, it was an element of damage for which a recovery 
 might be had, and, referring to the contention of the defendant, 
 said: 
 
 It is admitted that, as the negligence caused fright, if the 
 fright contemporaneously caused physical injury, the damage 
 would not be too remote. The distinction insisted upon is one 
 of time only. The proposition is that, although, if an act of 
 negligence produces such an effect upon particular structures 
 of the body as at the moment to afford palpable evidence of 
 physical injury, the relation of proximate cause and effect ex- 
 ists between such negligence and the injury, yet such relation 
 cannot in law exist in the case of a similar act producing upon 
 the same structures an effect which at a subsequent time — say 
 a week, fortnight, or a month— must result without any inter- 
 vening cause in the same physical injury. As well might it be 
 said that a death caused by poison is not to be attributed to the 
 person who administered it, because the mortal effect is not 
 produced contemporaneously with its administration." At the 
 close of his opinion, Lord Chief Baron Palles says: "In con- 
 clusion I am of the opinion that, as the relation between fright 
 and injury to the nerve and brain structures of the body is a mat-
 
 108 CL.VSSIFICATION OF DAMAGES. 
 
 ter which depends entirely upon scientific and medical testi- 
 mony, it is impossible for an3' court to lay down as a matter 
 of law that, if negligence cause fright, and such fright in its 
 turn so affect such structure as to cause injury to health, such 
 injury cannot be a consequence which, in the ordinary course of 
 things, would flow from the negligence, unless such injury ac- 
 companied such negligence in point of time. ' ' 
 
 This case is quoted at great length and with approval in the 
 eighth edition of Mr. Sedgwick's treatise on Damages, at section 
 860. Air. Beven, in the recent edition of his work on Negligence 
 (volume 1, pp. 77-81), also comments upon it with great ap- 
 proval. In Purcell v. Railroad Co., 48 iMinn. 134, the defendant 
 so negligently managed one of its cars that a collision with an 
 approaching cable car seemed imminent, and was so nearly 
 caused that the attendant confusion of ringing alarm bells and 
 of passengers rushing out produced in the plaintiff, who was a 
 j>assenger on the car, a sudden fright, which threw her into 
 convulsions, and she being then pregnant, caused in her a 
 miscarriage, and subsequent illness. The court held that the 
 defendant's negligence was the proximate cause of the plaintiff's 
 injury, and that it was liable therefor, even though the imme- 
 diate result of the negligence was only fright, saying: "A men- 
 tal shock or disturbance sometimes causes injury or illness of 
 body, especially of the nervous system." (Citing authorities.) 
 
 The mental condition which superinduced the bodily harm 
 in the foregoing cases was fright, but the character of the mental 
 excitation by which the injury to the body is produced is im- 
 material. If it can be established that the bodily harm is the 
 direct result of the condition, without any intervening cause, it 
 must be held that the act which caused the condition set in 
 motion the agencies by which the injury was produced, and is 
 the proximate cause of such injury. "Whether the indignity 
 and humiliation suffered by Mrs. Sloane caused the nervous 
 paroxysm, and the injury to her health from which she subse- 
 quently suffered, was a question of fact, to be determined by 
 the jury. There was evidence before them tending to establish 
 such fact, and if they were satisfied, from that evidence, that 
 these results were directly traceable to that cause, and that her 
 expulsion from the car had produced in her such a disturbance 
 of her nervous system as resulted in these paroxysms, they were
 
 COMPENSATORY DAMAGES. 109 
 
 authorized to include in their verdict whatever damage she had 
 thus sustained. * * * 
 
 Van Fleet, J. and Garovtte, J. concurred. 
 
 Hearing in Bank denied. 
 
 MITCHELL V. ROCHESTER RY. CO. 
 
 X New York, 1896. 151 X. Y. 107. 
 
 jMartin, J. The facts in this case are few and may be briefly 
 stated. On the 1st day of April, 1891, the plaintiff v.as standing 
 upon a crosswalk on ]\lain street, in the city of Rochester, await- 
 ing an opportunity to board one of the defendant's cars which 
 had stopped upon the street at that place. While standing there, 
 and just as she w^as about to step upon the car, a horse car of 
 the defendant came down the street. As the team attached to 
 the car drew near, it turned to the right, and came close to the 
 plaintiff, so that she stood between the horses' heads when 
 they were stopped. She testified that from fright and excite- 
 ment caused by the approach and proximity of the team she 
 became unconscious, and also that the result was a miscarriage, 
 and consequent illness. J\Iedical testimony was given to the 
 effect that the mental shock which she then received was suffi- 
 cient to produce that result. 
 
 Assuming that the evidence tended to show that the defend- 
 ant's servant was negligent in the management of the car and 
 horses, and that the plaintiff was free from contributory negli- 
 gence, the single question presented is whether the plaintiff is 
 entitled to recover for the defendant's negligence which oc- 
 casioned her fright and alarm, and resulted in the injuries al- 
 ready mentioned. "While the authorities are not harmonious 
 upon this question, we think the most reliable and better-con- 
 sidered cases, as well as public policy, fully justify us in hold- 
 ing that the plaintiff cannot recover for injuries occasioned by 
 fright, as there w^as no immediate personal injury. Lehman v. 
 Railroad Co., 47 Hun, 355 ; Commissioners v. Coultas, 13 App. 
 Cas. 222 ; Ewing v. Railway Co., 147 Pa. 40 
 
 The learned counsel for the respondent in his brief very prop- 
 erly stated that "the consensus of opinion would seem to be 
 that no recovery r-an be had for mere fri<?ht," as will be readily 
 seen by an examination of the following additional authorities: 
 Haile v. Railroad Co.. 60 Fed. 557 ; Joch v. Dankwardt, 85 111.
 
 110 CLASSIFICATION OF DAMAGES. 
 
 331; Canning v. Inhabitants of Williamstown, 1 Cush. (Mass.) 
 451; Telegraph Co. v. Wood, 57 Fed. 471; Renner v. Canfield, 
 oij ^linn. 90, Allsop v. Allsop, 5 Hurl. & N. 534; Johnson v. 
 Wells, Fargo & Co., 6 Nev. 224; Wyman v. Leavitt, 71 Me. 227. 
 
 If it be admitted that no recovery can be had for fright 
 occasioned by the negligence of another, it is somewhat difficult 
 to understand how a defendant would be liable for its conse- 
 quences. Assuming that fright cannot form the basis of an ac- 
 tion, it is obvious that no recovery can be had for injuries re- 
 sulting therefrom. That the result may be nervous disease, 
 blindness, insanity, or even a miscarriage, in no way changes 
 the principle. These results merely show the degree of fright, 
 or the extent of the damages. The right of action must still 
 depend upon the question whether a recovery may be had for 
 fright. If it can, then an action may be maintained, however 
 slight the injury. If not, then there can be no recovery, no mat- 
 ter how grave or serious the consequences. Therefore the logical 
 result of the respondent's concession would seem to be, not only 
 that no recovery can be had for mere fright, but also that none 
 can be had for injuries which are the direct consequences of it. 
 
 If the right of recovery in this class of cases should be once 
 established, it would naturally result in a flood of litigation in 
 cases where the injury complained of may be easily feigned 
 without detection, and where the damages must rest upon mere 
 conjecture or speculation. The difficulty which often exists in 
 cases of alleged physical injury, in determining whether they 
 exist, and, if so, whether they were caused by the negligent 
 act of the defendant, would not only be greatly increased, but 
 a wide field would be opened for fictitious or speculative claims. 
 To establish such a doctrine would be contrary to principles of 
 public policy. 
 
 Moreover, it cannot be properly said that the plaintiff's mis- 
 carriage was the proximate result of the defendant's negligence. 
 Proximate damages are such as are the ordinary and natural re- 
 sults of the negligence charged, and those that are usual, and 
 may, therefore, be expected. It is quite obvious that the plaint- 
 iff's injuries do not fall within the rule as to proximate dam- 
 ages. The injuries to the plaintiff were plainly the result of an 
 acidental or unusual combination of circumstances, which could 
 not have been reasonably anticipated, and over which the de-
 
 COMPENSATOR,Y DAMAGES. Ill 
 
 fendant had no control, and hence her damages were too remote 
 to justify a recovery in this action. 
 
 These considerations lead to the conclusion that no recovery 
 can be had for injuries sustained by fright occasioned by the 
 negligence of another, where there is no immediate personal in- 
 jury. The orders of the General and Special Terms should be 
 reversed, and the order of the Trial Term, granting a non-suit 
 affirmed, with costs. 
 
 All concur, except Haight, J., not sitting, and Vann, J., not 
 voting. 
 
 Ordered accordingly. 
 
 WILKINSON V. DOWNTON. 
 
 L. R. 1897, 2 Q. B. 57. 
 
 Wright, J. In this case the defendant, in the execution of 
 what he seems to have regarded as a practical joke, represented 
 to the plaintiff that he was charged by her husband with a mes- 
 sage to her to the effect that her husband was smashed up in an 
 accident, and was lying at The Elms at Leytonstone with both 
 legs broken, and that she was to go at once in a cab with two 
 piUows to fetch him home. All this was false. The effect of 
 the statement on the plaintiff was a violent shock to her nervous 
 system, producing vomiting and other more serious and per- 
 manent physical consequences at one time threatening her rea- 
 son, and entailing weeks of suffering and incapacity to her as 
 well as expense to her husband for medical attendance. These 
 consequences were not in any way the result of previous ill- 
 health or weakness of constitution ; nor was there any evidence 
 of predisposition to nervous shock or any other idiosyncrasy. 
 
 In addition to these matters of substance there is a small 
 claim of 1 s. lOi/^ d. for the cost of railway fares of persons sent 
 by the plaintiff to Leytonstone in obedience to the pretended 
 message. As to this 1 s. 10% d. expended in railway fares on 
 the faith of the defendant's statement, I think the case is clearly 
 within the decision of Pasley v. Freeman, 1789 3 T. R. 51. The 
 statement was a misrepresentation intended to be acted on to the 
 damage of the plaintiff. 
 
 The real question is as to the 100 1., the greatest part of which 
 is given as compensation for the female plaintiff's illness and 
 suffering. It was argued for her that she is entitled to recover
 
 112 CLASSIFICATION OF DAMAGES. 
 
 this as being damage caused by fraud, and therefore within the 
 doctrine established by Pasley v. Freeman, supra, and Lang- 
 ridge V. Levy, 2 M. & W. 519. I am not sure that this would not 
 be an extension of that doctrine, the real ground of which ap- 
 pears to be that a person wlio makes a false statement intended 
 to be acted on must make good the damage naturally resulting 
 from its being acted on. Here there is no injuria of that kind. 
 I think, however, that the verdict may be supported upon 
 another ground. The defendant has, as I assume for the mo- 
 ment, \^alfully done an act calculated to cause physical harm 
 to the plaintiff — that is to say, to infringe her legal right to 
 personal safety, and has in fact thereby caused physical harm 
 to her. That proposition without more appears to me to state a 
 good cause of action, there being no justification alleged for the 
 act. This wilful injuria is in law malicious, although no ma- 
 li;iious purpose to cause the harm which was caused nor any 
 motive of spite is imputed to the defendant. 
 
 It remains to consider whether the assumptions involved in 
 the proposition are made out. One question is whether the de- 
 fendant's act was so plainly calculated to produce some effect 
 of the kind which was produced that an intention to produce it 
 ought to be imputed to the defendant, regard being had to the 
 fact that the effect was produced on a person proved to be in 
 an ordinary state of health and mind. I think that it was. It 
 is difficult to imagine that such a statement, made suddenly 
 and with apparent seriousness, could fail to produce grave 
 effects under the circumstances upon any but an exceptionally 
 indifferent person, and therefore an intention to produce such 
 an effect must be imputed, and it is no answer in law to say 
 that more harai was done than was anticipated, for that is com- 
 monly the case with all wrongs. The other question is Avhether 
 the effect was, to use the ordinary phrase, too remote to be in 
 law regarded as a consequence for which the defendant is 
 answerable. Apart from authority, I should give the same 
 answer and on the same ground as the last question, and say 
 that it was not too remote. "Whether, as the majority of the 
 House of Lords thought in Lynch v. Knight, 9 H. L. C. 577, 
 at pp. 592, 596, the criterion is in asking what would be the 
 natural effect on reasonable persons, or wliether, as Lord AVens- 
 leydale thought 9 H. L. C. 577, at p. 600. the possible infirmities 
 of human nature ought to be recognized, it seems to me that the
 
 COMPENSATORY DAMAGES. 113 
 
 connection between the cause and the effect is sufficiently close 
 and complete. It is, however, necessary to consider two authori- 
 ties which are supposed to have laid down that illness through 
 mental shock is a too remote or unnatural consequence of an 
 injuria to entitle the plaintiff to recover in a case where dam- 
 age is a necessary part of the cause of action. One is the case 
 of Victorian Railways Commissioners v. Coultas 13 App. Cas. 
 222, where it was held in the Privy Council that illness which 
 was the effect of shock caused by fright was too remote a con- 
 sequence of a negligent act which caused the fright, there be- 
 ing no physical harm immediately caused. That decision was 
 treated in the Court of Appeals in Pugh v. London, Brighton 
 and South Coast Ry. Co., 1896 2 Q. B. 248, as open to question. 
 It is inconsistent with a decision in the Court of Appeal in Ire- 
 land : see Bell v. Great Northern Ry. Co. of Ireland, 1890 26 
 L. R. Ir. 428, where the Irish Exchequer Division refused to 
 follow it ; and it has been disapproved in the Supreme Court 
 of New York: see Pollock on Torts, 4th ed. p. 47 (n). Nor is it 
 altogether in point, for there was not in that case any element of 
 wilful wrong; nor perhaps was the illness so direct and natural 
 a consequence of the defendant's conduct as in this case. On 
 these grounds it seems to me that the case of Victorian Rail- 
 ways Commissioners v. Coultas, supra, is not an authority on 
 which this case ought to be decided. 
 
 A more serious difficulty is the decision in Allsop v. Allsop, 
 5 H. & N. 534, which was approved by the House of Lords in 
 Lynch v. Knight, 9 H. L. C. 577. In that case it was held by 
 Pollock C. B., IMartin, Bramwell, and Wilde BB., that illness 
 caused by a slanderous imputation of unchastily in the case 
 of a married woman did not constitute such special damage as 
 would sustain an action for such a slander. That case, how- 
 ever, appears to have been decided on the ground that in all 
 the innumerable actions for slander there were no precedents for 
 alleging illness to be sufficient special damage, and that it would 
 be of evil consequence to treat it as sufficient, because such a 
 rule might lead to an infinity of trumpery or groundless actions. 
 Neither of these reasons is applicable to the present case. Nor 
 could such a rule be adopted as of general application without 
 results which it would be difficult or impossible to defend. Sup- 
 pose that a person is in a precarious and dangerous condition, 
 
 and another person tells him that his physician has said that he 
 
 s
 
 114 CLASSIFICATION OF DAMAGES. 
 
 has but a day to live. In such a case, if death ensued from the 
 shock caused by the false statement, I cannot doubt that at this 
 day the case might be one of criminal homicide, or that if a 
 serious aggravation of illness ensued damages might be recov- 
 ered. I think, however, that it must be admitted that the pres- 
 ent case is without precedent. Some English decisions — such 
 as Jones v. Boyce, 1 Stark. 493; Wilkins v. Day, 12 Q. B. D. 
 110; Plarris v. Nobbs, 3 Ex. D. 268;— are cited in Beven on Neg- 
 ligence as inconsistent with the decision in Victorian Railways 
 Commissioners v. Coultas, 13 App. Cas. 222. But I think that 
 those cases are to be explained on a different ground, namely, 
 that the damage w^hich immediately resulted from the act of 
 the passenger or of the horse was really the result, not of that 
 act, but of a fright which rendered that act involuntary, and 
 which therefore ought to be regarded as itself the direct and 
 iinmediate cause of the damage. In Smith v. Johnson & Co., 
 unreported, decided in January last, Bruce J. and I held that 
 where a man was killed in the sight of the plaintiff by the de- 
 fendant's negligence, and the plaintiff became ill, not from the 
 shock from fear of harm to himself, but from the shock of see- 
 ing another person killed, this harm was too remote a conse- 
 quence of the negligence. But that was a very different case 
 from the present. 
 
 There must be judgment for the plaintiff for 100 1. 1 s. IQi/o. 
 
 Judgment for plaintiff. 
 
 CHAPPELL V. ELLIS. 
 
 North Carolina, 1898. 123 N. C. 259. 
 
 Douglas, J. This is an action to recover damages for the 
 unlawful seizure and detention of personal property, and also 
 for mental suffering caused thereby. The plaintiff * * * 
 alleges "that she is old and infirm, having reached the age of 
 64 years, and has to depend upon her own labor and exertion 
 for a support; and after the removal of the said property, 
 * * * she had nothing upon which to live, and no home to 
 shelter her body; that by the wrongful act of Thorpe and Ellis 
 in taking from her the said property, contrary to the writ afore- 
 said, and without authority in law, and depriving her of the only 
 means of support she then had, in her advanced age in life, she 
 has suffered greatly in body and mind to her damage $500."
 
 COMPENSATORY DxVMAGES. 115 
 
 The doctrine of mental suffering, or "mental anguish," as 
 we prefer to call it, as indicating a higher degree of suffering 
 than arises from mere disappointment or annoyance, contem- 
 plates purely compensatory damages, and, as far as we are 
 aware, has never been applied to cases like that at bar. This 
 case would come under the rule of exemplary punitive, or vin- 
 dictive damages as they are variously denominated. * * * 
 The question of exemplary damages does not appear to have 
 been raised in the trial of the action, as no such issue or in- 
 struction was asked by either party. The theory of the plaint- 
 iff was the recovery of compensatory damages for mental 
 anguish, under the rule laid down in Young v. Telegraph Co., 
 107 N. C. 370, and analogous cases. This rule cannot be ex- 
 tended to the case at bar. The plaintiff is entitled to recover 
 all her actual damages sustained from the wrongful act of the 
 defendants, including not only the value of the property not 
 returned, but also whatever damages may have accrued from 
 its seizure and detention. Furthermore, she may be allowed 
 exemplary damages, in the discretion of the jury, if such cir- 
 cumstances of aggravation are shown as would bring her within 
 the rule; but her case does not come within the doctrine of 
 "mental anguish." It is true the iwo doctrines are somewhat 
 similar, inasmuch as they recognize suffering other than physi- 
 cal or pecuniary; but they are so widely distinguished in their 
 application that they are universally recognized as distinct 
 principles, wherever they are recognized at all. 
 
 It is urged on behalf of the plaintiff that this case should be 
 governed by the principles laid down in Cashion v. Telegraph 
 Co., 123 N. C. 267. We see no resemblance. Our opinion in 
 Cashion's Case was hinged on the solemn fact of death and the 
 associations inseparable from the final severance of all earthly 
 ties by an immortal spirit. The anguish of a mother bending 
 over the body of her child, every lock of whose sunny hair is 
 entwined with a heartstring, and kissing the cold lips that are 
 closed forever, cannot come within the range of comparison 
 with any mental suffering caused by the loss of a pig. We are 
 not insensible to the pitiable condition of the plaintiff, thrown 
 upon the highway without shelter, and with but little to eat ; 
 but we must remember that her shelterless condition, which 
 probably caused the greater part of her distress, was the result 
 of a lawful eviction. Charity would have dictated a different
 
 116 CLASSIFICATION OF DAMAGES. 
 
 course, but that great virtue is not enforceable in a court of law. 
 
 * * * 
 
 Tlie one universal law of nature is that all action, animate 
 as well as inanimate, is the result of conflicting forces. * * * 
 It is so with human action. Government itself is recognized as 
 springing from the loss of personal liberty without license and 
 of laAV without tyranny, but that its disturbance would lead to 
 anarchy or despotism. * * * 
 
 For the error of his Honor in admitting evidence which tended 
 simply to show the mental suffering of the plaintiff, disconnected 
 with any allegation of malice or wantonness on the part of the 
 defendants, a new trial must be granted. New trial. 
 
 BRAUN V. CRAVEN. 
 
 Illinois, 1898. 175 III. 401. 
 
 Defendant entered the house of plaintiff's sister, his tenant, 
 to collect unpaid rent. He entered stealthily and unbidden. 
 Plaintiff was sitting on the floor, and her sister was packing up 
 her household goods. The defendant cried in a loud and angry 
 voice : " I forbid you moving. If you attempt to move I will 
 have a constable here in five minutes." Plaintiff averred that 
 she became greatly frightened, and that in consequence of the 
 nervous shock she became ill with chorea or St. Vitus dance. A 
 verdict in her favor was rendered for $9,000. The Appellate 
 Court reversed the judgment thereon, and plaintiff appealed 
 therefrom. 
 
 Phillips, J. * * * Appellant relies upon Bell v. Rail- 
 road Co., 26 L. R. Ir. 432, and Purcell v. Railway Co., 48 Minn. 
 134. Both of these cases fully sustain the contention of ap- 
 pellant that w^here sudden terror occasions a nervous shock, re- 
 sulting from a negligent act, without impact or physical contact, 
 by which the mind is affected, which may press on the health 
 and affect the physical organization, a cause of action for neg- 
 ligence results. These cases have the approval of Mr. Beven 
 in his work on Negligence (volume 1, pp. 76-84), and of Mr. 
 Sedgwick, in his work on Damages (8th Ed. §861). * * * 
 ^ The courts in the above cases seem to have lost sight of the 
 only safeguard against imposition in cases arising from neg- 
 ligence, and that is the elementary rule that, before a plaintiff 
 can recover, he must show a damage naturally and reasonably
 
 COMPENSATORY DAMAGES. 117 
 
 arising from the negligent act, and reasonably to be anticipated 
 as a result. Two trains might be passing on a double-track road, 
 one carrying passengers, and the other freight, and, at the mo- 
 ment when the engine of the freight train is immediately op- 
 posite a passenger car, it might become necessary to soiuid a 
 whistle, whose effect might be to startle and greatly frighten a 
 nervous person in the passenger car ; and the fact that a whistle 
 unexpectedly sounded would be calculated to startle and frighten 
 a nervous person, and that such fright might produce a nervous 
 shock that would cause physical injury, under the principle 
 announced in the Purcell and Bell Cases, supra, would authorize 
 a recovery.) That could only be done, under the authority of 
 those cases, by absolutely ignoring the principle that the injury 
 might be reasonably anticipated as the result of the act, and, 
 where it cannot be so anticipated, the result is too remote. These 
 cases are discussed by Beven and Sedgwick without laying 
 sufficient stress on this principle. 
 
 In our opinion, these authorities, so much relied on by coun- 
 sel for appellant, are not only against the great weight of au- 
 thority, but are not sustainable on principle. Appellee, in this 
 case, was on the premises to collect rent, as he lawfully might, 
 without any knowledge of the nervous condition of appellant; 
 and it cannot be said that his manner, language, or gestures, or 
 declared purpose of preventing the removal of the household 
 effects of his tenants, were naturally and reasonably calculated 
 to, or that it might be anticipated they would, produce the 
 peculiar injury sustained by the appellant. It could not have 
 been reasonably anticipated by the appellee that any injury 
 therefrom could reasonably have resulted. The action is purely 
 one of negligence; and, if appellee could be held liable under 
 this evidence, then any person who might so speak or act as to 
 cause a stranger of peculiar sensibility, passing by, to sustain 
 a nervous shock productive of serious injury, might be held 
 liable. Thus, one whose very existence was unknown to the 
 party guilty of so speaking and acting would be given a right 
 of recovery. Terror or fright, even if it results in a nervous 
 shock which constitutes a physical injury, does not create a 
 liability. 
 
 On the ground of public policy alone, having reference to the 
 dangerous use to be made of such cause of action, we hold that a 
 liability cannot exist consequent on mere fright or terror which
 
 118 CLASSIFICATION OF DAMAGES. 
 
 suporinduces nervous shock. The Appellate Court held the 
 language of the appellee, as disclosed by the evidence, was not 
 such as could be held to constitute negligence, and that the in- 
 jury sustained by appellant could not, according to common 
 experience, be reasonably anticipated to result from such actions 
 and language. We concur in that view, and the judgment of 
 the Appellate Court for the First District is alarmed. 
 
 Judgment affirmed. 
 
 WATSON V. DILTS. 
 
 Iowa, 1902. 116 Iowa, 249. 
 
 Sherwin, J. The petition alleges that the plaintiff is a mar- 
 ried woman, and that on the 9th day of February, 1900, she 
 resided, with her husband and child, on a farm remote from the 
 traveled highway ; that in the nighttime of said day, at about 
 the hour of 11 o'clock, and after she, her husband, and her child 
 had gone to bed, the defendant wrongfully, surreptitiously, and 
 stealthily entered her said home, and went upstairs to the second 
 story thereof, and, as the plaintiff then believed, to commit a 
 felony ; that the identity of the defendant was not known to her 
 at the time she heard him enter the house and go upstairs, and 
 that she called to her husband to follow him, which he did ; that 
 in her apprehension for her oAvn, her child's, and her husband's 
 life, from what appeared to her a threatened danger, she followed 
 her husband up to the room where the defendant was found, 
 and where she found him and her husband in what appeared to 
 her to be an encounter, and an assault upon her husband; that 
 she became greatly terrified thereat, and was attacked with a 
 violent nervous chill of such severity that her nervous system 
 completely gave way, and she became prostrated, and was con- 
 fined to her bed with threatened neurosis, or paralysis, and suf- 
 fered great mental and physical pain for nearly six weeks, dur- 
 ing all of which time she was confined to her bed, and unable to 
 attend to her household duties. The demurrer to the petition 
 is based on the ground that the damages claimed are too remote 
 and speculative, and that the plaintiff seeks recovery for fright 
 and injuries resulting therefrom without any physical injury 
 to her which caused the fright. The petition alleges physical 
 injuries resulting from the fright caused by the defendant, and 
 the demurrer thereto raises the question whether recovery may 
 be had for physical injuries so caused.
 
 COMPENSATORY DAMAGES. 119 
 
 Many cases have been before the courts in which the ques- 
 tion of a recovery for mental pain alone, and for physical dis- 
 ability produced by fright, unaccompanied by physical impact, 
 have been decided; and the decisions on these questions are in 
 conflict, though it is probably true that the numerical weight 
 of authority denies the right of action. But the cases so hold- 
 ing are not in harmony as to the reasons given for denying the 
 right of action; some of them hold that the injury is not the 
 proximate result of the alleged negligent or wrongful act, while 
 others refuse a recovery for the reason that it is practically im- 
 possible to satisfactorily administer any other rule and serve the 
 purposes of justice. Our attention has not, however, been called 
 to any case in which the facts averred are precisely parallel to 
 the facts in this case, and in no case to which we have been cited, 
 and in no case which our own investigation has discovered, have 
 we found facts alleged which so strongly condemn the unlimited 
 application of the rule contended for by the appellee as do the 
 facts pleaded in the case at bar. Nor could it be said, under 
 such circumstances, that the prostration resulting from the 
 fright so caused was not the proximate or probable result of 
 the defendant's act. "Proximate cause is probable cause; and 
 the proximate consequence of a given act or omission, as dis- 
 tinguished from a remote consequence, is one which succeeds 
 naturally in the ordinary course of things, and which, therefore, 
 ought to have been anticipated by the wrongdoer." 1 Thomp. 
 Neg. 156. It is within the common observation of all that fright 
 may, and usually does, affect the nervous system, which is a dis- 
 tinctive part of the physical system, and controls the health to 
 a very great extent, and that an entirely sound body is never 
 found with a diseased nervous organization; consequently one 
 who voluntarily causes a diseased condition of the latter must 
 anticipate the consequence which follows it. The nerves being, 
 as a matter of fact, a part of the physical system, if they are 
 affected by fright to such an extent as to cause physical pain, 
 it seems to us that the injury resulting therefrom is the direct 
 result of the act producing the fright. [Here the learned justice 
 cites authorities.] 
 
 It is undoubtedly true that the door should not be thrown 
 wide open for trumped-up claims on account of injuries re- 
 sulting from fright, and we do not intend to so open it in this 
 case. Each case must, of necessity, depend on its own facts.
 
 120 CLASSIFICATION OV DAMAGES. 
 
 We held in Lee v. City of Burlington, 113 Iowa, 356, that no 
 recovery could be had for the death of a horse alleged to have 
 been caused by fright, because death therefrom could not be 
 anticipated, and hence it was not the proximate result of the 
 defendant's negligence. In Mahoney v. Dankwart, 108 Iowa, 
 321, the question before us was not decided. That case was dis- 
 posed of on the facts there presented, and was a case of simple 
 negligence. The reasoning of the Massachusetts cases should 
 not be applied to this case, for greater evil w^ould result from a 
 holding of no actionable wrong than can possibly follow the rule 
 we announce. We do not concern ourselves with what the trial 
 of this case may disclose, but hold a cause of action stated in 
 the petition. 
 
 The demurrer should therefore have been overruled. 
 
 Reversed. 
 
 The cardinal principle in awarding damages is compensation. Pain 
 Is not susceptible of exact compensation by any pecuniary standard, but 
 is an element to be considered. Musick v. Latrobe Borough, 184 Pa. 375. 
 
 In eminent domain, where private property is taken or injured by 
 the construction of public works, the measure of damage is the differ- 
 ence in market value of the property before and after the construc- 
 tion. Shano v. Bridge Co. 189 Pa. 245. 
 
 Mental suffering cannot be allowed tis an element of damages in an 
 action for personal injni'ies, when it is not a part of the actual injury, 
 but arises afterwards from regret, disappointment or anxiety. Linn v. 
 Duquesne Borough, 204 Pa. 551. Here a married woman was perma- 
 nently injured in her hands, causing her humiliation. 
 
 Where a saloon-keeper sues a gas company to recover for refusing to 
 furnish gas, there can be no recovery for loss of profits, where no books 
 of account or evidence of profits were produced. Miller v. Wilkes-Barre 
 Gas Co. 206 Pa. 254. 
 
 But damages are not denied, because they are profits, where their loss 
 necessarily follows the breach of contract. Wilson v. Wernwag, 66 Atl. 
 Rep. 242. 
 
 Damages can not be estimated on the yield of crops not planted. Chi- 
 cago v. Huenerbein, 85 111. 594. See also King v. Griffin, 87 S. W. Rep. * 
 844. 
 
 On aggravation of pain, see Tice v. Munn, 94 N. Y. 621. "Juries are 
 required to estimate, in the best way they can, what is a just recom- 
 pense for pain suffered." Peun. R. R. v. Allen, 53 Pa. 276 ; Colo. Springs 
 R. R. Co. V. Petit, 37 Colo. 326 ; Cotton Oil Co. v. Skipper 125 Ga. 368. 
 
 In case of loss of an eye and disfigurement there can be a recovery for 
 humiliation and inconvenience. Hocking v. Windsor Spring Co. 131 
 Wis. 532. See too C. & M. E. R. R. v. Krempel, 103 111. App. 1. 
 
 If plaintiff be unlawfully excluded from public school, the disgrace 
 may be an element of damage. Morrison v. Lawrence, 181 Mass. 127.
 
 COMPENSATORY DAMAGES. 121 
 
 In case of breach of contract, actual damages only, as a rule, are 
 allowed. Fnruh v Taylor, 2 Pennewil', 42; Atchison R. R. v. Thomas 
 70 Kan. 409; Talbott v. W. Va. C. & P. Ry. Co. 42 W. Va. 560; see also 
 Chicago, St. L. R. R. v. Butler, 10 Ind. App. 244. 
 
 A father is entitled to be paid for his loss of time resulting from the 
 negligent injury of his minor son. Brinkman v. Cotton Oil Co 118 
 La. 835. 
 
 Damages for mental anguish are allowed even in cases of trespass on 
 land, if done insultingly. Meagher v. Driscoll, 99 Mass. 281. 
 
 Damages are allowed when, in the contemplation of the parties, the 
 breach would probably cause anguish and distress of mind. Renihan v 
 Wright, 125 Ind. 536. 
 
 See Beaulieu v. Great Northern Ry. Co. 114 N. W. Rep. 353, for a re- 
 view and discussion of all the leading cases on mental anguish in the 
 Supreme Court of Minnesota in December, 1907. 
 
 Loss of profits which are reasonably certain may be made the basis 
 of recovery in suits for breach of contract. Anvil Mining Co. v. Humble, 
 153 U. S. 549. See too Bratt v. Swift, 99 Wis. 579. For prospective 
 profits, see Snow v. Pulitzer, 142 N. Y. 263. 
 
 For aggravation of disease, hastened through defendant's negligence. 
 see Campbell v. Los Angeles Traction Co. 137 Cal. 565; and City of 
 Rock Island v. Starkey. 189 111. 527. 
 
 For expenses as an element of damage see Mine Supply Co. v, Colum- 
 bia Mining Co. 48 Oregon, 391; also physician's fee, Washington & G. 
 R. Co. V. Patterson, 9 App. D. C. 423. 
 
 Loss of fees in an office usurped by defendant can be recovered. 
 Palmer v. Derby, 64 Ohio. 520. So also a husband can recover for loss 
 of his wife's services, assistance, companionship and society. Hutcheis 
 V. Cedar Rapids R. R. Co. 128 la. 279. 
 
 For loss or diminution of earning power see Maryland D. & V. Ry. Co. 
 V. Brown. 71 Otl. Rep. 1005 ; and Lewis v. Northern Pacific Ry. Co. 36 
 Mont. 207 ; Glenn v. Phila. & W. C. T. Co. 206 Pa. 135. 
 
 At common law mere injury to the feelings or affections did not con- 
 stitute an independent basis for the recovery of damages. There must 
 be an element of injury or discomfort, resulting from actual or threat- 
 ened force. Summerfield v. Western U. Tel. Co. 87 Wis. 1. The message 
 here was "Mother is dying. Come immediately." 
 
 Nor can there be a recovery for prospective mental anguish. 111. C. 
 R. R. V. Cole, 165 111. 334. 
 
 The jury may consider the mortification and shame which a lady en- 
 dures because obliged to use a crutch; but the jury may not consider 
 that plaintiff was engaged to be married and the marriage had to be 
 postponed. Beach v. Rapid Ry. Co. 119 Mich. 512. 
 
 Worry in case of an intelligent being can not be overlooked as an 
 element of damages. Woodward, J., in Webb v. Yonkers R. R. 51 App. 
 Div. N. Y. 194. See also Kennon v. Gilmer, 131 IT. S. 22. 
 
 Humiliation felt by a married woman because her hands were perma- 
 nently crippled cannot be considered by the jury. Linn v. Duquesne 
 Boro. 204 Pa. 551.
 
 122 CLASSIFICATION OF DAMAGES. 
 
 Mental sufferinir, past and future, found to be the necessary conse- 
 quence of the loss of a leg may be considered. McDermott v. Severe, 
 202 U. S. GOO. 
 
 In Siuione v. R. I. Co. 2S R. I. ISG, 1907, Mr. Justice Parkhurst 
 exanunes all the authorities on fright as an element of damages, and 
 reaches the conclusion that there can bo no recovery on this ground. 
 To the same effect is the decision of Kugg, J., in Sullivan v. Old Colony 
 H. R. Co. 197 Mass. 512, 1908. 
 
 Prnation and inconvenience are recognized as elements of damage. 
 Smith V. Borough of East Mauch Chunk, 3 Penn. Super. Ct. 495. 
 
 So, too, is the loss of power to bear children. Normile v. Wheeling 
 Traction Co. 57 W. Ya. 132. 
 
 Profits which are tJie direct and immediate fruits of a contract can 
 be recovered as damages. Howe Machine Co. v. Bryson, 44 la. 159. 
 
 "In an action by a parent to recover for loss occasioned by the injury 
 to his child, the measure of damages is the pecuniary loss to him." 
 Woeckner v. Erie Electric Motor Co. 1S2 Pa. 182. There can be no 
 recovery for nursing by members of plaintiff's family ; this is the ordi- 
 nary office of affection. 11). 
 
 If there be a contract to furnish power for a mill, the measure of 
 damages for failure to perform is the difference in rental value of the 
 mill with the power and without it. Witherbee v. Meyer, 155 N. Y. 446. 
 
 Profits are to be distinguished from earnings, in case of personal ser- 
 vices of a boarding-house keeper. Wallace v. Penn. R. R. 195 Pa. 127. 
 
 The jury can consider the reasonable profits of a traveling theatrical 
 troupe known as the "Eight Bells Company." III. I. C. R. R. v. Byrne, 
 205 111. 9. 
 
 The jury may consider the average annual profit of plaintiff's business 
 for ten years before his injury in estimating his earning power. Heer 
 V. Warren-Scharf Asphalt Paving Co. 118 Wis. 57. 
 
 But the merely probable loss of profits of an idle mill cannot be 
 recovered. McNeill v. Crucible Steel Co. 207 Penn. 493. 
 
 The earning power of plaintiff, his health, industry, profits and capi- 
 tal can be shown. Simpson v. Penn. R. R. 210 Penn. 101. As to earn- 
 ing power, see also Wilkinson v. North East Boro, 215 Pa. 486, and 
 Melone v. Sierra R. R. Co. 151 Cal. 113. 
 
 In Schenkel v. Pittsbui'g and B. Traction Co. 194 Pa. 182, the court 
 charged: "While you cannot undertake to pay her for the injury, for 
 the pain and suffering, you have a right to take into consideration the 
 fact that her future life will be more or less affected by the pain and 
 suffering incident to this action, and for that she ought to have some 
 allowance." Held, that this did not permit the jury to give damages for 
 pain and suffering "as a separate and distinct item." 
 
 The law admits of compensation for future as well as for past pain 
 and suffering. Wallace v. Penn. R. R. 219 Pa. 327. 
 
 Every item and elenient of damage claimed l)y plaintiff must be shown 
 by a preponderance of evidence. Physicians' bills must thus be proved. 
 West Chicago St. R. R. v. Carr, 170 111. 484. 
 
 There may be a recovery for medical fees incurred though not paid. 
 Donk Bros. C. & C. Co. v. Thil, 228 111. 233.
 
 EXEMPLARY DAMAGES. 123 
 
 4. . Exemplary Damages. 
 MEREST V. HARVEY. 
 
 Common Pleas, 1814. 5 Taunt. 442. 
 
 Trespass for forcibly breaking and entering the plaintiff's 
 close, called Brandon Road Breck, part of Longford Field, 
 -and with feet in walking, and with dogs, treading down and 
 spoiling the plaintiff's grass, and with dogs and guns search- 
 ing, hunting, and beating for game there, and doing other 
 wrongs. The cause was tried before Heath, J., at the Norfolk 
 spring assizes, 1814. The evidence was, that in September the 
 plaintiff, a gentleman of fortune, was shooting on his o\^ti manor 
 and estate, in a common field contiguous to the highway, when 
 the defendant, a banker, a magistrate, and a Member of Parlia- 
 ment, who had dined and drank freely after taking the same 
 diversion of shooting, passed along the road in his carriage, 
 and quitting it, went up to the plaintiff and told him he would 
 join his -party, which the plaintiff positively declined, inquired 
 his name, and gave him notice not to sport on the plaintiff's 
 land; but the defendant declared with an oath that he would 
 shoot, and accordingly fired several times, upon the plaintiff's 
 land, at the birds which the plaintiff found, proposed to borrow 
 some shot of the plaintiff, w^hen he had exhausted his owti, and 
 used very intemperate language, threatening, in his capacity 
 of a magistrate, to commit the plaintiff, and defying him to bring 
 any action. The witness described his conduct as being that 
 of a drunken or insane person. The plaintiff conducted himself 
 with the utmost coolness and propriety. A special jury found 
 a verdict for the plaintiff for the whole damages in the declara- 
 tion, 500 1. ; which verdict 
 
 Blosset, Sergt., now moved to set aside for excess j for he said, 
 the defendant's conduct must have proceeded from intoxication 
 or insanity, as it was described by the witnesses ; the jury seemed 
 to have considered, not what they ought to give as a compensa- 
 tion for the injury sustained, but what they, as lords of manors 
 in a sporting county, where the jealousy of preserving the game 
 was carried to an excess, should like to receive in similar cir- 
 cumstances. 
 
 GiBBS, C.J. I wish to know, in a case where a man disregards 
 every principle which actuates the conduct of gentlemen, what
 
 124 CLASSIFICATION OF DAMAGES. 
 
 is to restrain him except large damages? To be sure, one can 
 hardly conceive worse conduct than this. What would be said 
 to a person in a low situation of life, who should behave him- 
 self in this manner? I do not know upon what principle we 
 can grant a rule in this case, unless we were to lay it down that 
 the jurj-^ are not justified in giving more than the absolute 
 pecuniary damage that the plaintiff may sustain. Suppose a 
 gentleman has a paved walk in his paddock, before his window 
 and that a man intrudes and walks up and down before the 
 window of his house, and looks in while the owner is at dinner, 
 is the trespasser to be permitted to say, "Here is a halfpenny 
 for you. which is the full extent of all the mischief I have done ? ' ' 
 Would that be a compensation? I cannot say that it would be. 
 Heath, J. I remember a case where a jury gave 500 1. dam- 
 ages for merely knocking a man's hat off; and the court re- 
 fused a new trial. There was not one country gentleman in a 
 hundred, who would have behaved with the laudable and dig- 
 nified coolness which this plaintiff did. It goes to prevent the 
 practice of duelling, if juries are permitted to punish insult by 
 exemplary damages. Rule refused. 
 
 GODDARD V. GRAND TRUNK RAILWAY. 
 
 Maine, 1869. 57 Me. 202. 
 
 Motion to set aside verdict as excessive. 
 
 Walton, J. It appears in evidence that the plaintiff was 
 a passenger in the defendants' railway car; that, on request, 
 he surrendered his ticket to a brakeman employed on the train, 
 who, in the absence of the conductor, was authorized to demand 
 and receive it ; that the brakeman afterwards approached the 
 plaintiff, and, in language coarse, profane, and grossly insult- 
 ing, denied that he had either surrendered or shown him his 
 ticket; that the brakeman called the plaintiff a liar, charged 
 him with attempting to avoid the payment of his fare, and with 
 having done the same thing before, and threatened to split his 
 head open and spill his brains right there on the spot ; that the 
 brakeman stepped forward and placed his foot upon the seat 
 on which the plaintiff was sitting, and, leaning over the plaint- 
 iff, brought his fist close down to his face, and, shaking it vio- 
 lently, told him not to yip, if he did he would spot him, that
 
 EXEMPLARY DAMAGES. 125 
 
 he was a damned liar, that he never handed him his ticket, that 
 he did not believe he paid his fare either way ; that this assault 
 was continued some fifteen or twenty minutes, and until tiie 
 whistle somided for the next station; that there were several 
 passengers present in the car, some of whom were ladies, and 
 that they were all strangers to the plaintiff; that the plaintiff 
 was at the time in feeble health, and had been for some time 
 under the care of a physician, and at the time of the assault 
 was reclining languidly in his seat ; that he had neither said nor 
 done anything to provoke the assault ; that, in fact, he had paid 
 his fare, had received a ticket, and had surrendered it to this very 
 brakeman, who delivered it to the conductor only a few minutes 
 before, by whom it was afterwards produced and identified ; that 
 the defendants were immediately notified of the misconduct of 
 the brakeman, but, instead of discharging him, retained him in 
 his place; that the brakeman w^as still in the defendants' em- 
 ploy when the case was tried, and was present in court during 
 the trial, but was not called as a witness, and no attempt was 
 made to justify or excuse his conduct. * * * [Here the 
 learned justice cites authorities.] 
 
 What is the measure of relief which the law secures to the 
 injured party; or. in other words, can he recover exemplary 
 damages ? We hold that he can. The right of the jury to give 
 exemplary damages for injuries wantonly, recklessly, or ma- 
 liciously inflicted, is as old as the right of trial by jury itself; 
 and is not, as many seem to suppose, an innovation upon the rules 
 of the common law. It was settled in England more than a 
 century ago. * * * [Here the learned justice cites Lord 
 Camden.] 
 
 But it is said that if the doctrine of exemplary damages 
 must be regarded as established in suits against natural per- 
 sons for their own wilful and malicious torts, it ought not to 
 be applied to corporations for the torts of their servants, es- 
 pecially where the tort is committed by a servant of so low a 
 grade as a brakeman on a railway train, and the tortious act 
 was not directly nor impliedly authorized nor ratified by the 
 corporation ; and several cases are cited by the defendants' coun- 
 sel, in which the courts seem to have taken this view of the law ; 
 but we have carefully examined these cases, and in none of 
 them was there any evidence that the servant acted wantonly 
 or maliciously; they were simply cases of mistaken duty; and
 
 126 CLASSIFICATION OF DAMAGES. 
 
 what these same courts would have done if a case of such gross 
 and outrageous insult had been before them as is now before 
 us, it is impossible to say ; and long experience has shown that 
 nothing is more dangerous than to rely upon the abstract reason- 
 ing of courts, when the cases before them did not call for the 
 application of the doctrines which their reasoning is intended 
 to establish. 
 
 We have given to this objection much consideration, as it was 
 our duty to do, for the presiding judge declined to instruct the 
 jury that if the acts and words of the defendants' servant were 
 not directly nor impliedly authorized nor ratified by the defend- 
 ant, the plaintiff could not recover exemplary damages. We 
 confess- that it seems to us that there is no class of cases where 
 the doctrine of exemplary damages can be more beneficially ap- 
 plied than to railroad corporations in their capacity of common 
 carriers of passengers; and it might as well not be applied to 
 them at all as to limit its application to cases where the servant 
 is directly or impliedly commanded by the corporation to mal- 
 treat and insult a passenger, or to cases where such an act is 
 directly or impliedly ratified ; for no such cases will ever occur. 
 A corporation is an imaginary being. It has no mind but the 
 mind of its servants ; it has no voice but the voice of its servants ; 
 and it has no hands with which to act but the hands of its serv- 
 ants. All its schemes of mischief, as well as its schemes of 
 public enterprise, are conceived by human minds and executed 
 by human hands; and these minds and hands are its servants' 
 minds and hands. All attempts, therefore, to distinguish be- 
 tween the guilt of the servant and the guilt of the corporation, 
 or the malice of the servant and the malice of the corporation, 
 or the punishment of the servant and the punishment of the 
 corporation, is sheer nonsense; and only tends to confuse the 
 mind and confound the judgment. Neither guilt, malice, nor 
 suffering is predicable of this ideal existence, called a corpora- 
 tion. And yet under cover of its name and authority there 
 is, in fact, as much wickedness, and as much that is deserving 
 of punishment, as can be found anywhere else. And since these 
 ideal existences can neither be hung, imprisoned, whipped, or 
 put in stocks, — since, in fact, no corrective influence can be 
 brought to bear upon them except that of pecuniary loss,— it 
 does seem to us that the doctrine of exemplary damage is more 
 beneficial in its application to them than in its application to
 
 EXEMPLARY DAMAGES. 127 
 
 natural persons. If those who are in the habit of thinking that 
 it is a terrible hardship to punish an innooent corporation for the 
 wickedness of its agents and servants, will for a moment reflect 
 upon the absurdity of their own thoughts, their anxiety will be 
 cured. Careful engineers can be selected who will not run their 
 trains into open draws ; and careful baggage men can be secured, 
 who will not handle and smash trunks and band-boxes, as is now 
 the universal custom; and conductors and brakemen can be had 
 who will not assault and insult passengers ; and if the courts will 
 only let the verdicts of upright and intelligent juries alone, and 
 let the doctrine of exemplary damages have its legitimate influ- 
 ence, we predict these great and growing evils will be very much 
 lessened, if not entirely cured. There is but one vulnerable point 
 about these ideal existences, called corporations ; and that is, the 
 pocket of the moneyed power that is concealed behind them; 
 and if that is reached they will wince. When it is thoroughly 
 understood that it is not profitable to employ careless and in- 
 different agents, or reckless and insolent servants, better men 
 will take their places, and not before. 
 
 It is our judgment, therefore, that actions against corpor- 
 ations, for the wilful and malicious acts of their agents and 
 servants in executing the business of the corporation, should not 
 form exceptions to the rule allowing exemplary damages. On 
 the contrary, we think this is the very class of cases, of all others, 
 where it will do the most good, and where it is most needed. 
 And in this conclusion we are sustained by several of the ablest 
 courts in the country. * * * On the whole, we cannot doubt 
 that it is best for all concerned that this verdict be allowed to 
 stand. 
 
 Motion and exceptions overruled. 
 
 Tapley, J., did not concur on the question of damages. 
 
 LAKE SHORE & M. S. RAILWAY v. PRENTICE. 
 
 Supreme Court of the United States, 1893. 147 U. S. 101. 
 
 Mr. Justice Gray after stating the case delivered the opinion 
 of the court. The only exceptions taken to the instructions at 
 the trial, which have been argued in this court, are to those on 
 the subject of punitive damages. 
 
 The single question presented for our decision, therefore, is 
 whether a railroad corporation can be charged with punitive
 
 128 CLASSIFICATION OF DAMAGES. 
 
 or cxcmplaiy damages for the illegal, wanton, and oppressive 
 conduct of a conductor of one of its trains towards a passenger. 
 
 This question, like others affecting the liability of a railroad 
 corporation as a common carrier of goods or passengers, — such 
 as its right to contract for exemption from responsibility for its 
 ovra. negligence, or its liability beyond its own line, or its lia- 
 bility to one of its servants for the act of another person in its 
 emplojTnent, — is a question, not of local law, but of general 
 jurisprudence, upon which this court, in the absence of express 
 statute regulating the subject, will exercise its o-^mi judgment, 
 uncontrolled by the decision of the courts of the several States. 
 Railroad Co. v. Lockwood, 17 Wall. 357, 368 ; Liverpool & G. W. 
 Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 443 ; Myriek v. Rail- 
 road Co., 107 U. S. 102, 109 ; Hough v. Railway Co., 100 U. S. 
 213, 226. 
 
 The most distinct suggestion of the doctrine of exemplary or 
 punitive damages in England before the American Revolution 
 is to be found in the remarks of Chief Justice Pratt (afterwards 
 Lord Camden) in one of the actions against the king's messen- 
 gers for trespass and imprisonment, under general warrants of 
 the Secretary of State, in which, the plaintiff's counsel having 
 asserted, and the defendant's counsel having denied, the right 
 to recover "exemplary damages," the Chief Justice instructed 
 the jury as follows: "I have formerly delivered it as my opinion 
 on another occasion, and I still continue of the same mind, that 
 a jury have it in their power to give damages for more than the 
 injury received. Damages are designed, not only as a satisfac- 
 tion to the injured person, but likewise as a punishment to the 
 guilty, to deter from any such proceeding for the future, and as 
 a proof of the detestation of the jury to the action itself." 
 Wilkes v. Wood, Lofft, 1, 18, 19, 19 Howell, St. T. 1153, 1167. 
 See, also, Huckle v. Money, 2 Wils. 205, 207 ; Sayer, Dam. 218, 
 221. The recovery of damages, beyond compensation for the 
 injury received, by way of punishing the guilty, and as an ex-r 
 ample to deter others from offending in like manner, is here 
 clearly recognized. 
 
 In this court the doctrine is well settled that in actions of tort 
 the jury, in addition to the sum awarded by way of compensa- 
 tion for the plaintiff's injury, may award exemplary, punitive, 
 or vindictive damages, sometimes called "smart money," if the 
 defendant has acted wantonly, or oppressively, or with such
 
 EXEMPLARY DAMAGED. 129 
 
 malice as implies a spirit of mischief or criminal indifference to 
 civil obligations ; but such guilty intention on the part of the de- 
 fendant is required in order to charge him with exemplary or 
 punitive damages. The Amiable Nancy, 3 Wheat. 546, 558, 559 ; 
 Day V. Woodworth, 13 How. 363, 371 ; Railroad Co. v. Quigley, 
 21 Plow. 202, 213, 214; Railway Co. v. Arms, 91 U. S. 489, 493^ 
 495; Railway Co. v. Humes, 115 U. S. 512, 521; Barry v. Ed- 
 munds, 116 U. S. 550, 562, 563 ; Railway Co. v. Harris, 122 U. S. 
 597, 609, 610 ; Railway Co. v. Beckwith, 129 U. S. 26, 36. 
 
 Exemplary or pimitive damages, being awarded, not by way 
 of compensation to the sufferer, but by way of punishment of the 
 offender, and as a warning to others, can only be awarded against 
 one who has participated in the offence. A principal, therefore, 
 though of course liable to make compensation for injuries done 
 by his agent within the scope of his employment, cannot be held 
 liable for exemplary or punitive damages, merely by reason of 
 wanton, oppressive, or malicious intent on the part of the agent. 
 This is clearly shown by the judgment of this court in the case 
 of The Amiable Nancy, 3 Wheat. 546. * * * The learned 
 justice here reviews the case of The Amiable Nancy and con- 
 tinues as follows : 
 
 The rule thus laid down is not peculiar to courts of admi- 
 ralty ; for, as stated by the same eminent judge two years later, 
 those courts proceed, in cases of tort, upon the same principles 
 as courts of common law, in allowing exemplary damages, as well 
 as damages by way of compensation or remuneration for ex- 
 penses incurred, or injuries or losses sustained, by the misconduct 
 of the other party. Manufacturing Co. v. Fiske, 2 Mason, 119, 
 121. In Keene v. Lizardi, 8 La. 26, 33, Judge Martin said: "It 
 is true, juries sometimes very properly give what is called 'smart 
 money.' They are often warranted in giving vindictive dam- 
 ages as a punishment inflicted for outrageous conduct : but this 
 is only justifiable in an action against the wrongdoer, and not 
 against persons who, on account of their relation to the offender, 
 are only consequentially liable for his acts, as the principal is 
 responsible for the acts of his factor or agent." To the same 
 effect are The State Rights, Crabbe, 42, 47, 48 ; The Golden Gate, 
 I\rcAlI. 104; Wardrobe v. Stage Co., 7 Cal. 118; Boulard v. 
 Calhoun, 13 La Ann. 445 ; Detroit Daily Post Co. v. Mc Arthur, 
 16 I\rich. 447 ; Grimd v. Van Vleck, 69 111. 478, 481 ; Becker v. 
 Dupree, 75 111. 167 ; Rosenkrans v. Barker, 115 111. 331 ; Kirk-
 
 130 CLASSIFICATION OF DAMAGES. 
 
 sey V. Jones, 7 Ala. 622, 629 ; Pollock v. Gantt, 69 Ala. 373, 379 ; 
 Eviston V. Cramer, 57 "Wis. 570; Haines v. Schultz, 50 N. J. 
 Law, 481 ; McCarthy v. De Armit, 99 Pa. St. 63, 72 ; Clark v. 
 Newsam, 1 Exch. 131, I-IO ; Clissold v. Machell, 26 Upper Canada 
 Q. B. 422. * * * 
 
 No doubt, a corporation, like a natural person, may be held 
 liable in exemplary or punitive damages for the act of an agent 
 within the scope of his employment, provided the criminal in- 
 tent, necessary to warrant the imposition of such damages, is 
 brought home to the corporation. Railroad Co. v. Quigley, Rail- 
 way Co. V. Arms, and Railway Co. v. Harris, above cited; Cald- 
 well V. Steamboat Co., 47 N. Y. 282; Bell v. Railway Co., 10 
 C. B.. -(N. s.) 287, 4 Law T. (n. s.) 293. 
 
 Independently of this, in the case of a corporation, as of an 
 individual, if any wantonness or mischief on the part of the 
 agent, acting within the scope of his employment, causes addi- 
 tional injury to the plaintiff in body or mind, the principal is, of 
 course, liable to make compensation for the whole injury suf- 
 fered. Kennon v. Gilmer, 131 U. S. 22 ; Meagher v. DriscoU, 
 99 Mass. 281, 285; Smith v. Holcomb, Id. 552; Hawes v. 
 Knowles, 114 Mass. 518 ; Campbell v. Car Co., 42 Fed. Rep. 484. 
 # # * 
 
 The law applicable to this ease has been found nowhere bet- 
 ter stated than by Mr. Justice Brayton, afterwards Chief Justice 
 of Rhode Island, in the earliest reported case of the kind, in 
 which a passenger sued a railroad corporation for his wrongful 
 expulsion from a train by the conductor, and recovered a ver- 
 dict but excepted to an instruction to the jury that ' ' punitive or 
 vindictive damages, or smart money, were not to be allowed as 
 against the principal, unless the principal participated in the 
 wrongful act of the agent, expressly or impliedly, by his conduct 
 authorizing it or approving it, either before or after it was com- 
 mitted." This instruction was held to be right, for the fol-*" 
 lowing reasons: "In cases where punitive or exemplary dam- 
 ages have been assessed, it has been done, upon evidence of such 
 wilfulness, recklessness, or wdckedness, on the part of the party 
 at fault, as amounted to criminality, which for the good of 
 society and warning to the individual ought to be punished. If 
 in such cases, or in any case of a civil nature, it is the policy of 
 the law to visit upon the offender such exemplary damages as 
 will operate as punishment, and teach the lesson of caution to
 
 EXEMPLARY DAMAGES. 131 
 
 prevent a repetition of criminality, yet we do not see how such 
 damages can be allowed, where the principal is prosecuted for 
 the tortious act of his servant, unless there is proof in the cause 
 to implicate the principal and make him particeps criminis of his 
 agent's act. No man should be punished for that of which he 
 is not guilty." "Where the proof does not implicate the prin- 
 cipal and, however wicked the servant may have been, the prin- 
 cipal neither expressly nor impliedly authorizes or ratifies the 
 act, and the criminality of it is as much against him as against 
 any other member of society, we think it is quite enough that 
 he shall be liable in compensatory damages for the injurj' sus- 
 tained in consequence of the wrongful act of a person acting 
 as his servant." Hagan v. Railroad Co., 3 R. I. 88, 91. 
 
 The like view was expressed by the Court of Appeals of New 
 York in an action brought against a railroad corporation by a 
 passenger for injuries suffered by the neglect of a switchman, 
 who was intoxicated at the time of the accident. It was held 
 that evidence that the switchman was a man of intemperate 
 habits, which was knowna to the agent of the company having 
 the power to employ and discharge him and other subordinates, 
 was competent to support a claim for exemplary damages, but 
 that a direction to the jury in general terms that in awarding 
 damages they might add to full compensation for the injury 
 "such sum for exemplary damages as the case calls for, 
 depending in a great measure, of course, upon the conduct 
 of the defendant, ' ' entitled the defendant to a new trial ; and 
 Chief Justice Church, delivering the unanimous judgment of the 
 court, stated the rule as follows: "For injuries by the negligence 
 of a servant while engaged in the business of the master, within 
 the scope of his emplo^onent, the latter is liable for compensatory 
 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. Such misconduct may be 
 established by showing that the act of the servant was author- 
 ized or ratified, or that the master employed or retained the 
 servant, knowing that he was incompetent, or, from bad habits, 
 unfit for the position he occupied. Something more than ordi- 
 nary negligence is requisite ; it must be reckless, and of a crim- 
 inal nature, and clearly established. Corporations may incur 
 this liability as well as private persons. If a railroad company, 
 for instance, knowingly and wantonly employs a drunken en-
 
 132 CLASSIFICATION OF DAMAGES. 
 
 ginecr or switchman, or retains one after knowledge of his habits 
 is clearly brought home to the company, or to a superintending 
 agent authorized to employ and discharge him, and injury occurs 
 by reason of such habits, the company may and ought to be 
 amenable to the severest rule of damages; but I am not aware 
 of any principle which permits a jury to award exemplary dam- 
 ages in a case which does not come up to this standard, or to 
 graduate the amount of such damages by their views of the 
 propriety' of the conduct of the defendant, unless such conduct 
 is of the character before specified." Cleghorn v. Railroad Co., 
 56 N. Y. 44, 47, 48. 
 
 Similar decisions denying upon like grounds the liability of 
 railroad companies and other corporations, sought to be charged 
 with punitive damages for the wanton or oppressive acts of their 
 agents or servants, not participated in or ratified by the corpor- 
 ation, have been made by the courts of New Jersey, Pennsyl- 
 vania. Delaware, Michigan, AVisconsin, California, Louisiana, 
 Alabama, Texas, and West Virginia. 
 
 It must be admitted that there is a wide divergence in the 
 decisions of the State courts upon this question, and that cor- 
 porations have been held liable for such damages under similar 
 circumstances in New Hampshire, in Maine, and in many of 
 the Western and Southern States. But of the three leading 
 cases on that side of the question, Hopkins v. Railroad Co., 36 
 N. H. 9, can hardly be reconciled with the later decisions in Fay 
 V. Parker, 53 N. H. 342, and Bixby v. Dunlap, 56 N. H. 456 ; 
 and in Goddard v. Railway Co., 57 I\Iaine, 202, 228, and Rail- 
 w^ay Co. V. Dunn, 19 Ohio St. 162, 590, there were strong dis- 
 senting opinions. In many, if not most, of the other cases, either 
 corporations were put upon different grounds in this respect 
 from other principals, or else the distinction between imputing 
 to the corporation such wrongful act and intent as would render 
 it liable to make compensation to the person injured, and im- 
 puting to the corporation the intent necessary to be established 
 in order to subject it to examplary damages by way of punish- 
 ment, was overlooked or disregarded. 
 
 ]\Iost of the cases on both sides of the question, not specifically 
 cited above, are collected in 1 Sedgwick on Damages (8th ed.) § 
 380. * 
 
 In the case at bar, the plaintiff does not appear to have eon- 
 tended at the trial, or to have introduced any evidence tending
 
 EXEMPLARY DAMAGES. 133 
 
 to show, that the conductor was known to the defendant to be an 
 unsuitable person in any respect, or that the defendant in any 
 way participated in, approved, or ratified his treatment of the 
 plaintiff; nor did the instructions given to the jury require 
 them to be satisfied of any such fact before awarding punitive 
 damages ; but the only fact which they were required to find, in 
 order to support a claim for punitive damages against the cor- 
 poration, was that the conductor's illegal conduct was wanton 
 and oppressive. For this error, as we cannot know how much of 
 the verdict was intended by the jury as a compensation for the 
 plaintiff's injury, and how much by way of punishing the cor- 
 poration for an intent in which it had no part, the judgment 
 must be reversed, and the case remanded to the Circuit Court, 
 with direction to set aside the verdict, and to order a new trial. 
 
 Mb. Justice Field, Mr. Justice Harland and Mr. Justice 
 Lamar took no part in this decision. 
 
 MAISENBACKER v. THE SOCIETY CONCORDIA. 
 
 Connecticut, 1899. 71 Conn. 369. 
 
 Action to recover damages for assault and battery and wrong- 
 ful ejection of plaintiff from a dance hall. Verdict for plaintiff. 
 Defendant appeals. 
 
 Hall, J. The complaint alleges, in substance, that the plain- 
 tiff, having contracted with and paid the defendant for the priv- 
 ilege of dancing at a certain ball, was, by the forcible acts of the 
 defendant's agents, prevented from exercising her said right, 
 and was thereby caused pain and damage. The trial court cor- 
 rectly charged the jury that the complaint described two causes 
 of action, — one for personal injury, and the other for a breach 
 of contract. Under the averments of the complaint, the plaintiff 
 would have been entitled to a verdict upon proof either that she 
 was forcibly prevented from dancing, as alleged, or that the de- 
 fendant's agents, without using force, unlawfully deprived her 
 of the privilege which was granted to her by her contract with 
 the defendant. We have no occasion to decide whether these two 
 causes of action should have been stated in separate counts. 
 Several causes of action may be stated in a single count, when 
 such causes of action are not separate and distinct from each 
 other; that is, separable from each other "by some distinct line 
 of deraarkation." Craft Refrigerating Maeh. Co. v. Quinnipiac
 
 134 CLASSIFICATION OP DAMAGES. 
 
 Brewing Co., 63 Conn. 563. The defendant, not having demur- 
 red to the comphiint, has waived the question whetlier the two 
 causes of action were improperly joined in one count. Practice 
 Book, p. 17, rule 4, § 13. 
 
 Apparently no question was made at the trial but that under 
 the pleadings the plaintiff, upon proof that the defendant's 
 agent forcibly prevented her from dancing, became entitled to a 
 verdict for a sum sufficient to indenmify her for the actual in- 
 juries she sustained, and which were the direct and natural 
 consequences of the wrongful act complained of. The complaint 
 alleges that, in consequence of the assault, the plaintiff was de- 
 prived of the privileges of the ball, that she suffered physical 
 and mental pain and anguish, and lost her earnings in the trade 
 at which she had been employed. The court instructed the jury 
 that, in determining the amount of compensatory damages to be 
 awarded the plaintiff, they might take into consideration the 
 indignity she had suffered by an assault in so public a place, the 
 mental as well as the physical suffering which it caused her, 
 and such loss as had been proved she had thereby sustained from 
 inability to work at her trade. "All the attending acts and cir- 
 cumstances which accompany and give character to the assault 
 maj' be given in evidence to enhance the damages." Brzezinski 
 V. Tierney, 60 Conn. 62. Mental as well as physical suffering, 
 when properly alleged, may be proved as an element of actual 
 damage, and as naturally and directly resulting from an as- 
 sault of the character described in the complaint. Gibney v. 
 Lewis, 68 Conn. 393 ; Seger v. Town of Barkhamsted, 22 Conn. 
 298; Masters v. Town of Warren, 27 Conn. 299. The defend- 
 ant has no cause to complain of the charge of the court with ref- 
 erence to the elements which go to make up compensatory dam- 
 ages. 
 
 The complaint alleges that the defendant's agent, in commit- 
 ting the assault, "addressed the plaintiff in loud, threatening, 
 and insulting language, ' ' and that the assault upon the plaintiff 
 was "committed in a gross, wanton, and reckless manner, and 
 with intent to" injure the plaintiff. The defendant, in effect, 
 requested the court to charge the jury that the defendant society 
 could not, upon the proof presented, be held liable in exemplary 
 damages. The court did not comply with this resquest, but in- 
 structed the jury that, in case they found that a battery had 
 been inflicted upon the plaintiff by the defendant's agent, "want-
 
 EXEMPLARY DAMAGES. 135 
 
 only, maliciously, or in wanton disregard of the plaintiff's 
 rights," they might add, to that sum which they should find 
 sufficient to compensate the plaintiff for her injuries, "a sum 
 as exemplary or punitive damages," and might award her as 
 punitive damages such sum as the jury, from their "knowledge 
 of the course of business in the courts of law in this state," 
 should find "to be her expenses in conducting this trial," less 
 the taxable costs which she would recover. The jury returned 
 a verdict for the plaintiff for $300. We have not the evidence 
 in the case before us, but from the finding of facts, and from the 
 charge of the court stating the claims of the parties as to the 
 character and extent of the plaintiff's injuries, we think the 
 jury may, under such instruction, have included in their verdict, 
 as an element of damages, the expenses incurred by the plaintiff 
 in conducting her trial, less the taxable costs; and, unless this 
 is a case in which such expenses could lawfully be recovered, 
 the charge of the court was incorrect, and a new trial should be 
 granted. 
 
 That a plaintiff may, in an action for an assault and battery, 
 and in certain other actions of tort, recover certain damages 
 which are not "compensatory," within the technical and legal 
 meaning of that word, but which are awarded with the view of 
 punishing the defendant for this wrongful act, has been settled 
 in this state beyond question by a large number of decisions, ex- 
 tending from Linsley v. Bushnell, 15 Conn. 225, to Gibney v. 
 Lewis, 68 Conn. 392. The cases in which punitive damages may 
 be awarded are only those actions of tort ' ' founded on the mali- 
 cious or wanton misconduct of the defendant," or upon "such 
 culpable neglect of the defendant" as is "tantamount to mali- 
 cious or wanton misconduct." St. Peter's Church v. Beach, 26 
 Conn. 355 ; Welch v. Durand, 36 Conn. 182 ; Burr v. Town of 
 Plymouth, 48 Conn. 460. And private corporations, as well as 
 individuals, may for their own acts become liable in punitive 
 damages. Sedg. Dam. § 379 ; Merrills v. Manufacturing Co., 
 10 Conn. 384; Murphy v. Railroad Co., 29 Conn. 496. The ex- 
 penses of litigation are not an element of the damages termed in 
 law ' ' actual " or " compensatory ' ' damages. ' ' They are not the 
 natural and proximate consequence of the wrongful act," and 
 they can only be considered by the jury in those cases in which 
 exemplary damages may be awarded. St. Peter's Church v. 
 Beach, supra; Piatt v. Browna, 30 Conn. 336; Mason v. Hawes, 52
 
 136 CLASSIFICATION OF DAMAGES. 
 
 Conn, 12; Gibney v. Lewis, supra. Such expenses in excess of 
 taxable costs, in eases in wliich they may be considered, limit the 
 amount of punitive damages which can be awarded. Wilson v. 
 Granby, 47 Conn. 59; Burr v. Town of Plymouth, supra. In 
 cases where they may be considered it is not usual to prove the 
 expenses of litigation actually incurred, but the court may admit 
 relevant evidence for that purpose. Bennett v. Gibbons, 55 
 Conn. 450. 
 
 The case before us, as shown by the record, is not one in which 
 the defendant society could be held liable in punitive damages. 
 The defendant is a corporation. The alleged assault was com- 
 mitted by a floor manager ' ' appointed by the defendant to have 
 the regulation and charge of the dancing" at a ball given by the 
 defendant. The assault which the court instructed the jury 
 would, if found to have been committed, and to have been in- 
 flicted wantonly and maliciously, entitle the plaintiff to exemp- 
 lary damages, was the putting of his hand by one of the floor 
 managers upon the plaintiff's shoulder, "rudely, insolently, or 
 angrily," and while she was upon the ballroom floor, "at the 
 same time telling her that she could not dance there, and that 
 she was not a fit person to be there." If these facts are suffi- 
 cient to show that the act of the agent was malicious or wanton, 
 they do not prove that the principal in any way participated in 
 such malicious or wanton misconduct. As its agent was acting 
 within the scope of his employment, the law compels the defend- 
 ant to compensate the plaintiff for the injuries she has sustained 
 from the wrongful acts of the agent, but it does not punish the 
 defendant for the malicious purpose or intent which prompted 
 the agent's conduct. To render the principal liable in exemp- 
 lary damages for the acts of his agent in the course of his em- 
 ployment, but done with such malicious intent, some misconduct 
 of the former beyond that which the law implies from the mere 
 relation of principal and agent must be shouTi. It is not 
 claimed that the defendant society directed the floor manager to 
 remove the plaintiff, or to act towards any person in the man- 
 ner in which it is alleged he did, or that the defendant has since 
 adopted or approved of his action. In Cleghorn v. Railroad Co., 
 56 N. Y. 44, Chief Justice Church, in delivering the opinion of 
 the court, says: "For injuries hy the negligence of a servant 
 while engaged in the business of the master within the scope of 
 his employment, the latter is liable for compensatory damages ;
 
 EXEMPLARY DAMAGES. 137 
 
 but for such negligence, however, gross or culpable, he is not lia- 
 ble to be punished in punitive damages, unless he is also charge- 
 able with gross misconduct." In the case of Railway Co. v. 
 Prentice, 147 U. S. 101, in which this question is very fully 
 discussed, and the decisions in both the federal and state courts 
 upon this subject reviewed, Mr. Justice Gray, speaking for the 
 court, laid down the rule, as deducible from the authorities, that 
 "guilty intention upon the part of the defendant is required in 
 order to charge him with exemplary or punitive damages." 
 "Exemplary or punitive damages," said he, "being awarded, 
 not by way of compensation, but by way of punishment of the 
 offender, and as a warning to others, can only be awarded 
 against one who has participated in the offense. A principal, 
 therefore, though, of course, liable to make compensation for 
 injuries done by his agent within the scope of his employment, 
 cannot be held liable for exemplary or punitive damages merely 
 by reason of wanton, oppressive, or malicious intent upon the 
 part of the agent." In 1 Sedg. Dam. (8th Ed.) §§ 378, 380, 
 the author, after citing very fully the conflicting authorities in 
 different jurisdictions upon this question, says: "It is the better 
 opinion that no exemplary damages can be had against a prin- 
 cipal for the tort of an agent or servant, unless the defendant 
 expressly authorized the act as it was performed, or approved it, 
 or was grossly negligent in hiring the agent or servant. " In the 
 case at bar, as it appears by the record before us, we think com- 
 pensation for the injury suffered was the full measure of the de- 
 fendant's responsibility, and that there was error in charging 
 the jury that they might award the plaintiff as punitive dam- 
 ages the expenses of trial in excess of taxable costs, and in not 
 charging upon the subject of punitive damages, as requested by 
 defendant. Error, and new trial. The other judges concurred. 
 
 KRUG V. PITASS. 
 
 New York. 1900. 162 N. Y. 154. 
 This is an action to recover damages alleged to have ber-n 
 caused by the publication of an article concerning the plaintiff 
 in a newspaper published in the Polish language at the city of 
 Buffalo, known as the "Pole in America." The defendant Pi- 
 tass was the proprietor of said newspaper, the defendant Slisz 
 the editor, and the article in question was a communication
 
 138 CLASSIFICATION OF DAMAGES. 
 
 signed by the other defendant, Smeja. The jury rendered a 
 verdict in favor of the plaintilf for $6,250, and, the judgment 
 entered thereon having been affirmed in the Appellate Division 
 by a divided vote, the defendants appeal to this court. 
 
 Vann, J. The article in question, according to either trans- 
 lation, was libelous upon its face because it charged the plain- 
 tiff with a want of professional ability and integrity, and thus 
 endangered the gain derived from his vocation. Cruikshank v. 
 Gor'don, 118 N. Y. 178 ; Mattice v. Wilcox, 147 N. Y. 624 ; Flood 
 on Libel & Slander, 114. Referring to him as a physician, it called 
 him a blockhead or fool, and appealed to all the Poles in Buf- 
 falo not to intrust themselves or their families to his professional 
 care when he so hated them that he would not help them if he 
 could. * * * The article was actionable without proof of 
 any damages, for the law imputes malice to the defendants, and 
 presumes that damages were sustained by the plaintiff from the 
 bare act of publication. (Citing authorities.) 
 
 While the plaintiff was thus entitled to recover on account of 
 implied malice, his damages, without further proof, would be 
 limited to such an amount as would fairly compensate him for 
 the actual injury sustained. In order to recover punitive dam- 
 ages also, it was necessary for him to furnish evidence of express 
 malice, or malice in fact, as distinguished from malice implied. 
 Implied malice, in an action for libel consists in publishing, with- 
 out justifiable cause, that which is injurious to the character of 
 another. It is a presumption drawn by the law from the simple 
 fact of publication. Express malice consists in such a publica- 
 tion from ill will, or some wrongful motive, implying a willing- 
 ness or intent to injure, in addition to the intent to do the un- 
 lawful act. It requires affirmative proof, beyond the act of 
 publishing, indicating ill feeling, or such want of feeling as to 
 impute a bad motive. It does not become an issue, when the 
 article is libelous on its face, unless punitive damages are claimed. 
 
 In order to establish express malice, the plaintiff was allowed 
 to show, as against all the defendants, that several years prior 
 to the publication the defendant Pitass had made remarks about 
 him expressing contempt and ill will. There was no connection 
 between these remarks and the other defendants, who neither 
 heard them nor ever heard of them, so far as appears. It is un- 
 disputed that Pitass knew nothing about the article until some 
 time after it had been published. He did not, directly or indi-
 
 EXEMPLARY DAMAGES. 139 
 
 rectly, cause or consent to its publication. Pie was liable only 
 because he o^^Tied the newspaper, and was responsible for the 
 acts of his agents in publishing it. His previous statements did 
 not cause the publication, nor have any effect upon it. Be- 
 tween those statements and the fact of publication there was no 
 connection, and no relation of cause and effect. They did not 
 enter into, or become part of, or have any bearing upon the 
 wrong of which the plaintiff complains. As the article would 
 have been published if they had not been made, they were im- 
 material, for they did not touch the wrongful act, and could not 
 aggravate the damages. 
 
 Punitive damages, which are in excess of the actual loss, are 
 allowed where the wrong is aggravated by evil motives in order 
 to punish the wrongdoer for his misconduct, and furnish a whole- 
 some example. As was said by the Supreme Court of the 
 United States in an important case: "Whenever the injury com- 
 plained of has been inflicted maliciously or wantonly, and with 
 circumstances of contumely or indignity, the jury are not lim- 
 ited to the ascertainment of a simple compensation for the wrong 
 committed against the aggrieved person. But the malice spoken 
 of in this rule is not merely the doing of an unlawful or injur- 
 ious act. The work implies that the act complained of was con- 
 ceived in the spirit of mischief, or of criminal indifference to 
 civil obligations." Railroad Co. v. Quigley, 62 U. S. 202. 
 
 Did Pitass inflict the injury upon the plaintiff maliciously, 
 when he knew nothing about it at the time it was done, and was 
 only liable as owner of the newspaper? Did he, "in a spirit 
 of mischief," conceive the act done by his agent without his 
 knowledge? Could his malicious remarks, made in 1S90, leap 
 forward, and, without knowledge or action on his part, become 
 blended with the act of his agent in 1894? Did his agent, the 
 editor, conceive the act "in a spirit of mischief," which never 
 entered his o\^'n mind, but existed at a remote period in the 
 mind of another? Did the writer of the article act under the 
 influence of words neither spoken in his presence nor communi- 
 cated to him in any way? 
 
 Tn an action for a tort there can be no recovery of punitive 
 damages for general malice, but only for such particular malice 
 as existed when the tortious act was done, and which had some 
 influence in causing it to be done. * * * ]\Ioreover, the mal- 
 ice of one defendant cannot be imputed to another without con-
 
 140 CLASSIFICATION OF DAMAGES. 
 
 noeting proof. ' ' If two be sued, the motive of one must not be 
 allowed to aggravate the damages against the other. Nor should 
 the improper motive of an agent be matter of aggravation 
 against his principal." Bigelow's Odgers on Libel and Slander, 
 296. * * * 
 
 Neither the author nor editor was a party to the malice of the 
 publisher, and his malice did no harm, because it had no effect 
 upon the result. While he was responsible for their acts, they 
 were not responsible for his motives, of which they had no 
 knowledge. He was not responsible for his motives in connec- 
 tion with their acts, because there was no connection. The 
 malice proved in this case did not cause the conduct complained 
 of. The one guilty of malice did not commit the wrong, except 
 through an agent, who knew nothing about the malicious feel- 
 ings of his principal. The principal w^as not liable for general 
 malice, but only for such particular malice as was connected with 
 the publication. The agent was not liable for the general mal- 
 ice of his principal, of which he knew nothing, and which had 
 no connection with the wrong done. The writer of the article 
 was not liable for the malice of another, of which he had never 
 heard, and w^hich had no influence upon the \\Tongful act. Yet 
 the general malice of one out of three defendants, although it 
 had no connection with the wrong, has, as it must be presumed, 
 entered into the verdict of sixty-two hundred and fifty dollars 
 against all, in violation of the rights of each. 
 
 As the malice proved neither caused nor prompted the publi- 
 cation of the libel, the judgment must be reversed and a new trial 
 granted, with costs to abide the event. All concur. 
 
 Judgment reversed, &c. 
 
 HAYWOOD V. HAMM. 
 
 Connecticut, 1904. 77 Conn. 158. 
 
 Action to recover damages for injury by runaway horse. 
 
 BALDvnN, J. The plaintiff, while driving upon a city street, 
 was struck and injured by a runaw^ay horse owned by the de- 
 fendant. In his complaint he alleged that the horse had been 
 carelessly left unhitched, though he had, and the defendant knew 
 he had, a habit of running away. To prove this habit, he was 
 allowed to introduce evidence of declarations made shortly after 
 the accident by the defendant 's son, who had been in charge of
 
 EXEMPLARY DAMAGES. 141 
 
 the horse that day, and had left him standing in the street by 
 the curbstone just before he ran away. In this there was error. 
 One authorized to drive another's horse is not thereby made his 
 agent for the purpose of making admissions as to the habits of 
 the animal. Nor were the declarations part of the res gestce 
 pertaining to the accident. They were subsequent in time, and 
 narrative in character. 
 
 The defendant was called as a witness by the plaintiff, and 
 testified that his son was in charge of the horse on the day in 
 question, and was using it to attend to some of his own business, 
 and probably some of his (the father's), also. This was cor- 
 rectly held to be sufficient prima facie proof of agency. Hoyt 
 V. Danbury, 69 Conn. 341. 
 
 The trial court properly instructed the jury that, to justify a 
 verdict for the plaintiff, it was unnecessary^ for him to prove that 
 , the horse had a habit of running away, which was known to the 
 defendant. It was enough if, whatever its disposition and hab- 
 its, it had been left in the street, unhitched, under circum- 
 stances Avhich, in the opinion of the jury, all things considered, 
 made that a negligent act on the part of one whom the defend- 
 ant had made his agent in the matter. This was substantially 
 what the jury were told. 
 
 They were, however, also instructed that if they were satisfied 
 that the horse had the habit of running away, and the defend- 
 ant knew it, and it was negligently left unhitched or insecurely 
 fastened by the defendant's agent, exemplary damages could be 
 awarded. This was erroneous. Exemplary damages are given 
 as a punishment for an offense, and only against those who par- 
 ticipated in the offense. The tort charged in the complaint was 
 that of the agent, in leaving the horse unhitched. This act the 
 defendant never expressly authorized, approved, or ratified. Nor 
 did he do or say anything, so far as appears, which could have 
 led the agent to suppose that it was authorized. He therefore 
 committed no offense which could be the proper subject of such 
 a punishment. Maisenbacker v. Society Concordia, 71 Conn. 
 369. 
 
 The verdict was one which, under the charge, the jury would 
 well return, and so the motion to set it aside was properly over- 
 ruled. 
 
 There is error, and a new trial is ordered. The other judges 
 concurred.
 
 142 CLASSIFICATION OF DAMAGES. 
 
 For wanton and intentional violation of the rights of others, or under 
 ciromustances of aggravation or oi)])r(;s?ion. as in wantonly destroying 
 shade-trees, exemplary damages may be recovered. Sperry v. Seidel, 
 218 Pa. lU; Huling v. Henderson 161 I'a. 553. 
 
 Where a newspaper article is libellous per se, the law presumes 
 malice, and may award exemplary damages. Tingley v. Times-Mirror 
 Co. 151 Cal. 1. 
 
 See also, for decisions on exemplary damages, Scott v. Donald, 165 
 U. S. 5S; Boydan v. Haberstumpf, 129 Mich. 140; Bullock v. D. L. & W. 
 R. R. Co. 61 N. J. I.. 550; Palmer v. Phila. B. & W. R. R. Co. 218 Pa. 
 114; Haviland v. Chase, 116 Mich. 216; Southern R. R. Co. v. Jordan, 
 129 Ga. 665; Baxter v. Campbell, 17 S. D. 475; Stroud v. Smith (Penn. 
 1900), 45 Atl. Rep. 329; Wells v. Boston & M. R. R. Co. (Vermont, 
 1909), 71 Atl. Rep. 1103. 
 
 Exemplary damages have been regarded by some courts as wrong in 
 theory". See Murphy v. Ilobbs, 7 Col., 541. Still they are allowed in cer- 
 tain cases of tort. ]Vr'Carthy v. Niskern, 22 Minn. 90. They are in the 
 nature of punishment. Milwaukee R. R. v. Arms, 91 U. S. 489; Voltz 
 v. Blackmar, 64 N. Y. 444 ; Johnson v. Allen, 100 N. C. 131. 
 
 Some courts hold that such damages are awarded, not as punishment, 
 but as compensation. Fay v. Parker, 53 N. H. 342 ; Bixby v. Dunlap, 
 56 N. H. 456. The doctrine is discussed generally in Wilson v. Bowen, 
 64 Mich. 141; Hawes v. Knowles, 114 Mass. 518; and in Bank of Com- 
 merce V. Goos, 23 L. R. A. 190. 
 
 5. Excessive Damages. 
 HUCKLE V. MONEY. 
 
 Common Pleas, 1763. 2 Wilson, 205. 
 
 Pratt, Lord Chief Justice. In all motions for new trials, it 
 is as absolutely necessary for the courts to enter into the nature 
 of the cause, the evidence, facts, and circumstances of the case, 
 as for a jury ; the law has not laid down what shall be the meas- 
 use of damages in actions of tort ; the measure is vague and un- 
 certain, depending upon a vast variety of causes, facts, and 
 circumstances ; torts or injuries which may be done by one man 
 to another are infinite ; in cases of criminal conversation, 
 battery, imprisonment, slander, malicious prosecutions, &c., 
 the state, degree, quality, trade, or profession of the party in- 
 jured, as well as of the person who did the injury, must be, and 
 generally are, considered by a jury in giving damages ; the few 
 cases to be found in the books of new trials for torts show that
 
 EXCESSIVE DAMAGES. 143 
 
 courts of justice have most commonly set their faces against 
 them ; and the courts interfering in these cases would be laying 
 aside juries; before the time of granting new trials, there is no 
 instance that the judges ever intermeddled with the damages. 
 
 I shall now state the nature of this case, as it appeared upon 
 the evidence at the trial; a warrant was granted by Lord Hal- 
 ifax, Secretary of State, directed to four messengers, to appre- 
 hend and seize the printers and publishers of a paper called the 
 North Briton, number 45, without any information or charge 
 laid before the Secretary of State, previous to the granting 
 thereof, and without naming any person whatsoever in the war- 
 rant; Carrington, the first of the messengers to whom the war- 
 rant was directed, from some private intelligence he had got that 
 Leech was the printer of the North Briton, number 45, directed 
 the defendant to execute the warrant upon the plaintiff (one 
 'of Leech's journeymen), and took him into custody for about six 
 hours, and during that time treated him well; the personal in- 
 jury done to him was very small, so that if the jury had been 
 confined by their oath to consider the mere personal injury only, 
 perhaps £20 damages would have been thought damages suf- 
 ficient; but the small injury done to the plaintiff, or the incon- 
 siderableness of his station and rank in life, did not appear to 
 the jury in that striking light, in which the great point of law 
 touching the liberty of the subject appeared to them at the trial; 
 they saw a magistrate over all the king's subjects exercising 
 arbitrary power, violating j\Iagna Charta, and attempting to 
 destroy the liberty of the kingdom, by insisting upon the legality 
 of this general warrant before them ; they heard the king 's 
 counsel, and saw the Solicitor of the Treasury, endeavoring to 
 support and maintain the legality of the warrant in a tyran- 
 nical and severe manner ; these are the ideas which struck the 
 jury on the trial, and I think they have done right in giving 
 exemplary damages; to enter a man's house by virtue of a 
 nameless warrant, in order to procure evidence, is worse than 
 the Spanish Inquisition ; a law under which no Englishman would 
 wish to live an hour; it was a most daring public attack made 
 upon the liberty of the subject: I thought that the 29th chapter 
 of Magna Charta, Nullus liber liomo capiafur vel imprisonetur, 
 <&c., nee super eum ihimus, &c., nisi per legale judicium parium 
 suorum vel per legem terrae, &c., which is pointed against arbi- 
 trary power, was violated. I cannot say what damages I should
 
 144 CLASaiFlCATlON OF DAMAGES. 
 
 liave given if I had been upon the jury ; but I directed and told 
 them they were not bound to any certain damages, against the 
 Solicitor-General 's argument. Upon the whole, I am of opinion 
 the damages are not excessive ; and that it is very dangerous for 
 the judges to intermeddle in damages for torts; it must be a 
 glaring case indeed of outrageous damages in a tort, and which 
 all nunikind at tirst blush must think so, to induce a court to 
 grant a new trial for excessive damages. 
 Barthurst J. concurs. Per Curiam. 
 
 New trial refused. 
 
 PETERSON V. WESTERN UNION TELEGRAPH CO. 
 
 Minnesota, 1896. 65 Minn. 18. 
 
 Start, C. J. This is an action for libel, in which the plaintiff 
 recovered a verdict for $5,200, and the defendant appealed from 
 an order denying its motion for a new trial. 
 
 The defendant on January 19, 1893, received at its office in 
 New Ulm, from Albert Blanchard, a message for transmission 
 over its telegraph line to St. Paul, which reads thus: "New Ulm, 
 1-19, 1893. To S. D. Peterson, care Windsor, St. Paul, 
 Minn.: Slippery Sam, your name is pants. [Signed] Many 
 Republicans." The New Ulm operator sent the message over 
 the wires to St. Paul, where it was taken from the wire by the 
 operator, and delivered to the plaintiff in a sealed envelope bear- 
 ing his address as stated in the message. * * * 
 
 3. The damages in this case are so excessive as to conclusively 
 show that the verdict was the result of passion and prejudice. 
 Courts should interfere with an assessment of damages by a jury 
 with great caution, and sustain the verdict unless it appears that 
 it was the result of passion or prejudice. But the verdict in this 
 ease admits of no defense. As correctly stated by the trial court 
 in its instructions to the jury, the sole publication of the libel in 
 this case by the defendant was in making it kno^\•n to its own 
 agent at St. Paul, and the damages of the plaintiff were limited 
 to such as he sustained by reason of the publication to such 
 agent. In view of the fact that such agent could not disclose 
 the contents of the libel without becoming a criminal and expos- 
 ing himself to serious punishment, and that there is no evidence 
 to justify the inference that the contents of the message ever 
 reached the public, except through the plaintiff, a verdict as-
 
 EXCESSIVE DAMAGES. 145 
 
 sessing his damages at $5,200 is simply farcical. It can only be 
 accounted for on the groimd that it was the result of passion or 
 prejudice. 
 
 The trial court seems to have regarded the damages so exces- 
 sive as to justify a new trial, except for the fact that this is the 
 second verdict in the case, and that one reason for setting aside 
 the former verdict was that the damages were excessive. As a 
 rule the court will not set aside a second verdict, * * '"^ but 
 where * * * i\iq verdict is controlled by no reason, sup- 
 ported bj'^ no justice, and is manifestly the result of passion and 
 prejudice, it is the duty of the court to set it aside. * * * 
 Order reversed and a new trial granted. 
 
 The cases show that the court has aurliority to set aside a verdict for 
 excessive damages ; and also tor inadequate damages, and to award a 
 new trial, unless plaintiff accepts a reduction. Chamberlain v. Lake 
 ^Shore R. R. 122 Mich. 477. 
 
 Where a libel charged plaintiff with 1 eiug a swindler, a forger and a 
 thief, and the evidence shows that the jiiiblication was wholly false and 
 that the newspaper took no pains to verify the article, held that a 
 verdict for $1,000 was not excessive. Graybill v. De Young, 140 Cal. 323. 
 
 Where a married woman with a nursing babe was wrongfully ejected 
 from a train, without money and without baggage, held, that a verdict 
 of $.500 was not excessive. Marlow v. S. P. 151 Cal. 383. 
 
 In Cherbuliez v. Parsons, 111 N. Y. Supp. 516, Mr. Justice Stapleton 
 held that where a bright, active and intelligent woman, forty years of 
 age, Was injured and became insane and lost her earning power, a judg- 
 ment for $12,000 was justitied. 
 
 See also Predmore v. Consumers' Light & Power Co., 91 N. Y. Supp. 
 lis, a case of a death of an electrician due to defendant's negligence; 
 also Cassasa v. N. Y. C. & H. R. R. R. Co. 95 N. Y. Supp 648, where a 
 waiter upset a tray of food upon a lady's gown ; Olwell v. Spoors, 126 
 Wis. 905, where a fe:nale clerk, unmarried, lost an eye and recovered 
 $12,000, which the court reduced to $6,000 ; Walker v. Simmons Mfg Co. 
 131 Wis. 554, where plaintiff lost three fingers, and a judgment for 
 $5,000 was sustained; Vogel v. McAuliffe, 31 Atl. Rep. 1, where defend- 
 ant destroyed a furnace in a homestead where there was sickness, and 
 a vertlict for .$400 was sustained; Galloway v. C. M. & St. P. R. R. 57 
 N. W. Rep. 105S, where $10,000 was held not too much for traumatic 
 neurosis ; Strand v. G. N. R. Co. Ill N. W. Rep. 958, where $30,000 was 
 held excessive in case of a young man, 20 years old, badly burned, but 
 whose mental faculties remained unimpaired; Bull v. C. R. I. & P. R. R. 
 116 N. W. Rep. 299, where $680 was held not an excessive judgment for 
 destroying 35 acres of oats, 85 acres of corn and some live stock ; Hock- 
 ing V. Windsor Spring Co. Ill N. W. Rep. 685, where $5,000 was allowed 
 for the loss of an eye; Carpenter v. City of Red Cloud, S9 N. W. Rep. 
 
 10
 
 146 CLASSIFICATION OF DAMAGES. 
 
 G37, where $1 damages was set aside as inadequate wliere a laborer was 
 incapacitated for a year, and spent $30 on doctors ; Cobb v. Simon, 97 
 N. W. Kep. 27G, where $1,000 was allowed for a false imprisonment 
 where there was no violence and no public disgrace. See also Slinger- 
 land V. East Jersey Water Co. 58 N. J. I.. 412. 
 
 The unanimous opinion of the U. S. Sup. Ct. in Railway Co. v I'ren- 
 tice. 147 U. S. 101, constitutes an exhaustive digest upon the question 
 whether a princii)al can be charged with punitive damages for the 
 wanton and malicious conduct of a servant. "The right, to award such 
 damages rests upon a single ground, — wrongful motive." Haines v. 
 Schultz, 50 N, J. L. 4S1. Punitive dam.'iges cannot be awarded where 
 the wrong was done, — as in case of a libel, without defendant's knowl- 
 edge. Publishing Co. v. Kahn, 59 N. J. L. 218. So where plaintiff was 
 ejected from a train without imnecessary violence, held, that punitive 
 damages could not be awai'ded. Fohrman v. Consolidated Traction 
 Co. 63 N. J. L. 393. 
 
 "The term 'compensatory damages' covers all loss recoverable as 
 matter of right. It includes all damage for which the law gives com- 
 pensation, and that gives rise to the term 'compensatory damages.' 
 'Compensatory damages' and 'actual damages' are synonymous terms. 
 Pcuniary loss is an actual damage; so is bodily pain and suffering." 
 Gatzow V. Buening. 106 Wis. 1. 
 
 "Smart money may only be given for malice." Mr. Justice Gaynor in 
 Magagnos v. B. H. R. 128 App. Div. N. Y, 182. See also W. U. Tel. 
 Co. V. Smith, 64 Ohio, 106. 
 
 See Warner v. Southern Pacific Co. 113 Cal. 104, where a passenger 
 was wrongfully ejected and $5,000 was held excessive ; Roche v. Reding- 
 ton, 125 Cal. 174, where $4,000 was held not excessive for breaking the 
 thigh-bone of a street-sweeper in. San Francisco; Rueping v. N. W. Ry. 
 Co. 116 Wis. 625, where $2,500 was held sufficient for breaking the leg 
 of a man 45 years old who soon recovered so as to attend to business as 
 before. In this last case all the precedents are carefully examined. In 
 Bonneau v. North Shore R. R. 152 Cal. 406, a verdict of $7,500 was 
 sustained where plaintiff was injured by derailment of a car which was 
 precipitated into a creek. 
 
 6. Inadequate Damages. 
 ROBINSON V. TOWN OF WAUPACA. 
 
 Wisconsin, 1890. 77 Wis. 544. 
 
 This is an action to recover damages for personal injuries 
 to the plaintiff, alleged to have been caused by a defective 
 highway in the defendant town. The plaintiff was riding with 
 her husband in a vehicle on two wheels, called a "dog-cart,"
 
 INADEQUATE DAMAGES. 147 
 
 drawn by one horse. The trial resulted in a verdict for the 
 plaintiff, assessing her damages at $167. The plaintiff moved 
 for a new trial, mainly on the ground that the damages so as- 
 sessed are inadequte to compensate her for the injury she proved 
 she sustained. The motion was denied, and judgment was there- 
 upon entered for the plaintiff, pursuant to the verdict from 
 which judgment she appeals to this court. 
 
 Lyon, j_ * * * "VVere the damages which the jury 
 awarded the plaintiff so inadequate to compensate her for the 
 injuries she sustained that it was the duty of the Circuit Court 
 to set aside the verdict for that reason? That the court may, 
 and in a proper case should set aside a verdict for inadequacy 
 of damages and award a new trial, is not questioned. This 
 court so held in Emmons v. Sheldon, 26 Wis. 648, and Whit- 
 ney V. Milwaukee, 65 Wis. 409. But, to justify the interfer- 
 ence of the court with the verdict, it must appear from the 
 testimony that the damages awarded are so grossly dispropor- 
 tionate to the injury that in awarding them the jury must have 
 been influenced by a perverted judgment. The court was able 
 thus to characterize the verdict in Emmons v. Sheldon, for the 
 damages there awarded were but $5 (which charged the plain- 
 tiff with the costs of the action), although it was proved that 
 the plaintiff suffered a most serious bodily injury. There seems 
 to have been no controversy as to the extent of such injury. 
 And so in Whitney v. Milwaukee, the undisputed evidence 
 proved that the plaintiff was so seriously injured that the dam- 
 ages awarded by the jury therefor were grossly inadequate 
 compensation, and so small that the plaintiff was chargeable 
 with the costs, which exceeded the damages awarded. This 
 court was able to say that the verdict was perverse, and that 
 (quoting from the opinion delivered by Mr. Justice Orton) 
 "such a verdict is trifling with a case in court and public justice, 
 and unworthy of twelve good and lawful men, and is justly 
 calculated to cast odiom on the jury system and jury trials." 
 
 We adhere to the rule established in those cases. Hence the 
 question is, Does the testimony bring this case within the rule? 
 In the consideration of this question we must assume that the 
 jury found every fact going to mitigate or reduce the damages 
 which they could properly find from the proofs. The testimony 
 tends to show that the plaintiff was to some extent an invalid 
 before she was injured, and that the pain and disability she
 
 148 CLASSIFICATION OF DAMAGES. 
 
 has suffered since the injury shoukl, in part at least, be at- 
 tributed to previous ill-health. Then the circumstances of the 
 injury and her condition presently thereafter tend to show 
 that the injury was not so severe as claimed. There is con- 
 siderable testimony of the above character, and we think it suffi- 
 cient materially to mitigate her claim for damages. Under the 
 testimony, therefore, there is a wide margin for the jury in 
 assessing damages. Probably a verdict for a much larger sum 
 could have been held not excessive. Perhaps, if the plaintiff's 
 testimony as to the extent of her injuries stood alone, it ought 
 to be held that the damages are inadequate. But in view of 
 all the testimony, and of the fact that the verdict has success- 
 fully passed the scrutiny of the learned Circuit judge, we do 
 not feel warranted in saying that it is a perverse verdict. Hence, 
 although we might have been better satisfied had a somewhat 
 greater sum been awarded, we are not at liberty to disturb the 
 verdict. 
 
 By the Court.— The judgment of the Circuit Court is 
 affirmed. 
 
 SAMUELS V. NEW YORK CITY RY. CO. 
 
 New York, 1906. 52 Misc. 137. 
 Davis, J. This is an appeal by plaintiff from a judgment for 
 $5 rendered in his favor by the court without a jury, and from 
 an order denying his motion for a new trial. The main ground 
 of the motion for a new trial was the insufficiency of the dam- 
 ages awarded. The action was brought for breach of contract of 
 carriage. The plaintiff testified that on April 26, 1906, he 
 boarded defendant's car at the corner of Clinton and Stanton 
 streets. The car went north on Avenue A as far as Fourteenth 
 street, and then proceeded west through Fourteenth street. 
 Plaintiff paid his fare and received a transfer. At Fourth avenue 
 the conductor demanded fare from the plaintiff. The plaintiff 
 told the conductor that he had already paid one fare, and re- 
 fused to pay again. He also said that he would show his trans- 
 fer. The conductor thereupon applied vile names to the plaintiff, 
 and. as the plaintiff was trying to get his transfer from his 
 pocket to exhibit it, the conductor got hold of the plaintiff by the 
 coat and pulled him from the center of the ear to the front, 
 punched him. and Avhile the plaintiff was holding on to the front
 
 INADEQUATE DAMAGES. 149 
 
 of the car, he punched him in the face. The ear was full of peo- 
 ple at the time. The plaintiff was corroborated in the main by 
 two witnesses. The defendant offered no testimony. 
 
 We think the damages awarded in this case were altogether 
 insufficient. If the plaintiff's story is true, he was grossly as- 
 saulted, wantonly insulted, and wrongfully ejected from the de- 
 fendant 's car by its servant. The court below believed his story. 
 It was not contradicted. On this evidence the defendant clearly 
 committed a breach of its contract of carriage for which the 
 plaintiff is entitled to recover substantial damage, even though 
 he proved no loss of wages or of time, or physical injuries. He 
 is entitled to recover compensatory damages for injury done to 
 his feelings and for the indignity suffered. Hamilton v. Third 
 Ave. R. R. Co., 53 N. Y. 25 ; Gillespie v. Bklyn. Hgts. R. R. Co., 
 178 N. Y. 347 ; Hines v. Dry Dock, 75 App. Div. 391. 
 
 The judgment should be reversed and a new trial granted 
 with costs to appellant to abide the event. 
 
 All concur. 
 
 CORNISH V. NORTH N. J. STREET RAILWAY CO. 
 
 New Jersey, 190G. 73 X. J. L. 273. 
 
 Garrison, J. By this rule to show cause the plaintiff seeks to 
 set aside a verdict recovered by him upon the ground that the 
 damages are inadequate. The action was for personal injuries. 
 The verdict was for $250. The jury was instructed that the 
 testimony showed that, in expenses and earnings, the plaintiff 
 had lost $390 as a result of his injuries. The charge then pro- 
 ceeded as follows : 
 
 ' ' But his injury produced some benefit to him ; that is, he got 
 a chance to call on the insurance company to pay him $8 a week, 
 which was their contract in case he should receive harm, or meet 
 with an accident while at work, I suppose. At any rate, he got 
 $88 from the insurance company ; so that he lost actually in the 
 neighborhood of $310. From $300 to $325, between those figures, 
 is the amount he is actually out, by reason of this accident, so 
 far as expenditures and loss of earnings are concerned." 
 
 This instruction, by which the jury was permitted to give to 
 the defendant the benefit of the plaintiff's insurance, was 
 erroneous. 
 
 The fund out of which such payments were made was created
 
 150 CLASSIFICATION OF DAMAGES. 
 
 in part by the plaintiff's contributions made under a contract 
 with strangers to the defendant and the tort-feasor was no more 
 entitled to be credited with the sums repaid to the plaintiff under 
 such contracts, than it would be to his withdrawal of his accumu- 
 lations in a savings bank. 
 
 The principle is settled for this court by the opinion in Weber 
 V. Morris & Essex Railroad Company, 36 N. J. Law, 213, where 
 Chief Justice Beasley says: "A person committing a tort cannot 
 set up in mitigation of damages that somebody else, with whom 
 he has no connection, has either in whole or in part indemnified 
 the party injured." 
 
 The rule to show cause is made absolute. 
 
 Where the damages awarded by the jury force the mind to the con- 
 clusion that the jury acted under the influence of a perverted judgment, 
 a new trial must be granted. McNeill v. Lyons, 22 R. I. 7. Where the 
 verdict covers only doctor's bills and loss of time and allows nothing for 
 suffering and disability, a new trial will be granted. Ibid. 
 
 7. Liquidated Damages or Penalty. 
 
 KEEBLE V. KEEBLE. 
 Alabama, 1888. 85 Ala. 552. 
 
 SOMERVILLE, J. The only question in this case is whether the 
 sum of one thousand dollars, agreed to be paid by the appellant 
 Henry C. Keeble, to Richard C. Keeble, the testator of the ap- 
 pellee, as mentioned in the written contract of employment be- 
 tween the parties, is to be regarded by the court as a penalty, 
 or as liquidated damages. * * * The appellant was in the 
 employment of the appellee's testator as a business manager, at 
 very liberal wages, having been a partner with him in the mer- 
 cantile business, under the firm name of R. C. Keeble & Co. 
 Although he was but an employe, having sold to R. C. Keeble 
 his entire interest in the partnership business, he remained os- 
 tensibly a partner. The terms of the employment, reduced to 
 waiting, imposed on the appellant, Henry Keeble, the obligation, 
 among other duties, "to wholly abstain from the use of intoxi- 
 cating liquors," and "to continue and remain sober," giving his 
 diligent attention to the business of his employer, and promis-
 
 LIQUIDATED DAMAGES OR PENALTY. 151 
 
 ing, in the event he should become intoxicated, that he would 
 pay, "as liquidated damages," the sum of $1000, which the 
 testator, Richard Keeble, was authorized to retain out of a cer- 
 tain debt he owed the appellant. The appellant violated his 
 promise by becoming intoxicated, and remained so for a long 
 time, and acted rudely and insultingly towards the customers 
 and employes of the testator, and otherwise deported himself, 
 by reason of intoxication, in such manner as to do injury to the 
 business. 
 
 It is not denied by appellant's counsel that this is a total 
 breach of the promise to keep sober; nor is it argued that the 
 damage resulting from the violation of such a promise can be 
 ascertained with any degree of certainty; nor even that the 
 amount agreed to be paid as liquidated damages, in the event of 
 a breach, is disproportionate to the damages which may have 
 been actually sustained in this case. But the contention seems 
 to be that, inasmuch as it was possible for a breach to occur 
 with no actual damages other than nominal, the amount agreed 
 to be paid should be construed to be a penalty. Unless this view 
 is correct, the application of the foregoing rules to the con- 
 struction of the agreement manifestly stamps it as a stipulation 
 for liquidated damages, and not a penalty. It is argued, in 
 other words, that becoming intoxicated in private, while off duty, 
 would be a violation of the contract, but would be attended with 
 no actual damage to the business of R. C. Keeble & Co. This 
 fact would, in our opinion, except the case from the operation 
 of the rules above enunciated. There are but few agreements of 
 this kind where the stipulation is to do or not to do a particular 
 act, in which the damages may not, according to circumstances, 
 vary, on a sliding scale, from nominal damages to a considerable 
 sum. One may sell out the good-will of his business in a given 
 locality, and agree to abstain from its further prosecution, or, 
 in the event of his breach of his agreement, to pay a certain sum 
 as liquidated damages; as, for example, not to practice one's 
 profession as a physician or lawyer, not to run a steamboat on 
 a certain river or to carry on the hotel business in a particular 
 town, not to re-establish a newspaper for a given period, or to 
 carry on a particular branch of business within a certain dis- 
 tance from a named city. In all such cases, as often decided, 
 it is competent for the parties to stipulate for the payment of a 
 gross sum by way of liquidated damages for the violation of the
 
 152 CLASSIFICATION OK DAMAGES. 
 
 agreement, and for the very reason that such damages are un- 
 t'ortaiu, tiuetiiating and incapable of easy ascertainment. Wil- 
 liams V. Vance, 30 Amer. Rep, 29-31, note ; Graham v. Bickham, 
 1 Amer. Dec. 336-338, note ; 1 Pomeroys Eq. Jur. § 442, note 1. 
 It is clear that each of these various agreements may be vio- 
 lated by a substantial breach, and yet no damages might accrue 
 except such as are nominal. The obligor may practice medicine, 
 and possibly never interfere with the practice of the other con- 
 tracting party; or law, without having a paying client; or he 
 may run a steamboat without a passenger; or an hotel without 
 a guest; or carry on a newspaper without the least injury to 
 any competitor. But the law will not enter upon an investiga- 
 tion as to the quantum of damages in such cases. This is the very 
 matter settled by the agreement of the parties. If the act 
 agreed not to be done is one from which, in the ordinary course 
 of events, damages, incapable of ascertainment save by conject- 
 ure, are liable naturally to follow, sometimes more and some- 
 times less, according to the aggravation of the act, the court will 
 not stop to investigate the extent of the grievance complained 
 of as a total breach, but will accept the sum agreed on as a proper 
 and just measurement, by way of liquidated damages, unless the 
 real intention of the parties, under the rules above announced, 
 designed it as a penalty. 
 
 We may add, moreover, that no one can accurately estimate 
 the physiological relation between private and public drunken- 
 ness, nor the casual connection between intoxication one time 
 and a score of times. The latter, in each instance, may follow 
 from the former, and the one may naturally lead to the other. 
 There would seem to be nothing harsh or unreasonable in stipu- 
 lating against the very source and beginning of the more ag- 
 gravated evil sought to be avoided. The duty resting on the 
 court, in all these cases, is to so apply the settled rules of con- 
 struction as to ascertain the legally expressed and real intention 
 of the parties. Courts are under no obligations, nor have they 
 the power, to make a wiser or better contract for either of the 
 parties than he may be supposed to have made for himself. 
 
 The court below, in our judgment, did not err in holding, as 
 it did, by its rulings, that the sum agreed to be paid the ap- 
 pellee's testator was liquidated damages, and not a penalty. 
 
 Affirmed.
 
 LIQUIDATED DAMAGES OB PENALTY. 153 
 
 SMITH V. BERGENREN. 
 
 Massachusetts, 1891. 153 Mass. 236. 
 
 Holmes, J. The defendant covenanted never to practice his 
 profession in Gloucester so long as the plaintiff should be in 
 practice there, provided, however, that he should have the right 
 to do so at any time after five years by paying the plaintiff 
 $2,000, "but not otherwise." This sum of $2,000 was not liq- 
 uidated damages ; still less was it a penalty. It was not a sum 
 to be paid in case the defendant broke his contract and did what 
 he agreed not to do. It was a price fixed for what the contract 
 permitted him to do if he paid. The defendant expressly cove- 
 nanted not to return to practice in Gloucester unless he paid 
 this price. It would be against common sense to say that he 
 could avoid the effect of thus having named the sum by simply 
 returning to practice without paying, and could escape for a 
 less sum if the jury thought the damage done the plaintiff by 
 his competition was less that $2,000. The express covenant im- 
 ported the further agreement that if the defendant did return 
 to practice he would pay the price. No technical words are 
 necessary if the intent is fairly to be gathered from the instru- 
 ment. St. Albans v. Ellis, 16 East, 352 ; Stevinson 's Case, 1 
 Leon. 324 ; Bank v. Marshall, 40 Ch. Div. 112. 
 
 If the sum had been fixed as liquidated damages, the defend- 
 ant would have been bound to pay it. Gushing v. Drew, 97 
 Mass. 445 ; Lynde v. Thompson, 2 Allen, 456 ; Holbrook v. Tobey, 
 && Me. 410. But this case falls within the language of Lord 
 Mansfield in Lowe v. Peers, 4 Burrows, 2225, 2229, that if 
 there is a covenant not to plough, with a penalty, in a lease, a 
 court of equity will relieve against the penalty; "but if it 
 is worded 'to pay £5 an acre for every acre ploughed up,' there 
 is no alternative ; no room for any relief against it ; no compen- 
 sation. It is the substance of the agreement." See, also, Ropes 
 V. Upton, 125 Mass. 258, 260. The ruling excepted to did the 
 defendant no wrong. In the opinion of a majority of the court, 
 the exceptions must be overruled. 
 
 Exceptions overruled.
 
 15-1 CLASSIFICATION OF DAMAGES. 
 
 TENNESSEE MANUFACTURING 00. v. JAMES. 
 
 Tennessee, 1892. 91 Tenn. 154. 
 
 jNIinnie James, a minor, was an employe of the appellant, a 
 corporation engaged in the manufacture of cotton goods. The 
 contract of employment was in writing ; by one of its provisions 
 it was stipulated that the employe should give two weeks' notice 
 of her intention to quit. It is further provided that in case she 
 should leave without giving two weeks' notice, or fail or refuse 
 faithfully to work during a period of two weeks after giving 
 such notice, then the sum of ten dollars was "agreed upon as 
 liquidated damages due said Tennessee Manufacturing Com- 
 pany at the time of my failure to comply with the terms of this 
 contract, to compensate it for all damages, both actual and ex- 
 emplary, and all loss arising from my failure to carry out the 
 terms of this agreement. ' ' 
 
 Appellee gave notice of her intention to leave, and thereafter 
 worked ten days. But at the end of that time she quit 
 without any excuse. At the time she quit there was due her 
 twenty days wages (amounting to ten dollars), including the 
 ten days after her notice. If the stipulation as to damages was 
 invalid, the company owes her ten dollars ; if valid, then nothing 
 is due her. She sues, by her father as next friend, upon a quan- 
 tum meruit. 
 
 LuRTON, J. "We agree with the Circuit Judge in holding that 
 this contract does not fall within the case of Schrimpf v. Man- 
 ufacturing Co., 86 Tenn., 219. That case concerned a contract 
 construed as stipulating for a penalty in case of a breach. It 
 was held not to be an agreement for liquidated damages, because 
 the forfeiture covered all the wages due at time of breach, re- 
 gardless of amount due, and regardless as to w^hether the arrear- 
 ages were the consequence of the default of the company. It 
 was a contract hard and unconscionable. It preserved no pro- 
 portion between the sum forfeited and the actual damages, and 
 put all employes upon same footing, whether much or little was 
 earned, much or little due, when breach occurred. The dam- 
 ages were to be all that was due, in any case. To one this might 
 have been the wages of months ; to another, the earnings of but 
 a day. But in that case Chief Justice Tumey quoted and in- 
 dorsed the language of Campbell, J., in Richardson v. Woehler, 
 26 ]\rich. 90, where he said: "We have no difficulty in holding
 
 LIQUIDATED DAMAGES OR PENALTY. 155 
 
 that the injury caused by the sudden breaking off of a contract 
 of service by either party involves such difficulties concerning 
 the actual loss as to render a reasonable agreement for stipulated 
 damages appropriate. If a fixed sum, or a maximum within 
 which wages unpaid and accruing since the last pay-day might 
 be forfeited, should be agreed on, and shall not be unreasonable 
 or an oppressive exaction, there would seem to be no legal objec- 
 :tion to the stipulation, if both parties are equally and justly pro- 
 tected." 
 
 Applying these principles to the case for judgment, we have 
 no difficult}' in holding that the stipulation here is for liquidated 
 damages, and not for a penalty, and that the contract is neither 
 unreasonable nor oppressive. "The tendency and preference of 
 the law is to regard stated sums as a penalty, because actual 
 damages can then be recovered, and the recovery limited to such 
 damages. This tendency and preference however, does not 
 exist when the actual damages cannot be ascertained by 
 any standard. A stipulation to liquidate damages in such 
 cases is considered favorably." 1 Sutherland on Damages 490. 
 
 This contract of employment on its face affords no data by 
 which the actual damages likely to result from its non-observance 
 can with any certainty be ascertained. Such a circumstance has 
 been regarded as justifying the courts in holding the sum stip- 
 ulated as liquidated damages. 
 
 The plaintiff in error was a cotton-mill, having in its em- 
 ployment hundreds of hands. The work is divided into many 
 departments. The same material is handled by one set of hands, 
 and put in condition for another, and the second department 
 still further advances its manufacture; and so on, through suc- 
 cessive stages of progress. The evidence shows that each depart- 
 ment is dependent upon that immediately below it. Now, if 
 the operatives of one department quit, or their work is delayed, 
 its effect is felt in all to a greater or less degree. It is also shown 
 that it is not always easy to replace an operative at once, and 
 that the unexpected quitting of even one hand will, to some ex- 
 tent, affect the results throughout the mill. Yet the evidence 
 shows that it would be impossible to calculate with any certainty 
 the precise, actual loss due to an unexpected breach of an em- 
 ploye 's engagement ; though it is shown that there are some de- 
 partments of work where the quitting of a small number of 
 hands, without notice, would stop the entire mill, and throw
 
 156 CLASSIFICATION OF DAMAGES. 
 
 other hundreds out of employment. In this day of great factor- 
 ies, and the consequent division of labor into separate depart- 
 ments, a degree of interdependence among employes exists, which 
 they ought and do recognize, and which makes the obligation of 
 each to the whole, and to the common employer, all the more 
 important. The case is one, then, where the certainty of some 
 damage, and the uncertainty of means and standards by which 
 the actual damage can be ascertained, requires the courts to up- 
 hold the contract as one for liquidated damages, and not as pro- 
 viding for a penalty. The sum fixed is certain. It is pro- 
 portioned to the earning capacity of the employe, and hence 
 presumably with regard to the particular results of a breach in 
 each department. There is no hardship in the agreement requir- 
 ing two weeks' notice. If the operative leaves for good cause, 
 the contract would not apply. If able to work, the pay con- 
 tinues until notice has been worked out. 
 
 That she returned the next day after quitting, and offered to 
 work out her notice, is no compliance. The mischief had been 
 done. She had voluntarily, and without pretence of excuse, or 
 asking to be released, gone off, and left her work standing, and 
 endeavored to get others to go with her. The damages had ac- 
 crued, and, under the facts of this case, appellant was not bound 
 to restore her. 
 
 Reverse. Judgment here for plaintiff in error. 
 
 MONMOUTH PARK ASSOC, v. WALLIS IRON WORKS. 
 
 New Jersey Court of Errors and Appeals, 1893. 
 55 N. J. L. 132. 
 
 The plaintiff sued for work under a sealed contract, the ma- 
 terial part of which is as follows: 
 
 "In case said party of the first part shall [fail] to fully 
 and entirely, and in conformity to the provisions and condi- 
 tions of this agreement, perform and complete the said work, 
 and each and every part and appurtenance thereto, within the 
 time hereinbefore limited for such performance and completion, 
 or within such further time as in accordance with the provi- 
 sions of this agreement shall be fixed or allowed for such per- 
 formance and completion, the said party of the first part shall 
 and will pay to the said party of the second part the sum of one 
 hundred dollars for each and every day that they, the said party
 
 LIQUIDATED DAMAGES OR PENALTY. 157 
 
 of the first part, shall be in default, which said sum of one hun- 
 dred dollars per day is hereby agreed upon, fixed and deter- 
 mined by the parties hereto as the damages which the party of 
 the second part will suffer by reason of such default, and not 
 by way of penalty. And the said party of the second part may 
 and shall deduct and retain the same out of any monej^s which 
 may be due or become due to the party of the first part under 
 this agreement." 
 
 Dixon, j, * * * Taking the case thus perfected the 
 plaintiff urged that the $100 a day was a penalty; and so the 
 trial judge ruled, requiring that the defendant should prove the 
 actual damages and be allowed only for what was proved. To 
 this ruling the defendant excepted. 
 
 In determining whether a sura, which contracting parties 
 have declared payable on default in performance of their con- 
 tract, is to be deemed a penalty or liquidated damages, the gen- 
 eral rule is that the agreement of the parties will be effectuated. 
 Their agreement will, however, be ascertained by considering, 
 not only particular words in their contract, but the whole scope 
 of their bargain, including the subject to which it relates. If, 
 on such consideration, it appears that they have provided for 
 larger damages than the law permits, e. g., more than the legal 
 rate for the non-payment of money, or that they have provided 
 for the same damages on the breach of any one of several stipu- 
 Iati£>ns, when the loss resulting from such breaches clearly must 
 differ in amount, or that they have named an excessive sum in 
 a case where the real damages are certain or readily reducible 
 to certainty by proof before a jury% or a sum which it would 
 be unconscionable to award, under any of these conditions the 
 simi designated is deemed a penalty. And if it be doubtful on 
 the whole agreement whether the sum is intended as a penalty 
 or as liquidated damages, it will be construed as a penalty, be- 
 cause the law favors mere indemnity. But when damages are to 
 be sustained by the breach of a single stipulation, and they are 
 uncertain in amount and not readily susceptible of proof under 
 the rules of evidence, then, if the parties have agreed upon a 
 sum as the measure of compensation for the breach, and that 
 sum is not disproportionate to the presumable loss, it may be 
 recovered as liquidated damages. These are the general prin- 
 ciples laid down in the text-books and recognized in the judicial 
 reports of this State. Cheddick's Executor v. Marsh, 1 Zab.
 
 158 CLASSIFICATION OF DAJMAGPJS. 
 
 463; "SYhitefield v. Levy, G Yrooni, 149; Hoagland v, Segur, 9 
 Id. 230 ; Lansing v. Dodd, .16 Id. 525. 
 
 In the present case the default consists of the breach of a 
 single covenant, to complete the grand stand as described in the 
 approved plans and specifications within the time limited. It 
 is plain that the loss to result from such a breach is not easily 
 ascertainable. The magnitude and importance of the grand 
 Btand may be inl^erred from its cost — $i;3;5,000. It formed a 
 necessary part of a very expensive enterprise. The structure 
 was not one that could be said to have a definable rental value. 
 Its worth depended upon the success of the entire venture. 
 How far the non-completion of this edifice might affect that 
 success, and what the profits or losses of the scheme would be, 
 were topics for conjecture only. The conditions therefore seem 
 to have been such as to justify the parties in settling for them- 
 seh'es the measure of compensation. 
 
 The stipulation of parties for specified damages, on the breach 
 of a contract to build within a limited time, have frequently 
 been enforced by the courts. In Fletcher v. Dycke, 2 T. R. 32, 
 £10 per week for delay in finishing the parish church ; in Duck- 
 worth v. Alison, 1 Mees. & W. 412, £5 per week for delay in com- 
 pleting' repairs of a warehouse ; in Legge v. Harlock, 12 Q. B. 
 1015, £1 per day for delay in erecting a barn, wagon-shed, and 
 granary; in Law v. Local Board of Redditch, (1892) 1 Q. B. 
 127, £100 and £5 per week for delay in constructing sewerage 
 works; in Ward v, Hudson River Building Co., 125 N. Y. 230, 
 $10 a day for delay in erecting dwelling-houses, and in Malone 
 V. City of Philadelphia, 23 Atl. Rep. 628, $50 a day for delay in 
 completing a municipal bridge, were all deemed liquidated dam- 
 ages. Counsel has referred us to two cases of building contracts, 
 where a different conclusion was reached — Muldoon v. Lynch, 
 66 Cal. 536, and Clement v. Schuylkill River R. R. Co., 132 Pa. 
 445. In the former case a statutory rule prevailed, and in the 
 latter the real damage was easily ascertainable and the stipu- 
 lated sum was unconscionable. In the case at bar, we have no 
 data for saying that $100 a day was unconscionable. 
 
 The sole question remaining on this exception, therefore, is 
 whether the parties have agreed upon the sum named as liq- 
 uidated damages. 
 
 Their language seems indisputably to have this meaning. 
 They expressly declare the sum to be agreed upon as the dam-
 
 LIQUIDATED DAMAGES OR PENALTY. 159 
 
 ages which the defendant will suffer; they expressly deny that 
 they mean it as a penalty, and they provide for its deduction 
 and retention by the defendant in a mode which could be applied 
 only if the sum be considered liquidated damages. 
 
 But it is argued that, as the contract authorized the engineer 
 of the defendant to make any alterations or additions that he 
 might find necessary during the progress of the structure, and 
 required the plaintiff to accede thereto, it is unreasonable to 
 suppose that the plaintiff could have intended to bind itself in 
 liquidated damages for delay in completing such a changeable 
 contract. 
 
 But this argument seems to be aside from the present inquiry, 
 which is, not whether the plaintiff became responsible for dam- 
 ages by reason of the non-completion of the grand stand on the 
 day named, but whether, if it did become so responsible, those 
 damages are liquidated by the contract. On the question first 
 stated, changes ordered by the engineer may afford matter for 
 consideration; on the second question, they are irrelevant. 
 
 Certainly the bills of exceptions do not indicate any altera- 
 tions or additions which, as matter of law, would relieve the 
 plaintiff from responsibility for the admitted delay, and con- 
 sequently there may have been ground for considering the de- 
 fendant's damages. If there was, the amount of the damages 
 was adjusted by the contract at $100 per day. 
 
 We think the ruling at the Circuit, on this point, was erron- 
 eous, * * * 
 
 CURTIS V. VAN BERGH. 
 
 New York, 1899. 161 N. Y. 47. 
 This action was brought to recover rent reserved for the use 
 of a certain building in the city of Rochester under a written 
 contract and lease. The defendants pleaded a counterclaim 
 arising out of the following facts, which might have been found 
 by the jury upon the trial: For some years prior to January 
 23, 1896, the defendants had been engaged in the manufacture 
 of plated silverware in the Butts Building in said city, employ- 
 ing a large number of men, and doing a general business as well 
 as furnishing goods upon contract. They were prosperous, and 
 finally outgrew their old quarters. As their lease was to expire 
 on the 1st of July, 1896, in order to meet the rapid gro'wi;h of 
 their business they entered into a contract with the plaintiff's
 
 IGO CLASSIFICATION OF DAMAGES. 
 
 assignor on the 23rd oi Jannary, 1806, whereby he agreed to 
 erect and eomplote a building according to certain plans and 
 specifications, already prepared, and have it ready for occu- 
 pancy on or before July 1, 1896, and to let the same to the de- 
 fendants, with steam heat and power, for the term of five j'-ears 
 from that day, with the privilege of five years more, at the rent 
 reserved of $2,100 a year, which the defendants agreed to pay 
 during the first period named. Said agreement contained, 
 among other covenants on the part of the plaintiff's assignor, 
 the following: "In case the said party of the first part shall 
 be unable for any reason to erect said building according to the 
 plans and specification hereinbefore referred to, and to have 
 the same completed on or before the first day of July, 1896, then, 
 and in that case, said party of the first part shall pay to the said 
 parties of the second part the sum of $50 for each day after 
 July 1, 1896, that the same shall not be completed, as fixed, 
 settled, and liquidated damages of the parties of the second part 
 which they will sustain by reason of the failure of said party 
 of the first part to complete said building at the time hereinbe- 
 fore specified." The plaintiff's assignor did not complete the 
 building for defendants' full occupation until August 3rd, al- 
 though a few days earlier they began to move into the basement, 
 and they did not learn that they could not have the premises at 
 the time agreed upon until the 23rd of June. They w^ere ac- 
 customed to make goods in the summer for their fall and holi- 
 day trade, and to send out their travelers about the middle of 
 August. They relied upon the additional room and new ma- 
 chinery to get their work out in July, but were unable to do 
 so. Owing to the failure to get into the new^ building, they could 
 not make the goods required by their business, or even furnish 
 samples to their agents, and the result was a loss of business 
 instead of an increase, as was expected, on account of the addi- 
 tional facilities. They discharged some of their men, and did 
 not begin to make holiday goods until August 15th. The wages 
 account ran down, from an average of $350 a week in June to 
 about $165 in July. They tried to get more room in the old 
 building, but could not do so, although they finally succeeded 
 in securing the use of their old quarters for the month of July. 
 The new premises contained four times as much room as the old, 
 and with the new machinery, which they ordered in reliance 
 upon the contract, had three or four times the manufacturing
 
 LIQUIDATED DAMAGES OR PENALTY. 161 
 
 capacity of the old. If the building had been ready on the 1st 
 of July, they could have moved in two days, but as it was, they 
 had to move, at an increased expense, small parcels of their 
 machinery and effects at a time, as the partial completion of the 
 building made room for it. The contract required an elevator 
 with a capacity of 2,500 pounds for the exclusive use of defend- 
 ants, but the elevator was not ready until the middle of August, 
 so that they were compelled to hoist their machinery by ropes. 
 The defendants offered on the trial to show a large increase of 
 business during every month of 1896 over the corresponding 
 month of 1895, except July and August, when there was a loss, 
 but the evidence was excluded upon the objection of the plaint- 
 iff, and the defendants excepted. At the close of the evidence 
 the counsel for the plaintiff* moved for the direction of a verdict 
 in his favor for the amount of the rent claimed. The counsel 
 for the defendants asked to go to the jury on the whole case, "on 
 the intention of the parties whether they intended to liquidate 
 the damages," and "on the question as to whether or not the 
 damage sustained by these people is out of all due proportion 
 to the liquidated damages stated in the contract." The trial 
 court refused to submit the case to the jury, and directed a 
 verdict in favor of the plaintiff, the defendants excepting sep- 
 arately to each ruling, and from the judgment of affirmance 
 rendered by the appellate division they have appealed to this 
 court. 
 
 Vann, J. The question presented by this appeal is whether 
 the sum which the plaintiff's assignor promised to pay the de- 
 fendants for each day's delay in completing the building after 
 expiration of the period stipulated is in the nature of a penalty 
 or of liquidated damages. This question depends upon the in- 
 tention of the parties, which is to be gathered from the language 
 used in making the contract, read in the light of the circum- 
 stances surrounding them at the time. Little v. Banks, 85 N. 
 Y. 258, 266 ; Kemp v. Ice Co., 69 N. Y. 45, 58 ; Colwell v. Law- 
 rence, 38 N. Y. 71, 74. The words of the contract are that the 
 sum of $50 shall be paid by the plaintiff's assignor to the de- 
 fendants for each day after the date named for performance 
 "as fixed, settled, and liquidated damages" which the defend- 
 ants "will sustain by reason of the failure * * * to com- 
 plete said building" within the time specified. If this language 
 is given its ordinary meaning, the parties have not only defined
 
 162 CLASSIFICATION OF DAMAGES. 
 
 the sum promised to be paid as liquidated damages, but have ex- 
 pressly covenanted that it is the amount of damage which the 
 defendants would sustain in consequence of the delay, thus lim- 
 iting recovery to the sum named, even if the actual damages 
 should greatly exceed it. The plaintiff, however, contends that 
 the language of the agreement is not conclusive, and that these 
 words should not be given their ordinary meaning, because the 
 per diem payment is so excessive as to shock one's sense of 
 justice, and to warrant the inference that the parties could not 
 have intended what they said, because it would be unreasonable. 
 It is insisted that, as the rent reserved was but $5.75 per day, 
 the sum of $50 for each day's delay is so out of proportion to 
 the probable loss as to bring the contract within that class of 
 cases which hold that where the sum agreed to be paid is so 
 great as to be unconscionable it will be regarded as a penalty, 
 even if the parties have expressly declared their intention to 
 be otherwise. Kemble v. Farren, 8 Bing. 141 ; Jackson v. Baker, 
 2 Edw^ Ch. 470; Spencer v. Tilden, 5 Cow. 144; Niver v. Ross- 
 man, 18 Barb. 50 ; Mott v. Mott, 11 Barb. 134 ; Beale v. Hayes, 
 5 Sandf. 640. These authorities show that the courts have 
 struggled hard against the apparent intention of the parties, 
 in order to relieve the one in default from an improvident bar- 
 gain. It is, however, the law of this state, as settled by this court, 
 that, w^here the language used is clear and explicit to that effect, 
 the amount is to be deemed liquidated damages when the actual 
 damages contemplated at the time the agreement was made 
 "are in their nature uncertain, and unascertainable with exact- 
 ness, and may be dependent upon extrinsic considerations and 
 circumstances, and the amount is not, on the face of the contract, 
 out of all proportion to the probable loss." Ward v. Building 
 Co., 125 N. Y. 230 ; Little v. Banks, 85 N. Y. 258 ; Kemp v. Tee 
 Co.', 69 N. Y. 45, 57 ; Clement v. Cash, 21 N. Y. 253 ; Bagley v. 
 Peddie, 5 Sandf. 192 : Id., 16 N. Y. 469 ; Dunlop v. Gregory, 10 
 N. Y. 241 ; Cotheal v. Talmage, 9 N. Y. 551. 
 
 We thus reach the ultimate question whether the damages 
 within the contemplation of the parties when they made the con- 
 tract in question are so uncertain as to be difficult of ascertain- 
 ment, and, if so, w^hether they are so grossly excessive as to be 
 out of all proportion to the probable loss. In making said con- 
 tract the defendants provided for the lease of a building, to be 
 erected, when there was less than six months' time within which
 
 LIQUIDATED DAMAGES OR PENALTY. 163 
 
 to complete it, and they needed protection from the consequences 
 of failure. They were engaged in a growing and profitable 
 manufacturing business, which required more room and addi- 
 tional machinery. It was necessary to have the new building 
 ready when their old lease expired, or their business would be 
 seriously interrupted, and they would have no place to put either 
 their new or their old machinery. Moreover, they could not 
 manufacture goods for the fall and holiday trade, and they 
 would be subject to summary ejectment from their old quarters 
 for holding over after expiration of their term. It was doubtful 
 whether, at midsummer, they could secure another place, tem- 
 porarily, and, if they could, it would compel them to move twice, 
 at an increased expense and loss of time. Both parties knew 
 that the failure to have the building ready on time would nat- 
 urally result in the loss of business, and either in the temporary 
 occupation of another building or a forcible removal through 
 legal process. These elements of damage, which were neces- 
 sarily within the contemplation of the parties, as reasonable 
 men, when they made the contract, are uncertain, hard to ascer- 
 tin with exactness, and dependent upon extrinsic circumstances 
 and considerations. Who can tell the loss to a large manufactur- 
 ing business, caused by closing the works in a busy season, by 
 the removal of such a business to temporary quarters, or by 
 summary dispossession at the hands of an officer? Who can 
 estimate the injury to a manufacturing plant under such cir- 
 cumstances? What is more difficult to prove than loss of profits 
 or damages to a business? What pecuniary standard is there 
 to measure them by? Little v. Banks, supra. How can the 
 amount be fixed except by agreement ? The damages, under the 
 facts before us, are necessarily hard to establish with exactness, 
 or otherwise, yet they may be so serious as to render it desirable 
 to have the amount agreed upon in advance. The parties them- 
 selves can "come to a more satisfactory conclusion as to the 
 damages than would be possible for a jury. ' ' Jones v. Binf ord, 
 74 Me. 445. This is, therefore, one of those cases where it must 
 be presumed that the parties stipulated for the payment of a 
 fixed sum of money absolutely ' ' from the difficulty of ascertain- 
 ing any exact amount of damages which would be sustained by 
 a breach of the agreement." Chase v. Allen, 13 Gray, 42. 
 
 Is the sum agreed upon out of all proportion to the probable 
 loss, under the circumstances known to the parties when the
 
 164 CLASSIFICATION OF DAMAGES. 
 
 agreement \v;us nuule? Is it so disproportionate that one "would 
 start at the mere mention of it?" which is the test laid down 
 in Cotheal v. Talmage, supra. Of course, the parties did not 
 contemplate a long delay in completing the building, or neither 
 of them would have entered into the contract at all. We can- 
 not say, as matter of law, that $50 a day for the absolute sus- 
 pension of a prosperous manufacturing business for a few days, 
 at the busiest season of the year, accompanied by a temporary 
 removal to other quarters, or a forcible removal to the street, 
 is so excessive as to shock one's sense of justice. It is less in 
 proportion to the actual damages than the amounts sustained 
 in several of the cases cited. Indeed, the actual damages might 
 exceed it. and the covenant thus prove a protection to the one 
 in default. We think the learned trial judge erred in directing 
 a verdict for the plaintiff, and that the judgment below should 
 be reversed, and a new trial granted, with costs to abide the 
 event. All concur. Judgment reversed, etc. 
 
 ILLINOIS CENT. R. CO. v CABINET CO. 
 
 Tennessee, 1900. 104 Tenn. 568. 
 
 The Southern Seating and Cabinet Company entered into a 
 contract with the rector of St. John's Episcopal Church at 
 Petersburg, Va., to manufacture and put in certain church 
 pews at a cost of $524; the contract containing a provision for 
 liquidated damages at $10 per day for each day of delay after 
 May 6, 1898. The pews were manufactured and shipped over 
 the defendant railroad company 's lines ; its agent being notified 
 of the nature of the contract with the church. The pews arrived 
 24 days late, and the cabinet company settled with the church 
 for $344 ; a deduction of $180 being made for the delay. Ther^^ 
 had been a misdirection in the way bill. 
 
 Caldwell, j. * * * Where property is shipped to market 
 for general sale to such purchasers as may be obtained, and the 
 carrier unreasonably and negligently delays the transportation, 
 the measure of damages for that default is the depreciation in 
 salable quality and market value of the property at the place of 
 destination between the time when it should have arrived and 
 when it did in fact arrive. Railroad Co. v. Hale, 85 Tenn. 69 ; 
 Hutchinson on Carriers § 771 ; 3 Wood's Railway Law, 1607; 
 but, if the property is sold at an advantageous price before ship-
 
 LIQUIDATED DAMAGES OR PENALTY. 165 
 
 ment, on condition that it be delivered wathin a certain time, and 
 the carrier, with knowledge of that fact, undertakes the trans- 
 portation, and through negligence fails to make the delivery in 
 time, and the conditional purchaser declines to receive the prop- 
 erty on account of the delay, the liability of the carrier is meas- 
 ured by the difference between the market value of the property 
 when it arrived at the place of destination and the price at which 
 it was conditionally sold before shipment. Deming v. Railway 
 Co., 48 N. H. 455 ; Hutchinson on Carriers § 772. 
 
 The difference between the modes of measuring the carrier's 
 liability in the two cases is due to the difference between its 
 obligations and the consequences of their breach. In the former 
 case the obligation is general, and the loss and liability are gen- 
 eral, while in the latter case the obligation is special, and the 
 loss and liability are special. 
 
 Referring to the carrier's responsibility for the breach of a 
 special contract by delay, a distinguished author has said : ' ' But 
 if the intended use and application of the goods to be carried 
 were expressly brought to the notice of the company's servants 
 at the time they received them, or could be reasonably inferred 
 from circumstances known to them, so that the special use or ap- 
 plication might be fairly considered to be within the contempla- 
 tion of both parties to the contracts, the consignor is entitled to 
 recover the damages naturally resulting from his so being unable 
 to use or apply the goods, since both parties may be said to 
 have made this the basis of the contract." 3 Wood's Railway 
 Law, 1607. 
 
 The contract, breached by the defendant, now before the court, 
 was undoubtedly a special one. The pews in question were man- 
 ufactured after a peculiar design, for a particular church, under 
 a particular contract, of which the defendant was distinctly 
 notified at the time it accepted them for carriage. The con- 
 tract of carriage being special, the liability for its nonobserv- 
 ance was likewise special, and the plaintiff was entitled to re- 
 cover all damages naturally resulting from the breach, whatever 
 the amount may iiave been. 
 
 The trial .judge, in that portion of the charge heretofore 
 quoted, instructed the jury, in substance, that the proper meas- 
 ure of the plaintiff's recovery, if any should be allowed, would 
 be the penalty of its contract with the consignee for the period 
 the pews were delayed beyond the time therein stipulated as the
 
 166 CLASSIFICATION 0I<" DAMAGES. 
 
 required date of delivery, which, the record shows, amounted to 
 $180, the sum actually deducted by the consijjiiee from the pur- 
 chase price of the pews. That was certainly the amount of the 
 plaintiffs real loss, and, in view of the notice given at the time 
 of the shipment, it may fairly and reasonably be assumed to be 
 the exact extent of the injury which the plaintiff and the defend- 
 ant contemplated as the natural result of so long a delay in the 
 delivery of the pews, and therefore the true measure of damages 
 recoverable for the breach. * * * 
 
 The motion to modify is overruled. 
 
 CLYDEBANK ENGINEERING AND SHIPBUILDING 
 
 COMPANY V. DON JOSE RAMOS YZQUIERDO Y 
 
 CASTANEDA. 
 
 L. R. 1905, Appeal Cases, 6. 
 
 The Spanish Government sought to recover penalties incur- 
 red under a contract for the construction of two torpedo-boat 
 destroyers. 
 
 The contracts contained this clause : 
 
 "The penalty for later delivery shall be at the rate of 500 1. 
 per week for each vessel not delivered by the contractors in the 
 contract time." 
 
 The respondents claimed damages for 135 weeks delay or 
 67,500 1. in all, with interest. 
 
 Earl of Halsbury, L. C. : My Lords, this is a case in which 
 a party to an agreement has admittedly broken it, and an action 
 was brought for the purpose of enforcing the payment of a sum 
 of money which, by the agreement between the parties, was 
 fixed as that which the defendants were to pay in the event that 
 has happened. 
 
 Two objections have been made to the enforcements of pay- 
 ment. The first objection is one which appears upon the face 
 of the instrument itself, namely, that it is a penalty, and not, 
 therefore, recoverable as a practical arrangement of the amount 
 of damages resulting from the breach of contract. It cannot, I 
 think, be denied — indeed, I think it has been frankly admitted by 
 the learned counsel— that not much reliance can be placed upon 
 the mere use of certain words. Both in England and in Scot- 
 land it has been pointed out that the Court must proceed ac- 
 cording to what is the real nature of the transaction, and that
 
 LIQUIDATED DAMAGES OE PENALTY. 167 
 
 the mere use of the word "penalty" on the one side, or "dam- 
 ages ' ' on the other, would not be conclusive as to the rights of the 
 parties. It is, I think, not denied now that the law is the same 
 both in England and in Scotland. The different form of its 
 administration gave rise doubtless to the Act of William III. 
 (8 & 9 Will. 3, c. 11), s 8, which, of course, is that upon which 
 English lawyers rely when this question occurs; but that dif- 
 ference only arose from a difference in the mode of administer- 
 ing in this country the two branches of jurisprudence which we 
 call law and equity, while the Scotch judges had full jurisdiction 
 in each of the Courts to administer justice, and in administering 
 justice to administer it according to both branches of juris- 
 prudence. 
 
 We come them to the question :— What is the agreement here? 
 and whether this sum of money is one which can be recovered 
 as an agreed sum as damages, or whether, as has been contended, 
 it is simply a penalty to be held over the other party in terrorem 
 — whether it is, what I think gave the jurisdiction to the Courts 
 in both countries to interfere at all in any agreement between 
 the parties, unconscionable and extravagant, and one which no 
 Court ought to allow to be enforced. 
 
 My Lords, it is impossible to lay down any abstract rule as 
 to what it may or it may not be extravagant or unconscionable 
 to insist upon without reference to the particular facts and cir- 
 cumstances which are established in the individual case. I sup- 
 pose it would be possible in the most ordinary case, where people 
 know what is the thing to be done and what is agreed to be paid, 
 to say whether the amount was unconscionable or not. For in- 
 stance, if you agreed to build a house in a year, and agreed that 
 if you did not build the house for 50 1., you were to pay a million 
 of money as a penalty, the extravagance of that would be at 
 once apparent. Between such an extreme ease as I have sup- 
 posed and other cases, a great deal must depend upon the nature 
 of the transaction — the thing to be done, the loss likely to accrue 
 to the person who is endeavoring to enforce the performance 
 of the contract, and so forth. It is not necessary to enter into 
 a minute disquisition upon that subject, because the thing 
 speaks for itself. But, on the other hand, it is quite certain, and 
 an established principle in both countries, that the parties may 
 agree before hand to say, "Such and such a sum shall be dam- 
 ages if I break my agreement. " The very reason why the parties
 
 168 CLASSIFICATION OF DAMAGES. 
 
 do in fact agree to such a stipulation i.s that sometimes, although 
 undoubtedly there is damage and undoubtedly damages ought to 
 be recovered, the nature of the damage is such that proof of it is 
 extremely complex, dithcult and expensive. If I wanted an 
 example of what might or might not be said and ilone in con- 
 troversies upon damages, unless the parties had agreed before- 
 hand, I could not have a better example than that which the 
 learned counsel has been entertaining us with for the last half- 
 hour in respect of the damage resulting to the Spanish Govern- 
 ment by the withliolding of these vessels beyond tlie stipulated 
 period. Supposing there was no such bargain, and supposing 
 the Spanish Government had to prove damages in the ordinary 
 way without insisting upon the stipulated amount of them, just 
 imagine what would have to be the cross-examination of every 
 person connected with the Spanish Administration such as is sug- 
 gested by the commentaries of the learned counsel: "You have 
 so many thousand miles of coast-line to defend by your torpedo- 
 boat destroyers ; what would four torpedo-boat destroyers do for 
 that purpose? How could you say you are damaged by their 
 non-delivery? How many filibustering expeditions could you 
 have stopped by the use of four torpedo-boat destroyers ? ' ' 
 
 My Lords, I need not pursue that topic. It is obvious on the 
 face of it that the very thing intended to be provided against by 
 this pactional amount of damages is to avoid that kind of minute 
 and somewhat difficult and complex system of examination which 
 would be necessary if you were to attempt to prove the damage. 
 As I pointed out to the learned counsel during the course of his 
 argument, in order to do that properly and to have any real 
 effect upon any tribunal determining that question, one ought to 
 have before one's mind the whole administration of the Spanish 
 Na^y — how they were going to use their torpedo-boat destroyers 
 in one place rather than another, and what would be the relative 
 speed of all the boats they possessed in relation to those which 
 they were getting by this agreement. It would be absolutely 
 idle and impossible to enter into a question of that sort unless 
 you had some kind of agreement between the parties as to what 
 was the real measure of damages which ought to be applied. 
 
 Then the other learned counsel suggests that you cannot have 
 damages of this character, because really in the case of a war- 
 ship it has no value at all. That is a strange and Komewhat 
 bold assertion. If it was an ordinary commercial vessel capable
 
 LIQUIDATED DAMAGES OR PENALTY. 169 
 
 of being used for obtaining profits, I suppose there would not 
 be very much difideulty in finding out what the ordinary use of 
 a vessel of this size and capacity and so forth would be, what 
 would be the hire of such a vessel, and what would therefore be 
 the equivalent in money of not obtaining the use of that vessel 
 according to the agreement during the period v/hich had elapsed 
 between the time of proper delivery and the time at which it was 
 delivered in fact. But, says tbe learned counsel, you cannot 
 apply that principle to the case of a warship because a warship 
 does not earn money. It is certainly a somewhat bold conten- 
 tion. I should have thought that the fact that a warship is a 
 warship, her very existence as a warship capable of use for such 
 and such a time, would prove the fact of damage if the party was 
 deprived of it, although the actual amount to be earned by it, and 
 in that sense to be obtained by the payment of the price for it, 
 might not be very easily ascertained — not so easily ascertained 
 as if the vessel were used for commercial purposes and where its 
 hire as a commercial vessel is ascertainable in money. But, my 
 Lords, is that a reason for saying that you are not to have dam- 
 ages at all? It seems to me it is hopeless to make such a con- 
 tention, and although that would not in itself be a very cogent 
 argument because the law might be so absurd, yet it would be 
 a veiy startling proposition to say that you never could have 
 agreed damages for the non-delivery of a ship of war although, 
 under the very same words with exactly the same phraseology in 
 the particular contract, you might have damages if it was a 
 vessel used for commercial purposes; so that you would have 
 to give a different construction to the very same words according 
 to whether the thing agreed to be built was a warship or a ship 
 intended for commercial purposes. My Lords, I think it is only 
 necessary to state the contention to show that it is utterly un- 
 sound. 
 
 Then there comes another argument which, to my mind, is 
 more startling still : the vessel was to be delivered at such and 
 such a time ; it was not delivered, but the fleet the Spanish Gov- 
 ernment had was sent out at such a time and the greater part of 
 it was sunk, and, says the learned counsel, "If we had kept our 
 contract and delivered these vessels they would have shared the 
 fate of the other vessels belonging to the Spanish Goverment, 
 and therefore in fact you have got your ships now, whereas if we 
 had kept our contract they would have been at the bottom of the
 
 170 CLASSIFICATION OF DAMAGES. 
 
 Atlantic." i\Iy Lords, I confess, after some experience, I do not 
 think I over heard an argument of that sort before, and I do not 
 think I shall often hear it again. Nothing could be more absurd 
 than such a contention, which, if it were reduced to a compend- 
 ious form such as one has in a marginal note, would certainly 
 be a striking example of jurisprudence. I think I need say no 
 more to show how utterly absurd such a contention is. I pass 
 on to the other question. 
 
 Lord Davey and Lord Robertson write concurring opinions. 
 
 Appeal dismissed. 
 
 PYE V. BRITISH AUTOMOBILE COMMERCIAL 
 SYNDICATE LIMITED. 
 
 L. R. I. K. B. 1906, 425. 
 
 BiGHAM, J. This was an action by the plaintiff to recover 
 back a sum deposited by him with the defendants on the making 
 of an agreement on January 29, 1904. The plaintiff says, in the 
 events which have happened he is entitled to be repaid this sum 
 as money in the hands of the defendants to his use. 
 
 The question depends on the construction of the agreement 
 of January 29, 1904. It has been described as an agency agree- 
 ment, but it is not so in point of law. It is an agreement by 
 which the defendant company appointed the plaintiff' to be 
 their sole agent for a certain district in Yorkshire for the sale 
 of Talbot motor cars, and by the same agreement it was stipu- 
 lated that so long as the plaintiff should be their sole agent for 
 that district, they would not deliver any of their motor cars to 
 any person resident or carrying on business in that district. 
 
 The meaning of those two provisions is, as I think, that the 
 defendants say that the plaintiff shall deal in their motor cars 
 in that district, and that no one else shall, so far as the defend- 
 ants are concerned, deal in these cars in that district, and that 
 the plaintiff shall be solely entitled to sell them. It was never 
 intended, apparently, that the plaintiff should sell anything 
 for or on account of the defendants. He was not their agent at 
 all but he himself was to buy from them motor cars at specified 
 prices, to be delivered by the defendants at certain specified 
 times. He was, therefore, to be a buyer from the defendants 
 on the terms that the defendants should not sell any cars through 
 any other person in the district, and if the plaintiff wanted to
 
 LIQUIDATED DAMAGES OR PENALTY. 171 
 
 sell more cars, he was entitled to have them from the defendants. 
 It was an agreement that the defendants should sell to the plaint- 
 iff certain cars at certain prices and at certain dates and if it 
 was broken the defendants were to be at liberty to sell their cars 
 by other means in the district. 
 
 Now what happened was this. There was a breach of the 
 agreement. [The learned judge then narrated the facts on 
 which he came to this conclusion, and continued: — ] The de- 
 fendants then said: We now claim to forfeit the 300 1., the 
 contract having been broken. The question is whether they are 
 entitled to do so. They say that they are, by reason of the last 
 words in clause 7 of the contract. It is said that the effect of 
 those words is not only that the money shall be repaid on pay- 
 ment by the plaintiff of the price of all the goods supplied, but 
 that it shall not be repaid unless they are all paid for. I am 
 not sure whether that construction is right or not. The non- 
 payment might be due to the defendants' conduct, and then 
 they would clearly not be entitled to retain the 300 1. If, for 
 instance, they were to tender cars which were not in accordance 
 with the contract, which the plaintiff, therefore, was not bound 
 to receive, I do not think they would be entitled to retain the 
 deposit. It may be urged that as they had chosen to put an 
 end to the contract, and so to prevent the plaintiff from receiv- 
 ing any more cars, they have themselves put it out of the plaint- 
 iff's power to fulfill the contract, and therefore cannot retain 
 the 300 1. But that is, I think, immaterial, because in my opin- 
 ion the defendants are entitled to retain the 300 1. under clause 8. 
 
 I have to find out from the language there used what was 
 the intention of the parties to the contract. If it were not for 
 the authorities which are supposed to guide judges in endeavor- 
 ing to discover the intention of the parties. I should have no 
 doubt about it. The plaintiff put 300 1. into the hands of the 
 defendants and subscribed an agreement which contains a state- 
 ment that the defendants may keep that sum if he makes de- 
 fault in payment. Those circumstances point only, as it seems 
 to me, to the intention that the defendants should keep the 
 money if the events were to happen which have happened. But 
 it is said that my finding as to the intention of the parties is 
 to be controlled by the rules which have been laid down in the 
 authorities which have been cited. I think the only rule which 
 applies to all cases is that the judge must look to all the cir-
 
 172 CLASSlFICATlOiV OF DAMAGES. 
 
 cumstances of each particular contract — to what the parties did 
 as well as to the hingiuige used— aud nuist say from them what 
 the intention of the parties was. No doubt, notwithstanding the 
 observations of Jessel JM. R. in "Wallis v. Smith, 21 Ch. D. 243. one 
 thing to be taken into consideration is to see whether the sum 
 agreed to be paid is to be paid on the happening of one event or 
 of many events some of which may be of great and some of small 
 importance, and with great deference to the criticism of Jessel 
 M. R. in that case, I think the dictum of Lord Coleridge C. J. 
 in Magee v. Lavell, L. R. 9. C. P. 107, at p. Ill, is right when he 
 said in the course of the argument: "The general principle of 
 law appears to be that where the contract contains a variety of 
 stipulations of different degrees of importance, and one large 
 sum is stated at the end to be paid on breach of performance 
 of any of them, that must be considered as a penalty." I have 
 myself always understood that that is one of the rules which 
 must guide a judge when he has to discover what the intention 
 of the parties was. The only exception I would take to that 
 dictum is the use of the word "must" and I am sure that Lord 
 Coleridge C. J. did not mean to say that if other circumstances 
 existed which would throw light on the intention of the parties 
 in making the agreement a judge might not come to a contrary 
 conclusion. He meant only that this fact was an important 
 matter to take into consideration when seeking to find out the 
 intention of the parties. I think that in that dictum the Chief 
 Justice correctly laid down the law as expressed in the authori- 
 ties. Here I think that this sum of 300 1. is a sum payable upon 
 the happening of one of many possible breaches of different sig- 
 nificance. I have already pointed out that the refusal to pay 
 for a machine the price of which was less than 300 1. might en- 
 tail serious consequences to the defendants outside the non- 
 payment of the price. It might make it necessary for the de- 
 fendants to put an end to the contract and to make different 
 arrangements for the sale of their motor cars in this district, 
 and that fact may well have been in their minds when they en- 
 tered into this agreement. It is impossible to say that the non- 
 payment of the price of a particular motor car is the only dam- 
 age which the defendants would sustain from the plaintiff's re- 
 fusal to accept it. Therefore, although there are circumstances 
 here which seem to bring the case within the rule enunciated 
 by Lord Coleridge C. J., there are other circumstances which
 
 LIQUIDATED DAMAGES OR PENALTY. 173 
 
 prevent that rule from applying. There is also this further 
 fact that this agreement does not merely contain a stipulation 
 that in the event of a breach of the contract the sum of 300 1. 
 shall be paid as liquidated damages. The plaintiff here has 
 himself already paid this sum to the defendants. He has parted 
 with the money, and that circumstance is significant to show 
 that he did not intend to have it back if he committed a breach 
 of the agreement. I pray in aid, although I am not sure that 
 I am entitled to do so, the language of Jessel M. R. in "VVallis v. 
 Smith, supra, where he says: "Where a deposit is to be for- 
 feited for the breach of a number of stipulations, some of which 
 may be trifling, some of which may be for the payment of money 
 on a given day, in all those cases the judges have held that this 
 rule does not apply, and that the bargain of the parties is to 
 be carried out." I have asked council if they could find me 
 some of the cases to which the IMaster of the Rolls there referred, 
 and although I think the cases which have been cited do not 
 clearly support that remark of his, I think that there is some 
 ground for saying thai where the sum of money in question has 
 been deposited, that is a circumstance which must be taken into 
 account by a judge in ascertaining the intention of the parties. 
 As to the exact words used in agreements as to the sum being 
 regarded as liquidated damages, and not as a penalty, it has 
 been laid down that judges ought to disregard the expression 
 "liquidated damages" although it has been knowingly used by 
 the parties. I am not going to shut my eyes to that, but I think 
 the expression was only to he disregarded in plain cases where 
 the plain intention of the parties to be gathered from all the 
 circumstances was that the sum was to be a penalty. That is 
 not the case here, and so I cannot see why I should not give the 
 words of the contract their plain meaning. Those words are 
 "the said deposit shall be forfeited to the company as and by 
 way of liquidated and ascertained damages." 
 
 It is said that I must say that this sum was a penalty because 
 of the use of the word ' ' forfeit. ' ' In my opinion the use of that 
 word does not take away the significance from the plain language 
 of the parties. I hold, therefore, that the plaintiff has forfeited 
 this sum of 300 1., and that the defendants are entitled to judg- 
 ment. Judgment for the defendants.
 
 17-1 CLASSIFICATION OF DAMAGES. 
 
 KEMBLE V. FARREN. 
 
 Common Pleas, 1S29. 6 Bing. 141. 
 
 TiNDAL, C. 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 1., should not be increased to 1000 1. 
 
 The action was brought upon an agreement made between 
 the plaintitf 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 defendant £3 6s. 8d. 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 agree- 
 ment, or any part thereof, or any stipulation therein contained, 
 such party should pay to the other the sura of £1000, 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 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 750 1., which damages 
 the plaintiff contends ought by the terms of the agreement to 
 have been assessed at 1000 1. 
 
 It is, undoubtedly, difficult to suppose any words more pre- 
 cise or explicit than those used in the agreement; the same de- 
 claring not only affirmatively that the sum of 1000 1. should be 
 taken as liquidated damages, but negatively also tliat 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 ascertaining the damages upon any such 
 breach at 1000 1. 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
 
 LIQUIDATED DAMAGES OR PENALTY. 175 
 
 may agree. In many eases, such an agreement fixes that which 
 is ahnost 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 stipulation by either 
 party. If, therefore, on the one hand, the plaintiff had neglected 
 to make a single payment of 3 1. 6s. 8d. per day, or on the other 
 hand, the defendant had refused to conform to any usual regu- 
 lation 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 1000 1. But 
 that a very large sum should become immediately payable, in 
 consequence of the non-payment of a very small sum, and that 
 the former should not be considered as a penalty, appears to 
 be a contradiction 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 uncertain, 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 kind. We cannot, 
 therefore, distinguish this case, in principle, from that of Ast- 
 ley 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 1., to be recovered in his 
 Majesty's Courts at Westminster. Here there was a distinct 
 agreement, that the sum stipulated should be liquidated and 
 ascertained damages ; there were clauses in the agreement, some 
 sounding in uncertain damages, others relating to certain 
 pecuniary payments; 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
 
 J^l' CLASSIFICATION OF DAMAGES. 
 
 (.10 uot m any way break in upon it. The consequence is, we 
 think the present verdict should stand, and the rule for increas- 
 ing the damages be discharged. Rule discharged. 
 
 WILLSON V. MAYOR OF BALTIMORE. 
 
 Maryland, 1896. 83 Md. 20.3. 
 
 Appeal from a pro forma judgment of the Court of Common 
 Pleas of Baltimore City, sustaining a demurrer to plaintiff's 
 declaration. 
 
 :\IcSherry, C. J. The mayor and city council of Baltimore, 
 through the commi.ssioners of public schools, advertised for 
 sealed proposals for furnishing the schools of the city with desks 
 and other necessary appliances. The bids were required to be 
 made out upon forms which contained various stipulations. 
 Among these, it was provided that "the full name and address 
 of a surety must be written on the proposal, and each proposal 
 must be accompanied by a certified check for five hundred dol- 
 lars, * * * said check to be payable to the mayor and city 
 council of Baltimore. If the successful bidders enter into con- 
 tract, with bond, without delay, their checks will be returned, 
 as will those of the unsuccessful bidders. No proposal will be 
 entertained which does not comply with the terms hereof." The 
 appellant filled out one of these forms, specified the prices at 
 which he would furnish the needed supplies, gave the name and 
 address of his surety, and enclosed his certified check for $500, 
 payable to the appellee. His bid being the lowest, he was 
 awarded the contract; but, through no fault of his ov^ti, and 
 though he acted in entire good faith, he was unable, in spite of 
 his efforts, to furnish the signature of the surety he had named 
 in his bid, and he failed, without being at all to blame, to secure 
 any other surety on his bond. Thereupon the commissioners 
 readvertised for bids, these being obtained and accepted. The 
 new bids were for sums much less than those named by the ap- 
 pellant in his bid, and in consequence the city not only lost no 
 money by the failure of the appellant to furnish a bond and to 
 fulfill his contract, but in fact saved a considerable amount. The 
 appellant then demanded the return of the ,$500 which he had 
 deposited with his bid, but the city refused to surrender the 
 money, and claimed the right to hold it. Suit was thereafter 
 brought by him against the city for the recovery of the $500 
 deposited. * * *
 
 LIQUIDATED DAMAGES OR PENALTY. 177 
 
 On the part of the appellant it is insisted that the $500 de- 
 posit was designed to be, and in reality was, a penalty, while 
 on the part of the city it is claimed that the sum named was 
 intended to be, and in fact was, liquidated or stipulated dam- 
 ages, which, for any breach of the appellant's bid or proposal, 
 was to be retained by the city, without reference to whether the 
 city had actually sustained any injury or not. The distinction 
 between a penalty and liquidated damages is of the utmost im- 
 portance, and upon the decision in any given case between them 
 depends the question whether a sum stipulated to be paid upon 
 a breach of the contract shall be treated as a debt, to be arbi- 
 trarily enforced, Avithout regard to the actual loss, or whether, 
 on the other hand, it shall be discarded, to let in an inquiry as 
 to the extent of the damage really sustained in consequence of 
 an omission or refusal to perform the agreement. If the sum 
 designated is held to be liquidated damages, the only evidence 
 necessary to warrant a recovery of that particular amount is 
 that the contract to which it relates has been broken. But, if 
 the sum is regarded as a mere penal sum, its place in the con- 
 tract gives it no weight, and a recovery for a breach of the 
 undertaking will be limited to the extent of the loss or injury 
 actually sustained and proved. In one instance, therefore, the 
 whole of the sum is recoverable, when there has been a default, 
 though the actual damages be nominal, while in the other only 
 such damages as have been really incurred, and are satisfactorily 
 shown, can be assessed and awarded for a breach. It is obvious, 
 then, that the pending controversy turns upon the question 
 whether the $500 deposit is liquidated damages, or a penalty. 
 If it be the former the plaintiff has no right to recover it back, 
 but if it be the latter the city cannot lawfully retain it, except 
 to the extent that actual damage has been sustained. * <> * 
 It is equally well settled that a sum., if it be at all reasonable, 
 and is stipulated to be paid as liquidated damages for the breach 
 of a contract, will be regarded as such, and not as a penalty, 
 where, from the nature of the covenant, the damages arising 
 from its breach are wholly uncertain, and cannot be ascertained 
 upon an issue of fact. A common instance is the case of agree- 
 ments between professional men, binding a retiring partner, or 
 an apprentice or clerk, not to interfere with the business of the 
 other. But a stipulation to pay a specified sum upon the non- 
 performance of a contract is regarded as a penalty, rather than 
 
 12
 
 178 CLASSIFICATION OF DAMAGES. 
 
 as liquidated damages, if the iutentiou of the parties as to its 
 effect is at all doubtful, or is of equivocal interpretation. 
 * * * And such a stipulation is generally regarded as a 
 penalty, in the absence of a clear indication of a contrary in- 
 tention by the parties at the time the contract was executed, 
 where the agreement is certain, and the damages for a breach 
 thereof are easily and exactly ascertainable. Burrell v. Daggett, 
 77 Me. 545 ; Brown v. Bellows, 4 Pick., 179. Finally, the tend- 
 ency of late years has been to regard the statements of the 
 parties as to liquidated damages in the light of a penalty, un- 
 less the contrary intention is unequivocally expressed, so that 
 harsh provisions will be avoided, and compensation alone will 
 be awarded. Gammon v. Hone, 14 Maine 250; Leggett v. Ins. 
 Co., 53 N. Y. 394. 
 
 Now, it w^ll be observed that the contract between the appel- 
 lant and the appellee, evidenced by the bid filed and accepted, 
 has not a word in it descriptive of the $500 deposit as either 
 liquidated damages or a penalty. It is clear, therefore, that the 
 parties themselves have not, by any term or povision of the 
 agreement, declared that the deposit shall be either the one or 
 the other, but have left the question at large ; and it is equally 
 clear that there is nothing in the subject-matter of the agree- 
 ment which imperatively requires that the deposit be character- 
 ized as liquidated damages, especially as the decided inclination 
 of the court, in doubtful cases even, is to treat the stipulated 
 sum as merely a penalty. Indeed, there is no explicit forfeit- 
 ure of the deposit at all. The contract provides simply that 
 "if the successful bidders enter into contract, with bond, with- 
 out delay, their checks will be returned;" but it is nowhere ex- 
 pressly declared that a failure to enter into bond shall entitle 
 the city to the whole amount of the deposit, or to any part of it, 
 though it is palpably implied that so much of it as will be a 
 just compensation for any loss that may result to the city from 
 the failure of the bidder to furnish the bond was, in view of 
 the whole subject-matter, designed by the parties to be applied 
 by the city to its own reimbursement. But beyond this, the 
 exact amount of loss which would result to the city by the failure 
 of a bidder to give the required bond is capable of definite 
 ascertainment. A failure to give the bond is a breach of the 
 contract, and the damages which would result from that breach 
 would be the amount the city paid, if anything, in excess of the
 
 LIQUIDATED DAMAGES OR PENALTY. 179 
 
 amount of the unexecuted bid, and also the expenses of a read- 
 vertising for new bids. These elements of damage are neither 
 uncertain, nor difficult of ascertainment by a jury, and this fact 
 is one of the recognized tests resorted to for distinguishing be- 
 tween liquidated damages and a penalty. Geiger v. Eailroad 
 Co., 41 Md. 4. Not only, then, is there no provision expressly 
 declaring this deposit to be liquidated damages, but to treat 
 it as such would require the superaddition, by implication, of 
 a distinct term to the contract, which is not permissible, and the 
 reversal of the doctrine that courts lean strongly against up- 
 holding a specified sum as liquidated damages where such an 
 interpretation is of doubtful accuracy and leads to manifest in- 
 justice. That an interpretation which treats this deposit as 
 liquidated damages would, to say the least, be of doubtful ac- 
 curacy, cannot be disputed. That it would be unjust, in this 
 particular case, in its results, is scarcely open to discussion. 
 The appellant is conceded to have acted in perfect good faith. 
 The city has not only not lost anything by his failure to give the 
 bond, but it has actually gained thereby a considerable sum ; and 
 it would be unconscionable (Cutler v. How, 8 Mass. 257) under 
 these conditions, for it to retain the $500 as stipulated and liq- 
 uidated damages for a technical breach which has occasioned 
 no appreciable injury. We discover nothing on the face of the 
 contract, nothing in all the surrounding circumstances on the 
 subject-matter, and nothing in the rules of law, which will jus- 
 tify us in holding this deposit to be liquidated damages, unless 
 the remaining proposition to be considered sustains the appellee 's 
 contention. That proposition is that where a sum is deposited, 
 either with a third person, or with the other party to the con- 
 tract, it is invariably treated as liquidated damages; and the 
 cases of Wallis v. Smith, 21 Ch. Div. 250, Hinton v. Sparkes, 
 L. R. 3 C. P. 161, and some others, have been referred to. 
 * * * These cases, and others to which allusion might be 
 made, relate to a different class of contracts. Where parties 
 contract, as they frequently do by a condition of sale, that the 
 deposit money shall be forfeited if the purchaser fail to carry 
 out his contract, the deposit cannot, nor can any part of it, be 
 recovered back on the ground that the forfeiture was in the 
 nature of a penalty, and the actual loss to the vendor was less 
 than the amount of the deposit. In fact, the cases distinguish- 
 ing between a penalty and liquidated damages do not apply to
 
 ISO CLASSIFICATION OF DAMAGES. 
 
 a pocuuiary deposit, which is in reality not a pledge, but a pay- 
 ment in part of the purchase money, Wood, Mayne, Dam. § 245 ; 
 Sugd. Ven. & Pur. c. 1, §§ 3, 18. * * * 
 
 It is stated with great clearness and accuracy by Mr. Brantly, 
 in his admirable work on the Law of Contract (page 192), that, 
 "when it is provided that the sum deposited in part perform- 
 ance of the contract is to be forfeited upon failure of the party 
 to complete it, such sum, if not excessive, is liquidated dam- 
 ages." Conversely, if the deposit be not made in part perform- 
 ance of the contract, but be collateral to the contract, and a mere 
 guaranty that its provisions will be observed, and if the making 
 of the deposit is not a part of the thing to be done under or in 
 execution of the contract, but is required simply and solely as 
 a condition precedent to entering into the contract, which dis- 
 tinctly relates to something else, then, obviously, such a deposit 
 would not be treated as liquidated damages merely because it 
 is a deposit, but would be either liquidated damages, or a pen- 
 alty, as the rules applicable to such a question might cause the 
 court to determine. 
 
 We are not prepared to expand the doctrine relating to de- 
 posits made on the purchase of land by applying it to contracts 
 of the character now before us. The deposit in the case at bar, 
 when made, was not part of a sum ultimately payable, under 
 the contract, to the city by the appellant, nor was it set apart, 
 either in express terms or impliedly, to meet an obligation aris- 
 ing out of a purchase ; but it was designed to serve precisely the 
 same purpose that a guaranty or other indemnity would have 
 done, — to save the city harmless from any actual loss which 
 might arise or groAv out of a failure on the part of a bidder to 
 furnish a bond conditioned for the performance of his accepted 
 proposal. It would introduce a sweeping departure from estab- 
 lished principles to hold, as an unbending rule applicable alike 
 to all contracts, no matter what their nature or subject, that a 
 deposit made to secure their due performance must invariably 
 be treated as liquidated damages, and never as a penalty. Such 
 a rule w^ould, in its application, ignore or arbitrarily override 
 all other principles of interpretation, and would force courts to 
 regard as liquidated damages sums which obviously would not, 
 according to the canons of construction to which we have alluded, 
 ordinarily be so considered. * * * 
 
 Finally it was insisted that when an agreement is in the al-
 
 LIQUIDATED DAMAGES OR PENALTY. 181 
 
 ternative — to do some particular thing or to pay a given sum 
 of money — the court will hold the party failing to have had his 
 election, and compel him to pay the money. Railroad Co. v. 
 Reichert, 58 Md. 278, and Sedg. on Dam. § 423, were relied on 
 to support this doctrine. The case in 58 Md. certainly does lay 
 down the rule contended for, but the state of facts to which 
 the rule was there applied is totally different from the facts 
 of this case. There Reichert owned a coal yard, and a trestle 
 connecting it with a railroad. Another railroad company, need- 
 ing part of his land for the construction of its road, condemned 
 it. The construction of its road required that the trestle should 
 be removed. The jury of condemnation awarded $600 damages, 
 and further awarded that the condemnmg road should erect for 
 Reichert another trestle, and then provided in the inquisition 
 that upon its failure to comply it should pay the further sum 
 of $1,500. This inquisition was accepted by both parties, and 
 was ratified by their consent. The railroad company then 
 neglected to build the trestle, and Reichert brought suit. This 
 court held that the award of $1,500 was not a penalty ; that the 
 jury of inquisition had fixed the sum to be paid if the company 
 failed to construct the trestle; and that the alternative thus 
 given and accepted by the agreement of the parties bound the 
 company to perform the conditions upon which it took Reichert 's 
 property, or to pay the sum which the jury fixed, and the parties 
 agreed to, in lieu of a compliance with the inquisition. There is 
 in the pending case no alternative agreement at all, — certainly 
 no express or unequivocal one; and, before the doctrine sanc- 
 tioned in 58 Md. can be applied, there must, by sheer construc- 
 tion, be imported into the proposal or bid which the appellant 
 made a term that is not there now, — a stipulation either to sign 
 the bond with a surety, or to pay $500. For the purpose of de- 
 claring the deposit to be liquidated damages, the contract actually 
 made would have to be changed into a totally different agree- 
 ment. This, of course, cannot be done. * * * 
 
 Judgment reversed with costs above and below and new trial 
 awarded.
 
 182 CLASSIFICATION OF DAMAGES. 
 
 CAESAR u. RUBINSON. 
 
 New York. 1903. 174 N. Y. 492, 
 
 O'Brien, J. This was an action to recover a sura of money 
 wliicli was deposited with the defendants under the following 
 circumstances and conditions: On the 27th of January, 1899, 
 the defendants entered into a written agreement with certain 
 persons, named Goldberg and Goldstein, which took the form of 
 a lease, whereby the defendants, as landlords, undertook to erect 
 upon their lands in the city of New York a three-story brick 
 building, containing stores and a dance hall, with gallery, and 
 lodge and meeting rooms. Goldberg and Goldstein, on their 
 part agreed to take possession as tenants of the property as soon 
 as the premises were ready for use and occupation, which was to 
 be not later than March 1, 1900, and to continue in possession 
 for a term of 10 years. They were to pay an annual rental of 
 $3,300, in monthly payments of $275 on the 1st day of each 
 month. There was no provision in the lease for any security 
 for the payment of the rent, or for the carrying out of the agree- 
 ment on the part of the owners, but the instrument contained the 
 following provisions: "The said tenants shall deposit, and have 
 deposited, with said landlords the sum of one thousand dollars, 
 the receipt whereof is hereby acknowledged, as security for the 
 faithful performance of this agreement on their part, and in 
 case of any breach thereof by said tenants said amount shall be 
 paid and retained by said landlords as liquidated damages for 
 such breach, but in case the actual damages suffered by said 
 landlords through such breach shall be greater than said sura 
 of one thousand dollars then said sum shall be applied on ac- 
 count of such damage and said tenants be still liable for the 
 balance thereof. Interest at the rate of six per cent, shall be 
 paid and allowed by the landlords to the tenants on said sum 
 of one thousand dollars from the beginning of the term, such 
 interest to be deducted from the monthly rent to be paid as 
 hereinbefore provided; and that this agreement and all coven- 
 ants thereunder shall be well and faithfully kept and performed 
 by said tenants, then said sum shall be held by said landlords, 
 and shall be applied in part payment of the rent for the last 
 four months of the term hereinbefore provided for. * * * 
 The said landlords do hereby covenant that said tenants on pay- 
 ing the said yearly rent and on performing the conditions and
 
 LIQUIDATED DAMAGES OR PENALTY. 183 
 
 covenants hereinbefore provided for shall and may peaceably 
 and quietly have, hold and enjoy the said demised premises for 
 the time aforesaid. And in case said landlords shall fail to erect 
 said buildings hereinbefore provided for, then said landlords 
 shall pay to said tenants the sum of one thousand dollars in ad- 
 dition to the deposit to be returned as the agreed, settled, and 
 liquidated damages." Everything appears to have been car- 
 ried out in the first instance according to the agreement. The 
 building was erected, and the tenants took possession of the 
 same, continued to occupy the premises, and to pay rent until 
 about the 1st of j\lay, 1901, at which time they defaulted in the 
 payment of $45 of the rent for the previous month. Thereupon 
 the defendants, as landlords, instituted summary proceedings 
 against the tenants under the statute, and dispossessed them. 
 The tenants subsequently assigned to this plaintiff the $1,000 
 which had been deposited pursuant to the provisions of the lease ; 
 and this action was commenced to recover that amount, less the 
 $45, balance of rent unpaid at the time the tenants were dis- 
 possessed. At the trial, judgment was directed in favor of the 
 plaintiff ; but the Appellate Division, upon appeal, by a divided 
 court, reversed the judgment and granted a new trial. 
 
 The principal question involved upon this appeal is whether 
 the $1,000 deposited by the tenants as above set forth is to be 
 regarded, under the circumstances, as liquidated damages which 
 the landlords were entitled to retain upon entering into pos- 
 session of the demised premises. The circumstance that the 
 deposit is described in the lease as liquidated damages for a 
 breach of the agreement is not at all conclusive. The character 
 of the deposit — whether liquidated damages or a penalty — de- 
 pends upon the intention of the parties, as disclosed by the situ- 
 ation and by the terms of the instrument. The deposit is not 
 necessarily to be regarded as liquidated damages, although it is 
 expressly so stated in the instrument. Whether it is that or a 
 penalty depends upon the nature of the transaction and the 
 intention of the parties. This has been frequently held in the 
 case of an ordinary lease, and where the amount was largely out 
 of proportion to the damages suffered by the breach of the lease. 
 Chaude v. Shepard, 122 N. Y. 397. A provision in a contract 
 such as that now under consideration will be treated as liqui- 
 dated damages only in those cases where from the nature of 
 the transaction, the actual damages consequent upon a breach of
 
 184 CLASSIFICATION OF DAMAGES. 
 
 the contract arc incapable of accurate measurement, or where 
 the sum specified in the instrument is not out of all proportion 
 to any damages which could possibly arise from a breach. In 
 the cases where these general features do not exist, the tendency 
 of the courts is to treat the stipulation not as providing for liqui- 
 dated damages, but in the nature of a penalty. Where the 
 language of such a provision specifying the amount of damages 
 to be paid in case of a breach of the contract is clear and ex- 
 plicit to that effect, the amount is to be deemed liquidated dam- 
 ages when the actual damages contemplated at the time the 
 agreement was made are in their nature uncertain and unas- 
 certainable with exactness, and may be dependent upon extrinsic 
 considerations and circumstances, and the amount is not, on the 
 face of the contract, out of all proportion to the probable loss. 
 Curtis V. Van Bergh, 161 N. Y. 47 ; Ward v. Hudson River Bldg. 
 Co., 125 N. Y. 230. 
 
 The only breach of the lease which the defendants assert as 
 a groimd for retaining the deposit is the omission of the ten- 
 ants to pay the $45 of the monthly rent. In all other respects 
 the covenants of the lease were kept and performed. In order 
 to uphold the judgment, we must hold that it was the intention 
 of the parties when making the contract that for such a breach 
 the entire deposit was to be forfeited to the landlords. There 
 is no inherent difficulty in measuring the legal damages which 
 the landlord sustained in a case where the tenant omits to pay 
 the rent, and is for that reason dispossessed. The rule of dam- 
 ages in such eases is quite well settled. It is not claimed in this 
 case that the landlords sustained any other damages beyond the 
 loss of the rent, and that was allowed at the trial and deducted 
 from the deposit. In the absence of anything in the record to 
 the contrary, the presumption is that the landlord resumed the 
 possession of the demised premises, or relet them for the same 
 or for a larger rental; and, if so. it is difficult to see why he 
 should be entitled to have the leased premises and the deposit 
 at the same time. He was not bound to take possession, but 
 could have exhausted the deposit by applying it upon the arrears 
 of rent from time to time as it fell due. But having elected to 
 re-enter, it would seem to be unjust to permit him to have the use 
 of the premises, and the deposit of $1,000 besides, especially 
 where there is no claim that any damages were sustained be- 
 yond the loss of the unpaid rent. This is therefore a case where
 
 LIQUIDATED DAMAGES OR PENALTY. 185 
 
 the damages sustained by reason of the breach of the lease in 
 the failure to pay the stipulated rent could have been easily as- 
 certained; and, when ascertained, it is out of all proportion 
 to the deposit retained under the claim that it was liquidated 
 damages. It is declared by the stipulation in the lease that the 
 amount specified therein should not be regarded as liquidated 
 damages if the landlord's loss exceed that sum, but in such event 
 it should be applicable upon the actual damages, whatever 
 they were found to be. It is difficult to believe that the par- 
 ties intended that the deposit should have one character as to 
 the landlord, and another character as to the tenant ; that as to 
 the former it w^as not liquidated damages, but was as to the lat- 
 ter. A provision in a lease in regard to liquidated damages, such 
 as the one in question, that is not mutually binding on both 
 parties, should not be enforced against one of them unless the 
 facts and circumstances are such as to make it entirely clear 
 that such was the purpose of the stipulation. I am unable to 
 distinguish this case in principle from those in which this court 
 has passed upon provisions of a similar character in leases or 
 agreements between landlord and tenant. Chaude v. Shepard, 
 supra ; Scott v. Montells, 109 N. Y. 1. In these cases it was held 
 that the deposit was intended as security for the performance 
 of the covenants of the lease, and not as liquidated damages. 
 
 The entry of the landlord under the warrant issued upon the 
 judgment in the proceedings to dispossess the tenants for failure 
 to pay the $45 canceled the lease, and annulled the relation of 
 landlord and tenant. "When the landlord elected to assert that 
 right, he waived all claim to the deposit, except so far as it was 
 necessary to apply it in payment of rent then due or accrued. 
 Code Civ. Proc. § 2253; 2 Taylor's Landlord & Tenant, § 725. 
 
 If these views are correct, it follows that the landlord was not 
 entitled, under the circumstances of this case, to retain the de- 
 posit. The order of the Appellate Division should therefore be 
 reversed, and the judgment of the trial court affirmed, with costs. 
 
 Parker, C. J., and Gray, Martin. Vann, Cullen, and Werner, 
 JJ., concur. 
 
 Order reversed, etc. 
 
 "Mere inequality," say Lord Cliief Justice Eldon, in Astley v. Weldon. 
 2 Bros. & P. 340, "is not ground of relief; ttie inequality must be so 
 gross that a man would start at the bare mention of it." 
 
 "If a party agree.s to pay flOOO on several events, all of which are
 
 186 CLASSIFICATION OF DAMAGES. 
 
 capable of accurate valuation, the sum must be construed as a penalty 
 and not as liquidated damages." Baron Parke in Atkins v. Kinnier, L. 
 It. 4 Exch. 770. 
 
 •'Courts of justice will not recognize or eiiforce a contract, or any 
 stipuation of a contract, clearly unjust and unconscionable." Chbis- 
 TiAxcY, J. in Jaquith v. Hudson, 5 Micb. 323. 
 
 "A sum, if it be at all reasonable, and is stipulated to be paid as 
 liquidated damages for the breach of a contract, will be regarded as 
 such, and not as a penalty, where, from the nature of the covenant, the 
 damages arising from its breach are wholly uncertain, and cannot be 
 ascertained upon an issue of fact." McShebry, C. J. in Willson v. 
 Baltimore, S3 Md. 203. 
 
 In an action on a replevin bond it was held by Peters, J. in Wyman 
 V. Robinson, 73 Me. 3S4, that when the damages exceed the penalty of 
 the bond, the recovery may exceed the itenalty so far as to include in- 
 terest. 
 
 The amount of damages may be fixed by the parties in advaace. The 
 court will look into the question whether it is liquidated damages. "The 
 name by which it is called is of but slight weight." Kunkle v. Wherry, 
 189 Pa. 198. 
 
 See also, on the subject of penalty and liquidated damages, Burgoon 
 V. Johnson, 194 Pa. 61; Watson v. Russell, 149 N. Y. 388; Emery v. 
 Boyle, 200 Pa. 249. 
 
 "If the sum would be very enormous and excessive considered as 
 liquidated damages, it shall be taken to be a penalty though agreed to 
 be paid in the form of a contract." — Lord Eldon, C. J. in Astley v. 
 Weldon, 2 Bos. & P. 346. 
 
 Clauses of liquidation will be sustained if limited to breaches that 
 are of an uncertain nature and amount. Donovan v. Hananer, 32 
 rtah 317. 
 
 Though the word penalty is used in the contract, and a single act is 
 forbidden, still, if upon a breach it is not possible to estimate the dam- 
 ages, the sum named may be regarded as liquidated damages. Robin- 
 8on v. Centenary Fund, 68 N. J. L. 723. 
 
 "Where one party to a contract is himself responsible, in whole or In 
 part for a delay in completion at the date fixed by the contract, the pro- 
 vision for liquidated damages Is abrogated, the question becomes one of 
 completion within a reasonable time * * * and actual damages only 
 can be recovered." — Dowling, J. in Holland Torpedo Boat Co. v. Nixon, 
 61 Misc. 469. 
 
 "Although parties in express and explicit terms provide that the sum 
 agreed to be paid shall be liquidated damages, and not a penalty, the 
 courts have held, notwithstanding such an expression of intent that the 
 sum was a penalty." City of New Britain v. New Britain Tel. Co. 74 
 Conn. 32G.
 
 PROSPECTIVE DAMAGES. 187 
 
 8. Prospective Damages. 
 BOWERS V. MISSISSIPPI & R. R. BOOM CO. 
 
 Minnesota, 1899. 78 Minn. 398. 
 
 The defendant, in 1887, placed certain piling in the river op- 
 posite plaintiff's farm, which turned the current from its natural 
 -course and upon plaintiff's land, washing away the shores. The 
 plaintiff brought an action in 1895, and recovered a judgment, 
 which was satisfied. In that action prospective damages were 
 not claimed nor assessed. Four more acres since that time have 
 been washed away, and this action was brought in 1899 to re- 
 cover damages therefor. 
 
 Start, C. J. * * * The plaintiff was bound to recover in 
 his first action all the damages which he was entitled to ; and if 
 he was then entitled to recover for all injuries, past, present, and 
 future, to his land, by reason of the acts of the defendant in 
 placing and maintaining the piling in the river, the judgment in 
 the prior action is a bar to this one ; for the plaintiff, if such 
 were the case, could not split up his cause of action, and recover 
 a part of his damages in the first action and then bring this 
 action for the rest of them. The defendant claims that the first 
 action was just such a case, and that the trial court correctly 
 held the judgment to be a bar. 
 
 The test, whether an injury to real estate by the wrongful 
 act of another is permanent in the sense of permitting a recov- 
 ery of prospective damages therefor, is not necessarily the char- 
 acter, as to permanency, of the structure or obstruction causing 
 the injury, but the test is whether the whole injury results from 
 the original wrongful act, or from the wrongful continuance of 
 
 the state of facts produced by such act. (Citing authorities.) 
 * * * 
 
 The adjudged eases are agreed as to the abstract rule that, 
 where the injury wholly accrues and terminates when the wrong- 
 ful act causing it is done, there can be but one action for the 
 redress of the injury. But, where the injury is in the nature of 
 a continuing trespass or nuisance, successive actions may be 
 maintained for the recovery of the damages as they accrue. In 
 the application of the rule, however, the authorities are some- 
 what conflicting. 
 
 Fortunately, we are relieved from any uncertainty as to the
 
 188 CLASSIFICATION OP DAMAGES. 
 
 application of the rule to the facts of this case by the decisions 
 of this court ; for they conclusively establish the proposition that 
 the acts of the defendant, in placing and maintaining the piling 
 in the river, whereby the water, logs, and ice were driven upon 
 the shore of the plaintiff's land, were in the nature of a continu- 
 ing trespass or nuisance, and that successive actions may be 
 brought for the damages as they accrue. * * * 
 
 The act of the defendant in the ease at bar, in placing and 
 maintaining the piling in the river was, whatever it may have 
 been as to the public, as to the plaintiff a continuing trespass 
 or nuisance, and he was entitled to bring successive actions to 
 recover his damages as they accrued. It follows that the trial 
 court erred in holding the former judgment a bar. 
 
 Order reversed and a new trial granted. 
 
 CEIGLER V. HOPPER-MORGAN CO. 
 
 New York, 1904 90 App. Div. ?,1^. 
 
 Stover, J. : The action is one of negligence, and is brought 
 by the father to recover for the loss of services of an infant son. 
 
 The son was, at the time of the accident, fifteen and one-half 
 years old, and was engaged in operating a machine which was 
 used for cutting pads. A knife was put in motion by throwing 
 the machinery in gear, and when once in motion, would descend 
 and do its work. The claim is that the machine was out of re- 
 pair ; that the knife was not stopped when it had performed its 
 W'Ork, but was operated the second time, and came in contact 
 with the hand of the boy so as to cut off his hand at the wrist. 
 
 The judgment must be reversed for errors committed at the 
 trial. The trial judge, after discussing the right of the plain- 
 tiff to recover at all in the action, charged the jury upon the 
 question of damages as follows: 
 
 If you reach the question of damages, the question of the 
 amovint that the father can recover for the loss of the services 
 of the son, you can allow to the father, the plaintiff in this case, 
 all the actual loss sustained by reason of this injury to the child, 
 and illness, including his own services in taking care of him, 
 his neglect of business in consequence of the child's illness, and 
 the necessary charges for medical services, medicine, nursing, 
 and all the necessary expenses and loss incurred, as the natural 
 and approximate result of the injury; and also his prospective
 
 PROSPECTIVE DAMAGES. 189 
 
 loss by being deprived of the child's services during the re- 
 mainder of his minority, as well as the probable prospective loss 
 from being compelled to support the child in consequence of the 
 injury." 
 
 The defendant's counsel excepted to this portion of the charge, 
 and the court remarked, "That is broad enough to cover my 
 charge. I charged what I understood to be the general rule." 
 So the court distinctly charged that the plaintiff was entitled 
 to recover for the maintenance of the child after he became twen- 
 ty-one years of age. 
 
 The court may have been led into this error by assuming that 
 the obligation was upon the parent to support the child who 
 was unable to support himself. But if the plaintiff's son has 
 been injured, the son would have a right of action against the 
 defendant, and be entitled to recover in his action for the injury 
 he has sustained ; and in that recovery would be included the 
 damages by reason of the loss of the arm. One of the circum- 
 stances which would tend to increase the damages would be that 
 he would be unable to work and support himself, and a money 
 judgment would be awarded for that element of it. 
 
 The father would not ordinarily be bound to support the 
 young man after his arrival at twenty-one years of age, and it 
 might be that the young man would be self-supporting, not- 
 withstanding the loss of his arm, and, without proof of his finan- 
 cial condition in this action, it could not be assumed that the 
 father would have to maintain him. 
 
 It was also error, we think, to charge that the father could 
 recover for his loss of time, for his own services in taking care 
 of the child, and also for neglect of business in consequence of 
 the child's illness. (Barnes v. Keene, 132 N. Y. 13.) 
 
 There was no proof as to the amount of loss to his business, 
 and such proof would have been inadmissible in any event. 
 
 As the case must be reversed for these errors, we do not dis- 
 cuss the other questions raised upon the appeal. 
 
 All concur. 
 
 Prospective damages to be rocoverable must be such as it is rea.son- 
 ably certain will result from the injury. Filer v. N. T. C. R. R. 
 49 N. Y. 42. 
 
 Prospecti\'e damages are allowed for coutinuing nuisances, trespasses 
 and torts generally. Lahr v. Metropolitr.n R. R. 104 N. Y. 268; Uline v. 
 R. R. Co. 101 N. Y. 9S.
 
 190 CLASSIFICATION OF DAMAGES. 
 
 Prospective dainagos can be awarded for loss of Income from profes- 
 sional sources. Rowley v. London & N. W. R. R. Co. 1873, 8 Ech. 221. 
 See also 2 K. B. 1904, 250. 
 
 Dama.ces may be awarded in a judicial proceeding for detriment 
 resulting after commencement thereof; and no supplemental pleading is 
 necessary to support such a recovery. Hicks v. Drew, 117 Cal. 305. 
 
 There can be a recovery for such pain and inconvenience as is reason- 
 ably certain in the future. Ayres v. D. L. & W. R. R. 158 N. Y. 254. 
 And they must be limited by the court, in its charge to such as are 
 reasonably certain. Penn. Coal Co. v. Files, 05 Ohio, 403. So an injury 
 to plaintiff's wife such as to deprive the husband of prospective off- 
 spring. Butler V. Manhattan R. R. 143 N. Y. 417. 
 
 Damages may be awarded for probable future pain and loss. Norfolk 
 Ry. Co. V. Spraetey, 103 Va. 379. 
 
 Future medical expenses can be recovered. Webster v. Seattle Ry. 
 Co. 42 Wash. 3G4 ; Hickey v. Welch, 91 Mo. App. 4. 
 
 Prospective mental suffering is also an element in damages. Nichols 
 V. Brabazon, 94 Wis. 549. 
 
 A parent can recover for the prospective value of the services of a 
 boy eight years old. Drew v. Sixth Av. R. R. Co. 20 N. Y. 49 ; Similarly 
 for the continuous loss of services of a minor child. Dollard v. Roberts, 
 130 N. Y. 364. 
 
 Wherever the injury is permanent, prospective damages are allowed. 
 Ridenhour v. Kansas City R. R. 102 Mo. 270. See also McConnell v. 
 Corona City Water Co. 149 Cal. 60. 
 
 Where, at the trial, it appears that the plaintiff has not recovered 
 from her injuries, it is proper to instruct the jury as to future suffer- 
 ing; and a charge that the jury should consider such future suffering 
 and loss of health is not erroneous. — Chicago & M. El. R. R. v. Ullrich, 
 213 111. 170.
 
 III. DIRECT AND CONSEQUENTIAL 
 DAMAGES. 
 
 HADLEY V. BAXENDALE. 
 King's Bench, 1854. 9 Exchequer Reports, 341. 
 
 The first count of the declaration stated, that, before and at 
 the time of the making by the defendants of the promises here- 
 inafter mentioned, the plaintiffs carried on the business of 
 millers and mealmen in co-partnership, and were proprietors 
 and occupiers of the City Steam-Mills, in the city of Gloucester, 
 and were possessed of a steam-engine, by means of which they 
 worked said mills, and therein cleaned com, and ground the 
 same into meal, and dressed the same into flour, sharps, and 
 bran, and a certain portion of the said steam-engine, to wit, the 
 orank shaft of the said steam-engine, was broken and out of 
 repair, whereby the said steam-engine was prevented from work- 
 ing, and the plaintiffs were desirous of having a new crank shaft 
 made for the said mill, and had ordered the same of certain 
 persons trading under the name of W. Joyce & Co., at Green- 
 wich, in the county of Kent, who had contracted to make the 
 said new shaft for the plaintiffs ; but before they could complete 
 the said new shaft it was necessary that the said broken shaft 
 should be forwarded to their works at Greenwich, in order that 
 the said new shaft might be made so as to fit the other parts of 
 the said engine which were not injured, and so that it might be 
 substituted for the said broken shaft; and the plaintiffs were 
 desirous of sending the said broken shaft to the said W. Joyce 
 & Co. for the purpose aforesaid ; and the defendants, before and 
 at the time of the making of the said promises were common 
 carriers of goods and chattels for hire from Gloucester to Green- 
 wich, and carried on such business of common carriers, under 
 the name of "Piekford & Co.;" and the plaintiffs, at the re- 
 quest of the defendants, delivered to them as such carriers the 
 said broken shaft, to be conveyed by the defendants as such 
 
 191
 
 192 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 carriei-s from Gloucester tp the said W. Joyce & Co., at Green- 
 ■\vich, and there to be delivered for the plaintiffs on the second 
 day after the day of such delivery, for reward to the defend- 
 ants; and in consideration thereof the defendants then prom- 
 ised the plaintiffs to convey the said broken shaft from Glouces- 
 ter to Greenwich, and there on the said second day to deliver 
 the same to the said \V. Joyce & Co. for the plaintiffs. And 
 although such second day elapsed before the commencement of 
 this suit, yet the defendants did not nor would deliver the 
 said broken shaft at Greenwich on the said second day, or to the 
 said W. Joyce & Co. on the said second day, but wholly neglected 
 and refused so to do for the space of seven days after the said 
 shaft was so delivered to them as aforesaid. 
 
 The "second count stated, that, the defendants being such car- 
 riers as aforesaid, the plaintiffs at the request of the defendants, 
 caused to be delivered to them as such carriers the said broken 
 shaft, to be conveyed by the defendants from Gloucester afore- 
 said to the said AV. Joyce & Co., at Greenwich, and there to be 
 delivered by the defendants for the plaintiffs, within a reason- 
 able time in that behalf, for reward to the defendants; and in 
 consideration of the premises in this count mentioned, the de- 
 fendants promised the plaintiffs to use due and proper care and 
 diligence in and about the carrying and conveying the said 
 broken shaft from Gloucester aforesaid to the said W. Joyce & 
 Co., at Greenwich, and there delivering the same for the plaint- 
 iffs in a reasonable time then following for the carriage, con- 
 veyance, and delivery of the said broken shaft as aforesaid ; and 
 although such reasonable time elapsed long before the com- 
 mencement of this suit, yet the defendants did not nor would 
 use due or proper care or diligence in or about the carrying or 
 conveying or delivering the said broken shaft as aforesaid, 
 within such reasonable time as aforesaid, but wholly neglected 
 and refused so to do; and by reason of the carelessness, neg- 
 ligence, and improper conduct of the defendants, the said broken 
 shaft was not delivered for the plaintiffs to the said W. Joyce 
 & Co., or at Greenwich, until the expiration of a long and un- 
 reasonable time after the defendants received the same as afore- 
 said, and after the time when the same should have been de- 
 livered for the plaintiffs: and by reason of the several premises, 
 the completing of the said new shaft was delayed for five days, 
 and the plaintiffs were prevented from working their said steam-
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 193 
 
 mills, and from cleaning corn, and grinding the same into meal, 
 and dressing the meal into flour, sharps, or bran, and from carry- 
 ing on tlieir said business as millers and meabnen for the space 
 of five days beyond the time that they otherwise would have 
 been prevented from so doing, and they thereby were unable 
 to supply many of their customers with flour, sharps, and bran 
 during that period, and were obliged to buy flour to supply some 
 of their other customers, and lost the means and opportunity 
 of selling flour, sharps, and bran, and were deprived of gains 
 and profits which otherwise would have accrued to them, and 
 were unable to employ their workmen, to whom they were com- 
 pelled to pay wages during that period, and were otherwise 
 injured, and the plaintiffs claim 300 1, 
 
 The defendants pleaded non assumpserunt to the first count; 
 and to the second payment of 25 1. into Court in satisfaction of 
 the plaintiffs' claim under that count. The plaintiff's entered 
 a nolle prosequi as to the first count ; and as to the second plea, 
 they replied that the sum paid into Court was not enough to 
 satisfy the plaintiffs ' claim in respect thereof ; upon which repli- 
 cation issue was joined. 
 
 At the trial before Crompton, J., at the last Gloucester As- 
 sizes, it appeared that the plaintiffs carried on an extensive busi- 
 ness as millers at Gloucester; and that, on the 11th of May, 
 their mill was stopped by a breakage of the crank shaft by which 
 their mill was worked. The steam-engine was manufactured by 
 Messrs. Joyce & Co., the engineers, at Greenwich, and it became 
 necessarj'^ to send the shaft as a pattern for a new one to Green- 
 wich. The fracture was discovered on the 12th, and on the 
 13th the plaintiffs sent one of their servants to the office of the 
 defendants, who are the well-known carriers trading under the 
 name of Pickford & Co., for the purpose of having the shaft 
 carried to Greenwich. The plaintiffs' servant told the clerk that 
 the mill was stopped, and that the shaft must be sent imme- 
 diately; and in answer to the inquiry when the shaft would be 
 taken, the answer was, that if it was sent up by twelve o'clock 
 any day, it would be delivered at Greenwich on the following 
 day. On the following daj^ the shaft was taken by the defend- 
 ants, before noon, for the purpose of being conveyed to Green- 
 wich, and the sum of 2 1. 4 s. was paid for its carriage for the 
 whole distance; at the same time the defendants' clerk was told 
 that a special entry, if required, should be made to hasten its 
 
 13
 
 194 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 delivery. The delivery of the shaft at Greenwich was delayed 
 by some neglect; and the consequence was, that the plaintiffs 
 did not receive the new shaft for several days after they would 
 other^^^se have done, and the working of their mill was thereby 
 delayed, and they thereby lost the profits they would otherwise 
 have received. 
 
 On the part of the defendants, it was objected that these dam- 
 ages were too remote, and that the defendants were not liable 
 with respect to them. The learned judge left the case generally 
 to the jury, who found a verdict with 25 1. damages beyond the 
 amoimt paid into Court. 
 
 Whateley, in last Michaelmas Term, obtained a rule nisi for 
 a new trial, on the ground of misdirection. 
 
 Keating and Dowdeswell (Feb. 1) showed cause. The plaint- 
 iffs are entitled to the amount awarded by the jury as dam- 
 ages. These damages are not too remote, for they are not only 
 the natural and necessary consequence of the defendants' default, 
 but they are the only loss which the plaintiffs have actually sus- 
 tained. The principle upon which damages are assessed is 
 founded upon that of rendering compensation to the injured 
 party. This important subject is ably treated in Sedgwick on 
 the ]\Ieasure of Damages. And this particular branch of it 
 is discussed in the third chapter, where, after pointing out the 
 distinction between the civil and the French law, he says, page 
 64; "It is sometimes said, in regard to contracts, that the de- 
 fendant shall be held liable for those damages only which both 
 parties may fairly be supposed to have at the time contemplated 
 as likely to result from the nature of the agreement, and this 
 appears to be the rule adopted by the writers upon the civil 
 law." In a subsequent passage he says, "In cases of fraud the 
 civil law made a broad distinction" (page 66) ; and he adds, 
 that * ' in such cases the debtor was liable for all the consequences. 
 It is difficult, however, to see what the ground of such prin- 
 ciple is, and how the ingredient of fraud can affect the question. 
 For instance, if the defendants had maliciously and fraudu- 
 lently kept the shaft, it is not easy to see why they should have 
 been liable for these damages, if they are not to be held so 
 where the delay is occasioned by their negligence only. In speak- 
 ing of the rule respecting the breach of a contract to transport 
 goods to a particular place, and in actions brought on agree- 
 ments for the sale and delivery of chattels, the learned author
 
 DIRECT AND CONSEQUENTIAL, DAMAGES. 195 
 
 lays it down, that ' ' In the former case, the difference in value 
 between the price at the point where the goods are and the place 
 where they were to be delivered, is taken as the measure of dam- 
 ages, which, in fact, amounts to an allowance of profits; and 
 in the latter case, a similar result is had by the application of 
 the rule, which gives the vendee the benefit of the rise of the 
 market price. (Page 80.) The several cases, English as well as 
 American, are there collected and reviewed. [Parke, B. The 
 sensible rule appears to be that which has been laid down in 
 France, and which is declared in their code — Code Civil, liv. 
 iii. tit. iii. ss. 1149, 1150, 1151, and which is thus translated in 
 Sedgwick, page 67: "The damages due to the creditor consist 
 in general of the loss that he has sustained, and the profit which 
 he has been prevented from acquiring, subject to the modifi- 
 cations hereinafter contained. The debtor is only liable for the 
 damages foreseen, or which might have been foreseen, at the 
 time of the execution of the contract, when it is not owing to 
 his fraud that the agreement has been violated. Even in the 
 case of non-performance of the contract, resulting from the 
 fraud of the debtor, the damages only comprise so much of the 
 loss sustained by the creditor, and so much of the profit which 
 he has been prevented from acquiring, as directly and imme- 
 diately results from the non-performance of the contract."] 
 If that rule is to be adopted, there was ample evidence in the 
 present case of the defendants' knowledge of such a state of 
 things as would necessarily result in the damage the plaintiffs 
 suffered through the defendants' default. The authorities are 
 in the plaintiffs' favor upon the general ground. In Nurse v. 
 Barns, 1 Sir T. Raym. 77, w^hieh was an action for the breach 
 of an agreement for the letting of certain iron mills, the plaint- 
 iff was held entitled to) a sum of 500 1., awarded by reason of 
 loss of stock laid in, although he had only paid 10 1. by way of 
 consideration. In Borradaile v. Brunton, 8 Taunt. 535; 2 B. 
 ]\Ioo. 582, which was an action for the breach of the warranty 
 of a chain cable that it should last two years as a substitute 
 for a rope cable of sixteen inches, the plaintiff was held entitled 
 to recover for the loss of the anchor, which was occasioned by 
 the breaking of the cable within the specified time. [Alderson, 
 B. Why should not the defendant have been liable for the loss 
 of the ship? Parke, B. Sedgwick doubts the correctness of 
 that report. The learned Judge has frequently observed of late
 
 IM DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 that tlie 8th Taunton is of but doubtful authoi'ity, as the cases 
 were not ixiported by Mr. Taunton himself. Martin, 1>. Take 
 the ease of the non-delivery by a cai'rier of a delicate piece of 
 machinery, ^vllereby the whole of an extensive , mill is thrown 
 out of work for a considerable time ; if the carrier is to be liable 
 for the loss in that case, he might incur damages to the extent 
 of 10,000 1. 1*ARKE B., referred to Everard v. Hopkins, 2 Bulst. 
 332.] These extreme cases, and the difficulty which conse- 
 quently exists in the estimation of the true amount of damages, 
 supports the view for which the plaintiffs contend, that the 
 question is properly for the decision of a jury, and therefore 
 that this matter could not properly have been withdra\\Ti from 
 their consideration. In Ingram v. Lawson, 6 Bing. N. C. 212, 
 the true principle was acted upon. That was an action for a 
 libel upon the plaintiff, who was the owner and master of a 
 ship, which he advertised to take passengers to the East Indies ; 
 and the libel imputed that the vessel was not seaworthy, and 
 that Jews had purchased her to take out convicts. The Court 
 held, that evidence showing that the plaintiff's profits after the 
 publication of the libel were 15001. below the usual average, 
 was admissible, to enable the jury to form an opinion as to the 
 nature of the plaintiff's business, and of his general rate of 
 profit. Here, also, the plaintiffs have not sustained any loss 
 beyond that which was submitted to the jury. Bodley v. Reyn- 
 olds, 8 Q. B. 779, and Kettle v. Hunt, Bull, N. P. 77, are 
 similar in principle. In the latter, it was held that the loss 
 of the benefit of trade, which a man suffers by the detention of 
 his tools, is recoverable as special damage. [Parke, B. Sup- 
 pose, in the present case, that the shaft had been lost, what 
 would have been the damage to which the plaintiffs would have 
 been entitled?] The loss they had sustained during the time 
 they were so deprived of their shaft, or until they could have 
 obtained a new one. In Black v. Baxendale, 1 Exch. 410, by 
 reason of the defendant's omission to deliver the goods within 
 a reasonable time at Bedford, the plaintiff's agent, who had been 
 sent there to meet the goods, was put to certain additional ex- 
 penses, and this Court held that such expenses might be given 
 by the jury as damages. In Brandt v. Bowlby, 2 B. & Ad. 932, 
 which was an action of assumpsit against the defendants, as 
 owners of a certain vessel, for not delivering a cargo of wheat 
 shipped to the plaintiffs, the cargo reached the port of discharge
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 197 
 
 but was not delivered; the price of the cargo at the time it 
 reached the port of destination was held to be the true rule of 
 damages. "As between the parties in this cause," said Parke, 
 J., "the plaintiffs are entitled to be put in the same situation 
 as they Avould have been in, if the cargo had been delivered to 
 their order at the time when it was delivered to the wrong party ; 
 and the sum it would have fetched at that time is the amount 
 of the loss sustained by the non-performance of the defendants' 
 contract." The recent decision of this Court, in AVaters v. 
 Towers, 8 Exch. 401, seems to be strongly in the plaintiffs' 
 favor. The defendants there had agreed to fit up the plaintiffs' 
 mills within a reasonable time, but had not completed their con- 
 tract within such time ; and it was held that the plaintiffs were 
 entitled to recover, by way of damages, the loss of profit upon 
 a contract they had entered into with third parties, and which 
 they were unable to fulfill by reason of the defendants' breach 
 of contract. [Parke, B. The defendants there must of neces- 
 sity have known that the consequence of their not completing 
 their contract would be to stop the working of the mill. But 
 how could the defendants here know that any such result would 
 follow?] There was ample evidence that the defendants knew 
 the purpose for which this shaft was sent, and that the result 
 of its non-delivery in due time would be the stoppage of the 
 mill; for the defendants' agent, at their place of business, was 
 told that the mill was then stopped, that the shaft must be de- 
 livered immediately, and that if a special entry was necessary 
 to hasten its delivery, such an entry should be made. The 
 defendants must, therefore, be held to have contemplated at the 
 time what in fact did follow, as the necessary and natural result 
 of their wrongful act. They also cited Ward v. Smith, 11 Price. 
 19 ; and Parke, B., referred to Levy v. Langridge, 4 M. & W. 337. 
 
 Whateley, Willes, and Phipson, in support of the rule (Feb. 
 2). It has been contended, on the part of the plaintiffs, that 
 the damasres found by the jury are a matter fit for their con- 
 sideration ; but still the question remains, in what way ought 
 the jury to have been directed? It has been also urged, that, 
 in awarding damagos, the law gives compensation to the in- 
 jured individual. But it is clear that complete compensation is 
 not to be awarded ; for instance, the non-payment of a bill of 
 exchange might lead to the utter ruin of the holder, and yet such 
 damage could not be considered as necessarilv resulting from the
 
 198 DIRECT AND CONtfEQUKNTIAL DAMAGES. 
 
 breach of contract, so as to entitle the party aggrieved to re- 
 cover in respect of it. Take the case of the breach of a contract 
 to supply a rick-cloth, whereby and in consequence of bad 
 weather the hay, being unprotected, is spoiled, that damage 
 would not be recoverable. Many similar cases miglit be added. 
 The true principle to be deduced from the authorities upon this 
 subject is that which is embodied in the maxim: ^'In jure non 
 remofa causa scd proxima spcctatur." Sedgwick says, page 38, 
 "In regard to the quantum of damages, instead of adher- 
 ing to the term compensation, it would be far more accurate 
 to say, in the language of Domat, which we have cited 
 above, 'that the object is to discriminate between that portion of 
 the loss which must be borne by the offending party and that 
 which inust be borne by the sufferer. ' The law in fact aims not 
 at the satisfaction but at a division of the loss. " And the learned 
 author also cites the following passage from Broom's Legal 
 Maxims : ' ' Every defendant, ' ' says Mr. Broom, ' ' against whom 
 an action is brought experiences some injury or inconvenience 
 beyond what the costs will compensate him for." Broom's 
 Legal ]\Iaxims, p. 95; Davies v. Jenkins, 11 M. & W. 755. 
 Again, at page 78, after referring to the case of Flureau v. 
 Thomhill, 2 W. Blac. 1078, he says, ''Both the English and 
 American Courts have generally adhered to this denial of profits 
 as any part of the damages to be compensated, and that whether 
 in cases of contract or of tort. So, in a case of illegal capture, 
 Mr. Justice Story rejected the item of profits on the voyage, and 
 held this general language: Independent, however, of all au- 
 thority, 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 in- 
 terests of the community. The subject would be involved in utter 
 uncertainty. The calculation would proceed upon contingencies, 
 and would require a knowledge of foreign markets to an exact- 
 ness, in point of time and value, which would sometimes present 
 embarrassing obstacles; much would depend upon the length of 
 the voyage, and the season of arrival, much upon the vigilance 
 and activity of the master, and much upon the momentary de- 
 mand. After all, it would be a calculation upon conjectures, 
 and not upon facts ; such a rule therefore has been rejected by 
 Courts of law in ordinary cases, and instead of deciding upon 
 the gains or losses of parties in particular eases, a uniform inter-
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 199 
 
 est has been applied as the measure of damages for the detention 
 of property. ' ' There is much force in that admirably constructed 
 passage. We ought to pay all due homage in this country to 
 the decisions of the American Courts upon this important sub- 
 ject, to which they appear to have given much careful considera- 
 tion. The damages here are too remote. Several of the cases 
 which were principally relied upon by the plaintiffs are dis- 
 tinguishable. In Waters v. Towers, 1 Exch. 401, there was a 
 special contract to do the work in a particular time, and the 
 damage occasioned by the non-completion of the contract was 
 that to which the plaintiffs were held to be entitled. In Bor- 
 radaile v. Brunton, 8 Taunt. 535, there was a direct engagement 
 that the cable should hold the anchor. So, in the case of taking 
 away a workman's tools, the natural and necessary consequence 
 is the loss of employment: Bodley v. Reynolds, 8 Q. B. 779. 
 The following cases may be referred to as decisions upon the 
 principle within which the defendants contend that the present 
 case falls : Jones v. Gooday, 8 M. & W. 146 ; Walton v. Fother- 
 gill, 7 Car. & P. 392 ; Boyce v. Bayliffe, 1 Camp. 58, and Archer 
 V. WiUiams, 2 C. & K. 26. The rule, therefore, that the imme- 
 diate cause is to be regarded in considering the loss, is applicable 
 here. There was no special contract between these parties. A 
 carrier has a certain duty cast upon him by law, and that duty 
 is not to be enlarged to an indefinite extent in the absence of a 
 special contract, or of fraud or malice. The maxim ^' dolus cir- 
 cuit u non purgatur," does not apply. The question as to how 
 far liability may be affected by reason of malice forming one of 
 the elements to be taken into consideration, was treated of by 
 the Court of Queen's Bench in Lumley v. Gye, 2 E. & B. 216. 
 Here the declaration is founded upon the defendants' duty as 
 common carriers, and indeed there is no pretence for saying that 
 they entered into a special contract to bear all the consequences 
 of the non-delivery of the article in question. They were merely 
 bound to carry it safely, and to deliver it within a reasonable 
 time. The duty of the clerk, who was in attendance at the de- 
 fendants' office, was to enter the article, and to take the amount 
 of the carriage; but a mere notice to him, such as was here 
 given, could not make the defendants, as carriers, liable as upon 
 a special contract. Such matters, therefore, must be rejected 
 from the consideration of the question. If carriers are to be 
 liable in such a case as this, the exercise of a sound judgment
 
 200 DIRECT AND CONSEliUENTlAL DAMAGES. 
 
 Avould not suffice, but thoy ought to bo gifted also with a spirit 
 of prophecy. "I have always understood," said Patteson, 
 J., iu Kelly v. Partington, 5 B. & Ad. 651, "that the special 
 damage miLSt be the natural result of the thing done." That 
 sentence presents the true test. The Court of Queen's Bench 
 acted upon that rule in Foxall v. Barnett, 2 E. & B. 928. This 
 therefore is a question of law, and the jury ought to have been 
 told that these damages were too remote ; and that, in the ab- 
 sence of the proof of any other damage, the plaintiffs were en- 
 titled to nominal damages only : Tindall v. Bell, 11 M. & W. 232. 
 Siordet v. Hall, 4 Bing. 607, and De Vaux v. Salvador, 4 A. & 
 E. 420, are instances of cases where the Courts appear to have 
 gone into the opposite extremes — in the one case of unduly fav- 
 oring the carrier, in the other of holding them liable for results 
 which would appear too remote. If the defendants should be 
 held responsible for the damages awarded by the jury, they 
 would be in a better position if they confined their business to 
 the conveyance of gold. They cannot be responsible for results 
 which, at the time the goods are delivered for carriage, are be- 
 yond all human foresight. Suppose a manufacturer were to 
 contract with a coal merchant or mine owner for the delivery 
 of a boat load of coals, no intimation being given that the coals 
 were required for immediate use, the vendor in that case would 
 not be liable for the stoppage of the vendee's business for want 
 of the article which he had failed to deliver : for the vendor has 
 no Imowledge that the goods are not to go to the vendee's gen- 
 eral stock. Where the contracting party is shown to be ac- 
 quainted with all the consequences that must of necessity fol- 
 low from a breach on his part of the contract, it may be reason- 
 able to say that he takes the risk of such consequences. If, as 
 between vendor and vendee, this species of liability has no exist- 
 ence, a fortiori the carrier is not to be burthened with it. In 
 cases of personal injury to passengers, the damage to which the 
 sufferer has been held entitled is the direct and immediate con- 
 sequence of the wrongful act. Cur. adv. vult. 
 
 The judgment of the Court was now delivered by 
 Alderson, B. We think that there ought to be a new trial 
 in this case; but, in so doing, we deem it to be expedient and 
 necessary to state explicitly the rule which the Judge, at the next 
 trial, ought, in our opinion, to direct the jury to be governed 
 by when they estimate the damages.
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 201 
 
 It is, indeed, of the last importance that we should do this; 
 for, if the jury are left without any definite rule to guide them, 
 it will, in such cases as these, manifestly lead to the greatest 
 injustice. The Courts have done this on several occasions; and 
 in Blake v. Midland Kailway Company, 21 L. J., Q. B. 237, the 
 Court granted a new trial on this very ground, that the rule 
 had not been definitely laid down to the jury by the learned 
 judge at Nisi Prius. 
 
 "There are certain established rules," this Court says, in 
 Alder v. Keighley, 15 M. & W. 117, "according to which the 
 jury ought to find. ' ' And the Court, in that case, adds : ' ' and 
 here there is a clear rule, that the amount which would have been 
 received if the contract had been kept is the measure of damages 
 if the contract is broken. ' ' 
 
 Now we think the proper rule in such a case as the present is 
 this: —Where two parties have made a contract which one of 
 them has brol^en, 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, i. e., 
 according to the usual course of things, from such breach of 
 contract itself, or such as may reasonably be supposed to have 
 been in the contemplation of both parties, at the time they made 
 the contract, as the probable result of the breach of it. Now, if 
 the special circumstances under which the contract was actually 
 made were communicated by the plaintiffs to the defendants, and 
 thus known to both parties, the damages resulting from the 
 breach of such a contract, which they would reasonably contem- 
 plate, would be the amount of injury which would ordinarily 
 follow from a breach of contract under these special circum- 
 stances so known and communicated. But, on the other hand, 
 if these special circumstances were wholly unknown to the party 
 breaking the contract, he, at the most, could only be supposed 
 to have had in his contemplation the amount of injury which 
 would arise generally, and in the great multitude of cases not 
 affected by any special circumstances, from such a breach of 
 contract. For, had the special circumstances been known, the 
 parties might have specially provided for the breach of contract 
 by special terms as to the damages in that case ; and of this ad- 
 vantage it would be very unjust to deprive them. Now the 
 above principles are those by which we think the jury ought to 
 be guided in estimating the damages arising out of any breach
 
 202 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 of contract. It is said, that other cases, such as breaches of con- 
 tract in the non-payment of money, or in the not making a good 
 title to land, are to be treated as exceptions from this, and as 
 governed by a conventional rule. But as, in such cases, both 
 parties must be supposed to be cognisant of that well-known 
 rule, these cases may, we think, be more properly classed under 
 the rule above enunciated as to cases under known special cir- 
 cumstances, because there both parties may reasonably be pre- 
 sumed to contemplate the estimation of the amount of damages 
 according to the conventional rule. Now, in the present case 
 if we are to apply the principles above laid down, we find that 
 the only circumstances here communicated by the plaintiffs to 
 the defendants at the time the contract was made, were, that 
 the article to be carried was the broken shaft of a mill, and that 
 the plaintiffs were the millers of that mill. But how do these 
 circumstances show reasonably that the profits of the mill must 
 be stopped by an unreasonable delay in the delivery of the 
 broken shaft by the carrier to the third person? Suppose the 
 plaintiffs had another shaft in their possession put up or put- 
 ting up at the time, and that they only wished to send back the 
 broken shaft to the engineer who made it; it is clear that this 
 would be quite consistent with the above circumstances, and yet 
 the unreasonable delay in the delivery would have no effect 
 upon the intermediate profits of the mill. Or, again, suppose 
 that, at the time of the delivery to the carrier, the machinery of 
 the mill had been in other respects defective, then, also, the same 
 results would follow. Here it is true that the shaft was actually 
 sent back to serve as a model for a new one, and that the want 
 of a new one was the only cause of the stoppage of the mill, and 
 that the loss of profits really arose from not sending down the 
 new shaft in proper time, and that this arose from the delay in 
 delivering the broken one to serve as a model. But it is obvious 
 that, in the great multitude of cases of millers sending off broken 
 shafts to third persons by a carrier under ordinary circum- 
 stances, such consequences would not, in all probability, have 
 occurred; and these special circumstances were here never com- 
 municated by the plaintiffs to the defendants. It follows, there- 
 fore, that the loss of profits here cannot reasonably be considered 
 such a consequence of the breach of contract as could have been 
 fairly and reasonably contemplated by both the parties when 
 they made this contract. For such loss would neither have
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 203 
 
 flowed naturally from the breach of this contract in the great 
 multitude of such cases occurring under ordinaiy circumstances, 
 nor were the special circumstances which, perhaps would have 
 made it a reasonable and natural consequence of such breach of 
 contract, communicated to or known by the defendants. The 
 Judge ought, therefore, to have told the jury that, upon the 
 facts then before them, they ought not to take the loss of profits 
 into consideration at all in estimating the damages. There must 
 therefore be a new trial in this case. 
 
 Rule absolute. 
 
 DUBUQUE WOOD AND COAL ASSOC, v. DUBUQUE. 
 
 Iowa, 1870. 30 la. 176. 
 
 Action at law. The petition avers, that, prior to the date 
 when plaintiff's cause of action accrued, there had been erected 
 and maintained a bridge on Seventh street in the city of Du- 
 buque over a slough of the ]\Iississippi River; that Seventh 
 street was a highway leading from the business portion of the 
 city to the levee upon the river, and, as such, was used by the 
 public; that said bridge was a county bridge, and it was the 
 duty of the city as well as the county to rebuild it after it be- 
 came impassable; that before the bridge became impassable, a 
 large quantity of wood being deposited upon the levee, as was 
 customary, was purchased by plaintiff for the purpose of re- 
 selling to its customers in the city of Dubuque; that the levee 
 was liable to be overflowed by the river, and the street upon 
 which the bridge in question was erected was the only way over 
 which the wood could have been transported to plaintiff's cus- 
 tomers. On account -of the bridge becoming impassable, and 
 of the negligence of defendants, in failing to rebuild it, plaintiff 
 was unable to remove his wood. Subsequently, but prior to any 
 repairs made upon the bridge, the wood was lost by a flood in 
 the river. The defendants provided no other bridge or way 
 while the bridge in question was unfit for use, by which plaintiff 
 could have removed the wood. 
 
 The defendants separately demurred to the petition, alleging 
 that it exhibited no cause of action, and each claiming not to 
 be liable upon the state of facts set out in the petition. The de- 
 murrers were sustained and plaintiff appeals. 
 
 Beck, J. It is not denied, by the appellees, that the injury
 
 20-4 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 complained of will support an action, unless the injury appears 
 to be public in its nature, and the damage claimed too remote, 
 under the rules of the law, to become the basis of a compensa- 
 tory judgment. The liability of the county and city for dam- 
 age, the direct and certain result of negligence in failing to re- 
 pair a highway, when that duty is imposed upon them, is not 
 questioned by the coimsel of appellees. 
 
 The questions presented for our determination, in this case, 
 are these : 1. Are the injuries set out in the petition, as the 
 foundation of the action, of such a public nature, being shared 
 by plaintiff with the public generally, that recovery therefor is 
 precluded? 2. Is the damage claimed so remote that compen- 
 sation, under the rules of law, will not be given? 3. If the 
 action can be maintained, may recovery be had against both of 
 the defendants? If not against both, which one is liable? No 
 other points are presented in the argument of counsel for our 
 decision. 
 
 As our conclusions upon the second point above stated are de- 
 cisive of the case, it will be unnecessary to examine the others. 
 
 The rule limiting the recovery of damage to "the natural and 
 proximate consequence of the act complained of" is universally 
 admitted, and the extreme difficulty in its practical application 
 is quite as widely conceded. The difficulty results not from any 
 defect in the rule, but in applying a principle, stated in such 
 general language, to cases of diverse facts. The dividing line 
 between proximate and remote damages is so indistinct, if not 
 often quite invisible, that there is, on either side, a vast field of 
 doubtful and disputed ground. In exploring this ground there 
 is to be had but little aid from the light of adjudicated cases. 
 The course followed in each case, which is declared to be upon 
 one side or the other of the dividing line, is plainly marked out, 
 but no undisputed landmarks are established by which the divid- 
 ing line itself may be precisely traced. As so little aid is derived 
 from precedents in arriving at the conclusion we have reached, 
 it would prove quite useless to refer to them. 
 
 Damage to be recoverable must be the proximate consequence 
 of the act complained of; that is, it must be the consequence 
 that follow^s the act, and not the secondary result from the first 
 consequence, either alone or in combination with other circum- 
 stances. 
 
 An illustration will serve the purpose of more clearly ex-
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 205 
 
 pressing the principle. An owner of lumber deposited upon 
 the levee of the city of Dubuque, exposed to the floods of the 
 river, starts with his team to remove it. A bridge built by 
 the city which he attempts to cross, from defects therein falls, 
 and his horses are killed. By the breaking of the bridge and 
 the loss of his team, he is delayed in removing his property. On 
 account of this delay his lumber is carried away by the flood 
 and lost. The proximate consequence of the negligence of the 
 city is the loss of his horses. The secondary consequence, re- 
 sulting from the first consequence, is the delay in removing the 
 lumber, which finally, caused its loss. Damage on account of 
 the first is recoverable, but for the second, is denied. 
 
 Applying these principles to the case before us, we conclude 
 that the losses for which recovery is sought were not the proxi- 
 mate consequence of the negligence of defendants complained 
 of in the petition. The proximate consequence of the bridge of 
 defendants becoming impassable was not the loss of plaintiff's 
 wood. The loss resulted from the flood. It does noi. appear 
 from the petition that the negligence of defendants in failing 
 to repair the bridge, whereby plaintiff was prevented removing 
 the wood, exposed plaintiff to any other loss. All that can be 
 said is, that defendants' negligence caused plaintiff to delay re- 
 moving the wood; the delay exposed the wood to the flood, 
 whereby it was lost. Plaintiff's damage, then, was not the proxi- 
 mate consequence of the acts of defendant complained of, but re- 
 sulting from a remote consequence joined with another circum- 
 stance, the flood. The case is not distinguishable from the sup- 
 posed case above stated. 
 
 In our opinion the demurrer was correctly sustained. The 
 other points raised in the case need not be noticed. 
 
 Affirmed. 
 
 LAWRENCE v. HAGERMAN. 
 
 Illinois, 1870. 56 111. 68. 
 
 Scott, J. * * * The action is founded in tort, for mali- 
 ciously suing out the process of a court. The averment in the 
 declaration is, that the appellant "wrongfully, unjustly, and 
 maliciously, and without probable cause therefor," sued out a 
 writ of attachment under the attachment act, and with a ma- 
 licious and wrongful purpose caused the same to be levied on
 
 206 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 tlio goods and chattels of the appellee. It is alleged that, by 
 reason of the premises, the appellee sustained special damage in 
 the depreciation of the value of the property levied on, and in 
 the expenditure of large sums of money in the defence of the 
 action, and, as general damage, that his business was broken up, 
 his credit and reputation impaired and destroyed. 
 
 The testimony offered to which objections were interposed 
 tended to show, negatively at least, that there was no probable 
 cause for suing out the writ. This was a material averment and 
 it was necessary to be proven. The evidence offered for that 
 purpose was legitimate and proper. 
 
 The main objection taken is to the evidence offered to estab- 
 lish the measure of damages. It seems to us that the averments 
 in the declaration are broad and comprehensive enough to admit 
 of evidence of all the injuries sustained in consequence of the 
 wrongful act alleged. For the purpose of estimating the extent 
 and magnitude of the injury, the court permitted the appellee 
 to introduce evidence of the nature, character, and amount of 
 business transacted at and before the date of the wrongful levy, 
 and also evidence of the complete destruction of that business, 
 and of the extent to which the credit and financial reputation 
 of the appellee were impaired, and also evidence of the actual 
 loss of the stock levied on, and of the expenses incurred in and 
 about the defense of the suit. No reason is perceived why these 
 facts do not constitute proper elements for the consideration of 
 a jury in estimating the damages occasioned by the tortious act 
 of the appellant. The evidence was pertinent to the issue made 
 by the pleadings, and the issue stated was broad enough to admit 
 the proof. 
 
 In actions on the case the party injured may recover from 
 the guilt}^ party for all the direct and actual damages of the 
 wrongful act and the consequential damages flowing therefrom. 
 The injured party is entitled to recover the actual damages and 
 such as are the direct and natural consequence of the tortious 
 act. 
 
 In this instance the amount of money actually paid out in and 
 about the defense of the suit, and the depreciation of the value 
 of the stock on which the wrongful levy is alleged to have been 
 made, are not the only damages sustained, if the appellant 
 wrongfully, unjustly, and maliciously and without probable 
 cause sued out the writ of attachment, and caused the same to
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 207 
 
 be levied in the maimer charged. The business of the appellee 
 had hitherto been prosperous, his credit and financial reputation 
 good, and all were destroyed by the malicious act of the appel- 
 lant, if it be conceded that he was guilty as alleged. It cannot 
 be said that the law will afford no redress for the destruction of 
 financial credit and reputation, or mete out no measure of pun- 
 ishment to the guilty party who wantonly and maliciously 
 destroys them. The reputation and credit of a man in business 
 is of great value, and is as much within the protection of the 
 law as property or other valuable rights. And if it be true that 
 the appellant has maliciously, by his wrongful act, destroyed the 
 business, credit, and reputation of the appellee, the law will re- 
 quire him to make good the loss sustained. Chapman v. Kirby, 
 49 111. 211. 
 
 The instructions given for the appellee announce these prin- 
 ciples with sufficient accuracy. The jury were correctly told 
 that in estimating the damages they might take into consider- 
 ation any injury shown by the evidence that the appellee sus- 
 tained in his business and reputation, together with the losses 
 actually sustained by the wrongful suing out of the writ of at- 
 tachment. The jury were also instructed that they were not 
 confined to the actual damages, if the TVTongful acts were wan- 
 tonly and maliciously committed, but they might give exemplary 
 damages. Such is the well-established rule of the law. * * * 
 
 We entertain no doubt, upon principle and upon authority, 
 that an action on the case for maliciously and without probable 
 cause, suing out a writ of attachment, is maintainable for the 
 injury of the business, credit and reputation of the defendant, 
 notwithstanding the statute has required the plaintiff to give a 
 bond, conditioned to pay all damages that may be occasioned by 
 the wrongful suing out of the writ. * * * 
 
 The judgment must he affirmed. 
 
 McHOSE V. FULMER. 
 
 Pennsylvania, 1873. 73 Pa. 365. 
 
 The cause of action was on a note given on purchase of pig 
 iron. Defendants claim that by the refusal of the plaintiffs to 
 furnish the iron as per contract, they (the defendants) have 
 suffered damage in an amount exceeding the whole amount of 
 the note for which suit is brought.
 
 208 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 SiiARs^woOD, J. When a vendor fails to comply with his 
 i;outract, the general rule for the measure of damages undoubt- 
 edly is, the difference between the contract and the market 
 price of the article at the time of the breach. This is for the 
 evident reason that the vendee can go into the market and ob- 
 tain the article contracted for at that price. But when the cir- 
 cumstances 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 ]\Iontgomery v. Reese, 2 Casey, 143. "It is manifest," 
 says Mr. Chief Justice Lewis, "that this (the ordinary measure) 
 would not remunerate him when the article could not be obtained 
 elsewhere." If an article of the same quality cannot be pro- 
 cured in the market, its market price cannot be ascertained, and 
 we are Avithout the necessary data for the application of the gen- 
 eral 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 sustains in his own manufacture, by hav- 
 ing 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 fulfilment of the contract by the 
 vendor. We do not mean to say, that if he undertakes to fill 
 his O'WTi contracts with an inferior article, and in consequence 
 such article is returned on his hands, he can recover of his 
 vendor, besides the loss sustained on his contracts, all the extra- 
 ordinary loss incurred by his attempting what was clearly an 
 unwarrantable experiment. His legitimate loss is the difference 
 betw^een 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-fulfilment of the contract. The affidavits of de- 
 fense 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 jurj'. Judgment reversed, and a procedendo awarded.
 
 DIRECT AND CONSEQUENTIAL DAMAGES, 209 
 
 BROWN V. CHICAGO, MILAVAUKEE, AND ST. PAUL 
 RAILAVAY. 
 
 Wisconsin, 1882. 54 Wis. 342. 
 
 Taylor, J. In this case we deem it material to determine 
 whether the action is an action for a tort, or an action for a 
 breach of the contract to carry the plaintiffs to their destina- 
 tion, because we think the rules of damages in the two actions 
 are essentially different. We hold that the action in this case 
 is based upon the tort of the defendant in negligently and care- 
 lessly directing the plaintiff's to leave the cars before they reached 
 their destination. 
 
 The plaintiffs claim, and the evidence shows, that they and 
 their child, about seven years old, were directed to leave the 
 cars, by the brakeman, at a place some three miles east of Maus- 
 ton, being told at the time that it was Mauston, their place of 
 destination. When they left the cars it was night ; it was cloudy, 
 and had rained the day before ; there was a freight train stand- 
 ing on a side track where they were put off the train ; there 
 was no platform, and no lights visible except those on the freight 
 train. Plaintiffs soon ascertained that they were not at Mauston, 
 and did not know where they were. They did not see the station- 
 house, although there was one, but it was hid from their view 
 by the freight train standing on the side track. They supposed 
 they were at a place two miles east, where the train sometimes 
 stopped, but where there was no station-house. They started 
 west on the track towards Mauston, expecting to find a house 
 where they might stop, but did not find one until they came to 
 the bridge, about a mile east of Mauston, and then they thought 
 it easier to go on to Mauston than seek shelter at the house, 
 which was a considerable distance from the track. They went 
 on to Mauston, and arrived there late at night, Mrs. Brown 
 quite exhausted from the walk. She was pregnant at the time. 
 She had severe pains during the night, and the pains continued 
 from time to time, and after a few days she commenced flow- 
 ing. The pains and flowing continued until some time in 
 December, when a miscarriage took place, after which inflamma- 
 tion set in, and for some time she was so sick that she was in 
 imminent danger of dying. The plaintiffs claim that the mis- 
 carriage and subsequent sickness were all caused by the walk
 
 210 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 Mrs. Bro^vll was conipelhHl to take to get from the place where 
 tlioy were left by tlie train to Mauston. 
 
 The important question in the case is, whether the appellant 
 is liable for the injury to j\Irs. Brown, admitting that it was 
 caused by her walk to jMauston. Whether the sickness of Mrs. 
 Brown was caused by the walk to Mauston was an issue in the 
 case, and the jury have found upon the evidence that it was 
 caused by the walk. There is certainly some evidence to sustain 
 this finding of the jury, and their finding is therefore conclusive 
 upon this point. Admitting that the walk caused the miscar- 
 riage and sickness of the plaintiff Mi's. Brown, it is insisted by 
 the learned counsel for the appellant, that the appellant is not 
 liable for such injury ; that it is too remote to be the subject of 
 an action ; that the negligence and carelessness of the defendants' 
 employees in putting the plaintiffs off the cars at the place they 
 did, was not the proximate cause of the miscarriage and sick- 
 ness, and for that reason the appellant company is not liable 
 therefor. * * * 
 
 The rule as to what damages may be recovered in actions for 
 breach of contract, is laid down by this court in the ease of 
 Candee v. W. U. Tel. Co., 34 Wis. 479, cited from Hadley v. 
 Baxendale, 9 Exch. 341, and approved. * * * 
 
 The rules which limit the damages in actions of tort, so far 
 as any general rules can be established, are in many respects 
 different from those in actions on contract. The general rule 
 is, that the party who commits a trespass or other wrongful 
 act is liable for all the direct injury resulting from such act, 
 although such resulting injury could not have been contem- 
 plated as a probable result of the act done. (Cithig authori- 
 ties.) * * * 
 
 As stated by Justice Colt in the case of Hill v. Winsor, 118 
 Mass. 251: "It cannot be said, as a matter of law, that the 
 jury might not properly find it obviously probable that injury 
 in some form would be caused to those who were at work on tlie 
 fender by the act of the defendants in running against it. This 
 constitutes negligence, and it is not necessary that the injury, 
 in the precise form in which it in fact resulted, should have 
 been foreseen. It is enough that it now appears to have been 
 a natural and probable consequence." 
 
 In the case of Bowas v. Pioneer Tow Line, supra, Judge Hoff- 
 man, speaking of the rule in relation to damages on a breach of
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 211 
 
 contract, as contrasted with the rule in case of wrong, says: 
 "The effect of this rule is more often to limit than to extend 
 the liability for a breach of contract, although sometimes, when 
 the special circumstances under which the contract was made 
 have been communicated, damages consequential upon a breach 
 made under those circumstances will be deemed to have been 
 contemplated by the parties, and may be recovered by the de- 
 fendant. But this rule, as Mr. Sedgwick remarks, has no appli- 
 cation to torts. He who commits a trespass must be held to 
 contemplate all damage which may legitimately flow from his 
 illegal act, whether he may have foreseen them or not; and so 
 far as it is plainly traceable, he must make compensation for it. ' ' 
 
 The justice and propriety of this rule are manifest, when 
 applied to cases of direct injury to the person. If one man 
 strike another, with a weapon or with his hand, he is clearly 
 liable for all the direct injury the party struck sustains there- 
 from. The fact that the result of the blow is unexpected and 
 unusual, can make no difference. If the wrong-doer should 
 in fact intend but slight injury, and deal a blow which in ninety- 
 nine case in a hundred would result in a trifling injury, and 
 yet by accident produce a very grave one to the person receiv- 
 ing it, owing either to the state of health or other accidental 
 circumstances of the party, such fact would not relieve the 
 wrong-doer from the consequences of his act. The real question 
 in these cases is. Did the wrongful act produce the injury com- 
 plained of ? and not whether the party committing the act could 
 have anticipated the result. The fact that the act of the party 
 giving the blow is unlawful, renders him liable for all its direct 
 evil consequences. 
 
 This was the substance of the decision in the old and often 
 cited squib case of Scott v. Shepherd, 2 W. Bl. 892. Justice 
 Nares there says that, "the act of throwing the squib being im- 
 lawful, the defendant was liable to answer for the consequences, 
 be the injury mediate or immediate;" and in this view of the 
 ease all the judges agreed, although they differed upon the ques- 
 tion as to the form of the action. 
 
 In the case at bar, the question to be determined is, whether 
 the negligent act of the defendants' employees in putting the 
 plaintiffs and their child off the train in the night-time, at the 
 place where they did, was the direct cause of the injury com- 
 plained of by the plaintiffs, or whether it was only a remote
 
 212 DIRECT AND CONSEQUENTIAL DAMAGE.-. 
 
 cause for ^vhieh no action lies. We must, in eonsidering this 
 case, take it lor granted that the walk from the place where 
 they left the cars to Mansion was the immediate cause of the 
 injury complained of. We think the qneslion whether there 
 was any negligence on the part of the plaintiffs in taking the 
 walk, was properly left to the jury, as a question of fact; and 
 they found that they were guilty of no negligence on their 
 pai-t. They found themselves placed by the wrongful act of 
 the defendant where it became necessary for their protection 
 to make the journ(\v. The fact that there was a station-house 
 near by, at which they might have found shelter until another 
 train came by, is not conclusive that the plaintiffs were negli- 
 gent in the matter. They were landed at a place where they 
 coukl not see it, and the jur\- have found that under the circum- 
 stances they were not guilty of negligence in not finding it. 
 The defendant must therefore be held to have caused the plaint- 
 iff's to make the journey as the most prudent thing for them to 
 do under the circumstances. And, we think, under the rules of 
 law, the defendant must be liable for the direct consequences 
 of the journey. Had the defendant wrongfully placed the 
 plaintiffs off the train in the open country, where there was no 
 shelter, in a cold and stormy night, and, on account of the state 
 of health of the parties, in their attempts to find shelter they 
 had become exhausted and perished, it would seem quite clear 
 that the defendant ought to be liable. The wrongful act of 
 the defendant would be the natural and direct cause of their 
 deaths, and it would seem to be a lame excuse for the defendant, 
 that, if the plaintiffs had been of more robust health, they 
 would not have perished or have suffered any material injury. 
 
 The defendant is not excused because it did not know the 
 state of health of Mrs. Bro^vn, and is equally responsible for the 
 consequences of the walk as though its employees had full knowl- 
 edge of that fact. This court expressly so held in the case of 
 Stewart v. Ripon, 38 Wis. 591, and substantially in the case 
 of Oliver v. Town of La Valle, 36 Wis. 592. 
 
 Upon the findings of the jury 'in this case, it appears that 
 the defendant was guilty of wrong in putting the plaintiffs off 
 the cars at the place they did; that in order to protect them- 
 selves from the effects of such wrong they made the walk to 
 Mauston; that in making such walk they were guilty of no 
 negligence, but were compelled to make it on account of the
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 213 
 
 defendant "s WTongful act; and that, on account of the peculiar 
 state of health of Mrs. Brown at the time, she was injured 
 by such walk. There was no intervening independent cause 
 of the injury, other than the act of the defendant. All the 
 acts done by the plaintiffs, and from which the injury flowed, 
 were rightful on their part, and compelled by the act of the 
 defendant. We think, therefore, it must be held that the in- 
 jury to Mrs. Brown was the direct result of the defendant's 
 negligence, and that such negligence was the proximate and 
 not the remote cause of the injurj', within the decisions above 
 quoted. We can see no reason why the defendant is not equally 
 liable for an injury sustained by a person who is placed in a 
 dangerous position, whether the injury is the immediate result 
 of a wrongful act, or results from the act of the party in en- 
 deavoring to escape from the immediate'danger. 
 
 When by the negligence of another a person is threatened 
 with danger, and he attempts to escape such threatened danger 
 by an act not culpable in itself under the circumstances, the 
 person guilty of the negligence is liable for the injury re- 
 ceived in such attempt to escape, even though no injury would 
 have been sustained had there been no attempt to escape the 
 threatened danger. This was so held, and we think properly, 
 in the case of a passenger riding upon a stage-coach, who 
 supposing the coach would be overturned, jumped therefrom 
 and was injured, although the coach did not overturn, and 
 would not have done so had the passenger remained in his seat. 
 The passenger acted upon appearances, and, not having acted 
 negligently, it was held that he could recover; it being showTi 
 that the coach was driven negligently at the time, which neg- 
 ligence produced the appearance of danger, Jones v. Boyce, 1 
 Stark. 493. The ground of the decision is very aptly and 
 briefly stated by Lord Ellenborough in the case as follows: "If 
 I place a man in such a situation that he must adopt a perilous 
 alternative, I am responsible for the consequences." 
 
 So, in the case at bar, the defendant, by its negligence, placed 
 the plaintiffs in a position where it was necessary for them to 
 act to avoid the consequences of the wrongful act of the de- 
 fendant, and, acting with ordinary prudence and care to get 
 themselves out of the difficulty in which they had been placed, 
 they sustained injury. Such injury can be, and is, traced di- 
 rectly to the defendant's negligence as its cause; and it is its
 
 Iil4 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 proximate cause, within the rules of law upon that subject. The 
 true meaning of the maxim, causa proxinia noii remota spec- 
 ta(u)', is probably as well defined by the late Chief Justice Dixon 
 in tlie ease of KeUogg v. Railway Co., 26 Wis. 223, as by any 
 other judge or court. He states it as follows: "An efficient, 
 adequate cause being found, must be considered the true cause, 
 unless some other cause not incident to it, but independent of 
 
 it, is shoA\Ti to have intervened between it and the result." 
 
 m * * 
 
 There is, I think, but one case cited by the learned counsel 
 for the appellant which appears to be in direct conflict with 
 this view of the case, except those which relate to breaches of 
 contract, and that is the Pullman Palace Car Co. v. Barker, 
 4 CoL. 344. This case is, we think, unsustained by authority, 
 and is in direct conflict with the decisions of this court in the 
 cases of Stewart v. Ripon and Oliver v. To-wn of La Valle, 
 supra. This decision is, it seems to me, supported by the prin- 
 ciples of neither law nor humanity. It in effect says that, if 
 an individual unlawfully compels a sick and enfeebled person 
 to expose himself to the cold and storm to escape worse con- 
 sequences from his wrongful act, he cannot recover damages 
 from the wrong-doer, because it was his sick and enfeebled con- 
 dition which rendered his exposure injurious. Certainly such 
 a doctrine does not commend itself to those kinder feelings which 
 are common to humanity, and I know of no other case which 
 sustains its conclusions. 
 
 It is said by the Supreme Court of the United States in M. & 
 St. P. Railway Co. v. Kellogg, (94 U. S. 475) : 
 
 "The true rule is, that what is the proximate cause of an in- 
 jury is ordinarily a question for the jury. It is not a question 
 of science or legal knowledge. It is to be determined as a fact, 
 in view of the circumstances attending it. " * * * 
 
 By the Court. — The judgment of the Circuit Court is 
 affirmed. 
 
 Cole, C. J. and Lyon, J. dissent. 
 
 WOOD V. PENNSYLVANIA R. CO. 
 
 Pennsylvania, 1896. 177 Pa. 306. 
 
 Dean, J. We take the facts, as stated by the court below, 
 as follows: On the 26th of October, 1893, the plaintiff, hav-
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 215 
 
 ing bought a return ticket, went as a passenger upon the rail- 
 road of the defendant company from Frankfort to Holmesburg. 
 After spending the day there, attending to some matters of 
 business, he concluded to come back upon a way train, due at 
 Holmesburg at 5 minutes after 6 in the evening. While wait- 
 ing for this train, the plaintiff stood on the platform of the 
 station, which was on the north side of the tracks, at the east- 
 em end of the platform, with his back against the wall at the 
 comer. To the eastward of the station, a street crosses the rail- 
 road at grade. How far this crossing is from the station does 
 not appear from the evidence. It was not so far away, how- 
 ever, but that persons on the platform could see objects at the 
 crossing. For at least 150 yards to the eastward of the cross- 
 ing the railroad is straight, and then curves to the right. About 
 6 o'clock an express train coming from the east upon the north 
 track passed the station, and the plaintiff, while standing in 
 the position described, was struck upon the leg by what proved 
 to be the dead body of a woman, and was injured. The head- 
 light of the approaching locomotive disclosed to one of the wit- 
 nesses who stood on the platform two women in front of the 
 train at the street crossing, going from the south to the north 
 side of the tracks. One succeeded in getting across in safety, 
 and the other was struck just about as she reached the north 
 rail. How the woman came to be upon the track there is nothing 
 in the evidence to show. There was evidence that no bell was 
 rung or whistle blown upon the train which struck the woman 
 before it came to the crossing, and some evidence that it was 
 running at the rate of from 50 to 60 miles an hour. Upon this 
 state of facts, the trial judge entered a nonsuit. The court in 
 bane, having afterwards refused to take off the nonsuit, we have 
 this appeal. 
 
 Was the negligence of defendant the proximate cause of 
 plaintiff's injury? Judge Pennypacker, delivering the opinion 
 of a majority of the court below, concluded it was not, and re- 
 fused to take off the nonsuit. Applying the rule in Hoag v. 
 Railroad Co., 85 Pa. 293, to these facts, the question on which 
 the case turns is: "Was the injury the natural and probable 
 consequence of the negligence — such a consequence as, under 
 the surrounding circumstances, might and ought to have been 
 foreseen by the wrong-doer as likely to flow from his act?'* 
 
 The mle quoted in Hoag v. Railroad Co., supra, is, in sub-
 
 216 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 stance, the conclusion of Lord Bacon, and the one given in 
 Broom's Legal Maxims. It is not only the well-settled rule of 
 this state, but is, generally, that of the United States. Prof, 
 Jaggard, in his valuable work on Torts, after a reference to 
 very many of the cases decided in a large number of the states, 
 among them Hoag v. Railroad Co., comes to this conclusion: 
 "It is admitted that the rule is difficult of application. But 
 it is generally held that, in order to warrant a finding that neg- 
 ligence, or an act not amounting to wanton wrong, is a proxi- 
 mate cause of an injury, it must appear that the injury was the 
 natural and probable consequence of the negligence or wrong- 
 ful act, and that it ought to have been foreseen in the light of 
 the attending circumstances." Jag. Torts, c. 5. Judge Cooley 
 states the rule thus: "If the original act was wrongful, and 
 M^ould naturally, according to the ordinary course of events, 
 prove injurious to some others, and result, and does actually 
 result, in injury, through the intervention of other causes not 
 wrongful, the injury shall be referred to the wrongful cause, 
 passing through those which were innocent." Cooley, Torts, 69. 
 This, also, is in substance the rule of Hoag v. Railroad Co. All 
 the speculations and refinements of the philosophers on the exact 
 relations of cause and effect help us very little in the determina- 
 tion of rules of social conduct. The juridical cause, in such a 
 case, as we have held over and over, is best ascertained in the 
 practical affairs of life by the application to the facts of the 
 rule in Hoag v. Railroad Co. 
 
 Adopting that rule as the test of defendant's liability, how do 
 we determine the natural and probable consequences, which 
 must be foreseen of this act? "We answer in this and all like 
 cases: from common experience and observation. The prob- 
 able eonseqaence of crossing a railroad in front of a near and 
 approaching train is death, or serious injury. Therefore, act- 
 ing from an impulse to self-preservation, or on the reflection" 
 that prompts to self-preservation, we are deterred from crossing. 
 Our conduct is controlled by the natural and probable conse- 
 quence of what our experience enables us to foresee. True, a 
 small number of those who have occasion to cross railroads are 
 reckless, and, either blind to or disregardful of consequences, 
 cross, and are injured, killed, or barely escape. But this reck- 
 lessness of the very few in no degree disproves the foreseeable- 
 ness of the consequences b}' mankind generally. Again, the
 
 DIRECT AND CONSEQUENTIAL DAMAGES. 217 
 
 competent railroad engineer knows from his own experience 
 and that of others in like employment that to approach a grade 
 highway crossing with a rapidly moving train without warning 
 is dangerous to the lives and limbs of the public using the 
 crossing. He knows death and injury are the probable conse- 
 quences of his neglect of duty ; therefore he gives warning. But 
 does any one believe the natural and probable consequence of 
 standing 50 feet from a crossing, to the one side of a railroad, 
 when a train is approaching, either with or without warning, is 
 death or injury ? Do not the most prudent, as well as the public 
 generally, all over the land, do just this thing every day, with- 
 out fear of danger? The crowded platforms and groimds of 
 railroad stations, generally located at crossings, alongside of 
 approaching, departing, and swiftly passing trains, prove that 
 the public, from experience and observation, do not, in that 
 situation, foresee any danger from trains. They are there be- 
 cause, in their judgment, although it is possible a train may 
 strike an object, animate or inanimate, on the track, and hurl 
 it against them, such a consequence is so highly improbable that 
 it suggests no sense of danger. They feel as secure as if in 
 their homes. To them it is no more probable than that a train 
 at that point will jump the track and run over them. If such 
 a consequence as here resulted was not natural, probable, or 
 foreseeable to anybody else, should defendant, under the rule 
 laid down in Hoag v. Railroad Co., be chargeable with the con- 
 sequence? Clearly, it was not the natural and probable conse- 
 quence of its neglect to give warning, and therefore was not 
 one which it was bound to foresee. The injury, at most, was 
 remotely possible, as distinguished from the natural and prob- 
 able consequences of the neglect to give warning. As is said in 
 Railroad Co. v. Trich, 117 Pa. 399: "Responsibility does not 
 extend to every consequence, which may possibly result from 
 negligence. ' ' 
 
 What we have said thus far is on the assumption the accident 
 was caused solely by the negligence of defendant, or by the con- 
 curring negligence of defendant and the one killed going upon 
 the track with a locomotive in full view. This being an action 
 by an innocent third person, he cannot be deprived of his remedy 
 because his injury resulted from the concuri'ent negligence of
 
 218 DIRECT AND CONSEQUENTIAL DAMAGES. 
 
 two others, IIo fails because his injury was a consequence 
 so remote that defendant could not reasonably foresee it. 
 We think the nonsuit wiis properly entered. 
 
 The judgment is affirmed. 
 
 Tn Mann Boudoir Car Co. v. Dupre, 54 Fed. 040, McCormick, Circuit 
 Judse. held that where the misconduct of the carrier's servant to a 
 female passenger enceinte was the proximate cause of a miscarriage, 
 the carrier was not excused because he did not understand the physical 
 condition of the lady. 
 
 In Chapman v. Kirby, 49 111. 210, where a well-established business 
 of plaintiff was broken up by defendants wrongful act, defendant was 
 held liable for all the losses flowing from it. 
 
 A municipal coi'poration is not responsible for consequential damages 
 caused by negligence in improving a public street. Uppington v. City of 
 New York. 105 N. Y. 222. 
 
 For liability in case of consequential damages, see Boehrer v. Juer- 
 gens, 133 Wis. 426, an action against a manufacturing jeweler to whom 
 jewels had been sent for repair. 
 
 For proximate cause see also Laidlaw v. Sage, 158 N. Y. 73; and 
 Kleiner v. Third Ave. R. R. Co. 162 N. Y. 193. 
 
 Guille V. Swan. 19 Johns, 381, is a very celebrated case illustrating 
 the doctrine of direct and consequential damages. A balloonist descended 
 near Swan's garden ; a crowd assembled out of curiosity and trod on 
 the flowers and plants of plaintiff. A verdict of $90 was sustained, de- 
 fendant being held as eausa causans, on the authority of the famous 
 squib case, Scott v. Shepherd. 2 Black. Rep. 892. 
 
 In Botkin v. Miller, 190 Mass. 44, the same question of remote dam- 
 ages arose in connection with disorder and injury to plaintiff's barber 
 shop in Boston, on September 14th, 1901, a day kept as a holiday by 
 orthodox Jews. Defendant's business declined but there was no further 
 showing as to the cause of the decline. Held that defendants were not 
 liable for loss of profits. See Crowell v. Moley, 188 Mass. 116.
 
 IV. CERTAINTY. 
 
 Contingent, Remote and Speculative Damages. 
 
 LOKER V. DAMON. 
 
 Massachusetts, 1835. 17 Pick. 284. 
 
 Trespass quare clausum. The declaration set forth, that the 
 defendants destroyed and carried away ten rods of the plaintifiE 's 
 fences, in consequence of which certain cattle escaped through 
 the breach and destroyed the plaintiff's grass, and that he 
 thereby lost the profits of his close from September, 1832, to 
 July, 1833. A default was entered by agreement. Damages were 
 to be assessed on such principles as the court should determine. 
 
 Shaw, C. J. * * * The Court are of opinion, that the 
 direction respecting damages was right. In assessing damages, 
 the direct and immediate consequences of the injurious act are 
 to be regarded, and not remote, speculative, and contingent con- 
 sequences, which the party injured might easily have avoided 
 by his own act. Suppose a man should enter his neighbor's field 
 unlawfully, and leave the gate open ; if, before the owner knows 
 it, cattle enter and destroy the crop, the trespasser is responsible. 
 But if the owner sees the gate open and passes it frequently, and 
 willfully and obstinately or through gross negligence leaves it 
 open all summer, and cattle get in, it is his own folly. So if one 
 throw a stone and break a window, the cost of repairing the 
 window is the ordinary measure of damage. But if the owner 
 suffers the window to remain without reparing a great length 
 of time after notice of the fact, and his furniture, or pictures, or 
 other valuable articles, sustain damage, or the rain beats in and 
 rots the window, this damage would be too remote. We think 
 the jury were rightly instructed, that as the trespass consisted 
 m removing a few rods of fence, the proper measure of dam- 
 age was the costs of repairing it, and not the loss of a subsequent 
 year's crop, arising from the want of such fence. I do not 
 mean to say, that other damages may not be given for injury in 
 
 219
 
 220 CERTAINTY. 
 
 breaking the i)laintiff's close, but I mean only to say, that in 
 the actual circumstances of this case, the cost of replacing the 
 fence, and not the loss of an ensuing year's crop, is to be taken 
 as the rule of damages, for that part of the injury which con- 
 sisted in removing the fence and leaving the close exposed. 
 Judgment on the default, for the sum of $1.50 damages. 
 
 MASTERTON v. MOUNT VERNON. 
 
 New York, 1874. 58 N. Y. 391. 
 
 This action was brought to recover damages for injuries re- 
 ceived by plaintiff being thrown from his wagon in one of the 
 streets of the village of Mount Vernon, called Fourth avenue. 
 
 The accident was occasioned by the wagon sinking into a ditch 
 or excavation made by the owners of lots upon said street, with 
 the consent of the village trustees. 
 
 Grover, J. * * * I also think the judge erred in overrul- 
 ing the defendant's objection to the following question: About 
 what had been your profits, year by year, in that business ? The 
 plaintiff had testified that he was engaged in the tea importing 
 and jobbing business, buying and selling teas, and had been for 
 a great number of years. That he had a partner who attended 
 to the sales, while he made the purchases. That in purchasing 
 teas a high degree of skill was necessary, which the plaintiff pos- 
 sessed. That the business was extensive. That in consequence 
 of the injury the plaintiff could not purchase teas, and there was 
 a great falling off in the business of the firm. In Lincoln v. Sara- 
 toga and S. Railroad Co., 23 Wend. 425, it was held, in an 
 analogous case, that the plaintiff might prove that he was en- 
 gaged in the dry goods business, and its extent, but there was no 
 attempt to prove the past profits of the business, with a view to 
 show what the future would be. Where, in such a case, the plain- 
 tiff has received a fixed compensation for his services, or his 
 earnings can be sho\vn with reasonable certainty, the proof is 
 competent. Mclntyre v. N. Y. C. R. R. Co., 37 N. Y. 287 ; Grant 
 V. The City of Brooklyn, 41 Barb. 381. In Nebraska City v. 
 Campbell, 2 Black, 590, it was held that proof that the plaintiff 
 was a physician, and the extent of his practice, was competent. 
 Wade V. Leroy, 20 How. (U. S.) 24, held the same. In none of 
 these cases is any intimation given that proof may be given as 
 to the uncertain future profits of commercial business, or that
 
 CONTINGENT, REMOTE AND SPECULATIVE DAMAGES. 221 
 
 the amount of past profits derived therefrom may be shown, to 
 enable the jury to conjecture what the future might probably be. 
 These profits depend upon too many contingencies, and are alto- 
 gether too uncertain to furnish any safe guide in fixing the 
 amount of damages. In Walker v. The Erie R. R. Co., 63 Barb. 
 260, it was held that proof of the amount of income derived by 
 the plaintiff for the year preceding the injury, from the practice 
 of his profession as a lawyer, was competent. This goes bej^ond 
 the rule adopted in any of the other cases, and it certainly ought 
 not to be further extended. AYhether proof of the income de- 
 rived by a laAvyer from the past practice of his profession is com- 
 petent for the purpose of authorizing the jury to draw an infer- 
 ence as to the extent of the loss sustained bj^ inability to person- 
 ally attend to business, may, I think, well be doubted. There is 
 no such uniformity in the amount in different years, as a general 
 rule, as to make such inference reliable. But the profi.ts of im- 
 porting and selling teas are still more uncertain. In some years 
 they may be large, and in others attended with loss. The plain- 
 tiff had the right to prove the business in which he was engaged, 
 its extent, and the particular part transacted by him, and, if he 
 could, the compensation usually paid to persons doing such busi- 
 ness for others. These are circumstances the jury have a right to 
 consider in fixing the value of his time. But they ought not to 
 be permitted to speculate as to the uncertain profits of commer- 
 cial ventures, in which the plaintiff, if uninjured, would have 
 been engaged. 
 
 The judgment appealed from should be reversed, and a new 
 trial ordered, costs to abide the event. 
 
 All concur. 
 
 LILLEY i'. DOUBLEDAY. 
 High Court of Justice, 1881. L. R. 7 Q. B. Div. 510. 
 
 !Motion to enter judgment for the plaintiff pursuant to the 
 findings of the jury. A rule for a new trial, on the ground that 
 the findings were wrong, was disposed of in the course of the 
 argument. The action was to recover the value of certain drap- 
 ery goods warehoused by the defendant for the plaintiff, which 
 were destroyed by fire. The contract was that the goods should 
 be deposited at the defendant's repository at Kingsland Road, 
 but a portion of them w^ere deposited by the defendant elsewhere,
 
 222 CERTAINTY. 
 
 and a fire occurring they were destro.yed. The plaintiff had 
 nisured tlio goods, giving Kiugsland Koad as the place where 
 they wore deposited, and in consequence lost the benefit of the 
 .insurance. 
 
 Counsel for the plaintiff, contended that there had been a con- 
 version of the goods by the defendant, which entitled the plain- 
 tiff to recover their value, and further that, the contract being 
 to keep the goods at Kiugsland Road, and that contract having 
 been broken, the defendant took the risk of the loss of the goods 
 on him, and was liable for their value: Davis v. Garrett. (6 
 Bing. 71G). 
 
 Coimsel for the defendant, contended that there had been no 
 conversion, and that there having been no intention to convert 
 the goods to the defendant's use and nothing to change their 
 quality, the defendant would only be liable in case he did not use 
 reasonable care as a warehouseman: Fouldes v. Willoughby (8 
 M. & W. 540.) ; that the damages claimed would be too remote 
 within the rule of Hadley v. Baxendale (9 Ex. 341.), as not 
 being in the contemplation of the parties, and that Hobbs v. 
 London and South Western Ry. Co. (Law Rep 10 Q. B. 111.) 
 was an authority in favor of the defendant. They also referred 
 to Heald v. Carey (11 C. B. 977) ; Glynn v. East and West 
 India Dock Co. (6 Q. B. D. 475) ; British Columbia Saw Mill 
 Co. V. Nettleship (Law Rep. 3 C. P. 499). 
 
 Grove, J. I think the plaintiff is entitled to judgment. It 
 seems to me impossible to get over this point, that by the finding 
 of the jury there has been a breach of contract. The defendant 
 was entrusted with the goods for a particular purpose and to 
 keep them in a particular place. He took them to another, and 
 must be responsible for what took place there. The only excep- 
 tion I see to this general rule, is where the destruction of the 
 goods must take place as inevitably at one place as at the other. 
 If a bailee elects to deal with the property entrusted to him in 
 a way not authorized by the bailor, he takes upon himself the 
 risk of so doing, except where the risk is independent of his 
 acts or inherent in the property itself. That proposition is fully 
 supported by the case of Davis v. Garrett (6 Bing. 716), which 
 contains very little that is not applicable to this ca.se. It was 
 argued that that case was decided on the ground that the de- 
 fendant was a common carrier, but that is not the ground of 
 the judgment of Tindal, C. J., who decided that as the loss had
 
 CONTINGENT, REMOTE AND SPECULATIVE DAMAGES. 223 
 
 happened while the wrongful act of the defendant was in oper- 
 ation and was attributable to his wrongful act, he could not set 
 up as an answer to the action the bare possibility of the loss if 
 his wrongful act had never been done, and he illustrated the 
 ease by saying that a defendant who had by mistake forwarded 
 a parcel by the wrong conveyance, if a loss had thereby ensued, 
 would undoubtedly be liable. I do not give any opinion whether 
 what w^as done here amounted to a conversion, but I base my judg- 
 ment on the fact that the defendant broke his contract, by deal- 
 ing with the subject-matter in a manner different from that in 
 which he contracted to deal with it. The only ease that would 
 have made me hesitate is Hobbs v. London and South Western 
 Ky. Co. (Law Rep. 10 Q. B. Ill), and that we are told has some 
 doubt thrown on it in a recent case in the Court of Appeal 
 (M'Mahon v. Field, 7 Q. D. p. 591), at all events the doubt in- 
 duced by the former case is not strong enough to make me alter 
 the opinion I have expressed on this one. There will, therefore, 
 be judgment for the plaintiff. 
 
 LiNDLEY, J. I am of the same opinion. The plaintiff gave 
 his goods to the defendant to be warehoused at a particular place, 
 the defendant warehoused them elsewhere, where, without any 
 particular negligence on his part, they were destroyed. The 
 consequence is that the plaintiff has a cause of action and is 
 entitled to damages. The question is. what damages? Hadley 
 v. Baxendale (9 Exch. 334) is wide of the mark, because the 
 question here is whether the defendant was responsible for the 
 goods, and if so the damages must be their value. Then, it is 
 further said that the defendant was responsible only for want 
 of reasonable care, but is that so when he has departed from 
 his authority in dealing with the goods? I give no opinion 
 whether there is a conversion of the goods ; the question is, what 
 answer has the defendant to the plaintiff who asks for them 
 back. Can he say he will neither return the goods nor pay their 
 value? I think he cannot. The reasoning in Davis v. Garrett 
 (6 Bing. 716) is applicable to this case, and Burrows v. March 
 Gas and Coke Co. (Law Rep. 5 Ex. 67; on appeal. Law Rep. 7 
 Ex. 96) shows that the damage is not too remote. 
 
 Stephen, J., concurred: 
 
 Judgment for the plaintiff.
 
 224 CERTAINTY. 
 
 IIICIIIIORN V. BRADLEY. 
 
 Iowa, 1902. 117 Iowa, UQ. 
 
 Action on ac-coimt for cigars sold and delivered at an agreed 
 price. Defendant set up, by way of counterclaim, damages sus- 
 tained through the breach by plaintiff of an agreement which 
 the defendant alleged gave him the exclusive right to sell a cer- 
 tain brand of cigars in certain territory. The defendant by ef- 
 forts and expenditures had created a demand for the cigars in 
 this territory, when plaintiff refused to furnish any more cigars. 
 The jury returned a verdict for defendant on his counterclaim 
 and the plaintiffs appeal. 
 
 McClain, J. * * * The chief contention, however, of 
 counsel for appellants, is that the damages which defendant at- 
 tempted to show were too remote and speculative to be con- 
 sidered. * * * Here we are not concerned with the ques- 
 tion which sometimes arises, whether profits are within the con- 
 templation of the parties, according to the rule of Hadley v. 
 Baxendale, 9 Exch. 341, which has been frequently cited, and has 
 been approved by this court in Mihill's IManufacturing Co. v. 
 Day, 50 Iowa, 250, and other cases. It is perfectly clear in this 
 case that the profits to be derived from the sale of these cigars 
 constituted the only consideration to the defendant for entering 
 into the contract, and that the loss of such profits was in the 
 contemplation of the parties at the time the contract was made 
 as a direct consequence which would result from its breach. And 
 it is well settled that when the loss of future profits is thus in the 
 contemplation of the parties, and does directly result from the 
 breach of the contract, the amount of profits thus lost may be 
 recovered. * * * 
 
 The distinction between an erroneous rule of law, sometimes 
 assumed, that prospective profits are not to be considered in 
 measuring damages for breach of contract, and the correct propo- 
 sition, that remote and speculative profits cannot be shown, for 
 the reason that no sufficient evidence thereof is attainable, is 
 thus stated in U. S. v. Behan, 110 U. S. 338, 344, "The prima 
 facie measure of damages for the breach of a contract is the 
 amount of the loss which the injured party has sustained thereby. 
 If the breach consists in preventing the performance of the con- 
 tract, without the fault of the other party, who is willing to per- 
 form it, the loss of the latter will consist of two distinct items or
 
 CONTINGENT, REMOTE AND SPECULATIVE DAMAGES 225 
 
 grounds of damage, namely : First, what he has already expended 
 towards performance, less the value of materials on hand; sec- 
 ondly, the profits that he would realize by performing the whole 
 contract. The second item — profits — cannot always be re- 
 covered. They may be too remote and speculative in their char- 
 acter, and therefore incapable of that clear and direct proof 
 which the law requires. But when, in the language of Chief 
 Justice Nelson in the case of Masterton v. Mayor, etc., 7 Hill 
 (N. Y.) 69, they are the 'direct and immediate fruits of the con- 
 tract,' they are free from this objection. They are then '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 fulfilment of any other stipulation.' Still, in order to fur- 
 nish a ground of recovery in damages, they must be proved. If 
 not proved, or if they are of such a remote and speculative char- 
 acter that they cannot be legally proved, the party is confined to 
 his loss of actual outlay and expense." [Here the learned jus- 
 tice cites authorities.] 
 
 So where an agent contracts to give his entire time to his em- 
 ployer for a compensation to be determined by commissions on 
 sales of goods, his measure of damage for being thrown out of 
 employment under the contract is the value of his time lost, and 
 not the profits which he would have made ; the value of his time 
 being a more satisfactory measure than the uncertain and in- 
 definite profits. Machine Co. v. Bryson, 44 Iowa, 159; Wilson 
 Sewing Mach. Co. v. Sloan, 50 Iowa, 367; Brigham v. Carlisle, 
 78 Ala. 243. These last three cases are especially relied on by 
 appellant, but the present case is plainly distinguishable from 
 them. In those cases there was a measure of damage which 
 could be resorted to for the purpose of giving the injured party 
 relief for breach of contract ; and the court in each case thought 
 that this measure was more satisfactory than that to be reached 
 by considering the profits which might have been made by the 
 complaining party, had he been allowed to perform his contract. 
 If the question considered in Machine Co. v. Bryson. s^ipra, 
 were now before us for the first time, we might, in view of the 
 later authorities, incline to the view expressed in the dissenting 
 opinion. As supporting that view, see, in addition to cases 
 already cited. Wells v. Association, 99 Fed. 222. But in the 
 case before us there is no such measure of damage available as 
 
 15
 
 226 CERTAINTY. 
 
 was found in the cases relied on by the counsel for appellant. 
 Defendant did not contract to give his entire services to plaintiff 
 in the sale of cigars, nor were his entire earnings dependent on 
 the profits to be made out of this contract. Here it is impossible 
 to estimate his damage by the value of the time lost. Nor is it 
 possible to measure his damage by the labor and expense in- 
 volved in introducing plaintiffs' cigars to the trade. To some 
 extent, defendant has already been compensated for that labor 
 and expense by the profits derived from the sale of plaintiff's' 
 cigars during the time of the continuance of defendant's 
 agency ; and it would be manifestly impossible to determine the 
 proportion of the labor and expense for which he had received 
 compensation, and the proportion for which he was dependent 
 by way of compensation on the profits which should have been 
 derived from future sales which he was not allowed to make. 
 It is well established by the decided preponderance of authority 
 that where future profits are in the contemplation of the parties, 
 and there is no other basis on which damages for breach of con- 
 tract can be estimated, such profits may be made the basis for the 
 recovery of damages. * * * 
 
 In a somewhat similar ease (Wakeman v. Manufacturing Co., 
 101 N. Y. 205), it is said that damages by way of prospective 
 profits "are nearly always involved in some uncertainty and 
 contingency. Usually they are to be worked out in the future, 
 and they can be determined only approximately upon reason- 
 able conjectures and probable estimates. They may be so un- 
 certain, contingent, and imaginary as to be incapable of ade- 
 quate proof, and then they cannot be recovered, because they 
 cannot be proved. But when it is certain that damages have 
 been caused by a breach of contract, and the only uncertainty 
 is as to their amount, there can rarely be good reason for re- 
 fusmg, on account of such uncertainty, any damages whatever ^ 
 for the breach. A person violating his contract should not be 
 permitted entirely to escape liability because the amount of the 
 damages which he has caused is uncertain. It is not true that 
 loss of profits cannot be allowed as damages for a breach of con- 
 tract. Losses sustained and gains prevented are proper elements 
 of damage. Most contracts are entered into with the view to 
 future profits, and such profits are in the contemplation of the 
 parties, and so far as they can be properly proved, they may 
 form the measure of damage. As they are prospective, they
 
 CONTINGENT, REMOTE AND SPECULATIVE I AMAGES. 227 
 
 must, to some extent, be uncertain and problematical, and yet 
 on that account a person complaining of breach, of contract is 
 not to be deprived of all remedy. It is usually his right to 
 prove the nature of his contract, the circumstances surrounding 
 and following its breach, and the consequences naturally and 
 plainly traceable to it ; and then it is for the jury, under proper 
 instructions as to the rules of damages, to determine the compen- 
 sation to be awarded for the breach. When a contract is re- 
 pudiated, the compensation of the party complaining of its repu- 
 diation should be the value of the contract." To the same ef- 
 fect, see Schumaker v. Heinemann, 99 Wis. 251. Although such 
 a measure of damages may be unsatisfactory and uncertain, yet, 
 if it is the most satisfactory and certain measure which is at- 
 tainable, justice is not to be defeated because a better measure 
 is not at hand. "The administration of justice frequently pro- 
 ceeds with reasonable certainty of accomplishing what is right, 
 or as nearly right as human efforts may attain in the face of 
 similar difficulties; and it does so by making the experience of 
 mankind, or, rather, the judgment which is founded upon such 
 experience, the guide." Taylor v. Bradley, 39 N. Y. 129, 144. 
 It seems never to have been held in this state that, where there 
 is no other measure of damages for breach of contract, a con- 
 tracting party is to be denied any damage because no better 
 measure than the reasonable prospective profits of a business is 
 attainable. We think that it would be manifestly unjust to 
 deny to the defendant in this case any recovery whatever for 
 breach of his contract because the contract itself contemplated 
 and was based upon prospective profits. The evidence intro- 
 duced did furnish as fair a basis for estimating such profits as 
 could be furnished with reference to the breach of any such 
 contract, and we think it was admissible, and that the court 
 properly submitted it to the jury. Such a contract as we have 
 before us was recognized as valid in Kaufman v. Manufactur- 
 ing Co., 78 Iowa 679 and Rosenberger v. Marsh, 108 Iowa 47, 
 although the question of measure of damages was not presented 
 in those cases. 
 
 Affi^rmed. 
 
 Speculative damages cannot be recovered, as e. g., for failure to 
 receive promotion to a high grade of service in a company that had no 
 fixed rule of promotion. Richmond & W. R. R. Co. v. Elliott, 149 U. S. 
 266; M. C. R. R. v. Hardy, 88 Miss. 732.
 
 228 CEUTAINTY. 
 
 Rut damages aro alloweil. il" coiKSfqiiculial, unless too remote, trivial 
 m- uucei'taiu, or unless they result from some justifiable act. Grand 
 liapids Booming Co. v. Jarvis, 30 Mich. 30S. 
 
 For damages that are speculative, remote and contingent, there can 
 be no recovery. Central Coal & Coke Co. v. Hartman, 49 C. C. A. 244. 
 In a contract whereby plaintiff was allowed to saw defendant's logs, 
 speculative damages were refused in an action for breach. Petrie v. 
 Lane. 58 Mich. 527. 
 
 Plaintiff can be compensated for all detriment suffered which was 
 proximately caused by defendant's act, but not for damages not clearly 
 ascertainable in their nature and origin. Nothing can be recovered for 
 remote and uncertain damage to health, reputation and feeling. West- 
 watee v. Grace Church, 140 Cal. 339. 
 
 Contingent damages are not allowed. Central Trust Co. v. Clark, 34 
 C. C. A, 354 ; Pittsburg E. R. v. Moore, 110 111. 304 ; Shelbourne v. Law 
 Investment Co. 2 Q. B. 1S9S, 62G. 
 
 In Ehrgott v. Mayor of New York, 96 N. Y. 2G4, plaintiff was a book 
 canvasser for D. Appleton & Co., and his earnings were from four to 
 seven thousand dollars per annum. He was injured by a defect in the 
 street. Held, that "the wrongdoer is responsible for the natural and 
 proximate consequences of his misconduct; and what are such conse- 
 quences must generally be left for the determination of the jury." 
 
 In Schrandt v. Young, S9 N. W. Rep. 607, plaintiff sued for breach of 
 contract to care for a flock of sheep and receive pay in a share of the 
 increase of the flock. Held, that such damages were not contingent and 
 uncertain ; one engaged in such business can, with reasonable accuracy, 
 give the probable increase of a flock of sheep, under certain stated con- 
 ditions. Contracts for purchase and sale of future crops have been 
 recognized as valid. Blackford v. Packing Co. 76 Cal. 212. 
 
 In Curry v. Sandusky Fish Co. 88 Minn. 485, "evidence was received 
 over objection that one sturgeon would produce 16 pounds of caviar; 
 that It was worth 85 cents to $1.25 per pound. This evidence was 
 clearly objectionable."
 
 V. DAMAGES IN ACTIONS ON CON- 
 TRACTS. 
 
 1, Contracts Relating to Real Property. 
 FLUREAU V. THORNHILL. 
 
 Common Pleas, 1776. 2 W. Bl. 1078. 
 
 The plaintiff bought at an auction a rent of 26 1. Is. per 
 annum for a term of thirty-two years, issuing out of a lease- 
 hold house, which let for 31 1. 6s. The sale was on the 10th of 
 October, 1775. The price at which it was knocked do^\^l to him 
 was 270 1., and he paid a deposit of 20 per cent, or 54 1. 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 further sum for damages 
 in the loss of so good a bargain ; and his attorney swore he be- 
 lieved the plaintiff had been a loser by selling out of the stocks 
 to pay the purchase money, and their subsequent rise between 
 the 3rd and the 10th of November; but named no particular 
 sum. Evidence was given by the defendant, that the bargain 
 wa.s by no means advantageous, all circumstances considered; 
 and the auctioneer proved that he had orders to let the lot go for 
 250 1. The defendant had paid the deposit and interest, being 
 54 1. 15s. 6d., into court ; but the jury gave a verdict, contrary 
 to the directions of De Grey, C. J., for 741. 15s. 6d., allowing 
 20 1. for damages. 
 
 Davy moved for a new trial, against which Glyn showed 
 cause; and by 
 
 De Grey, C. J. 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 fancied goodness of the bargain, which he supposes he 
 has lost. 
 
 229
 
 230 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 Gouij), J., of the same opinion. 
 
 Blackstone, J., of the same opinion. These contracts are 
 merely upon condition, frequently expressed, but always im- 
 plied, that the vendor has a good title. If he has not, the re- 
 turn 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 3rd of November, when three per 
 cent's sold for 87i/o. About 310 1. must therefore have been sold 
 to raise 270 1. And if it costs 20 1. to replace this stock a week 
 afterwards (as the verdict supposes), the stocks must have risen 
 near seven 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, J., 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. 
 
 SYNGE V. SYNGE. 
 
 L. R. 1894 1 Q. B. 466. 
 
 Defendant, in an ante-nuptial agreement, promised to leave 
 by his will a house and lot to plaintiff for life. He did not do so 
 but conveyed his whole estate to third persons. The trial judge 
 gave judgment for the defendant, holding that the letter relied 
 on by the plaintiff did not amount to a contract. The plaintiff 
 appeals. 
 
 Kay, L. J. The questions which arise in this case are these: 
 
 1. Was there a binding contract? 
 
 2. Was it such a contract as could be enforced in equity, or 
 was there a remedy in damages for the breach of it? 
 
 3. Has the time arrived at which such remedy can be asserted ? 
 
 4. If the remedy be by way of damages, what amount of 
 damages should be given ? 
 
 The action was tried by a judge without a jury, so that all 
 questions, both of fact and law are open on this appeal. 
 
 It will be convenient to consider the questions in the order 
 in which they are stated. 
 
 The alleged contract is contained in a letter of December 24, 
 1883, by the defendant to a lady whom he was desirous to marry, 
 and is in these words:
 
 CONTRACTS RELATING TO REAL PROPERTY. 231 
 
 "You my love thoroughly understand the terms (and I dare- 
 say have told Mr. Woodruff on which we are to put a stop tj 
 all this bother bj' becoming one another) which are that I 
 leave house and land to you for your lifetime. * * * True 
 it is possible but highly improbable that I might come in for 
 the title and should be much better off. Should such a thing 
 happen we could see what I ought and would do for you. ' ' 
 
 There seems to be no doubt that the house and land referred 
 to were the house and a small piece of land at Ardfield in Dev- 
 onshire, worth it is said about 60 1. or 70 1. a year, in which 
 the defendant was then residing with two daughters by a former 
 marriage. The defendant was not then Sir R. Synge. He suc- 
 ceeded to the title afterwards. The lady who is the plaintiff had 
 some property of her own of which Mr. Woodruff was trustee. 
 He was not a solicitor. 
 
 The construction of the letter is plain. It is a statement 
 of the "terms" as to property on which the defendant pro- 
 posed to marry the lady. The marriage took place on January 
 5, 1884, ten days after the date of the letter. 
 
 It is argued that the plaintiff did not understand it to be a 
 binding promise, and did not so treat it. [The judgment then 
 dealt with the evidence, and continued :] 
 
 The learned judge who decided this case has held that the 
 letter was not treated by the lady as a contract, although by the 
 advice of Mr. Woodruff she preserved it. The inference, how- 
 ever, that she accepted the terms and married on the faith of the 
 promise in writing seems to us irresistible. We cannot, with 
 deference to the learned judge, agree in his view that she treated 
 the letter as a mere statement of intention by which the intended 
 husband was not to be bound. The law relating to proposals 
 of this kind before marriage was thus stated by Lord L>Tidhurst, 
 L. C. in Hammersley v. De Biel, 12 CI. & F. 45, at p. 78: "The 
 principle of law, at least of equity, is this — that if a party 
 holds out inducements to another to celebrate a marriage, and 
 holds them out deliberately and plainly, and the other party con- 
 sents, and celebrates the marriage in consequence of them, if 
 he had good reason to expect that it was intended that he should 
 have the benefit of the proposal which was so held out, a Court 
 of Equity will take care that he is not disappointed, and will 
 give effect to the proposal. ' 
 
 We are of opinion that the proposal of terms in this case was
 
 232 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 made as an indueemciit to the lady to marry, that she consented 
 to the terms, and married the defendant on the faith that he 
 would keep his word, and that accordingly there was a binding 
 contract on the defendant's part to leave to his wife the house 
 and land at Ardlield for her life. 
 
 Then, secondly, what is the remedy? IMarriage is a valuable 
 consideration for such a contract of the highest order, and 
 where, as here, the contract is in writing, so that there is no 
 question upon the Statute of Frauds, in the language already 
 quoted, a Court of Equity will take care that the party who 
 marries on the faith of such a proposal "is not disappointed, 
 and will give effect to the proposal." 
 
 In Hammersley v. De Biel, supra, the proposal was made on 
 behalf of the intended wife's father, by his authority, and was 
 reduced into writing, and was to the effect that the father would 
 pay down 10,0001., to be settled on the intended husband and 
 wife and their children, the husband to secure a jointure of 500 1. 
 a year to the wife if she survived him ; and then followed the 
 provision on which the question arose, by which the father ' ' pro- 
 poses for the present to allow his daughter 200 1. per annum for 
 her private use, * * * and also intends to leave a further 
 sum of 10,000 1. in his will to Miss Thomson, to be settled on 
 her and her children." After the father's death, without hav- 
 ing made the promised provision by will, the only child of the 
 marriage — his mother having died before her father — insti- 
 tuted a suit in equity against his grandfather's executors to re- 
 cover 10,000 1. out of his assets. Lord Langdale, M. R., held 
 that by acceptance the proposal had "ripened into an agree- 
 ment, ' ' and that the plaintiff was entitled to the relief he prayed 
 — i. e, to the sum of 10,000 1., with interest at 4 per cent from 
 the end of one year after the father's death, on the footing of a 
 legacy. Lord Cottenham, L. C, affirmed this decision, saying 
 this, 12 CI. & F. 45, at p. 62, n. : "I propose, first, to consider 
 whether there was any such agreement previous to the marriage 
 of the plaintiff's father and mother as was binding on the late 
 Mr. Thomson to give an additional 10,000 1. as the portion of 
 his daughter. If it be supposed to be necessary for this pur- 
 pose to find a contract, such as usually accompanies transactions 
 of importance in the pecuniary affairs of mankind, there may 
 not be found in the memorandum, or in the other evidence in 
 the cause, proof of any such contract ; and this may have led to
 
 CONTRACTS RELATING TO REAL PROPERTY. 233 
 
 the defense set up by the defendants ; but when the authorities 
 on this subject are attended to, it will be found that no such 
 formal contract is required." 
 
 This was affirmed in the House of Lords by Lord Lyndhurst, 
 L. C, Lord Brougham, and Lord Campbell, without calling 
 upon the respondents. We have examined the case closelj^ be- 
 cause it is of the highest authority, not merely as a judgment 
 of the House of Lords, but it was decided by some of the best 
 equity lawj'ers of that time. Lord St. Leonards has criticized 
 the decision on the ground that the memorandum in that case 
 might have been construed as a mere expression of an intention, 
 not as a definite proposal which could by acceptance ripen into 
 a contract: Sugden's Law of Property, p. 53. But he does not 
 intimate a doubt that the decision was right if the proposal was 
 not merely of an intention which might be changed. Therefore, 
 a definite proposal in writing so as to satisfy the Statute of 
 Frauds, to leave property by will, made to induce a marriage, 
 and accepted, and the marriage made on the faith of it, will be 
 enforced in equity. 
 
 Then, what is the remedy where the proposal relates to a de- 
 fined piece of real property? We have no doubt of the power 
 of the Court to decree a conveyance of that property after the 
 death of the person making the proposal against all who claim 
 under him as volunteers. 
 
 It is argued that Courts of Equity cannot compel a man to 
 make a will. But neither can they compel him to execute a deed. 
 They, however, can decree the heir or devisee in such a case to 
 convey the land to the widow for life, and under the Trustee 
 Acts can make a vesting order, or direct that someone shall con- 
 vey for him if he refuses. And under the like circumstances, 
 the Court has power to make a declaration of the lady's right. 
 
 But counsel do not press for such relief, or ask for a declara- 
 tion to bind the house and land. The relief they ask is damages 
 for breach of contract. It seems to be proved that the grantees 
 of the property under the deeds executed by Sir R. Synge took 
 without notice of the letter; they acquired, as we understand, 
 the legal estate by the grant. If there was any valuable con- 
 sideration moving from them, no relief in the nature of specific 
 performance could be given against them; and it is suggested 
 that the property, being partly leasehold, according to the de- 
 cision in Price v. Jenkins. 5 Ch. D. 619, there was such valuable
 
 234 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 eoiisideratioii. It is not necessary to examine this argument, as 
 counsel elect to ask for damages only. 
 
 Sir R, S}^lge had all his lii'etime to perform this contract; 
 but, in order to perform it, he must in his lifetime make a dis- 
 position in favor of Lady Synge. If he died without having 
 done so, he would have broken his contract. The breach would 
 be omitting in his lifetime to make such a disposition. True, 
 it would only take effect at his death ; but the breach must take 
 place in his lifetime, and as by the conveyance to his daughters 
 he put it absolutely out of his power to perform this contract, 
 Lady Sj^uge, according to well-known decisions (Hochster v. 
 De la Tour, 2 E. & B. 678 ; Frost v. Knight, Law Rep. 7 Ex. 
 Ill), had a right to treat that conveyance as an absolute breach 
 of contract, and to sue at once for damages; and as this Court 
 has both legal and equitable jurisdiction, we are of opinion that 
 such relief should be granted. 
 
 We have not before us the materials for assessing such dam- 
 ages. The amount must depend on the value of the possible 
 life estate which Lady Synge would be entitled to if she sur- 
 vived her husband. Their comparative ages would, of course, 
 be a chief factor in such a calculation. There must be an in- 
 quiry as to the proper amount of damages. 
 
 Sir R. Synge must pay the costs of the action here and in 
 the Court below. 
 
 Appeal allowed. 
 
 1) AcTio?^s Between Landlord and Tenant. 
 RAYNOR V. BLATZ BREWING CO. 
 
 Wisconsin. 1898. 100 Wis. 420. 
 
 This was an action by the lessee of real estate against his lessor 
 for damages for alleged breach of the covenants of a lease. It 
 appears that about April 1, 1897, the defendant leased to the 
 plaintiff for one year a building in the city of Milwaukee, known 
 as the "People's Theater," to be used as a theater and saloon, at 
 a rental of $200 per month. 
 
 Upon the trial, the plaintiff was allowed to prove as a basis for 
 the estimation of damages what his profits had been in the use 
 of the building as a theater and saloon during the several years 
 immediately preceding the year in question and it appeared
 
 CONTRACTS RELATING TO REAL PROPERTY. 235 
 
 that he had operated the theater and saloon upon Sunday as well 
 as upon week days, whereupon, upon the cross-examination, the 
 defendant's attorney endeavored to ascertain from the plaintiff 
 what part of the estimated profits w^ere derived from the Sunday 
 business. After several questions upon this subject, the court 
 made the following ruling, to which the defendant took excep- 
 tion : "I hold the profits which he makes on Sundays is to be 
 included the same as other days, and that the profits which this 
 man made on Sunday in his business are not to be distinguished 
 from the profits he made generally. I will give you the benefit 
 of the exception, and stop the investigation right here as far as 
 the Sunday busmess is concerned, without holding whether his 
 business is legal or illegal on Sundays or other days. There is a 
 difference between a contract 'made' on Sunday and 'executed' 
 on Sunday. A court held a contract made on Sunday was illegal, 
 but they never held a contract executed on Sunday illegal. The 
 result of that would be in an accounting between partners, or in 
 such business, it would be necessary to eliminate from the busi- 
 ness the business done on Sunday, if any of it was done on Sun- 
 day. If he is entitled to recover profits, it is immaterial whether 
 they were made on Sunday or any other day, in my judgment." 
 Thereupon no further questions were asked upon this subject. A 
 special verdict was demanded, and the defendant, among other 
 questions, requested that the court submit the following ques- 
 tions as a part of the special verdict: " (7) Did the plaintiff, 
 during the years 1891 and 1895, run his theater and the premises 
 in question on Sundays? (8) If you answer the foregoing in- 
 terrogatory in the affirmative, was not a large portion of his 
 profit derived from keeping open his theater and premises in ques- 
 tion on Sundays ? (9) Was a considerable portion of the profits of 
 the plaintiff derived from the sale of liquors in his said theater 
 on Sundays? (10) Is a considerable portion of the anticipated 
 profits claimed by the plaintiff founded on the expected keeping 
 open of said theater on Sundaj^s, and the sale of liquors therein 
 on such days? (17) How much of the anticipated profits claimed 
 by the plaintiff as damages were to be derived from the keeping 
 open of theater on Sundays, and the sale of liquors therein on 
 said days?" The court refused to submit any of these questions, 
 and exceptions were duly taken to such rulings. 
 
 WiNSLOW, J. (after stating the facts). The verdict in this case 
 justifies the judgment for the plaintiff, and we have discovered
 
 23G DAMAGES IN ACTIONS ON CONTRACTS, 
 
 no substantial error in tlie case save upon the question of the 
 measure of damages. This was unckiubtedly a case within the 
 rules laid down in Poposkey v^ IMiuikwitz, 08 Wis. 322, where the 
 law authorizes the recovery of anticipated profits of a business 
 as damages. The loss of such profits in the present case must 
 clearly have been within the contemplation of the parties, and 
 they are not too remote or conjectural, and are capable of being 
 ascertained with reasonable certainty, because the plaintiff had 
 been transacting the same business for years in the building. The 
 evidence, therefore, showing the plaintiff's previous annual prof- 
 its in this very building while transacting the same business, was 
 properly received as a basis for ascertaining the profits which he 
 might reasonably anticipate during the balance of the year after 
 his practical eviction. But the profits of an unlawful business 
 cannot be any proper basis for the estimate of damages. This 
 would seem to be too clear for argument. The profits made on 
 week days may properly form such basis ; but the profits made on 
 Sundays, resulting from a criminal violation of the Sunday law, 
 cannot form any legal basis for the estimate of damages. As well 
 might it be claimed that the profits resulting from operating a 
 gambling hall or a house of ill fame could be used as a basis for 
 damages. To state the proposition is to answer it. The defend- 
 ant attempted, by cross-examination of the plaintiff, and by a 
 question proposed to be submitted in the special verdict, to ascer- 
 tain what part of the anticipated profits were based upon the 
 Sunday business ; but it was held by the court that the inquiry 
 was immaterial, and we regard the question as properly raised 
 by the exceptions taken to these rulings. Nor was it necessary 
 to raise the question by pleading. The defendant was not re- 
 quired to anticipate that the court would allow evidence of im- 
 proper elements of damage to be received and go to the jury. It 
 is a question of evidence, and not of pleading. It seems quite 
 certain that the jury took into accoimt the Sunday profits of past 
 years in their estimate of the profits to be anticipated. Certainly, 
 the rulings of the court practically required them to do so. 
 Hence there must be a new trial. 
 
 Judgment reversed, and action remanded for a new trial.
 
 CONTRACTS RELATING TO REAL PROPERTY. 237 
 
 EAGAN t'. BROWNE. 
 
 New York, 1908. 128 App. Div. 184. 
 
 Gaynoe, J. It was held in Denison v. Ford, 10 Daly, 412, that 
 when a tenant is evicted he cannot sue the landlord for tort, so as 
 to change the rule as to the measure of damages, but only for 
 breach of the covenant of quiet enjoyment which, if not ex- 
 pressed, is implied in leases. But in the later case of Snow v. 
 Pulitzer, 142 N. Y. 263, the tenant was allowed to pass the cove- 
 nant by and recover as for a tort. In that way he recovered for 
 the breaking up of his business md the loss of property caused 
 thereby. In the present case the tenants hired a floor in a build- 
 ing which was furnished with steam power for business purposes 
 by the landlord, and the lease was in terms not only of such floor, 
 but of the steam power to run the plaintiffs' business. The com- 
 plaint alleges that the defendants, the subsequent grantees of the 
 lessor, "unlawfully evicted the plaintiffs from the said premises, 
 and the use and enjoyment thereof by wantonly, wilfully and 
 maliciously depriving and cutting off from the plaintiffs' prem- 
 ises and business all the steam power and live steam absolutely 
 necessary for carrying on the said laundry business;" and it is 
 alleged that the plaintiffs' business was thereby broken up and 
 ruined, and they were unable to get another place equipped to 
 carry on their business. The case seems to be the same as that 
 of Snow V. Pulitzer, for the wrongful trespass by removing the 
 support of a side wall which caused it to fall, as was the fact in 
 that case, and the wrongful trespass of disconnecting the shafts 
 in the demised premises from the steam plant in the present case, 
 are the same in principle and cannot be distinguished. Each 
 was a trespass which destroyed the beneficial use for which the 
 premises were leased. The later case of Witherbee v. Meyer, 155 
 N. Y. 446, is not applicable. There the action was, and only 
 could be, for damages for a breach of covenant in the lease that 
 the water power leased with the grist mill was sufficient to run 
 the mill to its full capacity. It was sufficient to run it, but the 
 complaint was that it was not as great as the lease called for. 
 The rule of damages allowed was the difference between the 
 rental value with the maximum power covenanted for and the 
 power as it was. But suppose the landlord had wrongfully torn 
 dowTi the dam and deprived the tenant of all power? The case 
 would then have been the same as the present one and that of
 
 238 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 Snow V. Pulitzer. Moreover loss of profits may be recovered in 
 an action for damages for breach of contract, for there are many 
 exceptions to the general rule which is deemed to be to the con- 
 trary, if it were necessary to go into that. Bagley v. Smith, 10 
 N. Y. 489 ; Wakeman v. Wheeler & Wilson Co., 101 N. Y. 205 ; 
 Thomson-Houston Co. v. Durant Co., 144 N. Y. 34, 47. 
 
 The judgment should be reversed. 
 
 Judgment reversed, and new trial granted; costs to abide the 
 event. 
 
 All concur, except Hooker, J., who dissents. 
 
 2) Sale of Land. 
 McGUCKIN V. MILBANK. 
 
 New York, 1897. 152 N. Y. 297, 
 
 This action was brought to recover damages for an alleged 
 breach of a covenant against incumbrances in a deed. 
 
 Andrews, C. J. Unless, upon the evidence, the plaintiff was, 
 in any event, entitled to recover, at least, the sum for which the 
 verdict was directed, the direction was erroneous, and the order 
 of the general term must be affirmed, although a case was or 
 might have been made for the recovery of damages to some 
 amount for the breach of the covenant against incumbrances 
 contained in a deed of Cauldwell. The action was brought upon 
 the theory that the Manchester mortgage had not been cut off 
 by the foreclosure of the mortgage under which Cauldwell ac- 
 quired title, although it was a subsequent lien, and Manchester 
 was made a party defendant to those foreclosures. The defend- 
 ants, while insisting that the lien of the Manchester mortgage 
 was extinguished by the foreclosures, further contend that al- 
 though it may have been an outstanding and valid incumbrance 
 on the property at the time of the conveyance by Cauldwell 
 to the plaintiff, and constituted a breach of the covenant against 
 incumbrances contained in Cauldwell 's deed, no case was made 
 for the recovery of more than nominal damages. The plaintiff 
 was neither evicted under the Manchester mortgage, nor has 
 he paid the mortgage, or any part of it. It is the general rule 
 that a grantee under a deed containing a covenant against in- 
 cumbrances, who has not been disturbed in his possession, and 
 who has not paid the mortgage or other money lien on the land,
 
 CONTRACTS RELATING TO REAL PROPERTY. 239 
 
 is not entitled to an action for the breach of the covenant to re- 
 cover more than nominal damages. This rule was declared with 
 great distinctness in the case of Delavergne v. Norris, 7 Johns. 
 358, and has been steadily adhered to in this state. The prin- 
 ciple of the decision is that a covenant against incumbrances is 
 treated as a contract of indemnity, and although broken as soon 
 as made, if broken at all, nevertheless a recovery (beyond nomi- 
 nal damages) is confined to the actual loss sustained by the 
 covenantee by reason of the payment or enforcement of the in- 
 cumbrance against the property. He is not permitted to recover 
 the amoimt of the outstanding incumbrance before payment or 
 loss of the property, although its existence may be an embarrass- 
 ment to his title, and subject him to inconvenience. The reason 
 for the rule is stated in Delavergne v. Norris : "If the plaint- 
 iff, when he sues on a covenant against incumbrances, has ex- 
 tinguished the incumbrance, he is entitled to recover the price he 
 has paid for it. But, if he has not extinguished it, but it is 
 still an outstanding incumbrance, his damages are but nominal, 
 for he ought not to recover the value of an incumbrance on a 
 contingency, where he may never be disturbed by it." The case 
 cited was the case of a mortgage, which could be discharged 
 as of right by a money payment, and where the grantee was in 
 the undisturbed possession of the land. But there is no duty 
 resting upon a covenantee in such a case to pay the incumbrance, 
 as between him and his grantor ; and if the title of the covenantee 
 is divested by proceedings in invitum based on the incumbrance, 
 without fraud or collusion on his part, then it would seem that 
 whatever damages can arise out of the breach of the covenant 
 had happened, and may be recovered. In the case supposed, 
 the covenantee has lost his property by reason of the incum- 
 brance. It is no longer a contingent or speculative injury, but 
 certain and final to the extent of the value of the interest of 
 which he has been divested. 
 
 In the present case, as has been said, the plaintiff neither paid 
 the Manchester mortgage, nor was he evicted under it. * * * 
 His legal injury, under the evidence, could not exceed the loss 
 he sustained on the one lot to which alone he had title at the 
 time of the foreclosure, and not to two lots which the trial judge 
 seems to have assumed he owned at that time. We think the 
 trial court erred in directing a verdict for any specific sum, and 
 that the order of the general term properly granted a new trial.
 
 240 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 It is uniUH'ossjiry to pass upon the other (juestions argiied. The 
 order shoukl be airinued, and judgment absolute directed. All 
 concur, except Martin, J., absent. 
 
 Order afprwed, and judgment absolute ordered for defend- 
 ant i>, with costs. 
 
 (1) n reach of Vendor. 
 
 HOPKINS V. LEE. 
 United States Supreme Court, 1821. 6 Wheat. 109. 
 
 Error to the Circuit Court for the District of Columbia. 
 
 This was an action of covenant, brought by the defendant 
 in error (I^ee), against the plaintiff in error (Hopkins), to re- 
 cover damages for not conveying certain tracts of military lands, 
 which the plaintitf in error had agreed to convey, upon the de- 
 fendant in error relieving a certain incumbrance held by one 
 Rawleigh Colston, upon an estate called Hill and Dale, and 
 which Lee had previously granted and sold to Hopkins, and for 
 which the military lands in question were to be received in part 
 payment. The declaration set forth the covenant, and averred 
 that Lee had completely removed the incumbrance, from Hill 
 and Dale. The counsel for the plaintiff in error prayed the 
 court to instruct the jury, that in the assessment of damages, 
 they should take the price of the military lands as agreed upon 
 by the parties in the articles of agreement upon which the action 
 was brought, as the measure of damages for the breach of 
 covenant. But the court refused to give this instruction, and 
 directed the jury to take the price of the lands, at the time they 
 ought to have been conveyed, as the measure of damages. To 
 this instruction the plaintiff in error excepted ; and a verdict 
 and judgment thereon being rendered for the plaintiff below, 
 the cause was brought by writ of error to this court. 
 
 Livingston, J. * * * in the assessment of damages, the 
 counsel for the plaintiff in error prayed the court to instruct 
 the jury, that they should take the price of the land, as agreed 
 upon by the parties in the articles of agreement upon which the 
 suit was brought, for their government. But the court refused 
 to give this instruction, and directed the jury to take the price 
 of the lands, at the time they ought to have been conveyed, as 
 the measure of damages. To this instruction the plaintiff in 
 error excepted. The rule is settled in this court, that in an ac-
 
 CONTRACTS RELATING TO REAL PROPERTY. 241 
 
 tion by the v<^ndee for a breach of contract on the part of the 
 vendor, for not delivering the article, the measure of damages 
 is its price at the time of the breach. The price being settled 
 by the contract, which is generally the case, makes no difference, 
 nor ought it to make any; otherwise the vendor, if the article 
 have risen in value, would always have it in his power to dis- 
 charge himself from his contract, and put the enhanced value 
 in his own pocket. Nor can it make any difference in principle, 
 whether the contract be for the sale of real or personal prop- 
 erty, if the lands, as is the case here, have not been improved 
 or built on., In both cases, the vendee is entitled to have the 
 thing agreed for, at the contract price, and to sell it himself at 
 its increased value. If it be withheld, the vendor ought to make 
 good to him the difference. This is not an action for eviction, 
 nor is the court now prescribing the proper rule of damages in 
 such a case. Judgment affirmed. 
 
 aiARGRAF V. ilUIR. 
 
 New York 1S74. 57 N. Y. 155. 
 
 This action was against the vendor for specific performance 
 of a contract to convey a lot of land, and for damages for breach 
 of the contract in ease it could not be specifically performed. 
 
 Earl, q. * * - Xn this case the referee denied the equit- 
 able relief, but awarded damages for the breach of the contract, 
 and in this he did not err, provided he adopted the proper rule 
 of damage. The referee allowed the plaintiff as damages the 
 difference between the contract price and the value of the land, 
 thus placing him in the position he would have been if the con- 
 tract had been performed. In this I think he erred. The gen- 
 eral rule, in this State, in the case of executory contracts for 
 the sale of land, is that, in the case of breach by the vendor, the 
 vendee can recover onl}^ nominal damages, unless he has paid 
 part of the purchase-money, in which case he can also recover 
 such purchase-money and interest. (IMack v. Patchin, 42 N. Y. 
 167 ; Bush V. Cole, 28 Id. 261 ; Pumpelly v. Phelps, 40 Id. 60. 
 See, also. Lock v. Furze, Law Rep. 1 C. P. 441 ; Engle v. Fitch, 
 Law Rep. 3 Q. B., 314.) But to this rule there are some excep- 
 tions based upon the lawful conduct of the vendor, as if he is 
 guilty of fraud or can convey, but will not either from perverse- 
 ness or to secure a better bargain, or, if he has covenanted to 
 
 ic
 
 242 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 convey when ho Imow he had no authority to contract to convey ; 
 or, where it is in his power to remedy a defect in his title and 
 he refuses or negk^cts to do so, or when he refuses to incur such 
 reasonabk^ expenses as woukl enable him to fulfil his contract. 
 In all such cases, the vendor is liable to the vendee for the loss 
 of the bargain, under rules analogous to those applied in the sale 
 of personal property. Here no fraud was perpetrated on the 
 vendee. He knew that the vendor did not have title to the land, 
 and that she could not convey to him without authority from 
 some court: and he, knowing that the land was worth $2,000, 
 may be presumed to have known that no authority could be ob- 
 tained to convey the land for $800, without, in some way, prac- 
 ticing an imposition upon the court. This latter knowledge 
 she did not have. Believing, as she did, that $800 was a fair 
 price for the land, she had no reason to doubt that she could ob- 
 tain authority to convey. Further than this, he knew that the 
 land had been sold for taxes and a lease given. This she did 
 not know. Under these circumstances, she could not get au- 
 thority from the court to make a conveyance upon behalf of 
 her minor children, and it appears that she could not procure 
 the tax title. Hence there is no ground for imputing to her any 
 blame for not making such a conveyance as her contract called 
 for. These facts do not call for the application of an excep- 
 tional rule of damages in this case. 
 
 The case of Pumpelly v. Phelps, supra, is the widest depart- 
 ure from the general rule of damages in such case that is to be 
 found in the books. In that case it was held, that where the 
 vendor, in an executory contract for the conveyance of land, 
 knew at the time he made the contract that he had no title, al- 
 though he acted in good faith believing that he could procure 
 and give the purchaser a good title, he was yet liable for the 
 difference between the contract price and the value of the 
 land. But there are two features which distinguish this case 
 from that. In that case the vendee did not know that the vendor 
 had no title. Here he did know it, and he knew, also, that she 
 could get no title without imposing upon some court. Here also, 
 even if she could have procured the authority of some court 
 to convey, she still would have been unable to give such a title 
 as her contract called for, on account of the outstanding tax title 
 which was unknown to her when she contracted and which she 
 could not procure.
 
 CONTRACTS RELATING TO REAL PROPERTY. 243 
 
 The plaintiff agreed, subsequently, to the making of the con- 
 tract, if defendant would abate $100 from the contract price, 
 that he would, at his expense, conduct the proceedings to pro- 
 cure from the court authority to convey, she co-operating with 
 him, and would take a conveyance subject to the tax title. This 
 did not alter the position of the parties so as to affect this case. 
 She was in no sense culpable in not co-operating with him in 
 imposing upon some court, and, to shield her from the damages 
 claimed in this case, she was not obliged to allow him anything 
 on account of the tax title. I am, therefore, of opinion that the 
 referee erred in the rule of damages applied. The recovery 
 should have been confined to the purchase-money paid (twenty- 
 five dollars) and the interest thereon. * * * 
 
 All concur. Order affirmed and judgment accordingly. 
 
 a Breach of Covenant of Title. 
 
 STAATS V. TEN EYCK. 
 New York, 1805. 3 Caines, 111. 
 
 On the 7th of January, 1793, the testator, Barent Ten Eyck, 
 by indenture of release, in consideration of £700 granted, bar- 
 gained, 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 without the in- 
 terruption or eviction of any person whatever, lawfully claim- 
 ing same." In the month of May following, Walsh, for a valu- 
 able 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 IMargaret Chim in fee, and 
 covenanted to warrant and defend her in the peaceable posses- 
 sion thereof. In August, 1803, an ejectment was brought against 
 Margaret Chim, 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 Chim was thus evicted, 
 was at the time of the sale by Ten Eyck £300, and that was thf
 
 244 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 considorntion paid for it. IMargaret Cliim, being thus evicted, 
 brouglit her at-tion against the phiiutiff, and recovered for the 
 moiety she had lost. 
 
 I'pon these facts, which were submitted without argument, the 
 following questions were raised for tlje determination of the 
 court. 1st. Whether the plaintiff was entitled, imder the cov- 
 enants in Ten Eyek's release, to recover any more than a moiety 
 of the consideration money paid for the lot fi-om which Margaret 
 Chim was evicted? 2d. Whether the interest of that consider- 
 ation, and the increased value of the premises from the d.ate of 
 the deed to i\Iargaret Chim ought to be added? 3d. AVhethcr 
 the plaintiff was entitled to any retribution for the costs and 
 damages he had sustained by the eviction and recoveries before 
 mentioned ? 
 
 Kent, C. J. This case resolves itself into these two points for 
 inquiry: 1st. Whether, upon the covenants, the plaintiff be 
 entitled to recover the value of the moiety of one lot at the time 
 of eviction, or onlj^ at the time of the purchase, and to be ascer- 
 tained by the consideration given ? 2d. If the latter be the rule 
 of damages, then, whether the plaintiff be also entitled to re- 
 cover 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 encum- 
 brance. But I conclude from the manner of stating the questions, 
 and so I shall assume the fact to be, that the testator was not 
 seised 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 cov- 
 enant merely. 
 
 At common law, upon a writ of warrantia chartce, the de- 
 mandant recovered in compensation only the value for the land 
 at the time of the warranty made, and although the land had 
 become of increased value afterwards, by the discovery of a 
 mine, or by buildings, or otherwise, yet the warrantor was not 
 to render in value according to the then state of things, but as
 
 CONTRACT^ RELATING TO REAL PROPERTY. 2'15 
 
 the land was when the warranty was made. Bro. Abr. tit. 
 Voucher, pi. 69; Ibid. tit. Reeouver in Value, pi. 59; 22 Vin. 
 144-146; Tb. pi. 1, 2, 9; Ub. pi. 1, 2, 3; 1 Reeves' Eng. Law, 448. 
 This recompense in value, or excanibium, as it was anciently- 
 termed, consisted of lands of the warrantor, or which his heir 
 inherited from him, of equal value with the land from which 
 the feoffee was evicted. Glanville, 1. 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 (Feud- 
 orum, lib. 2, tit, 25), the lord was bound to recompense his vas- 
 sal on eviction, with other lands equal to the value of the feud 
 at the time of eviction; feudiim restituat ejusdem astimationis 
 quod erat tempore rei judicatce. 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 introduction of personal 
 covenants, to the disuse of the ancient warranty. These cove- 
 nants have been deemed preferable, because they secure a more 
 easy, certain, and effectual recoyevy. 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 speculative reasoning, and that too of doubtful solid- 
 ity. In warranties 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. 17. This is also the rule in Scotland, 
 as to chattels. 1 Ersk. 206. Our law preserves in all its branches 
 synnuetry and harmony upon this subject. In the modern case 
 of Flureau v. Thornhill, 2 Black. Rep. 1078, the court of K. B. 
 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, there- 
 fore, usually a case of mutual error, and it would be ruinous 
 and oppressive to make the seller respond for anj^ accidental or 
 extraordinary rise in the value of the land. Still more burden-
 
 246 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 some AYould the rule seem to be if that rise was owing to the 
 taste, i'ortuue, or luxury of the purchaser. No man could vent- 
 ure to sell an acre of ground to a wealthy purchaser, without 
 the hazard of absolute ruin. The hardship of this doctrine has 
 been ably exposed by Lord Kaimes in his examination of a de- 
 cision in the Scotch law, that the vendor was bound to pay ac- 
 cording 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 exception- 
 able 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 be- 
 low its original price, the seller was entitled to avail himself of 
 this and pay no more than the thing was then worth; for the 
 Eoman law, with its usual and admirable 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 commodity without also taking 
 his chance of its fall. Dig. lib. 21, tit. 2, 1. 78 ; Ibid. 1. 66, § 3 ; 
 Ibid. 1. 64, § 1. So far the rule in that law appeared at least 
 clear and consistent ; but with respect to beneficial improvements 
 made by the purchaser, the decisions in the Code and Pandects 
 are jarring and inconsistent with each other, and betray evi- 
 dent perplexity on this difficult question. Dig. lib. 19, tit. 1, 
 45, § 1; Cod. lib. 8, tit. 45, 1. q., and Perezius thereon. The 
 more just opinion seems to be, that the claimant himself, and 
 not the seller, ought to pay for them, for nemo debet locuple- 
 tari aliena jactura, and this rule has, according to Lord Hard- 
 wicke, 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 im- 
 pertinent to observe, that in the late digest of the Hindu law, 
 compiled under the auspices 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
 
 CONTRACTS RELATING TO REAL PROPERTY. 247 
 
 be recovered, although the value may have been diminished. 1 
 Colebrook's Digest, 478, 479. 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 plaintiff, 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 before us. 
 
 2. The next point arising in this case is, whether the plaint- 
 iff 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 interest; 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 pur- 
 chaser the intermediate profits of the land. As long as he was 
 permitted to reap the rents and profits, they formed a just com- 
 pensation for the use of this money. Whether the action for 
 mesne profits has not been carried too far in our law, by ex- 
 tending it to all cases, instead of confining it to a mala fide pos- 
 session, it is now too late to inquire. I should have strong doubts 
 at least, upon the present rule, if the question was new, but con- 
 sidering it as the established rule, that the action for mesne 
 profits lies generally, I am of opinion that the seller is as gen- 
 erally 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 principles. 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 plaintiff's 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 clear that the defendants are responsible under 
 the covenant, 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
 
 248 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 substituted as a real deieiidaiit iii the suit. But the defendants 
 are not answerable for the costs of the suit for mesne protits, 
 as there the testator was not boimd 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 re- 
 covery of the same. 
 
 Livingston, J. 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 increased vajue the cri- 
 terion 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 eviction takes 
 place. Every one must perceive the injustice of calling on a 
 iona fide vendor to refund its present value, and that fejK for- 
 tunes could bear the demand. Who, for the sake of one hundred 
 pounds, would assume the hazard of repaying as many thou- 
 sands, to which value the property might rise, by causes not fore- 
 seen 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, Avithout regard to the profits which the plain- 
 tiff hg,s failed to make, unless it shall clearly appear, from the 
 agreement, that the acquisition of certain profits depended on the 
 defendant's punctual performance, and that he had assumed to 
 make good such a loss also. To prevent an immoderate assess- 
 ment 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 h^d 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
 
 CONTRACTS RELATING TO REAL PROPERTY. 249 
 
 it confines tlie reduction of the damages to precisely double the 
 value of the thing, and is not binding in France j but its 
 principle, which does not allow an innocent party to be rendered 
 liable beyond the sum, on which he may reasonably have calcu- 
 lated, 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 which 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 fol- 
 lowed 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 extensive causes. What may be a 
 proper course, when dwelling-houses or other buildings, and im- 
 provements 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 in- 
 terest and costs, unless the plaintiffs could show some further 
 ac.tual injury which they had sustained in consequence 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 
 any ways relating to the subject, is in the Year Books in Hilary 
 Term, 6 Edw. 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 J)e 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 Year Books, is, "that, the heir not being bound to war- 
 rant, except according 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 could, in case of eviction, of the feoffor." 
 In Connecticut, on the contrary, damages are ascertained by the 
 value at the time of eviction, because of land's increasing worth, 
 which is the very reason, perhaps, it should be otherwise. And 
 although the English practice be adverted to by the court in
 
 250 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 giving: its opinion, it is supposed to be founded on the perman- 
 ent value of their hiiuis ; but wlieu we recoUect that this has been 
 the r\\\e in Great Britain, at least from the commencement of the 
 fourteeiith century, since which time lands have greatly ad- 
 vanced ill price, we must attribute its origin to some other cause ; 
 probably to its intrinsic justice and merit. Even in Connecticut, 
 the rule applies only to actions on covenant of warranty, and 
 probably not to those on covenant of seisin, because, in the latter 
 ease, it is supposed the party may immediately acquaint him- 
 self with the strength of his title, and bring his action as soon as 
 he discovers it is defective. This reason is not veiy 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 pur- 
 chaser derived no benefit from the property owing to a defec- 
 tive title. The plaintiff must also be reimbursed the costs sus- 
 tained 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 defendant's want 
 of title, he ought to be made whole. In costs are included 
 reasonable fees of counsel, as well as those which are taxable. 
 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. 
 
 Judgment for the plaintiff. 
 
 "If a person enters Into a contract for the sale of a real estate, know- 
 ing that he has no title to it, nor any means of acquiring it, the pur- 
 chaser cannot recover damages beyond the expenses he has incurred." 
 He gets nothing for the loss of the bargain. He can recover the sum 
 paid down by him with interest. Bain v. Fothergill, Hof L. 1874, L. R. 
 7 H. L. ]r)S; Gray v. Howell, 205 Pa. 211; Old Colony R. R. v. Evans, 6 
 Gray 25 ; Williams v. Thrall, 101 Wis. 337. 
 
 For injury to realty by condemnation under eminent domain and ap- 
 portionment of damages, see Matter of City of New York, 193 N. Y. 117. 
 
 In Wragg v. Mead, 120 Iowa 319, defendant had conveyed land by a
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 251 
 
 deed containing a covenant against incumbrances. In fact there was 
 an outstanding lease of the premises conveyed. Held, that the n easure 
 of damages is the rental value of the land for the unexpired term. 
 
 2. Contracts Relating to Personal Property 
 
 WHITE V. SOLOMON. 
 Massachusetts, 1895. 164 Mass. 516. 
 
 Holmes, J. 
 
 This is an action upon the following contract: Messrs. J. T. 
 White & Co., Publishers, New York — Gentlemen : Please deliver, 
 according to shipment directions given below, one White's 
 Physiological Manikin, Medical Edition, price $35.00. In con- 
 sideration of its delivery for me, freight prepaid, at the express 
 office specified below, I promise to pay the sum of $35.00, as fol- 
 lows : $10.00 upon deliver}^ at the express office, and the balance 
 in monthly payments of $5.00, each payable on the first of each 
 and every month thereafter, until the whole amount is paid, for 
 which the publishers are authorized to draw when due. 
 
 "It is expressly hereby agreed that, in case of the failure to 
 pay any onei of the said installments after maturity thereof, all 
 of said installments remaining unpaid shall immediately become 
 due and payable, and the said James T. White & Co., may take, 
 or cause to be taken, the said manikin from the possession of 
 the said subscriber or their representatives, to whom he may 
 have delivered the same, without recourse against said James T. 
 White & Co. for any monej' paid on account thereof; it being 
 expressly agreed that the money paid on account shall be for 
 the use and wear of said manikin. * * * 
 
 "James M. Solomon, 75 Court Street. * * * 
 
 "Boston, Mass." 
 
 There was evidence that the manikin was delivered, as agreed, 
 to the express company, freight prepaid ; that the defendant 
 refused to receive it ; that, in consequence, the express company, 
 after a time, left the manikin at the plaintiffs' place of business, 
 in pursuance of a rule of the company, and without the plaint- 
 iffs' assent; and that it is held subject to the defendant's order. 
 There had been no repudiation of the contract by the defend 
 ant before the delivery of the manikin. * * *
 
 252 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 In an ordinarj' contract of sale, the payment and the transfer 
 of the goods are to be concurrent acts; and if the buyer refuses 
 to accept the goods, even wrongfully, he cannot be sued for the 
 price, because the event on which he undertook to pay the price 
 has not happened; and, although the fact that it has not hap- 
 pened is due to his own wrong, still he has not promised to pay 
 the price in the present situation, but must be sued for his 
 breach of contract in preventing the event on which the price 
 would be due from coming to pass. The damages for such a 
 breach necessarily would be diminished by the fact that the 
 vendor still had the title to the goods. But in the case at bar 
 the buyer has said in terms that although the title does not pass 
 by the delivery to the express company, if it does not, delivery 
 shall be the whole consideration for an immediate debt (partly 
 solvendum in futuro), of the whole value of the manikin, and 
 that the passing of the title shall come as a future advantage to 
 him when he has paid the whole. The words "in consideration 
 of delivery" are not accidental or insignificant. The contract is 
 carefully drawn, so far as to make clear that the vendors intend 
 to reserve unusual advantages and to impose unusual burdens. 
 *• * * "When, as here, by the terms of the contract, every 
 condition has been complied with which entitles the vendors 
 to the whole sum, and, if the vendors afterwards have not either 
 broken the contract or done any act diminishing the rights given 
 them in express words, the buyer cannot, by an act of his own 
 repudiating the title, gain a right of recoupment, or otherwise 
 diminish his obligation to pay the whole sum which he has 
 promised. See Smith v. Bergengren, 153 Mass. 236, 238. 
 
 If the first payment of $10 upon delivery were to be made upon 
 delivery to the buyer, it well may be that, if the buyer refused 
 to accept the manikin or to pay the $10, the sellers' only remedy 
 would be for a breach, and that they could not leave the manikin 
 at his house, and waive the payment against his will, with the 
 result of making the whole sum due. But here the delivery is 
 to be to an express company, and the provision for payment of 
 $10 "upon delivery at the express office" must mean after the 
 delivery ; so that the delivery is the first act, and by itself, without 
 more, fixes the rights of the vendors to the price, just as the 
 transfer of the stock did in Thompson v. Alger, 12 Mete. (Mass.) 
 428, 444. * * * Exceptions overruled. 
 
 Field, C. J., and Justices Allen and ^Morton dissent.
 
 CONTKACTS RELATING TO PERSONAL PROPERTY, 253 
 
 1) Bailment. 
 
 KEITH V. DE BUSSIGNEY. 
 
 Massachusetts, 1901. 179 Mass. 255. 
 
 Action to recover an amount paid on a judgment rendered 
 against plaintiff for board of defendants' horse, received by 
 plaintiff under an agreement providing that the horse should be 
 suitable for ordinary family use, or a reasonable amount for such 
 board. Prom a judgment in favor of plaintiff, defendants bring 
 exceptions. 
 
 Knowlton, J. The evidence introduced and offered had no 
 tendency to prove a conversion of the horse by the plaintiff. It 
 went no further than to show that the horse had been used in 
 plowing greensward and in drawing heavy loads to Boston, and 
 that it was not in good condition when the plaintiff endeavored 
 to return it. Even if a jury might have found from the evidence 
 that the plaintiff had not properly used and fed the horse, they 
 could not have found that she had exercised dominion over it ad- 
 verse to the defendants' rights, in such a way as to make her 
 liable for a conversion of it. At most, it would only have war- 
 ranted a finding of negligence or breach of contract on the part 
 of the plaintiff, for which she was liable in damages. The horse 
 remained the property of the defendants, and it was their duty 
 to receive it when the plaintiff brought it back. On the issue of 
 liability the evidence was rightly excluded, and the first two of 
 the defendants' requests for instructions were rightly refused. 
 
 The third request was as follows : * ' The plaintiff, after the de- 
 fendants refused to receive the horse, even if there was no fault 
 on her part, and she had performed all the obligations imposed 
 on her by law or by the contract, should do with it as persons of 
 ordinary experience and prudence would have done with it, hav- 
 ing reference to its value and all other circumstances. If the 
 horse was of little value, the fact that the defendants refused to 
 receive it would not justify the plaintiff in keeping and board- 
 ing it for a long time, or at a relatively great expense, either in 
 her own stable or elsewhere. She should, after a reasonable time, 
 have taken further steps to determine what disposition should be 
 made of the horse, or have taken means to dispose of it, as she 
 could have done under the statutes of this commonwealth." The 
 judge refused to give this instruction, and ruled that the only
 
 254 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 question for the jury to determine was what was a reasonable sum 
 for the keeping of the horse after the time when the plaintiff 
 offered to return it and the defendants refused to take it back. 
 We are of opinion that this ruling was wrong. This was the sit- 
 uation of the parties: The plaintiff had received the defendants' 
 horse under a bailment for hire, by the terms of which she was 
 to have the use of it for its board and keeping. The time at which 
 this bailment was to terminate had arrived, and the plaintiff had 
 taken the horse back to the defendants, and they had refused to 
 receive it. There was no contract at any time by which she was 
 to board the horse at the defendants' expense. They denied that 
 they had any interest in the horse, contended that she had con- 
 verted it to her own use, and virtually forbade her to do or ex- 
 pend anything on their account for the care or preservation of 
 it. There are at least two possible opinions as to the legal rela- 
 tions of the parties and the principles of law by which their 
 rights are to be determined. One is that suggested by the cases 
 of Whiting v. Sullivan, 7 Mass. 107, Earle v. Coburn, 130 Mass. 
 596, and Putnam v. Glidden, 159 Mass. 47. In this view the rules 
 of law applicable to the case may be stated as follows : It is set- 
 tled that, under circumstances like those in this case, the law will 
 not imply a contract to reimburse one for the care of property 
 against an owner who has expressly or impliedly declined to per- 
 mit such care to be given on his account. No different principle 
 is applied when the property is a live animal from that applicable 
 to ordinary goods. In each of the three cases cited the owner of 
 a horse which was in possession of another person refused to re- 
 ceive it, and the court held that he was not liable for its keeping 
 to the person in whose possession it was left. The rule is that one 
 cannot be held liable on an implied contract to pay for that which 
 he declines to permit to be done on his account. The exception 
 to the rule is that, when the law imposes upon one an obligation 
 to do something which he declines to do, and which must be done 
 to meet some legal requirement, the law treats performance by 
 another as performance for him, and implies a contract on his 
 part to pay for it. A familiar illustration of this is seen when 
 the law holds one liable for necessaries furnished to his wife, if 
 he has without cause refused to provide for her. But there is no 
 such obligation upon one to retain and preserve his property, 
 whether it be live animals or anything else. He may destroy or 
 abandon it, provided he does not thereby imperil the person or
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 255 
 
 property of another. In the present case the plaintiff had no 
 right, against the will of the defendants, to expend money for the 
 care and preservation of their horse on their account. The only 
 liability of the defendants to her was a liability in damages for 
 their refusal to receive their horse when she returned it. By the 
 terms of the original bailment they impliedly agreed to receive 
 it, and relieve the plaintiff of it, when she should bring it back, 
 after the time for her keeping it had expired. Their refusal to re- 
 ceive it was a breach of their contract, and for such damage as 
 resulted directly from their refusal the plaintiff can recover. 
 But that damage includes only the loss or expense that has fallen, 
 or necessarily would fall, upon the plaintiff in ridding herself 
 of the horse in a reasonable way. It would not include compen- 
 sation for the board of the horse for an indefinite time for the 
 purpose of preserving it for the defendants. She was under no 
 contract or obligation to keep the horse for their benefit, and, if 
 she so kept it, or if she kept it for her own benefit because she 
 was doubtful how the dispute ultimately would be decided, such 
 keeping was not a direct result of the defendants ' breach of con- 
 tract, and she cannot charge them with the expense of it. The 
 plaintiff in this case had not the full right of an involuntary de- 
 positary who finds property whose owner is unknown. The finder 
 of property may do that which is reasonably necessary for its 
 preservation to prevent loss, and hold the owner responsible on 
 the ground of implied agency. Preston v. Neale, 12 Gray, 222. 
 See Field v. Eoosa, 159 Mass. 128. But, if the o^vner is known, 
 and forbids incurring expense at his charge, no contract can be 
 implied against him. In the other view of the case the law may 
 be stated thus : On the refusal of the defendants to receive the 
 horse, the relation of bailor and bailee still continued (Andrews 
 v. Keith, 168 Mass. 558), but the obligation of the plaintiff to 
 set the use of the horse against its keeping was at an end. It 
 was a necessary incident of the relation of the parties that she 
 should be entitled to charge the defendants for the expense 
 which formerly she had been bound to bear, because that expense 
 had to be incurred by her so long as she remained the defendants' 
 bailee. But the defendants' liability under this view is no 
 greater than as stated imder the other, for she was bound to do 
 that which was reasonable under the circumstances, to keep the 
 liability as small as possible. There is a line of decisions which 
 establish the doctrine that, where one party has broken an
 
 256 UAMAGKt? IN ACTIONS ON CONTRACTS. 
 
 executory contract, the other, who is in the right, cannot go on 
 iudetinitely as if the contract still were unbroken, but is bound 
 to do what he reasonably can to stop the damages for which the 
 first party Avill be liable in consequence of his breach. Collins v. 
 Delaporte, 115 Mass. 159, 162 ; Clark v. Marsiglia, 1 Denio, 317 ; 
 Danforth v. Walker, 37 Vt. 239 ; Allen v. Jarvis, 20 Conn. 38 ; 
 Cort V. Railway Co., 17 Q. B. 127. In either view the plaintiff 
 was bound to make such disposition of the horse as would termi- 
 nate the defendants' liability for damages or for expenses as 
 soon as she could seasonably do it. Exceptions sustained. 
 
 (1) Damages Against a Common Carrier for Breach of Contract to 
 Transport Personalty. 
 
 HORNE V. MIDLAND RAILWAY. 
 Common Pleas, 1872. L. R. 7 C. P. 583. 
 
 WiLLES, J. This case raises a very nice question upon the 
 measure of damages to which a common carrier is liable for a 
 breach of his contract to carry goods. It would seem that the 
 damages which he is to pay for a late delivery should be the 
 amount of the loss which in the ordinary course of things would 
 result from his neglect. The ordinary consequence of the non- 
 delivery of the goods here on the 3rd of February would be that 
 the consignee might reject them, and so they would be thrown 
 upon the market generally, instead of going to the particular 
 purchaser; and the measure of damages would ordinarily be in 
 respect of the trouble to which the consignor would be put in 
 disposing of them to another customer, and the difference be- 
 tween the value of the goods on the 3rd and the amount real- 
 ized by a reasonable sale. That prima facie would be the sum 
 to be paid, in the absence of some notice to the carrier which 
 would render him liable for something more special. These eon- 
 sequences would refer to the value of the goods at the time 
 of their delivery to the carrier, the goods being consigned to 
 an ordinary market, and being goods in daily use and not sub- 
 ject to much fluctuation in price. In the present case, taking 
 2s. 9d. per pair as the value of the shoes, the ordinary damages 
 would be the trouble the plaintiffs were put to in procuring 
 some one to take them at that price, plus the difference, if any, 
 in the market value between the 3rd and the 4th of February. 
 I find nothing in the case to show that there was any diminution
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 257 
 
 in the value between those days. The plaintiffs ' claim, therefore, 
 in that respect would be covered by the 20 1. paid into Court. 
 
 But they claim to be entitled to 267 1. 3s. 9d. over and above 
 that sum, on the ground that these shoes had been sold by them 
 at 4s. a pair to a consignee who required them for a contract with 
 a French house for supply to the French army, which price 
 he would have been bound to pay if the shoes had been delivered 
 on the 8rd of February. The special price which the consignee 
 had agreed to pay was the consequence of the extraordinary 
 demand arising from the wants of the French army; and the 
 refusal of the consignee to accept the goods on the 4th was 
 caused by the cessation of the demand for shoes of that char- 
 acter by reason of the war having come to an end. The market- 
 price, therefore, we must assume to have been 2s. 9d. a pair when 
 the shoes were delivered to the carriers; and the circumstance 
 which caused the difference was that the plaintiffs had had the 
 advantage of a contract at 4s. a pair before the extraordinary 
 demand had ceased. Was that, then, an exceptional contract? 
 It was not, I take it, at the time the contract was entered into ; 
 but it was at the time the shoes w^ere delivered to the carriers. 
 The plaintiffs sustained a loss of Is. 3d. a pair on the 4595 pairs 
 of shoes which they failed to deliver in pursuance of their con- 
 tract. It was, so to speak, a penalty thrown upon them by reason 
 of the breach of contract. In that point of view, the contract 
 was an exceptional one at the time the shoes were delivered to 
 the carriers; and they ought to have been informed of the fact 
 that by reason of special circumstances the sellers would, if the 
 delivery had taken place in time, have been entitled to receive 
 from the consignee a larger price for the shoes than they would 
 have been entitled to in the ordinary course of trade. It must 
 be remembered that we are dealing with the case of a common 
 carrier, who is boimd to accept the goods. It would be hard in- 
 deed if the law were to fix him with the further liability which 
 is here sought to be imposed upon him, because he has received a 
 notice which does not disclose the special and exceptional con- 
 sequences which will or may result from a delayed delivery. I 
 think the law in this respect has gone quite as far as good sense 
 warrants. The cases as to the measure of damages for a tort 
 do not apply to a case of contract. That was suggested in a 
 case in Bulstrode (Everard v. Hopkins, 2 Bui. 332), but the 
 notion was corrected in Hadley v. Baxendale. The damages
 
 258 DAMAGES IN ACTIONS UN CONTRACTS. 
 
 are to be limited to those that are the natural and ordinary con- 
 sequences which may be supposed to have been in the con- 
 templation of the parties at the time of making the contract. I 
 go further. I adhere to what I said in British Columbia Saw- 
 Mill Co. V. Nettleship, Law Rep. 3 C. P. 499, at p. 509, viz. that 
 **the knowledge must be brought home to the party sought to be 
 charged, under such circumstances that he must know that the 
 person he contracts with reasonably believes that he accepts the 
 contract with the special condition attached to it." Was there 
 any notice here that the defendants would be held accountable 
 for the particular damages now claimed? In the ordinary course 
 of things, the value of the shoes was 2s. 9d. a pair at the time 
 they were delivered to the defendants to be carried. There was 
 no change in their market value between the 3rd of February 
 and the 4th ; and no notice to the carriers that the consignees had 
 contracted to pay for them the exceptional price of 4s. a pair. 
 The defendants had no notice of the penalty, so to speak, which 
 a delay in the delivery would impose upon the plaintiffs. It 
 would, as it seems to me, be an extraordinary result to arrive at, 
 to hold that a mere notice to the carriers that the shoes would 
 be thrown upon the hands of the consignors if they did not reach 
 the consignees by the 3rd of February, should fix them with so 
 large a claim, by reason of facts which were existing in the minds 
 of the consignors, but were not communicated to the carriers at 
 the time. 
 
 For these reasons I come to the conclusion that enough has 
 been paid into court to cover all the damages which the plaintiffs 
 are entitled to recover, and that there must be judgment for the 
 defendants. 
 
 Keating, J., concurs. Judgment for the defendants. 
 
 2) Sales of Personal Property. ' 
 (1) Breach of Vendor. 
 
 SHIELDS V. PETTIE. 
 
 New York, 1850. 4 N. Y. 122. 
 
 The action was assumpsit to recover a quantity of pig iron. 
 The contract between the parties was concluded in these words : 
 "New York, July 19, 1847. Sold for Messrs. George W.
 
 CONTRACTS RELATING TO PERSONAL PROPERTY, 259 
 
 Shields & Co., to Messrs. Pettee & Mann, one hundred and fifty 
 tons Gartsherrie pig iron, No. 1, at $29 per ton, one-half at six 
 months, one-half cash, less four per cent., on board Siddons. 
 
 "Thomas Ingham, Broker." 
 
 On the arrival of the * * Siddons ' ' the defendants received sixty 
 or seventy tons of the iron, but on ascertaining its inferior qual- 
 ity, declined to accept and pay for it, or the residue, as of the 
 quality required by the contract. The plaintiffs offered to de- 
 liver the residue, which was declined, and then demanded pay- 
 ment for the portion delivered at the contract price, which was 
 also refused, as was a demand for the return of the iron delivered. 
 The price of No. 1 iron had by this time advanced about $3.50 
 per ton above the contract price. The defendants had parted 
 with a portion of the iron before its return was demanded. 
 
 The jury were instructed that under the circumstances the 
 defendants were liable by an implied contract to pay for the iron 
 received at its then market value. The plaintiffs had judgment 
 on a verdict for $2,197.39. The defendants appealed. 
 
 HuRLBUT, J. In my judgment the contract was not a sale but 
 an agreement to sell, which was not executed, and which could 
 only be required to be executed upon the arrival of the ship with 
 the iron on board. The arrival of the vessel without the iron 
 would have put an end to the contract, which was conditional as 
 a sale, to arrive. The vessel was at sea at the time, this was 
 known to both parties, and neither could be certain, either of 
 her arrival or of her bringing the iron. If a part only had 
 arrived, the plaintiffs would not have been bound to deliver nor 
 the defendants to accept it. There was no warranty, express or 
 implied, either that any iron should arrive, or that arriving, it 
 should be of a particular quality. One hundred and fifty tons 
 of Gartsherrie pig iron of the quality denominated No. 1 was 
 expected to arrive by the "Siddons," and the contract was to 
 the effect, that if that quantity and quality of iron did so arrive, 
 one party should sell and the other should receive it at a certain 
 price per ton. The iron called for by the contract did not arrive, 
 but iron of a different quality, and I think the contract was at 
 an end. (Boyd v. Siffkin, 2 Camp. N. P. 326 ; Alewyn v. Pryor, 
 1 Ryan & Moody, 406 ; Lovatt v. Hamilton, 5 Mees. & Wels. 639 ; 
 Johnson v. Macdonald, 9 id. 600; Russell v. Nicoll, 3 Wend. 112.) 
 
 The jury were instructed that, under the circumstances of the 
 case, the law implied a contract on the part of the defendants
 
 260 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 to pay for the iron which they received at the then value of the 
 same in the market, and they found accordingly ; which, in effect 
 compelled the defendants to pay for an inferior article a greater 
 price than that stipulated for in the contract. This arose from 
 the circumstance of a rise in the market, intermediate the contract 
 and the time of delivery. But this ought not to affect the rule 
 of damages which cannot bend to an accident of this nature, but 
 must remain the same in a case like the present, whether the com- 
 modity rise or fall, or remain stationary in the market. Where, 
 upon a sale of goods, there is no agreement as to the price, the 
 law implies a contract on the part of the buyer to pay for them 
 at the market value. The present case cannot be excepted from 
 the operation of this rule. There was no error in the charge of 
 the learned judge, provided the law implied a promise on the 
 part of the defendants to pay any thing whatever for the iron 
 which they received. This they had taken in good faith, suppos- 
 ing that it answered the contract, and intending to pay for it 
 accordingly ; but finding it to be of an inferior quality, they de- 
 clined to pay the contract price, and upon a demand for the iron 
 were not in a condition to restore it, as they had parted with a 
 portion of it. They, however, had received the iron rightfully, 
 in the character of vendees, and up to the time of the demand by 
 the plaintiffs, the case exhibits nothing in the nature of a tcrt, 
 but savors altogether of contract. After the demand and refusal, 
 the case was so far modified as to assume, technically at least, the 
 complexion of a tort, so that trover might have been maintained 
 by the plaintiffs. But although they might have done so, were 
 they bound to bring their action in that form, or were they at lib- 
 erty to disregard the tort and to treat the defendants as still re- 
 taining their original characters of purchasers of the iron and to 
 charge them accordingly? I perceive no reason why they may 
 not be permitted to do so. The goods were neither wrongfully 
 taken, nor do the defendants claim title to them. The case rested 
 originally in contract, and the only difference between the parties 
 related to the price of the article delivered. If the plaintiffs had 
 brought trover, the rule of damages would not have been more 
 favorable to the defendants than the one laid down at the trial, 
 and I am unable to perceive in what respect they can be injured 
 by the present form of action. In general it would be the most 
 favorable to the defendant. In Young v. Marshall (8 Bing. 43), 
 Tindal, Ch. J., declared that no party was bound to sue in tort,
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 261 
 
 when by converting the action into one of contract he does not 
 prejudice the defendant. It is not necessary to go this length, 
 nor as far as the court went in Hill v. Davis (3 N. H. 384), for 
 the purpose of determining the question before us; nor is the 
 point presented in the last case of much importance, since the 
 distinctions which obtained at common law in the forms of action 
 have been abrogated in this state. I, therefore, abstain from ex- 
 pressing any opinion upon it. It is enough for our present 
 purpose, that, in the case before us, the cause of action arose out 
 of an imperfect sale and delivery of goods, and not out of a 
 wrongful taking of them by the defendants; that the tortious 
 feature in the case is scarcely one of substance, but is rather of 
 a technical character; that in effect the parties must be deemed 
 to have agreed as to every thing except the price of the goods ; 
 and that this being so, the plaintiffs were at liberty to disregard 
 whatever might savor of tort, and require the defendants to re- 
 spond in their substantial characters as purchasers of the iron 
 for what it was worth in the market. 
 
 The judgment of the superior court ought to be affirmed. 
 
 Judgment affirmed. 
 
 MESSMORE V. THE NEW YORK SHOT AND LEAD CO. 
 
 New York, 1869. 40 N. Y. 422. 
 
 The action was brought to recover damages for breach of the 
 following contract, in writing: 
 
 "New York, June 8, 1861. 
 ' ' Mr. Daniel Messmore, No. 23 William Street : 
 
 "Dear Sir— We will fill your order for 100,000 lbs. of Minie 
 bullets — 58 calibre, U. S. Rifle Musket— and deliver them on 
 board such lines as you may direct, as rapidly as possible, on 
 the following terms : 
 
 ' ' The price to be 7c. per lb. If packed in kegs the charge to 
 be 12c. per 100 lbs., and cartage 50c. per ton. The terms of pay- 
 ment to be prompt cash for each lot as delivered, to be paid on 
 presentation of invoice and bill of lading. 
 ' ' Respectfully yours, 
 
 "N. Y. Shot and Lead Co. 
 
 "By J. E. Granniss." . 
 
 At the time the plaintiff gave his order for these bullets he was 
 
 under contract to furnish the state of Ohio with the same num-
 
 262 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 ber and quality oi' bullets at seven and tliree-i'ourtlis cents per 
 pound and the expenses of transportation at Columbus, Ohio, 
 and the defendants were so informed. Twenty thousand lbs. 
 were sent to the quartermaster-general of Ohio, but were rejected 
 as not conforming to the contract. They were found to be of all 
 calibres and useless. The plaintiff then offered to return the 
 bullets to the defendants, but they refused to receive them. 
 Plaintiff then sold them at Columbus, Ohio, without notice to 
 defendants, for the best price he could obtain, viz., four and a 
 half cents per pound. At the trial is was proved, that bullets 
 of the kind contracted for, were worth at that time, at Columbus, 
 nine cents per pound. 
 
 The defendant claimed that the damages, if any, could only be 
 the difference between the contract price and market price at 
 New York. 
 
 Judgment for plaintiff was affirmed by the General Term of 
 the New York Common Pleas. 
 
 Mason, J. It is not necessary to decide, in this case, whether 
 the plaintiff was entitled, upon the evidence, to recover the value 
 of these bullets upon the market price in Ohio, as shown by the 
 evidence, or whether the court erred in admitting the evidence 
 to show the value of such bullets there, as the verdict of the jury 
 shows that no such rule of damages was adopted by the jury in 
 giving this verdict. They simply allowed to the plaintiff the 
 profits which he would have made had the contract been fulfilled, 
 to wit: Three-fourths of a cent per pound, and the express 
 charges and storage on what was sent. The plaintiff submitted 
 two statements: One made upon the basis that he was entitled 
 to recover just the difference between the purchase price and the 
 price at which he had contracted for their resale to the State of 
 Ohio, with the express charges which he had paid on those sent, 
 which were refused because of their inferior quality; the other 
 was the difference between the seven cents per pound and the 
 nine cents, which the evidence showed them worth in Ohio. These 
 statements were all carried out in items and figures, the first 
 statement making the plaintiff's claim for damages $1,128.50, 
 and the second $1,949.22, and the verdict of the jury was 
 $1,128.50; showing conclusively that they adopted the first state- 
 ment without computation, and gave the plaintiff, as damages, 
 no more than the profits he would have made had the contract 
 been fulfilled, and what he paid out for express charges on those
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 263 
 
 sent which were refused. The defendants claim and insist, how- 
 ever, that this collateral contract of the plaintiff with the State 
 of Ohio was improperly allowed in evidence and could not be 
 allowed as the basis of damages between these parties; that in 
 short the plaintiff can only recover the difference between the 
 contract price and the market value in the city of New York 
 where the contract of sale was made, and where the property was 
 to be delivered under the contract. 
 
 The general rule of damages, ordinarily, is the difference be- 
 tween the contract price and the market value of the article at 
 the time and place of delivery fixed by the contract. This is not 
 the invariable rule in all cases. The general rule is, that the 
 party injured by a breach of a contract, is entitled to recover all 
 his damages, including gains prevented as well as losses sus- 
 tained, provided they are certain, and such as might naturally 
 be expected to follow the breach. In commodities commonly 
 purchasable in the market, it is safe to say that the purchaser 
 is made whole, when he is allowed to recover the difference be- 
 tween the contract price and the value of the article in the market 
 at the time and place of delivery ; because he can supply himself 
 with this article by going into the market and making his pur- 
 chase at such price, and these are all the damages he is ordinarily 
 entitled to recover, for nothing beyond this is within the con- 
 templation of the parties when they entered into the contract. 
 
 This rule, however, is changed when the vendor knows that 
 the purchaser has an existing contract for a re-sale at an ad- 
 vanced price, and that the purchase is made to fulfill such con- 
 tract, and the vendor agrees to supply the article to enable him 
 to fulfill the same, because those profits which would accrue 
 to the purchaser upon fulfilling the contract of re-sale, may 
 justly be said to have entered into the contemplation of the 
 parties in making the contract. (Griffin v. Colver, 16 N. Y. R. 
 493.) This rule is based upon reason and good sense, and is 
 in strict accordance with the plainest principles of justice. It 
 affirms nothing more than that where a party sustains a loss by 
 reason of a breach of a contract, he shall, so far as money can 
 do it, be placed in the same situation with respect to damages, as 
 if the contract had been performed. 
 
 It was clearly competent for the plaintiff to show that the de- 
 fendants were informed of the object of the plaintiff in making 
 this contract of purchase of them, and that it was to fulfill an
 
 •JG4 DAMACJHS IN ACTIONS ON CONTRACTS. 
 
 existing contract of his own with the State of Ohio ai a price 
 of three-fourths of one cent per pound, above the price he was 
 to pay them, and that they were to manufacture these bullets to 
 enable him to fulfill such contract, because it showed that these 
 profits to this plaintilf were in the contemplation of the parties 
 in entering into this contract, and as the evidence showed such 
 to be the fact, these profits that would have accrued to the plain- 
 tiff had the contract been performed by the defendants are in 
 no sense speculative or uncertain profits. The result of a non- 
 performance is a practical and certain lovss to the plaintiff to 
 that extent, luiless the plaintiff could have supplied himself by 
 going into the market, and making a purchase to fulfill his con- 
 tract, which, at that particular time, it is pretty evident, he could 
 not do, as lead went up, after the making of this contract, rapidly, 
 and bullets were sold in Ohio for nine cents in a month after 
 the making of this contract; and the plaintiff testified that he 
 was offered nine cents for a good Minie bullet by two or three dif- 
 ferent persons, and that Woods offered him that for 100,000 lbs., 
 if delivered within ten days. This was in July and August, only 
 a month or two after this contract was entered into, and the 
 demand became so great that lead went up five to six cents a 
 pound. The evidence fails to show that these bullets were 
 sacrificed in the sale of them by the plaintiff ; on the contrary, 
 the evidence is they were sold for all they w^ere worth. (See case, 
 fols. 82 and 46.) This case does not fall within the principle of 
 Eeed v. Randall, 29 N. Y. R. 358, as the plaintiff never had an 
 opportunity to examine the l)ullets and no inspection was ever 
 made of them by the plaintiff, or any one in his behalf. They 
 were put up in bags and kegs by the defendants and actually 
 shipped by them in their own name, and the contract itself re- 
 quired them to deliver them to such lines of transportation as 
 the plaintiff should direct, and evidently the plaintiff had no op- 
 portunity to examine them and therefore cannot be held to have 
 made such an acceptance as to deprive him of his action. 
 
 The plaintiff had the right to sell these bullets at the best price 
 he could obtain for them, after his offer to return them, and the 
 defendants' refusal to receive them; and the law did not require 
 him to give notice to the defendants of the time and place of sale. 
 
 fPollen & Colgate v. LeRoy & Smith, 30 N. Y. R. 549.) This is 
 not very material, however, as the evidence is they were sold for 
 
 all thev were worth.
 
 CONTRACTS REI^^TING TO PERSONAL PROPERTY. 265 
 
 There was no error committed in allowing the plaintiff to re- 
 cover what he paid out for transportation, on these bullets. By 
 his contract with the State of Ohio, the State was to pay these 
 expenses of transportation, and as they refused to receive them 
 because of their defects, the plaintiff has sustained this loss, and 
 the defendants cannot complain of this, when they accepted his 
 order and actually shipped them by express themselves. 
 
 The judgment should be affirmed. All concur. 
 
 CORY V. THAMES IRONWORKS & SHIPBUILDING 
 COMPANY, LIMITED. 
 
 Queen's Bench, 1868. L. R. 3 Q. B. 181. 
 
 This was an issue directed by the Court of Chancery under 
 8 & 9 Vict. c. 109, to ascertain the amount of damages to which 
 the plaintiffs were entitled, inter alia, by reason of the delay by 
 the defendants in the delivery of the hull of a floating-boom der- 
 rick, under a contract of sale. 
 
 At the trial before Shee, J., at the sittings in London, after 
 Hilary Term, 1864, a verdict was taken for the plaintiffs, sub- 
 ject to a case to be stated by an arbitrator. 
 
 The plaintiffs are coal merchants and shipowners, having a 
 very large import trade in coal from Newcastle and other places 
 into the port of London. The defendants are iron manufacturers 
 and shipbuilders in London. 
 
 The plaintiffs had introduced, at the docks where they dis- 
 charged the cargoes of coal from their ships, a new and ex- 
 peditious mode of unloading the coals by means of iron buckets, 
 which were worked by hydraulic pressure over powerful cranes, 
 and the plaintiffs' trade having considerably increased, they were 
 desirous of improving the accommodation offered in the dis- 
 charge of their vessels by the above mode ; this the defendants 
 were not aware of. 
 
 The defendants agreed to sell the plaintiffs for 3500 1. a float- 
 ing-bnom derrick, and to deliver it before the 1st of January, 
 1862. The plaintiffs purchased the derrick for the purposes of 
 their business, in order to erect and place in it, as they in fact 
 did. large hydraulic cranes and machinery, such as they had 
 previously used at the docks, and by means of these cranes to 
 transship their coals from colliers into barges without the neces- 
 sity for any intermediate landing, the derrick, for this purpose,
 
 266 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 beiug moored in the river Thames, and the plaintiffs paying 
 the conservators of the river a large rent for allowing it to 
 remain there. 
 
 The derrick was the first vessel of the kind that had ever been 
 built in this country, and the purpose to which the plaintiffs 
 sought to apply it was entirely novel and exceptional. No hull 
 or other vessel had ever been fitted either by coal merchants 
 or others in a similar way or for a similar purpose; and the 
 defendants at the date of the agreement had notice that the 
 plaintiffs purchased the derrick for the purpose of their busi- 
 ness, considering that it was intended to be used as a coal store ; 
 but they had no notice or knowledge of the special object for 
 which it was puehased, and to which it was actually applied. 
 
 At the date of the agreement the defendants believed that the 
 plaintiffs were purchasing the derrick for the purpose of using 
 her in the way of their business as a coal store ; but the plain- 
 tiffs had not at that time any intention of applying the derrick 
 to any other purpose than the special purpose to which she was 
 in fact afterwards applied. 
 
 If the plaintiffs had been prevented from applying the der- 
 rick to the special purpose for which she was purchased, and to 
 which she was applied, they would have endeavored to sell her to 
 persons in the hulk trade as a hulk for storing coals, and had 
 they been unable to sell her, they could and would have em- 
 ployed her in that trade and in that way themselves; that was 
 the most obvious use to which such a vessel was capable of being 
 applied by persons in the plaintiffs' business; but the hulk trade 
 is a distinct branch of the coal trade, and neither formed nor 
 forms any part of the business carried on by the plaintiffs ; and 
 the derrick being an entirely novel and exceptional vessel and 
 the first of the kind built, no vessel of the sort had ever been 
 applied to such a purpose. The derrick was, however, capable 
 of being applied to and profitably employed for that purpose, 
 and had '^he been purchased for that purpose her non-delivery 
 at the time fixed by the agreement would have occasioned loss 
 and damage to the plaintiffs to the amount of 420 1. 
 
 The defendants did not deliver the derrick to the plaintiffs 
 until the ]st of July, 1862. If the defendants had delivered the 
 hull to the plaintiffs in proper time, the plaintiffs would have 
 realized large profits by the use of it in the aforesaid manner, 
 and they were put to great inconvenience and sustained great
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 267 
 
 loss owing to their not having possession of the hull to meet the 
 great increase in their trade. 
 
 The plaintiffs also lost 8 1. 15s. for interest upon the portion 
 of the purchase-money of the hull paid by them to the defend- 
 ants before delivery. 
 
 The question for the opinion of the Court was, whether the 
 plaintiffs were entitled to recover against the defendants the 
 whole or any, and which of the above heads of damage. 
 
 The Court then called upon 
 
 J. D. Coleridge, Q. C. (Garth, Q. C, and Philbrick with him) 
 for the defendants. No doubt the plaintiffs are entitled to the 
 interest ; but they are not entitled to the 420 1. This sum is the 
 damages resulting from a special purpose, within the principle 
 of Hadley v. Baxendale. The rule laid down in Hadley v. Baxen- 
 dale is that the plaintiff can only recover such damages as are 
 the natural result of the breach of contract in ordinary circum- 
 stances, or, — which would appear to be another mode of ex- 
 pressing the same thing, — what were in the contemplation of 
 both parties at the time of the contract. 
 
 [Blackburn, J. The damages are to be what would be the 
 natural consequences of a breach under circumstances which 
 both parties were aware of.] 
 
 [CoCKBURN, C. J. No doubt, in order to recover damage aris- 
 ing from a special purpose the buyer must have communicated 
 the special purpose to the seller; but there is one thing which 
 must always be in the knowledge of both parties, which is, that 
 the thing is bought for the purpose of being in some way or 
 other profitably applied.] 
 
 But it [the use to which the defendants supposed the hull 
 was intended to be applied] is a use totally distinct from 
 that to which the plaintiffs applied and intended to apply it. 
 
 [CoCKBURN, C. J. The two parties certainly had not in their 
 ftommon contemplation the application of this vessel to any one 
 specific purpose. The plaintiffs intended to apply it in their 
 trade, but to the special purpose of transhipping coals ; the de- 
 fendants believed that the plaintiffs would apply it to the pur- 
 pose of their trade, but as a coal store. I cannot, however, assent 
 to the proposition that, because the seller does not know the pur- 
 pose to which the buyer intends to apply the thing bought, but 
 believes that the buyer is going to apply it to some other and 
 different purpose, if the buyer sustains damage from the non-
 
 26S DAMAGES IN ACTIONS ON CONTRACTS. 
 
 delivery of the thing, he is to be shut out from recovering any 
 damages in respect of the loss he may have sustained, I take 
 the true proposition to be this. If the special purpose from 
 which the larger profit may be obtained is known to the seller, 
 he may be made responsible to the full extent. But if the two 
 parties are not ad idem quoad the use to which the article is to 
 be applied, then you can only take as the measure of damages the 
 prolit which would result from the ordinary use of the article 
 for the purpose for which the seller supposed it was bought. 
 And the arbitrator, as I imderstand.it, finds that the hull was 
 capable of being applied profitably as a coal store, if it had not 
 been applied by the plaintiffs to their special purpose.] 
 
 But no vessel of the sort had ever been applied to such a pur- 
 pose as a coal store. And this kind of damage is a damage which 
 the plaintiffs never suffered, and which they never contemplated 
 suffering. 
 
 [^Iellor, J. It was the most obvious purpose to which such 
 a vessel could be applied in the plaintiff's' trade. 
 
 CocKBURN, C. J. And the purpose to which it may be fairly 
 supposed, and as in fact the defendants did suppose, that the 
 plaintiffs would have applied it, had they been prevented by the 
 failure of the machinery, or any other cause, from being able to 
 apply it to their special purpose. And so far as the defendants, 
 the sellers, expected that the plaintiffs, the buyers, would be 
 losers by their non-delivery of the vessel according to contract, 
 so far it is just and right that the defendants should be re- 
 sponsible in damages.] 
 
 That, no doubt, would be a just rule; but it is not the rule 
 laid down in Iladley v. Baxendale. 
 
 [Blackburn, J. That argument seems to assume that the 
 principle laid down in Hadley v. Baxendale is that the damages 
 can only be what both parties contemplated, at the time of mak- 
 ing the contract, would be the consequence of the breach of it ; 
 but that is not the principle laid down in Hadley v. Baxendale. 
 The court say: "We think the proper rule in such a case as 
 the present is this: Where two parties have made a contract 
 which one of them has broken, the damages which the other party 
 ought to receive in respect of such breach of contract should be 
 such as may fairly and reasonably be considered, either arising 
 naturally, i. e. according 'to the usual course of things, from such 
 breach of contract itself," — that is one alternative,— "or such as
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 269 
 
 may reasonably be supposed to have been in the contemplation 
 of both parties, at the time they made the contract, as the prob- 
 able result of the breach of it." Now, in the present case the 
 breach of contract was the non-delivery at the agreed time of a 
 hull capable of being used as a hulk for storing coals, and the 
 consequences that would naturally arise from such non-deliv- 
 ery^ of it would be that the purchaser would not be able to earn 
 money by its use, and this loss of profit during the delay would 
 be the measure of the damages caused by the non-delivery.] 
 * * * 
 
 CoCKBURN, C. J. I think the construction which Mr. Cole- 
 ridge seeks to put upon the case of Hadley v. Baxendale is not 
 the correct construction as applicable to such a case as this. 
 If that were the correct construction, it would be attended with 
 most mischievous consequences, because this would follow, that 
 whenever the seller was not made aware of the particular and 
 special purpose to which the buyer intended to apply the thing 
 bought, but thought it was for some other purpose, he would be 
 relieved entirely from making any compensation to the buyer, 
 in case the thing was not delivered in time, and so loss was sus- 
 tained by the buyer; and it would be entirely in the power of 
 the seller to break his contract with impunity. That would nec- 
 essarily follow, if Mr. Coleridge's interpretation of Hadley v. 
 Baxendale was the true interpretation. My brother Blackburn 
 has pointed out that that is not the true construction of the lan- 
 guage which the court used in delivering judgment in that case. 
 As I have said in the course of the argument, the true principle is 
 this, that although the buyer may have sustained a loss from 
 the non-delivery of an article which he intended to apply to a 
 special purpose, and which, if applied to that special purpose, 
 would have been productive of a larger amount of profit, the seller 
 cannot be called upon to make good that loss if it was not within 
 the scope of his contemplation that the thing would be ap- 
 plied to the purpose from which such larger profit might result ; 
 and although, in point of fact, the buyer does sustain damage to 
 that extent, it would not be reasonable or just that the seller 
 should be called upon to pay it to that extent ; but to the extent to 
 which the seller contemplated that, in the event of his not fulfill- 
 ing his contract by the delivery of the article, the profit which 
 would be realized if the article had been delivered would be lost 
 to the other party, to that extent he ought to pay. The buyer has
 
 270 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 lost the larger amount, and there can be no hardship or injustice 
 in making the seller liable to compensate him in damages so far 
 as the seller understood and believed that the article would be ap- 
 plied to the ordinary purposes to which it was capable of being 
 applied. I think, therefore, that ought to be the measure of 
 damages, and I do not see that there is anything in Hadley v. 
 Baxendale which at all conflicts with this. 
 
 Blackburn, J. I am entirely of the same opinion. I think 
 it all conies round to this: The measure of damages when a 
 party has not fulfilled his contract is what might be reasonably 
 expected in the ordinary course of things to flow from the non- 
 fulfillment of the contract, not more than that, but what might 
 be reasonably expected to flow from the non-fulfillment of the 
 contract in the ordinary state of things, and to be the natural 
 consequences of it. The reason why the damages are confined to 
 that is, I think, pretty obvious, viz., that if the damage were ex- 
 ceptional and unnatural damage, to be made liable for that 
 would be hard upon the seller, because if he had known what the 
 consequence would be he would probably have stipulated for 
 more time, or, at all events, have used greater exertions if he 
 knew that that extreme mischief would follow from the non-ful- 
 fillment of his contract. On the other hand, if the party has 
 knowledge of circumstances which would make the damages more 
 extensive than they would be in an ordinary case, he would be 
 liable to the special consequences, because he has knowledge of 
 the circumstances which would make the natural consequences 
 greater than in the other case. But Mr. Coleridge's argument 
 would come to this, that the damages could never be anything 
 but what both parties contemplated; and where the buyer in- 
 tended to apply the thing to a purpose which would make the 
 damages greater, and did not intend to apply it to the purpose 
 which the seller supposed he intended to apply it, the conse- 
 quence would be to set the defendant free altogether. That 
 would not be just, and I do not think that was at all meant to 
 be expressed in Hadley v. Baxendale. Here the arbitrator has 
 found that what the defendants supposed when they were agree- 
 ing to furnish the derrick was that it was to be employed in the 
 most obvious manner to earn money, which the arbitrator as- 
 sesses at 420 1. during the six months' delay ; and as I believe the 
 natural consequence of not delivering the derrick was that that
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 271 
 
 sum was lost, I think the plaintiffs should recover to that ex- 
 tent. 
 
 Mellor, J. I am entirely of the same opinion. The question 
 is, what is the limit of damages which are to be given against 
 the defendants for the breach of this contract? They will be 
 the damages naturally resulting, and which might reasonably be 
 in contemplation of the parties as likely to flow, from the breach 
 of such contract. It is not because the parties are not precisely 
 ad idem as to the use of the article in question that the defend- 
 ants are not to pay any damages. Both parties contemplated a 
 profitable use of the derrick; and when one finds that the de- 
 fendants contemplated a particular use of it as the obvious 
 mode in which it might be used, I think as against the plaintiffs 
 they cannot complain that the damages do not extend beyond 
 that which they contemplated as the amount likely to result from 
 their own breach of contract. 
 
 Judgment for the plaintiffs accordingly. 
 
 BROWN V. MULLER. 
 
 Exchequer, 1872. L. R. 7 Ex. 319. 
 
 An action for non-delivery of iron. 
 
 Kelly, C. B. I should not have felt much doubt as to what 
 should be the measure of damages in this case, but for the hesita- 
 tion expressed during the argument by my brother Martin; a 
 hesitation which, however, I understand now to be removed. 
 The defendant undertook in this case to deliver 500 tons of iron 
 during the months of September, October, and November, 1871, 
 in about equal portions ; that is, at the rate of about 166 tons in 
 each month; and he has failed to deliver altogether. Now the 
 proper measure of damages is that sum which the purchaser re- 
 quires to put himself in the same condition as if the contract had 
 been performed. This being the general principle of assessment, 
 we find that the defendant delivered no iron in September, and 
 on the 30th of that month, I think, the plaintiff was entitled to 
 receive, as damages, the difference on that day between the con- 
 tract and market price of 166 tons. No other satisfactory prin- 
 ciple can be suggested. The plaintiff might have resold this 
 amount of iron to a sub-purchaser, and to satisfy this sub-con- 
 tract might have bought at the then market price ; or else must 
 have paid the sub-purchaser the difference; and in either case
 
 272 DAMAGES IN ACTIONS ON CONTRACTS, 
 
 would be entitled to receive it from the defendant. Then, when 
 the 81st of October arrives, the same state of things recurs as to 
 the second installment of iron to be delivered; and again the 
 damages will be the difference between the contract and market 
 prices on that day. And a similar calculation must be made 
 with reference to the end of November. Therefore the plaintiff 
 will be entitled to recover, altogether, the sum of the three differ- 
 ences at the end of the three months respectively. 
 
 It has been argued with much ingenuity that the damages 
 ought to be estimated at a lower figure if it appear that when the 
 defendant announced his intention of not delivering, or at all 
 events when the first breach took place, and it became apparent 
 that the contract could never be performed at all, the plaintiff 
 might have entered into a new contract to the same effect as the 
 old one for the months of October and November on as favorable 
 terms; and if the plaintiff, on hearing he would never get de- 
 livery, was bound to go and obtain, if he could, the new contract 
 suggested, then, no doubt, assuming that he might have made 
 such a contract, the damages ought to be limited to his loss at 
 that time. But there was, in my opinion, no such obligation. 
 He is not bound to enter into such a contract, which might be 
 either to his advantage or detriment, according as the market 
 might fall or rise. If it fell, the defendants might fairly say 
 that the plaintiff had no right to enter into a speculative contract, 
 and insist that he was not called upon to pay a greater difference 
 than would have existed had the plaintiff held his hand. Or 
 again, by such a course, the plaintiff might be seriously injured 
 and yet have no remedy. Suppose, for example, his new con- 
 tract was with a person who proved insolvent. He would, in that 
 case, be without redress ; he would have lost his former contract, 
 and his new one would turn out worthless. In either event, 
 therefore, I do not think the plaintiff could be called upon to enter 
 into a fresh contract. If he did, and thus obtained an advantage, 
 he no doubt might save the defendant from some damages. But 
 if he should suffer a loss, as by the insolvency of the new con- 
 tractor, he could not make the defendant answer for it. And if 
 it should happen that he might have done better for the defend- 
 ant by waiting and making no speculative contract, the defendant 
 would in his t\irn have a fair right to complain that his loss had 
 not been mitigated as far as possible. 
 
 The case of Frost v. Knight, L. R. 7 Ex. Ill, has been referred
 
 CONTRACTS RELATING TO PERSONAL PROPERTY 273 
 
 to as showing that there is a difference between cases where the 
 contract is treated as still subsisting and where it is treated as at 
 an end. Now the plaintiff might, if he had so elected, have 
 treated the contract as at an end when the defendant announced 
 his intention to break it. But that is a matter of election on the 
 plaintiff s part, and even although he had elected thus to treat 
 the contract, yet in considering the question of damages they 
 would still be estimated with reference to the times at which the 
 contract ought to have been performed, that is, in this case, at 
 the end of the months of September, October, or November. 
 The damages should therefore be assessed on the principle I have 
 indicated, and the rule made absolute to reduce the damages to 
 109 1. 4s. 
 
 Martin, B., and Channel, B., concur. 
 
 ASHMORE V. COX. 
 
 L. R. 1 Q. B. 1899, 436. 
 
 Lord Russell, of Killowen, C. J. In this ease the plaintiffs 
 are suing the defendants for breach of contract of April 27, 
 1898. The contract related to an intended shipment of 250 
 bales of Manila hemp at a stipulated price, to be shipped by sailer 
 or sailers between May 1 and July 31. The plaintiffs say that 
 the defendants failed to comply with the contract. The facts 
 are these : The contract was entered into on April 27, 1898. 
 No shipment was made by the defendants or for them between 
 IMay 1 and July 31, 1898, and no shipment was made by any 
 other persons which the defendants sought to appropriate to 
 the contract. But on or about September 15 shipment was 
 made by a steamship called the Dulwich from Manila of hemp 
 which would in regard to character and quality have satisfied 
 the contract. Following that shipment, the defendants on 
 October 27 made a declaration of that shipment as a declara- 
 tion of a shipment within the terms of the contract. 
 
 The first question is whether that is a proper declaration in 
 compliance with the terms of the contract. The declaration is 
 addressed by the defendants to the plaintiffs, and is in these 
 
 terms : ' ' Contract, April 27, 1898, No , for 250 bales F. Ct. 
 
 Manila hemp. In fulfilment of the above, we beg to declare the 
 following and request your confirmation in due course. F. C. 
 250 bales. Per Dulwich (ss.), London. Bill of lading, dated
 
 274 DAMAGES IN ACTIONS ON' CONTRACTS. 
 
 .Manila, 15/9/98 (signed), C. S. Cox & Co." On October 29 
 the plaintiffs wrote: "Contract dated 27/-1/98, 250 bales hemp 
 F. C. ]\Iay-July sailer. We return herewith your declaration 
 for 250 bales F. C. hemp, per Dulwicli, against above contract. 
 We are instructed by our buyers to say they will not accept this 
 hemp, as it is not in accordance with their contract." They do 
 not state the grounds upon which they take up that position, but 
 it is clear that the grounds were that the shipment was not by 
 sailer or sailers, and was not made between May 1 and July 31. 
 So the matter went on, the plaintiffs not in terms treating that 
 declaration as a breach of the contract, but contenting them- 
 selves with saying, "We cannot accept this as a proper declara- 
 tion such as we are entitled to under the terms of our con- 
 tract." On November 4 the defendants for the first time write 
 saying that they are not in a position to make any other 
 declaration than the declaration of the shipment by the Dul- 
 wieh. Up to that time it would have been open to the de- 
 fendants, as I conceive, had the circumstances of the trade per- 
 mitted of it, to have got hold of any other shipment, if there 
 were any such, of Manila hemp by sailer or sailers shipped 
 between May 1 and July 31, and applied such shipment to the 
 contract in question. In my judgment the defendants are not 
 estopped, if they make a declaration which is properly objected 
 to as not answering the contract, from making a fresh declara- 
 tion, provided always they can make a fresh declaration with- 
 in a reasonable time conformably with the contract. 
 
 The first question that arises upon this state of facts is, "Was 
 the declaration a bad declaration?" On behalf of the defend- 
 ants it is said that it was not bad, upon the ground that 
 neither the stipulation as to sailer or sailers (being the character 
 of the vessel to carry the intended shipment), nor that as to the 
 dates between which the shipments were to be made, were condi- 
 tions precedent in the contract, but were merely collateral stipu- 
 lations, which, if the breach of them entailed damages upon the 
 buyer, would give him a right of action. I am unable to accept 
 that contention. No doubt there are a number of cases, all 
 turning upon the particular contract, in which the Courts 
 have held that certain stipulations, which did not go to the es- 
 sentials of the contract, are not conditions precedent. But those 
 eases do not, in my judgment, apply to the dates of shipment in 
 the present contract, and I am inclined to think also that they
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 2/0 
 
 do not apply to the provision that shipment is to be made by 
 sailer, or sailers on this short ground — that in the present eon- 
 tract the parties have chosen by the very terms in which the 
 stipulation appears to make those events conditions precedent. 
 They have said that the buyers shall not be called upon to accept 
 a shipment not in sailer or sailers, or not made between May 
 1 and July 31. I therefore hold that those stipulations are 
 conditions precedent. 
 
 On behalf of the defendants it was also contended that they 
 were excused from the fulfilment of the contract on the ground 
 of impossibility of performance of it. This contention was 
 divided into two heads. First, it was said that it was an implied 
 condition of the contract, and therefore not depending upon tho 
 express words of the contract, that it should be possible to ship 
 between the named dates by sailer or sailers. In support of that 
 contention one or two cases were cited, the principal being How- 
 ell v. Coupland, 1 Q. B. D. 258. In my judgment that case is no 
 authority for the proposition here contended for; it turned on 
 the construction of the contract in that case. The Court there 
 construed the contract as meaning that the buyer took the chance 
 of the contract being defeated in its performance by failure of 
 the potato crop by disease, the seller using all reasonable skill. 
 That has no bearing upon the present case. Here the stipula- 
 tions are that the defendants shall sell 250 bales of hemp ; that 
 the shipment shall be made from the Philippine Islands, that it 
 shall be made by sailer or sailers, that it shall be made between 
 the named dates, and that the declaration shall be made in the 
 manner provided by the contract. The defendants have taken 
 upon themselves the absolute responsibility of being able to make 
 a declaration complying with the contract and appropriating to 
 the contract 250 bales of the commodity shipped by sailer or sail- 
 ers between May 1 and July 31, 1898. They have taken upon 
 themselves (subject to the concluding clause of the contract) the 
 responsibility that those events shall take place, or that they will 
 pay damages if from any cause they are prevented from carrying 
 out the contract. I therefore hold that there was no such implied 
 condition. I do not know that it is necessary, apart from the 
 question of construction which remains, to refer to the fact that 
 it does appear that there was a shipment which would have been 
 capable of appropriation to this contract, if the sellers could
 
 276 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 have got hold of it — a shipment to Liverpool of hemp of the 
 requisite quality aiid quantity. 
 
 Secondly, it is said that, even though there is no such implied 
 condition, there is an express condition in the contract that it 
 shall be possible to ship the goods in conformity with the terms 
 of the contract. The condition is as follows: "Should the 
 goods or any portion thereof not arrive in London from loss or 
 other unavoidable cause, this contract to be void for such por- 
 tion." Undoubtedly, reading that clause by itself apart from 
 the terms of the contract, I should have hesitated a long time 
 before I arrived at the conclusion that, standing alone, it neces- 
 sarily applies only to goods in fact shipped. But it cannot be 
 read so as to give effect to the object of the contract between 
 the parties without having regard to the other stipulations con- 
 tained in the contract. The ship was not, as it were, earmarked. 
 The seller might appropriate to the contract any shipment of 
 proper quality by sailer or sailers between the stipulated dates. 
 It is therefore true to say, as was very forcibly argued on behalf 
 of the plaintiffs, that when you come to consider the concluding 
 words of that clause it is clear that the buyer has nothing to do 
 with any goods not appropriated to the contract by declaration, 
 and it is clear that the defendants, having made a faulty dec- 
 laration, might declare another shipment made by any ship 
 answering the description in the contract. The condition there- 
 fore contemplates goods which have been shipped, and I think 
 also declared. In my judgment the facts in this case do not show 
 that the non-arrival of the goods in London was caused by 
 any unavoidable cause within the meaning of the contract. 
 
 As to the question of damages. If when the defendants made 
 the declaration which I have held to be bad under the contract 
 they had said, "This is the only declaration we can make," and 
 the plaintiffs had said, "Very well, you have broken the con- 
 tract," the measure of damage would be computable by the dif- 
 ference between the contract price and the market price at that 
 date. But the plaintiffs merely said, "We cannot accept this as 
 a declaration." I think that if the defendants could then have 
 obtained a shipment which complied with the terms of the con- 
 tract they might have amended the declaration, because the 
 plaintiffs had not treated that as an absolute breach and repudia- 
 tion of the contract. On November 4 the defendants stated that 
 they could not make any other declaration — in effect, that they
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 277 
 
 repudiated the contract. The plaintiffs thereupon issued their 
 ^vrit. The difference between the contract price and the market 
 price on November 4 is the measure of damages. 
 
 Judgment for the plaintiffs. 
 
 a Breach of Warranty. 
 
 PERLEY V. BALCH. 
 
 Massachusetts, 1839. 23 Pick. 283. 
 
 Assumpsit on a promissory note. At the trial in the court of 
 common pleas, before Williams J., the defendant introduced 
 evidence tending to prove, that the consideration of the note 
 was the sale of an ox by the plaintiff to the defendant, with a 
 warranty, that the ox would fatten as well as any one the de- 
 fendant then had ; that one eye of the ox, which was then appar- 
 ently defective and diseased, was falsely and fraudulently rep- 
 resented by the plaintiff to have been hooked out, whereas, in 
 fact, it had been destroyed by a cancer; and that this dis- 
 ease was incurable, and rendered the ox incapable of being fat- 
 tened and entirely worthless for any other purpose. 
 
 It did not appear, that the defendant had returned or offered 
 to return the ox to the plaintiff, or had ever notified to the plain- 
 tiff, that he was dissatisfied with the contract, until after the com- 
 mencement of this action, which was several years after the sale. 
 The defendant kept the ox in his pasture, &c. for several months, 
 and was at some trouble to ascertain whether it would answer his 
 purpose. It did not appear what became of the ox afterwards. 
 
 The defendant also offered evidence tending to show, that he 
 purchased the ox for the sole purpose of fattening it, and that 
 this was known to the plaintiff at the time of the sale; and he 
 contended, that, upon these facts, there was an implied war- 
 ranty on the part of the plaintiff, that the ox should be reason- 
 ably fit for that purpose. 
 
 The judge instructed the jury, that no such implied war- 
 ranty arose from these facts ; that if they were satisfied that the 
 plaintiff warranted, that the ox would fatten as well as any 
 one which the defendant then had, and that the warranty was 
 false, or if they were satisfied, that the plaintiff falsely and 
 fraudulently represented the eye of the ox to have been hooked 
 out, whereby the defendant was induced to purchase it. and if 
 they were further satisfied, that the ox, if it had been re-
 
 278 DAMAGES IN ACTIONS ON CONTllACTS. 
 
 turned to the plaint ilT in a reasonable time, would have been of 
 no pecuniary value to him, the defendant would be entitled to a 
 verdict ; but that, otherwise, their verdict should be for the plain- 
 tiff. 
 
 The jury returned a verdict for the plaintiff; and the de- 
 fendant excepted to the instructions to the jury. 
 
 JNIoRTON, J., afterward drew up the opinion of the court. The 
 instruction, that there was no implied warranty, is not now com- 
 plained of, and is undoubtedly correct. See Emerson v. Brig- 
 ham, 10 Mass. R. 197 ; Shepherd v. Temple, 3 N. Hamp. R. 455. 
 Every sale of chattels contains an implied warranty, that the 
 property of them is in the vendor. But it is well settled by 
 authority as a general rule, that no warranty of the quality, is 
 implied from the sale. The maxim, caveat emptor, governs. 2 
 Kent's Com. 478; Chitty on Contr. 133; Champion v. Short, 1 
 Campb. 53; Bragg v. Cole, 6 Moore, 114; Stuart v. Wilkins, 1 
 Doug. 20 ; Parkinson v. Lee, 2 East, 314 ; Mockbee v. Gardner, 
 2 Har. & Gill, 176. 
 
 But the learned justice of the common pleas further instructed 
 the jury that if there was a fraud in the sale, or an express war- 
 ranty and a breach of it, in either case, the defendant might 
 avoid the contract, by returning the ox within a reasonable 
 time; or, if the ox would have been of no value to the plain- 
 tiff, then without returning him. Whether the jury found their 
 verdict upon the ground, that no fraud or express warranty was 
 proved, or that the ox was of no value, does not appear. If 
 therefore any, part of the instructions was incorrect, the defend- 
 ant is entitled to a new trial. 
 
 Where the purchaser is induced by the fraudulent misrepre- 
 sentations of the seller, to make the purchase, he may, within a 
 reasonable time, by restoring the seller to the situation he was 
 in before the sale, rescind the contract, and recover back the 
 consideration paid, or, if he has given a note, resist the pay- 
 ment of it. Here was no return of the property purchased, but if 
 that property was of no value, whether there was any fraud or 
 not, the note would be nudum pactum. The defendant's counsel, 
 not controverting the general rule, objects to the qualification of 
 it. He says, that the ox, though valueless to the defendant, might 
 be of value to the plaintiff, and so the defendant would be bound 
 by his contract, although he acquired nothing by it. But a dam- 
 age to the promisee is as good a consideration as a benefit to the
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 279 
 
 promisor. If a chattel be of no value to any one, it cannot be 
 the basis of a bargain ; but if it be of any value to either party, 
 it may be a good consideration for a promise. If it is beneficial to 
 the purchaser, he certainly ought to pay for it. If it be a loss to 
 the seller, he is entitled to remuneration for his loss. 
 
 But it is apparent, that a want of consideration was not the 
 principal ground of defense. The defendant mainly relied upon 
 fraud or a warranty. And to render either available to avoid 
 the note, it was indispensable, that the property should be re- 
 turned. He cannot rescind the contract, and yet retain any 
 portion of the consideration. The only exception is, where the 
 property is entirely worthless to both parties. In such case the 
 return would be a useless ceremony, which the law never re- 
 quires. The purchaser cannot derive any benefit from the pur- 
 chase and yet rescind the contract. It must be nullified in 
 toto, or not at all. It cannot be enforced in part and rescinded 
 in part. And, if the property would be of any benefit to the sell- 
 er, he is equally bound to return it. He who would rescind a con- 
 tract, must put the other party in as good a situation as he 
 was before; otherwise he cannot do it. Chitty on Contr. 276; 
 Hunt v. Silk, 5 East, 449; Conner v. Henderson, 14 Mass. R. 
 319. 
 
 The facts relied upon by the defendant to defeat the note, 
 might, if proved, be used in mitigation of damages. If there 
 was a partial failure of consideration, or deception in the quality 
 and value of it, or a breach of warranty, the defendant may avail 
 himself of it to reduce the damages to the worth of the chattels 
 sold, and need not resort to an action for deceit, or upon the war- 
 ranty. Chitty on Contr. 140 ; Germaine v. Burton, 3 Stark. R. 32 ; 
 Basten v. Butter, 7 East, 480; Poulton v. Lattimore, 9 Barn. & 
 Cressw. 259; Bayley on Bills, (2d Amer. Ed.) 531, and cases 
 cited. But he is not bound to do this. He may prefer to bring a 
 separate action, and he has an election to do so. The present 
 judgment will not bar such an action. But however this may 
 be, it does not appear, that any instructions were given or re- 
 fused upon this point. The value of the property to the de- 
 fendant would have been the true rule of damages. And had 
 he desired it, doubtless, such instructions would have been 
 given. But as he did not request them, he cannot complain of 
 their omission. 
 
 Judgment of the Court of Common Pleas affirmed.
 
 280 DAMAGES IN ACTIONS ON CONTKACTS. 
 
 GARY V. GRUMAN. 
 New York, 1843. 4 Hill, 625. 
 
 The action was for breach of warranty of soundness on sale 
 of a horse. The price paid for the horse was $90, and the breach 
 complained of was a disease in the horse's eyes. On the trial 
 in the common pleas, after Gruman, the plaintiff, had given evi- 
 dence tending to prove the warranty and the disease, the defend- 
 ant, in the course of cross-examining one of plaintiff's witnesses, 
 enquired what the horse would have been worth at the time of 
 the sale, if he had been sound ; declaring that one object of the 
 question was, to show the amount of the plaintiff's damages, if 
 entitled to any, under the following rule, which he contended to 
 be the true one, viz. "that the proper measure of damages was 
 the difference between the real value of the horse if sound, and 
 his real value with the defect complained of." The court, 
 though they received the answer for another purpose, overruled 
 it for the purpose proposed as above, holding the true measure 
 of damages to be, the difference between the price paid, and the 
 value with the defects. Defendant took exception. 
 
 CowEN, J, * * * A warranty on the sale of a chattel is, in 
 legal effect, a promise that the subject of sale corresponds with 
 the warranty, in title, soundness or other quality to which it 
 relates; and is always so stated in the declaration when this is 
 technically framed. It naturally follows that if the subject 
 prove defective within the meaning of the warranty, the stipu- 
 lation 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. There is no right in the vendee to return the article 
 and recover the price paid, unless there be fraud, or an express^ 
 agreement for a return. Voorbees v. Earl, 2 Hill, 288. Nor 
 does it add to or detract any from the force or compass of the 
 stipulation that the vendee may have paid a greater or less price. 
 The very highest or the very lowest and most trifling consider- 
 ation is sufficient. A promise, in consideration of $1, that a 
 horse which, if sound, would be worth $100, is so, will oblige 
 the promisor to pay $100 if the horse shall prove totally worth- 
 less by reason of unsoundness, and $50 if his real value be less
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 281 
 
 by half, and so in proportion. Nor could the claim be enhanced 
 by reason that the vendee had paid $1,000. 
 
 The rule undoubtedly is, that the agreed price is strong evi- 
 dence of the actual value; and this should never be departed 
 from, unless it be clear that such value was more or less than the 
 sum at which the parties fixed it. It is sometimes the value of 
 the article as between them, rather than its general worth, that 
 is primarily to be looked to — a value which very likely depended 
 on considerations which they alone could appreciate. Things 
 are, however, very often purchased on account of their cheap- 
 ness. In the common language of vendors, they are offered at a 
 great bargain, and when taken at that offer on a warranty, it 
 would be contrary to the express intention of the parties, and 
 perhaps defeat the warranty altogether, should the price be made 
 the inflexible standard of value. A man sells a bin of wheat at 
 50 cents per bushel, warranted to be of good quality. It is 
 worth $1 if the warranty be true ; but it turns out to be so foul 
 that it is worth no more than 75 cents per bushel. The pur- 
 chaser is as much entitled to his 25 cents per bushel in damages 
 as he would have been by paying his dollar, and if he had given 
 $2 per bushel he could recover no more. So, a horse six years 
 old is sold for $50 with warranty of soundness. If sound, he 
 would be worth $100. He wants eyesight, and thus his real 
 value is reduced one-half. The vendee is entitled to $50 as dam- 
 ages ; and could recover no more had he paid $200. * * * 
 
 It is impossible to say, nor have we the right to enquire, 
 whether the real value of the horse in question, supposing him 
 to have been sold, would have turned out to be more or less than 
 the $90 paid. Suppose the jury thought, with one witness whom 
 the court allowed to state such value for another purpose, that it 
 was not more than $80 ; the plaintiff then recovered $10, not on 
 account of the defect, but because he had been deficient in care 
 or sound judgment as a purchaser. On the other hand, had the 
 horse been actually worth $100, the defendant would have been 
 relieved from the payment of the $10 because he had made a mis- 
 take of value against himself. The cause might thus have turned 
 on a question entirely collateral to the truth of the warranty.
 
 282 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 We think the court below erred, and for this reason the jiidg- 
 ineut must be reversed. We direct that a Venire de novo issue 
 from that court, and that the costs shall abide the event. 
 
 Rule accordingly. 
 
 CAHEN V. PLATT. 
 
 New York, 1877. 69 N. Y. 348. 
 
 At the trial, verdict was rendered in favor of the plaintiff. 
 The General Term of the Superior Court of the city of New York 
 affirmed the judgment, from which the defendants now appeal. 
 The action was brought to recover damages for the alleged breach 
 of a contract of purchase and sale. 
 
 Earl, J. In September, 1872, at the city of New York, the 
 plaintiffs sold to the defendants 10,000 boxes of glass, at seven 
 and one-half per cent, discount from the tariff price of July, 
 1872, to be paid for in gold, at New York upon delivery of in- 
 voice and bill of lading, by bills of exchange on Antwerp. The 
 glass was to be of approved' standard qualities, and was to be 
 shipped on board of sailing vessels at Antwerp, and to be at the 
 risk of the defendants as soon as shipped, and they were to in- 
 sure and pay the freight and custom duties. The glass was to be 
 delivered during the months of October, November and Decem- 
 ber, 1872, and January, 1873. In pursuance of this contract, 
 the plaintiff delivered to the defendants 4,924 boxes of glass, for 
 which they paid. They refused to receive any more, and this 
 action was brought to recover damages consequent upon such 
 refusal. 
 
 The defendants claimed, and gave evidence tending to prove, 
 that the glass delivered was not of approved standard quality, 
 and hence that they had the right to refuse to take the balance. 
 
 While some months after the glass was delivered the de- 
 fendants complained of its quality, they at no time offered to 
 return it, or gave plaintiff notice to retake it. They received 
 it under the contract, and it is not important in this action to 
 determine, as no counterclaim is set up, whether or not a right 
 of action for damages on account of the inferior quality of the 
 glass survived the acceptance. The fact that the glass delivered 
 and received upon the contract was inferior, did not give them 
 the right to repudiate the contract altogether. They could de- 
 mand better glass, and when the plaintiff offered to deliver the
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 283 
 
 balance, if it was inferior, they could refuse to accept it. But 
 if plaintiff was ready and willing to deliver for the balance 
 such glass as the contract called for, they were bound to re- 
 ceive it. Here the plaintiff requested them to take the balance 
 of the glass, and they refused to take any more, and thus re- 
 pudiated and put an end to the contract. There was no proof 
 that the plaintiff insisted upon delivering inferior glass, or that 
 he was not ready and willing to deliver glass of the proper 
 quality. They did not take the position that they were willing 
 to receive glass of approved standard quality, but refused to 
 take any more glass under the contract. There was, there- 
 fore, such a breach of contract as enabled the plaintiff to re- 
 cover such legal damages as he sustained by the breach. 
 
 The only other question to be considered is whether a proper 
 rule of damages was laid down by the court at the trial. 
 
 The contract was made in New York, and it was doubtless 
 contemplated by the parties that the glass would be carried to 
 New York. But the plaintiff was not bound to deliver it there. 
 His delivery was upon shipboard at Antwerp, and after the 
 glass was shipped the defendants could transport it to any part 
 of the world. It was then at their risk, and they were liable to 
 pay for it, although it should be lost. After plaintiff had 
 shipped the glass, all he was bound further to do, to entitle him 
 to payment, was to present to the defendants at New York the 
 invoices and bills of lading of the glass. 
 
 Here the balance of the glass was not actually delivered. 
 The defendants notified plaintiff not to ship and absolutely 
 refused to take any more, and hence the glass remained in Bel- 
 gium. The general measure of damages in such a case is the 
 difference between the contract price and the market price at 
 the time and place of delivery. This measure is adopted as one 
 that will generally give complete indemnity to the seller. He 
 can dispose of the commodity contracted to be sold at the mar- 
 ket price, and his damage will be the difference between the 
 price thus obtained and the price he would have received if the 
 contract had been performed. Evidence as to the price need 
 not be confined to the precise time when the contract was to 
 have been performed. It may sometimes be impracticable to 
 show the price at the precise time, and hence evidence of the 
 price for a brief period before and after the time may be given, 
 not for the purpose of establishing a market price at any other
 
 284 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 time, but for the purpose of showing as well as practicable 
 the market price on the day the contract was to have been per- 
 formed. So it may not always be practicable to show the price 
 at the precise place of delivery. There may have been no sales 
 of the commodity there, and hence evidence of the price at places 
 not distant, or in other controlling markets may be given, not 
 for the purpose of establishing a market price at any other 
 place, but for the purpose of showing the market price at the 
 place of delivery. (Dana v. Fiedler, 12 N. Y. 40; Dustan v. 
 Mc Andrew, 44 N. Y. 72; Durst v. Burton, 47 N. Y. 167.) Here 
 there was no difficulty. There was a market price at the place 
 of delivery. The defendants proved that the market price 
 there was thirty-seven and one-half per cent, off from the tariff 
 rate, and the plaintiff proved that the market price in New York 
 was fifty per cent. off. The court charged the jury that the 
 plaintiff was entitled to recover the difference between the con- 
 tract price and the market price in the city of New York, and 
 this charge gave the plaintiff several thousand dollars more than 
 he could upon the evidence have recovered if the court had 
 charged that the market price at Antwerp should be taken in- 
 stead of that at New York. In this charge, which was properly 
 excepted to, the court erred, and for this error the judgment 
 must be reversed and new trial granted, costs to abide event. 
 
 All concur. 
 
 Judgment reversed. 
 
 HAMMOND V. BUSSEY. 
 
 Court of Appeal, 1887. 20 Q. B. Div. 79. 
 
 Action for breach of warranty on a contract to supply coal. 
 
 Lord Esher, M. R. In this case the plaintiffs bought from 
 the defendant "steam-coal," which was to be coal suitable for 
 use on steamers. At the time when the defendant sold the 
 coal, he knew that the plaintiffs were buying the coal in order 
 to sell it again to the owners of steamers calling at Dover to 
 be used as steam-coal on such steamers; and he therefore 
 knew that the plaintiffs would enter into contracts with others 
 similar to the contract he himself had made with the plaintiffs, 
 that is to say, into contracts for the sale of steam-coal, which 
 would amount to a warranty that the coal was reasonably fit 
 to be used for the purpose of steam-coal on board steamers.
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 285 
 
 He did not know, it is true, with what speciiic persons the 
 plaintiffs would make such contracts, but that seems to me 
 immaterial. The defendant supplied under the contract coal 
 that was not reasonably fit to be used as such steam-coal, that 
 is to say, something different from that which he had con- 
 tracted to supply. The fact that this was so was not a fact 
 which would be patent to the plaintiffs on inspection of the 
 coal; it could only be found out when it came to be used, 
 which was not by the plaintiffs, but by their sub-vendees. 
 Such a breach of such a contract with regard to such a subject- 
 matter necessarily made the plaintiffs liable to an action by 
 their sub-vendees, and the result was the plaintiffs were sued 
 for damages by their sub-vendees. The plaintiffs, when sued, 
 would be in the difficulty that they had no opportunity, 
 at the time when they entered into the sub-contract, or when 
 they delivered the coal, of knowing whether the coal answered 
 the description given in such sub-contract. What then was 
 the plaintiffs' position? Was it reasonable that they should 
 take the mere word of the persons making a claim upon them 
 chat the coal was, not merely bad, but so bad that it could 
 not reasonably be considered fit for use as steam-coal on steam- 
 ships? Was it reasonable that they should, whether they were 
 dealing with the matter on their own account or on account of the 
 defendant, submit to such a claim without having in any way 
 tested it? 
 
 If the defect in the coal had been one which would have been 
 patent on inspection, and which the plaintiffs could have seen 
 before they sold the coal again, the case might have assumed a 
 different aspect. That not being so, the plaintiffs would have 
 nothing to rely upon at first but the mere words of the sub- 
 vendees. Under those circumstances it would not have been 
 reasonable, either on their own account or on that of the de- 
 fendant, for the plaintiffs to submit to judgment at once with- 
 out defending the action or testing the claim in any way. If they 
 were to defend the action, of course they would not be sure to 
 win ; whether they would win or lose would depend on the extent 
 to which the evidence w^ent as to the quality of the coal, of which 
 the plaintiffs could not judge, and which they probably could not 
 satisfactorily ascertain or prove without the assistance of the de- 
 fendant. In order to make themselves as safe as possible in this 
 respect, the plaintiffs gave notice of the claim against them to
 
 2S(i DAMAGES IN ACTIONS ON CONTRACTS. 
 
 the present defendant, and thereupon the defendant insisted that 
 the coal he had supplied was aeeording to contract. The value 
 of that fact is to show the plaintiff's position, and to make it 
 still more reasonable that they should defend the action by their 
 sub-vendees against them. They accordingly defended the ac- 
 tion, and of course would become liable to costs in that action, 
 if, by reason of any breach of contract by the defendant, the de- 
 fence was unsuccessful. That defence appears to have turned 
 entirely on the question of breach of warranty. There is noth- 
 ing to show that it depended on anything else, or that any dam- 
 ages were given except for the breach of warranty. The defend- 
 ant has admitted that the damages given in that action were 
 merely the damages naturally resulting from the breach of war- 
 ranty, for he has paid the amount of them into court in this ac- 
 tion. Furthermore, it is not suggested that the costs which the 
 plaintiffs incurred were extravagantly or recklessly incurred, 
 or that they are anything but fair and honest costs of a fair and 
 honest defence. The plaintiffs sue the defendant for the damages 
 occasioned by his admitted breach of contract, viz., in supply- 
 ing coal not according to contract. The question is, what are 
 the damages which they can recover ? We find the rule of law as 
 to measure of damages enunciated in the case of Hadley v. Bax- 
 endale. It may be that the rule so laid down was not neces- 
 sary for the purpose of deciding that ease, but it is far too late 
 to question it. The rule, though frequently commented upon, 
 has been over and over again adopted by the courts, and must 
 now be considered to be the law on the subject. We must there- 
 fore treat the present case on the footing that the question is 
 as to the true application of that rule to the measure of dam- 
 ages for such a breach of such a contract under such circum- 
 stances as we have to deal with here. We have not got to deter- 
 mine how that rule would apply to other breaches of other con- 
 tracts under those circumstances than those we have now to con- 
 sider. The rule is laid down thus: "Where two parties have 
 made a contract which one of them has broken, the damages 
 which the other party ought to receive in respect of such 
 breach of contract" — it is to be observed in passing that the rule 
 is not contemplating a breach of a contract to pay damages, but 
 the damages which are recoverable in respect of a breach — 
 "should be such as may fairly and reasonably be considered 
 either arising naturally, i. e., according to the usual course of
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 287 
 
 things, from such breach of contract itself." That is the enun- 
 ciation of the rule with regard to damages for a breach of con- 
 tract where no special circumstances arise, and would apply to 
 this case if there had been no sub-contract which the defendant 
 knew to exist or to be likely to be made. The rule goes on 
 to state what the measure of damages is where there are special 
 circumstances, as follows: "or such as may reasonably be sup- 
 posed to have been in the contemplation of both parties, at the 
 time they made the contract, as the probable result of the breach 
 of it." It has been argued that these words are not an enlarge- 
 ment of the former part of the rule, but I cannot take that view 
 of them. It is to be observed that the words are not "such 
 damages as were in fact in the contemplation of the parties at the 
 time they made the contract," which would have raised a ques- 
 tion of fact for the jury, but "such as may reasonably be sup- 
 posed to have been in the contemplation of the parties," not as 
 the inevitable, but as "the probable result of the breach." The 
 next sentence of the judgment is, I think, to be considered rather 
 as a valuable exemplification of the rule, an illustration of the 
 circumstances under which the second branch of the rule would 
 apply, than as part of the rule itself. It proceeds : "Now, if the 
 special circumstances under which the contract was actually 
 made were communicated by the plaintiffs to the defendants, and 
 thus known to both parties, the damages resulting from the 
 breach of such a contract, which they would reasonably contem- 
 plate, would be the amount of injury which would ordinarily fol- 
 low from a breach of contract imder these special circumstances 
 so known and communicated." I do not think that there is 
 anything in those words to show that the second branch of the 
 rule must be confined to the case of a sub-contract already actual- 
 ly made at the time of the making of the contract, and would 
 not apply to the case of a sub-contract not yet actually made, but 
 which will probably be made. I think that this sentence must 
 be looked upon as intended to be an exemplification of the second 
 branch of the rule already stated rather than as part of it ; and 
 in any case it seems to me clear that the rule would apply to the 
 case of a sub-contract which within the knowledge of the defend- 
 ant was in the ordinary course of business sure to be made. We 
 have to apply that rule to the sale and purchase of such an 
 article with such a warranty as that now in question, with the 
 knowledge on the part of the vendor that there would be a sub-
 
 2SS DAMAGES IN ACTIONS ON CONTRACTS. 
 
 sale by the vendees with a similar warranty ; and to see whether, 
 under these eireumstanees, the bringing of an aetion by the sub- 
 vendees in the event of there being a breach of the warranty 
 by the vendees, and the defence of such action by the vendees, 
 are consequences that may reasonably be supposed to have been 
 in the contemplation of the parties at the time they made the 
 contract as a probable result of the breach of it. Such a ques- 
 tion is one upon which those who have to determine it must ex- 
 ercise their minds according to the circumstances of the par- 
 ticular case. It is impossible for us to lay down a rule as to what 
 would be reasonably to be supposed to have been in the contem- 
 plation of the parties in the cases of other contracts made with 
 regard to other subject-matters under other circumstances. We 
 can only apply the rule laid down as above stated to the circum- 
 stances of the case before us. We must say, using our knowl- 
 edge of business and affairs, what may reasonably be supposed 
 to have been in the contemplation of the parties as the result of a 
 breach of the contract under the circumstances. I do not think 
 that the question is one for a jury, though I think that possibly, 
 under certain circumstances, with regard to some subject-mat- 
 ters, it would be competent to a judge to ask particular questions 
 of a jury in order to assist him in coming to a conclusion on such 
 a question. There are, however, no such circumstances here. I 
 cannot doubt that any business man would contemplate, as be- 
 ing, according to the ordinary course of things under the cir- 
 cumstances, not only the probable but the inevitable result of 
 such a breach of contract, that there would be a lawsuit by the 
 sub-vendees, and that the reasonable course to be pursued by 
 the vendees might be that they should not at once submit to the 
 claim, but that, unless they could get information from the ven- 
 dor that there was really no defense, they should defend the ac- 
 tion. It would not, of course, be the inevitable result that the 
 vendees should lose the action ; that would depend on the ques- 
 tion whether there was a breach of the warranty, and whether, if 
 so, it could be proved. If, however, it were proved, then of 
 course the result would be that the vendees must incur costs ; and 
 it seems to me that such costs would under the circumstances 
 come within the second branch of the rule in Hadley v. Baxen- 
 dale. 
 
 It has been argued that, upon the true construction of the 
 T-nle in that case, such costs cannot be recovorable as the result of
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 289 
 
 a breach of contract, unless there has been a contract of ' ' indem- 
 nity. ' ' The meaning of that term has been much discussed dur- 
 ing the argument. I may in previous cases, in which the ques- 
 tion was as to the damages incurred by reason of the breach of a 
 contract, where there was a sub-contract, have used expressions to 
 the effect that, where the special circumstances were known to the 
 original vendor, the law would imply a contract to indemnify. I 
 do not feel sure, having regard to the language used by Willes, 
 J., in Collen v. Wright, 8 E. & B. 657, that the obligation implied 
 by the law under such circumstances as those with which we are 
 now dealing might not be correctly expressed by that formula; 
 but I purposely abstain from so deciding. I do not think it neces- 
 sary to put the case on that footing, inasmuch as the way in which 
 I have put it, by applying the rule in Hadley v. Baxendale, viz., 
 that the question is whether the damages claimed may reasonably 
 be supposed to have been within the contemplation of the parties 
 at the time when they made the contract, seems to be another and 
 perhaps a better way of expressing it. For the purpose of sub- 
 stantiating the argument that there must be a contract to in- 
 demnify, express or implied, in order to enable costs such as 
 these to be recovered as damages, expressions used in previous 
 cases have been referred to. The language used by me in the case 
 of Grebert-Borgnis v. Nugent, 15 Q. B. D. 85, has been relied 
 upon for the defendant. But that language must be read in con- 
 nection with the subject-matter. I was there giving an account 
 of the circumstances of that case, as I have given an account of 
 the circumstances of this ease, and I used that language in ex- 
 pressing what I conceived to be the particular circumstances of 
 that case, which made the rule in Hadley v. Baxendale applicable. 
 It seems to me immaterial whether the phraseology I used in so 
 doing was exactly accurate, for, if the circumstances of that case 
 did come within that rule, it comes to the same thing. There 
 was nothing said by me in that case which really adds anything 
 to or takes anything from the rule enunciated in Hadley v. Bax- 
 endale as applicable to a case like the present. The case of Bir- 
 mingham, &c.. Land Co. v. London and North-Western Railway 
 Co., 34 Ch. D. 261, was refei-red to for the same purpose. It is 
 only necessary to say with regard to that case that the court was 
 not there construing the rule as to damages laid down in Had- 
 ley V. Baxendale, but the provisions of Order XVI., rule 48, with 
 
 regard to the question whether the third party procedure was ap- 
 is
 
 290 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 plicable. It does not seem to me that such a case has any bear- 
 ing upon the present question. There are cases which would, 
 no doubt, be authorities on the question before us but for the 
 fact that they were decided prior to Iladley v. Baxendale. Lewis 
 V. Peake, 7 Taunt, 153, is such a case, but I do not think such 
 decisions are now of any use. It seems to me that the case of 
 Collen V. Wright, 8 E. & B. 647, is really a strong authority with 
 regard to the question now before us, though of course the court 
 were not there dealing especially with the rule as to measure of 
 damages. Then I come to the case of Baxendale v. London, 
 Chatham, and Dover Ry. Co., Law Rep. 10 Ex. 35. If I thought 
 that that case had decided that, however reasonably it might 
 be supposed that the parties contemplated that there would be 
 an action on the sub-contract as a result of the breach of con- 
 tract, and that the plaintiffs, acting as reasonable men, would 
 defend that action, and however reasonable the incurring of 
 the costs might be, yet those costs could not be recovered as dam- 
 ages, I should feel bound by that decision, for it is a decision of 
 a court of co-ordinate jurisdiction. And I must admit that I 
 have felt considerable anxiety as to whether the decision does 
 touch the point now before us. It is useless to discuss at length 
 all the verbal criticism which has been directed during the argu- 
 ment to the language of the judgments in that case. I must con- 
 fess to feeling some difficulty as to the exact effect of much that 
 was said in those judgments, but I think it is quite clear that 
 what the court did in effect decide was that the costs in ques- 
 tion were not reasonably incurred in that case, and therefore 
 they could not be recovered. The case therefore decides that, 
 where the costs are unreasonably incurred, they cannot be re- 
 covered, but it is not, as it seems to me, a decision that, where 
 the costs were under all the circumstances reasonably incurred, 
 they cannot be recovered. I then come to the case of Fisher v. 
 Val de Travers Asphalt Co., 1 C. P. D. 511. I must admit, after 
 the discussion that has now taken place, that I doubt whether, 
 when that case came before the court, I did quite correctly ap- 
 preciate what was decided and what was not in the case of Baxen- 
 dale v. London, Chatham, and Dover Ry. Co., supra. Assuming 
 that I did not in that case take an altogether correct view of the 
 decision in Baxendale v. London, Chatham, and Dover Railway 
 Co., and therefore gave a wrong reason for the decision there, 
 that could have no effect upon the true meaning of the previous
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 291 
 
 decision ; and it by no means follows that, because a reason given 
 for the decision in Fisher v. Val de Travers Asphalt Co. was 
 wrong, that therefore the decision itself was wrong. It is un- 
 necessary, however, now to discuss that question. It does not 
 seem to me that there is really any case which alters the rule as 
 laid down in Hadley v. Baxendale, or which prevents our ap- 
 plying that rule in the terms in which it stands in the judgment 
 there given as I have applied it to the present case. To my mind 
 it is perfectly clear that, according to a reasonable business view 
 of the reasonably probable course of business, the parties may 
 be supposed to have contemplated, at the time when the con- 
 tract was made, as the inevitable or at any rate the highly 
 probable result of a breach of it, that there would be a lawsuit 
 between the plaintiffs and their subvendees, in which it would 
 be reasonable for the plaintiffs to defend, and in which, if it 
 turned out that there was a breach of the warranty, the plain- 
 tiffs would lose, and that they would thereby necessarily incur 
 costs. Costs incurred under such circumstances appear to me 
 to fall within the second branch of the rule in Hadley v. Baxen- 
 dale. I therefore think that the plaintiffs were entitled to re- 
 cover over from the defendant in respect of their costs, and that 
 the decision of the learned judge below was right, and should 
 be affirmed. 
 
 BowEN, L, J., and Fry, L. J., wrote concurring opinions. 
 
 PARK V. RICHARDSON 
 
 Wisconsin, 1895. 91 Wis. 189. 
 
 Appeal from a judgment of the circuit court. 
 
 The plaintiffs bought of the defendant a furnace for heating 
 their building. The furnace was warranted to work satis- 
 factorily. It did not work satisfactorily. The plaintiffs brought 
 this action for a breach of warranty. The court instructed the 
 jury that, in case they found for the plaintiffs, "the plaintiffs 
 will be entitled to recover the difference between the purchase 
 price of the furnace * * * and its actual value. 
 
 Newman, J. When this case was here before (81 Wis. 399), 
 it was said that the proper rule of damages for breach of the 
 warranty of the furnace would be "the difference between its 
 actual value and its value had it conformed with the warranty." 
 This is undoubtedly the true rule. Suth. Dam. (2d Ed.)
 
 L192 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 § 670 ; :Morse v. Ilutchins, 102 lAlass. 440. The rule stated by the 
 trial court is not the equivalent of the true rule. The inile of 
 the trial court deprives the j)urchaser of the profit of his bar- 
 gain, if he has niade a good one, and gives him an undue advan- 
 tage, if he has made a bad one. The furnace may have been 
 either cheap or dear, at the price paid, even if it had conformed 
 to the warranty. If it was a bad bargain, aside from the de- 
 fects complained of, the plaintiffs' damages are less than if it 
 had been a good bargain. This consideration is an element in 
 the rule of damages. The question of the value of the furnace, 
 if it had conformed to the warranty, should have been left to the 
 jury, as well as the question of its actual value. The defendant 
 may have suffered by the error. Reversed. 
 
 HENDRICKSON v. BACK. 
 
 Minnesota, 1898. 74 Minn. 90. 
 
 Collins, J. * * * The question, which from the order 
 and the briefs, we suppose is in controversy, is what is the meas- 
 ure of damages where there has been a breach of an implied war- 
 ranty against incumbrances on personal property, and the ven- 
 dee has been deprived of such property by an assertion of the 
 paramount title or right,— in this instance, by the foreclosure 
 of a mortgage ? From the order it seems that the charge to the 
 jury was that the vendee was entitled to recover as damages the 
 value of the property when it was taken from him, and dam- 
 ages were awarded on this basis, and that in passing upon the 
 motion the court held its charge to have been erroneous, and 
 that it should have stated that the vendee's damages were the 
 price paid for the chattel. 
 
 Unless we are to lose sight of the cardinal principle which 
 governs when estimating and awarding damages in civil actions, 
 which is simply compensation to the injured party, the court was 
 right in its charge, and wrong when it concluded that an error 
 had been committed. It was held in Close v. Crossland, 47 
 ]\Iinn. 500, in a case involving this very question, that the dam- 
 ages are the actual loss, which is the value of the chattel pur- 
 chased. Of course, there might be circumstances which would 
 affect any particular case. Under the rule established by the 
 granting of the motion, the damages actually sustained might 
 be more or might be less than the recovery, depending on the
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 293 
 
 real value of the chattel when the paramount title was asserted 
 as against the vendee ; that is, whether the real value was more 
 or less than the price paid. A good illustration of this is found 
 in the present case. 
 
 Defendant purchased in 1892, agreeing to pay $75 for the 
 harvester and binder in question. He gave his note for this sum 
 to his vendor, plaintiff 's intestate, and the note in suit was given 
 in renewal in 1894. The machine was mortgaged, but no claim 
 for possession was asserted until 1895, and it was then worth but 
 $25. Defendant had the possession and the use for three years, 
 during which time the property would materially decrease in 
 value. His actual loss when the paramount title or right was 
 asserted was the value of the property when taken away from 
 him, and his loss would have been the same if he had bought 
 the machine for $10 in 1892 * * * 
 
 In conclusion, we observe that the rule above stated as the 
 true one is in harmony with those applied where there has been 
 a breach of warranty of quality, or where delivery of goods pur- 
 chased has been refused. Order affirmed. 
 
 BOSTOCK V. NICHOLSON. 
 
 L. R. 1 K. B. 1904, 725. 
 
 Action to recover damages for fraudulent misrepresentation 
 and breach of contract on sale of sulphuric acid commercially 
 free from arsenic. 
 
 The ease came on for further consideration as to the damages 
 recoverable from the defendants. 
 
 Damages were claimed under the following heads : — 
 
 1. The price paid for the acid supplied which contained 
 arsenic, which was worthless to the plaintiffs. 
 
 2. The value of material used for the purpose of making 
 glucose and invert which was spoilt by being mixed with acid 
 containing arsenic. 
 
 3. Compensation for the loss of the goodwill of the plain- 
 tiffs' business. 
 
 4. The damages which the plaintiffs were liable to pay to the 
 brewers who had been supplied by the plaintiffs with glucose 
 and invert made out of acid containing arsenic. 
 
 Bruce, J., read the following judgment: — The judgmental-
 
 294 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 ready delivered found that there was a contract for the sale 
 of goods by description within s. 13 of the Sale of Goods Act, 
 1893 — that is, a sale of B. 0. V, commercially free from arsenic, 
 and that there was an implied condition that the goods supplied 
 should correspond with that description; and when the defend- 
 ants, in March, 1900, delivered B. O. V. which was not com- 
 mercially free from arsenic, there was a breach of the implied 
 condition. It was further found by the judgment that the buyer 
 did not expressly, or by implication, make known to the seller 
 the particular purpose for which the goods were required, so 
 as to bring into operation sub-s. 1 of s. 14 of the Sale of Goods 
 Act. The question now arises, what are the damages which the 
 plaintiffs are entitled to recover against the defendants? The 
 plaintiffs claim, first, the price paid for the acid supplied, which 
 was not commercially free from arsenic. They say that the 
 acid was worse than useless to them, and that the price paid for 
 it was wholly thrown away. Secondly, the plaintiffs claim the 
 value of the material used for the purpose of making glucose and 
 invert, which was spoilt by its being mixed with acid which 
 proved to be poisonous at a time when the plaintiffs supposed 
 the acid to be commercially free from arsenic. Thirdly, the 
 plaintiffs claim a large sum of money as compensation for the 
 goodwill of the business which the plaintiffs carried on as manu- 
 facturers of invert and glucose, and which the plaintiffs say has 
 been entirely destroyed by the act of the defendants in supply- 
 ing them with poisonous acid. Fourthly, the plaintiffs, before 
 they discovered the poisonous properties of the acid, sold to 
 brewers, for the purpose of being used in the brewing of beer, 
 invert and glucose made from the poisonous acid, and they 
 claim from the defendants the amount of damages which the 
 brewers are entitled to recover against them. 
 
 In order to arrive at the damages which the plaintiffs are 
 entitled to recover, we must consider the provisions of the Sale 
 of Goods Act, 1893. Sect. 11, sub-s. 1 (a), enacts that where a 
 contract of sale is subject to any condition to be fulfilled by 
 the seller, the buyer may waive the condition, or may elect to 
 treat the breach of such condition as a breach of warranty. In 
 the present case the plaintiffs, the buyers, accepted the acid in 
 ignorance that it did not fulfil the condition that it was com- 
 mercially free from arsenic. Had they known of the breach 
 of condition, they might have refused to accept the goods; but
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 295 
 
 having accepted the goods in ignorance of the breach of con- 
 dition, I think the case is one to which s. 11, sub-s. 1 (c), applies. 
 That sub-section enacts that where the property has passed to 
 the buyer the breach of any condition to be fulfilled by the 
 seller can only be treated as a breach of warranty in the absence 
 of a special term to the contrary. Sect. 53, sub-s. 1, enacts 
 that where the buyer is compelled to treat any breach of a 
 condition on the part of the seller as breach of warranty the 
 buyer may (b) maintain an action for damages for the breach 
 of warranty. Sub-sect. 2 enacts that the measure of damages 
 for breach of warranty is the estimated loss indirectly and nat- 
 urally resulting, in the ordinary course of events, from the 
 breach of warranty. Sub-s. 3 of s. 53, which relates only to a 
 breach of warranty of quality, has I think, no bearing in the 
 present case. Nichol v. Godts, 10 Ex. 191, and Josling v. Kings- 
 ford, 13 C. B., (N. S.) 447, illustrate the distinction between a 
 mere warranty of quality and a condition that the goods shall 
 correspond with the description. Although in circumstances 
 such as have happened in this case the buyer is compelled to 
 treat the breach of the condition as a breach of warranty, yet in 
 point of fact the damages for such breach of warranty are differ- 
 ent from the damages which follow from a mere breach of war- 
 ranty of quality. 
 
 The damages in the present case must, I think, be determined 
 by the rule laid down in s. 53, sub-s. 2. Before I proceed to con- 
 sider the meaning and application of this sub-section, I may 
 refer to s. 54, which enacts that nothing in this Act shall affect 
 the right of the buyer or the seller to recover interest or special 
 damages in any case where by law interest or special damages 
 may be recoverable. These two sections seem to be framed upon 
 the rules laid down in Hadley v. Baxendale, 9 Ex. at p. 354. 
 (The learned Court here reviews the authorities). 
 In my opinion the plaintiffs are entitled to recover, first, the 
 whole price paid by them for the impure acid, because the acid 
 being worthless to the plaintiffs there was an entire failure of 
 consideration, and by virtue of s. 53, sub-s. 1 (a), Sale of Goods 
 Act, where there is a breach of warranty by the seller, the buyer 
 may set up against the seller the breach of warranty in extinction 
 of the price: see Poulton v. Lattimore, (1829) 9 B. & C. 259; 32 
 R. R. 673. Second, the value of the goods that were rendered 
 useless by being mixed with the poisonous acid at a time
 
 L*l.)(j DAMAGES IN ACTIONS ON CONTRACTS. 
 
 Avhen the plaintiffs were igiioranl of the poisonous character of 
 the acid. That, I think, is a loss directly and naturally resulting 
 in the ordinary course of events from the breach of warranty. 
 
 The claim of the plaintiffs for the loss of the goodwill of their 
 business is not, 1 think, recoverable. It does not seem to me to 
 be a loss directly and naturally resulting in the ordinary course 
 of events from the breach of warranty. It did not arise directly 
 from the act of the defendants, but arose from the act of the 
 plaintiffs in selling the poisonous glucose and invert to brewers 
 for use in the brewing of beer. The poisonous glucose and invert 
 were not supplied by the defendants to the plaintiffs, but were 
 manufactured by the plaintiffs ; the damage to their credit arose, 
 not directly from any act of the defendants, but arose from the 
 act of the plaintiffs in manufacturing glucose and invert by 
 means of poisonous acid, and selling the glucose and invert so 
 made as fit to be used in the brewdng of beer. In Randall v. 
 Raper, E. B. & E. 84, there was an allegation in the declaration 
 that the plaintiffs had been and were by means of the premises 
 injured in their credit, in their said trade, and otherwise, and 
 had been and w^ere otherwise injured. And no doubt in point 
 of fact the selling of inferior barley would tend to injure the 
 credit of the plaintiffs in their trade as corn-factors, yet no one 
 seems to have contended that the damages under that head were 
 recoverable. So in Fitzgerald v. Leonard, L. R. Ir. 32 C. L. 675, 
 it was held that damages for loss of trade could not be recovered. 
 
 Further, I think that the plaintiffs are not entitled to re- 
 cover against the defendants the sums which the brewers to whom 
 the plaintiffs sold the glucose and invert made from the poisonous 
 acid are entitled to recover against them. I think the rule is 
 correctly laid down in Smith's Leading Cases in the note to 
 Vicars v. Wilcocks, 2 Sm. L. C. 11th ed. p. 521, that no liability 
 is incurred in the ordinary case of a separate and distinct col- 
 lateral contract with a third person uncommunicated to the orig- 
 inal contractor or wrong-doer although the non-performance of 
 this contract may in one sense have resulted from the original 
 wrongful act or breach of contract. In my opinion there are 
 no special circumstances to entitle the plaintiffs to claim 
 special damages under s. 54 of the Sale of Goods Act. 
 
 The damages, therefore, will be confined to the two items I 
 have mentioned — (1) the price paid for the impure acid; (2)
 
 CONTKACTS RELATING TO PERSONAL PROPERTY. 297 
 
 value of the goods spoilt by being mixed with the impure acid. 
 I have not gone into the figures, but I understand they can easily 
 be agreed upon. 
 
 Judgment for the plaintiffs. 
 
 ISAACS V. WANAMAKER. 
 
 New York, 1908. 189 N. Y. 122. 
 
 Edward T. Bartlett. J. The referee found that on the 26th 
 day of July, 1904, the defendant sold to the plaintiflE a Search- 
 mont touring car with certain appurtenances; that at the time 
 of the sale the plaintiff paid to defendant the entire purchase 
 price of $1,200; that the defendant made certain representa- 
 tions and statements to plaintiff in respect to the machine be- 
 fore the purchase thereof which constituted a warranty; that 
 the defendant was guilty of a breach of the same upon which the 
 plaintiff relied; and that it subsequently^ proved to be untrue. 
 It is further found that upon the discovery of the breach of 
 warranty when the car arrived in Niagara Falls plaintiff 
 promptly rescinded the contract, and offered to return the ma- 
 chine and appurtenances, and demanded the repayment of the 
 purchase price. The referee held, as matter of law, that the 
 plaintiff had properly rescinded the contract and was entitled 
 to recover of the defendant the purchase price of $1,200 and in- 
 terest, and the further sum of $31.20, with interest, being the 
 amount of freight paid for transporting said car from the city 
 of Philadelphia, where it was purchased, to the city of Niagara 
 Palls, where the plaintiff resides. 
 
 The plaintiff's damages were awarded on a wrong theory, and 
 the judgment must be reversed. The action is based upon an 
 alleged rescission of the contract, and the right of the plaintiff 
 to recover the purchase price as such, and certain freight charges. 
 The findings present a contract of sale, fully executed, accom- 
 panied by an express warranty. It has long been the settled law 
 of this state that, where an article is delivered to the purchaser 
 with an express warranty, the measure of the purchaser's dam- 
 ages on the breach thereof is the difference between the value 
 of the article if it had been as warranted and actual value. 
 Yoorhees v. Earl, 2. Hill, 228; Gary v. Gruman, 4 Hill, 625; 
 Muller V. Eno, 14 N. Y. 597; Rust v. Eckler, 41 N. Y. 488. 
 The defendant is entitled to litigate the questions of breach of
 
 298 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 warranty and the value of the article sold and delivered, even 
 if it were proved that there had heen a breacli. 
 
 The judgments of the Special Term and Appellate Division 
 should be reversed, and a new trial ordered, with costs to abide 
 the event. 
 
 CuLLEN, C. J., and Gray, Haight, Vann,Willard Bartlett, 
 and HiscocK, JJ., concur. Judgment reversed. 
 
 (2) Breach of Vendee. 
 GANSON V. MADIGAN. 
 
 Wisconsin, 1862. 15 Wis. 158. 
 
 Appeal from circuit court, Dodge county. 
 
 Action by Ganson, Huntley & Co. against one Madigan to re- 
 cover for the price of a reaping machine alleged to have been de- 
 livered on his written order. In giving instructions to the jury, 
 the judge said: * * * If you find that the plaintiffs did 
 deliver a machine according to agreement, then they are en- 
 titled to recover whatever damages they have sustained by the 
 defendant's refusal to receive. The rule of damages is the dif- 
 ference between the contract price and the actual value of the 
 reaper on the 1st of July, 1855, the day specified for the de- 
 livery, together with any expenses incurred by the plaintiff." 
 
 The rights and liabilities of the parties under the contract 
 were, in substance, these: The plaintiffs were bound to man- 
 ufacture and deliver the machine in the manner specified, at the 
 city of iMilwaukee, on or before the first day of July. The de- 
 fendant was bound, on the same day (or before, if notified of 
 its earlier delivery, and he chose to do so) , to be present to receive 
 it, and pay the fifty dollars and the storage. The obligation of 
 the plaintiffs to manufacture and deliver, and that of the de- 
 fendant to be present and receive and pay, were mutual and 
 concurrent. The presence of both parties, by themselves or 
 agents, at the time and place designated, was necessarily con- 
 templated, since the obligations resting upon them respectively 
 could not otherwise be discharged. The plaintiffs, if they had 
 manufactured and furnished ready for delivery by their agents 
 at Milwaukee, such a machine as the contract called for, would 
 have so far performed the duty imposed upon them as to be
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 299 
 
 entitled to damages for the defendant's violation of duty in 
 neglecting to be present, accept and pay the sums stipulated. For 
 this purpose it was not necessary for them to set apart the ma- 
 chine so as to vest the title in him subject to their lien for the 
 purchase money and charges. Having manufactured and for- 
 warded the machine upon the faith of his promise to receive and 
 pay for it, it would be most unreasonable and unjust to say that 
 they should not have compensation for any actual loss or ex- 
 pense which they had thus incurred. The defendant, by his fail- 
 ure to appear and perform the contract on his part, would have 
 been in no situation to insist upon an actual delivery or sepa- 
 ration of the machine. Delivery and payment were concurrent 
 acts, the one dependent on- the performance of the other, and the 
 neglect of the latter effectually excused the former. It would 
 have been enough to have enabled the plaintiffs to recover their 
 actual loss and expenses, if they had shown that they were ready 
 and willing to perform the contract on their part. Chitty on 
 Con., 633. As stated by IVIr. Parsons (2 Parsons on Con., 484,) 
 they had under the circumstances, three courses open to them ; to 
 consider the machine as their own (which they did, by not set- 
 ting it apart, so as to constitute a delivery), and sue for the dam- 
 ages occasioned by the non-acceptance ; or to consider it as the 
 defendant's (which they might have done, by separating it from 
 the others so as to be capable of identification), and sell it, with 
 due precaution, to satisfy their lien on it for the price, and then 
 sue and recover only for the unpaid balance of the price ; or in 
 the latter case, also, to hold it subject to defendant's call or or- 
 der, and then recover the whole price which he agreed to pay. 
 "We deem these principles to be sound and well supported by 
 the authorities, and are willing to stand by them. The rule of 
 damages given by the court below was therefore correct, and 
 the judge was right in refusing the instruction asked by the ap- 
 pellants on that subject. 
 
 The case is clearly distinguishable from those in which the 
 counsel suppose a different rule was established. They will all be 
 found, on examination, to have been cases where the articles pur- 
 chased or manufa(!tured were, from their nature, susceptible of 
 being distinctly known and identified, or where they were set 
 apart by the vendors, so that the vendees, on paying the price, 
 could receive and dispose of them if they desired. Such was the 
 case of the wood work of the wagon, in Crookshank v. Burrell. 18
 
 300 DAMAGES IN ACTIONS ON CONTUACTS. 
 
 Johns., 58 ; the carriage, in Mixer v. Ilowarth, 21 Pick., 205 ; the 
 sulk}-, in Boment v. Smith, 15 Wend., 493; and the promissory 
 note, in Des Arts v. Leggett, 16 N. Y., 582. As was decided in 
 the hist case, the vendor, choosing to go for the price, becomes, 
 after a valid tender of the chattel in performance of the con- 
 tract, a bailee for the vendee. But we know of no principle of 
 law which would allow the vendor to keep the goods as his own, 
 and at the same time come upon the vendee for the price — com- 
 pel the latter to pay for, and yet not get the property; which 
 would be the case were the present plaintiffs to be permitted to 
 recover the price irrespective of the amount of damages which 
 they had sustained in consequence of the defendant 's nonaccept- 
 anee. The machine here was brought to Milwaukee in pieces, 
 its several parts separated and packed with those of a great num- 
 ber of other machines of identical form and pattern, so that 
 the same part of one machine was equally suited to every other. 
 It remained in this condition until after the day fixed for its 
 delivery and acceptance. It is idle, therefore, to talk about there 
 having been such a delivery as would have vested the title in the 
 defendant, provided the jury had foimd that the machine was 
 such as the contract called for. The property in all the ma- 
 chines remained in the plaintiffs, subject to their absolute domin- 
 ion and right of disposal. Nothing could have changed it as to 
 the defendant, short of a separation or distinct ascertainment, 
 by mark or otherwise, of the machine intended for him, so that 
 he could afterwards, on paying the price, have obtained it if he 
 chose. * * * 
 
 The jury, upon proper evidence and under proper instruc- 
 tions, having found that the machine delivered at Milwaukee 
 was not such as the contract called for, the judgment upon their 
 verdict must be affirmed. 
 
 Ordered accordingly. 
 
 DUSTAN V. McANDREW. 
 
 New York. 1870. 44 N. Y. 72. 
 
 Action for breach of contract, for refusal to take 100,000 
 pounds of hops according to contract. At the trial it was shown 
 that the hops in all respects answered the contract. 
 
 On August 24, 1860, J. 8. & W. Brown of New York executed 
 the following agreement with the plaintiff :
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 301 
 
 ''In consideration of the sum of one dollar, the receipt of 
 which is hereby acknowledged, we have sold this day to Mr. 
 Jolin F. Dustan, of this city, 100,000 pounds of first sort western 
 or eastern hops, as we may select ; growth of 1860 ; deliverable in 
 the city of New York, at our option, during the months of 
 October or November, 1860, at seventeen cents per pound, sub- 
 ject to Mr. J. S. BrowTi's inspection, or other mutually satisfac- 
 tory. Terms, cash on delivery. Mr. Dustan 's name to be made 
 satisfactory either by indorsement or by a deposit of $2,500 by 
 both parties. 
 
 "J. S. & W. Brown.'' 
 
 On the 7th of September, plaintiff sold this contract to defend- 
 ants under the following instrument in writing: 
 
 "In consideration of the sum of one dollar, the receipt of 
 which is hereby acknowledged, I have this day sold to j\IcAndrew 
 & "Wann the contract of J. S. & AV. Brown, dated 24th August, 
 1860, for 100,000 pounds first sort hops, western or eastern, 
 growth of 1860 ; upon condition that the said Mc Andrew & Wann 
 fulfill the conditions of said contract to the said J. S. & W. 
 Brown, and pay to me, in addition, on delivery of the hops, ten 
 and one-half cents per pound. 
 
 "John F. Dustan." 
 
 Prior to November 30, John S. Brown inspected and brand- 
 ed the hops and certified that they conformed to the contract. 
 On November 30, J. S. & W. Brown were ready and willing to de- 
 liver said hops, and defendants were so notified, but refused to 
 take them, because they had not had an opportunity to inspect 
 them, and because Messrs. Bro\\Ti had refused to let defendants' 
 inspector inspect the hops. On December 2-4, plaintiff took and 
 paid for the hops, and immediately notified the defendants the 
 same were in store for them at No. 4 Bridge street; that unless 
 they complied wnth the terms of the contract of the 7th of Sep- 
 tember on or before December 26, they would sell the same on 
 their account and hold them for any deficiency. Defendants still 
 declining to take the hops, they were sold at a fair sale for tw^en- 
 ty cents per pound. 
 
 Verdict was directed for plaintiff for $8,130 and was sustained 
 by the General Term of the Superior Court of the city of New 
 York, and defendants appealed to this court. 
 
 Earl, C. The contract required that the hops should be in- 
 spected by J. S. Brown, or some other inspector satisfactory to
 
 302 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 both parties. In case J. S. Brown could not, or should not in- 
 spect them for any reason, then they were to be inspected by 
 some other person mutually satisfactory. Neither party had the 
 right to demand any other inspector, unless Brown neglected or 
 refused to inspect. It is doubtless unusual to insert a stipulation 
 in contracts, that the vendor shall inspect the goods sold. But 
 where parties agree to this, they must be bound by their con- 
 tract, and it must be construed the same as if some other person 
 had been chosen inspector. 
 
 It is claimed on the part of the respondent, and was held by the 
 court below, that the inspection provided for was intended 
 simply for the convenience of the vendors, to enable them to per- 
 form their contract, and that it merely furnished prima facie 
 evidence that the hops answered the contract, and that the in- 
 spection was not conclusive upon the parties. I cannot assent 
 to this. The contract was for the sale and purchase of hops of 
 a certain description, and the object of the inspection was to 
 determine for the benefit of both parties, whether they answered 
 that description. Until the vendors delivered the hops with the 
 inspection, the vendee was not obliged to pay, and when so de- 
 livered, the vendors were entitled to the purchase price. The in- 
 spection was thus as much for the convenience and benefit of one 
 party as the other. Its purpose, like similar provisions in a 
 variety of contracts, was to prevent dispute and litigation at, and 
 after performance. But if the inspection was merely for the con- 
 venience of the vendors, then they ' could dispense with it, and 
 compel the vendees to take the hops without any inspection what- 
 ever. And if it was merely prima facie evidence of the quality of 
 the hops, then it was an idle ceremony, because, not being bind- 
 ing, the vendee could still dispute the quality of the hops, refuse 
 to take them, and show, if he could, when sued for not taking 
 them, that they did not answer the requirements of the contract ; 
 and thus the plain purpose for which the provision was inserted 
 in the contract would be entirely defeated. 
 
 The inspection could be assailed for fraud, or bad faith in mak- 
 ing it, and perhaps within the case of McMahon v. The New York 
 & Erie Railroad Co., 20 N. Y. 463, because made without notice to 
 the vendee. The inspection here was made without notice ; but it 
 is not necessary to determine whether this renders it invalid, as 
 no such defense was intimated in the answer or upon the trial. 
 
 By the purchase of the contract the defendants were substi-
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 303 
 
 tuted, as to its performance, in the place of the vendee therein 
 named, and were bound to do all that he had agreed to do or 
 was bound in law to do. When notified that the hops were ready 
 for delivery they declined to take them, upon the sole ground 
 that they had not had an opportunity to examine or inspect 
 them; and they claimed that they had sent one Smith to inspect 
 them, and that he had been declined permission to inspect them. 
 There was no proof, however, that they ever tried to examine or 
 inspect the hops, or that the vendors ever refused to permit them 
 to examine or inspect them. They sent Smith to inspect them, 
 and he went to one of the several store-houses where some of the 
 hops were stored, and he says he was there refused an oppor- 
 tunity to inspect them by Mr. A. A. Brown. But there is no 
 proof that he was in any way connected with the vendors, or that 
 he had any agency or authority whatever from them. There was 
 no proof that defendants ever tried with the vendors to agree 
 upon any other inspector, or that they ever asked the vendors to 
 have the hops inspected by any other inspector, and they made no 
 complaint at any time that they were inspected without notice 
 to them. The point that they should have had notice of the in- 
 spection was not taken in the motion for a nonsuit, nor in any 
 of the requests to the court to charge the jury. If the point 
 had been taken in the answer or on the trial, the plaintiff might, 
 perhaps, have shown that notice was given by the vendors, or 
 that it was waived. 
 
 Hence we must hold, upon the case as presented to us, that 
 there was no default on the part of the plaintiff or the vendors, 
 and that the defendants were in default in not taking and pay- 
 ing for the hops. The only other question to be considered is, 
 whether the court erred in the rule of damages adopted in 
 ordering the verdict. 
 
 The court decided that the plaintiff was entitled to recover the 
 difference between the contract price and the price obtained by 
 the plaintiff upon the resale of the hops, and refused, upon the 
 request of the defendants, to submit to the jury the question as 
 to the market value of the hops on or about the 30th day of No- 
 vember. 
 
 The vendor of personal property in a suit against the vendee 
 for not taking and paying for the property, has the choice ordi- 
 narily of either one of three methods to indemnify himself. (1). 
 He may store or retain the property for the vendee, and sue h im
 
 304 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 for the entire purchase price. (2). He may sell the property, 
 acting as the agent for this purpose of the vendee, and recover 
 the difference between the contract price and the price obtained 
 on such resale; or (3). He may keep the property as his own, 
 and recover the difference between the market price at the time 
 and place of delivery, and the contract price. (2 Parsons on Con. 
 484; Sedgwick on Dams. 282; Lewis v. Greider, 49 Barb. 606; 
 Pollen V. LeRoy, 30 N. Y. 549.) In this case the plaintiff chose 
 and the court jipplicd the second rule above mentioned. Tn such 
 ease, the vendor is treated as the agent of the vendee to make 
 the sale, and all that is required of him is, that he should act 
 with reasonable care and diligence, and in good faith. He 
 should make the sale without unnecessary delay, but he must 
 be the judge as to the time and place of sale, provided he act 
 in good faith and with reasonable care and diligence. Here it 
 is conceded that the sale was fairly made ; it was made in the 
 city of New York, in less than one month from the time the de- 
 fendants refused to take the hops. It was not claimed on the 
 trial that the delay was unreasonable and we can find nothing in 
 the case to authorize us to hold that it was unjustifiable. "We are, 
 therefore, of the opinion, that the court did not err as to the rule 
 of damages. 
 
 The judgment should therefore be affirmed with costs. 
 
 For affirmance, Lott, Ch. C, Earl and Hunt, CC. Gray, C., 
 was for reversal, on the ground that the delay in selling was too 
 great. 
 
 Leonard, C, did not vote. 
 
 Judgment affirmed with costs. 
 
 BRIDGFORD v. CROCKER. 
 
 New York, 1875. 60 N. Y. 627. 
 
 Action by James Bridgford against Lemuel L. Crocker to re- 
 cover damages for the refusal of one Gavin to receive certain cat- 
 tle which plaintiff claimed he had purchased as agent, and to re- 
 cover also the amount of a check drawn in favor of Gavin, and 
 by him indorsed to plaintiff, in payment for certain other cattle 
 delivered by plaintiff to said Gavin, and received by him. Plain- 
 tiff held the cattle which Gavin had refused to receive until the 
 following spring, when he sold them at an advanced price, and
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 305 
 
 defendant claims the benefit of such sale. There was a judgment 
 in favor of plaintiff, and defendant appeals. 
 
 Grover, J. The questions raised upon this appeal by the coun- 
 sel for the appellant arise upon the defense sought to be made 
 against his liability to the plaintiff as drawer of the check upon 
 which the action was brought. The case shows that the check in 
 suit was one of a large number made bv the drawers in the spring 
 and summer of 1867, amounting in all to $50,000, payable to the 
 order of Gavin, which during the spring and summer were de- 
 livered by the drawers to Gavin, upon an agreement, as they 
 claimed, that he should use them in the west in the purchase of 
 stock by him for the drawers, take such stock to and sell it in 
 Chicago, and remit the proceeds to the drawers for the payment 
 of the checks, and that he should receive for his services in tran- 
 sacting the business a portion of the profits. 
 
 The rule of damages as to the cattle not taken by Gavin of the 
 plaintiff, pursuant to the contract, was correct. That was that 
 the plaintiff was entitled to recover upon the failure of Gavin to 
 take and pay for the cattle, as required by his contract, the dif- 
 ference between the contract price and the then market value. 
 The plaintiff had a right to tender the cattle, and sue Gavin for 
 the price agreed to be paid, or he could, at his election, keep the 
 cattle as his, and recover his damages for the breach the dif- 
 ference between the contract price and then market value. 
 Sedgw. Dam. (5th Ed.) 313, and cases cited in note 3. The 
 plaintiff in the present case chose to adopt the latter course, and, 
 in case the market fell subsequently, it was his loss ; if it im- 
 proved, it was his gain. The time at which the damages were to 
 be fixed, when the vendor, as in the present case, chooses to re- 
 tain the property, is that fixed for the performance of the con- 
 tract. Dustan v. Andrew, 10 Bosw. 130. So far as it coun- 
 tenances any different rule in this respect, it was not well consid- 
 ered, and cannot be regarded as law. It matters not to the de- 
 fendant what the plaintiff got for the cattle six months or any 
 other time after the breach of the contract by Gavin to take and 
 pay for them. Tt appears that cattle rose in the market after 
 this. This was the good fortune of the plaintiff, of which the 
 defendant cannot avail himself. 
 
 Judgment affirmed. 
 
 20
 
 30t) DAMAGES IN ACTIONS ON CONTRACTS. 
 
 KADISII V. YOUNG. 
 
 Illinois, ISS;;, lOS 111. 170. 
 
 This was au action of assumpsit. A trial was had, resulting 
 in a verdict and a judgment of $20,000 damages against the 
 defendants. 
 
 ScHOLFiELD, J. This was assumpsit, by appellees, against ap- 
 pellants, to recover damages sustained by the breach of an al- 
 leged contract, whereby, on the 15tli of December, 1880, ap- 
 pellees sold to appellants 100,000 bushels of No. 2 barley, at one 
 dollar and twenty cents per bushel, to be delivered to appellants, 
 and paid for by them, at such time during the month of January, 
 1881, as appellees should elect. Appellees tendered to ap- 
 pellants warehouse receipts for 100,000 bushels of No. 2 barley 
 on the 12th of January, 1881, but appellants refused to receive 
 the receipts and pay for the barley. Within a reasonable time 
 thereafter appellees sold the barley upon the market, and hav- 
 ing credited appellants with the proceeds thereof, they brought 
 this suit, and on the trial in the circuit court they recovered the 
 difference between the contract price and the value of the barley 
 in the market on the day it was to have been delivered by the 
 terms of the contract. Upon the trial appellants denied the mak- 
 ing of the alleged contract, that they were partners, or that any 
 purchase of the barley was made for their joint account ; and 
 they also contended, if a contract was shown, then that on the 
 next day after it was made they gave notice to appellees that 
 they did not consider themselves bound by the contract, and 
 they would not comply with its terms, and evidence was given 
 tending to sustain this contention. * * * 
 
 The questions of law to which our attention has been directed 
 by the arguments of counsel, arise upon the rulings of the cir- 
 cuit judge in giving and refusing instructions. He thus ruled, 
 among other things, that appellants, by giving notice to ap- 
 pellees on the next day after the making of the contract that they 
 would not receive the barley and comply with the terms of the 
 contract, did not create a breach of such contract which ap- 
 pellees were bound to regard, or impose upon them the legal 
 obligation to resell the barley on the market, or make a forward 
 contract for the purchase of other barley of like amount and 
 time of delivery, within a reasonable time thereafter, and credit 
 appellants with the amount of such sale, or give them the benefit
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 307 
 
 of such forward contract, but that appellees had the legal right, 
 notwithstanding such notice, to wait until the day for the de- 
 livery of the barley by the terms of the contract, and then, upon 
 appellants' failure to receive and pay for it on its being ten- 
 dered, to resell it on the market, and recover from appellants the 
 difference between the contract price of the barley and its 
 market value on the day it was to have been delivered. 
 
 That in ordinary cases of contract of sale of personal prop- 
 erty for future delivery, and failure to receive and pay for it at 
 the stipulated time, the measure of damages is the difference 
 between the contract price and the market or current value of the 
 property at the time and place of delivery, has been settled by 
 previous decisions of this court (see McNaught v. Dodson, 49 111. 
 446, Larrabee v. Badger, 45 Id. 440, and Saladin v. Mitchell, Id. 
 79), and is not contested by appellants' counsel. But their con- 
 tention is, that in case of such contract of sale for future de- 
 livery, where, before the time of delivery, the buyer gives the 
 seller notice that he will not receive the property and comply 
 with the terms of the contract, this, whether the seller assents 
 thereto or not, creates a breach of the contract, or, at all events, 
 imposes the legal duty on the seller to thereafter take such steps 
 with reference to the subject of the contract, as, by at once resell- 
 ing the property on the market on account of the buyer, or mak- 
 ing a forward contract for the purchase of other property of like 
 amount and time of delivery, shall most effectually mitigate the 
 damages to be paid by the buyer in consequence of the breach, 
 without imposing loss upon the seller. If the buyer may thus 
 create a breach of the contract without the consent of the seller, 
 we doubt not the duty to sell (where the property is in the pos- 
 session of the seller at the time), at least within a reasonable 
 time after such breach, will result as a necessary consequence of 
 the breach. When the breach occurs by a failure to accept and 
 pay for property tendered pursuant to the terms of a contract, at 
 the day specified for its delivery, this is doubtless the duty of the 
 seller, and no reason is now perceived why it should not equally 
 result from any breach of the contract upon which the seller is 
 legally bound to act. 
 
 But the well settled doctrine of the English courts is, that a 
 buyer cannot thus create a breach of contract upon which the 
 seller is bound to act. [Here the learned justice cites authorities.] 
 
 Nothing would seem to be plainer than that while the contract
 
 oOS DAMAGES IN ACTIONS ON CONTKACTS. 
 
 is still subsisting and unbroken, the parties can only be com- 
 pelled to do that which its terms require. This contract im- 
 posed no duty upon appellees to make other contracts for 
 January delivery, or to sell barley in December, to protect ap- 
 pellants from loss. It did not even contemplate that appellees 
 shiiuld have the barley ready for delivery until such time in 
 January as they should elect. If appellees had then the barley 
 on hand, and had acted upon appellants' notice, and accepted 
 and treated the contract as then broken, it would, doubtless, 
 then have been their duty to have resold the barley upon the 
 market, precisely as they did in January, and have given ap- 
 pellants credit for the proceeds of the sale; but it is obviously 
 absurd to assume that it could have been appellees' duty to have 
 sold barley in December to other parties which it was their 
 duty to deliver to appellants, and which appellants had a legal 
 right to accept in January. 
 
 We have been referred to Dillon v. Anderson, 43 N. Y. 232, 
 Danforth et al. v. Walker, 37 Vt. 240 (and same case again in 40 
 Vt. 357), and Collins v. De Laporte, 115 Mass. 159, as recogniz- 
 ing the right of either party to a contract to create a breach of it 
 obligatory upon the other party, by giving notice, in advance 
 of the time for the commencement of the performance of the con- 
 tract, that he will not comply with its terms. An examination 
 of the cases will disclose that they do not go so far, but that they 
 are entirely in harmony with what we have heretofore indicated, 
 is our opinion in respect of the law applicable to the present 
 question. 
 
 In Dillon v. Anderson, the action was for a breach of contract 
 for the construction of a pair of boilers for a steamboat. After 
 work had been commenced under the contract, and a certain 
 amount of material had been purchased therefor by the plain- 
 tiff, notice was given by the defendant to stop work, that the 
 contract was rescinded by the defendant, and that he would 
 make the plaintiff whole for any loss he might suffer. The 
 court held that it was the duty of the plaintiff, as soon as he re- 
 ceived the notice, to have so acted as to save the defendant from 
 further damage, so far as it was in his power. 
 
 In Danforth et al v. Walker, 37 & 40 Vt., the defendant made 
 a contract with the plaintiffs to purchase of them five car loads 
 of potatoes, being fifteen hundred bushels, to be delivered at a 
 designated place as soon as the defendant should call for them,
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 309 
 
 and as soon as he could get them away, some time during the 
 winter. Soon after the first ear load was taken, potatoes fell in 
 the market, and the defendant thereupon wrote the plaintiffs not 
 to purchase any more potatoes until they should hear from him. 
 The court held this created a breach of the contract, and that 
 plaintiffs were not authorized to purchase any more potatoes on 
 account of the defendant after they received the notice. The 
 court, in the case in 37 Vt., on page 244, use this language : 
 "While a contract is executory a party has the power to stop per- 
 formance on the other side by an explicit direction to that effect, 
 by subjecting himself to such damages as will compensate the 
 other party for being stopped in the performance on his part at 
 that point or stage in the execution of the contract. The party 
 thus forbidden cannot afterwards go on, and thereby increase the 
 damages, and then recover such increased damages of the other 
 party." And this same rule, upon the authority of these cases, 
 is laid down in 2 Sutherland on Damages, 361. 
 
 The points in issue in Collins v. De Laporte are not pertinent 
 to the present question, but in the opinion the court quotes the 
 rule as above laid down, upon the authority of Danforth et al. v. 
 Walker, and other cases. 
 
 It will be observed that in each of these cases the time for the 
 performance of the contract had arrived, and its performance 
 had been entered upon. In neither of them was the defendant 
 at liberty, after notifying the plaintiff not to proceed further in 
 the performance of the contract, to demand that he should pro- 
 ceed to perform it, as it was said in Frost v. Knight supra, the 
 defendant was, in case 3f notice, not to perform a contract the 
 
 time of performance of which is to commence in the future. 
 
 * * * 
 
 It follows that, in our opinion, the ruling on the point in ques- 
 tion was free of substantial objection. * * * 
 
 Upon the whole, we perceive no error of law in the rulings be- 
 low. The judgment is therefore affirmed. 
 
 Judgment affirmed.
 
 310 DAMAGES IN ACTIONS ON CONTKACTS. 
 
 CANDA V. WICK. 
 
 New York, 1S85. 100 N. Y. 127. 
 
 This action was brought to recover damages for an alleged 
 breach of contract to receive and pay for 400,000 brick, at a 
 stipulated price of $7.25 per thousand. 
 
 The referee found that on Sept. 13, 1881, the plaintiffs agreed 
 t'l sell the said 400,000 bricks to the defendant and deliver them 
 on the street in front of the premises where a building was be- 
 ing erected by the defendant. On Sept. 21st, the plaintiffs de- 
 livered 2,000 brick when defendant prevented further delivery, 
 although plaintiffs offered to perform the contract on their part. 
 The market value of such was at that time $6.75 per thousand. 
 There was no tender of any brick after Sept. 21st. On Oct. 14th, 
 defendant demanded the remainder of the brick, but the plain- 
 tiffs refused to deliver. The market value of the brick was then 
 $8.25 per thousand. The referee allowed as damages the dif- 
 ference between the contract price and the market price at the 
 time of refusal to accept delivery. 
 
 Andrews, J. The referee found, upon sufficient evidence to 
 justify the finding, that the reasons assigned by the defendant 
 on the 21st of September, 1881, for refusing to receive the bal- 
 ance of the brick of the cargo of the schooner Ellen, were ground- 
 less. He further found that the brick were of the quality 
 speeifled in the contract, and that there was a sufficient avail- 
 able space for piling them. Upon the defendant 's refusal to per- 
 mit the plaintiffs' cartmen to continue the delivery, the plaintiffs 
 offered to deliver the balance of the cargo, and stated to the de- 
 fendant that if brick advanced in price, they could not be held 
 responsible for the delivery on the contract. The defendant per- 
 sisted in his refusal to receive any more brick from the cargo of 
 the Ellen, assigning the reasons before stated, viz.: defective 
 quality and want of space. The plaintiffs had a right to make 
 delivery on the contract, on the 21st of September. The written 
 memorandum is silent as to the time of delivery, but the evidence 
 shows that prompt delivery and acceptance was contemplated, 
 and that this was one of the considerations upon which the plain- 
 tiff's entered into the contract. The tender and refusal con- 
 stituted, we think, a breach of the contract by the defendant. It 
 was not necessary that the plaintiffs should tender the whole four 
 hundred thousand brick in order to put the defendant in de-
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 311 
 
 fault. It was not contemplated that the entire number should be 
 delivered in one mass, but as is evident from the situation of the 
 parties and the surroundings, they were to be delivered from 
 time to time, at the convenience of the plaintiffs, but without 
 delaying the defendant in prosecuting the work in which they 
 were to be used. When the defendant refused without adequate 
 reason to accept the cargo of the Ellen, the plaintiffs were at 
 liberty to treat the contract as broken, and were not bound to 
 make an actual tender of the remainder of the brick before 
 bringing the action. This would have been a useless ceremony. 
 The warning given by the plaintiffs to the defendant, that his re- 
 fusal would absolve them from any obligation on the contract, 
 was not, as is claimed, equivalent to an assertion of a right on 
 their part to regard the contract as still subsisting and executory 
 or as a reservation of a right to deliver the brick if they should 
 so elect. The letter of October 4, 1881, shows that on several oc- 
 casions after the 21st of September, the plaintiffs were willing 
 to go on with the contract, but the defendant was not ready and 
 only became ready when brick had greatly advanced in price. 
 The right of action having accrued from the transaction of Sep- 
 tember 21st, it was not waived as matter of law by a subsequent 
 offer on the part of the plaintiffs to furnish the brick, which was 
 not accepted by the defendant until the advance in the market 
 had materially changed the situation. The price which the 
 plaintiffs received for the brick on sale to other parties was im- 
 material in view of the facts that they were delivered on con- 
 tracts made prior to September 21st, and that the plaintiffs had 
 the ability to furnish all the brick required for all their con- 
 tracts, including that with the defendant. 
 
 The judgment should be affirmed. 
 
 All concur. Judgment affirmed. 
 
 WINDMULLER v. POPE. 
 
 New York, 1887. 107 N. Y. 674. 
 
 Action for breach of contract to purchase iron. 
 
 In January, 1880, plaintiffs agreed to sell and defendants to 
 buy ''about twelve hundred tons old iron, . , . , for shipment 
 from Europe at sellers' option, by sail or steam vessels to New 
 York, Philadelphia or Baltimore, at any time from May 1 to
 
 312 da:\iages in actions on contracts. 
 
 July 15, 18S0, at thirty-five dollars per ton, . . . deliverable in 
 vessels at either of the above ports on arrival." On or about 
 June 12, 1880, defendants notified plaintiffs that they would 
 not reeeive or pay for the iron, and that they must not ship any 
 to them. Plaintiffs tliereupon sold said iron abroad which they 
 had purchased to carry out the contract. 
 
 (An extract from opinion.) We think no error is presented 
 upon the record which requires a reversal of the judgment. The 
 defendants having on the 12th of June, 1880, notified the plain- 
 tiffs that they would not receive the iron rails or pay for them, 
 and having informed them on the next day that if they brought 
 the iron to New York they would do so at their own peril, and 
 advised them that they had better stop at once attempting to 
 carry out the contract, so as to make the loss as small as pos- 
 sible, the plaintiffs were justified in treating the contract as 
 broken by the defendant at that time, and were entitled to bring 
 the action immediately for the breach, without tendering the de- 
 livery of the iron, or awaiting the expiration of the period of 
 performance fixed by the contract ; nor could the defendants re- 
 tract their renunciation of the contract after the plaintiffs had 
 acted upon it and, by a sale of the iron to other parties, changed 
 their position. (Dillon v. Anderson, 43 N. Y. 231 ; Howard v. 
 Daly, 61 id. 362 ; Ferris v. Spooner, 102 id. 12 ; Hochster v. De 
 La Tour, 2 El. & Bl. 678 ; Cort v. Ambergate, etc., Railway Co., 
 17 Ad. & El. 127 ; Crabtree v. Messermoth, 19 la. 179 ; Benjamin 
 on Sales, §§ 567, 568.) 
 
 The ordinary rule of damages in an action by a vendor of 
 goods and chattels, for a refusal by the vendee to accept and pay 
 for them, is the difference between the contract-price and the 
 market value of the property at the time and- place of delivery. 
 (Dana v. Fiedler, 12 N. Y. 40; Dustan v. McAndrew, 44 id. 72; 
 Cahen v. Piatt, 69 id. 348.) 
 
 Per curiam opinion for affirmance. 
 
 All concur. 
 
 Judgment affirmed. 
 
 UNEXCELLED FIRE-WORKS CO. v. POLITES. 
 
 Pennsylvania, 1890. 130 Pa. 536. 
 
 Clark, J. This is an action of assumpsit, brought July 20, 
 1888, to recover the price of a certain lot of fire-works and eel-
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 313 
 
 ebration goods, ordered by the defendant, George Polites, from 
 the Unexcelled Fire- Works Company, of New York, in Feb- 
 ruary, 1888. The first order, which was for his store in New 
 Castle, was given through the plaintiffs' agent, Alexander Mor- 
 rison, and amounted to $208.53 ; the second, sent directly to the 
 plaintiffs, was for the defendant's store in Washington, Pa., and 
 amoimted to $123.83. These orders were in writing, and were 
 signed by the defendant; they specified, not only the particular 
 kind and quality of the articles ordered, but contained also a 
 schedule of the prices to be paid therefor. The goods were to be 
 shipped in May, and were to be paid for on the 10th day of July 
 thereafter. Upon receipt of these orders the plaintiffs trans- 
 mitted by letter a formal acceptance of them; a contract was 
 thus created, the obligation of which attached to both parties, 
 and which neither of them, without the agreement or assent of 
 the other, could rescind. On April 5, 1888, the defendant, by 
 letter, informed the plaintiffs that he did not want the goods, 
 and notified the plaintiffs not to ship them, as he could do better 
 with another company. The plaintiffs replied that they had ac- 
 cepted the orders, and had placed them in good faith, and that 
 the goods would be shipped in due time, according to the agree- 
 ment. 
 
 The goods were shipped within the time agreed upon — the 
 first lot to New Castle, and the second lot to Washington, ac- 
 cording to contract ; but on their arrival the defendant declined 
 to receive them. The carrier notified the shippers that, owing 
 to the dangerous and explosive quality of the goods, they would 
 not retain them in their possession ; the plaintiffs thereupon re- 
 ceived them back from the carriers, and placed them on storage, 
 subject to the defendant's order. 
 
 The plaintiffs allege that they are manufacturers and import- 
 ers of such fire- worlds as are used in the Fourth of July celebra- 
 tions throughout the country; that it is not profitable to carry 
 these goods over from one season to another, and that therefore 
 the quantity manufactured and imported depends upon the ex- 
 tent of the orders received : that the defendant 's orders entered 
 into their estimates of goods to be made up and imported for the 
 season of 1888, and that the goods ordered by the defendant 
 were actually made up before the order was countermanded. 
 The defendant testifies, however, that Mr. Morrison, the plain- 
 tiffs' agent, informed him, at the time he gave the first order,
 
 314 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 that the pkiintiffs had some, at least, of the articles in stock, and 
 that he did not order any, either to be manufactured or im- 
 ported on his account ; that the transaction was simply a bargain 
 and sale of goods, and not an order for goods to be manufac- 
 tured or imported; and the evidence does not seem to conflict 
 with this view of the case. 
 
 It is plain that the notice given to the plaintiffs by the de- 
 fendant not to ship the goods was a repudiation of the contract ; 
 it was not a rescission, for it was not in the power of any one 
 of the parties to rescind; but it was a refusal to receive the 
 goods, not only in advance of the delivery, but before they were 
 separated from the bulk, and set apart to the defendant; the 
 direction not to ship was a revocation of the carrier's agency to 
 receive, and the plaintiflFs thereby had notice of the revocation. 
 The delivery of the goods to the carrier, therefore, was un- 
 authorized, and the carrier's receipt would not charge the de- 
 fendant. The plaintiffs made the carrier their agent for deliv- 
 ery, but the goods were in fact not delivered. A delivery was 
 tendered by the carrier, when the goods arrived at their destina- 
 tion, but they were not received. The action, therefore, could 
 not be for the price, but for special damages for a refusal to 
 receive the goods when the delivery was tendered. We think the 
 statement was sufficient to justify a recovery of such damages, 
 as the words of the statement were clearly to this effect ; but 
 there was no evidence given of the market value of the goods 
 as compared with the price. It does not appear that the plain- 
 tiffs had suffered any damage. For anything that was shown, 
 the goods were worth the price agreed upon in the open market, 
 
 Whilst the manifest tendency of the cases in the American 
 courts, now, is to the doctrine that when the vendor stands in 
 the position of a complete performance on his part, he is entitled 
 to recover the contract price as his measure of damages, in the 
 case of an executory contract for the sale of goods not specific, 
 the rule undoubtedly is that the measure of damages for a re- 
 fusal to receive the goods is the difference between the price 
 agreed upon and the market value on the day appointed for de- 
 livery. 
 
 Judgment affirmed.
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 315 
 
 VAN BROCKLEN v, SMEALLIE. 
 
 New York, 1893. 140 N. Y. 70. 
 
 This action was brought to recover damages for breach of con- 
 tract for the sale of an interest in a partnership. 
 
 Finch, J. The only question in this case is one of damages. 
 The plaintiff and defendant entered into a written agreement 
 whereby the former agreed to sell and convey, and the latter to 
 purchase and receive, the plaintiff's undivided one-third interest 
 in the partnership of Snyder, Van Brocklen, and Hull, whose as- 
 sets consisted of real estate held as partnership property for the 
 use of the business, stock on hand, and debts due or to become 
 due ; and who were manufacturers of knit goods, occupying their 
 mill for that purpose. The contract was dated February 21st, 
 1891 ; the price to be paid was ten thousand dollars ; and the 
 formal instruments of sale were to be delivered and the price to 
 be paid on or before the ensuing first of March. The partner- 
 ship interest of the plaintiff was personal property (Menagh v. 
 Whitwell, 52 N. Y. 146; Morss v. Gleason, 64 id. 204) ; and the 
 title passed at once upon the execution of the agreement, for it 
 is the general rule that a mere contract for the sale of goods, 
 where the subject is identified and nothing remains to be done by 
 the seller before making delivery, transfers the right of property, 
 although the price has not been paid, nor the goods sold deliv- 
 ered to the purchaser. (Bradley v. Wheeler, 44 N. Y. 502.) On 
 the morning of February 28th, which was three days after the 
 sale, the defendant announced to his vendor his purpose to 
 "throw up" the contract and to "drop it right there." He 
 made no complaint as to its fairness or justice, no assertion of 
 any deception or mistake, not even of any disappointment in 
 his bargain, but merely said that he had partly promised to put 
 some money into another enterprise and could not put it in both ; 
 that his brother was "kicking," and so he should not fulfill his 
 agreement. Ordinarily, the vendee in default proffers some 
 show of justification for his refusal to perform. This defendant 
 had no excuse, but broke his contract because he chose to do so. 
 The vendor, on the same day, served a written notice upon the 
 vendee to the effect that he, the seller, was prepared to carry out 
 the stipulations of the contract ; that the papers on his part were 
 executed and ready for delivery, and could be seen at the place 
 where the exchange was to be made, and where they had been
 
 316 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 formally tendered to the vendee. As the iirst of March fell on 
 Sunday, the notice offered performance on the day before or the 
 day after, and insisted upon performance on the latter day at 
 least. The defendant wholly disregarded the notice, and 
 neglected and refused to fultill his contract. On the second of 
 April following the plaintiff gave a further written notice to the 
 vendee that he had made diligent effort to sell the property since 
 the latter 's refusal to take it; that the best offer made was about 
 $2,500 less than the contract price ; that he was to give an answer 
 by the next night ; and that if he heard nothing to the contrary 
 he should acce.pt the offer and hold the vendee for the resulting 
 loss. The defendant paid no attention to this notice, made no 
 objection, asked no delay, requested no different mode of disposi- 
 tion, suggested no purchaser willing to pay more, but simply re- 
 mained silent. The plaintiff thereupon sold the one-third in- 
 terest to his partners, Snyder and Hull, for $7,500, not requiring 
 the cash, but taking $6,000 in notes and the balance in specific 
 articles of property. There is .no proof, no pretense, not even a 
 suggestion in the record, that this sale was not perfectly fair 
 and productive of the best price possible to be obtained. 
 
 On these facts the plaintiff sued, seeking to recover the defi- 
 ciency on the re-sale. In answer to inquiries of the defendant, 
 he testified that the interest contracted to be sold was worth 
 $10,000 when the agreement was executed, and when it was to 
 be performed, and such may have been its intrinsic worth, and 
 yet its sale value may have been much less. 
 
 At the close of his case the defendant asked the court to rule 
 as matter of law upon the facts, that the measure of damages 
 was the difference between the value of the property at the date 
 of the contract and the date of performance, and that since there 
 was no such difference, the plaintiff was entitled only to nominal 
 damages. The plaintiff objected to any such ruling, insisting 
 that on the facts he was entitled to recover the deficiency on the 
 re-sale. The court ruled that only nominal damages could be re- 
 covered, and directed a verdict for six cents, to which the plain- 
 tiff excepted. On appeal the General Term affirmed the judg- 
 ment. 
 
 The ground of that affirmance is certainly erroneous. The 
 rule of damages applied was that which pertains to sales of real 
 property, and which differs in scope and in principle from that 
 applicable to sales of personal property. The opinion describes
 
 CONTRACTS RELATING TO PERSONAL PROPERTY, 317 
 
 the contract as one for 'Hhe purchase of land," and all the 
 authorities cited relate to sales of real estate. They have no ap- 
 plication to the case in hand. The plaintiff had no land to sell 
 and did not contract to sell any. What he did bargain about was 
 his ultimate interest in the partnership assets when converted 
 into money and after payment of all debts. His share of the 
 net surplus then remaining was the only subject of sale, and all 
 that he contracted to sell. His vendee would not and could not 
 become a partner by force of the purchase, would gain no title to 
 the assets as such, and could only force a sale of such assets, in- 
 cluding the mill, and the distribution of the proceeds. It was 
 said in Tarbell v. West, 86 N. Y. 287, that "it is now well settled 
 that a purchaser from one partner of his interest in the partner- 
 ship, acquires no title to any share of the partnership effects, but 
 only his share of the surplus, after an accounting, and the ad- 
 jui^tment of the partnership affairs." The courts below, there- 
 fore, proceeded on a wrong basis, which led them into error. 
 
 In this court the rule of dama'ges for a breach by the buyer of a 
 contract for the sale of personal property, is perfectly well set- 
 tled. (Dustan v. Mc Andrew, 44 N. Y. 78 ; Hayden v. Demets, 53 
 id. 426.) In each of these cases it was ruled that the vendor of 
 personal property has three remedies against the vendee in de- 
 fault. The seller may store the property for the buyer and sue 
 for the purchase price ;. or may sell the property as agent for the 
 vendee and recover any deficiency resulting; or may keep the 
 property as his own and recover the difference between the con- 
 tract price and the market price at the time and place of deliv- 
 ery. In the second of the decisions last cited, it was further held 
 that the rule applied, not only to cases where the title passed at 
 once, but also to cases where the contract was executory but 
 there had been a valid tender and refusal. Where the second 
 method is adopted and the vendor chooses to make a re-sale, that 
 need not be at auction, unless such is the customary method of 
 selling the sort of property in question, nor is it absolutely essen- 
 tial that notice of the time and place of sale should be given to 
 the vendee. (Pollen v. LeRoy, 30 N. Y. 556.) Still, as the sale 
 must be fair, and such as is likely to produce most nearly the full 
 and fair value of the article, it is always wisest for the vendor to 
 give notice of his intention to re-sell, and quite unsafe to omit it. 
 
 In this case the vendor acted strictly within the authority of 
 our repeated decisions, and must be protected unless we are pre-
 
 318 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 pared, after misleading him, to reverse in some degree our own 
 doetrine deliberately declared. What is now said is that we 
 ought not to extend the vendor's right of re-sale to a species of 
 personal property such as is involved in the contract before us. 
 That is an erroneous and misleading statement of the problem. 
 The adjudged rule covers every species of personal property. 
 "NVe have said of it that it is founded in good sense and justice, 
 and that it "is the same in all sales, and in respect to property 
 of every description." (Pollen v. LcRoy, supra.) The i*ule, 
 therefore, needs no extension since it already covers the present 
 case ; and the real suggestion is that we should begin for the first 
 time to make exceptions to it, and here and now take out of its 
 scope and operation the one specific sort of personal prop- 
 erty which consists of an undivided interest in a partnership. 
 I feel myself bound to resist strenuously, and to advise earnestly 
 against, any such disintegrating exception, whose logical out- 
 come will inevitably be to confuse the rule with narrow and arbi- 
 trary distinctions; to open it to attack in numerous directions; 
 to make its operation fickle and uncertain ; to breed needless liti- 
 gation ; and in the end to shatter the rule itself. In deference 
 to the doubts of some of my brethren, I ought to state as briefly 
 as possible a few of the reasons why I think no such exception 
 should be made. 
 
 One such reason concerns the safety of the fundamental doc- 
 trine upon which the rule is founded, which does not admit of 
 such an exception as is now proposed, and will itself be endan- 
 gered by the resultant logic of the process. That doctrine is 
 that the vendor of personal property has a lien, or something 
 more than a lien, upon it for the purchase price, while it remains 
 in his possession awaiting delivery, although the right of prop- 
 erty has passed to the vendee. (Benjamin on Sales, book V., 
 chap. 3, §§ 782, 783; Schouler on Personal Property, vol. 2, § 
 547.) The right of the unpaid vendor is deemed sometimes 
 analogous to the pawnee's right of sale, and sometimes to the 
 right of stoppage in transitu. Whatever it be, it is at least a lien 
 upon the property sold for the purchase price so long as it re- 
 mains undelivered, which lien the vendor may enforce by a sale, 
 and then recover any balance of the contract price unrealized. 
 Now, are we prepared to say that there is such a lien where the 
 property is grain or hops, or a horse, but is not where it is an 
 interest in a partner.ship ? And upon what principle can we
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 319 
 
 admit the lien and the consequent right to enforce it in one case 
 and deny it in the other ? If we undertake to make the distinc- 
 tion the inevitable result will be to shake or destroy the funda- 
 mental doctrine itself with consequences which we may easily see 
 would be likely to prove disastrous. 
 
 But, again: Those who would draw the line between kinds 
 or classes of property subject to re-sale, and those not so sub- 
 ject to it, must tell us where it is located, and upon what prin- 
 ciple it is to be drawn. That, I suspect, would prove at least a 
 difficult, if not an impossible task. The effort has been many 
 times made, but always hitherto has ended in absolute failure. 
 At first the endeavor was to limit the remedy to the case of per- 
 ishable property, but in Mac Lean v. Dunn, 4 Bing. 722, that 
 effort was resisted. Best, C. J., said of it : "It is admitted that 
 perishable articles may be re-sold. It is difficult to say what may 
 be considered as perishable articles and what not ; but if articles 
 are not perishable, price is,, and may alter in a few days or a 
 few hours. In that respect there is no difference between one 
 commodity and another," "And," he added, "we are anxious 
 to confirm a rule consistent with convenience and law. . . . The 
 goods may become worse the longer they are kept; and, at all 
 events, there is the risk of the price becoming lower." And 
 so the rule was not confined merely to perishable property. 
 
 Another line of distinction is that between goods and mer- 
 chandise and things in action ; but we are not at liberty to draw 
 that line in this state, even if it were possible to do it upon any 
 logical ground. In Porter v. Wormser, 94 N. Y. 442, the con- 
 tract was for the sale of government bonds, and in denying the 
 right of the vendor to re-sell, Judge Andrews put it upon the 
 ground that the vendee was not in default, adding : * ' The con- 
 tract to carry had not expired, and the sale cannot be regarded as 
 the exercise by a vendor of personal property, of a right to re- 
 sell on account of the vendee, and to charge the latter for the 
 loss, for the plain reason that such right in any given case does 
 not come into existence, and can be exercised only after default 
 by the vendee." There was no suggestion that the rule did not 
 apply to things in action, and he cited Dustan v. McAndrew, 
 supra, and Mason v. Decker, 72 N. Y. 595. 
 
 The latter case shuts off another possible ground of distinction 
 which might be that the rule only applies to such personal prop- 
 erty as is the subject of general traffic, and has a market value.
 
 320 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 in that case, the thing sold was shares of the stock of a con- 
 struetion eoinpany which was badly in want of funds, and strug- 
 gling, by an issue of bonds to its friends, to procure means to 
 live. This court held that the vendor had a double remedy, and 
 might, as one of them, re-sell the stock after tender to the vendee 
 in default, and recover the resultant loss. So that the rule not 
 only covers things in action, but also those which are not the sub- 
 ject of general dealing, and cannot be said to have a market 
 value. 
 
 This last case, in principle, comes very near to the one at bar. 
 The interest of a stockholder in the corporate property repre- 
 sented by his stock is nothing more than a pro rata share in the 
 property of the company remaining after the payment of debts 
 and expenses, with the intermediate right to share in the profits. 
 (Burrall v. Bushwick R. R. Co., 75 N. Y. 216.) That is exactly 
 the description of the interest of a partner in a partnership. 
 That one is incorporated and the other not is the sole difference 
 between them without at all affecting the common and identical 
 character of the property owned in each. It seems to me the 
 case must be decisive. 
 
 But I draw another inference from it, and that is the wide 
 and dangerous sweep of the doctrine contended for in its ap- 
 plication to stock transactions. (I suppose nothing to be more 
 common than sales of stocks by vendors for account of a default- 
 ing vendee and a recovery of the balance unrealized.) Logically 
 that must stop if the exception here contended for be allowed, 
 for I take it that none of us, however astute, can stand upon so 
 thin a distinction in the doctrine under consideration as that 
 between a corporate and non-corporate interest in capital and 
 assets. 
 
 I may be permitted to add that I can see no injustice in the 
 application of this rule to the present case. Beyond any ques- 
 tion the defendant could have been sued for the whole purchase 
 price, and if solvent could have been made to pay the entire 
 $10,000. If he deemed the re-sale for $7,500 less than could be 
 or ought to be realized, he had the privilege of protecting him- 
 self by procuring a more liberal purchaser or taking the prop- 
 erty and controlling its sale for himself. He did neither. He 
 kept silent. He defiantly broke his contract and with some 
 natural triumph stands ready to pay the six cents. That is
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 321 
 
 not enough. He should pay the deficiency resulting from the 
 sale. 
 
 The judgment should be reversed and a new trial granted, 
 costs to abide the event. 
 
 All concur, except Andrews, Ch, J., not voting. 
 
 Judgment reversed. 
 
 ROEHM V. HORST. 
 
 Supreme Court of United States, 1900. 178 U. S. 1. 
 
 On August 25, 1893, plaintiff agreed to sell and defendant 
 agreed to purchase, under four contracts, 400 bales of hops, 
 to be delivered in installments. Defendant repudiated all liabil- 
 ity. 
 
 Fuller, C. J. * * * The first contract falls within the 
 rule that a contract may be broken by the renunciation of liabil- 
 ity under it in the course of performance and suit may be im- 
 mediately instituted. But the other three contracts involve the 
 question whether, where the contract is renounced before per- 
 formance is due, and the renunciation goes to the whole contract, 
 and is absolute and unequivocal, the injured party may treat 
 the breach a^s complete and bring his action at once. Defendant 
 repudiated all liability for hops of the crop of 1896 and of the 
 crop of 1897, and notified plaintiffs that he should make (accord- 
 ing to a letter of his attorney in the record that he had made) ar- 
 rangements to purchase his stock of other parties, whereupon 
 plaintiffs brought suit. The question is therefore presented, in 
 respect of the three contracts, whether plaintiffs were entitled to 
 sue at once or were obliged to wait until the time came for the 
 first month's delivery under each of them. 
 
 It is not disputed that if one party to a contract has destroyed 
 the subject-matter, or disabled himself so as to make performance 
 impossible, his conduct is equivalent to a breach of the contract, 
 although the time for performance has not arrived ; and also that 
 if a contract provides for a series of acts, and actual default is 
 made in the performance of one of them, accompanied by a re- 
 fusal to perform the rest, the other party need not perform, but 
 may treat the refusal as a breach of the entire contract, and re- 
 cover accordingly. 
 
 And the doctrine that there may be an anticipatory breach 
 of an executory contract by an absolute refusal to perform it 
 
 21
 
 322 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 has become the settled law of England as applied to contracts 
 for services, for marriage, and for the manufacture or sale of 
 goods. * * * 
 
 The parties to a contract which is wholly executory' have a 
 right to the maintenance of the contractual relations up to the 
 time for performance, as well as to a performance of the con- 
 tract when due. If it appear that the party who makes an ab- 
 solute refusal intends thereby to put an end to the contract so 
 far as performance is concerned, and that the other party must 
 accept this position, why should there not be speedy action and 
 settlement in regard to the rights of the parties? Why should 
 a locus poenitentice be awarded to the party whose wrongful ac- 
 tion has placed the other at such disadvantage? What reason- 
 able distinction per se is there between liability for a refusal to 
 perform future acts to be done under a contract in course of per- 
 formance and liability for a refusal to perform the whole con- 
 tract made before the time for commencement of performance? 
 « * * 
 
 As to the question of damages, if the action is not premature, 
 the rule is applicable that plaintiff is entitled to compensation 
 based, as far as possible, on the ascertainment of what he would 
 have suffered by the continued breach of the other party down 
 to the time of complete performance, less any abatement by rea- 
 son of circumstances of which he ought reasonably to have 
 availed himself. If a vendor is to manufacture goods, and dur- 
 ing the process of manufacture the contract is repudiated, he 
 is not bound to complete the manufacture, and estimate his dam- 
 ages by the difference between the market price and the contract 
 price, but the measure of damage is the difference between the 
 contract price and the cost of performance. Hinckley v. Pitts- 
 burgh Co., 121 U. S. 264. Even, if in such cases the manufact- 
 urer actually obtains his profits before the time fixed for per- 
 formance, and recovers on a basis of cost which might have been 
 increased or diminished by subsequent events, the party who 
 broke the contract before the time for complete performance 
 cannot complain, for he took the risk involved in such anticipa- 
 tion. If the vendor has to buy instead of to manufacture, the 
 same principle prevails, and he may show what was the value of 
 the contract by showing for what price he could have made sub- 
 contracts, just as the cost of manufacture in the case of a manu- 
 facturer may be shown. Although he may receive his money
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 323 
 
 earlier in this way, and may gain, or lose, by the estimation of 
 his damage in advance of the time for performance, still, as we 
 have seen, he has the right to accept the situation tendered him, 
 and the other party cannot complain. 
 
 In this case the plaintiffs showed at what prices they could 
 have made sub-contracts for forward deliveries according to the 
 contracts in suit, and the difference between the prices fixed by 
 the contracts sued on and those was correctly allowed. 
 
 Judgment affirmed. 
 
 3) CONTBACTS TO MANUFACTURE. 
 
 (1) Breach of Vendor. 
 BEEMAN V. BANTA. 
 
 New York, 1890. 118 X. Y. 538. 
 
 Parker, J. The recovery in this action was for damages 
 claimed to have been sustained because of a breach of an express 
 warranty on the part of the defendant to so construct a freezer 
 for the plaintiffs as that chickens could be kept therein in per- 
 fect condition. 
 
 The jury have found the making of the warranty, its breach 
 and the amount of damages resulting therefrom. The General 
 Term have affirmed these findings and as there is some evidence 
 to support each proposition, we have but to consider the excep- 
 tions taken. 
 
 The appellant excepted to the charge of the court respecting 
 the measure of damages. Upon the trial he insisted, and still 
 urges, that the proper measure of damages is the cost of so 
 changing the freezer as to obviate the defect and make it eon- 
 form to the warranty, and N. Y. S. Moniter Milk Pan Co. v. 
 Kemington, 109 N. Y. 143, is cited in support of such contention. 
 That decision was not intended to, nor does it modify, the rule 
 as recognized and enforced in Passinger v. Thorburn, 34 N. Y. 
 634; White v. IVtiller, 71 N. Y. 133; Wakeman v. Wheeler & 
 Wilson Mfg. Co., 101 N. Y. 205 ; Reed v. McConnell, 101 N. Y. 
 276, and kindred cases. 
 
 In that case the argument of the court demonstrates: First, 
 that improper evidence was received ; and second, that the find- 
 ing of the referee was without evidence to support it. No other 
 proposition was decided. And the discussion is not applicable 
 to the facts before us.
 
 324 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 The pliiintilT was largely engaged in preparing poultry for 
 market which he had either raised or purchased. Before meet- 
 ing the defendant he had attempted to keep chickens for the 
 early spring market in a freezer or cooler which he had con- 
 structed for the purpose. The attempt was unsuccessful and 
 resulted in a loss. The jury have found in effect that the de- 
 fendant, with knowledge of this intention of the plaintiff to at 
 once make use of it in the freezing and preservation of chickens 
 for the IMay market following, expressly represented and war- 
 ranted that for about $500 he would construct a freezer which 
 should keep them in perfect condition for such market. 
 
 That he failed to keep his contract in such respect, resulting 
 in a loss to the plaintiff of many hundred pounds of chickens. 
 
 The court charged the jury that if they should find for the 
 plaintiff, he was entitled to recover, as one of the elenjents of 
 damage, the difference between the value of the refrigerator as 
 constructed, and its value as it would have been if made accord- 
 ing to contract. The correctness of this instruction does not 
 admit of questioning. Had the defendant made no use of the 
 freezer, such rule would have embraced all the damages recov- 
 erable. But he did make use of it, and such use as was contem- 
 plated by the contract of the parties. The result was the total 
 loss of hundreds of pounds of chickens. 
 
 The fact that the defendant well knew the use to which the 
 freezer was to be immediately put, his representation and war- 
 ranty that it would keep chickens in perfect condition, burdens 
 him with the damage sustained because of his failure to make 
 good the warranty. 
 
 Upon that question, the court instructed the jury that the 
 plaintiff was entitled to recover the value of the chickens less 
 cost of getting them to market, including freight, and fees of 
 commission merchant. 
 
 The question of value was left to the jury, but they were 
 permitted to consider the evidence tending to show that frozen 
 chickens were w^orth forty cents a pound in the market during 
 the month of May. 
 
 Such instruction we consider authorized. The object of the 
 freezer was to preserve chickens for the May market. The ex- 
 pense of construction, and trouble, as well as expense of op- 
 eration, was incurred and undertaken in order to secure the 
 enhanced prices of the month of May. It was the extra profit
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 325 
 
 which the plaintiff was contracting to secure, and in so far as 
 the profits contemplated by the parties can be proven, they may 
 be considered. Gains prevented as well as losses sustained are 
 proper elements of damage. (Wakeman v. Wheeler & Wilson 
 Mfg. Co., 101 N. Y. 205.) 
 
 We have carefully examined the other exceptions to the 
 charge as made and to the refusals to charge as requested, and 
 also the exceptions taken to the admissibility of testimony, but 
 find no error justifying a reversal. 
 
 The insistence of the appellant that the judgment be reversed 
 because against the weight of evidence, may have been entitled 
 to some consideration by the General Term, but it cannot be 
 regarded here. 
 
 The judgment should be affirmed. 
 
 All concur, except Follett, Ch. J., and Vann, J., not sit- 
 ting. 
 
 Judgment affirmed. 
 
 JORDAN V. PATTERSON. 
 
 Connecticut, 1896. 67 Conn. 473. 
 
 Andrews, C. J. This action was brought to recover dam- 
 ages for the nonperformance of a contract. The plaintiffs are 
 large dealers in dry goods at wholesale and by retail. The de- 
 fendants are manufacturers of knit underwear. The complaint 
 alleged generally that on the 16th day of March, 1892, the de- 
 fendants agreed to manufacture for the plaintiffs a large num- 
 ber of knit undergarments, of various styles and at agreed 
 prices, amounting in the whole to nearly 12,000 dozen, and to de- 
 liver the same at various times, but all before the 1st day of De- 
 cember, 1892, for which the plaintiffs were to pay ; that the plain- 
 tiffs contracted for these goods with the intent, as the defendants 
 knew, to resell the same to other parties ; that at the date of 
 said contract th.ey had bargained to sell a part of said garments 
 to other persons at a profit ; that afterwards, and before the time 
 when said goods were to be delivered, they bargained to sell the 
 balance of the same to certain other persons at a profit ; that the 
 defendants delivered to the plaintiffs, in pursuance of the said 
 agreement, 160 dozen of the said goods, but neglected and refused 
 to deliver the remaining part, — and claimed damages to the 
 amount of $10,000. The defendants' answer denied the making
 
 326 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 of the said contract alleged by the plaintiti's, and set up a dif- 
 ferent one,— a conditional one; and they said, that in perform- 
 ance of the contract so alleged by them, they furnished the said 
 ]60 dozen of said garments, but that the plaintiffs neglected to 
 perform the conditions of said last-mentioned contract on their 
 part to be performed, and therefore they (the defendants) 
 did not furnish any more of said goods. The answer also de- 
 manded pay for the goods the defendants had so furnished, and 
 damages for the nonperformance by the plaintiffs. * * * 
 
 The case was tried on an issue closed to the jury, and the plain- 
 tiffs had a verdict for an amount in damages which, they assert, 
 is very much less than they are entitled to have ; and they have 
 appealed to this court, alleging various errors in the trial court. 
 
 Jn the light of the undisputed facts in this case, the trial judge 
 should have instructed the jury that the letter of March 16, 1892, 
 was an acceptance of all the orders named in it. And, as there 
 Avas but one contract claimed to exist between these parties, such 
 instruction would, in effect, have directed them to exclude from 
 their consideration the conditional contract claimed by the de- 
 fendants. 
 
 The general intention of the law giving damages in an ac- 
 tion for the breach of a contract like the one here in question 
 is to put the injured partj'^, so far as it can be done by money, in 
 the same position that he would have been in if the contract had 
 been performed. In carrying out this general intention in any 
 given case, it must be remembered that the altered position to be 
 redressed must be one directly resulting from the breach. Any 
 act or omission of the complaining party subsequent to the 
 breach of the contract, and not directly attributable to it, al- 
 though it is an act or an omission which, except for the breach, 
 would not have taken place, is not a ground for damages. In an 
 action like the present one, to recover damages against the vendor 
 of goods for their nondelivery to the vendee, the general rule 
 is that the plaintiff is entitled to recover in damages the dif- 
 ference at the time and place of delivery between the price he 
 had agreed to pay, and the market price, if greater than the 
 agreed price. Such difference is the normal damage which a 
 vendee suffers in such a case. And, if there are no special cir- 
 cumstances in the case, a plaintiff would, by the recovery of 
 such difference, be put in the same position that he would have 
 been in if the contract had been performed. This, of course,
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 327 
 
 implies that there is a market for such goods, where the plain- 
 tiff could have supplied himself. If there is no such market, 
 then the plaintiff should recover the actual damages which he has 
 suffered. There may be, and often there are, special circum- 
 stances, other than the want of a market, surrounding a con- 
 tract for the sale and purchase of goods, by reason of which, in 
 ease of a breach, the loss to a vendee for their nondelivery is 
 increased. In such a case the damages to the vendee which he 
 may recover must, speaking generally, be confined to such as re- 
 sult from those circumstances which maj^ reasonably be supposed 
 to have been in the contemplation of the parties at the time they 
 made the contract. It must be remembered, also, in attempting 
 to carry out this general intention of the law in any given case, 
 that any damages which the plaintiff by reasonable diligence on 
 his part might have avoided are not to be regarded as the prox- 
 imate result of the defendant's acts. In the present case the 
 plaintiffs claimed that at the time of delivery there was no 
 market in which they could procure such goods as the defendants 
 were to deliver to them. This was a fact which might be proved 
 by the testimony of any person who had knowledge on the sub- 
 ject. And if it was true the plaintiffs could not, by any diligence 
 on their part, have relieved themselves b}^ such purchase from 
 any portion of the damages which they suffered. 
 
 Tliere were various special circumstances by reason of which 
 the plaintiffs claimed to recover damages. One was that they 
 contracted for the said goods for the purpose of reselling them. 
 It is averred in the complaint — and there appears to have been 
 evidence on the trial tending to prove such averments — that at 
 the time the goods were contracted for the plaintiffs had bar- 
 gained to sell a portion of the said garments to other parties at a 
 profit, and that the defendants had knowledge of the subcon- 
 tracts. As to the profits on these subsales, the judge charged the 
 jury that the plaintiffs were entitled to recover these as a part 
 of their damages, because, as the judge correctly said, the ex- 
 istence of these subsales was known to the defendants at the 
 time they contracted to furnish the goods, and the profits that 
 were to be made must be considered as having been contemplated 
 by them at that time. 
 
 It is also averred in the complaint that, soon after the time 
 the contract was made, the plaintiffs, relying on the same, be- 
 gan to sell the balance of said garments to other parties at a
 
 328 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 profit, of which subcontracts they gave notice to the defendants 
 a reasonable time before the date at wliich the goods were to 
 be delivered. The judge charged the jury that these profits 
 should not be allowed, because, as he said, these sales cannot be 
 considered to have been in the contemplation of the parties at 
 the time they made their contract. As the judge stated it, this 
 ruling was correct. Notice to the defendants after their contract 
 was entered into would not increase their liability. If these sub- 
 sales could not reasonably be considered to have been in the con- 
 templation of the parties at the time they made the contract, 
 then the defendants could not be made liable for the special 
 profits to be derived therefrom. 
 
 But there is an aspect of the question of the profits on these 
 latter subsales — which seems not to have been very clearly pre- 
 sented — upon which the evidence of their terms might have been 
 admissible. The defendants had knowledge that the plaintiffs 
 contracted for these garments in order to resell them to others. 
 They were chargeable with knowledge that the plaintiffs would 
 make such profits as the market price of such goods would give 
 them. If proof of the terras of these last-mentioned subsales was 
 offered for the purpose of showing what the market price of 
 such goods was at the time they were to be delivered, then the 
 evidence should have been received. The market value of any 
 goods may be shown by actual sales in the way of ordinary busi- 
 ness. 
 
 It was alleged in the complaint that by reason of the default 
 of the defendants the plaintiffs had been obliged to pay large 
 damages to their vendees for their failure to deliver to them the 
 goods so bargained to them, and they offered evidence to prove 
 such a paj^ment to one of their vendees, which evidence was, on 
 objection by the defendants, excluded. In respect to this item 
 of damage, the rule above stated furnished the proper test. In 
 restoring an injured party to the same position he would have 
 been in if the contract had not been broken, it is necessary to take 
 into the account losses suffered, as much as profits prevented. 
 And whenever the loss suffered, or the gain prevented, results 
 directly from a circumstance which may reasonably be consid- 
 ered to have been in the contemplation of the parties when en- 
 tering into the contract, the plaintiff should be allowed to prove 
 such loss. Wliether the circumstance from which the loss re- 
 sults, or the gain is prevented, is or is not one which may be
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 329 
 
 reasonably considered to have been in the contemplation of the 
 parties, is, from the necessities of the case, an introductory one, 
 upon which the judge must, in the first instance, decide, before 
 evidence either of losses suffered, or gains prevented, can be 
 shown to the jury. When the admissibility of evidence depends 
 upon a collateral fact, the judge must pass upon that fact in the 
 first place, and then, if he admits the evidence, instruct the jury 
 to lay it out of their consideration if they should be of a different 
 opinion as to the preliminary matter. The particular evidence 
 excluded in this case was that of Edward J. Mitton, one of the 
 plaintiffs, to the effect that the plaintiffs had paid to William 
 Taylor & Sons, one of their vendees, the sum of $641 as dam- 
 ages. Both the objection to this evidence, and the ruling upon 
 it, seem to admit that this subcontract was one of which the 
 defendants had notice. The objection to it was that it was not 
 admissible under any allegation in the complaint. But pre- 
 cisely this sort of loss was alleged in the complaint and denied 
 in the answer, and, unless other reasons existed for the exclusion 
 of this testimony than the one claimed, it should have been re- 
 ceived. If the sale to Taylor & Sons was one of those sales of 
 which the defendants had notice at the time they made their con- 
 tract with the plaintiffs, then the evidence was clearly ad- 
 missible for the reason given by the trial judge when instructing 
 the jury that the profits from these sales should be allowed. 
 
 For the purpose of proving the subsales, the plaintiffs offered 
 the deposition of F. R. Chase, one of their traveling salesmen. 
 In the early part of 1892 he was sent out by the plaintiffs to 
 make sales by sample of some of the goods which the defendants 
 were to manufacture. He was asked if he knew by whom these 
 goods were to be manufactured. He said he did, through Mr. 
 Campbell, the plaintiffs' buyer. This question and answer 
 were objected to by the defendants, and ruled out. This ob- 
 jection seems to have been made on a total misapprehension of 
 the object of the evidence. The witness was stating what he 
 was to represent to his customers as to the manufacture of the 
 goods he was trying to sell them. Both question and answer 
 should have been admitted. Whether or not the goods, when 
 they should be delivered, corresponded with the sample and with 
 this statement, would have been quite another question. 
 
 One Deland, a buyer for the plaintiffs, testified. He was 
 asked, respecting certain of the goods which the defendants had
 
 330 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 contracted to deliver to the plaintiffs. "At what price would 
 these have been retailed?" On objection, he was not permitted 
 to answer. Assuming that Deland had Icnowledgc of the market 
 price at which such goods would have been sold, it is very ob- 
 vious that his answer would have been relevant, and should have 
 been received. 
 
 The other questions made in the case, so far as they are mate- 
 rial, would not be likely to arise on another trial. There is error, 
 and a new trial is granted. The other judges concurred. 
 
 (2) Breach of Vendee. 
 
 BEMENT V. SMITH. 
 New York, 1836. 15 Wend. 493. 
 
 This was an action of assumpsit, tried at the Seneca circuit 
 in November, 1834, before the Hon. Daniel Moseley, one of the 
 circuit judges. 
 
 In March, 1834, the defendant employed the plaintiff, a car- 
 riage maker, to build a sulky for him, to be worth ten dollars 
 more than a sulky made for a Mr. Putnam ; for which he 
 promised to pay $80, part in a note against one Joseph Bement, 
 a brother of the plaintiff, for the sum of ten or eleven dollars, 
 and the residue in his own note, at six or twelve months, or in 
 the notes of other persons as good as his own. In June, 1834, 
 the plaintiff took the sulky to the residence of the defendant, 
 and told him that he delivered it to him, and demanded pay- 
 ment, in pursuance of the terms of the contract. The defendant 
 denied having agreed to receive the carriage. "Whereupon the 
 plaintiff told him he would leave it with a Mr. De Wolf, residing 
 in the neighborhood; which he accordingly did, and in July, 
 1834, commenced this suit. It was proved that the value of the 
 sulky was $80, and that it was worth $10 more than Putnam's. 
 The declaration contained three special counts, substantially 
 alike, setting forth the contract, alleging performance on the 
 part of the plaintiff, by a delivery of the sulky, and stating a 
 refusal to perform, on the part of the defendant. The declara- 
 tion also contained a general count, for work and labor, and 
 goods sold. The judge, after denying a motion for a nonsuit, 
 made on the assumed grounds of variance between the declara- 
 tion and proof, charged the jury that the tender of the o^fw-
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 331 
 
 riage was substantially a fulfillment of the contract on the part 
 of the plaintiff, and that he was entitled to sustain his action for 
 the price agreed upon between the parties. The defendant's 
 counsel requested the judge to charge the jury that the measure 
 of damages was not the value of the sulky, but only the expense 
 of taking it to the residence of the defendant, delay, loss of sale, 
 &c. The judge declined so to charge, and reiterated the instruc- 
 tion that the value of the article was the measure of damages. 
 The jury found for the plaintiff, with $83.26 damages. The de- 
 fendant moved for a new trial. The cause was submitted on 
 written arguments. 
 
 By the court, Savage, Ch. J. The defendant presents no de- 
 fence upon the merits. His defense is entirely technical, and 
 raises two questions: 1. Whether the tender of the sulky was 
 equivalent to a delivery, and sustained the averment in the de- 
 claration that the sulky was delivered ; and 2. Whether the rule 
 of damages should be the value of the sulky, or the particular 
 damages to be proved, resulting from the breach of the contract. 
 There is no question raised here upon the statute of frauds. The 
 contract is therefore admitted to be a valid one; and relating 
 to something not in solido at the time of the contract, there is 
 no question of its validity. 
 
 The plaintiff' agreed to make and deliver the article in question 
 at a particular time and place, and the defendant agreed to pay 
 for it, on delivery, in a particular manner. The plaintiff made, 
 and, as far as was in his power, delivered the sulky. He offered 
 it to the defendant at the place and within the time agreed upon. 
 It was not the plaintiff's fault that the delivery was not com- 
 plete, that was the fault of the defendant. There are many cases 
 in which an offer to perform an executory contract is tantamount 
 to a performance. This, I apprehend, is one of them. The case 
 of Towers v. Osborne, 1 Strange, 506, was like this. The ques- 
 tion here presented was not raised, but the defendant there 
 sought to screen himself under the statute of frauds. The de- 
 fendant bespoke a chariot, and when it was made, refused to 
 take it; so far the cases are parallel. In an action for the value, 
 it was objected that the contract was not binding, there being 
 no note in writing, nor earnest, nor delivery. The objection 
 was overruled. In that ease the action was brought for the value, 
 not for damages for the breach of contract. This ease is like 
 it in that particular; this action is brought for the value, that
 
 332 DAMAGES? IN ACTIONS ON CONTRACTS. 
 
 is, for the price agreed on ; and it is showTi that the sulky was 
 of that value. The case of Crookshank v. Burrell, 18 Johns. 
 R. 58, was an action in which the plaintiff declared against the 
 defendant on a contract whereby the plaintiff was to make the 
 wooilwork of a wagon, for which the defendant was to pay in 
 lambs. The defendant was to come for the wagon. The ques- 
 tion was upon the statute of frauds. Spencer, Ch. J., states 
 what had been held in some of the English cases, Clayton v. 
 Andrews, 4 Burr. 2101, and Cooper v. Elston, 7 T. R. 14, that a 
 distinction existed between a contract to sell goods then in ex- 
 istence, and an agreement for a thing not yet made. The 
 latter is not a contract for the sale and purchase of goods, 
 but a contract for work and labor merely. The case of 
 Crookshank v. Burrell is much like this, with this exception: 
 there the purchaser was to send for the wagon; here the 
 manufacturer was to take it to him. There it was held that 
 the manufacturer was entitled to recover, on proving that he 
 had made the wagon according to the contract : here it is proved 
 that the sulky was made, and taken to the place of delivery ac- 
 cording to contract. The merits of the two cases are the same. 
 It seems to be conceded that an averment of a tender of the 
 sulky by the plaintiff, and a refusal of the defendant to receive 
 it, would have been sufficient ; and if so, it seems rather technical 
 to turn the plaintiff out of court, when he has proved all that 
 would have been required of him to sustain his action. The 
 plaintiff, in his special counts, does not declare for the sale and 
 delivery, but upon the special contract; and herein this case 
 is distinguishable from several cases cited on the part of the 
 defendant, and shows that it was not necessary to have declared 
 for goods bargained and sold. It seems to me, therefore, that 
 the judge was right in refusing the nonsuit, and in holding that 
 the evidence showed substantially a fulfillment of the contract. 
 The variance as to the amount of Joseph Bement's note, I think, 
 is immaterial ; but if otherwise, it may be amended. The alleged 
 variance as to the price of the sulky is not sustained by the facts 
 of the case. 
 
 The only remaining question, therefore, is as to damages which 
 the plaintiff v.'as entitled to recover. It is true that the plaintiff 
 does not recover directly as for goods sold ; but in the case of 
 Towers v. Osborne the plaintiff recovered the value of the chari- 
 ot, and in Crookshank v. Burrell the recovery was for the value
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 333 
 
 of the wagon. The amount of damages which ought to be re- 
 covered was not the question before the court in either of those 
 cases; but if the value of the article was not the true measure, 
 we may infer that the point would have been raised. Upon 
 principle, I may ask, what should he the rule? A mechanic 
 makes an article to order, and the customer refuses to receive 
 it : is it not right and just that the mechanic should be paid the 
 price agreed upon, and the customer left to dispose of the ar- 
 ticle as he may? A contrary rule might be found a great em- 
 barrassment to trade. The mechanic or merchant, upon a valid 
 contract of sale, may, after refusal to receive, sell the article 
 to another, and sue for the difference between the contract price 
 and the actual sale. Sands and Crump v. Taylor and Lovett, 
 5 Johns. R. 395, 410, 411; Langfort v. Tiler, 1 Salkeld, 113, 6 
 Modem, 162. In the first of these cases, the plaintiffs sold the 
 defendants a cargo of wheat. The defendants received part, 
 but refused to receive the remainder. The plaintiffs tendered 
 the remainder, and gave notice that imless it was received and 
 paid for, it would be sold at auction, and the defendants held 
 responsible for any deficiency in the amount of sales. It was 
 held, upon this part of the case, that the subsequent sale of the 
 residue was not a waiver of the contract, the vendor being at 
 liberty to dispose of it bona fide, in consequence of the refusal 
 of the purchaser to accept the wheat. This case shows that where 
 there has been a valid contract of sale, the vendor is entitled to 
 the full price, whether the vendee receive the goods or not. I 
 cannot see why the same principle is not applicable in this case. 
 Here was a valid contract to make and deliver the sulky. The 
 plaintiff performed the contract on his part. The defendant 
 refused to receive the sulky The plaintiff might, upon notice, 
 have sold the sulky at auction, and if it sold for less than $80, 
 the defendant must have paid the balance. The reason given by 
 Kent, Ch. J., 5 Johns. R. 411, is that it would be unreasonable 
 to oblige him to let the article perish on his hands, and run the 
 risk of the insolvency of the buyer. But if after tender or no- 
 tice, whichever may be necessary, the vendor chooses to run 
 that risk and permit the article to perish, or, as in this case, if 
 he deposit it with a third person for the use of the vendee, he 
 certainly must have a right to do so, and prosecute for the whole 
 price. Suppose a tailor makes a garment, or a shoemaker a pair 
 of shoes, to order, and performs his part of the contract, is he
 
 334 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 not entitled to the price of the article fumished ? I think he is, 
 and that the plaintiff in this case was entitled to his verdict! 
 
 The question upon the action being prematurely brought be- 
 fore the expiration of the credit which was to have been giv- 
 en, cannot properly arise in this case, as the plaintiff recovers 
 upon the special contract, and not upon a count for goods sold 
 and delivered. 
 
 New trial denied. 
 
 HOSMER I'. WILSON. 
 
 Michigan, 1859. 7 Mich. 294. 
 
 Assumpsit "for work and labour done, and services rendered, 
 and materials fumished, by plaintiff and his servants for defend- 
 ants, all at request of said defendants. ' ' Judgment for plaintiff, 
 and defendants bring error. 
 
 It appeared that one of defendants had called at plaintiff's 
 foundry, and there signed a written order for an engine, to be 
 paid for when taken out of the shop, and that plaintiff's clerk 
 accepted the order; that plaintiff then proceeded to make such 
 engine, and only stopped when he received a letter from defend- 
 ants countermanding the order. 
 
 Christiancy, J. Whether the written memorandum signed 
 by the defendants below, when taken in connection with the 
 whole transaction between the parties, was understood by all 
 of them as a contract, might have been a fair question of fact 
 for the jury. But admitting the contract to have been proved in 
 all respects as claimed by the plaintiff, and that defendants 
 below wrongfully countermanded the order for the engine, 
 after the plaintiff had, in good faith, made most of the castings, 
 and done a large part of the work ; the first question which arises 
 is, whether the plaintiff was entitled to recover upon the com- 
 mon counts for work and labor, as upon a quantum meruit? 
 As to the materials it is admitted he could not, though con- 
 tained in the same count ; as they still belonged to plaintiff, and 
 were never delivered to defendants. 
 
 In the case of a contract for a certain amount of labor, or 
 for work for a specified period — when the labor is to be per- 
 formed on the materials or property, or in carrying on the busi- 
 ness, of the defendant, or when the defendant has otherwise 
 accepted or appropriated the labor performed, if the defendant
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 335 
 
 prevent the plaintiff from performing the whole, or wrongfully 
 discharge him from his employment, or order him to stop the 
 work, or refuse to pay as he has agreed (when payments be- 
 come due in the progress of the work), or disable himself from 
 performing, or unqualifiedly refuse to perform his part of the 
 contract, the plaintiff may, without further performance, elect 
 to sue upon the contract and recover damages for the breach, or 
 treat the contract as at an end, and sue in general assumpsit for 
 the work and labor actually performed: Hall v. Rupley, 10 
 Barr, 231 ; Moulton v. Trask, 9 Mete, 579 ; Derby v. Johnson, 
 21 Vt., 21 ; Canada v. Canada, 6 Cush., 15 ; Draper v. Randolph, 
 4 Harrington, 454; Webster v. Enfield, 5 Gilm., 298. 
 
 And in such cases he may, it would seem, under the common 
 indebitatus count, recover the contract price, where the case 
 is such that the labor done can be measured or apportioned by 
 the contract rate; or whether it can be so apportioned or not, 
 he may under the quantum meruit recover what it is reasonably 
 worth. But in all such cases, the plaintiff, having appropriated 
 and received the benefit of the labor (or, what is equivalent, 
 having induced the plaintiff to expend his labor for him, and, 
 if properly performed according to his desire, the defendant 
 being estopped to deny the benefit), a duty is imposed upon the 
 defendant to pay for the labor thus performed. This duty the 
 law enforces under the fiction of an implied contract, growing 
 out of the reception or appropriation of the plaintiff's labor. 
 
 It is therefore evident, 1st, that in all the cases supposed, an 
 implied contract would have arisen, and the plaintiff might have 
 recovered upon a quantum meruit, if no special contract had 
 ever been made; 2nd, that in the like cases (where the value of 
 the work done could not, as it probably could not in the case 
 before us, be apportioned by the contract price) the value or fair 
 price of the work done, would necessarily constitute the true 
 mea.sure of damages. And in all such cases, as first supposed, 
 either the contract price, or the reasonable worth of the labor 
 done, would measure the damages. 
 
 Similar considerations and like rules would, doubtless, equally 
 apply to contracts for furnishing materials, and for the sale and 
 delivery of personal property, when, after part of the materials 
 or property has been received and appropriated by, or vested in 
 the defendant, he has prevented the plaintiff from performing,
 
 3o6 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 or authorizing him to treat the contract as at an end, on any of 
 the grounds above mentioned. 
 
 But the case before us stands upon very different grounds. 
 Here the contract, as chiimed to have been proved, was in no 
 just sense a contract for work and labor, nor could the plaintiff, 
 while at work upon the engine, be properly said to be engaged 
 in the business of the defendants. It was substantially a con- 
 tract for the sale of an engine, to be made and furnished by the 
 plaintiff, to the defendants, from the shop, and, of course, from 
 the materials of the plaintiff. The defendants had no interest 
 in the materials, nor any concern with the amount of the labor. 
 They were to pay a certain price for the engine when completed. 
 Engines, it is true, are not constructed without labor; the 
 labor, ■ therefore, constitutes part of the value of the engine. 
 But this would have been equally true if the contract in this 
 case had been for an engine already completed. 
 
 The labor of the plaintiff was upon his own materials, to in- 
 crease their value, for the purpose of effecting a sale to defend- 
 ants when completed. No title in any part of the materials was 
 to vest in defendants till the whole should be completed by plain- 
 tiff, and delivered to defendants. The plaintiff might have 
 sold any of the materials, after the work was performed, or the 
 whole engine when completed, at any time before delivery to, or 
 acceptance by defendants. 
 
 Whether, therefore, the labor actually performed on these 
 materials, when the defendants refused to go on with the con- 
 tract, or prevented the further performance, had enhanced or 
 diminished the value of the materials, and how much, would be 
 a necessary question of fact, in arriving at any proper meas- 
 ure of damages. The value of the work and labor does not; 
 therefore, in such a case, constitute the proper criterion or 
 measure of damages. If the value of the materials has been en- 
 hanced by the labor, the plaintiff, still owning the materials, 
 has alreadj' received compensation to the extent of the increased 
 value; and to give him damages to the full value of the labor, 
 would give him more than a compensation. If the value of the 
 materials has been diminished, the value of the labor would not 
 make the compensation adequate to the loss. It would be only 
 in the single case where the materials have neither been in- 
 creased nor diminished by the labor, that the value of the labor 
 would measure the damages. Such a case could seldom occur,
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 337 
 
 and whether it could or not, it must always be a question of fact 
 in the case, whether the value of the materials does remain the 
 same, or whether it has been increased, or diminished, and to 
 what extent. 
 
 Again, as the defendants never received the engine, nor any of 
 the materials, the title and possession still remained in the plain- 
 tiff, and the defendants never having received or appropriated 
 the labor of the plaintiff, if the same work had been performed 
 under the like circumstances, without any actual or special con- 
 tract, the law would have imposed no duty upon the defendants, 
 and therefore implies no contract on their part to pay for the 
 work done : 1 Chit. PI., 382 ; Atkinson v. Bell, 8 B. & C, 277 ; 
 Allen V. Jarvis, 20 Conn., 38. 
 
 The only contract, therefore, upon which the plaintiff can rely 
 to pay him. for the labor, is the special contract. No duty is 
 imposed upon the defendants otherwise than by this. This con- 
 tract, therefore, must form the basis of the plaintiff's action. 
 He must declare upon it, and claim his damages for the breach 
 of it, or for being wrongfully prevented from performing it. 
 His damages will then be the actual damages which he has suf- 
 fered from the refusal of the defendants to accept the articles, 
 or in consequence of being prevented from its performance ; and 
 these damages may be more or less than the value of the labor. 
 This case, therefore, in this respect, comes directly within the 
 principle recognized in the case of Atkinson v. Bell, above cited, 
 and in Allen v. Jarvis, 20 Conn.. 38 (a well reasoned case, which 
 we entirely approve). And see Moody v. Brown, 34 Me., 107, 
 where the same principle is recognized. 
 
 But it was claimed by plaintiff's counsel that no action could 
 have been maintained on the special contract imtil fully per- 
 formed, and the engine delivered or tendered to the defendants; 
 that the unqualified refusal of the defendants to take the engine, 
 when it should be completed, was not a prevention of perform- 
 ance which would authorize the plaintiff to sue upon the con- 
 tract on that ground. We think it was, and that such absolute 
 refusal is to be considered in the same light, as respects the 
 plaintiff's remedy, as an absolute, physical prevention by the 
 defendants. This view will be found fully sustained by the fol- 
 lowing cases: Cort v. Ambergate Railway Co., 6 E. L. & Eq., 
 230 ; Derby v. Johnson, 21 Vt.. 21 ; Clark v. Marsiglia, 1 Denio, 
 317 ; Hochster v. De Latour, 20 E. L. & Eq., 157. In the latter 
 
 22
 
 338 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 case, it was held that a refusal of the employer liefore the work 
 commenced, to allow it to be done, authorized an immediate ac- 
 tion upon the contract. 
 
 So, a refusal to make any payment, which, by the contract, 
 is to be made during the progress of the work, has the same 
 effect: Draper v. Randolph, above cited; and see Iloagland v. 
 Moore, 2 Blackl, 167 ; Webster v. Enfield, 5 Gilm., 298 ; Withers 
 V. Reynolds, 2 B. & Ad., 882. See this whole subject ably dis- 
 cussed, and the authorities cited, in 2 Smith's Lead. Cas. (Amer. 
 Edit.), 22 to 38; and for what will amount to prevention, see 
 note of Hare & Wallace to same, 40. As to mode of declaring 
 on the contract : Ibid., 41, and 1 Chit. PI., 326. 
 
 It would be unreasonable and unjust to hold that the plain- 
 tiff, in this case, after the positive countermand of the defend- 
 ants' order, was, nevertheless, bound to go on and complete the 
 engine, and thereby increase the damages, before he could re- 
 cover for the work already done. The defendants cannot com- 
 plain that the plaintiff has given credit to their assertion. The 
 law wiU not require a vain thing. And it is certainly, in such 
 cases, much better for both parties to hold the party thus no- 
 tified to be fully justified in stopping the work, as it lessens 
 the damages the other party has to pay, and relieves the party 
 who has to do the work from expending further labor, for which 
 he has fair notice he is to expect no payment. And it is cer- 
 tainly very questionable whether the party thus notified has a 
 right to go on after such notice, to increase the amount of his own 
 damages. In Clark v. Marsiglia, above cited, it was held he had 
 no such right, and that the employer has a right (in a contract 
 for work and labor) to stop the work, if he choose, subjecting 
 himself to the consequences of a breach of his contract, and 
 that the workman, after notice to quit work, has no right to con- 
 tinue his labor, and recover pay for it. This doctrine is fully 
 approved in Derby v. Johnson, above cited. This would seem to 
 be good sense, and, therefore, sound law. And it would seem 
 that any other rule must tend to the injury, and, in many cases, 
 to the ruin of all parties. 
 
 It is unnecessary here to review the authorities cited by the 
 plaintiff's counsel. Most, if not all of them, when carefully ex- 
 amined, will be found entirely in harmony with the views above 
 expressed. The result of them will be found well and fairly 
 stated, and evidently from a careful examination, in Allen v.
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 339 
 
 Jarvis, above cited. I have made the same examination, and 
 come to the same result. 
 
 It may, however, be proper here to say, that in the case of 
 Planche v. Colburn, 8 Bing., 14, upon which much reliance was 
 placed by the counsel for the defendant in error, there was a spe- 
 cial count upon the contract, as well as the common counts, and it 
 may be inferred from the opinion that the plaintiff was allowed 
 to retain his verdict upon the special count. And we have the 
 high authority of Lord Campbell that such was the case. See 
 Hoehster v. De Latour, 20 E. L. & Eq. 163, above cited. As the 
 conclusion at which we have arrived upon this point disposes of 
 the whole case, it becomes unnecessary, and even improper to 
 discuss the other questions raised in the case. 
 
 And, as we do not conceive that under a writ of error we have 
 any power to amend the declaration in this respect, the judg- 
 ment must be reversed. 
 
 The other Justices concurred. 
 
 BALLENTINE v. ROBINSON. 
 
 Pennsylvania, 1S63. 46 Pa. 177. 
 
 Assumpsit by William C. Robinson and others, doing business 
 as Robinson, Douglas & Millers, against Nathaniel Ballentine 
 and George Hutchinson, partners trading as Hutchinson & Bal- 
 lentine. Judgment for plaintiffs, and defendants bring error. 
 
 Strong, J.— The parties entered into a contract by which it 
 was stipulated that the plaintiffs should furnish the materials 
 and construct for the defendants a steam-engine of a described 
 pattern, for which the defendants engaged to pay the sum of 
 $535 on its completion. The engine having been finished pur- 
 suant to the contract, and notice of its completion having been 
 given to tlie defendants, they refused to pay the stipulated price. 
 Hence this suit, in which the only question raised is, what is the 
 correct measure of damages for such a breach of contract. That 
 the i^laintiffs had done all they were bound to do, that they had 
 the engine ready for actual delivery, on payment of the sum 
 agreed to be paid by the defendants, and that the defendants 
 were under obligation to take it away and make payment, are 
 established facts. It is now contended that the measure of dam- 
 ages recoverable is the difference between the price contracted to
 
 340 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 be paid for the engine aud the market i)riee at the time the eon- 
 tract was broken. 
 
 Where a sale of goods has been made and they have been de- 
 livered, it is plain the measure of damages for nonpayment is 
 the stipulated priee. About that there is no difficulty. Doubts, 
 however, have been entertained, where goods have been sold and 
 not delivered in consequence of the refused of the buyer to com- 
 plete the contract. It has sometimes been said the standard for 
 measurement is the excess of the contract price over the market 
 value. Yet where the subject of the sale is a specific article, 
 where the contract has been so far completed as to pass the prop- 
 erty in the article to the vendee, the possession being retained 
 only because the price is not paid, there seems to be no good rea- 
 son why the vendor should not be permitted to recover the 
 agreed value. He has fully complied with all that he was un- 
 der obligation to do. He has parted with his property, aud 
 given the full equivalent for the stipulated price. His right to 
 the property having passed to the vendee, his right to the price 
 would appear to be consummate. It is true, if the sale be for 
 cash, the vendor may treat the goods as his own and sell them, 
 on failure of the vendee to pay, in which case he can claim only 
 the difference between the price for which he has sold, and the 
 price promised to be paid by the first vendee. That difference 
 completes his compensation. But the resale is only a mode of 
 giving effect to his lien. It is not a rescission of the contract, so 
 as to revest the property in the article sold in him, for if it were, 
 he could not sue for the deficiency. The law does not compel 
 him to resume the ownership of the property, and, of course, it 
 ought not to take away his right to the price. 
 
 The present is not strictly the case of a sale. The plaintiffs 
 agreed to build the engine according to directions of the defend- 
 ants, and to furnish the necessary materials for it. When it 
 was completed the defendants had notice, and were bound to 
 take it away and pay the contract price ; but instead of taking 
 it and paying the price, they requested the plaintiffs to sell it. 
 In such a case the right of property was clearly in them on no- 
 tice of the completion of the article. The materials of which it 
 was composed may fairly be said to have been delivered when 
 they were put into the engine. The defendants alone were in 
 default. They ought not to be permitted to compel the plaintiffs 
 to purchase from them. Retaining a lien on the engine for the
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 341 
 
 price, the plaintiffs were at liberty to sell it anew, or, at their 
 election, to obtain full compensation from the defendants for 
 their breach of contract. There can be no just reason why they 
 should be compelled to accept the engine as part payment, which 
 they virtually must do if they can recover only the difference be- 
 tween its market value and the sum the defendants agreed to 
 pay. And why should they, without any default of their own, 
 be subjected to the risk and trouble of a resale, for the defend- 
 ants' benefit? Besides, it may well be, that the article manufac- 
 tured according to order may have no market value, and would 
 be worthless on the manufacturers' hands. This engine was not 
 made for sale in the market. It was built according to instruc- 
 tions given by the defendants, and, it may be presumed, for their 
 peculiar use. The just rule, therefore, plainly is, in such a case, 
 where the manufacturer of an article ordered, has completed it, 
 and given notice of its completion, that he should be allowed to 
 sue for the value, and recover, as its measure, the contract price. 
 And such is the doctrine laid do^^Tl in the better decisions. Thus 
 it was decided in Bement v. Smith, 15 Wendell, 493, where the 
 eases are revieAved, and the rule is thus stated in 2 Parsons on 
 Contracts 483, and in Sedgwick on Damages 281. 
 
 The instruction given in the court below w^as therefore right. 
 
 The judgment is affirmed. 
 
 SHAWHAN V. VAN NEST. 
 
 Ohio, 1874. 25 Ohio, 490. 
 
 Motion for leave to file a petition in error. 
 
 Action by Peter Van Nest against Reasin W. Shawhan to re- 
 cover on a contract by which he agreed to make for Shawhan a 
 carriage in accordance with his directions for $700, and have the 
 same ready for delivery at his shop October 1, 1871, in con- 
 sideration whereof Shawhan agreed to accept the carriage at the 
 shop and pay the agreed price. He alleged the tender of the car- 
 riage October 1st, and the refusal of Shawhan to accept or pay 
 for it. The evidence established the allegations of the complaint. 
 The court instructed the jury that, if they found the issues for 
 the plaintiff, they should give him a verdict for the contract 
 price of the carriage, with interest from the time the money 
 should have been paid. Shawhan requested the court to give to 
 the jury the following special instructions: (1) "If, in this
 
 342 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 caso, tlie ovidener shows that the dt'fi'iidant ordered the plaintiff 
 to make for liiiu a carriage, and agreed to take or receive it, 
 when linished, at the phiintiff's shop, and to pay a reasonable 
 price tlierefor, and the plaintitl' did, in pursuance of such order 
 and ajjreement, make such carriage, of the value of seven hun- 
 dred dollars, and have tlie same in readiness for delivery at his 
 shop, of which the defendant had notice, and the defendant 
 then failed, neglected, and refused to take, receive, or pay for 
 said carriage, though requested so to do by the plaintiff, these 
 will not authorize you to render a verdict for the plaintiff for 
 the price or value of the carriage." (2) "If the plaintiff has 
 proved the making of the carriage for the defendant, and the 
 refusal of the latter to receive and pay for it, as alleged in the 
 petition, then he can only recover for the damages or losses he 
 has actuallj^ sustained by reason of this refusal of the defend- 
 ant, which is the difference between the agreed price and the 
 actual value." These instructions the court refused to give, 
 and Shawhan excepted. The jury found for Van Nest, and 
 gave him the contract price of the carriage, with interest. 
 
 GiLMORE, J. The only question to be determined in this case 
 is : Did the court err in refusing to give to the jury the special 
 instructions requested by the defendant on the trial below? The 
 authorities cited by counsel for the parties respectively, are not 
 in harmony with each other on this question. Some of those 
 cited by the plaintiff in error (defendant below) show clearly 
 that under the pleadings and practice at common law, there 
 could be no recovery under the common counts in assumpsit, for 
 goods sold and delivered, or for goods bargained and sold, where 
 no delivery sufficient to pass the title from the vendor to the 
 vendee had been made. And further, that in this form of action, 
 proof of a tender of the goods by the vendor to the vendee, or 
 leaving them with him against his remonstrance, would not con- 
 stitute such a delivery as would pass the title and enable the ven- 
 dor to recover. While these may be regarded as settling the rules 
 of pleading and evidence on the trial of particular cases, and 
 therefore not decisive of the question when raised under issues so 
 formed as to present it freed from the technicalities of pleading, 
 still there are other cases cited on the same side, which declare 
 the rule to be as follows: Where an action is brought by the 
 vendor against the vendee, for refusing to receive and pay for 
 goods purchased, the measure of damages is the actual loss sus-
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 343 
 
 tained by the vendor in consequence of the vendee refusing to 
 take and pay for the goods, or, in other words, the difference be- 
 tween the contract price and the market price at the time and 
 place of delivery. In the authorities cited by the plaintiff in er- 
 ror, no distinction is drawn, or attempted to be drawTi, between 
 the sale of goods and chattels already in existence, and an agree- 
 ment to furnish materials and manufacture a specific article in a 
 particular way, and according to order, which is not yet in ex- 
 istence; the theory being, that in neither case would the title 
 pass, or property vest in the purchaser, until there had been an 
 actual deliverj'^, and that until the title had passed, the vendor's 
 remedy was limited to the damages he had suffered by reason of 
 the breach of the contract by the vendee, which were to be meas- 
 ured by the ride above stated. In this case it is not necessary to 
 determine whether or not a distinction, resting upon principles 
 of law, can be drawn between ordinary sales of goods in existence 
 and on the market, and goods made to order in a particular way, 
 in pursuance of a contract between the vendor and vendee. The 
 case here is of the latter kind, and the question is, whether the 
 plaintiff below was entitled to recover the contract price of the 
 carriage, on proving that he had furnished the materials, and 
 made and tendered it in pursuance of the terms of the contract. 
 
 Counsel for the defendant in error (plaintiff below) has cited 
 a number of authorities, in which the questions presented and de- 
 cided arose upon facts similar to those in this case, and upon is- 
 sues presenting the question in the same way ; and as the conclu- 
 sions we have arrived at, are based upon this class of authori- 
 ties, some of them may be particularly noticed. 
 
 In Bement v. Smith, 15 Wend. 493, the defendant employed 
 the plaintiff, a carriage-maker, to build a sulky for him, for which 
 he promised to pay eighty dollars. The plaintiff made the sulky 
 according to contract, and took it to the residence of the de- 
 fendant, and told him he delivered it to him, and demanded pay- 
 ment, in pursuance of the terms of the contract. The defendant 
 refused to receive it. Whereupon the plaintiff told him he 
 would leave it with Mr. De Wolf, who lived near; which he did, 
 and commenced suit. On the trial it was proved the sulky was 
 worth eighty dollars, the contract price. The court charged the 
 jury, that the tender of the carriage was substantially a fulfill- 
 ment of the contract on the part of the plaintiff, and that he was 
 entitled to sustain his action for the price agreed upon between
 
 344 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 the parties. The defendant's counsel requested the court to 
 charge the jury that the measure of damages was not the sulky, 
 but only the expense of taking it to the residence of the defend- 
 ant, delay, loss of sale, etc. The judge declined to so charge, and 
 reiterated the instruction that the value of the article was the 
 measure of damages. The jury found for the plaintiff, with 
 eighty-three dollars and twenty-six cents damages, being the con- 
 tract price with interest. The charge to the jury was sustained 
 by the supreme court of New York. 
 
 In Ballentine et al. v. Robinson et al., 46 Penn. St. 177, an 
 agreement was made between the plaintiffs and defendants, 
 whereby the plaintiffs were to provide materials, and construct 
 for the defendants a six-inch steam-engine, with boiler and Gif- 
 ford injector and heater, in consideration whereof the defend- 
 ants were to pay plaintiffs five hundred and thirty-five dollars 
 in cash on the completion thereof. The plaintiffs complied with 
 and completed the contract in all respects on their part, but the 
 defendants refused to pay according to contract. On the trial, 
 the plaintiffs proved the contract, and the performance of it 
 on their part, and that the engine was still in their hands. 
 
 The defendants' counsel asked the court to instruct the jury 
 "that the proper measure of damages in this case is the dif- 
 ference between the price contracted to be paid for the engine 
 and the market price at the time the contract was broken. ' ' The 
 court declined to charge as requested, and instructed the jury 
 that the measure of damages was the contract price of the engine, 
 with interest. There was a verdict for the plaintiffs for the 
 contract price. The case was taken to the supreme court, and the 
 error assigned was the refusal of the court to give the instruc- 
 tions requested by the defendant. 
 
 The supreme court affirmed the judgment in the case below. 
 It will be seen that these cases are very similar, and presented 
 the same question, and in the same manner that the question is ' 
 presented in this case. Graham v. Jackson, 14 East, 498. decides 
 the point in the same way. Mr. Sedgwick, in his work on Dam- 
 ages, side page 280, in speaking on this subject, says: "Where 
 a vendee is sued for nonperformance of the contract on his part, 
 in not paying the contract price, if the goods have been delivered, 
 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
 
 CONTRACTS KKLATING TO PERSONAL PROPERTY. 345 
 
 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 sees fit, 
 and charge the vendee with the difference between the contract 
 price and that realized at the sale. Though perhaps more pru- 
 dent it is not necessary that the sale should be at auction; it 
 is only requisite to show that the property was sold for a fair 
 price. But if the vendor does not pursue this course, and, with- 
 out reselling the goods, sues the vendee for his breach of con- 
 tract, the question 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. ' ' 
 
 In Hadly v. Gano et al., Wright, 554, the action was "as- 
 sumpsit on a written agreement between the parties, for the de- 
 fendants to take all the salt the plaintiff manufactured between 
 the 2d of June, 1831, and the 1st of January, 1832, to be deliv- 
 ered at the landing in Cincinnati, from time to time, as the 
 navigation of the Muskingum and Ohio should permit, and to 
 pay forty-five cents a bushel." The plaintiff proved the agree- 
 ment, and the offer to deliver to the defendants three hundred 
 and fifty barrels of salt, which the defendants refused to re- 
 ceive. There was an issue in the case, as to whether the contract 
 had been previously fulfilled and abandoned by the parties. The 
 court (Lane, J.) charged the jury that if the contract had not 
 been "fulfilled or abandoned, and the plaintiff tendered the salt 
 under the contract, which was refused, he had a right to leave it 
 for the defendants and recover the value. ' ' 
 
 The only case I have examined in which the authorities on 
 this point are reviewed, is that of Gordon v. Norris, 49 N. H. 376. 
 The case is too lengthy and complicated to attempt to give an ab- 
 stract of it here, but the point under consideration was involved ; 
 and although the learned .judge criticises the law as laid dowTi 
 by Mr. Sedgwick, and even shows that the authorities he quotes in 
 support of his position do not suvstain him, for the reason pointed 
 out, yet he says that there is a distinction between the case of 
 Bement v. Smith, and the ordinary cases of goods sold and de- 
 livered — ^viz., "the distinction between a contract to sell goods 
 then in existence, and an agreement to furnish materials and 
 manufacture an article in a particular way and according to
 
 346 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 order, which is not yot in existence." lie recognizes Beinent's 
 Case and others of the same class as exceptions to the general 
 rule which is to be applied in the sale of ordinary goods and mer- 
 chandise which have a fixed market value; and in the syllabus 
 of the case, the distinction is kept up and stated as follows : 
 
 "When the vendee refuses to receive and pay for ordinary 
 goods, wares, and merchandise, which he has contracted to pur- 
 chase, the measure of damages which the vendor is entitled to re- 
 cover is not ordinarily the contract price for the goods, but the 
 difference between the contract price and the market price or 
 vahie of the same goods at the time when the contract was 
 broken. 
 
 ' " But when an artist prepares a statue or picture of a particu- 
 lar 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." 
 
 As has been said, we are not called upon now to determine 
 whether the distinction as drawn in the clauses quoted, is sound 
 on principle or not ; but be that as it may, we recognize the law 
 applicable to the case before us as being correctly stated in the 
 clause last quoted. 
 
 Judge Swan, in his excellent ''Treatise," (10th ed. 780), in 
 speaking of the effects of a tender upon the rights of the buyer 
 and seller, and of the damages in such case, says : ' ' The general 
 rule in relation to the rights of a seller, under a contract of 
 sale, where he has tendered the property, and the buyer refuses to 
 receive it, is this : The seller may leave the property at some se- 
 cure place, at or near the place where the tender ought to be 
 and is made, and recover the contract price ; or he may keep it at 
 the buyer's risk, using reasonable diligence to preserve it, and re- 
 cover the contract price and expenses of preserving and keep- 
 ing it; or he may sell it, and recover from the buyer the dif- 
 ference between the contract price and the price at which it 
 fairly sold." The rule as thus laid down was first published in 
 1836, two years after the decision in Hadly's Case, above re- 
 ferred to, which was substantially followed by Judge Swan in
 
 CONTRACTS RELATING TO PERbON^iL PROPERTY. 847 
 
 laying it down. It does not appear that either the decision or 
 the rule as laid down has ever been questioned in Ohio. It will 
 be perceived that Judge Swan lays down the rule generally as 
 applicable to all sales of chattels in the ordinary course of trade, 
 without intimating any such distinction as that drawn in Gor- 
 don V. Norris. We sanction and apply the rule in the determina- 
 tion of the particular case before us. When the plaintiff below 
 had completed and tendered the carriage in strict performance 
 of the contract on his part, if the defendant below had accepted 
 it, as he agreed to do, there is no question but that he would have 
 been liable to pay the full contract price for it, and he can not be 
 permitted to place the plaintiff in a worse condition by break- 
 ing than by performing the contract according to its terms on 
 his part. When the plaintiff had completed and tendered the 
 carriage in full performance of the contract on his part, and the 
 defendant refused to accept it, he had the right to keep it at the 
 defendant's risk, using reasonable diligence to preserve it, and 
 recover the contract price, with interest, as damages for the 
 breach of the contract by the defendant. Or, at his election, he 
 could have sold the carriage for what it would have brought at 
 a fair sale, and have recovered from the defendant the difference 
 between the contract price and what it sold for. 
 
 The court below did not err in refusing to give to the jury the 
 special instructions requested by the defendant below. 
 
 Motion overruled. 
 
 McIlvaine, C. J., and Welch, White, and Rex, J J., con- 
 curred. 
 
 TODD r. GA^MBLE. 
 
 New York, 1896. 148 K y. 383. 
 
 Gray, J. This appeal presents the question of the proper 
 measure of damages in an action against the defendants for re- 
 fusing to perform their contract with the plaintiffs. By that 
 contract the plaintiffs, who were manufacturers of chemicals, 
 were to furnish the defendants with "whatever quantities of 
 silicate of soda they will require to use in their factories during 
 one year from date" at the price of $1.10 per 100 pounds, in New 
 York. Under this agreement the plaintiffs had delivered, and 
 the defendants had paid for, 350 barrels of the article, when 
 the latter notified the former that they would not receive any
 
 348 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 more. The refusal on the part of the defendants to perform 
 their contract seems to have been purely arbitrary. * * * 
 
 It was conceded that for the balance of the contract year the 
 defendants used about 2,877 barrels of silicate of soda (each bar- 
 rel containing about 550 poimds), which they purchased from 
 other parties; and under instructions from the court that the 
 plaintiffs, if there was no market value for the article, were en- 
 titled to recover the difference between the cost of production and 
 the contract price,-the jury rendered a verdict for the plaintiffs, 
 against the defendants for their failure to take that amount, for 
 damages measured by that rule. They also, upon the request 
 of the court, made a special finding that at the time of the breach 
 by the defendants of their contract there was no market value 
 for silicate of soda. 
 
 The general rule for the measure of damages in the case of a 
 breach bj- a vendee in the contract for the sale of an article of 
 merchandise at a fixed price is the difference between the con- 
 tract price and the market value of the article on the day and at 
 the place of delivery. (Citing authorities.) That is the rule 
 which has been recognized both in England and here. The prin- 
 ciple upon which it rests is that of an indemnification of the in- 
 jured party for the injury which he has sustained, and, in 
 ordinary cases, the value in the market on the day forms the 
 readiest and most direct method of ascertaining the measure of 
 this indenmity. If the article is bought and sold in the 
 market, the market price shows what pecuniary sum it would 
 take to put the plaintiff in as good a position as if the contract 
 had been performed. * * * 
 
 To justify a departure from this general rule, the facts 
 must take the case out of the ordinary, and, if there is no such 
 standard as a market value, the measure of the plaintiff's dam- 
 age may be arrived at, in a case like the present one, by ascer- 
 taining the dift'erence between the contract price and the cost of 
 production and delivery. Market value, in the ordinary sense, is 
 generally, but not always, the measure of damages, and the 
 application of the rule necessarily must be to a case where it 
 is shown that there is a market value for the subject of the 
 contract of sale. 
 
 The defendants proceed upon the assumption that if an article 
 is shown to have a value, or selling price, the measure of dam^ 
 ages must be the difference between it and the contract price, ir.
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 349 
 
 respective of the question of the nature of the market for it. To 
 use their language : "If there be no market, in a restricted 
 sense, yet, if tlie commodity is the subject of sale, and there is 
 a selling price, the same rule obtains, and proof of cost should 
 be excluded." Proceeding upon that assumption, they argue, 
 substantially, that as there was shoA\Ti to be a selling price, 
 from the fact of there having been sales of the article by the 
 plaintiffs, it is a controlling factor, and compels the applica- 
 tion of the general rule for which they contend. To that propo- 
 sition I think we should not assent, and I fail to iind adequate 
 support for it either in principle or in the authorities. 
 
 The general rule certainly can have no application to the 
 case of a breach of a contract for the manufacture and sale of 
 a commodity, unless it is made to appear that upon the breach 
 by the vendee the vendor could have placed the commodity 
 upon the market, and, by thus disposing of it, have relieved him- 
 self from the consequences of the defendants' default. The prin- 
 ciple of indemnity upon which the rule rests would be satisfied 
 in such a ease, and the vendor would be confined for his recovery 
 to the difference between a known market value at the time of the 
 
 breach of the contract and the price fixed by the contract. 
 
 * * * 
 
 What must the parties be deemed to have contemplated in the 
 present case ? The defendants bound the plaintiffs, through this 
 contract, to supply all the silicate of soda which they would re- 
 quire for the year. The plaintiffs, with ample capacity for 
 supplying the article, contemplated that their production would 
 be increased by the amount which the defendants would take 
 from them during the year. * * * 
 
 Of course, they must have contemplated a profit to the plain- 
 tiffs if they could manufacture at a cost under the contract price. 
 It is absurd to say, in view of the evidence, that there was a 
 market value, in the ordinary sense of the term, for silicate of 
 soda, and, perhaps, the defendants do not seriously argue that 
 there was. But if we are to hold, in accordance with their views, 
 because there was a price at which the plaintiffs had been able 
 to effect sales of the article at the time of the breach, that that 
 fact must be controlling in fixing the measure of damages, we 
 should be doing a great injustice, and we should be establish- 
 ing a commercial rule, which would work injuriously in cases 
 where, like the present one, the subject of sale between the par-
 
 350 DAMAGES IN ACTIONS ON CONTKACTS. 
 
 ties is an articlo perishable in its nature, when kept for any 
 leniith of time, liavin^ but a limited demand, and no real market, 
 and only manuiiu'tured in any quantities upon orders by con- 
 sumers. 
 
 1 think we should eonelude that there was no error in the in- 
 struction given by the trial judge to the jury and this conclusion 
 makes it unnecessary for us to consider any of the other ex- 
 ceptions in the ease. 
 
 The judgment appealed from should be affirmed with cost. 
 All concur. 
 
 Judgment affirmed. 
 
 GUETZKOW BROS. CO. v. ANDREWS. 
 
 Wisconsin, 189G. 92 Wis. 214. 
 
 This action was brought to recover $1,978, the price of show- 
 cases and of articles manufactured for the defendants by the 
 plaintiffs. The goods were manufactured for a special purpose, 
 namely, to enable defendant to carry out a contract previously 
 made to supply such goods to exhibitors at the World's Fair. 
 The amounts that defendant was to receive from such exhibitors 
 were an advance over plaintiff's price of 100 to 150 per cent. 
 The defendants sought to counterclaim as to damages which they 
 asserted they had sustained by reason of the failure of plaintiff 
 to construct the article in accordance with the contract, whereby 
 defendant lost certain profits. * * * 
 
 ]\Iarshall, j. * * * There is no controversy but that 
 the difference between the contract price for the goods to ap- 
 pellant and what it was to receive was unusually large. To say 
 that such increased price to the exhibitors was extraordinary, in 
 a superlative degree, would be fully justified. It also appears 
 beyond controversy that respondent's officers knew, when the 
 contract was made with appellants, that the goods were in- 
 tended for a special purpose. They had reason to know that 
 there was no established market price for such goods. They 
 knew that defendants were under contract to furnish the goods 
 to the exhibitors, but it does not appear that they had any 
 notice of the contract price such exhibitors were to pay ; and it 
 is in the light of these facts that we must determine the question 
 presented. [Citing authorities.] * * * 
 
 Where there has been a previous sale, or where there has not,
 
 CONTRACTS RELATING TO PERSONAL PROPERTY. 351 
 
 the fundamental principle to be observed is that the damages 
 for the breach complained of must be conhned to such as may be 
 fairly considered to arise, according to the usual course of things, 
 from such breach, or such as may reasonably be supposed to have 
 been in contemplation of the parties at the time of making the 
 contract as the probable result of the breach of it. Hadley v. 
 Baxendale, 9 Exch. 341 ; Cockburn v. Lumber Co., 54 Wis. 619. 
 Hence, it is held that, in order to make applicable the special rule 
 of damages, — that is, loss of profits,— it must be sho^^^l that the 
 special circumstances, by reason of which the party invokes 
 such application, were brought clearly home to the knowledge 
 of both parties at the time the contract was made, and it is only 
 applicable in so far as such circumstances were so brought home. 
 [Citing authorities.] * * * 
 
 But the question arises whether the price to the first vendee 
 must be communicated to the second vendor in order that he may 
 be charged with the special rule of damages at the suit of his 
 vendee, in case of a breach on the part of such second vendor; 
 and upon the precise point here presented the authorities are not 
 numerous. In Cockburn v. Lumber Co., 54 Wis. 619, Mr. Justice 
 Lyon said: "To bind the defendant by a price stipulated for 
 on a resale, he must have had notice of such resale when the con- 
 tract was made, though, perhaps, not of the contract price." 
 But it must be observed that, in the case then under consid- 
 eration, the circumstance of extraordinary profits was not 
 present ; that is, the evidence did not disclose but that the profits 
 were such as were reasonable, and might reasonably have been 
 in contemplation by both parties to the transaction when the 
 contract was made. 
 
 The question has been many times considered in the courts of 
 England, and may be said to have been long settled, that the sec- 
 ond vendor is only boimd by the terms of the contract with the 
 second vendee, so far as commimicated to him, or he had rea- 
 sonable ground to know the same, by inference from facts 
 brought to his knowledge. All of the cases refer to and are 
 founded upon the general principle laid down in Hadley v. 
 Baxendale, 9 Exch. 341. * * * 
 
 Differences may be found in the interpretations which courts 
 have put on the rule of Hadley v. Baxendale; but they gener- 
 ally hold that the price in the first contract need not be com- 
 municated, as intimated in Cockburn v. Lumber Co., in this
 
 352 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 court. They proceed upon the principle, all of tlicm, that knowl- 
 edge of the tirst contract is sufficient to bring home to the second 
 vendor, as an inference of fact, knowledge that the price in the 
 first contract is sufficiently in advance of the price in the sec- 
 ond contract to allow a reasonable profit to the second vendee. 
 We venture to say that no case can be found, where the price 
 was out of all proportion to anything that might be consid- 
 ered reasonable in order to give a fair profit, that the court has 
 held that such unreasonable profits may be recovered as dam- 
 ages, where knowledge of such unreasonable profits, as a special 
 circumstance, was not Imown to both parties at the time of the 
 making of the contract. The most that is held in Booth v. Mill 
 Co., 60 N. Y. 487, cited with confidence by appellants, is that 
 the second vendor is bound by the price his vendee is to receive, 
 unless it is shown that such price is extravagant, or of an un- 
 usual or exceptional character. That is as far as the New York 
 courts have gone. Church, C. J., said: "There is considerable 
 reason for the position that, where the vendor is distinctly in- 
 formed that the purchase is made to enable the vendee to fulfill 
 a previous contract, and he knows there is no market price for 
 the article, he assumes the risk of being bound by the price 
 named in such previous contract, whatever it may be." But no 
 such rule was adopted, and no case was there cited to support 
 such a rule, and we are unable to see wherein such reason exists. 
 It could only be consistent with the theory that the law aims at 
 complete compensation for all losses, including gains prevented 
 as well as losses sustained, without the important condition, req- 
 uisite to give the rule the basic foundation upon which all rules 
 for the assessment of damages are supposed to rest, that of nat- 
 ural justice, which condition must always be considered in order 
 that the true rule may be correctly stated. That is, that 
 the damages must be such as can be fairly supposed to have en- 
 tered into the contemplation of both parties. * * * 
 
 It follows from the foregoing that there was no evidence be- 
 fore the referee by which he could have assessed in plaintiff's 
 favor damages for loss of profits for the breach of the contract 
 between it and the defendant, if there was a breach. * * * 
 
 It follows from the foregoing, that the judgment of the su- 
 perior court should be affirmed. 
 
 By the Court. The judgment of the superior court is af- 
 ^Hrmed.
 
 CONTRACTS RELATING TO WORK AND SERVICES. 353 
 
 For rule of damages in an action against a common carrier for un- 
 lawful discrimination in tlie shipping of freight, see Railway Co. v. 
 Wren, 17 Ohio, 137. 
 
 3. Contracts Relating to Work, Labor and Services. 
 
 HAYWARD V. LEONARD. 
 
 Massachusetts, 1S28. 7 Pick. 181. 
 
 This was an action of assumpsit. It appeared that the plain- 
 tiff erected a house upon the defendant's land within the time 
 and of the dimensions stated in the contract, but that in work- 
 manship and in materials it was not according to the terms of 
 the agreement. During the progress of the work the defendant 
 visited the place and directed some variations from the contract. 
 
 Parker, C. J. The point in controversy seems to be this: 
 whether when a party has entered into a special contract to 
 perform work for another, and to furnish materials, and the 
 work is done and the materials furnished, but not in the manner 
 stipulated for in the contract, so that he cannot recover the 
 price agreed by an action on that contract, yet nevertheless the 
 work and materials are of some value and benefit to the other 
 contracting party, he may recover on a quantum meruit for the 
 work and labour done, and on a quantum valebant for the ma- 
 terials. We think the weight of modern authority is in favour 
 of the action, and that upon the whole it is conformable to jus- 
 tice, that the party who has the possession and enjoyment of the 
 materials and labour of another, shall be held to pay for them, 
 so as in all events he shall lose nothing by the breach of contract. 
 If the materials are of a nature to be removed and liberty is 
 granted to remove them, and notice to that effect is given, it may 
 be otherwise. But take the case of a house or other building 
 fixed to the soil, not built strictly according to contract, but still 
 valuable and capable of being advantageously used, or profit- 
 ably rented — there having been no prohibition to proceed in the 
 work after a deviation from the contract has taken place — no 
 absolute rejection of the building, with notice to remove it, from 
 the ground ; it would be a hard ease indeed if the builder could 
 recover nothing. 
 
 And yet he certainly ought not to gain by his fault in violating 
 
 23
 
 354 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 his contract, as he may, if he can recover the actual value; for 
 he may have contracted to build at an under price, or the value 
 of such property may have risen since the contract was entered 
 into. The owner is entitled to the benefit of the contract, and 
 therefore he should be held to pay in damages only so much 
 as will make the price good, deducting the loss or damage 
 occasioned by the variation from the contract. [Here the learned 
 justice cites authorities.] 
 
 It is laid down as a general proposition in Buller 's Nisi Prius, 
 139, that if a man declare upon a special contract and upon a 
 quantum meruit, and prove the work done but not according 
 to the contract, he may recover on the quantum meruit, for other- 
 wise he would not be able to recover at all. Mr. Dane (volume 
 1, p. 223) disputes this doctrine, and thinks it cannot be law 
 unless the imperfect work be accepted. Buller makes no such 
 qualifications. * * * 
 
 Mr. Dane's reasoning is very strong in the place above cited, 
 and subsequently in volume 2, p. 45, to show that the position of 
 Buller, in an unlimited sense, cannot be law; and some of the 
 cases he puts are decisive in themselves. As if a man who had 
 contracted to build a brick house, had built a wooden one, or in- 
 stead of a house, the subject of the contract, had built a bam. 
 In these eases, if such should ever happen, the plaintiff could 
 recover nothing without showing an assent or acceptance, ex- 
 press or implied, by the party with whom he contracted. Indeed 
 such gross violations of contract could not happen without fraud, 
 or such gross folly as would be equal to fraud in its consequences. 
 When we speak of the law allowing the party to recover on a 
 quantum meruit or quantum valebant, where there is a special 
 contract, we mean to confine ourselves to cases in which there is 
 an honest intention to go by the contract, and a substantive exe- 
 cution of it, but some comparatively slight deviations as to some 
 particulars provided for. Cases of fraud or gross negligence' 
 may be exceptions. 
 
 In looking at the evidence reported in this case, we see strong 
 grounds for an inference that the defendant waived all excep- 
 tions to the manner in which the work was done. He seems to 
 have kno^^^l of the deviations from the contract — directed some 
 of them himself — suffered the plaintiff to go on with his work — 
 made no objection when it was finished, nor until he was called 
 on to pay. But the case was not put to the jury on the ground
 
 CONTRACTS RELATING TO WORK AND SERVICES. 355 
 
 of acceptance or waiver, but merelj^ on the question, whether 
 the house was built pursuant to the contract or not ; and if not, 
 the jury was directed to consider what the house was worth to the 
 defendant, and to give that sum in damages. We think this 
 is not the right rule of damages ; for the house might have been 
 worth the whole stipulated price, notwithstanding the departures 
 from the contract. They should have been instructed to deduct 
 so much from the contract price, as the house was worth less on 
 account of these departures. And upon this ground only a new 
 trial is granted. 
 
 VALENTE V. WEINBERG. 
 
 Connecticut, 1907. 80 Conn. 134. 
 
 Action for services rendered and materials furnished under 
 building contracts. From a judgment for plaintiff, defendant 
 appeals. 
 
 Thayer, J, The plaintiff and defendant entered into two con- 
 tracts for the erection of a brick apartment house by the former 
 upon the land of the latter. The second contract provided 
 merely for additions to and changes in the earlier one, and we 
 may refer to them as one contract. The plaintiff" claims that 
 after he had nearly completed the building the defendant unlaw- 
 fully ejected him from the premises and prevented his comple- 
 tion of the contract. He sues to recover the value of the labor 
 and materials which he had furnished before he was ejected. 
 The defendant admits that he ejected the plaintiff and terminat- 
 ed his employment under the contract, but claims to have done 
 so pursuant to article 5 of the contract, and by his answer and 
 counterclaim seeks to recover from the plaintiff the amount 
 which the defendant has paid to another person to complete the 
 building. If the plaintiff, without fault on his part, was pre- 
 vented by the defendant from completing the contract, he could 
 treat it as rescinded, and recover, on quantum meruit, for the 
 work and labor performed under it, or he could bring his action 
 for damages against the defendant for breaking the contract and 
 preventing the plaintiff's performance of it. Derbv v. Johnson, 
 21 Vt. 18, 21 ; Wright v. Haskell, 45 Me. 492; United States v! 
 Behan. 110 U. S. 338, 344, 4 Sup. Ct. 81, 28 L. Ed. 168; Chicago 
 V. Tilley, 103 IT. S. 146. 154, 26 L. Ed. 371 ; Connelly v. Devoe, 
 37 Conn. 570, 576. If, on the other hand, the plaintiff failed
 
 356 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 to perform his contract, and the defendant rightfully entered 
 and completed it, acting under the terms of the contract, the 
 plaintiff cannot recover. The case turns, therefore, upon the 
 question whether the defendant rightfully entered and ejected 
 the plaint itt'. * * * 
 
 AVe think, as already indicated, that such a certificate in strict 
 compliance with the terms of article 5 was essential, and that 
 the defendant, in proceeding to eject the plaintiff and prevent 
 his performance of his contract without such certificate, acted 
 wrongfully. The plaintiff, therefore, is entitled to recover for 
 the services and materials furnished in the construction of the 
 building. 
 
 The court correctly overruled the defendant's claim that, if 
 the plaintiff was entitled to recover, "the measure of damages 
 is that adopted in Pinches v. Church, 55 Conn. 183, 10 Atl. 264, 
 viz. : the total w^hich the plaintiff could have recovered, less what 
 it cost to complete the building," deducting any payments 
 which had been received by him. The case referred to and the 
 present case are wathin well-recognized, but different, exceptions 
 to the general rule that no recovery can be had for labor or 
 materials furnished under a special contract unless the contract 
 has been performed. The present case is within the exception 
 which permits a recovery by the contractor when the other party 
 has incapacitated himself to perform his part of the contract, o.' 
 prevented the contractor from performing his. The failure to 
 perform being due to the defendant, and without fault on the 
 plaintiff's part, it would be unjust that he should suffer because 
 of the defendant's fault w^hile the latter reaps the full benefit 
 of the contract. The case of Pinches v. Church was within the 
 exception w^hich allows a recovery when the contractor has deviat- 
 ed slightly from the terms of the contract, not willfully, but in 
 good faith, and the other party has availed himself of and been 
 benefited by the labor and materials furnished. In such a case 
 it is manifestly just that the latter should be allowed for any 
 reasonable expense incurred in remedying the defect, or in mak- 
 ing additions necessary to complete the work. In Pinches v. 
 Church, it being impracticable, at a reasonable price, to com- 
 plete the w^ork according to the contract, the plaintiff was allowed 
 the contract price less the diminution in value of the building by 
 reason of the deviations. The difference between that case and 
 this is clear, and the reason for a different rule of damages is
 
 CONTRACTS RELATING TO WORK AND SERVICE.S. 357 
 
 equally clear. Had the plaintiff in the present case, instead of 
 treating the contract as rescinded, sought to recover damages 
 for the defendant 's breach of it, a different rule of damages, but 
 not that contended for by the defendant, would have applied. 
 United States v. Behan, supra; Derby v. Johnson, supra. But 
 the allegations of the complaint are not adapted to such a cause 
 of action, and it must be treated as an action to recover for 
 services rendered and materials furnished. 
 
 The defendant alleges error on the part of the trial court in 
 holding that he was not entitled to recover the items referred to 
 in paragraph 13 of the finding. But all these items were in effect 
 allowed him in the judgment, except the loan of $462, which was 
 not recoverable under the pleadings. 
 
 The remaining reasons of appeal need not be discussed, be- 
 cause their soundness depends upon the validity of the defend- 
 ant's claims (already considered and decided adversely to his 
 contention) that the action is upon the contract, and that the 
 architects were quasi judges between the parties, and had given 
 a certificate which warranted the defendant in terminating the 
 plaintiff's employment. 
 
 WARE BROS. CO. v. CORTLAND C. & C. CO. 
 
 New York, 1908. 192 IST. Y. 439. 
 
 Haight, J. On the 14th day of March, 1903, the defendant, 
 Cortland Cart & Carriage Company, entered into a written con- 
 tract with the plaintiff, Ware Bros. Company, by which the de- 
 fendant agreed to pay the plaintiff the sum of $350 for publish- 
 ing its advertisement once a month for 12 months in a monthly 
 publication, issued by the plaintiff, known as the "Vehicle 
 Dealer." Thereafter, and on the 2d day of April, 1903, and 
 after it is claimed the plaintiff had prepared the defendant's 
 advertisement for printing in its Vehicle Dealer, the defendant 
 wrote the plaintiff asking it to cancel the contract. This the 
 plaintiff refused to do, and thereupon it published the advertise- 
 ment for the period designated in the contract, and then, upon 
 the refusal of the defendant to pay therefor, brought this action 
 to recover the amoimt of the contract price. Upon the trial the 
 plaintiff proved the contract and its performance thereunder, 
 and rested. Then the defendant produced evidence to the 
 effect that it had directed the contract to be canceled and not
 
 358 DAMAGES IN ACTIONS ON CONTKACTS. 
 
 perfornu'ci by the plaintill', and then rested. Tlie court dis- 
 missed the plaintiff's complaint upon the ground that the con- 
 tract price was not the measure oi' damages which the plaintiff 
 was entitled to recover, aiul, inasnuich as there was no evidence 
 showing the amount of danuiges that had been sustained by the 
 plaintiff by reason of the revocation of the contract by the de- 
 fendant, there could be no recovery. 
 
 It will be observed that tlu^ contract ran for one year, and that 
 no payment was due until the contract had been fully performed 
 by the plaintitf. It recpiired the printing of the; defendant's 
 advertisement in the plaintiff's publication monthly for that 
 period of time, and its circulation among the subscribers for the 
 plaintiff' 's Vehicle Dealer. The contract in some respects diffe^rs 
 from that of the ordinary employment of servants for specified 
 terms ; but we see no reason why the rule pertaining to such con- 
 tracts should not apply and control in the disposition of this 
 contract. Clark v. Marsiglia, 1 Denio, 317 ; Lord v. Thomas, 64 
 N. Y. 107-109 ; Railway Advertising Co. v. Standard R. C. Co., 
 83 App. Div. 391, affirmed 178 N. Y. 570. In the case of How- 
 ard V. Daly, 61 N. Y. 362, it was held that where a contract for 
 future emploj^ment had been entered into, and afterwards re- 
 voked by the employer, the remedy of the employe is an action 
 to recover damages as for a breach of the contract. In such an 
 action the damages are prima facie the amount of the wages for 
 the full term, and the burden of proof is upon the defendant to 
 show the mitigation in damages. While this rule may have re- 
 ceived some criticism in other jurisdictions, it has steadily been 
 adhered to in the Supreme Court, and has recently been reassert- 
 ed in this court in the case of Milage v. Woodward, 186 N. Y. 
 252-257. See, also, Allen v. Glen Creamery Co., 101 App. Div. 
 306, and authorities cited. 
 
 Applying this rule to the case under consideration, it is ap- 
 parent that the court erred in its conclusion of law to the effect 
 that there was no evidence showing that there were damages 
 occasioned by the revocation of the contract by the defendant ; 
 for the contract price would prima facie be the measure of 
 damages, unless the defendant should show the amount that 
 should be deducted therefrom by reason of its revocation of the 
 contract. In reaching the result above indicated, we wish it un- 
 derstood that it is not our purpose to extend the rule beyond 
 the facts found in this case. Nor is it our purpose to limit or
 
 CONTRACTS RELATING TO WORK AND SERVICES. 359 
 
 impair the rule that, in a breach of an ordinary contract for the 
 manufacture of an article of the supplying of goods or merchan- 
 dise, including that which is known as ordinary job printing, 
 the damage is the difference between the contract price and the 
 cost of the goods, merchandise, or manufactured article, in which 
 the burden of showing the damages rCvSts on the plaintiff. The 
 distinguishing feature in this case, as we regard it, is that the 
 publishing of an advertisement in a periodical is the same as the 
 publishing in a daily or weekly newspaper, which involves the 
 investment of no additional capital, or the use of any material 
 other than the ink used and the paper upon which it is printed, 
 and these articles are of such trivial value as not in our judgment 
 to change the character of the contract from one for services to 
 be rendered. 
 
 The judgment should therefore be reversed. 
 
 In Pittsburgh Sheet Co. v. AVest Penn. Sheet Steel Co. 201 Pa. 150, 
 defendant had contracted to deliver sheet steel to plaintiff, who was a 
 manufacturer. Defendant broke this contract, and plaintiff sought to 
 recover the difference between the contract price and the cost of the 
 material and the expense of manufacture. This was allowed. But a 
 claim for manufacturer's profits was rejected by the court. 
 
 "If the buyer purchases goods in place of those contracted for at less 
 than the market value, and thus reduces the loss, he can recover only 
 the actual loss." Arnold v. Blabon, 147 Pa. 372. 
 
 "A person can only be held to be responsible for such consequences as 
 may be reasonably supposed to be in contemplation of the parties at the 
 time of making the contract." Mr. Justice Holmes, in Globe Refining 
 Co. V. Cotton Oil Co. 190 U. S. 540. 
 
 The motive for the breach of a contract is commonly immaterial in an 
 action on the contract. lb. 
 
 "The purchaser, in the event of breach of warranty, has the election 
 of two remedies, viz. : First, to return the article purchased, recover 
 back the purchase jtrice paid, and certain special damages ; or he may 
 retain the machine, and recover or recoup against the agreed purchase 
 price such tlamages as its v^eiective condition imposes upon him without 
 negligence on his part." Optenburg v. Skelton, 109 Wis. 244. 
 
 "When the vendor stands in the position of a complete performance 
 on his part, he is entitlefl to recover the contract price as his measure 
 of damages."' Puritan Coke Co. v. Clark, 204 Pa. .556. 
 
 In an action on a contract to manufacture where there has been a 
 breach, the plaintiff "must not by inattention, want of care, or inex- 
 cusable negligence, permit his damages to grow and then charge it all 
 to the other party." Noble v. American Three Color Co. 37 Misc. 96. 
 
 In an action against a common carrier to recover the value of an oil 
 painting, the portrait of plaintiff's father, the just rule of damages is 
 the actual value to the owner, its cost and the expenses of replacing it.
 
 360 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 So evidence is admissible that plaintiff had no other picture of liis 
 father. Green v. B. & F.. K. II. 12,s Mass. 221. 
 
 Where there is no market price in a certain i)lace, because there is 
 no source of supply there. !)laintitT can sliow the market price at the 
 nearest available market and add the cost of transportation. Grand 
 Tower Co. v. Phillips, 23 Wall. 471. See also Long v. Pruyn, 128 Mich. 
 57, where an inferior grade of fruit trees was delivered. 
 
 Where the seller refuses to deliver and the buyer supplies himself 
 before the contract date of delivery has arrived, the measure of dam- 
 ages is the difference between the i)rice at which the goods were actu- 
 ally bought and the contract price. Morris v. Supplee, 208 Pa. 253. See 
 also Kinports v. Breon, 193 I'a. 30J); Doolittle v. Murray, 111 N. W. Rep. 
 999 ; German Fruit Co. v. Armsby Co. 153 Cal. 585, an action for breach 
 of warranty on sale of dried fruit by sample. 
 
 In an action to recover damages for the non-delivery of bonds, the 
 amount of damages sustained by plaintiffs is properly based upon the 
 price of bonds in the city which has the best available market. Zimmer- 
 man V. Tinmierman, 193 N. Y. 486. See, too, Smith v. Green, L. R. 1 C. 
 P. D. 92. a case involving breach of warranty on sale of a cow. 
 
 If no market price is shown by plaintiff, only nominal damages can 
 be awarded. Brown v. Asphalt Mfg. Co. 210 Mo. 2G0. See, too, Winslow 
 Bros. V. Du Puy, 208 Pa. 98. 
 
 Mr. Justice Scott says in American Theatre Co. v. Siegel & Co., 221 111. 
 147 : "The law does not permit a person to receive goods under a con- 
 tract, appropriate them to his own use, and then defeat an action for 
 the purchase price, on the ground that the goods were not of the exact 
 quality or description called for by the contract. His remedy, in the 
 absence of a warranty, is to refuse to accept the goods when delivered, 
 or to return them within a reasonable time after the departure from the 
 terms of the contract is discovered. Wolf v. Dietzsch, 75 111. 205; 
 Titley v. Enterprise Stone Co. 127 Id. 547. 
 
 1) Damages for Unlawful Discharge. 
 DENNIS V. MAXFIELD. 
 
 Massachusetts, 1865. 10 All. 138. 
 
 Contract brought by the master against the owners of the 
 whaling ship Harrison, to recover damages for a breach of a 
 contract by which they had employed him for a whaling voyage. 
 The contract was contained in a shipping paper, for "a whal- 
 ing voyage of five years' duration from the sailing of the said 
 ship from the port of New Bedford, unless said ship shall sooner 
 return to said port and the voyage be terminated;" and in a 
 written agreement by which it was provided as follows: "The 
 said Dennis agreeing on his part to perform a whaling voyage as 
 master of the said ship Harrison, to the best of his ability and
 
 • CONTRACTS RELATING TO WORK AND SERVICES. 361 
 
 knowledge; and the said Maxfield as agent on his part agrees 
 to pay for the services of the said Dennis in the manner follow- 
 ing: One fourteenth lay on net proceeds Of whole cargo, and 
 one dollar per barrel on all sperm oil taken. In addition to the 
 above, to have five hundred dollars if the cargo amounts to 
 $70,000 ; and $1000 to be added when it shall amount to $90,000 ; 
 and $2000 more to be added to the aforesaid amount when the 
 cargo amounts to $100,000. Also to have one hundred dollars 
 for each and every thousand dollars that the cargo may exceed 
 one hundred thousand dollars." 
 
 The declaration averred that the plaintiff sailed from New 
 Bedford, in pursuance of the above contract, on the 17th of 
 May, 1858, and well and truly performed his duty until the 
 20th of November, 1860, when the defendants wrongfully de- 
 posed and removed him at the Sandwich Islands. 
 
 At the trial in this court the plaintiff claimed damages occa- 
 sioned by his removal and for preventing him from receiving 
 his share of the future earnings of the ship. 
 
 BiGELOw, C. J. Of the several rulings made at the trial of 
 this case, three only seem to be open for revision on the excep- 
 tions. 
 
 1. The first relates to the right of the plaintiff to recover in 
 this action the amount of his share of the earnings which had 
 accrued under his contract with the defendants prior to his 
 removal by them from the command of the vessel. The action 
 is brought for a breach of an entire contract for services. The 
 plaintiff has a right to recover as damages the amount which 
 is lawfully due to him under the stipulations by which his com- 
 pensation for these services was to be regulated and governed. 
 This includes the wages which he had earned previous to his 
 removal, as well as those which he was prevented from earning 
 by his wrongful discharge. The breach of the contract by the 
 defendants has created only one cause of action in favor of the 
 plaintiff. Ilis compensation for this breach necessarily em- 
 braces all that he is entitled to recover under the contract. In- 
 deed his right to recover anything, as well that which was earned 
 before as that which would have been earned if he had not been 
 discharged, depends on the question whether he has performed 
 his part of the contract. A party cannot sever a claim for 
 damages arising under one contract so as to make two distinct 
 and substantive causes of action. We are therefore all of opin-
 
 362 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 ion that the sum duo to tho plaintiff prior to his discharge, when 
 it shall have been ascertained by an assessor, ought to be added 
 to the amount of tho verdict. 
 
 2. AVe think it e(i\uilly clear that the plaintiff is entitled to 
 recover in this action his share or proportion of the future 
 profits or earnings of the vessel after his discharge by the de- 
 fendants. These constitute a valid claim for damages, because 
 the parties have expressly stipulated that profits should be the 
 basis on which a portion of the plaintiff's compensation for ser- 
 vices should be reckoned. These earnings or profits were there- 
 fore within the direct contemplation of the parties, when the 
 contract was entered into. They are undoubtedly in their 
 nature contingent and speculative and difficult of estimation; 
 but, being made by express agreement of the parties of the es- 
 sence of the contract, we do not see how they can be excluded 
 in ascertaining the compensation to which the plaintiff is en- 
 titled. Would it be a good bar to a claim for damages for 
 breach of articles of copartnership, that the profits of the con- 
 templated business were uncertain, contingent, and difficult of 
 proof, and could it be held for this reason that no recovery could 
 be had in case of a breach of such a contract ? Or in an action 
 on a policy of insurance on profits, would it be a valid defence 
 in the event of loss to say that no damages could be claimed or 
 proved because the subject of insurance was merely speculative, 
 and the data on which the profits must be calculated were neces- 
 sarily inadequate and insufficient to constitute a safe basis on 
 which to rest a claim for indemnity? The answer is, that in 
 such cases the parties, having by their contract adopted a con- 
 tingent, uncertain, and speculative measure of damages, must 
 abide by it, and courts and juries must approximate as nearly as 
 possible to the truth in endeavoring to ascertain the amount 
 which a party may be entitled to recover on such a contract in 
 the event of a breach. If this is not the rule of law, we do not 
 see that there is any alternative short of declaring that where 
 parties negotiate for compensation or indemnity in the form of 
 an agreement for profits or a share of them, no recovery can be 
 had on such a contract in a court of law,— a proposition which 
 is manifestly absurd. 
 
 There are doubtless many cases where no claim for a loss of 
 profits can properly constitute an element of damage in an 
 action for breach of a contract. These, however, are cases in
 
 CONTRACTS RELATING TO WORK AND SERVICES. 363 
 
 which there was no stipulation for compensation by a share of 
 the profits, and where they were not within the contemplation 
 of the parties, and did not form a natural, necessary, or prox- 
 imate result of a breach of the contract declared on Fox v. Hard- 
 ing, 7 Cush. 516. But these cases are no authority for the 
 broad proposition that in no case whatever can profits be in- 
 eluded in estimating damages for a breach of a contract. In 
 Joimson V. Arnold, 2 Cush. 46, cited by the defendants ' counsel, 
 the court decided only that, in an action for breach of contract 
 for services, by which it was agreed that a party should be com- 
 pensated by a share of the profits, the damages were not to be 
 limited exclusively to the loss of profits, but might include other 
 elements, if satisfactorily proved. In Brown v. Smith, 12 Cush. 
 366, the action was against the master of a whaling-vessel for 
 misconduct and mismanagement, by which the voyage was 
 broken up. It was held that no conjectural or possible profits 
 of the voyage could be taken into consideration in estimating the 
 damages. This decision stands on the ground that there were 
 so stipulations in the contract concerning profits, nor were they, 
 so far as appeared, in contemplation of the parties when the 
 contract was made, nor a necessarj^ or proximate consequence 
 of its breach. Besides, it was only a claim for conjectural or 
 possible profits which was rejected by the court in that case, and 
 not profits which were capable of being proved by competent 
 evidence, as in the case at bar. 
 
 3. The remaining ground of exception is to the instruction 
 given to the jury that, if the defendants had been injured by 
 any negligence of the plaintiff in the conduct of the voyage, 
 not sufficient to justify his removal and prevent him from 
 maintaining his action, then damages might be recouped or de- 
 ducted from the damages, if any, which they should find that the 
 plaintiff has sustained by his removal. We doubt very much 
 the correctness of this instruction. It seems to involve the 
 proposition that the plaintiff could recover damages for a breach 
 of the contract, although he had previously been guilty of violat- 
 ing his part of the agreement. But the instruction was given at 
 the express request of the defendants' counsel. It was the rule 
 of law by which he wished the rights of his clients to be tried 
 and determined. * * * 
 
 Exceptions overruled.
 
 364 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 WOLF V. STUDEBAKER. 
 Pennsylvania, 1870. 65 Pa. 459. 
 
 TlIO"\rPSON, C. J. We have no question before us involving 
 the fact of an agreement between the plaintiff and defendant, 
 by which the latter agreed to let to the former, on the shares, 
 her farm for one year, from the 1st of April, 1867. The verdict 
 has settled that fact in favor of the plaintiff. The only question 
 before us, therefore, is that relating to damages for the breach 
 of the contract to give possession by the defendant. 
 
 The plaintiff claimed to recover the value of his contract, that 
 is to say, what he might reasonably have made out of it, for his 
 damages. In Iloy v. Gronoble, 10 Casey, 10, which, like the case 
 in hand, was to recover damages for a failure, on part of the 
 defendant, to deliver possession of the farm which he had agreed 
 to let to the plaintiff to farm on the shares, the rule as to damages 
 is thus stated in the opinion of the court by Strong, J. : "We can- 
 not say, therefore, that the jury were misled in this case by being 
 told that the damages of the plaintiff should be measured by 
 what he could have made on the farm. This was but another 
 mode of saying that he was entitled to the value of his bargain. ' ' 
 This, as a rule, does not seem to have been controverted by the 
 defendant. But she was permitted to prove, under objection, in 
 mitigation of damages, by one Abraham May, as follows:— 
 
 "Wolf was engaged in hauling for the bridge in the summer 
 of 1867 ; he commenced hauling in June, and continued up to the 
 cold weather ; before this he was working lots around ; after this 
 he marketed some. Wolf and I looked over his books at one 
 time, and his earnings amounted to about $1000 ; he hauled after 
 this; he hauled hay to his own stable, and some to Bowman's 
 in the latter part of March ; his property consists of a house and 
 stable, and about a quarter of an acre of land ; I was at Wolf 's 
 sale,"&c. 
 
 The earnings of this man in this way, it was thought by the 
 learned judge, should to the extent of them mitigate the damages 
 arising from the defendant's broken contract; in other words, 
 the logic seemed to he that becaiLse he was an industrious man, 
 he was not within the same rule of compensation that one not 
 so would be. There are undoubtedly eases in which such facts 
 do mitigate damages. Such commonly occur in cases of the 
 employment of clerks, agents, laborers, or domestic servants, for
 
 CONTRACTS RELATING TO WORK AND SERVICES. 365 
 
 a year or a shorter determinate period. But I have found no 
 case where a disappointed party to a contract for a specific thing 
 or work, who, taking the risk from necessity, of a different busi- 
 ness from that which his contract if complied with would have 
 furnished, and shifting for himself and family for employment 
 for them and his teams, is to be regarded as doing it for the 
 benefit of a faithless contractor. It seems to me, therefore, that 
 the rule upon which the testimony quoted was admitted was 
 wrested from its legitimate purpose, and applied to an illegiti- 
 mate one. In 2 Greenlf. Ev. § 261 a, the distinction is marked 
 between "contracts for specific work and contracts for the hire 
 of clerks, agents, laborers, and domestic servants for a year or 
 shorter determinate periods." In that case the learned author 
 shows that the defendant may prove, on a breach of the contract, 
 "either that the plaintiff was actually engaged in other profit- 
 able service during the term, or that such employment was 
 offered to him, and he rejected it." 
 
 There is an evident distinction between such a hiring and a 
 contract for the performance of some specific undertaking. In 
 the one case, the party can earn and expect to earn no more 
 than single wages, and if he gets that, his loss will generally be 
 but nominal. King v. Steiren, 8 Wright, 99, was of this nature. 
 Whereas, in the other case the loss of the party is the loss of the 
 benefits of the contract he is prepared to perform. In Costigan 
 V. The Railroad Company, 2 Denio, 609, in a case of hiring for 
 personal service, where the party was dismissed before his term 
 had expired, it was held he was not obliged to seek employment, 
 nor perform services offered him of a different nature from that 
 he had engaged to perform, in order to recover full damages for 
 disappointment. In analogy to this principle, I would say, that 
 where a disappointed contractor for the performance of a speci- 
 fied thing finds something of a different nature from his contract 
 to do, his doing it ought not to mitigate the damages for the 
 breach of his contract by the other party. Indeed, there is enough 
 in the difficulty of applying such a rule to discard it. It would 
 necessarily involve proof of everything, great and small, no mat- 
 ter how various the items done by the plaintiff during the period 
 of the contract might be, and how much he made in the mean- 
 time. It happened in this case, that a witness saw the plaintiff's 
 book, and testifies from it that he had earned $1000. The expense 
 incurred in earning it, he did not see, or, if he did, did not dis-
 
 3Gt) DAMAGES IN ACTIONS ON CONTRACTS. 
 
 close. But this single ease ought not to furnish a rule in other 
 cases. It cannot be that results utterly unconnected with the 
 cause of action and the party sued can be made to tell to his 
 advantage. * * * 
 
 We think that that which should mitigate damages in a con- 
 tract like that we are considering should be something resulting 
 from the acts of the party occasioning the injury, or from the 
 contract itself. The damages may be said to be fixed by the law 
 of the contract the moment it is broken, and I cannot see how that 
 is to be altered by collateral circumstances, independent of, and 
 totally disconnected from it, and from the party occasioning it. 
 
 Judgment reversed. 
 
 HOWARD V. DALY. 
 
 New York, 1875. 61 N. Y. 362. 
 
 The action was brought upon an alleged contract for employ- 
 ment and service. 
 
 The complaint set forth in substance that the plaintiff agreed 
 to act at the Fifth Avenue Theater in New York for the de- 
 fendant from September 15, 1870, to July 1, 1871, at a salary 
 of $10 per week during the season. She alleged that, though 
 ready and willing to perform, she was not assigned any part, 
 and that she had been paid nothing. From a judgment for $410, 
 defendant appealed. 
 
 D WIGHT, c. * * * The next point is, whether the plain- 
 tiff was bound, notwithstanding the defendant 's act, to keep her- 
 self in readiness to perform the contract at all times, or in any 
 form to tender her services. This inquiry involves the correct 
 theory of the nature of the action. Does the plaintiff sue -for 
 wages on the hypothesis of a constructive service, or for damages ? 
 This question, as far as appears, has never been fully discussed 
 in the appellate courts of this state; and, on account of both 
 its novelty and importance, will be considered at length. 
 
 It is very plain, that if a servant has actuall}^ performed the 
 service which he has agreed to render under the contract, he has 
 a right to recover wages. That would have been true in the 
 case at bar if the defendant had received her services for the 
 stipulated period. Had he not paid her according to the agree- 
 ment, her action would have been for the fixed wages. If, on 
 the other hand, she is wrongfully discharged, and the relation
 
 CONTRACTS RELATING TO WORK AND SERVICES. 367 
 
 of master and servant is broken off as far as he is concerned, it 
 is clear that she cannot recover for wages in the same sense as if 
 she had actually rendered the service. In an early nisi prius 
 case the fiction of a "constructive" service was resorted to, and 
 a servant discharged without cause was allowed to recover 
 wages. Gandell v. Pontigny, 4 Campb. 375. See, also, Collins 
 V. Price, 4 Bing. 132. This view has been discarded in later de- 
 cisions and has been disapproved by text- writers. [Here the 
 learned commissioner cites authorities.] 
 
 These cases and authorities hold, in substance, that if a servant 
 be wrongfully discharged, he has no action for wages, except for 
 past services rendered, and for sums of money that have become 
 due. As far as any other claim on the contract is concerned, he 
 must sue for the injury he has sustained by his discharge, in not 
 being allowed to serve and earn the wages agreed upon. Smith 
 on Master and Servant, 96, note "n"; Elderton v. Emmons, 6 
 Com. Bench, 187 ; Beckham v. Drake, 2 Ho. Lords Cases, 606. 
 A servant wrongfully discharged has but two remedies growing 
 out of the wrongful act: (1) He may treat the contract of hiring 
 as continuing, though broken by the master, and may recover 
 damages for the breach. (2) He may rescind the contract; in 
 which case he could sue on a quantum meruit, for services act- 
 ually rendered. These remedies are independent of and addi- 
 tional to his right to sue for wages, for sums actually earned and 
 due by the terms of the contract. This last amoimt he recovers 
 because he has completed, either in full or in a specified part, 
 the stipulations between the parties. The first two remedies 
 pointed out are appropriate to a wrongful discharge. 
 
 To apply these principles to the case at bar, the plaintiff must 
 have been ready and willing to continue in the defendant's ser- 
 vice at the time of the letter's refusal to receive her into his 
 employment. 2 Wra. Saund. 352 et seq., note to Peeters v. Opie. 
 It is not necessary, however, that she should go through the barren 
 form of offering to render the service. Wallis v. "Warren, 4 
 Exch. 361 ; Levy v. Lord Herbert, 7 Taunt. 314 ; Carpenter v. 
 Holcomb, 105 ]\Iass. 284, and cases cited in opinion by Colt, J. 
 Her readiness, like any other fact, may be shown by all the cir- 
 cumstances of the case. It sufficiently appeared bj^ the conduct 
 of the parties. 
 
 After the defendant had declined to give her employment, 
 there was no further duty on the plaintiff's part to be in readi-
 
 368 DAMAGED IN ACTIONS ON CONTRACTS. 
 
 ness to perform. If that readiness existed when tlie time to enter 
 into service commenced, and the defendant committed a default 
 on his part, the contract was broken and she had a complete cause 
 of action. Tender of performance is not necessary when there 
 is a willingness and ability to perform, and actual performance 
 has been prevented or expressly waived by the parties to whom 
 performance is due. Franchot v. Leach, 5 Cow. 506; Cort v. 
 Ambergate & R. R. Co., 17 A. & E. (N. S.) 127. This rule is 
 recognized in Nelson v. Plimpton Fireproof E. Co., 55 N. Y. 480, 
 484. Her future conduct could not affect her right to sue, though 
 it might bear on the question of damages. She was not obliged to 
 remain in New York or in any form to tender her services after 
 they had been once definitely rejected. 
 
 If this theory of the plaintiff's case is correct, her only further 
 duty was to use reasonable care in entering into other employ- 
 ment of the same kind, and thus reduce the damages. This ob- 
 ligation is of a general nature, and not peculiarly applicable to 
 contracts of service. The cases on this point are: Emmons 
 V. Elderton, 4 H. L. Cas. 646 ; Costigan v. Mohawk & H. R. R. 
 Co., 2 Denio, 609 ; Dillon v. Anderson, 43 N. Y. 231 ; Hamilton 
 V. McPherson, 28 N. Y. 76. The imcontradicted testimony was, 
 that this duty was discharged by the plaintiff. She made effort 
 to procure employment, but failed. While it would be unques- 
 tionably her duty to accept, if offered, another eligible theatrical 
 engagement, it could scarcely be expected that she should spend 
 much time in actively seeking for employment. Having made 
 some effort and having failed, I think that she was justified, 
 under the known usage in that business of forming companies of 
 actors at certain seasons of the year, and the slight prospect of 
 success in making an engagement after the fifteenth of Septem- 
 ber, in awaiting the close of the theatrical season. How far a per- 
 son who is wrongfully discharged from employment is bound to 
 seek it is not. perhaps, fully settled. Chamberlin v. Morgan, 68 
 Pa. 168 ; King v. Steiren, 44 Pa. 99. In the first of these cases it 
 is said that it is the duty of a dismissed servant not to remain 
 idle, and that the defendant may show, in mitigation of damages, 
 that the plaintiff might have procured employment. This seems 
 to be a reasonable rule. Prima facie, the plaintiff is damaged to 
 the extent of the amount stipulated to be paid. The burden 
 of proof is on the defendant to show either that the plaintiff 
 has found employment elsewhere, or that other similar employ-
 
 CONTRACTS RELATING TO WORK AND SERVICES. 369 
 
 ment has been offered and declined, or, at least, that such em- 
 ployment might have been found. I do not think that the plain- 
 tiff is bound to show affirmatively, as a part of her case, that such 
 emplojTnent was sought for and could not be found. 2 Greenl. 
 on Ev. § 261, a ; Costigan v. M. & H. R. R. Co., 2 Denio, 609. 
 
 No such evidence having been offered by the defendant, the 
 plaintiff should recover the whole amount of her stipulated com- 
 pensation as the damages attributable to the defendant's breach 
 of contract. This, as has been seen, is the true measure of 
 damages. [Citing authorities.] 
 
 x\s far as any authorities are opposed to the theory maintained 
 in the present case, they will appear to rest on the nisi prius case 
 of Gandell v. Pontigny, already noticed. Thus in Thompson v. 
 ^Yood, 1 Hilt. 96, there is a dictum of Ingraham, J., that a serv- 
 ant wrongfully discharged has his election to sue for wages as 
 they become due from time to time, or for damages. This remark 
 that he could sue for wages evidently proceeds on the discarded 
 doctrine of "constructive service." In Huntington v. Ogdens- 
 burgh, etc., R. R. Co., 33 How. Prac. 416, there are some remarks 
 of a similar nature by Potter, J., though there is an apparent 
 confusion between a claim for wages, in case the contract is car- 
 ried out, and for damages, in case it is broken off. The opinion 
 of James, J., as reported in this case in 7 American Law Register 
 (N. S.) 143, appears to be distinct in its adoption of the doctrine 
 of constructive sersdce. It relies on a case in Alabama (Fowler 
 V. Armour, 24 Ala. 194), which distinctly holds that doctrine, 
 and on the dictum of Ingraham, J., in Thompson v. Wood, supra. 
 There are two or three other cases in the Southern and Western 
 states that have followed Gandell v. Pontigny : Armfield v. Nash, 
 31 ^liss. 361 ; Gordon v. Brewster, 7 Wis. 355 ; Booge v. Pacific 
 R. R. Co., 33 Mo. 212. 
 
 This doctrine is, however, so opposed to principle, so clearly 
 hostile to the great mass of the authorities, and so wholly irrecon- 
 cilable to that great and beneficent rule of law, that a person dis- 
 charged from service must not remain idle, but must accept em- 
 ployment elsewhere if offered, that we cannot accept it. If a 
 person discharged from service may recover wages, or treat the 
 contract as still subsisting, then he must remain idle in order to 
 be always ready to perform the service. How absurd it would 
 be that one rule of law should call upon him to accept other em- 
 ployment, while another rule required him to remain idle in 
 
 24
 
 370 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 order that he may recover full wages. The doetrine of "con- 
 stnietive service" is not only at war with pi-ine-iplc, l)ut with the 
 rules of political economy as it encourages idleness and gives 
 compensation to men who fold their ai'iiis and decline service, 
 equal to those who pert\)rm with willing hands their stipulated 
 amount of labor. Though the master has committed a wrong, 
 the servant is not for one moment released from the rule that he 
 should labor; and no rule can be sound which gives him full 
 wages while living in voluntary idleness. For these reasons, if 
 the plaintiff was discharged after the time of service commenced, 
 she had an immediate cause of action for damages, which were 
 prima facie a sum equal to the stipulated amount, unless the 
 defendant should give evidence in mitigation of damages. 
 
 Tile next inquiry is as to the rule to be followed in case the 
 defendant 's denial of the contract preceded the time for entering 
 into the service. It is now a well settled rule that if a person 
 enters into a contract for service, to commence at a future day, 
 and before that day arrives does an act inconsistent with the con- 
 tinuance of the contract, an action may be immediately brought 
 by the other party ; and of course, without averring performance, 
 or readiness to perform. The leading cases on that subject are 
 Hochster v. De La Tour, 2 Ellis & Black, 678 ; Frost v. Knight, 
 Law Rep. 7 Exch. Ill, reversing s. c. in L. R. 5 Exch. 322 ; Roper 
 V. Johnson, Law Rep. 8 Com. Pleas, 167; Burtis v. Thompson, 
 42 N. Y. 246 ; Crist v. Armour, 34 Barb. 378. 
 
 In Hochster v. De La Tour the facts were, that the plaintiff 
 had agreed to enter the service of the defendant as a courier, on 
 June 1 , 1852, and to serve in that capacity for three months, from 
 the 1st of June, at a specified monthly salary. Before that day 
 arrived, the defendant wholly refused to employ the plaintiff in 
 the capacity aforesaid, and wholly discharged him from the 
 agreement. The action was commenced on June 22, 1852. The 
 court held that the action was well brought, on the ground that 
 it was an act done inconsistent with the relation of master and 
 servant, and, accordingly, not so much a breach of the express 
 agreement, as of an imfJied contract, in no way to do any thing 
 to the prejudice of the opposite party, inconsistent with that 
 relation. 
 
 Another form of statement is, that the party renouncing his 
 engagement cannot complain if the opposite party takes him at 
 his word, and treats him as having broken the contract. This
 
 CONTRACTS RELATING TO WORK AND SERVICES. 371 
 
 doctrine results in the rule, that the opposite party has an option 
 either to treat the contract as subsisting, and when the day ar- 
 rives for commencing to serve to offer to perform, or to regard it 
 as immediately broken, and to sue before the day arrives. This 
 theory of an option is not objectionable, since, before the day 
 for performance arrives, a party would not be bound to accept 
 other employment, if offered, as he would be if the contract 
 were broken off after that time. The principle that governs the 
 one case is plainly not applicable to the other. 
 
 This case, at first, met with doubt, and even adverse criticism. 
 It was powerfully assailed by Chief Baron Kelly, of the Court 
 of Exchequer, in Frost v. Knight, L. R. 5 Exch. 322. His argu- 
 ments were carefully considered on an appeal of that case to the 
 Court of Exchequer Chamber, where the doctrine of Hochster v. 
 De La Tour was fully confirmed, and it is now accepted law. S. 
 c, L. R. 7 Exch. 111. Other cases to the same effect are Danube 
 & Black Sea Co. v. Xenos, 13 C. B. (N. S.) 825, and Wilkinson 
 v. Verity, L. R. 6 C. P. 206. The result of the cases is stated by 
 Coekbum, C. J., in Frost v. Knight, in the Exchequer Chamber, 
 in the following terras : ' ' The law with reference to a contract 
 to be performed at a future time, where the party bound to the 
 performance announces, prior to the time, his intention not to 
 perform it, as established by the cases [citing them] , may be thus 
 stated : The promisee, if he pleases, may treat the notice of inten- 
 tion as inoperative, 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 
 ov^Ti ; 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 previous 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 dam- 
 ages as would have arisen from the non-performance of the con- 
 tract at the appointed time; subject, however, to abatement in 
 respect of any circumstances which may have afforded him the 
 means of mitigating his loss.
 
 372 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 "This is uow settled law. notwithstanding any thing that may 
 have been held or said in Philpotts v. Evans, 5 M. & W. 475, and 
 Ripley v. McClure, 4 Exch. 359." Pages 112, 113. 
 
 This principle was recognized in the very recent case of Roper 
 v. Jolmson, L. R. 8 C. P. 167, where the further rule was laid 
 down, as a deduction from the decisions above stated, that in case 
 the plaintiff elected to treat the contract (for the delivery of 
 coal) as broken, by the refusal of the defendant to perform 
 prior to the days designated for delivery, the measure of damages 
 was prima facie the difference between the contract price and 
 the market j^rice at the several periods fixed for delivery, not- 
 withstanding those periods had not all elapsed when the action 
 was brought, nor even when it was tried. The damages could 
 be mitigated by proof that the plaintiff could have procured the 
 coal at lower rates. As no such proof was offered, the full differ- 
 ence between the two rates was recovered. There is also a dictum 
 in Brown v. ]\Iuller, L. R. 7 Exch. 323, to the same effect. 
 
 The question now under consideration was discussed in Crist 
 v. Armour, 34 Barb. 378, and the case of Hochster v. De La Tour 
 approved. The facts in Crist v. Armour did not involve the 
 precise point in the case at bar, since the vendor, who had 
 contracted to sell a quantity of cheese at a specified day, sold it 
 to another before that day arrived, and put it out of his power 
 to perform the contract. The principle is substantially the same, 
 however, as that adopted in the English cases. No appreciable 
 distinction can be stated between the present case and that of 
 Burtis V. Thompson, 42 N. Y. 246. In that case there was an 
 engagement to marry "in the fall." The defendant announced 
 to the plaintiff', in October, that he would not perform his con- 
 tract. It was held that an action commenced immediately was 
 not premature. The opinions given by Ingalls, J., and Grover, 
 J., do not proceed on the same theory. The view of the latter 
 judge coincides, in substance, with that of Hochster v. De La 
 Tour, and is the only one on which the judgment can properly 
 be supported. The fair construction of the words "in the fall," 
 would have given the defendant until the last day of November 
 to perform had there been no refusal on his part. It was the 
 renunciation of his contract in October which made the action 
 not premature. If the case is good law, it is difficult to main- 
 tain any distinction between it and the contract of service. 
 Chief Baron Kelly, in Frost v. Knight, supra, attempted to draw
 
 CONTRACTS RELATING TO WORK AND SERVICES. 373 
 
 a distinction between the contract oi marriage and the other 
 contracts. This was discarded by the Court of Exchequer 
 Chamber, which held the rule in Hochster v. De La Tour to be 
 universal in its application to contracts to be performed at a 
 future day ; though I presume that it would scarcely be extended 
 to mere promises to pay money, or other cases of that nature, 
 where there are no mutual stipulations. 
 
 The whole result of the discussion may now be summed up. 
 If the defendant in the case at bar repudiated his contract with 
 the plaintiff after the time of performance had arrived, the 
 plaintiff had an action for damages. Her interview with the 
 defendant sufficiently showed her readiness to perform. Her 
 action was for damages for not being permitted to work, and 
 not for wages ; and the defendant might show affirmatively, and 
 by way of mitigation of damages, that she had opportunities to 
 make a theatrical engagement elsewhere, which she did not 
 accept. Without such proof she was entitled to recover the full 
 amount of the compensation stipulated in the contract. 
 
 On the other hand, if the defendant rejected the services of 
 the plaintiff before the time of performance arrived, she had an 
 election either to consider his act as a breach of an implied con- 
 tract with her to take her into his service, and bring an imme- 
 diate action ; or to wait till the appointed day arrived, and then 
 be in readiness to render her services. Her election will be 
 evidenced by her acts. Having made no tender of her services 
 at the appointed day, the presumption is, that she considered 
 the act of repudiation by the defendant as final, and now brings 
 her action for damages. Her complaint in the action and the 
 evidence taken at the trial are sufficient to establish such a claim. 
 Her damages are, as in the other hypothesis, prima facie the 
 entire amount of her compensation, unless proof was offered in 
 mitigation of damages, which was not done. In either aspect of 
 the case the verdict and judgment were right. 
 
 My brethren concur with me upon the first ground set forth 
 in this opinion, without expressing, their views upon the correct- 
 ness of the rule in Hochster v. De La Tour, and kindred cases. 
 
 The judgment of the court below must be affirmed. All eon- 
 cur. Judgment affirmed.
 
 374 DAMAGED IN ACTIONS ON CONTRACTS. 
 
 SUTHERLAND v. "WYER. 
 
 Maino, 1877. 67 Me. 64. 
 
 Assumpsit to recover damages for breach of contract under 
 which plaintiff agreed to play for defendants at a museum in 
 l*ortland, i\Iaine. 
 
 Virgin, J. The plaintiff contracted with the defendants to 
 "play first old man and character business, at the Portland 
 museum, and to do all things requisite and necessary to any and 
 all performances which" the defendants "shall designate, and to 
 conform strictly to all the rules and regulations of said theatre," 
 for thirty-six weeks, commencing on Sept. 6, 1875, at thirty-five 
 dollars per week; and the defendants agreed "to pay him thirty- 
 five dollars for every week of public theatrical representations 
 during said season." By one of the rules mentioned, the de- 
 fendants "reserved the right to discharge any person who may 
 have imposed on them by engaging for a position which, in their 
 judgment, he is incompetent to fill properly." 
 
 The plaintiff entered upon his service under the contract, at 
 the time mentioned therein, and continued to perform the theat- 
 rical characterizations assigned to him, without any suggestion 
 of incompetency, and to receive the stipulated weekly salary, 
 until the end of the eighteenth week ; when he was discharged by 
 the defendants, as they contended before the jury, for incom- 
 petency under the rule ; but, as the plaintiff there contended, for 
 the reason that he declined to accept twenty-four dollars per 
 week during the remainder of his term of service. 
 
 Three days after his discharge and before the expiration of 
 the nineteenth week, the plaintiff commenced this action to re- 
 cover damages for the defendants' breach of the contract. The 
 action was not premature. The contract was entire and in- 
 divisible. The performance of it had been commenced, and the 
 plaintiff been discharged and thereby been prevented from the 
 further execution of it: and the action was not brought until 
 after the discharge and consequent breach. Howard v. Daly, 
 61 N. Y. 362, and cases. Dugan v. Anderson, 36 Md. 567, and 
 cases. The doctrine of Daniels v. Newton, 114 Mass. 530, is not 
 opposed to this. Neither do the defendants insist that the action 
 v.-as prematurely commenced ; but they contend that the verdict 
 Hhould be set aside as being against the weight of evidence. 
 
 The verdict was for the plaintiff. The jury must, therefore,
 
 CONTKACTS RELATING TO WORK AND SERVICES. 375 
 
 have found the real cause of his discharge to be his refusal to 
 consent to the proposed reduction of his salary. The evidence 
 upon this point was quite conflicting. Considering that all the 
 company were notified, at the same time, that their respective 
 salaries would be reduced one-third, without assigning any such 
 cause as incompetency; that no suggestion of the plaintiff's in- 
 competency was ever made to him, prior to his discharge ; and 
 that his written discharge was equally silent upon that subject, 
 we fail to find sufficient reason for disturbing the verdict upon 
 this ground of the motion, especially since the jury might well 
 find as they did on this branch of the case, provided they be- 
 lieved the testimony in behalf of the plaintiff. 
 
 There are several classes of cases founded both in tort and in 
 contract, wherein the plaintiff is entitled to recover, not only 
 the damages actually sustained when the action was commenced, 
 or at the time of the trial, but also whatever the evidence proves 
 he will be likely to suffer thereafter from the same cause. Among 
 the torts coming within this rule are personal injuries caused by 
 the wrongful acts or negligence of others. The injury continuing 
 beyond the time of trial, the future as well as the past is to be 
 considered, since no other action can be maintained. So in cases 
 of contract the performance of which is to extend through a 
 period of time which has not elapsed when the breach is made 
 and the action brought therefor and the trial had. Remelee v. 
 Hall, 31 Vt. 582. Among these are actions on bonds or un- 
 sealed contracts stipulating for the support of persons during 
 their natural life. Sibley v. Rider, 54 Maine, 463. Philbrook v. 
 Burgess, 52 Maine, 271. 
 
 The contract in controversy falls within the same rule. Al- 
 though, as practically construed by the parties, the salary was 
 payable weekly, still, when the plaintiff was peremptorily dis- 
 charged from all further service during the remainder of the 
 season, such discharge conferred upon him the right to treat 
 the contract as entirely at an end, and to bring his action to 
 recover damages for the breach. In such action he is entitled 
 to a just recompense for the actual injury sustained by the 
 illegal discharge. Prima facie, such recompense would be the 
 stipulated wages for the remaining eighteen weeks. This, how- 
 ever, would not necessarily be the sum which he would be en- 
 titled to ; for, in cases of contract as well as of tort, it is gen- 
 erally incumbent ui)on an injured party to do whatever he rea-
 
 376 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 sonably eaii, and to improve all reasonable and proper oppor- 
 tunities to lessen the injury. Miller v. Mariners' Church, 7 
 Maine. 51, 56; Jones v. Jones, 4 Md. 609; 2 Greenl. Ev. §261, 
 and notes; Chamberlin v. Morgan, 6S Pa. St. 168; Sedg. on 
 Dam. (6tli ed.) 416, 417, cases supra. The plaintiff could not be 
 justified in lying idle after the breach ; but he was boimd to use 
 ordinary diligence in securing employment elsewhere, during 
 the remainder of the term ; and whatever sum he actually earned 
 or might have earned by the use of reasonable diligence, should 
 be deducted from the amount of the unpaid stipulated wages. 
 And this balance, with interest thereon, should be the amount 
 of the verdict. Applying the rule mentioned, the verdict will 
 be found too large. 
 
 By the plaintiff's own testimony, he received only $60, from 
 all sources after his discharge, — $25 in February and $35 from 
 the 10th to the 20th of April, at Booth's. His last engagement 
 was for eight weeks, commencing April 10, which he abandoned 
 on the 20th, thus vohuitarily omitting an opportunity to earn 
 $57. prior to the expiration of his engagement with the defend- 
 ants, when the law required him to improve such an opportunity, 
 if reasonable and proper. We think he should have continued 
 the last engagement until May 6, instead of abandoning it and 
 urging a trial in April, especially inasmuch as he could have ob- 
 tained a trial in May, just as well. The instructions taken to- 
 gether were as favorable to the defendants as they Avere entitled 
 to. 
 
 If, therefore, the plaintiff will remit $57, he may have judg- 
 ment for the balance of the verdict; otherwise the entry must 
 be verdict set aside and new trial granted. 
 
 All concur. 
 
 McMULLEN v. DICKINSON CO. 
 
 Minnesota, 1895. 60 Minn. 156. 
 
 Canty, J. On the 25th of February, 1892, the plaintiff 
 entered into a written agreement with the defendant corp'oration, 
 whereby it agreed to employ him as its assistant manager, from 
 and after that date, as long as he should own in his own name 
 50 shares of the capital stock of said corporation, fully paid up, 
 and the business of said corporation shall be continued, not ex- 
 ceeding the term of the existence of said corporation, and pay
 
 CONTRACTS RELATING TO WORK AND SERVICES. 377 
 
 him for such services tlie sum of $1,500 per annum, payable 
 monthly during that time, and whereby he agreed to perform 
 said services during that time. He has ever since owned, as 
 provided, the 50 shares of said stock, and performed said 
 services ever since that time until the 28th of October, 1893, 
 when he was discharged and dismissed by the defendant without 
 cause. He alleges these facts in his complaint in this action, 
 and also alleges that he has been ever since he was so dismissed, 
 and is now, ready and willing to perform said services as so 
 agreed upon, and that there is now due him the sum of $125 
 for each of the months of March and April, 1894, and prays 
 judgment for the sum of $250. The defendant in its answer, for 
 a second defense, alleges that on JNIarch 2, 1894, plaintiff com- 
 menced a similar action to this for the recovery of the sum of 
 $512, for the period of time from his said discharge to the 1st of 
 March, 1894, alleging the same facts and the same breach, and 
 that on April 16, 1894, he recovered judgment in that action 
 against this defendant for that sum and costs, and this is pleaded 
 in bar of the present action. The plaintiff demurred to this de- 
 fense, and from an order sustaining the demurrer the defendant 
 appeals. 
 
 The plaintiff brought each action for installments of wages 
 claimed to be due, on the theory of constructive service. The 
 doctrine of constructive service was first laid down by Lord 
 Ellenborough in Gandell v. Pontigny, 4 Campb. 375, and this 
 case was followed in England and this country for a long time 
 (Wood, Mast. & Serv. 254), and is still upheld by several courts 
 (Isaacs V. Davies, 68 Ga. 169; Armfield v. Nash, 31 Miss. 361; 
 Strauss v. Meertief, 64 Ala. 299) . It has been repudiated by the 
 courts of England (Goodman v. Pocock, 15 Adol. & E. [N. S.] 
 574; Wood, ]\Iast. & Serv. 254), and by many of the courts in 
 this country (Id.; and notes to Decamp v. Hewitt, 43 Am. Dec. 
 204) , as unsound and inconsistent with itself, as it assumes that 
 the discharged servant has since his discharge remained ready, 
 willing, and able to perform the services for which he was hired, 
 while sound principles require him to seek employment else- 
 where, and thereby mitigate the damages caused by his dis- 
 charge. His remedy is for damages for breach of the contract, 
 and not for wages for its performance. But the courts, which 
 deny his right to recover wages as for constructive service, have 
 denied him any remedy except one for damages, which, if seem-
 
 378 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 ingly more logical in tiieoi\y, is most absurd in its practical 
 results. Tliese courts give him no remedy except the one which 
 is gi\en for the recovery of loss of prolit for the breach of other 
 contracts, and hold that the contract is entire, even though the 
 wages are payable in installments, and that he exhausts his 
 remedy by an action for a part of such damages, no matter how 
 long the contract would have run if it had not been broken. See 
 James v. Allen Co., 44 Ohio St. 226 ; Moody v. Leverich, 4 Daly 
 (N. Y.) 401; Colburn v. Woodworth, 31 Barb. (N. Y.) 381; 
 Booge v. Railroad Co., 33 Mo. 212. 
 
 No one action to recover all the damages for such a breach of 
 such a contract can furnish any adequate remedy, or do anything 
 like substantial justice between the parties. By its charter the 
 life of this corporation is thirty years. If the action is com- 
 menced immediately after the breach, how can prospective dam- 
 ages be assessed for this thirty years, or for even one year ? To 
 presume that the discharged servant will not be able for a large 
 part of that time to obtain other employment, and award him 
 large damages, might be grossly unjust to the defendant. Again, 
 the servant is entitled to actual indemnity, not to such specula- 
 tive indemnity as must necessarily be given by awarding him 
 prospective damages. His contract was not a speculative one, 
 and the law should not make it such. That men can and do find 
 emplojTnent is the general rule, and enforced idleness the ex- 
 ception. It should not be presumed in advance that the excep- 
 tional will occur. 
 
 This is not in conflict with the rule that, in an action for retro- 
 spective damages for such a breach, the burden is on the defend- 
 ant to show that the discharged servant could have found em- 
 ployment. In that case, as in others, reasonable diligence will 
 be presumed. When it appears that he has not found employ- 
 ment or been employed, there is no presumption that it was his 
 fault, and, under such circumstances, it will be presumed that 
 the exceptional has happened. But to presume that the excep- 
 tional will happen is very different. In an action for such a 
 breach of a contract for services, prospective damages beyond 
 the day of trial are too contingent and uncertain, and cannot 
 be assessed. 2 Suth. Dam. 471 ; Gordon v. Brewster, 7 Wis. 355 ; 
 Fowler & Proutt v. Armour, 24 Ala. 194 ; Wright v. Falkner, 37 
 Ala. 274; Colburn v. Woodworth, 31 Barb. (N. Y.) 385. 
 
 Then, if the discharged servant can have but one action, it
 
 CONTRACTS RELATING TO WORK AND SERVICES. 379 
 
 is necessary for him to starve and wait as long as possible before 
 commencing it. If he waits longer than six years after the 
 breach, the statute of limitations will have run, and he will lose 
 his whole claim. If he brings his action within the six years, he 
 will lose his claim for the balance of the time after the day of 
 trial. Under this rule, the measure of damages for the breach 
 of a 30 year contract is no greater than for the breach of a 6 or 
 7 year contract. Such a remedy is a travesty on justice. 
 Although the servant has stipulated for a weekly, monthly, or 
 quarterly income, it assumes that he can live for years without 
 any income, after which time he will cease to live or need income. 
 The fallacy lies in assuming that, on the breach of the con- 
 tract, loss of wages is analogous to loss of profits, and that the 
 same rule of damages applies, while in fact the cases are wholly 
 dissimilar, and there is scarcely a parallel between them. In 
 the one case the liability is absolute; in the other it is contin- 
 gent. If the rule of damages were the same, then, in the case of 
 the breach of the contract for service, the discharged servant 
 should be allowed only the amount which the stipulated wages 
 exceed the market value of the service to be performed, wdthout 
 regard to whether he could obtain other employment or not. If 
 the stipulated wages did not exceed the market value of the 
 service, he would be entitled to only nominal damages ; and in no 
 case could his failure to find other employment vary the measure 
 of damages. Clearly, this is not the rule. In the one ease the 
 liability is a contingent liability for loss of wages; in the other 
 case it is an absolute liability for loss of profits. Such contin- 
 gent liability cannot be ascertained in advance of the happening 
 of the contingency, and that is why prospective damages for loss 
 of wages are too contingent and are too speculative and uncertain 
 to be allowed, while retrospective damages for such loss are of 
 the most certain character. On the other hand, if damages for 
 loss of profits are too speculative and uncertain to be allowed, 
 they are equally so, whether prospective or retrospective. ' ' The 
 pecuniary advantages which would have been realized but for 
 the defendant's act must be ascertained without the aid which 
 their actual existence would afiford. The plaintiff's right to re- 
 cover for such a loss depends on his proving with sufficient cer- 
 tainty that such advantages would have resulted, and, therefore, 
 that the act complained of prevented him." 1 Suth. Dam. 107. 
 
 It is our opinion that the servant Avrongfully discharged is en-
 
 380 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 titled to indemnity for loss of wages, iuid for the full measure 
 of this indemnity the master is clearly liable. This liability ac- 
 crues by installments on successive contingencies. p]ach con- 
 tingency consists in the failure of the servant without his fault 
 to earn, during the installment period named in the contract, 
 the amount of wages which he would have earned if the con- 
 tract had been performed, and the miister is liable for the de- 
 ficiency. This rule of damages is not consistent with the doc- 
 trine of constructive service, but it is the rule which has usually 
 been applied by the courts which adopted that doctrine. Under 
 that doctrine the master should be held liable to the discharged 
 servant for wages as if earned, while in fact he is held only for 
 indemnity for loss of wages. The fiction of constructive service 
 is false and illogical, but the measure of damages given under 
 that fiction is correct and logical. It is simply a case of a wrong 
 reason given for a correct rule. Instead of rejecting the false 
 reason and retaining the correct rule, many courts have re- 
 jected both the rule and the reason. In our opinion, this rule 
 of damages should be retained ; but the true ground on which it 
 is based is not that of constructive service, but the liability of 
 the master to indemnify the discharged servant, not to pay him 
 wages, and this indemnity accrues by installments. The original 
 breach is not total, but the failure to pay the successive install- 
 ments constitutes successive breaches. Since the days of Lord 
 EUenborough this class of cases has been in some courts an 
 exception to the rule that there can be but one action for dam- 
 ages for the breach of a contract, and there are strong reasons 
 why it should be an exception. Because the discharged servant 
 may, if he so elects, bring successive actions for the installments 
 of indemnity as they accrue, it does not follow that he cannot 
 elect to consider the breach total, and bring one action for all 
 his damages, and recover all of the same accruing up to the time 
 of trial. 
 
 The order appealed from should he affirmed. So ordered. 
 
 Where plaintiff who has made a contract to render personal services, 
 is prevented from carrying it out by an act of the employer, the 
 plaintiff is not bound, in order to reduce defendant's obligation to him, 
 to accept and continue in the employ of defendant himself at a reduced 
 compensation. Chisholm v. Preferred Bankers, 112 Mich. 55. 
 
 "Where a party is wrongfully discharged by the employer before 
 the expiration of the contract period, he may wait until such period 
 arrives and then recover against the employer the wages he would
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 381 
 
 have earned but for such wrongful discharge, less what he could have 
 earned by employment elsewhere, which will be in reduction of dam- 
 ages." Winkler v. Racine Co., 99 Wis. 187. 
 
 Where a party agrees to take an advertisement and pay therefor, 
 he may nevertheless stop performance by an absolute renunciation of 
 the contract. The newspaper proprietor can get damages for the 
 breach, minus such sum as he might have obtained by the use of 
 reasonable efforts to obtain other advertisements at the best price 
 obtainable. Tradesman Co. v. Superior Mfg. Co., 147 Mich. 70.5. See 
 also Keystone I'ub. Co. v. Roman, IIG N. Y. Supp. 654. 
 
 In Chase v. Alaska F. & L. Co. 2 Alaska Reports 82, it was held 
 that when a servant is wrongfully discharged, but his wages are paid 
 up to that time, he cannot recover for future instalments for con- 
 structive service, but only for the breach of contract. 
 
 In Peterson v. Drew, 2 Alaska Reports 560, where a contract for 
 labor for a fixed wage and period is broken by the discharge of the 
 laborer, he cannot recover full wages if he fails to exercise reasonable 
 diligence in seeking other employment, and thus reducing, or attempt- 
 ing to reduce the damages or loss to himself resulting from the 
 wrongful discharge. 
 
 4. Breach of Contract to Transport Passengers. 
 HOBBS V. LONDON & SOUTHWESTERN RAILWAY. 
 
 Queen's Bench, 1875. L. R. 10 Q. B. 111. 
 
 Action to recover damages for breach of contract. 
 
 CocKBURN, C. J., We are of opinion that this rule should be 
 made absolute as regards the 20 1. damages given in respect of the 
 consequences of the vi^ife having caught cold in this walk from 
 Esher to Hampton ; but that it should be discharged as regards 
 the 8 1. in respect to the personal inconvenience suffered by the 
 husband and the wife in consequence of their not being taken to, 
 or put down at their proper place of destination. 
 
 The facts are simple. The plaintiffs took tickets to be con- 
 veyed from the Wimbledon station of the defendants' railway to 
 Hampton Court. It so happened that the train did not go to 
 Hampton Court, and the plaintiff's were taken on to Esher Sta- 
 tion, which increased the distance which they would have to go 
 from the railway station to their home by two or three miles. 
 
 Damages were asked for upon two grounds: first, for the in- 
 convenience that the husband and wife, with their two chil- 
 dren, sustained by having to go this distance, the night happen-
 
 382 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 ing to be a wet night; in the second place, damages were asked 
 by reason of the wife, from her exposure to the wet on that night, 
 getting a bad coki and being ill in health, the consequence of 
 which was that some expense was incurred in medical attendance 
 \ipou her. AVe think these two heads of damage must be kept 
 distinct, and I propose to deal with them as distinct subjects. 
 
 AVith regard to the first, there can be no doubt whatever upon 
 the facts that the plaintiffs were put to personal inconvenience : 
 they had to walk late at night, after twelve o'clock, a consider- 
 able distance, the wife suffered fatigue from it, and they had to 
 carry their children or to get them along with great difficulty, 
 the children being fatigued and exhausted; and there is no 
 doubt .that there was personal inconvenience suffered by the 
 party on that occasion, and that inconvenience was the immediate 
 consequence and result of the breach of contract on the part of 
 the defendants. The plaintiffs did their best to diminish the 
 inconvenience to themselves by having recourse to such means as 
 they hoped to find at hand ; they tried to get into an inn, which 
 they were unable to do; they tried to get a conveyance; they 
 were informed none was to be had ; and they had no alter^ 
 native but to walk ; and therefore it was from no default on their 
 part, and it cannot be doubted that the inconvenience was the 
 immediate and necessary consequence of the breach of the de- 
 fendants' contract to convey them to Hampton Court. Now in- 
 asmuch as there was manifest personal inconvenience, I am at a 
 loss to see why that inconvenience should not be compensated by 
 damages in such an action as this. It has been endeavored to 
 be argued, upon principle and upon authority, that this was a 
 kind of damage which could not be supported ; and attempts 
 were also made to satisfy us that this supposed inconvenience 
 was more or less imaginary, and would depend upon the strength 
 and constitution of the parties, and various other circumstances ; 
 and that it is not to be taken that a walk of so many additional 
 miles would be a thing that a person would dislike or suffer in- 
 convenience from ; and that there may be circumstances under 
 which a walk of several miles, so far from being matter of in- 
 convenience, would be just the contrary. All that depends on 
 the actual facts of each individual case ; and if the jury are satis- 
 fied that in the particular instance personal inconvenience or 
 suffering has been occasioned, and that it has been occasioned 
 as the immediate effect of the breach of the contract, I can see no
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 383 
 
 reasonable principle why that should not be compensated for. 
 The case of Hamlin v. Great Northern Ry. Co., 1 H. & N. 408 ; 
 26 L. J, (Ex.) 20, was cited as an authority to show that for 
 personal inconvenience damages ought not to be awarded. That 
 case appears to me to fall far short of any such proposition. It 
 merely seems to amount to this : that where a party, by not being 
 able to get to a place which he would otherwise have arrived at 
 in time to meet persons with whom he had appointments, had 
 sustained pecuniary loss, that is too remote to be made the sub- 
 ject of damages in an action upon a breach of contract. That 
 may be perfectly true, because, as in every one of the instances 
 cited, you would have to go into the question whether there was 
 a loss arising from the breach of contract, before you could assess 
 that loss. And, after all, if the true principle be laid doAvn in 
 Hadley v. Baxendale, 9 Ex. 341; 23 L. J. (Ex.) 179, the damage 
 must be something which is in the contemplation of the parties 
 as likely to result from a breach of contract ; and it is impossible 
 that a company who undertake to carry a passenger to a place 
 of destination can have in their minds all the circumstances 
 which may result from the passenger being detained on the jour- 
 ney. As far as the case of Hamlin v. Great Northern Ry. Co. 
 goes, I am far from saying it was a wrong decision ; but it did 
 not decide that personal inconvenience, however serious, was 
 not to be taken into account as a subject-matter of damage in a 
 breach of contract of a carrier to convey a person to a particular 
 destination. If it did, I should not follow that authority ; but I 
 do not think it applicable to this case at all. I think there is 
 no authority that personal inconvenience, where it is sufficiently 
 serious, should not be the subject of damages to be recovered in 
 an action of this kind. Therefore, on the first head, the 8 1., I 
 think the verdict ought to stand. 
 
 With regard to the second head of damage, the ease assumes a 
 very different aspect. I see very great difficultly indeed in com- 
 ing to any other conclusion than that the 20 1. is not recoverable ; 
 and when we are asked to lay doAVTi some principle as a guiding 
 rule in all such cases, I quite agree with my Brother Blackburn 
 in the infinite difficulty there would be in attempting to lay down 
 any principle or rule which shall cover all such eases; but J 
 think that the nearest approach to anything like a fixed rule is 
 this : That to entitle a person to damages by reason of a breach 
 of contract, the injury for which compensation is asked should
 
 384 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 be one that may be fairly taken to have been contemplated by 
 the parties as the possible result of the breach of contract. There- 
 fore you must have something immediately flowing out of the 
 breatli of contract complained of, something immediately con- 
 nected with it, and not merely connected with it through a series 
 of causes intervening between the immediate consequence of the 
 breach of contract and the damage or injury complained of. To 
 illustrate that I cannot take a better case than the one now be- 
 fore us: Suppose that a passenger is put out at a wrong sta- 
 tion on a wet night and obliged to walk a considerable distance 
 in the rain, catching a violent cold which ends in a fever, and the 
 passenger is laid up for a couple of months, and loses through 
 this illness the offer of an employment which would have brought 
 him a handsome salary. No one, I think, who understood the 
 law, would say that the loss so occasioned is so connected with 
 the breach of contract as that the carrier breaking the contract 
 could be held liable. Here, I think, it cannot be said the catch- 
 ing cold by the plaintiff's wife is the immediate and necessary 
 effect of the breach of contract, or was one which could be fairly 
 said to have been in the contemplation of the parties. As my 
 Brother Blackburn points out, so far as the inconvenience of the 
 walk home is concerned, that must be taken to he reasonably 
 within the contemplation of the parties ; because, if a carrier en- 
 gages to put a person down at a given place, and does not put 
 him down there, but puts him down somewhere else, it must be 
 in the contemplation of everybody that the passenger put dowTi 
 at the wrong place must get to the place of his destination some- 
 how or other. If there are means of conveyance for getting there, 
 he may take those means and make the company responsible for 
 the expense; but if there are no means, I take it to be law that 
 the carrier must compensate him for the personal inconvenience 
 which the absence of those means has necessitated. That flows 
 out of the breach of contract so immediately that the damage 
 resulting must be admitted to be fair subject-matter of damages. 
 But in this case the wife's cold and its consequences cannot 
 stand upon the same footing as the personal inconvenience aris- 
 ing from the additional distance which the plaintiffs had to go. 
 It is an effect of the breach of contract in a certain sense, but 
 removed one stage ; it is not the primary but the secondary con- 
 sequence of it : and if in such a case the party recovered damages 
 by reason of the cold caught incidentally on that foot journey,
 
 BREACH OP CONTRACT TO TRANSPORT PASSENGERS. 385 
 
 it would be necessary, on the principle so applied, to hold that in 
 two cases which have been put in the course of the discussion, 
 the party aggrieved would be equally entitled to recover. And 
 yet the moment the cases are stated, everybody would agree that, 
 according to our law, the parties are not entitled to recover. I 
 put the case: Suppose in walking home, on a dark night, the 
 plaintiff made a false step and fell and broke a limb, or sustained 
 bodily injury from the fall, everybody would agree that that is 
 too remote, and is not the consequence which, reasonably speak- 
 ing, might be anticipated to follow from the breach of contract. 
 A person might walk a hundred times, or indeed a great many 
 more times, from Esher to Hampton without falling down and 
 breaking a limb ; therefore it could not be contended that that 
 could have been anticipated as the likely and the probable con- 
 sequence of the breach of contract. Again, the party is entitled 
 to take a carriage to his home. Suppose the carriage overturns 
 or breaks down, and the party sustains bodily injury from either 
 of those causes, it might be said : "If you had put me down at 
 my proper place of destination, where by your contract you en- 
 gaged to put me down, I should not have had to walk or to go 
 from Esher to Hampton in a carriage, and I should not have 
 met with the accident in the walk or in the carriage. ' ' In either 
 of those eases the injury is too remote, and I think that is the 
 case here ; it is not the necessary consequence, it is not even the 
 probable consequence of a person being put down at an im- 
 proper place, and having to walk home, that he should sustain 
 either personal injury or catch a cold. That cannot be said to 
 be within the contemplation of the parties so as to entitle the 
 plaintiff to recover, and to make the defendants liable to pay 
 damages for the consequences. Therefore, as regards the dam- 
 ages awarded in respect of the wife's cold, the rule must be 
 made absolute to reduce the damages by that amount. 
 
 Blackburn, J. I am of the same opinion. I think the rule 
 should be made absolute to reduce the damages to 8 1. beyond 
 the 2 1. paid into court, but should not be made absolute any 
 further. The action is in reality upon a contract ; it is com- 
 monly said to be founded upon a duty, but it is a duty arising 
 out of a contract. It is a contract by which the railway com- 
 pany had undertaken to carry four persons to Hampton Court, 
 and in fact thnt contract was broken when they landed the 
 passengers at Esher, instead of Hampton Court. The contract 
 
 25
 
 386 DAMAGED IN ACTIONS ON CONTRACTS. 
 
 was to supply a conveyance to Hampton Court, and it was not 
 supplied. Where there is a contract to supply a thing and it 
 is not supplied, the damages are the difference between that 
 which ought to have been supplied and that which you have to 
 pay foi-, if it be equally good ; or if the thing is not obtainable, 
 the damages would be the difference between the thing which you 
 ought to have had and the best substitute you can get upon the 
 occasion for the purpose. * * * Therefore on the first head 
 of damages in this case, I do not see that we can cut down the 
 damages below what the jury have found. 
 
 Then comes the further question, whether the damages for 
 the illness of the wife are recoverable ; I think they are not, be- 
 cause they are too remote. On the principle of what is too re- 
 mote, it is clear enough that a person is to recover in the case 
 of a breach of contract the damages directly proceeding from 
 that breach of contract and not too remotely. Although Lord 
 Bacon had, long ago, referred to this question of remoteness, it 
 has been left in very great vagueness as to what constitutes the 
 limitation ; and therefore I agree with what my Lord has said 
 to-day, that you make it a little more definite by saying such 
 damages are recoverable as a man when making the contract 
 would contemplate would flow from a breach of it. For my own 
 part, I do not feel that I can go further than that. It is a vague 
 rule, and as Bramwell, B., said, it is something like having to 
 draw a line between night and day; there is a great duration of 
 twilight when it is neither night nor day ; but on the question now 
 before the court, though you cannot draw the precise line, you can 
 say on which side of the line the case is ; I do not see the analogy 
 between this case and the case that was suggested, where a railway 
 company made a contract to carry a passenger, and from want 
 of reasonable care they dashed that passenger down and broke 
 his leg. and he recovers damages from them. For such a breach as 
 that, the most direct, immediate consequence is, that he would be • 
 lamed. That is the direct consequence of such a breach of con- 
 tract; but though here the contract is the same, a contract to 
 carry the passenger, the nature of the breach is quite different ; 
 the nature of the breach is simply that they did not carry the 
 plaintiff to his destination, but left him at Esher. To illustrate 
 this, — Suppose you expand the declaration, and say: You, the 
 defendants, contracted to carrv^ me safely to Hampton Court, 
 you negligently upset the carriage and dashed me on the ground,
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 387 
 
 whereby I became ill and sick. That is a clear and immediate 
 consequence. The other case is: You contracted to carry me to 
 Hampton Court, you went to Esher, and put me down there, by 
 which I was obliged to get other means of conveyance, for the 
 purpose of getting to Hampton Court ; and because I could find 
 no fly or other conveyance, I was obliged, as the only means of 
 getting to Hampton, to walk there, and because it was a cold and 
 wet night, I caught cold, and I became ill. When it is put in 
 that way, there are many causes or stages which there are not in 
 the other. 
 
 "With regard to the two instances my Lord put, — one, of the 
 passenger, when walking home in the dark, stumbling and break- 
 ing his leg ; the other, of his hiring a carriage, and the carriage 
 breaking down, — I must say I think they are on the remote side 
 of the line, and further from it than the present case. I do not 
 think it is any one 's fault that it cannot be put more definitely ; 
 I think it must be left as vague as ever, as to where the line must 
 be drawn ; but I think in each case the court must say whether 
 it is on the one side or the other; and I do not think that the 
 question of remoteness ought ever to be left to a jury ; that would 
 be in effect to say that there shall be no such rule as to damages 
 being too remote; and it would be highly dangerous if it was 
 to be left generally to the jury to say whether the damage was 
 too remote or not. 
 
 I think, therefore, the rule ought to be made absolute to reduce 
 the damages to the 8 1. beyond the 2 1. 
 
 Mellor, J., and Archibald, J., write saying that they are of 
 the same opinion. 
 
 Rule accordingly. 
 
 TURNER V. GREAT NORTHERN RY. CO. 
 
 Washington. 1S9G. 15 Wash. 213. 
 
 The plaintiff and his wife purchased through tickets from St. 
 Paul, Minn., to Spokane, Wash., over the defendant company's 
 road, the latter then knowing that through transportation was 
 impossible over its lines owing to a serious break in its roadbed, 
 which fact it fraudulently and negligently concealed. At Havre, 
 Mont., the plaintiff was directed to leave the train, to proceed to 
 Helena, and then to take the road of the Northern Pacific Rail- 
 road Company, which company, the defendant stated, would
 
 388 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 honor plaintiff's ticket. This it, however, refused to do. Plain- 
 tiff was compelled to pay fare, and afterward was delayed at 
 jNIissoula for 18 days by reason of floods. A verdict was ren- 
 dereil for $750, and from a judgment in favor of plaintiff this 
 appeal is prosecuted. 
 
 Anders, j. * * * in answer to the question, "Now 
 Colonel, I wish you would go on and state to the jury what, if 
 any, anxiety, worriment, etc., you suffered on account of your 
 delay, being separated from your baggage, and all of those things 
 that are proper under the ruling of the court; in consequence 
 of this delay," the plaintiff was allowed, notwithstanding the 
 defendant's objection, to testify that he was greatly worried, 
 troubled, and annoyed by the combination of circumstances sur- 
 rounding him at that time, among which were that he had to pay 
 out more money than he had contemplated paying out ; that the 
 Northern Pacific Railroad Company would not board him at 
 ^lissoula, as they did their passengers; his means were lirrited, 
 and he did not know how long he had to stay there ; that he could 
 not hear from home, the telegraph line being broken down ; that 
 his wife was taken sick, and lay in bed three days, in consequence 
 of her worriment, and that he could not make her comfortable 
 under the circumstances. 
 
 Damages for "worriment" and disappointment resulting from 
 such circumstances are too remote to be recovered in this action. 
 The mental anxiety of the plaintiff induced by the sickness of his 
 wife and his inability to make her comfortable, or his limited 
 means, or his inability to hear from home owing to the inter- 
 ruption of telegraphic communication, cannot be regarded as the 
 proximate result of the alleged wrongful acts, or omissions of 
 the defendant, and the court therefore erred in permitting this 
 testimony to be submitted to the consideration of the jury. 
 
 The court also erred, and for .the same reason, in instructing 
 the jury generally that the plaintiff was entitled to recover, for 
 worry and mental excitement such sum as would fairly and 
 reasonably compensate him therefor. "Damages will not be 
 given for mere inconvenience and annoyance, such as are felt 
 at every disappointment of one's expectations, if there is no ac- 
 tual physical or mental injury." 1 Sedgwick on Damages (8th 
 Ed.) § 42. 
 
 And hence damages cannot be recovered for anxiety and sus- 
 pense of mind in consequence of delay caused by the fault of
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 389 
 
 a common carrier. Trigg v. Railway Co., 74 Mo. 147; Hobbs 
 V. Railway Co., L. R. 10 Q. B. Ill ; Hamlin v. Railway Co., 1 
 Hurl. & N. 408 ; Walsh v. Railway Co., 42 Wis. 23. * * * 
 
 Surely no court could say that, in contemplation of law, the 
 mental agitation or excitement caused by being delayed on a 
 journey is of a different character from that produced by unex- 
 pectedly having to pay extra fare for transportation. The men- 
 tal sensation in each case, whether it be called excitement, anx- 
 iety, annoyance, or worry, is manifestly the result of disap- 
 pointed hope or expectation merely, for which, as we have seen, 
 no damages can be awarded. The most trustworthy basis of 
 damages was not adopted in the trial of this case. There 
 was no proof whatever of what the plaintiff actually earned, 
 as an attorney, either before or after the particular time in 
 question. * * * ^^q are inclined to the opinion that it was 
 hardly proper to prove what the time of practicing attorneys 
 was worth, as that would constitute no fair basis of damages, 
 where the value of a person 's time depends so much upon his in- 
 dividual exertions. 
 
 The judgment must be reversed and the cause remanded for a 
 new trial. 
 
 HoYT, C. J., and Gordon. J., concur, Dunbar, J. dissents. 
 
 COOLEY V. PENNSYLVANIA R. CO. 
 
 New York, 1903. 40 Misc. 239. 
 
 GiEGERiCH, J. This action was brought to recover damages 
 claimed by the reason of delay in transporting the plaintiff as a 
 passenger on defendant's railroad. * * * 
 
 The facts in the case are practically undisputed, and, as far as 
 material, are as follows : On or about the 10th day of December, 
 1899, the plaintiff, in the city, of New York, purchased a ticket 
 to Philadelphia and return. On his return he left Philadelphia 
 on the 7:33 o'clock a. m. train, December 11th, which was due in 
 New York at 9:30 o'clock a. m., as appeared by the time-tables 
 published by the defendant. At the time when he started there 
 had been a wreck upon the line of defendant's road, of which the 
 plaintiff was not informed. Owing to the wreck, the train did 
 not reach New York until half-past 3 o'clock in the afternoon. 
 In the meanwhile, a case in wliich he was attorney for the plain- 
 tiff had been called in the City Court of the city of New York at
 
 390 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 10 o'clock in tlio mominji-, and, owinp; to his failure to appear, 
 the case had been dismissed, althoiigli he had telegraphed to his 
 own office and to the judge before whom the case was to be tried 
 that he could not be there on time. The plaintiff, having his re- 
 turn ticket, did not have to purchase one, and before starting 
 from Philadelphia he did not disclose to any servant or officer 
 of the defendant his profession or the nature of his business on 
 that day. He testitied that he told the conductor when on the 
 train at Trenton that he had a court engagement, but at that time 
 it Avas impossible for him to be transported to New York in time 
 to be present at the call of the City Court calendar. The fact 
 that there was a delay of several hours called upon the defendant 
 to show, if it could, that such delay was the result of inevitable 
 accident or that it was excusable. This it did not do, and there- 
 fore the question for us to determine is, what measure of dam- 
 ages should have been applied to the case ? 
 
 It is well established that, in order to hold the carrier for 
 damages beyond those which accrue upon his negligent delay 
 naturally and in the order of things, he must be informed of the 
 special circumstances which make promptness on his part im- 
 portant to the passenger, and which may occasion exceptional 
 damages as the result of his delay — in other words, that both 
 parties to the contract must be fully informed as to the circum- 
 stances and the reasons why it is important to the passenger to 
 arrive at on or about the schedule time. De Leon v. McKernan, 
 25 Misc. Rep. 182; Hadley v. Baxendale, 9 Exch. 341; North 
 American Transportation & Trading Co. v. Morrison, 178 U. S. 
 262 ; Booth V. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487 ; 
 Hutchinson on Carriers, § 773, p. 920. This rule would exclude 
 the $20 paid by the plaintiff to open the default, even if the 
 plaintiff were liable for the same ; but an attorney is not liable 
 for costs in such a case, and if he chose to pay them, it was a 
 voluntary act on his part. 
 
 In our opinion, the only damages which can be recovered in 
 this case are compensatory, merely, and such as would naturally 
 and in the order of things flow from the delay ; and these, under 
 the facts presented in this case, would be the value of his time 
 for the period covered by the delay, which is to be measured, not 
 by the largest sums he has earned for such time, nor by the small- 
 est, but by an average of what he has earned for at least a year 
 immediately preceding the time of the occurrence. Walker v.
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 391 
 
 Erie R. Co., 63 Barb. 260. Now, as to such value, the only evi- 
 dence in the case is the following testimony given by the plain- 
 tiff: 
 
 ' ' Q. Wliat were your services reasonably worth for the time ? 
 A. Depending on the kind of case it is — from $50 to $100 a day. 
 Q. Do you consider $75 a reasonable compensation a day? 
 A. I do." 
 
 This clearly does not have reference to the plaintiff's average 
 earnings for any given period of time, but is a mere estimate of 
 what he might have charged under certain circumstances, "de- 
 pending on the kind of case" he might have had, and is not a 
 sufficient basis for determining the value of such time. We 
 therefore think the judgment should be reversed, and a new trial 
 ordered, with costs to the appellant to abide the event. 
 
 Judgment reversed and new trial ordered, with costs to appel- 
 lant to abide event. 
 
 Freedman, p. J., concurs. Gildersleeve, J., takes no part. 
 
 GILLESPIE 1-. BROOKLYN HEIGHTS R. R. CO. 
 
 New York, 1904. 178 K Y. 347. 
 
 Appeal from Supreme Court, Appellate Division, Second 
 Department. 
 
 Action by Elizabeth S. Gillespie against the Brooklyn Heights 
 Railroad Company. From a judgment of the Appellate Divi- 
 sion affirming a judgment for defendant, plaintiff appeals. 
 
 On the 26th of December, 1900, the plaintiff, who was a prac- 
 ticing physician, boarded one of the defendant's cars at the 
 comer of Nostrand avenue and Fulton street at about 10 :20 
 in the morning. As to what thereafter occurred the plaintiff 
 testified : "I know who the conductor was on that car : Con- 
 ductor AVright. He came to collect my fare just a few minutes 
 after I got on the car. I gave him a twenty-five cent piece, and 
 said to him, *A transfer, please, to Reid avenue.' Just at that 
 moment a lady on the opposite side called to him. He crossed, and 
 he went to punch a transfer, and I thought it was mine, and I 
 said to him, 'Please don't do that until I speak with you.' He 
 paid no attention. After he gave the lady her transfer, I said to 
 him : ' Won 't you please come here ? I wish to speak to you about 
 the transfer?' So he came across very growly and roughly, and 
 wanted to know, 'What is the matter with you?' I said, 'Won't
 
 392 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 you please tell me — I don't know uiueh about tliosc streets away 
 up here — which would be the nearest, lieid avenue or Sum- 
 ner avenue, to Stuyvesant avenue.' lie said, 'We don't have 
 any Keid avenue transfers; we transfer at Sumner avenue.' 
 'Well,' I said then, '1 thank you; please give me a transfer for 
 Sumner avenue and my change ; ' and he actually hollowed at 
 me, 'What change?' I said, 'The money I gave you, twenty- 
 five cents ; and 1 want my change ; ' and he put his hands in 
 his pocket, and he pulled out a whole handful of pennies or 
 nickels. He said, ' Do you see any twenty-live cents there ? ' He 
 said: 'It is the likes of ye. You are a deadbeat. You are a 
 swindler. I know the likes of ye.' Me said, 'You didn't give 
 me twenty-five cents. ' The lady that sat next to me set the con- 
 ductor right. She said to him, 'I am sure, sir, she gave you a 
 quarter of a dollar; I saw her give it to you;' and he turned, 
 'Well, perhaps you are a friend of hers.' Then he said that 
 deadbeats like me, he knew that every day they were traveling 
 on the cars; he knew the swindlers and the deadbeats. 'But you 
 can't deadbeat me. I know you. You belong to them;' and he 
 said then, 'Why, only here the other day I had just such a 
 woman as you trying to deadbeat me out of money;' and I said, 
 'I want my change, and I don't want such insolence.' Then he 
 walked back, and two gentlemen got on the car, and he called 
 the attention of those gentlemen to me, and said, pointing to me — 
 I went to the door, and he was telling them how I was trying to 
 swindle him. 'But,' he said, 'I know them. They are all dead- 
 beats. She can't beat me.' I said to him, 'Look here, sir; I 
 know President Rossiter, and I shall make a complaint of you ; ' 
 and he came over close to me. He said, 'Ah, the likes of you,' 
 he said. 'You couldn't make a complaint to President Rossiter,' 
 he said. 'I have been on this road too long for you to have any 
 authority with him; no, no.' 'Well,' I said, 'I shall tell him,' 
 and I went back and sat down." The plaintiff further and in 
 substance testified that she noticed that there was a smell of 
 whiskey in the conductor's breath; that he did not give her her 
 change at all; that he gave her no transfer; that he said nothing 
 except merely that he had nothing to do with her, and that "I 
 was a deadbeat and a swindler." She then testified as to her 
 efforts to see President Rossiter ; that when she reached his office 
 she was about four miles from home ; that she walked that dis- 
 tance because she had no money with which to pay her fare ; that
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 393 
 
 she became sick, was confined to the bed for two days, and as to 
 its effect upon her business. All this evidence was undisputed. 
 At the close of the plaintiff's case the defendant made a motion 
 for a dismissal of the complaint, and the court said : ' ' The allega- 
 tion of the complaint is that it was done maliciously by the 
 servant of the corporation, so that takes it out of the action 
 against the corporation anyway, so far as the slander part of it 
 is concerned. The only question now is whether she is entitled 
 to recover the amount that she paid for the fare." The plaintiff 
 claimed she was entitled to recover more. The court thereupon 
 said: "On the testimony as it stands they [the company] did 
 receive it. It is uncontradicted now that they did receive it. I 
 think I will direct a verdict for the twenty cents if you [refer- 
 ring to the defendant's counsel] want to." The plaintiff ex- 
 cepted to the direction of a verdict, and asked to go to the jury 
 "upon the facts in the case, upon the wrong and the wrongful 
 detention of this woman's money, and the suffering occasioned by 
 it, ' ' and the court directed a verdict for the plaintiff for 20 cents, 
 and held that that was the extent to which the railroad company 
 was liable, and that "the other damages, if any have grown out 
 of it, are not the proximate result of the act of the conductor." 
 The verdict was directed with the consent of the defendant's 
 counsel. 
 
 Martin, J. The principal and practically the only, question 
 involved upon this appeal is whether the plaintiff was entitled to 
 recover for the tort or breach of contract proved an amount in 
 excess of the sum she actually overpaid the defendant's con- 
 ductor. Confessedly, the plaintiff was a passenger on the de- 
 fendant's car, and entitled to be carried over its road. That at 
 the time of this occurrence the relation of carrier and passenger 
 existed between the defendant and the plaintiff is not denied. 
 The latter gave the conductor a quarter of a dollar from which 
 to take her fare. He received it, but did not return her the 20 
 cents change to which she was entitled. She subsequently asked 
 him for it, when he, in an abusive and impudent manner, not 
 only refused to pay it, but also grossly insulted her by calling 
 her a deadbeat and a swindler, and by the use of other insulting 
 and improper language, even after a fellow passenger had in- 
 formed him that she had given him the amount she claimed. In 
 this case there was obviously a breach of the defendant's con- 
 tract and of its duty to its passenger. It was its dntv to receive
 
 394 DAMAGES IX ACTIONS ON CONTRACTS. 
 
 any coin or bill not in excess of the amount permitted to be 
 tendered for fare on its car imder its rules and regulations, and 
 to make the change, and return it to the plaintiff, or person 
 tendering the money for the fare. That certainly must have 
 been a part of the contract entered into by the defendant, and the 
 refusal of the conductor to return her change was a tortious act 
 upon his part, performed by him while acting in the line of his 
 duty as the d<^f L-ndant 's servant. To that extent, at least, the 
 contract between the parties was broken, and as an incident to 
 and accompanying that breach the language and tortious acts 
 complained of were employed and performed by the defendant's 
 conductor. 
 
 This brings us to the precise question whether, in an action to 
 recover damages for the breach of that contract and for the tor- 
 tious acts of the conductor in relation thereto, the conduct of such 
 employe and his treatment of the plaintiff at the time may be 
 considered upon the question of damages, and in aggravation 
 thereof. That the plaintiff suffered insult and indignity at the 
 hands of the conductor, and was treated disrespectfully and in- 
 decorously by him imder such circumstances as to occasion mental 
 suffering, humiliation, wounded pride, and disgrace, there can 
 be little doubt. At least the jury might have so found upon the 
 evidence before them. This question was treated on the argu- 
 ment as a novel one, and as requiring the establishment of a new 
 principle of law to enable the plaintiff to recover damages in 
 excess of the amount retained by the defendant's conductor which 
 rightfully belonged to her. In that we think counsel were at 
 fault, and that the right to such a recovery is established beyond 
 question, as will be seen by the authorities which we shall pres- 
 ently consider. The consideration of this general question in- 
 volves two propositions. The first relates to the duties of car- 
 riers to their passengers, and the second to the rule of damages 
 when there has been a breach of such duty. The relation be- 
 tween a carrier and its passenger is more than a mere contract 
 relation, as it may exist in the absence of any contract whatso- 
 ever. Any person rightfully on the cars of a railroad company 
 is entitled to protection by the carrier, and any breach of its 
 duty in that respect is in the nature of a tort, and recovery may 
 be had in an action of tort as well as for a breach of the con- 
 tract. 2 Sedgwick on Damages, 637. In considering the duties 
 ol carriers to their passengers, we find that the elementary writ-
 
 BREACH OP CONTRACT TO TRANSPORT PASSENGERS. 395 
 
 ers have often discussed this question, and that it has frequently 
 been the subject of judicial consideration. Thus, in Booth on 
 Street Railways, § 372, it is said: "The contract on the part of 
 the company is to safely carry its passengers, and to compen- 
 sate them for all unlawful and tortious injuries inflicted by its 
 servants. It calls for safe carriage, for safe and respectful treat- 
 ment from the carrier 's servants, and for immunity from assaults 
 by them, or by other persons, if it can be prevented by them. No 
 matter what the motive is which incites the servant of the carrier 
 to commit an improper act towards the passenger during the 
 existence of the relation, the master is liable for the act and its 
 natural and legitimate consequences. Hence it is responsible 
 for the insulting conduct of its servants, which stops short of 
 actual violence." In Hutchinson on Carriers, §§ 595, 596, the 
 rule is stated as follows : ' ' The passenger is entitled not onlj^ to 
 every precaution which can be used by the carrier for his per- 
 sonal safety, but also to respectful treatment from him and his 
 servants. From the moment the relation commences, as has been 
 seen, the passenger is, in a great measure, under the protection 
 of the carrier, even from the violent conduct of other passengers, 
 or of strangers who may be temporarily upon his conveyance. 
 * * * The carrier's obligation is to carry his passenger safely 
 and properly, and to treat him respectfully; and, if he intrusts 
 the performance of this duty to his servants, the law holds him 
 responsible for the manner in which they execute the trust. The 
 law seems to be now well settled that the carrier is obliged to 
 protect his passenger from violence and insult from whatever 
 source arising. He is not regarded as an insurer of his pas- 
 senger's safety against every possible source of danger, but he 
 is bound to use all such reasonable precautions as human judg- 
 ment and foresight are capable of to make his passenger's jour- 
 ney safe and comfortable. He must not only protect his pas- 
 senger against the violence and insults of strangers and co-pas- 
 sengers, but, a fortiori, against the violence and insults of his 
 own servants. If this duty to the passenger is not performed, if 
 this protection is not furnished, but, on the contrary, the pas- 
 senger is assaulted and insulted through the negligence or wilful 
 misconduct of the carrier's servant, the carrier is necessarily 
 responsible. And it seems to us it would be cause of profound 
 regret if the law were otherwise. The carrier selects his owti 
 servants, and can discharge them when he pleases, and it is but
 
 39() DAxMAGES IN ACTIONS ON CONTRACTS. 
 
 reasonable that ho should bo responsible for the manner in which 
 they execute their trust." In Thompson on Negligence, § 3186, 
 the learned writer, after stating the foregoing rule, adds: "The 
 carrier is liable absolutely, as an insurer, for the protection of 
 the passenger against assaults and insults at the hands of his 
 own servants, because he contracts to carry the passenger safely 
 and to give him decent treatment en route. Hence, an unlaw- 
 ful assault or an insult to a passenger by his servant is a viola- 
 tion of his contract by the very person whom he has employed to 
 carry it out. The intendment of the law is that he contracts 
 absolutely to protect his passenger against the misconduct of his 
 own servants whom he employs to execute the contract of car- 
 riage. The duty of the carrier to protect the passenger during 
 the transit from the assaults and insults of his own servants 
 being a duty of an absolute nature, the usual distinctions which 
 attend the doctrine of respondeat supericjr cut little or no figure 
 in the ease." Again, in Sehouler on Bailments, § 644, it is 
 said : ' ' Nor is it only good treatment from fellow passengers and 
 from strangers coming upon the car, vessel, or vehicle that each 
 passenger is entitled to, but he should be well treated by the 
 passenger-carrier himself, and all whom such carrier employs in 
 and about the vehicle in the course of the journey. If the gen- 
 eral doctrine of master and servant may be said to apply here, 
 it applies with a very strong bias against the master, even where 
 the servant's acts appear to be aggressive, wanton, malicious, 
 and, so to speak, such as one's strict contract of service or agency 
 does not readily imply. Such is the general construction, so long 
 as the offensive words and acts of a conductor, * * * oj. other 
 such servant complained of, were said or committed in the usual 
 line of duty, while, for instance, scrutinizing tickets and determ- 
 ining the right to travel, excluding offenders and trespassers, and 
 enforcing, or pretending to enforce, the carrier's rules aboard 
 the vehicle; and this whether the transportation of passengers 
 be by land or water." 
 
 Having thus considered a portion of the elementary authori- 
 ties relating to this question, we will now consider a few of the 
 many decided cases relating to the same subject. In Chamber- 
 lain V. Chandler, 3 Mason, 242, 245, Fed. Cas. No. 2,575, Judge 
 Story, who delivered the opinion of the court, in discussing the 
 duties, relations, and responsibilities which arise between the 
 carrier and passenger, said : " In respect to passengers, the case
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 397 
 
 of the master is one of peculiar responsibility and delicacy. Their 
 contract with him is not for mere shiprooni and personal exist- 
 ence on board, but for reasonable food, comforts, necessaries, and 
 kindness. It is a stipulation, not for toleration merely, but for 
 respectful treatment, for that decency of demeanor which con- 
 stitutes the charm of social life, for that attention which miti- 
 gates evils without reluctance, and that promptitude which ad- 
 ministers aid to distress. In respect to females it proceeds yet 
 farther; it includes an implied stipulation against general ob- 
 scenity, that immodesty of approach which borders on lascivious- 
 ness, and against that wanton disregard of the feelings which 
 aggravates every evil, and endeavors by the excitement of terror 
 and cool malignancy of conduct to inflict torture upon susceptible 
 minds. * * * It is intimated that all these acts, though 
 wrong in morals, are yet acts which the law does not punish ; that 
 if the person is untouched, if the acts do not amount to an assault 
 and battery, they are not to be redressed. The law looks on 
 them as unworthy of its cognizance. The master is at liberty to 
 inflict the most severe mental sufferings in the most tyrannical 
 manner, and yet, if he witholds a blow, the victim may be crushed 
 by his unkindness. He commits nothing within the reach of 
 civil jurisprudence. My opinion is that the law involves no 
 such absurdity. It is rational and just. It gives compensation 
 for mental sufferings occasioned by acts of wanton injustice, 
 equally whether they operate by way of direct or of conse- 
 quential injuries. In each case the contract of the passengers 
 for the voyage is, in substance, violated ; and the wrong is to be 
 redressed as a cause of damage."' In Knox^dlle Traction Com- 
 pany V. Lane, 103 Tenn. 376, it was held that an electric street 
 railway company was liable in damages to a passenger for the 
 injury to his feelings by the indecent and insulting language of 
 its employe, upon the ground, not of tort or negligence, but of 
 breach of its contract that obligates the carrier not only to trans- 
 port the passenger but to guaranty him respectful and courteous 
 treatment, and to protect him from violence and insult from 
 strangers and from its own employes ; that as to the latter, the 
 obligation of its contract is absolute ; and that it selects its agents 
 to perform its contract, and the carrier, and not the passenger, 
 must assume the responsibility for the acts and conduct of such 
 agents. In Cole v. Atlanta & AVest Point U. R. Co., 102 Ga. 474, 
 it was held that it was the unquestionable duty of a railroad com-
 
 398 DAMAGK.S IN ACTIONS ON CONTRACTS. 
 
 pany to protect a passenger against insult or injiuy from its 
 conductor, and that tlie unprovoked use by a conductor to a pas- 
 senger of opprobrious words and abusive language tending to 
 humiliate the passenger or subject him to mortiiication gives to 
 the latter a right of action against the company. In that case 
 it was said: '"The carrier's liability is not conlined to assaults 
 committed by its servants, but it extends also to insults, threats, 
 and other disrespectful conduct." In Goddard v. Grand Trunk 
 R. R. Co., 57 Me. 202, it was held that a common carrier of pas- 
 sengers is responsible for the misconduct of his servant towards 
 a passenger. In that case Walton, J., delivering the opinion of 
 the court, said: "The carrier's obligation is to carry his pas- 
 senger safely and properly, and to treat him respectfully, and, 
 if he intrusts the performance of this duty to his servants, the law 
 holds him responsible for the manner in which they execute the 
 trust. The law seems to be now well settled that the carrier is 
 obliged to protect his passenger from violence and insult, from 
 whatever source arising. * * * jje must not only protect 
 his passenger against the violence and insults of strangers and co- 
 passengers, but, a fortiori, against the violence and insults of 
 his own servants. If this duty to the passenger is not performed, 
 if this protection is not furnished, but, on the contrary, the pas- 
 senger is assaulted and insulted, through the negligence or the 
 willful misconduct of the carrier's servant, the carrier is neces- 
 sarily responsible ' ' — citing Howe v. Newmarch, 12 Allen, 55 ; 
 Moore v. Railroad, 4 Gray, 465 ; Seymour v. Greenwood, 7 Hurl. 
 & Nor. 354 ; Railroad v. Finney, 10 Wis. 388 ; Railroad v. Van- 
 diver, 42 Pa. 365 ; Railroad v. Derby, 14 How. (U. S.) 468 ; Rail- 
 way V. Hinds, 53 Pa. 512 ; Flint v. Transportation Co., 34 Conn. 
 554; Landreaux v. Bell, 5 La. [0. G.] 275; Railroad v. Blocher, 
 27 Md. 277. The decision in Southern Kansas R. R. Co. v. Hins- 
 dale, 38 Kan. 507, was to the effect that where a conductor, in 
 ejecting a pers<3n from a train, uses insulting or abusive lan- 
 guage, such person may recover damages therefor on account of 
 the injury to his feelings, but cannot, in an action for damages 
 for his expulsion, also receive damages because the words used 
 tended to bring him into ignominy and disgrace. So, in Craker 
 V. Chicago & N. W. R. R. Co., 36 Wis. 657, it was held that a 
 railroad company is bound to protect female passengers on its 
 trains from all indecent approach or assault ; and where a con- 
 ductor on the company's train makes an assault the company is
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 399 
 
 liable for compensator}^ damages. In Bryan v. Chicago, R. I. 
 & P. R. R. Co., 63 Iowa, 464, it was also held that an action by a 
 passenger on the defendant's road would lie for injuries sus- 
 tained from insolent, abusive, and offensive words spoken to her 
 by the conductor. In McGirmess v. Mo. Pac. Ry. Co., 21 Mo. 
 App. 399, the decision of the United States court in Chamber- 
 lain v. Chandler was followed, and the discussion of the court 
 in that ease closely followed the discussion by Judge Story, In 
 Spolm V. Missouri Pacific Railway Co., 87 Mo. 74, the court held 
 that the company was liable to its passengers for any violence 
 or insult from others while the relation of carrier and passenger 
 existed. See, also, ]\Ialecek v. Tower Grove & Lafayette R. R. 
 Co., 57 Mo. 17 ; Lou. & Nash. R. R. Co. v. Ballard, 85 Ky. 307 ; 
 Winnegar's Administrator v. Cent. Pass. Ry. Co., 85 Ky. 547; 
 Sherley v. Billings, 8 Bush, 147 ; Eads v. Metropolitan St. Ry. 
 Co., 43 ]Mo. App. 536; Block v. Bannerman, 10 La. Ann. 1; and 
 Coppin v. Braithwaite, 8 Jurist, pt. 1, 875. The duties arising 
 between a carrier and passenger have been several times dis- 
 cussed in this state, as in Stewart v. BrookljTi & Crosstown R. 
 R. Co., 90 N. Y. 588, 590, where it was said: "By the defendant's 
 contract with the plaintiff, it had undertaken to carry him safely 
 and to treat him respectfully ; and while a common carrier does 
 not undertake to insure against injury from every possible dan- 
 ger, he does undertake to protect the passenger against any in- 
 jury arising from the negligence or willful misconduct of its 
 servants while engaged in performing a duty which the carrier 
 owes to the passenger. * * * < The carrier 's obligation is to 
 carry his passenger safely and properly, and to treat him re- 
 spectfully, and, if he intrusts this duty to his servants, the law 
 holds him responsible for the manner in which they execute the 
 trust.' " Tht court then quoted with approval the decision in 
 Nieto V. Clark, 1 Cliff. 145, 149, Fed. Cas. No. 10,262, where it 
 was said: "In respect to female passengers, the contract pro- 
 ceeds yet further, and includes an implied stipulation that they 
 shall be protected against obscene conduct, lascivious behavior, 
 and every immodest and libidinous approach. * * * ^ com- 
 mon carrier undertakes absolutely to protect his passengers 
 against the misconduct of their own servants engaged in execut- 
 ing the contract." Subsequently, in Dwindle v. N. Y. C. & H. 
 R. R. R. Co., 120 N. Y. 117, 24, the same doctrine was held, and 
 the foregoing portion of the opinion in the Stewart Case was
 
 400 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 quoted and reaffirmed b.y this eourt. It was then added : "These 
 and niiinerous other eases hold that, no matter what the motive 
 is which incites the servant of the carrier to commit an imhiw- 
 ful or improper act toward the passenger during the existence of 
 the rehition oi carrier and passenger, the carrier is liable for the 
 act and its natural and legitimate consequences." Again, in 
 Palmeri v. .Manhattan R. Co., 133 N. Y. 261, it was held that 
 the corporation is liable for the acts of injury and insult by an 
 employee, although in departure from the authority conferred 
 or implied, if they occur in the course of the employment. In 
 that case the employee alleged that the plaintiif was a counter- 
 feiter and a common prostitute, placed his hand upon her, and 
 detained her for a while, but let her go without having her 
 arrested. The action was to recover damages for unlawful im- 
 prisonment, accompanied by the words alleged to have been 
 spoken. This court held she was entitled to recover. The judge 
 then said: "Though injury and insult are acts in departure 
 from the authority conferred or implied, nevertheless, as they 
 occur in the course of the employment, the master becomes re- 
 sponsible for the wrong committed." 
 
 The foregoing authorities render it manifest that the defend- 
 ant was not only liable to the plaintiff for the money wrongfully 
 retained by its conductor, but also for any injurj^ she suffered 
 from the insulting and abusive language and treatment received 
 at his hands. 
 
 This brings us to the consideration of the elements of damages 
 in such a case, and what may be considered in determining their 
 amount. Among the elements of compensatory damages for 
 such an injury are the humiliation and injury to her feelings 
 which the plaintiff suffered by reason of the insulting and 
 abusive language and treatment she received, not, however, in- 
 cluding any injury to her character resulting therefrom. She 
 was entitled to recover only such compensatory damages as she 
 sustained by reason of the humiliation and injury to her feelings, 
 not including punitive or exemplary damages. "Damages given 
 on the footing of humiliation, mortification, mental suffering, 
 etc., are compensatory, and not exemplary, damages. They are 
 given because of the suffering to which the passenger has been 
 MTongfulIy subjected by the carrier. The quantum of this suf- 
 fering may not, and generally does not, depend at all upon the 
 mental condition of the carrier's servant, whether he acted hon-
 
 BREACH OF CONTRACT TO TRANSPORT PASSENGERS. 401 
 
 estly or dishonestly, with or without malice. But, whatever view 
 is taken of this question, it is clear that, where the expulsion is 
 made in consequence of a mistake of another agent of the car- 
 rier — as in a ease where a previous conductor erroneously 
 punched the transfer check which he gave to the passenger so as 
 to read 2 -.40 p. m. instead of 3 :40 p. m., and, in addition to this, 
 the expulsion was accompanied by insulting remarks made to the 
 passenger in the presence of others, damages may be given, 
 founded on the humiliation and injur}- to the feelings of the pas- 
 senger." Thompson on Negligence, § 3288. The same doctrine 
 is laid down in Joj-ce on Damages, § 354. In Hamilton v. Third 
 Ave. R. R. Co., 53 N. Y. 25, where a passenger was ejected by the 
 conductor, who honestly supposed the fare had not been paid, 
 and no unnecessary force was used, it was held that the act of the 
 defendant's ser\'ant, being unlawful, rendered the defendant 
 liable for compensatory damages, including compensation for 
 loss of time, the fare upon another car, and a suitable recom- 
 pense for the injury done to the plaintiff 's feelings. In Eddy v. 
 Syracuse Rapid Transit R. Co., 50 App. Div. 109, it was held 
 that, where the plaintiff entered a car believing that his transfer 
 was valid, and was not negligent in failing to discover that it 
 had been punched erroneously, he was there lawfully, and en- 
 titled to recover compensatory damages, including the indignity, 
 humiliation, and injury to his feelings by the remarks of the 
 conductor and his wrongful ejection from the car. In Miller 
 V. King, 84 Hun, 308, 310, 32 N. Y. Supp. 332, it was held that 
 the conductor had no right to eject the plaintiff ; that his action 
 in doing so was unlawful, and that the plaintiff was entitled to 
 damages for the indignity and humiliation suffered thereby. See, 
 also, Sedgwick on Damages, § 865. In Jacobs v. Third Ave. R. 
 R. Co., 71 App. Div. 199, 202, it was held that the plaintiff was 
 entitled to recover compensatory damages, w-hich embraced loss 
 of time, the amount which the plaintiff was obliged to pay for 
 passage upon another car, and injury done to his feelings by 
 reason of the indignity which he WTongfully suffered. The same 
 doctrine was held in Ray v. Cortland & Homer Traction Co., 
 19 App. Div. 530. See, also, Pullman's Palace Car Co. v. King, 
 99 Fed. 381. In Shepard v. Chicago, R. I. & P. R. R. Co., 77 
 Iowa, 54, the court charged the jury: "When a passenger is 
 wrongfully compelled to leave a train and suffer insult and 
 abuse, the law does not exactly measure his damages, but it au- 
 
 26
 
 •102 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 thorizes the jury to consider the injured feelings of the party, 
 the indignity endured, the humiliation, wounded pride, mental 
 sutfering, and the like, and to allow such sum as the jury may 
 say is right;" and it was held that his instruction was not sub- 
 ject to the objection that it authorizt'd.au allowance of exemplary 
 damages, because damages may properly be allowed for mental 
 suffering caused by indignity and outrage, and such damages 
 are compensatory, and not exemplary. In Craker v. Chicago & 
 N. W. R. R. Co., 36 Wis. 657, it was held that in actions for per- 
 sonal torts the compensatory damages which may be recovered 
 of the principal for the agent's act include not merely the plain- 
 tiff's pecuniary loss, but also compensation for mental suffering, 
 and that in awarding compensatory damages in such cases no 
 distinction is to be made between other forms of mental suffering 
 and that which consists in a sense of wrong or insult arising from 
 an act really or apparently dictated by a spirit of willful injus- 
 tice, or by a deliberate intention to vex, degrade, or insult. In 
 Cole V. Atlanta & West Point R. R. Co., 102 Ga. 474, it was held 
 that, even where there was no actual assault, but the company 
 has failed in its duty to protect its passenger from insult, abuse, 
 and ill treatment, the plaintiff is entitled to recover damages for 
 the pain and mortification of being publicly denounced as a dead- 
 beat, and in that case it was said : ' ' While this was a wanton act 
 of commission by a servant of the company, it was also a negli- 
 gent omission on the part of the servants to perform towards the 
 plaintiff a duty imposed by law upon their master." Humilia- 
 tion and indignity are elements of actual damages, and these 
 may arise from a sense of injury and outraged rights in being 
 ejected from a railroad train without regard to the manner in 
 which the ejection was effected, though only done through mis- 
 take. Louisville & Nashville R. R. Co. v. Hine, 121 Ala. 234. 
 Where unnecessary violence was used in ejecting a passenger 
 from a train, he is entitled to damages for the direct consequences 
 of the wrong, including as well physical pain as mental suffering 
 resulting from accompanying insults, if any. Texas Pacific R. 
 R. Co. V. James, 82 Tex. 306. A conductor of a railroad com- 
 pany represents the company in the discharge of his functions, 
 and being in the line of his duty in collecting the fare or taking 
 up tickets, the corporation is liable for any abuse of his author- 
 ity, whether of omission or commission. In that case the court 
 charged that "in estimating damages they might take into con-
 
 BREACPI OF CONTRACT TO TRANSPORT PASSENGERS. 403 
 
 sideration the indignity, insult, and injury to plaintiff's feelings 
 by being publicly expelled," and it was held proper. S. K. R. 
 R. Co. V. Rice, 38 Kan. 398. Damages may be properly allowed 
 for mental suffering caused by indignity and outrage, whether 
 connected with physical suffering or not; and such damages are 
 compensatory, and not exemplary. Shepard v. Chicago, R. I. 
 & P. R. R. Co., 77 Iowa, 54. Where the plaintiff, holding a ticket, 
 was wrongfully threatened with expulsion from the cars, charged 
 with attempting to ride without paying therefor, and paid his 
 fare rather than to be ejected, it was held that he was entitled to 
 recover damages for the humiliation suffered and indignity done 
 him by such action on the part of the conductor. Penn. Co. v. 
 Bray, 125 Ind. 229. Where a passenger is expelled from a train, 
 and without fault on his part, he may recover more than nominal 
 damages, although he has suffered no pecuniary loss or received 
 actual injury to the person by reason of such expulsion ; and the 
 jury, in estimating the damages, may consider not only the an- 
 noyance, vexation, delay, and risk to which the person was sub- 
 jected, but also the indignity done him by the mere fact of his 
 expulsion. Chicago & Alton R. R. Co. v. Flagg, 43 111. 364. A 
 person wrongfully ejected from a train is entitled to recover 
 such damages as he may have sustained by the delay occasioned 
 by the expulsion, and all the additional expenses necessarily in- 
 curred thereby, as well as reasonable damages for the indignity 
 to which he was subjected in being expelled from the train. Penn. 
 R. R. Co. V. Connell, 127 111. 419. Where there was a wrongful 
 expulsion of a passenger from the car, although unaccompanied 
 by any physical force or violence, it is actionable, and in such a 
 case the sense of wrong suffered and the feeling of humiliation 
 and disgrace engendered is an actual damage for which the in- 
 jured party may recover compensation, such damages being com- 
 pensatory, and not exemplary. Willson v. Northern Pacific R. R. 
 Co., 5 Wash. 621. See, also, G. C. &. S. F. R. R. Co. v. Copeland, 
 17 Tex. Civ. App. 55; Railroad Co. v. Goben, 15 Ind. App. 123; 
 Cooper v. Mullins, 30 Ga. 146 ; Railroad Co. v. Deloney, 65 Ark. 
 177 ; Railroad Company v. Dickerson, 4 Kan, App. 345. 
 
 After this somewhat extended review of the authorities bear- 
 ing upon the subject, we are led irresistibly to the conclusion 
 that the defendant is liable for the insulting and abusive treat- 
 ment the plaintiff received at the hands of its servant, that she 
 is entitled to recover compensatory damages for the humiliation
 
 404 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 and injury to her foolings ooeasionotl thoreby, and that the trial 
 court erred in directing a verdict for the phiintift' for 20 cents 
 only, and in refusing to submit the case to the jury. 
 
 The judgments of the AppeUate Division and trial court should 
 be reversed, and a new trial granted, with costs to abide the event. 
 
 Gray, J. (dissenting). I dissent, because I think it is extend- 
 ing unduly the doctrine of a common carrier's lialiility in making 
 it answerable in damages for the slanderous words spoken by one 
 of its agents. 
 
 Bartlett, Haigiit, and Citllen, J. J., concur with Martin, 
 J. Parker, C. J., and O'Brien, J., concur with Gray, J. 
 
 Judgments reversed, etc. 
 
 5. Contract for Board and Rooms. 
 WILKINSON V. DA VIES. 
 
 New York, 1894. 146 N. Y. 25. 
 
 Haight, J. This action was brought to recover for board and 
 lodging furnished by the plaintiff to the defendant's intestate, 
 Henry E. Davies. It appears that the plaintiff let to Davies 
 rooms on the second floor of her residence, No. 34 West Fifty- 
 First street, in the city of New York, consisting of a parlor, two 
 bedrooms, and connecting bath, for the occupancy of himself and 
 family, consisting of a wife and son, from the 5th day of Novem- 
 ber, 1890, to the 1st day of June, 1891, with table board, for the 
 sum of $70 per week, with no deduction in case of absence ; that 
 Davies entered into possession of the premises at the time men- 
 tioned, and continued until Thanksgiving Day, at which time he 
 abandoned the premises and went away. The premises remained 
 vacant until the 1st of January, at which time the plaintiff relet 
 them to four people, for $75 per week. Davies paid for the time 
 that he occupied the premises, and no longer. A verdict was 
 directed in favor of the plaintiff for the time that the premises 
 remained vacant, at $70 per week, the contract price. 
 
 The appellant contends that an improper measure of damages 
 was adopted, and that all that the plaintiff could properly re- 
 cover under the circumstances were the profits she would have 
 made had Davies carried out his contract. This would, doubtless,
 
 CONTRACT FOR BOARD AND ROOMS. 405 
 
 be the rule as to the measure of damages were it not for the pro- 
 visions of the contract that no deduction should be made in case 
 of absence. Here we have an express provision fixing the term, 
 the amount to be paid per week, without deduction, etc. Under 
 such a contract, we think the price agreed upon becomes the 
 proper measure of damages. In this connection it is further con- 
 tended that the provision, "with no deduction in case of ab- 
 sence, ' ' should be construed to mean that there should be no de- 
 duction so long as Davies kept his agreement, but this construc- 
 tion would permit Davies to avoid the provisions of the contract 
 by his own breach thereof, and such it does not appear to us w^as 
 the intention of the parties. But suppose we should so construe 
 it. We find no evidence in the record that Davies ever termi- 
 nated the contract, or that he gave notice that he would no longer 
 occupy the premises. He left and went away, it is true, but he 
 might have returned the next day, the next week, or even the 
 next month, and continued his occupancy of the premises; and 
 the plaintiff in the meantime was required to keep his rooms 
 ready for him. Under such circumstances, it would appear to be 
 unjust to deprive the plaintiff of the benefit of her contract. 
 
 It further appears that upon the trial the plaintiff offered to 
 show her profits from the people that occupied the premises after 
 the 1st of January, and as to whether they were greater or less 
 than that which she would have derived from Davies had he 
 continued to occupy them. This was objected to by the defend- 
 ant, without stating any grounds for the objection, and the same 
 was sustained. She further attempted to show what it would 
 have cost her per week to provide table board for Davies and his 
 family. This was also objected to by the defendant, and the evi- 
 dence was excluded. Had this evidence been received, it might 
 have appeared that the plaintiff's profits from the four boarders 
 after the 1st of January were the same as they would have been 
 had Davies and his family continued to occupy the premises, and 
 that the planitiff's expenses in providing table board for Davies 
 and his family were $15 or $20 per week, for which a deduction 
 might have been made from the contract price of $70 per week. 
 But the defendant interposed an objection to this evidence, and 
 caused it to be excluded. After so excluding it, we think he is 
 in no position to insist that the plaintiff's recovery be limited to 
 her profits. As we have seen, no ground was stated for the oT)- 
 jeetions to the evidence. The complaint was in due form to re-
 
 406 DAMAGES IN ACTIONS ON CONTRACTS. 
 
 cover for board and lodging. If, upon the trial, the plaintiff 
 couseuted to forego her elaim to the contract price of $70 per 
 week, without deduction in case of absence, and permit a deduc- 
 tion therefrom of her costs for table board, the defendant ought 
 not to complain, or be permitted to defeat her right to recover, 
 because the complaint did not demand that particular measure 
 of relief. The judgment should be affirmed, with costs. 
 All concur. 
 
 Judgment affirmed.
 
 VI. DAMAGES IN ACTIONS FOR WRONGS. 
 1. Negligence. 
 RICHMOND GAS CO. v. BAKER. 
 
 Indiana, 1897. 146 Ind. 600. 
 
 The plaintiff brought this action to recover damages for per- 
 sonal injuries caused by an explosion of artificial gas in her 
 home, caused by the negligence of the defendant company. A 
 verdict of $4,600 was recovered. 
 
 Howard, J. * * * Upon the subject of damages the court 
 gave to the jury two instructions, the first of which is admitted 
 to be correct, and the second of which is complained of by ap- 
 pellants as being erroneous. The two instructions are as follows : 
 
 "No. 15. If you find a verdict for the plaintiff, you should 
 award her a sum sufficient to fairly compensate her for all dam- 
 ages, if any, that it is shown, by a fair preponderance of the 
 evidence, she has sustained. In estimating such damages, you 
 should consider the nature and extent of her physical injuries, if 
 any, whether permanent or otherwise ; the effect produced there- 
 by, and the probable effect that such injuries will directly pro- 
 duce, if any, upon her general health, and all physical pain and 
 suffering occasioned thereby; expenses incurred for medical at- 
 tention, if any, shown by the evidence. And if you find from the 
 evidence that she has sustained any permanent disability, having 
 considered the nature of the same, you may award her such 
 prospective damages on account thereof as in your opinion the 
 evidence may warrant you in believing sne will sustain, if any, 
 as the direct result thereof in the future. And you have the 
 right, in fixing her damages, to consider her present age, and the 
 probable duration of her life. 
 
 "No. 16. If, as a direct result of the injuries, if any, received 
 by the plaintiff, her expectancy of life has been shortened, this 
 circumstance may be taken into consideration by the jury, 
 should they find a verdict in her favor, in estimating the dam- 
 
 407
 
 -tUS DAMAGES IN ACL'ION.S FOR WKONU.S. 
 
 ages, if any. that they may award to her ; and on this point the 
 jury may consider all facts, proved by a fair preponderance of 
 the evidence, as to the plaintiff's physical condition, health, 
 vigor, activity, and the daily work done by her, prior to the said 
 explosion." 
 
 The first charge above given is full and complete, covering 
 every element of damage suggested by the evidence, unless it 
 should be damages for the shortening of life, as referred to in the 
 second charge. It is as to this question that counsel differ. 
 Counsel for appellant contend that instruction No. 16 is errone- 
 ous, for the reason that this is a common-law action, and the 
 common law does not admit of compensation in money for the 
 taking of human life, or the shortening of its duration. * * * 
 None of the cases cited by the appellee, as we believe, sustain 
 the contention of counsel. In general these cases reach to this 
 that in an action for injury by the wrong of another the actual 
 condition of the injured person, as caused by the accident, 
 may be considered for the purpose of determining the amount of 
 damages, present and prospective, which should be awarded. 
 And, if the condition of the injured person is such that a shorten- 
 ing of life may be apprehended, this may be considered, in deter- 
 mining the extent of the injury, the consequent disability to 
 make a living, and the bodily and mental suffering which will re- 
 sult. This, however, falls far short of authorizing damages for the, 
 loss or shortening of life itself. The value of human life cannot, 
 as adjudged by the common law, be measured in money. It is, 
 besides, inconceivable that one could thus be compensated for the 
 loss or shortening of his own life. And, if any one else could 
 maintain an action for the death of the injured person, it must 
 be because the person bringing such action would be able to show 
 pecuniary loss or damage to himself by reason of the death of 
 such other person. Of that nature are various stautory actions 
 authorized to be brought by, or for the benefit of, persons re-^ 
 
 garded as having a pecuniary interest in the lives of others. 
 * * * 
 
 The judgment is reversed, with instructions to grant a new 
 trial.
 
 NEGLIGENCE, 409 
 
 HUBBARD V. N. Y, X. H. & H. R. CO. 
 
 Connecticut, 1898. 70 Conn. 563. 
 
 Action to recover damages for destruction of an ice house by 
 fire communicated by defendant's locomotive engine. 
 
 Andrews, C. J. There is error in the plaintiff's appeal. In 
 any case where it is established that a party is entitled to recover 
 damages for an injury done to his property without malice, the 
 quantum of damages is to be computed as of the day the injury 
 was done. In this case, it being conceded by the default that the 
 plaintiff was entitled to have some amount of damages, the only 
 question on which the court could decide was, how much? In 
 respect to the ice this question could be answered by ascertaining 
 the number of tons there were in the houses on the day the fire 
 took place, and its market price on that day. The court found 
 the price to be, on the day of the fire, 80 cents per ton. But. in 
 ascertaining the number of tons for which the plaintiff' is to be 
 paid, the court, instead of taking the number of tons then in the 
 houses, has taken only the number of tons which it estimated 
 would remain on hand at the end of the next summer. This is 
 error. The plaintiff is entitled to be paid for all the ice then in 
 the ice houses, — less what was saved, if any, — at its then mar- 
 ket price. Parrott v. Railroad Co., 47 Conn. 575 ; Regan v. Rail- 
 road Co., 60 Conn. 143 ; Hurd v. Hubbell, 26 Conn. 389 ; Cook v. 
 Loomis, Id. 483 ; Oviatt v. Pond, 29 Conn. 479 ; 2 Sedg. Meas. 
 Dam. 368. The defendant, having destroyed the plaintiff's 
 property on a certain day, cannot justly be exempted from pay- 
 ment by alleging or even showing that, if it had not destroyed 
 the property, the plaintiff' subsequently would have lost it in 
 some other way. * * * 
 
 There is error on the plaintiff's appeal, and a new trial is 
 granted. There is also error in the order expunging the mo- 
 tion filed by the defendant. The order is reversed. The motion 
 should be restored to, and be made a part of, the files of the case. 
 The other judges concurred. 
 
 DONAHUE V. KEYSTONE GAS CO. 
 
 New York, 1904. 90 App. Div. 386. 
 
 Stover, J. This is an action brought to recover damages for 
 injury to premises of plaintiff through the destruction of orna-
 
 •ilU DAMAGES IN ACTIONS FOR WRONGS. 
 
 inontal shado trees in front of his premises on the west side of 
 Union street in the eity of Olean, by reason of leakage of gas 
 from the mains of defendant, which were hiid in the street in 
 front of plaintiff's premises, and near the trees which were 
 destroyed. * * * 
 
 Some question has been made as to the rule of damages which 
 was adopted in this case, but we think the correct rule was stated 
 by the trial judge, viz., the difference between the value of the 
 property with the growing trees and its value with the trees re- 
 moved. It is the value of the right of w^hich the plaintiff has been 
 deprived, namelj^ the enjoyment of the premises with the trees, 
 and to the extent that he has been deprived he is entitled to re- 
 cover. If the value of his property has been depreciated by the 
 wrongful act of the defendant he is entitled to recover to the ex- 
 tent that it has been depreciated. 
 
 The rule of damages has been laid down in many adjudicated 
 cases that where property has been interfered with and has depre- 
 ciated in value and without the destruction of the fee, the owner 
 is entitled to recover the difference in the value of the premises 
 before and after the interference. 
 
 Reference has been made to the case of Halleran v. Bell Tele- 
 phone Co. (64 App. Div. 41), but we do not deem the doctrine 
 of that case inconsistent with the views above expressed. The 
 basis of that decision was the failure of evidence showing any in- 
 terference with the enjoyment of the abutter's premises, and the 
 opinion being based upon the fact that his right was not, to any 
 extent, interfered with, the finding of fact there being "That 
 the telephone poles do not interfere in any degree with any right 
 which the plaintiff has as an abutting owner." 
 
 "We find no error and the judgment and order should be 
 affirmed. 
 
 All concur. 
 
 Affirmed in 181 New York 317. 
 
 KRONOLD V. CITY OF NEW YORK. 
 
 Xew York, 190G. 186 N. Y, 40. 
 
 "Werner. J. This action was brought to recover damages for 
 personal injuries sustained by the plaintiff and alleged to have 
 been caused by the negligent failure of the defendant to keep in 
 proper repair a crosswalk at the intersection of Elm and "Walker
 
 NEGLIGENCE. 411 
 
 streets in the borough of Manhattan. For the purposes of this 
 discussion we may assume, although we do not decide, that the 
 defendant's alleged negligence and the plaintiff's freedom from 
 contributory negligence were sufficiently established to present 
 questions of fact to be disposed of by a jury, and we shall con- 
 fine our discussion to the single question v/hether the learned 
 trial judge properly refused to submit to the jury the plaintiff's 
 ^alleged loss of earnings or income as an element of the damages 
 which should be awarded to him if he is entitled to a verdict. 
 
 At the close of the evidence the learned trial judge announced 
 that he would not submit to the jury the plaintiff 's claim for loss 
 of income, because it appeared from his own testimony that he 
 had $1,000 of capital invested in his business, and there was no 
 evidence to show how much of his income had been derived from 
 his invested capital and how much from his personal efforts. 
 When this ruling had been made, plaintiff's counsel asked per- 
 mission to put the plaintiff on the stand for the purpose of in- 
 terrogating him as to the reasonable value of his services, or 
 what compensation similar services would command. This re- 
 quest was refused, and plaintiff's counsel took an exception. The 
 case was then submitted to the jury under a charge in which 
 the income or earnings of the plaintiff from his personal efforts 
 was distinctly excluded from consideration as an element of any 
 damages which might be awarded to him. At the conclusion of 
 the main charge plaintiff's counsel requested the court to instruct 
 the jury that it was for them to consider "the nature of the busi- 
 ness in which the plaintiff was engaged, its extent, and the par- 
 ticular part therein transacted by him," and the court replied: 
 ' ' I charge that, with the statement that you are not to take into 
 consideration his earnings as testified to by him, for the rea- 
 son that he stated that he had capital invested. ' ' To this modifi- 
 cation of his request the plaintiff's counsel excepted, and later 
 he excepted generally to that portion of the charge in which the 
 jury were instructed to disregard the testimony of the plaintiff 
 as to his earnings in his business. These exceptions, when con- 
 sidered in the light of the evidence, are sufficiently definite, we 
 think, to present for our review the question whether the rul- 
 ings of the court above adverted to present legal error or not, 
 and a brief synopsis of the plaintiff's evidence on this subject 
 will serve to fix the point of view from which that question 
 should be considered.
 
 412 DAMAGES IN ACTIONS FOR WRONGS. 
 
 Prior to the aecidont the plaintiff had been engaged in the 
 business of selling Swiss embroideries. He took orders from 
 shirt waist manufacturers, Vantine and others who dealt in such 
 articles. These sales were made from designs or drawings pro- 
 cured from sample embroideries. No considerable stock of these 
 embroideries seems to have been carried by the plaintiff, and 
 the capital which he had invested in his business was approxi- 
 mately $1,000. His office expenses, which included rent and the 
 wages of an office boy, did not exceed $600 a year. His net in- 
 come was about $3,000 a year, and it is fairly to be inferred 
 from his testimony that this was derived chiefly from his per- 
 sonal efforts as a canvasser or salesman, for he stated: "I really 
 made my living only with my legs and maybe a little head also, 
 but most my legs. Of course, I have been laid down ; then I had 
 to stop. I did not employ any salesmen or drummers or any- 
 think like that. I was myself a salesman and a drummer ; out of 
 towTi sometimes." When we add to this brief, but comprehen- 
 sive, statement the suggestion that the amount of the plain- 
 tiff's income as compared with the so-called capital invested is, 
 of itself, an almost conclusive argument against the theory that 
 the plaintiff was engaged in a business which yielded profits from 
 capital invested, it will readily be seen that this case should be 
 classed as one involving the investment of an insignificant capital 
 as a mere incident or vehicle to the performance of services 
 almost, if not quite, purely personal in their nature. We so re- 
 gard the case on principle, but this view is also well sustained by 
 authority. In Pill v. Brooklyn Heights R. R. Co., 6 Misc. Rep. 
 267, affirmed 148 N. Y. 747, where the plaintiff was a custom 
 corset maker who maintained a workshop and employed two girls 
 to help her, it was held competent to prove loss of earnings re- 
 sulting from the injuries on account of which the suit was 
 brought. In Ehrgott v. Mayor, etc., of New York, 96 N. Y. 264, 
 also an action to recover damages for personal injuries, the plain- 
 tiff was a book canvasser and was permitted to show his earnings 
 prior to his injuries. There the court, speaking through the late 
 Earl, J., illustrated the plaintiff's position by likening it, so far 
 as personal earnings were concerned, to the occupations of the 
 lawyer, the physician, and the dentist, whose earnings are the 
 result of their professional skill without capital invested. The 
 lawyer has to have books, and. if he is busy enough, he employs 
 clerks to assist him. The physician puts money into instruments,
 
 NEGLIGENCE. 413 
 
 books, and medicines. The dentist invests in gold leaf, artificial 
 teeth, and tools. And yet their incomes, which, to some extent, 
 at least, are the product of such investments and expenditures, 
 are classified as personal earnings, the loss of which must be 
 considered as an element of damages in actions for personal in- 
 juries. To the same effect are Simonin v. N. Y., L. E. & W. R. R. 
 Co., 36 Hun, 214, where the plaintiff was a teacher of French ; 
 Nash V. Sharpe, 19 Hun, 365, where the plaintiff was a dentist ; 
 Lynch v. Brooklyn City R. R. Co. (Sup.) 5 N. Y. Supp. 311, 
 affirmed 123 N. Y. 657, the case of a midwife ; Thomas v. Union 
 Ry. Co., 18 App. Div. 185, where the plaintiff performed services 
 as gauger for a copartnership of which lie was a member; 
 Waldie v. Brookl;^Ti Heights R. R. Co., 78 App. Div. 557, the case 
 of a licensed pilot, and numerous other cases involving a variety 
 of occupations, in which the element of personal earnings has 
 been held to predominate over a small and purely incidental or 
 supplemental investment of capital. 
 
 The cases above cited, as well as the case at bar, are clearly dis- 
 tinguishable, we think, from Masterson v. Village of Mt. Vernon, 
 58 N. Y. 391, Marks v. Long Island R. R. Co., 14 Daly, 61, Boston 
 & Albany R. R. Co. v. O'Reilly, 158 U. S. 334, and other 
 cases relied upon by counsel for the respondent and the 
 courts below, bec.-ause these latter decisions are all based upon 
 facts which disclose such a preponderance of the business ele- 
 ment over the personal equation, or such an admixture of the 
 two, that the question of personal earnings could not be safely or 
 properly segregated from returns upon capital invested, in con- 
 sidering the damages to which the several plaintiffs claimed to 
 be entitled. 
 
 In the case at bar there was not only evidence which tended 
 properly to show that the plaintiff had sustained damages 
 through loss of personal services, but competent evidence bearing 
 upon the same subject was excluded, and we think the refusal of 
 the learned trial court to submit to the jury the former, as well 
 as its ruling excluding the latter, constitutes legal error, which 
 entitles the plaintiff to a new trial. In this view of the case we 
 deem it unnecessary to discuss other questions that may not bo 
 again presented. 
 
 The judgment below should be reverse3, and a new trial 
 granted, with costs to abide the event.
 
 414 DAMAGES IN ACTIONS POK WRONGS. 
 
 CuLLEN, C. J., and Vann, Willard Bartlett, TIiscock, and 
 CiiASE, J J., concur. O'Brien, J., absent. 
 
 Judgment reversed, etc. 
 
 BONDY V. N. Y. CITY R. R. CO. 
 
 New York, 1907. 107 X. Y. Supp. 151. 
 
 Erlanger, J. A car operated by the defendant collided with 
 the plaintiff's automobile, and this action was brought to re- 
 cover the damages sustained by reason of the collision. Upon 
 the question of the negligence of the defendant and freedom from 
 negligence of the plaintiff there was a conflict of evidence. The 
 court below found in favor of the plaintiff. The appellant urges 
 that the judgment is against the weight of evidence. An exam- 
 ination of the record does not support such contention. The 
 judgment was rendered for the sum of $500, the extreme limit 
 for which the court had jurisdiction. The items of damage 
 proven were $148 for repairs to the machine and the sum of 
 $69.70 for a new tire. The difference between the total of these 
 two items and the amount of the judgment is for the usable or 
 rental value of the automobile, which a witness testified was 
 $200 per week for a period of three weeks while the same was 
 being repaired. The plaintiff testified that he was the owner of 
 the machine, and that every time it was taken out it was used for 
 * ' healthy purposes and pleasure. ' ' The proof as to rental value 
 was objected to, and a motion was made to strike it out as irrele- 
 vant, immaterial, and not the proper measure of damage, which 
 motion was denied. 
 
 It is urged upon this appeal that such damages are not legally 
 recoverable upon the facts established in this case. That the use 
 of an automobile may, upon being shown to have been used for 
 the purpose of business or as a source of profit, have a marketable 
 value, or a value capable of being estimated without indulging 
 in mere conjecture, is undoubted; but nothing of the kind was 
 proved in the ease at bar. The plaintiff, so far as appears, did 
 not incur any expense in hiring a substitute for the three weeks 
 his machine was in the repair shop; nor is there any evidence 
 that it was a source of profit or income to him. The evidence 
 as to the rental value was limited to this particular machine, 
 and it was not shoAvn to be an ** article in constant and daily 
 use, whose usable value, being known and readily ascertained,
 
 NEGLIGENCE. 415 
 
 constitutes a proper element of damages." Volkmar v. Third 
 Ave. R. R. Co., 28 Misc. Rep. 141, 58 N. Y. Supp. 1021. None of 
 the cases cited by respondent upholds his contention. In those 
 eases the actual reasonable outlay for the rent of articles in 
 lieu of the injured articles was shown, as, for example, in Well- 
 man V. Minor, 19 Misc. Rep. 644, 44 N. Y. Supp. 417, the plain- 
 tiff proved the amount paid for a carriage in his business while 
 his damaged one was undergoing repairs, and in Moore v. Met. 
 St. Ry.Co., 84 App. Div. 613, 82 N. Y. Supp. 778, it M^as estab- 
 lished that the wagon injured was used in plaintiff's business. 
 The circumstances disclosed by the testimony in the case at bar 
 are somewhat similar to those in Foley v. 42d St., etc., Ry. Co., 
 52 Misc. Rep. 183, 101 N. Y. Supp. 780, where this court held 
 the plaintiff was not entitled to recover for alleged damages up- 
 on such proof. 
 
 Judgment reversed, and new trial ordered, with costs to ap- 
 pellant to abide the event, unless plaintiff will stipulate within 
 five days to reduce the judgment to $217.70 and appropriate 
 costs in the court below, in which event the judgment, as so 
 modified, will be affirmed, without costs of this appeal. 
 
 All concur. 
 
 "Where personal injuries result proximately from negligence or other 
 tort, the wrongdoer is liable for the damages actually sustained, al- 
 though they are increased by a tendency to disease on the part of the 
 person injured." McNamara v. Village of Clintonville. 62 Wis. 207. 
 So a judgment of $5,000 was sustained against a city for injuries to 
 plaintiff from a defective sidewalk, although plaintiff's physician did 
 not employ up-to-date remedies, f^elleck v. Janesville, 100 Wis. 157. 
 
 For a case where act of God, an extraordinary flood, cooperates with 
 negligence to produce injury, see Helbling v. Cemetery Co., 201 
 Pa. 171. 
 
 Where a widowed mother sues for the loss of services of her 
 minor daughter the question is "practically a business and commercial 
 question only, and the elements of affection and sentiment have no 
 place therein." A judgment for $9,500 was set aside as excessive. 
 McGarr v. Worsted Mills, 24 II. I. 447. 
 
 There can be no recovery for shock and fright caused by negligent 
 explosion of dynamite in a highway so that plaintiff's husband died 
 in two weeks. Huston v. -Borough of Freemansburgh, 212 Pa. 548. 
 
 "Where a tort has been committed, and injury may reasonably be 
 anticipated, the wrongdoer is liable for the proximate results of that 
 injury, although the consequences are more serious than they would 
 have been, had the injured person been in perfect health." Watson, 
 Damages, Sec. 195. Ross. v. G. N. Ry., 101 Minn. 122.
 
 416 DAMAGES IN ACTIONS I-\)K WRONGS, 
 
 Daiunsos in case of no;;li,i;oii('0 can 1)0 awardotl for nursing, medi- 
 cine, and doctor's bills. Jolmson v. 8t. Taul & W. Coal Co., 131 
 Wis. (!27. 
 
 For rule as to measure of daniaj:os in an action apiinst an attorney 
 at law for ne.i^li.wnco. see Vootli v. MclOachen. ISl N. Y. 2S. 
 
 AVlunv plaintiff's buildiu!; was injured by water leaking from a 
 canal owing to the negligence of the State, claimant may recover his 
 expenses of restoration and h)ss of rental during tlie period of repairs. 
 Slavin v. State of N. Y., 152 N. Y. 45; Connor v. State of New Yorlv, 
 152 i\. Y. 40. 
 
 Where property was injured by coal dust the measure of damages 
 is the cost of restoration. If the cost exceeds the value, in that event 
 the value is the measure of damages; besides this the actual loss in 
 rentals can be recovered. Harvey v. Susquehanna Coal Co., 201 Pa. 03. 
 
 See, for the rule of damages in cases of personal injuries through 
 negligence, Sullivan v. Boston El. R. K. 71 N. E. Rep. 90; Savage v. 
 Chicago R. Co., 238 111. 392; Yerkes v. N. P. R. R., 112 Wis. 184; 
 L. and N. R. R. v. Mount. 123 Ken. 593; Platz v. MeKean, 178 Pa. 601; 
 Brooks V. Rochester Railway Co., 156 N. Y. 244 ; Wineberg v. Du Bois, 
 209 Pa. 430. 
 
 (1) Actions Againut Common Carriers. 
 DENNY V. NEW YORK CENTRAL RAILROAD. 
 
 Massachusetts, 1859. 13 Gray, 481. 
 
 Action of tort, for damages to wool, delivered to defendant 
 as a common carrier, to be transported from the Suspension 
 Bridge at Niagara Falls to Albany. 
 
 Merrick, J. This action is brought to recover compensation 
 for damages alleged to have been sustained by the plaintiff in 
 consequence of an injury to a quantity of his wool delivered to 
 the defendants to be transported for him from Suspension Bridge 
 to Albany. It appears from the report that the wool, directed 
 to Boston, was received by them at the former, and carried to the 
 latter place, and was there safely deposited in their freight depot. 
 But it was not transported seasonably nor with reasonable 
 despatch. By their failure to exercise the degree of care and 
 diligence required of them by law, it was detained six days at 
 Syracuse, and consequently arrived at Albany so many days later 
 than it should regularly have been there. Whilst it was lying in 
 the defendant's freight depot in that city, it was submerged by 
 a sudden and violent flood in the Hudson River. This rise of the 
 water caused the alleged injury to the wool. 
 
 Upon the evidence adduced by the parties at the trial, three
 
 NEGLIGENCE. 41 7 
 
 questions of fact were submitted to the determination of the jury. 
 It is necessary now to advert only to the first of those questions ; 
 for the finding of the jury in relation to the second was in favor 
 of the defendants, and the verdict in relation to the third has on 
 their motion been already set aside as having been rendered 
 against the weight of evidence in the case. 
 
 In looking at the terms and language in which the action of 
 the jury in reference to the first of these questions is expressed, 
 it would perhaps, at first sight, seem that they had passed upon 
 and determined the precise point in issue between the parties, 
 namely, whether the wool was injured by reason of an omission 
 on the part of the defendants to exercise the care and diligence 
 in the transportation of the wool, which the law required of them 
 as common carriers. If this were so, it would have been a final 
 and conclusive determination. But upon a closer scrutiny of the 
 statements in the report, it appears that the jury, by their answer 
 to the question submitted to them, intended only to affirm, that 
 the defendants failed to exercise due care and diligence in the 
 prompt and seasonable transportation of the wool, and that by 
 reason of this failure and the consequent detention of the wool 
 at Syracuse, it was injured by the rise of water in the Hudson, 
 and thereb}^ sustained damage to which it would not have been 
 exposed if it had arrived at Albany as soon as it should have 
 done, because in that event it would have been taken away from 
 the defendants' freight depot, and carried forward to Boston 
 before the occurrence of the flood. And it was upon this ground 
 that the verdict was rendered for the plaintiff. This was so con- 
 sidered by both parties in their arguments upon the questions of 
 law arising upon the report. 
 
 It is therefore now to be determined by the court, whether the 
 defendants are, by reason and in consequence of their negligence 
 in the prompt and seasonable transportation of the wool, re- 
 sponsible for the injury which it sustained after it was safely de- 
 posited in their depot at Albany. And we think it is very plain 
 that, upon the well-settled principles of law applicable to the sub- 
 ject, they are not. 
 
 It is said to be an ancient and universal rule resting upon 
 obvious reason and justice, that a wrongdoer shall be held re- 
 sponsible only for the proximate and not for the remote eon- 
 sequences of his actions. 2 Parsons on Con. 456. The rule is not 
 limited to cases in which special damages arise ; but is applicable 
 
 27
 
 418 DAMAGES IN ACTIONS FOR WRONGS. 
 
 to every case in which damage results from a contract violated or 
 an injurious act committed. 2 Greenl. Ev. §256. 2 Farsous on 
 Con. 457. And the liabilities of eoiunion earriers, like persons in 
 other occupations and pursuits, are regulated and governed by 
 it. Story on Bailments, 586. Angell on Carriers, 201. IMorrison 
 V. Davis, 20 Peun. State R. 171. 
 
 In the last named case, it is said that there is nothing in the 
 policy of the law relating to common earriers, that calls for any 
 different rule, as to consequential damages, to be applied to them. 
 In that case may be found not only a clear and satisfactory state- 
 ment of the law upon the subject, but a significant illustration of 
 the rule which the decision recognizes and affirms. It was an 
 action against the defendants, as common carriers upon the Penn- 
 sylvania Canal. It appeared that their canal boat, in which the 
 plaintiff's goods were carried, was wrecked below Piper's Dam, 
 by reason of an extraordinary flood ; that the boat started on its 
 voyage ^vith a lame horse, and by reason thereof great delay was 
 occasioned in the transportation of the goods; and that, had it 
 not been for this, the boat would have passed the point where the 
 accident occurred, before the flood came, and would have ar- 
 rived in time and safety at its destination. The plaintiff insisted 
 that, inasmuch as the negligence of the defendants in using a 
 lame horse for the voyage occasioned the loss, they were therefore 
 liable for it. But the court, assuming that the flood was the 
 proximate cause of the disaster, held, that the lameness of the 
 horse, by reason of which the boat, in consequence of his inability 
 thereby to carry it forward with the usual and ordinary speed, 
 was exposed to the influence and dangers of the flood, was too 
 remote to make the defendants responsible for the goods which 
 were lost in the wreck. It was only, in connection with other 
 incidents, a cause of the final, direct, and proximate cause by 
 which the damages sought to be recovered were immediately oc- 
 casioned. 
 
 There is so great a resemblance between the circumstances 
 upon which the determination in that case was made, and 
 those upon which the question under consideration in this arises, 
 that the decision in both ought to be the same. In this case 
 the defendants failed to exercise due care and diligence, in not 
 being possessed of a sufficient number of efficient working engines 
 to transport the plaintiff's wool with the usual ordinary and 
 reasonable speed. The consequence of this failure on their part
 
 NEGLIGENCE. 419 
 
 was that the wool was detained six days at Syracuse. This was 
 the full and entire effect of their negligence, and for this they 
 are clearly responsible. But in all that occurred afterwards 
 there was no failure in the performance of their duty. There 
 was no delay and no negligence in any part of the transporta- 
 tion between Syracuse and Albany, and upon reaching the latter 
 place the wool was safely and properly stored in their freight 
 depot. It was their duty to make this disposition of it. They 
 had then reached the terminus of their road ; the carriage of the 
 goods was then complete ; and the duty only remained of making 
 delivery. The deposit of the wool in the depot was the only de- 
 livery which they were required to make ; and having made that, 
 their liabilities as carriers thenceforward ceased. It was there 
 to be received by the owner, or taken up by the proprietors of the 
 railroad next in course of the route to Boston. Norway Plains 
 Co. V. Boston & Maine Railroad, 1 Gray, 263. Nutting v. Con- 
 necticut Eiver Railroad, 1 Gray, 502. The rise of waters in the 
 Hudson, which did the mischief to the wool, occurred at a period 
 subsequent to this, and consequently was the direct and proxi- 
 mate cause to which that mischief is to be attributed. The 
 negligence of the defendants was remote ; it had ceased to operate 
 as an active, efficient, and prevailing cause as soon as the wool 
 had been carried on beyond Sj^racuse, and cannot therefore sub- 
 ject them to responsibility for an injury to the plaintiff's prop- 
 erty, resulting from a subsequent inevitable accident which was 
 the proximate cause by which it was produced. It is to the latter 
 only to which the loss sustained by him is attributable. 
 
 It follows from these considerations, that the verdict in the 
 plaintiff's behalf must be set aside, and a new trial be had; in 
 which he will recover such damages as he proves were the direct 
 consequence of the negligence of which the defendants may be 
 shown to have been guilty. 
 
 New trial ordered. 
 
 GREEN-WHEELER SHOE CO. v. CHICAGO, R. I. & P. Ry. 
 
 CO. 
 
 Iowa, 1906. I.IO Towa, 123. 
 
 Action to recover the value of two parcels of goods delivered 
 by plaintiff to defendant at Ft. Dodge, Iowa, one parcel to go to 
 Booneville, ISlo., and the other to Chanute, Kan., one nf which it
 
 420 DAMAGES IN ACTIONS FOK WRONGS. 
 
 is alleged was lost aud the other damaged by defendant's negli- 
 gence. The case was tried on an agreed statement of facts and 
 judgment was rendered for defendant. Plaintiff appeals. 
 
 McClain, C. J. In the agreed statement on which the case 
 was tried without other evidence being introduced, it is stipu- 
 lated that the defendant was guilty of negligent delay in the for- 
 warding of the goods of phiintiff from Ft. Dodge to Kansas City, 
 where they were lost or injured on ]\Iay 30, 1903, by a flood which 
 was so unusual and extraordinary as to constitute an act of God, 
 and that if there had been no such negligent delay the goods 
 would not have been caught in the flood referred to or damaged 
 thereby. 
 
 We have presented for our consideration, therefore, the simple 
 question whether a carrier who by a negligent delay in transport- 
 ing goods has subjected them, in the course of transportation, to 
 a peril which has caused their damage or destruction, and for the 
 consequence of which the carrier would not have been liable had 
 there been no negligent delay intervening, is liable for the loss. 
 
 On this question there is a well-recognized conflict in the 
 authorities. In several well-considered cases decided by courts 
 of high authority it was decided, while the question was still new, 
 that the negligent delay of the carrier in transportation could not 
 be regarded as the proximate cause of an ultimate loss by a cas- 
 ualty which in itself constituted an act of God, as that term is 
 used in defining the carrier's exemption from liability, although 
 had the goods been transported with reasonable diligence they 
 would not have been subjected to such casualty, and these cases 
 are very similar to the one before us inasmuch as the loss in each 
 instance was due to the goods being overtaken by an un- 
 precedented flood for the consequence of which the carrier would 
 not be responsible. Morrison v. Davis, 20 Pa. 171 ; Denny v. New 
 York Cent. R. Co., 13 Gray (Mass.) 481 ; Railroad Co. v. Reeves, 
 10 AVaU. 176; Daniels v. Ballantine, 23 Ohio St. 532; Hunt v. 
 Missouri, K. & T. R. Co. (Tex. Civ. App.) 74 S. W. 69; Gleeson 
 V. Virginia ]\Iidland R. Co., 5 Mackey (D. C.) 356. These cases 
 are predicated upon the view that if the carrier could not reason- 
 ably hav£ foreseen or anticipated that the goods would be over- 
 taken by such a casualty as a natural and probable result of the 
 delay, then the negligent delay was not the proximate cause of the 
 loss, and should be disregarded in determining the liability for 
 such loss. A similar course of reasoning has been applied in
 
 NEGLIGENCE. 421 
 
 other eases, where the loss has been due immediately to some 
 cause such as accidental fire involving no negligence on the part 
 of the carrier and within a valid exception in the bill of lading, 
 but the goods have been brought within the peril stipulated 
 against by negligent delay in transportation. Hoadley v. North- 
 ern Transp. Co., 115 Mass. 304; Yazoo & M. V. R. Co. v. Millsaps, 
 76 iliss. 855; General Fire Extinguisher Co. v. Carolina & N. 
 W, R. Co., 137 N. C. 278. For similar reasons it has been held 
 that loss of or injury to the goods by reason of their inherent 
 nature, as by freezing or the like, will not render the carrier 
 liable, even after negligent delay in transportation, if such cas- 
 ualty could not have been foreseen or anticipated as the natural 
 and probable consequence of such delay. Michigan Cent. R. Co. 
 v. Burrows, 83 Mich. 6 ; Herring v. Chesapeake & W. R. Co., 101 
 Va. 778. 
 
 On the other hand, it was held by the Court of Appeals of New 
 York in a case arising out of the same flood which caused the de- 
 struction of the goods involved in Denny v. New York Cent. 
 R. Co., 13 Gray (Mass.) 481, supra, that the preceding negligent 
 delay on the part of the carrier, in consequence of which the 
 goods were overtaken by the flood, was sufficient ground for hold- 
 ing the carrier to be liable for the loss. Michaels v. New York 
 Cent. R. Co., 30 N. Y. 564; Read v. Spaulding, 30 N. Y. 630. 
 And the same court had adhered to this view in case of a loss by 
 fire covered by valid exception in the bill of lading. Condict 
 v. Grand Trunk R. Co., 54 N. Y. 500. The Illinois Supreme 
 Court has consistently followed the rule of the New York cases 
 in holding that negligent delay subjecting the goods to loss by 
 the Johnsto^\Ti flood rendered the carrier liable (Wald v. Pitts- 
 burg, C, C. & St. L. R. Co., 162 111. 545), and likewise that similar 
 delay rendered the carrier liable for damage to the goods by 
 freezing. * * * 
 
 The irreconcilable conflict in the authorities is recognized by 
 text- writers, and while the weight of general authority has in 
 many cases been said to support the rule announced in ]\Iassa- 
 chusetts and Pennsylvania cases (1 Thompson, Negligence, § 74; 
 Sehouler, Bailments [Ed. 1905] §348; Hale, Bailments and 
 Carriers, 361; 6 Cyc. 382; notes in 36 Am. St. Rep. 838), other 
 authorities prefer'the New York rule (Hutchinson, Carriers [2d 
 Ed.] S200; Ray, Negligence of Imposed Duties, 177). In the 
 absence of any express declaration of this court on the very point.
 
 422 DAMAGES IN ACTIONS FOR WRONGS. 
 
 aiui in view of the fact that in most recent cases the conflict of 
 autliority is still recognized (see 5 Cur. Law, 517) it seems 
 necessary that the reasons on which the two lines of cases are 
 supported shall be considered in order that we may now reach 
 a conclusion which shall be satisfactory to us. * * * 
 
 Now, while it is true that defendant could not have anticipated 
 this particular flood and could not have foreseen that its negli- 
 gent delay in transportation would subject the goods to such a 
 danger, yet it is now apparent that such delay did subject the 
 goods to the danger, and that but for the delay they would not 
 have been destroyed ; and defendant should have foreseen, as any 
 reasonable person could foresee, that the negligent delay would 
 extend the time during which the goods would be liable in the 
 hands of the carrier to be overtaken by some such casualty, and 
 would therefore increase the peril that the goods should be thus 
 lost to the shipper. This consideration that the peril of acciden- 
 tal destruction is enhanced by the negligent extension of time 
 during which the goods must remain in the carrier's control and 
 out of the control of the owner, and during which some casualty 
 may overtake them, has not, we think, been given sufficient con- 
 sideration in the cases in which the carrier has been held not 
 responsible for a loss for which he is not primarily liable, but 
 which has overtaken the goods as a consequence of the preceding 
 delay in their transportation. 
 
 It is not sufficient for the carrier to say by way of excuse that 
 while a proper and diligent transportation of the goods would 
 have kept them free from the peril by which they were in fact 
 lost it might have subjected them to some other peril just as 
 great. He cannot speculate on mere possibilities. * * * 
 The wrongful act of the carrier which in fact subjects the goods 
 to loss renders him liable for such loss although the circum- 
 stances under which it occurred could not have been anticipated. 
 * * « 
 
 We are satisfied that the sounder reasons, supported by good 
 authority, require us to hold that in this case the carrier is liable 
 for the loss of and damage to plaintiff's goods, and the judgment 
 of the trial court is therefore reversed.
 
 NEGLIGENCE. 423 
 
 2) Death hy Neffligence. 
 
 HASSENYER v. ]\IICHIGAN CENT. R. R. CO. 
 
 Michigan, 1882. 48 Mich. 205. 
 
 Defendant brings error. 
 - CooLEY, J. The plaintiff in error was sued by the adminis- 
 trators of Louisa Hassenyer to recover damages for the neg- 
 ligence of its agents and servants whereby her death was caused. 
 The case comes up on alleged errors in the admission and rejec- 
 tion of evidence, and in instructions given or refused. 
 
 The decedent was killed at the crossing of the railroad with 
 Burdick street, one of the principal streets in the village of Kal- 
 amazoo, on the 20th day of December, 1878. She was a girl 13 
 years of age, and was proceeding along the street with a small 
 pail of milk in her hands. The morning was somewhat cold and 
 stormy. As she approached the railroad track a train was pass- 
 ing in one direction, and its bell was being rung. From the 
 other direction an engine was backing up several cars, and its 
 bell was also being rung. It was by this train that the girl was 
 struck and killed. There was a flagman at the crossing, and 
 no negligence seems attributable to him. The brakeman on 
 the backing train was upon the ground, walking along by its 
 side to' guard against accidents, but did not notice the girl until 
 she had been thrown to the ground and killed. No one saw 
 the girl when she was struck, and the place where she was lying 
 when first seen was outside the limits of the street. 
 
 It was contended for the defense that there was no evidence 
 of negligence on the part of the railroad agents and servants, 
 and therefore nothing to go to the jury. It was also insisted that 
 a clear case of negligence on the part of the decedent appeared, 
 and that upon this ground, if not upon the other, the court 
 should have instructed the jury to return a verdict for the de- 
 fendant. We do not agree that the case was so plain on either 
 ground as to justify the court in taking it from the jury. It 
 may be that if we were at liberty to pass- upon the facts we 
 should reach the conclusion which the defense insists upon as 
 the only conclusion that is admissible ; but we cannot say that 
 the case is too plain ui>on the facts for fair minds to differ 
 upon, and following our former decisions we agree with the trial 
 court that the facts were properly left to the jury. Detroit, etc.
 
 424 DAMAGES IN ACTIONS FOU VVUOiNUS. 
 
 K. R. Co. V. Van Stciiiburg, 17 iMieh. 9D; ijake Shore, etc. R. R. 
 Co. V. Miller, 25 JMioli. 274, 295; LeBaron v. Joslin, 41 JMich. 313. 
 
 Upon a supposition that the jury niiglit tind that the de- 
 t'edent at the time she was struck and killed was outside the 
 limits of the highway and upon lands belonging to the railroad 
 company, the defense requested rulings in effect that if such was 
 the fact the decedent was in law chargeable with negligence. We 
 do not agree that this was necessarily the case. The fact might 
 have an important bearing, or it might not; depending on how 
 far she was outside the street lines, and why she was there, and 
 whether she was aware of the fact. As the street was without 
 fences or cattle-guards at this point, it would be unreasonable to 
 hold that at her peril she must keep herself strictly within its 
 lines, and if no intent to leave the highway was apparent, and 
 she was not further outside than one might inadvertently go in 
 passing along the street and looking both ways for coming and 
 passing trains, the fact should neither absolve the employes of 
 the railroad company from the observation of care to prevent in- 
 jury, nor charge her with fault if otherwise sufficiently vigilant. 
 
 Counsel for the plaintiff in error has been industrious in the 
 discovery of faults in the rulings of the circuit judge, but for the 
 most part his criticisms are too particular and technical to be 
 accepted, or to require discussion at our hands. With a single 
 exception we think no error was committed to the prejudice of 
 the party now complaining. The exception is found in the 
 instructions to the jury respecting the degree of care required 
 of the decedent to avoid the danger to which she fell a victim. 
 It was contended for the plaintiff below that the law did not 
 require the same degree of care of a child as of an adult per- 
 son, and the court so instructed the jury. This was unques- 
 tionably correct. Railway Co. v. Bohn, 27 Mich. 503. But it 
 was also insisted that the law did not expect or require the same 
 degree of care and prudence in a woman as in a man ; and the 
 court gave this instruction also. It is presumable, therefore, that 
 the jury in considering whether the decedent was chargeable 
 with contributory negligence, made not only all proper allow- 
 ances on account of her immature years, but further allowance 
 also on account of sex. 
 
 No doubt the difference in sex has much to do with the ap- 
 plication of legal principles in many cases. Police regulations 
 with the utmost propriety sometimes make distinctions between
 
 NEGLIGENCE. 425 
 
 men and women, in the conduct required of them under the 
 same circumstances, and the unwritten law is in some particu- 
 lars more indulgent to the one sex than the other. Words and 
 conduct which in the presence of men might be condemned for 
 bad taste only, in the presence of women may be punishable as 
 criminal indecency, and a crime of violence committed upon 
 the one would be condemned less severely by public opinion and 
 punished less severely by the law than the same crime com- 
 mitted upon the other. And no doubt also the law ought, under 
 all circumstances where they become important, to make al- 
 lowances for any differences existing by nature between men 
 and women, and also for any that grow out of their different 
 occupations, modes of life, education and experience. A woman, 
 for example, driving a horse on a highway, may be presumed 
 somewhat wanting in the "amount of knowledge, skill, dexter- 
 ity, steadiness of nerve, or coolness of judgment — in short, the 
 same degree of competency" which we may presume in a man; 
 and the person meeting her under circumstances threatening 
 collision should govern his o'wra conduct with some regard to 
 her probable deficiencies. Daniels v. Clegg, 28 Mich. 33, 42. 
 In Snow V. Provincetown, 120 Mass. 580, a question of contrib- 
 utory negligence was made against a young woman who, in 
 attempting to pass a cart in a public way, which had com- 
 menced backing towards her, accidentally fell over an embank- 
 ment and was injured. The following instruction by the trial 
 judge to indicate the degree of care required of the plaintiff, 
 was held unexceptionable : ' ' Care implies attention and caution, 
 and ordinary care is such a degree of attention and caution as a 
 person of ordinary prudence of the plaintiff's sex and age would 
 commonly and might reasonably be expected to exercise under 
 like circumstances." This no doubt is true. 
 
 But while the authorities permit all the circumstances to be 
 taken into the account, age and sex among the rest, in deter- 
 mining the degree of care to be reasonably required or looked 
 for, no case, so far as we know, has ever laid it dowTi as a rule 
 of law that less care is required of a woman than of a man. 
 Sex is certainly no excuse for negligence (Fox v. Glastenbury, 29 
 Conn. 204) ; and if we judge of ordinarv' care by the standard 
 of what is commonly looked for and expected, we should prob- 
 ably agree that a woman would be likely to be more prudent, 
 careful and particular in many positions and in the performance
 
 420 DAMAGES IN ACTIONS FOR WRONGS. 
 
 •of many duties than a man would. She would, for example, be 
 mure vigilant and indefatigable in her care of a helpless child ; 
 she would be more cautious to avoid unlmown dangers; she 
 would be more particular to keep within the limits of absolute 
 safety when the dangers which threatened were such as only 
 great strength and courage could venture to encounter. Of a 
 given number of persons travelling by cars, several men will ex- 
 pose themselves to danger by jumping from the cars when they 
 are in motion, or by standing upon the platform, where one 
 woman would do the same ; and a man driving a team would be 
 more likely to cross in front of an advancing train than a 
 woman would. In many such cases a woman's natural timidity 
 and inexperience with dangers inclines her to be more cautious; 
 and if we naturally and reasonably look for greater caution in 
 the woman than in the man, any rule of law that demands less 
 must be unphilosophical and unreasonable. 
 
 Suppose, for instance, that a man and woman standing to- 
 gether upon the platform of a moving car are accidentally 
 thrown off and injured, could any rule of law be justilied which 
 would permit a jury to award damages to her but not to him, 
 upon the ground that the law expected and required of him the 
 higher degree of care? Or may the woman venture upon an 
 unsafe bridge from which the man recoils, under the protection 
 of such a discrimination ? Or trust herself to a fractious horse 
 expecting, if she shall chance to be injured, the tenderness of 
 the law will excuse her with a verdict of such care as was rea- 
 sonably to be expected, when it would pronounce a man fool- 
 hardy? "We think not. 
 
 No person of any age or sex is chargeable with legal fault 
 who, when placed in a position of peril, does the best tliat can 
 be done under the circumstances. Voak v. Northern Central 
 Ry. Co., 75 N. Y. 320. Even this statement indicates a more 
 rigid rule than the law will justify, for the legal requirement 
 is only the observance of ordinary care; and while in laying 
 dowTi rules that are of general application, it is no doubt better 
 to employ general terms, lest they be supposed applicable to 
 particular classes only (Tucker v. Henniker, 41 N. TI. 317) ; yet 
 when the actor is a woman, an instruction that she is bound to 
 observe the conduct of a woman of common and ordinary 
 prudence, cannot be held legally erroneous because of being thus 
 special. Bloomington v. Perdue, 99 111. 329.
 
 NEGLIGENCE. 427 
 
 "Women may enter upon and follow any of the occupations 
 of life ; they may be surgeons if they will, but they cannot as 
 such claim any privilege of exemption from the care and cau- 
 tion required of men. A woman may be engineer of a loco- 
 motive if she can obtain the employment, but the law will ex- 
 pect and require of her the same diligence to avoid mischief to 
 others which men must observe. The rule of prudent regard for 
 the rights of others knows nothing of sex. Neither can sex ex- 
 cuse anyone for the want of ordinary care when exposing one's 
 self to known and obvious perils. 
 
 If it was apparent that the error of the judge did not mislead 
 in this case, we might affirm the judgment. But that fact is 
 not apparent. No one witnessed this accident ; the question of 
 due care is involved in doubts, and the erroneous ruling may 
 have been controlling. It follows that there must be a new 
 trial. 
 
 The other justices concurred. 
 
 DEMAREST v. LITTLE. 
 
 New Jersey, 1885. 47 N. J. L, 28. 
 
 In ease. On rule to show cause etc. 
 
 Magie, J. This action was brought to recover damages for the 
 death of plaintiffs' testator, which occurred in the disaster at 
 Parker's Creek bridge, on the Long Branch Railroad, on June 
 29, 1882. Defendant was charged with responsibility therefor as 
 receiver of the Central Railroad Company of New Jersey, and 
 as having, in that capacity, contracted to carry deceased with due 
 care. 
 
 The case was first tried in 1883, and a verdict rendered for 
 plaintiffs, assessing their damages at $30,000. This verdict 
 was afterwards set aside upon a rule to show cause. No opinion 
 was delivered, but the court announced that a new trial was al- 
 lowed because the damages were excessive. The case has been 
 again tried, and the verdict has been again rendered for plaintiffs, 
 assessing their damages at $27,500. A rule to show cause was 
 allowed and is now sought to be made absolute upon the fol- 
 lowing grounds: first, that the evidence was not sufficient to 
 justify the conclusion that testator's death was due to neg-
 
 428 DAMAGES IN ACTIONS FOR WRONGS, 
 
 ligenee or want of care; second, that if so, defendant, as re- 
 ceiver, was not liable for any negligence except his own, while 
 the alleged negligence was that of employees ; and third, that the 
 damages awarded are excessive. 
 
 Upon the lirst ground it was urged that the evidence upon 
 this trial was variant from and more favorable to defendant 
 than that produced on the former trial. Whether that be so 
 or not, a careful perusal of the evidence satisfies me that 
 there was sufficient to warrant the conclusion that testator's 
 death was due to negligence or want of proper care. 
 
 The second objecton has already been disposed of in a case 
 growing out of this same disaster, and in which the Court of 
 Errors has affirmed the responsibility of the receiver for such 
 negligence. Woodruff's Adm'r v. Little, Receiver, 17 Vroom, 
 614. The verdict ought not to be disturbed on those grounds. 
 
 The question presented by the claim that the damages are 
 excessive is of more difficulty. The action is created by statute 
 which supplies the sole measure of the damages recoverable there- 
 in. They are to be determined exclusively by reference to the 
 pecuniary injury resulting to the widow and next of kin of de- 
 ceased by his death. The injury to be thus recovered for has 
 been defined by this court to be " the deprivation of a reasonable 
 expectation of a pecimiary advantage which would have result- 
 ed by a continuance of the life of deceased." Paulmier v. Erie 
 Railway Co., 5 Vroom, 151. Compensation for such deprivation 
 is therefore the sole measure of damage in such cases. A difficult 
 task is thereby imposed upon a jury, for they are obliged to de- 
 termine probabilities and "must, to a large extent, form their 
 estimate of damages on conjectures and uncertainties." But the 
 case in hand seems to present less complicated problems than 
 other cases of the same nature. 
 
 Deceased left no widow, and but three children. All of 
 them had reached maturity. Two sons were self-supporting; 
 the daughter was married. He owed no present duty of support, 
 and there is nothing to show any fixed allowance or even casual 
 benefactions to them. They were therefore deprived of no im- 
 mediate pecuniary advantage derivable from him. At his death 
 he was in business, in partnership with his sons and son-in-law. 
 All the partners gave attention to the business, and the capital 
 was furnished by deceased. His death dissolved the partner- 
 ship, and deprived the surviving partners of such benefit as they
 
 NEGLIGENCE. 429 
 
 had derived from his credit, capital, skill, and reputation. But 
 the injury thus resulting is not within the scope of this statute, 
 which gives damages for injuries resulting from the severance of 
 a relation of kinship and not of contract. No damages could be 
 awarded on that ground. 
 
 Defendants strenuously urge that, outside of the partnership, 
 or in the event of its dissolution, the next of kin had a reasonable 
 -expectation of deriving from the parental relation an advantage 
 by way of services rendered or counsel given by deceased in their 
 affairs. A claim of this sort must be carefully restricted within 
 the limits of the statute. The counsels of a father may, in a 
 moral point of view, be of inestimable value. The confidential 
 intercourse between parent and child may be prized beyond 
 measure, and its deprivation may be productive of the keenest 
 pain. But the legislature has not seen fit to permit recovery for 
 such injuries. It has restricted recovery to the pecuniary in- 
 jury ; that is, the loss of something having pecuniary value. 
 
 Now it may with some reason be anticipated that a father, 
 out of love and affection, might, if circumstances rendered it 
 proper, perform gratuitous service for a child, which, by ren- 
 dering unnecessary the employment of a paid servant, would be 
 of pecuniary value, and that he might, by advice in respect to 
 business affairs, be of a possible pecuniary benefit. But whether 
 such an anticipation is reasonable or not must depend on the 
 circumstances. Considering the age, the assured position, the 
 business and other relations of these children, it is obvious that 
 the probability of any pecuniary advantage to accrue to them in 
 these modes was very small. Indeed, it would not be too much 
 to say that resort must be had to speculation to discover any 
 such advantage. At all events, compensation for this injury in 
 this case could not exceed a small sum without being excessive. 
 
 The principal basis for plaintiff's claim is obviously this: that 
 the death of deceased put an end to accumulations which he 
 might have thereafter made and which might have come to the 
 next of kin. Deceased had accumulated about $70,000, all of 
 which, except $10,000 capital invested in the business, seems to 
 have been placed in real estate and securities as if for permanent 
 investment. By his will the bulk of his property was given 
 to his children. At his death he had no other source of income 
 than his investments and his business. 
 
 In determining the probability of accumulation by deceased if
 
 430 DA.AlACIliS IN ACTIONS FOll WRONGS, 
 
 he had continued in life, no accoimt should be taken of the in- 
 come derivable from his investments. These have come in bulk 
 to the children, who may, if they choose, aecimiulate such income. 
 A deprivation of the probability of his aeeumulating therefrom 
 is no pecuniary injury. On the contrary, it is rather a benefit to 
 thom to receive at once the whole fund in lieu of the mere con- 
 tingency or probability of receiving it, though with its accumula- 
 tions (at best uncertain) in the future. Indeed, the benefit 
 thus accruing to the next of kin in receiving at once this whole 
 property, in the view of one of the court, is at least equivalent to 
 the present value of the probability of their receiving it here- 
 after, if deceased had continued in life, with all his probable fu- 
 ture accumulations from any source whatever, in which case it is 
 evident that his death has not resulted in any pecuniary injury 
 to thom. But without adopting this view of the evidence, it is 
 plain that in determining probable future accumulations atten- 
 tion should be restricted to such as would arise from the labor 
 of deceased in his business. His receipts from the business for 
 the two years it had been conducted were proved. What he ex- 
 pended was not proved, but left to be inferred from his mode of 
 life. At death he was about fifty-six and a half years old and by 
 the proofs had an expectation of life of sixteen and seven-tenths 
 years. 
 
 From these facts the jury were to find what deceased would 
 probably have acumulated, what probability there was that his 
 next of kin would have received his accumulations, and then what 
 sum in hand would compensate them for being deprived of that 
 probability. In what manner the jury attempted to solve this 
 problem we cannot ascertain. Plaintiffs' counsel attempts to 
 show the correctness of the result reached, by calculation. He 
 assumes the income of deceased from his business during the 
 last year as the annual income likely to be obtained, and deducts 
 only $1,000 each year as the probable expenditure of deceased, 
 and then finds the present worth of the net income so determined 
 for the deceased's expectation of life is $27,710.32. 
 
 This calculation tests the propriety of this verdict, and in 
 my judgment conclusively shows that it was rather the result 
 of sympathy or prejudice than a fair deduction from the evi- 
 dence. For. assuming the amount attributable to the loss of 
 deceased's services was but small Tand if more it was excessive), 
 the award of the jury on this account was but a few hundred
 
 NEGLIGENCEo 431 
 
 iollars less than the present worth of the full net income if re- 
 ceived for his full expectancy of life. To reach such a result 
 the jury must have found every one of the following con- 
 tingencies in favor of the next of kin, viz, : that deceased, who 
 had already acquired a competence, would have continued in the 
 toil of business for his full expectancy of life; that he would 
 have retained sufficient health of body and vigor of mind to 
 enable him to do so, and as successfully as before ; that he would 
 have been able to avoid the losses incident to business, and 
 would have safely invested his accumulations ; and that the next 
 of kin would have received such accumulations at his death. A 
 verdict which attributes no more weight than this has, to the 
 probability that one or more of all these contingencies would 
 happen, cannot have proceeded from a fair consideration of 
 the case made by the evidence. 
 
 Having reached this conclusion, what should be the result as 
 to the verdict? 
 
 The charge of the court below declared the rule of damages 
 with accuracy. The verdict is a second one, and somewhat 
 smaller than that previously set aside as excessive. It is un- 
 usual to set aside a second verdict, but though unusual it is 
 within the power of the court in the exercise of its discretion. 
 That power will be discreetly used in setting aside any verdict 
 which does palpable injustice. 
 
 To obviate, if possible, the necessity of another trial, it has 
 been determined that if plaintiffs will reduce their verdict to 
 $15,000 by remitting the excess, the verdict may stand for that 
 sum, and the rule to show cause be discharged. Unless they con- 
 sent to such remission, the rule must be made absolute. 
 
 HEGERICH V. KEDDIE. 
 
 New York. 1885. 09 X. Y. 258. 
 
 • Appeal from a judgment of the General Term of the Supreme 
 Court entered upon an order, which reversed a judgment in 
 favor of the defendant, entered upon an order sustaining a de- 
 murrer to plaintiff's complaint. The action was brought to 
 recover damages for the death of plaintiff's intestate, alleged to 
 have been caused by the negligence of defendant's testator.
 
 432 DAMAGES IN ACTIONS FOR WRONGS. 
 
 Defendant demurred and claimed that the cause of action 
 did not survive. 
 
 RuGER, Ch. J, A brief reference to some of the elementary 
 principles, applying to civil actions will serve the purpose, at 
 least, of deiiniug the terms used, and the modifications intro- 
 duced, into the law by the statutes hereinafter referred to. 
 Such actions were primarily divided into two classes, distin- 
 guished as actions ex contractu and ex delicto. The actions known 
 as detinue, trespass, trespass on the case, and replevin were 
 those used in causes of action arising from torts, and were de- 
 scribed as actions ex delicto. Trespass on the case was the ap- 
 propriate form of remedy for all injuries to persons or prop- 
 erty which did not fall within the compass of the other forms 
 of action. (3 Stephens' Com. 449.) At common law, origin- 
 ally, all actions arising ex delicto died with the person by whom 
 or to whom the wrong was done. Thus, when the action was 
 founded on any malfeasance, or misfeasance, was a tort, or 
 arose ex delicto, such as trespass for taking goods, etc., trover, 
 false imprisonment, assault and battery, slander, deceit, divert- 
 ing a water-course, obstructing lights, escape, and many other 
 cases of the like kind, where the declaration imputes a tort 
 done either to the person or property of another, and the plea 
 must be "not guilty," the rule was ''actio personalis moritur 
 cum persona.'' (1 Wms. on Exrs. 668.) It was, however, held 
 in Hambly v. Troth (Cowp. 371), Lord Mansfield delivering 
 the opinion, that, "if it is a sort of injury by which the offender 
 acquires no gain to himself at the expense of the sufferer, as 
 beating or imprisoning a man, etc, then the person injured has 
 only a reparation for the delictum, in damages to be assessed 
 by a jury. But, when, besides the crime, property is acquired 
 which benefits the testator, then an action for the value of the 
 property shall survive against the executor." "So far as the 
 tort itself goes, an executor shall not be liable, and therefore it 
 is that all public and private crimes die with the offender, and 
 the executor is not chargeable ; but so far as the act of the of- 
 fender is beneficial, his assets ought to be answerable, and his 
 executor, therefore, shall be charged." By the statute of 4th 
 Edward III, chapter 7, actions "de honis asportatis" were 
 given to the executors of a deceased person for personal prop- 
 erty taken from their testator and carried away, but for all 
 other causes of action arising out of wrongs done either to the
 
 NEGLIGENCE. 433 
 
 person or property the rule of "actio personalis moritur cum 
 persona" applied. (1 Wms. Exrs. 672.) Under the clause of 
 the Constitution making the rules of the common law the law 
 of the State, it must be held that these rules still determine the 
 survivability of actions for torts, except where the law has been 
 specially modified or changed by statute. 
 
 It had been held in this State prior to the enactment of the 
 Revised Statutes that an action against the representatives of a 
 postmaster for money feloniously abstracted from a letter by 
 his clerk (Franklin v. Low, 1 Jolms, 402), and against a sher- 
 iff's representatives for an escape occurring during his life- 
 time (Martin v. Bradley, 1 Gaines, 124), did not lie against such 
 representatives. In the case of People v. Gibbs, 9 Wend. 29, 
 decided in 1832, it was held that an action against the execu- 
 tors of a sheriff for the default of his deputy in returning proc- 
 ess, notwithstanding an action in assumpsit for money had 
 and received was by statute authorized therefor, did not lie, 
 inasmuch as the cause of action was founded in tort. 
 
 As no reference is made in this ease to the Revised Statutes, 
 it is inferred that it arose previous to their enactment, although 
 the case does not disclose that fact. Still the date of the trial, 
 November, 1830, would not necessarily lead to such an infer- 
 ence. The Revised Laws (Vol. 1, p. 311) had theretofore en- 
 larged the scope of the statute of 4th Edward III., and pro- 
 vided for actions by and against executors and administrators 
 for property taken and converted by the testator or intestate 
 during his life-time. Under this condition of the law the pro- 
 visions of the Revised Statutes were enacted in ]828, and con- 
 tain the rule by which this controversy must be determined. 
 Section 1 reads as follows: "For wrongs done to the property 
 rights or interests of another for which an action might be 
 maintained against the wrong-doer, such action may be brought 
 by the person injured, or after his death, by his executors or 
 administrators against such wrong-doer, and after his death, 
 against his executors or administrators in the same manner and 
 with the like effect in all respects as actions founded upon con- 
 tract." Section 2. "But the preceding section shall not extend 
 to actions for slander, for libel, or to actions of assault and bat- 
 tery or false imprisonment, nor to actions on the case for in- 
 juries to person of the plaintiff or to the person of the testa- 
 tor or intestate of any executor or administrator." It cannot 
 
 28
 
 434 DAMAGES IN ACTIONS FOR WRONGS, 
 
 be successfully claimed that the language, "actions on the case 
 for injuries to the person" up to this time did not include, ac- 
 cording to universal classification, all actions without regard 
 to the person or persons to whom they accrued, which had as 
 their cause, or were founded upon injuries to the person of 
 another arising from the negligent or careless conduct of a 
 wrong-doer. It must also, upon well-settled principles of con- 
 struction, be conceded that these terms were used according to 
 their legal and well-understood signification at the time of their 
 emploj'ment. If the language of the statute applicable to this 
 case be collocated and read according to its plain meaning and 
 intent, the following sentence would seem to be the result. 
 Actions by and against executors and administrators for wrongs 
 done to the property rights, or interests of their intestate or 
 testator are hereby authorized, but so far as such wrongs have 
 heretofore been remediable by actions on the case for injuries 
 to the person of the plaintiff, or to the person of the intestate 
 or testator of any executor or administrator, they shall not sur- 
 vive the death of the person to whom or by whom the wrong 
 is done. The wrongs referred to in these sections are such only 
 as are committed upon the "property rights, or interests" of 
 the testator or intestate, and to a cause of action for which the 
 executors and administrators acquire a derivative title alone. 
 The whole scope and design of the statute is to extend a remedy 
 already accrued, to the representatives of a deceased party, and 
 provide for the survival only of an existing cause of action. 
 
 Among the questions which have arisen over the construction 
 of these sections the most prominent are probably those relating 
 to the signification of the words "property rights or interests," 
 as used in the first section, and the effect of the enumeration in 
 the second section, of certain specific actions as being excepted 
 from the operation of the prior section. It is inferable from 
 the opinions expressed in Haight v. Hayt, 19 N. Y. 464, that 
 the court there supposed that the words "property rights or in- 
 terests," as used in the statute, covered and included all in- 
 juries tortiously inflicted by one person to the detriment of an- 
 other, whether affecting his person or property, and also that 
 the mention of certain actions in the second section manifested 
 an intention on the part of the law makers to exempt all others, 
 founded on tort from abatement by death. The views expressed 
 on those questions seem to have been unnecessary, as the actiou
 
 NEGLIGENCE. 435 
 
 there, was for a fraudulent representation with respect to incum- 
 brances, whereby a purchaser of land at a public sale was in- 
 duced, and the purchaser was compelled to pay an incumbrance 
 whi -h he was led to believe did not exist. The injurv^ thus 
 seems clearly to have been one to rights of property alone and 
 was saved from abatement by the first section of the statute. 
 The language and structure of these sections would seem to 
 repel the idea that the exemptions provided by the second sec- 
 tion were intended to authorize the survival of all other actions 
 for tort. In the view implied by the language used in tbat case 
 the first section would be quite unnecessary, as a provision speci- 
 fying the classes of action which did survive would be super- 
 fluous if conjoined with one enumerating all actions not sur- 
 viving. Such a construction gives the first section no office to 
 perform, and the courts have practically rejected this inter- 
 pretation in numerous cases, holding that causes of action abated 
 by death which were not named in the second section. Thus 
 it has been held that a cause of action by a master for the se- 
 duction of his servant does not survive (People ex rel. v. Tioga 
 Com. Pleas, 19 Wend. 73) ; or for a fraudulent representation 
 by a third person in reliance upon which credit is given to an 
 irresponsible person (Zabriskie v. Smith, 13 N. Y. 322) ; or for 
 a breach of a promise to marry (AVade v. Kalbfleisch, 58 id. 286) ; 
 or for damages occasioned by the negligent killing of another 
 (Whitford v. Panama R. R. Co., 23 id. 465) ; or for a penalty 
 incurred by trustees under the General ^Manufacturing Act 
 (Stokes V. Stickney, 96 id. 323) ; and for fraud in inducing one 
 to marry another (Price v. Price, 75 id. 244). 
 
 The statute obviously created a great change in the law and 
 applied to a numerous class of cases which had not before been 
 held to survive. Thus it enlarged the rights created by the act 
 of 4 Edward TIL, so as to include actions for trespass de bonis 
 asportaiis against representatives as well as by them, and re- 
 moved the limntation which authorized other actions for wrongs 
 against representatives only when the estate of their testator 
 or intestate was benefited by the act complained of. The change 
 is illustrated by the ease of Benjamin's Exrs. v. Smith, 17 Wend. 
 208. where it was held that the cause of action accruing to a 
 party against a sheriff for a false return did not abate by the 
 plaintiff's death. This had previously been held otherwise. 
 (.People V. Gibbs, supra.) In People v. Tioga Com. Pleas, 19
 
 436 DAMAGES IN ACTIONS FOB WRONGS. 
 
 Wend. 73, it was held that such actions alone as survived to 
 executors and administrators were assignable, and that a cause 
 of action by a master for the seduction of his servant was not 
 assignable. 
 
 Although this action is based upon the theory of a loss of 
 service by the master, it must inferentially have been deter- 
 mined that it did not affect the property rights or interests of 
 the master, in such manner as to cause the right of action to 
 survive. Grover, J., in Ilaight v. Ilayt, said "that the statute 
 had changed the law so far as property or relative rights are 
 affected by the wrongful act." Judge Rapallo has said that 
 "the rights and interests for tortious injuries to which this stat- 
 ute preserves the right of action have frequently been consid- 
 ered, and it is generally conceded that they must be pecuniary 
 rights or interests by injuries to which the estate of the deceased 
 is diminished." (Cregin v. B. C. R. R. Co., 75 N. Y. 194.) 
 
 Reference to the law as it stood previous to the revision (and 
 the application of the rule of construction embodied in the 
 maxim of noscitur a sociis) would seem to require such an in- 
 terpretation of the words "property rights or interests" as will 
 confine their application to injuries to property rights only, and 
 such as were theretofore enforceable by the deceased. 
 
 It is stated in 1 Wms. on Exrs. 677, "that no action is main- 
 tainable by the executor or administrator upon an implied or 
 express promise to the deceased when the damage consisted 
 entirely in the personal suffering of the deceased without any 
 injury to his personal estate." Chamberlain v. AVilliamson, 2 
 M. & S. 408, is cited in support of this proposition. In that 
 case Lord Ellenborough said : "^' 
 
 "Executors and administrators are the representatives of the 
 personal property, that is the debts and goods of the deceased ; 
 but not of their wrongs except when those wrongs operate to 
 the temporal injury of their personal estate." Accordingly it 
 was there held "that an executor or administrator cannot have 
 an action for a breach of promise of marriage to the deceased 
 when no special damage to the personal estate can be stated on 
 the record. So with respect to injuries affecting the life and 
 health of the deceased, all such as arise out of the unskilfulness 
 of medical practitioners, the imprisonment of the party brought 
 on by the negligence of his attorney, such cases being in sub- 
 stance actions for injuries to the person."
 
 NEGLIGENCE. 437 
 
 This view of the law was approved in a similar case in this 
 court. (Wade v. Kalbfleisch, supra.) It was said in People v. 
 Tioga Com. Pleas, (supra), by Cowen, J., that the eases in re- 
 spect to executors and insolvent assignees, and the like, certainly 
 go very far to direct what we are to consider matter of prop- 
 erty or estate, so far that it can be touched by a contract, and 
 made a subject of transfer between parties in any way at law 
 or in equity ; if the right be not so entirely personal that a man 
 cannot by any contract place it beyond his control, it is assign- 
 able under the statutes of insolvency, or will, on his death, pass 
 to his executors. The reason is because it makes a part of his 
 estate; it is matter of property, and as such it is in its nature 
 assignable. On the contrary, if it be strictly personal, it is be- 
 yond the reach of contract. In the same sense we say of many 
 rights they are inalienable. No one would pretend that a man's 
 person could be specifically affected by contract; though he 
 should bind himself by indenture, equity could not enforce the 
 agreement. ( Mary Clark's lease, 1 Blackf. 122.) So of a man's 
 absolute personal rights in general, as his claim to safety from 
 violence, and his relative rights as a husband, a father, a master, 
 a trustee, etc." This case was approved in McKee v. Judd, 12 
 N. Y. 622, and it was there said by Grover, J., that "demands 
 arising from injuries strictly personal, whether arising upon 
 tort or contract, are not assignable; but that all others are." 
 In Green v. Hudson R. R. R. Co., 28 Barb. 9, approved in Whit- 
 ford V. Panama R. R. (supra), it was held that the husband 
 at common law could not maintain an action for negligence caus- 
 ing the death of his wife; and that continued to be the law 
 in this State until the act of 1847 was amended by chapter 78 
 of the laws of 1870. It was said by Judge Denio in AVhitford 
 V. Panama R. R. Co., (supra), "It has never been suggested, 
 so far as I know, that the personal representatives of a deceased 
 person could at the common law sustain an action on account of 
 the wrongful act of another, which caused the death of the per- 
 son whose estate they represent." It would seem unnecessary 
 to cite additional authorities to the effect that as the law stood at 
 the adoption of the statute, neither a husband nor wife had 
 such an interest in the life of their respective consorts as sub- 
 jected a person, through whose negligent act it was taken, to 
 the charge of injuring any property rights possessed by them. 
 
 From the same review, it is quite evident that the authors of
 
 438 DAMAGES IN ACTIONS KOK WRONGS. 
 
 the statiUo intondod explicitly to provide for the ahatement of 
 causes of aetioii for personal injuries occurring to the plaintiff, 
 or to his intestate or testator. The assignability and surviva- 
 bility of things in action have fre(iuently been held to be con- 
 vertible terms, and perhaps furnish as clear and intelligible a 
 rule to determine what injuries to property rights or interests 
 are meant by the statute, as it is possible to lay down. People 
 V. Tioga Co. Com. Pleas, supra; Zabriskie v. Smith, supra. 
 
 The rights of property only which are in their nature assign- 
 able and capable of enjoyment by an assignee are those referred 
 to in the statute. Such rights as arise out of the domestic re- 
 lations clearly do not possess the attributes of property, and are 
 not assignable by the possessor. (Id.) 
 
 The provisions of the Revised Statutes were, however, modi- 
 fied by chapter 450 of the laws of 1847, as amended by subse- 
 quent statutes, giving an action against persons and corporations, 
 to the representatives of a deceased person, for the benefit of 
 the husband or widow and next of kin, to recover damages for 
 the pecuniary injuries suffered by them where death was caused 
 by the wrongful act, neglect or default of another and the act, 
 neglect or default was such as would (if death had not ensued) 
 have entitled the party injured to maintain an action therefor, 
 and in respect thereof against the person who or the corpora- 
 tion which caused the same, although the death was caused un- 
 der such circumstances as in law amounted to a felony. 
 
 We are now to consider the effect which these statutes pro- 
 duced upon the law as it previously existed. The cause of ac- 
 tion here provided for has been held not to be a devolution, but 
 a new one calling for the application of another rule of dam- 
 age and distinguished by many other attributes. Whitford v. 
 Panama R. R. Co., supra; Haight v. Hayt, 19 N. Y. 464; 
 IMcDonald v. Mallory, 77 id. 546; Littlewood v. Mayor, etc., 
 89 id. 24; Blake v. Midland R. R. Co., 18 A. & E. 93; Leg- 
 gott V. Gt. N. Ry. Co., L. R. 1 Q. B. D. 604; Russell v. Sun- 
 bury, 37 Ohio St. 372; Yertore v. Wiswall, 16 How. Pr. 8. 
 That it is founded upon the wrongful act of the party causing 
 the death, and gives a right of action therefor to the represent- 
 atives of the deceased, for the pecuniary consequences suffered 
 by the husband, wife or next of kin from such wrongful act, is 
 also established by the same authorities. 
 
 The cause of action is obviously the wrongful act, and the
 
 NEGLIGENCE. 439 
 
 pecuniary injuries resulting afford simply a rule to determine 
 the measure of damages. However much the husband, widow 
 or next of kin msLy suffer pecuniarily by the act causing death, 
 it constitutes no cause of action, independent of evidence, that 
 it was occasioned by the wrongful or negligent conduct of an- 
 other. Proof that it occurred in conseciuence of the contributory 
 negligence of the deceased person, or without the fault of the 
 defendant, furnishes a perfect answer to such an action and a 
 conclusive reason why the death produced by the wrongful 
 act is the cause of action. The cause of action here provided 
 for does not purport to be in any respect a derivative one, but 
 is an original right conferred by the statute upon representa- 
 tives for the benefit of beneficiaries, but founded upon a wrong 
 already actionable by existing law in favor of the party injured, 
 for his damages. The description of the actionable cause, seems 
 to have been inserted merely to characterize the nature of the 
 act which is intended by the statute to be made actionable, and 
 to define the kind and degree of delinquency with which the 
 defendant must be chargeable in order to subject him to the 
 action. Whitford v. Panama R. R. Co., supra. 
 
 It will be observed also that the statute, although creating a 
 new cause of action, and passed for the express purpose of 
 changing the rule of the common law in respect to the surviv- 
 ability of actions, and conferring a right upon representatives 
 which they did not before possess, does not undertake, either 
 expressly or inpliedly, to impair the equally stringent rule 
 w^hich precluded the maintenance of such actions against the 
 representatives of the offending party. 
 
 The plain implication from its language would, therefore, 
 seem to be at war with the idea that the legislature intended 
 to create a cause of action enforceable against, as well as by 
 representatives. The cause of action thereby given is not to 
 the estate of the deceased person, but to his or her representa- 
 tives as trustees, not for purposes of general administration, but 
 for the exclusive use of specified beneficiaries. Dickins v. N. Y. 
 Cent. R. R. Co., 23 N. Y. 158; Yertore v. Wiswall, 16 How. 
 Pr. 8. 
 
 The wrong defined indicates no injury to the estate of the 
 person killed, and cannot either logically or legally be said to 
 affect any property rights of such person, unless it can be main- 
 tained that a person has a property right in his own existence.
 
 440 DAMAGES IN ACTIONS FOR WRONGS. 
 
 The property right, therefore, created by this statute is one 
 existing in favor of the beneficiaries of a recovery only, and 
 depends for its existence upon the death of the party injured. 
 It had no previous life and cannot be said to have been injured 
 by the very act which creates it. Whatever claim a wife or 
 children have at law upon the husband and father for support 
 perislies with the life of such person, and thereafter their claims 
 upon his estate are governed by statutory rules. 
 
 If, therefore, we consider this cause of action as a property 
 right, it is as such, a right based upon a tort, and, except as 
 otherwise provided by the statute creating it, must be governed 
 by the existing rules of law applicable to such causes of action. 
 The case of Littlewood v. Mayor, etc., 89 N. Y. 24, holding that 
 such causes of action may be settled and discharged by the 
 injured party during his life-time, would seem to preclude the 
 idea that the husband or widow and next of kin had any right 
 of property in the cause of action created by the death of the 
 party injured during his life-time. The question presented by 
 the decision herein was, we think, determined adversely to the 
 plaintiff by the case of Cregin v. Brooklyn Crosstown R. R. Co., 
 75 N. Y. 192. It was there held when an injury is done to the 
 person of the plaintiff (and necessarily, by the terms of the stat- 
 ute, to that of his testator or intestate), "that the pecuniary 
 damage sustained thereby cannot be so separated as to consti- 
 tute an independent cause of action, for the cause of action is 
 single and consists of the injury to the person. The damages 
 are the consequences merely of that injury, and when, by the 
 terms of the statute, such a cause of action abates, the charac- 
 ter of the damages cannot save it." The conclusions reached 
 in that case tend necessarily to support the doctrine that the 
 causes of action given by the act of 1847 and its amendments 
 abate by the death of the person injured. It also holds that, 
 so far as the personal estate and rights of property of the de- 
 ceased person are injured by the wrongful act causing death, 
 the cause of action therefor survives to his representatives by 
 force of section 1 of the Revised Statutes, before referred to. 
 Such an action exists independently of the Statute of 1847, and 
 has been upheld in favor of representatives to the extent of 
 giving damages for medical attendance and inability of the in- 
 jured party to attend to business, for the time intermediate his 
 injury and death, when the accident occurred while travel-
 
 NEGLIGENCE. 441 
 
 ing as a passenger upon the defendant's railroad. The action 
 was there based upon the theory of a breach of contract to 
 carry the passenger safely. Bradshaw and wife v. Lancashire 
 & Yorkshire Ry. Co., L. R. 10 C. P. 189. 
 
 We have carefully considered the case of Needham v. Grand 
 T. R. R. Co., 38 Vt. 294, but inasmuch as the statutes in that 
 State affecting the question are so different from our own, little 
 analogy exists between the question there presented and the 
 one under consideration. The case of Yertore v. Wiswall, 
 (supra) is entitled to great respect from the learning and ability 
 of the court by which it was decided. But, although agreeing 
 with some of the propositions entertained by it, we are unable 
 to concur in the conclusion reached, that the cause of action 
 there considered, survived. 
 
 The complaint in the present action describes a cause of ac- 
 tion arising out of the death alone, and suggests no injury to 
 the estate or property of the deceased. Such a cause of action 
 is abated by the death of the wrong-doer. 
 
 The judgment of the General Term should, therefore, be re- 
 versed, and that of the Special Term affirmed. 
 
 All concur; Finch, J., in result. 
 
 Judgment accordingly. 
 
 DENVER & R. G. R. CO. v. SPENCER. 
 
 Colorado, 1900. 27 Colo. 313. 
 
 This action was commenced by the appellees to recover dam- 
 ages for the death of their father, caused by the alleged negli- 
 gence of the appellant. From a verdict and judgment in their 
 favor the defendant appeals. 
 
 Gabbert, J. * * * The final question relates to the 
 amount of damages assessed by the jury. The verdict was 
 in the sum of $4,000, which appellant contends is excessive. 
 The right of appellees to maintain this action is purely statutory. 
 It did not exist at common law. The damages which they are 
 entitled to recover must be limited to those of a compensatory 
 character— in other words, to such pecuniary damages as they 
 have sustained by reason of the death of their father. As aptly 
 stated by the late Justice Elliott in Pierce v. Conners, 20 Colo.
 
 442 DAMAGES IN ACTIONS FOR WRONGS. 
 
 178: "Tlie true monsiiro of eomponsalory relief in an action of 
 this kind, muler the act of 1877, is a sum equal to the net pecuni- 
 ary benelit whieh plaintiff might reasonably have expected to re- 
 ceive from the deceased in case his life had not been terminated 
 by the wrongful act, neglect, or default of defendant ; * * * 
 but it must be borne in mind that the recovery allowable is in 
 no sense a solatium for the grief of the living, occasioned by 
 the death of the relative or friend, however dear. It is only for 
 the pecuniary loss resulting to the living party entitled to sue, 
 resulting from the death of the deceased, that the statute affords 
 compensation. This may seem cold and mercenary, but it is un- 
 questionably the law." 
 
 At the time of his death his wife was living, and survived 
 him about two j'ears. The appellees were in no manner depend- 
 ent upon him for support. The mere relationship between them 
 and deceased cannot be made the basis of a recovery in this 
 ease, however much they may have grieved over his untimely 
 death. Therefore, as stated in the former opinion in this case, 
 "the pecuniary loss, if any, that resulted to them by reason of 
 the death, was in being deprived of their share of the money that 
 he might accumulate during his expectancy of life." Or, under 
 the evidence, their recovery must be limited to the sum which 
 the father, b}' his personal exertions, less his necessary personal 
 expenses, and those of his wife during her life, would have 
 added to his estate, and which would have descended to the ap- 
 pellees, as his heirs at law. The court so instructed the jury. 
 Was this instruction followed? At the time of his death, de- 
 ceased was upward of sixty-eight years of age. His expectancy 
 of life was about nine and one-half years. There is testimony 
 to the effect that at the time of his death his annual income, 
 arising from his personal exertions, after deducting his per- 
 sonal expenses, equaled the sum of about $1,000 per annum, 
 although the evidence is not entirely satisfactory upon this point, 
 for the reason that the witness testifying on this subject was 
 not certain that he was fully advised regarding the personal 
 expenditures of the father. The money earned by deceased from 
 this source consisted of a salary of $1,500 per annum as an em- 
 ploye of a bank, and about $500 more per annum, earned as a 
 conveyancer and notary, in connection with his bank duties. He 
 had considerable income from investments, but this cannot be 
 considered, in estimating his annual savings. We mention this.
 
 NEGLIGENCE. 443 
 
 however, because it appears that his net worth at the time of 
 his death could not have been so very much in excess of the value 
 of his bank stock, which was $6,400, because it appears that his 
 other investments were incumbered in such an amount that, 
 after deducting interest, there was but little left in the way of 
 income from these sources, after payment of taxes. Had he lived 
 the full term of his expectancy, and during that period been able 
 -at all times to continue to engage in the work in which he was 
 employed at the time of his death, his net personal earnings would 
 have exceeded much more than the damages awarded. It can- 
 not be fairly assumed, however, or expected, that, at his advanced 
 age, he would have continued to labor during all the future years 
 of his life. In considering this question, account should be taken 
 of his liability to illness, his incapability of further exertions by 
 reason of age, and that he might, on account of his years, con- 
 clude to retire from active work; that, in all probability, his 
 age would soon incapacitate him from discharging his duties 
 as an employe in the bank, in which he was engaged; that, if 
 he did continue to earn money for a portion of his expectancy of 
 life, he would at least expend a part so earned for personal use 
 during the remaining years. All these are contingencies which 
 must be considered. Necessarily, the ascertainment of damages, 
 dependent upon a variety of circumstances and future con- 
 tingencies, is difficult of exact computation; but, nevertheless, 
 they cannot be presumed and arbitrarily given. Undoubtedly 
 much latitude must be given a jury in cases of this character, but 
 there must be some basis of facts upon which to predicate a 
 finding of substantial pecuniary loss. Diebold v Sharp, 49 N. 
 E. Rep. 837. 
 
 Except for the statute, appellees could not maintain this ac- 
 tion. Its provisions are beneficent, but limited. In no case un- 
 der it can damages exceed the sum of $5,000. Taking into con- 
 sideration the evidence upon which the award of damages is 
 based in this case, the contingencies to which we have directed 
 attention, the improbability that deceased, during the remaining 
 years of his life, would have saved from net personal earnings a 
 sum anywhere nearly approximating the damages awarded, and 
 the disproportion of that sum to his previous accumulations, it 
 is evident that the jurors certainly failed to consider the in- 
 structions of the court on the subject of damages, but must have 
 been influenced by considerations other than those which the
 
 44i DAMAGES IN ACTIONS FOR WRONGS. 
 
 l;nv recognizes as elements of damages in such cases. For these 
 reasons, the judgment of the district court is reversed and the 
 cause remanded for a new trial. 
 
 Reversed and remanded. 
 
 BROUGHEL v. SOUTHERN NEW ENG. TEL. CO. 
 
 Connecticut, 1901. 73 Conn. 614. 
 
 Action to recover damages for instantaneous death through 
 defendant's negligence. 
 
 Torrance, J. The important questions upon this appeal are 
 these: (1) Under our statutes relating to death by wrongful 
 act, can there be a recovery of substantial damages for mere loss 
 of life alone? (2) If so, what is the measure of damages in such 
 case? These questions will be considered in the order stated. 
 
 When this case was before this court in another aspect of it, 
 one of the points decided was that the mere fact that death was 
 instantaneous, and without pain or suffering of any kind, did 
 not of itself prevent the recovery of substantial damages. 
 Broughel v. Telephone Co., 72 Conn. 617. In effect, that case, 
 we think, decides the first question against the contention of the 
 defendants. It was found by the trial court in that case that 
 death was the sole and only consequence of the negligent act, 
 and yet it was decided that the plaintiff was entitled to recover 
 substantial damages for that consequence. That decision can 
 only be supported on the theory that imder our statutes of the 
 kind here in question damages may be recovered for the mere 
 loss and deprivation of life alone, for in that case it Avas found 
 that no other consequence save mere loss of life followed from 
 the negligent act. A negligent act causing death is an invasion 
 of the right to life, the first and highest of all rights, 
 on which all others are based. That act may be attend- 
 ed by divers consequences and effects. It may be followed 
 — as it is found it was in the present case — by death alone, in- 
 stantly and painlessly; or it may be followed by bodily and 
 mental suffering and agon.y as well as by death. We think our 
 statutes make the wrongdoer in such cases liable in damages to 
 the executor or administrator of the decedent for any and all 
 such consequences, and among them for the mere loss and de-
 
 NEGLIGENCE. 445 
 
 privation of life. For sueh consequences he is to pay "just dam- 
 ages," not exceeding a prescribed amount. This view of this 
 matter was the one taken in Murphy v. Railroad Co., 30 Conn. 
 184. This court there said: "If to take one's liberty or one's 
 property without justification is an injury, how much more is 
 the taking of human life ? The elementary books, in speaking of 
 absolute rights, classify them thus: (1) The right of personal 
 security; (2) the right of personal liberty; and (3) the right 
 to acquire and enjoy property. If these rights are valued in this 
 order of preference, then every man of common understanding 
 would at once pronounce it absurd to hold that it is no injury to 
 a person to take his life, while it is to strike him a light blow. 
 Such a distinction is not worth talking about, and has no found- 
 ation or existence in the law, as it has none in common sense." 
 In the legislation of this state, statutes making wrongdoers liable 
 in damages for mere loss of life have been quite common. The 
 first printed edition of the statutes contained a provision of this 
 kind. It was therein provided that, "if any person shall lose 
 his life" by means of a defective bridge or highway under cer- 
 tain circumstances, the wrongdoer should pay "to the parents, 
 husband, wife, or children, or next of kin to the person de- 
 ceased," the sum of $334, to be recovered in an action at law. 
 Revision 1808, p. 120. In 1851 an act was passed providing that, 
 "if any person shall be deprived of life" in consequence of cer- 
 tain acts or omissions of the servants of any railroad company, 
 such company should pay to the parties named in the act the 
 sum of $1,000, to be recovered in an action of debt on the statute. 
 Pub. Acts 1851, c. 43. In 1853 an act was passed providing 
 that, if the life of any person "shall be lost" under certain pre- 
 scribed circumstances by reason of the negligence of a railroad 
 company, such company should be liable to pay damages not ex- 
 ceeding $5,000 nor less than $1,000 to the person described in 
 the act. Pub. Acts 1853, c. 74. In 1869 an act was passed 
 providing that, if the life of any person "shall be lost" by the 
 neglect of a railroad company to maintain fences as prescribed 
 in the act, such company should be liable to pay damages not 
 exceeding $5,000 to the persons named in the act. Pub. Acts 
 1869, c. 48. In 1877 a general act was passed providing that for 
 injuries "resulting in death" from negligence "the party legally 
 in fault for such injuries" should be liable for "just damages, 
 not exceeding five thousand dollars." Pub. Acts 1877, c. 78,
 
 446 DAMAGES IN ACTlOJMb FOK WKONGS. 
 
 These tuul other acts of a kindred nature, as they existed at the 
 time ol" the Revision of 1888, were embodied in seetions 1008 and 
 1009 of that revision, and it was under the provisions of these 
 seetions that the present suit was brought. This legislation 
 clearly shows an intent to make wrongdoers in certain cases, and 
 under certain limitations, liable in damages for mere loss or 
 deprivation of life; and there is nothing in any legislation 
 prior or subsequent to 1888 that indicates an intent on the part 
 of the legislature to exempt such wrongdoers from such liability. 
 We are not aware of any decision of this court that is inconsistent 
 with the view here taken of the legislation in question, and we 
 are satisfied that it is the correct one. 
 
 The next question relates to the measure of damages for mere 
 loss of life. So far as we are aware, this question, in the precise 
 form in which it is now presented, has not before been passed up- 
 on by this court, and we are at liberty to decide it upon prin- 
 ciple. It is probably true, in point of fact, that in suits here- 
 tofore brought in this state for injuries resulting in death from 
 wrongful act the value of the life of the deceased has, wdth 
 other elements, entered into the award of damages ; but, if so, 
 that element has not been, so far as we are aware, separately dis- 
 cussed or considered by this court. The statutes upon this sub- 
 ject do not, in terms, at least, furnish any guide in this matter. 
 They merely provide that the wrongdoer in such cases shall pay 
 "just damages," not exceeding $5,000. There are, however, 
 certain considerations arising out of the nature and character 
 of this kind of legislation in our state, and out of the nature of 
 death as one of the harmful consequences of an injury, that may 
 serve as guides in coming to a right conclusion in this matter. 
 From the beginning our legislation of this kind was intended to 
 subserve at least two purposes: (1) It w^as designed to make 
 persons and corporations whose negligence might injuriously 
 affect the lives and limbs of others more careful and circumspect, 
 by continuing their liability for the results of their negligence 
 even after the death of the victim, and by making them liable 
 in damages, to a limited extent, for death, as one of the conse- 
 quences of that negligence. In this aspect of it, this legislation 
 may be said to be of a punitive or penal character. Connecticut 
 ]Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265, 
 273. (2) This legislation was also and mainly designed to make 
 some compensation in money for mere loss of life, which com-
 
 NEGLIGENCE, 447 
 
 pensation, as part of the estate of the injured party, should 
 go to certain designated persons; not full compensation of this 
 kind for such a consequence, but "just damages," not exceeding 
 a prescribed amount. In this last aspect of it this legislation 
 plainly contemplates that the extent of such loss may be greater 
 in one case than another ; or, to put this in a different way, that 
 the value of the life to the injured party— or, what is the same 
 thing, to his estate — in terms of money may be greater in one 
 case than in another. Under our decisions the loss of life is not 
 to be estimated from the standpoint of the statutory beneficiaries. 
 Their loss, if any, arising from the death cannot be taken into 
 account. Goodsell v. Railroad Co., 33 Conn. 51 ; McEUigott v. 
 Randolph, 61 Conn. 157. This being so, the only other thing 
 that can be done is to estimate the loss from the standpoint of 
 the party injured, and thus, in a sense, take the value of his 
 life to him as one of the elements in measuring the damages. But 
 in what sense shall the value of his life to him be taken as such 
 an element ? Shall it be what the man thought or imagined his 
 life was worth to him; that is, what a man would take in ex- 
 change for his life ? Clearly not. In that aspect of the injury 
 there can be no measure for it, because a man's life to himself, 
 no matter what his age, or condition of health, or expectancy of 
 life vaSij be, outweighs in value the universe. In that sense it is 
 folly to talk of the value of any life being worth less than the 
 maximum sum prescribed by the statutes. Our statutes, in 
 providing compensation in part for death alone as the conse- 
 quence of a negligent act, do not proceed upon any such view of 
 the value of life as this, else would they have provided for a fixed 
 sum as damages in each case ; but they proceed, in part at least, 
 upon the theory that a loss of earning capacity by death is a loss 
 to a man's estate, which may be greater or less according to cir- 
 cumstances, and so within a maximum limit a sliding scale of 
 damages is provided. Under these statutes the right to re- 
 cover a limited compensation for death alone as one of the re- 
 sults or consequences of a wrong inflicted upon a man in his 
 lifetime survives to, or is vested in, his executors or administra- 
 tors for the benefit of certain designated beneficiaries, and is 
 thus in a certain sense made a part of his estate, regarded as 
 that aggregate of rights and possessions which a man leaves at 
 his death. This legislation seems to regard the life of the person 
 iniured as having a greater or less value, according to eireum-
 
 448 DAMAGES IN ACTIONS FQli WRONGS. 
 
 stances, to him, or, what is the same thing in this connection, 
 to his estate; and one of its objects in awarding damages for 
 mere loss of life is to compensate his estate, in the sense above 
 explained, for that loss; and in cases like the present that loss, 
 thus nieasured, may be the chief or only element to be consid- 
 ered in fixing the extent of the defendant 's liability. We do not 
 mean to say that this would be the only element to be considered 
 in cases 'like the one at bar, but only that ordinarily in them 
 it might or would be the principal element. It is unnecessary 
 here to decide what other elements, if any, may properly be con- 
 sidered in such cases, for w-e think the trial court took as the 
 measure of damages in this case the loss to the estate of Davis 
 in the sense above explained, and it does not appear that in 
 fixing the quantum of damages it considered any other element. 
 It is true, the court says that it took as the measure of damages 
 "the value of the deceased's life, at the time of the injuries, to 
 himself;" and it is true that this language is somewhat am- 
 biguous. It may mean that the court took as the measure of 
 damages what a man would take in exchange for his life, or it 
 may mean that the court measured the damages by the loss to 
 the estate of the decedent in the sense above explained. We 
 think this last is what the court did, and what it meant to say 
 it did, for it lieard, and, we are bound to presume, considered, 
 evidence which it would neither have heard nor considered if it 
 had proceeded upon the other view of the extent of the loss. But 
 it is said that a loss of this kind is too vague, indefinite, and 
 uncertain to be estimated pecuniarily, and is, in its nature, in- 
 capable of judicial determination. We think there is nothing in 
 this claim. Injuries, in the sense of wrongful invasions of a 
 right, may be considered as of two kinds: (1) Pecuniary, and 
 (2) nonpeeuniary. Pecuniary injuries are such as can be, and 
 usually are, without difficulty estimated by a money standard. 
 Loss of real or personal property or of its use, loss of time, and 
 loss of services, are examples of this class of injuries. Non- 
 pecuniary injuries are those for the measurement of which no 
 money standard is or can be applicable. As the books phrase it, 
 damages in such cases are "at large." Bodily and mental pain 
 and suffering are familiar examples of this class. It is within 
 this last class that injury arising from loss of life under our 
 statutes falls. There is no more legal difficulty in estimating 
 damages for loss of life in cases like the present than there is
 
 NEGLIGENCE. 449 
 
 in estimating damages for bodily or mental pain and suffering, 
 or for maim or disfigurement, or for injured feelings; and 
 yet damages for this sort of injury are being constantly esti- 
 mated and awarded by the courts in proper cases. The difficulty, 
 or even impossibility, of estimating with certainty in money the 
 amoimt of injury in this class of cases is never considered a 
 reason for refusing redress. Cook v. Bartholomew, 60 Conn. 26 ; 
 Post v. Railway Co., 72 Conn. 362; Railroad Co. v. Allen, 53 
 Pa. 276 : Ballon v. Famum, 11 Allen, 73. In the view we have 
 taken of this case, the rulings upon evidence of which the defend- 
 ant complains were correct, and the rulings upon the claims of 
 law made by the defendant were also correct. There is no error. 
 The other judges concurred. 
 
 SMITH V. LEHIGH VALLEY R. CO. 
 
 New York. 1904. 177 N. Y. 379. 
 
 Action by Porter D. Smith, administrator of Amy A. Smith, 
 against the Lehigh Valley Railroad Company, to recover dam- 
 ages for the death of plaintiff's intestate. 
 
 Parker, C. J. * * * 
 
 We are also of the opinion that the court erred in admitting in 
 evidence the photograph of deceased. The action was to re- 
 cover for pecuniary injuries resulting from decedent's death. 
 Code Civ. Proc. § 1904. Such injuries are to be compensated 
 for on the basis of the monetary value of the services of deceased 
 to her husband and children. Into such a case the personal 
 element does not enter, for the law does not compensate for 
 grief or sorrow, but only for the actual pecuniary loss. The in- 
 troduction in evidence of the photograph of a handsome woman 
 could not be expebted to accomplish any other result than to in- 
 troduce the personal element for the consideration of the jury. 
 Certainly the language employed in Lipp v. Otis Brothers & Co., 
 161 N. Y. 559, would seem to be applicable to the introduction 
 of this photograph: "Clearly, the testimony we have been con- 
 sidering could not render any service in the ease other than to 
 awaken the sympathies and thus influence the judgment of the 
 jurors in the direction of a greater award, nor is it reasonable to 
 assume that any other result was expected from it." In that 
 
 29
 
 450 DAMAGES IN ACTIONS FOR WRONGS. 
 
 case this court ivvorsod a jiulginont ol)tainod by a father, as sole 
 next of kin, for piH-uniaiy injiirios resultiiitjj from his sou's death. 
 No one except the father was entitled to recover, and yet 
 plaintiff was permitted to question a brother of deceased 
 as to brothers, sisters, nephews, and nieces of deceased, 
 and their necessities — testimony which pointed out opportunities 
 plaintiff would have for making charitable use of any moneys 
 left after satisfying his owti necessities. The reason for the de- 
 cision in that case calls for a decision in this, that evidence of 
 such a character should not be received in cases where the per- 
 sonal element is not permitted by the statute to enter, as in this 
 case. 
 
 The judgment should be reversed, and a new trial granted, 
 with costs to abide the event. 
 
 Under Lord Campbell's Act, the jury can consider the amount of 
 decedent's property, his age, and prospective increase of wealth, 
 and also that he might have married, and his fortune gone in other 
 channels, R. R. Co. v. Barrow, 5 Wall 90. Minor children can recover 
 for loss of individual pecuniary benefits. Terry v. Jewett, 78 N. Y. 
 338. Under some statutes, as in New York, remofe collateral kinsmen 
 may recover. Evidence as to damage must be presented to the jury; 
 the jury cannot give a verdict with nothing before them. Beeson v. 
 Mining Co., 57 Cal. 20; Morgan v. Southern Pacific Co. 97 Cal. 510. 
 Pain suffered by decedent prior to his death is not an element of dam- 
 age. Judge Phillips says in C. B. & Q. R. R. v. Gunderson, 174 111. 
 499: "The right of lineal kindred to a"t least nominal damages, with- 
 out proof of support, is given by the statute." It is not error for the 
 trial judge to charge the jury without elaboration, that it could give 
 the plaintiff only the money value of the wife's life to him, unaffected 
 by sentimental considerations. Waechter v. Second Ave. Traction Co., 
 198 Pa. 129. The obligation created by the New York act (Code Civ. 
 Proc, sec. 1902) can not be enforced against a city for death caused 
 by unsanitary conditions. Hughes v. City of Auburn, 161 N. Y. 96. 
 
 Contributory negligence by decedent is a bar to recovery. Schlem- 
 mer v. Buffalo R. & P. Ry. Co. (Penn. 1909), 71 Atl. Rep. 1053. ' 
 
 Compensation must be limited to the pecuniary loss sustained; a 
 husband is entitled to recover to the value of the services his wife may 
 discharge in her domestic duties; and the cost of maintenance must 
 be deducted from the value of such services. Gorton v. Harmon, 152 
 Mich. 478. 
 
 Where plaintiff has married a second wife, since the wrongful kill- 
 ing, who performs all the services rendered by the deceased wife, the 
 jury cannot consider this in mitigation of damages. Chicago & E. I. R. 
 Co. V. Driscoll, 207 111. 9. 
 
 la estimating pecuniary loss the jury can consider the loss of society,
 
 TRESPASS. 451 
 
 comfort and care suffered by kinsmen in the death of husband and 
 father. Dyas v. Southern Pacific Co., 140 Cal. 296. 
 
 Plaintiff cannot recover for "protection and support" to be received 
 by him from his female child. Quill v. Southern Pacific Co., 140 
 Cal. 268. 
 
 Damages may not be awa^-ded for mere loss of society, regardless of 
 any actual pecuniary loss. Wales v. Pacific Electric Motor Co., 130 
 Cal. 521. 
 
 Damages to a father from the death of a boy must be such as 
 would compensate him for his expectation of pecuniary benefit from 
 the deceased; a verdict of $5,000 was set aside. Graham v. Consoli- 
 dated Traction Co., 64 N. J. L. 10. 
 
 It is immaterial that a crippled son of decedent needs support on 
 account of his helpless condition. Chicago, P. & St. L. R. R. v. Wool- 
 ridge, 174 111. 335. "The feelings of the widow and next of kin, their 
 wealth or poverty, or any other fact than the pecuniary injury, cannot 
 be considered in assessing the damages." R. R. v. Baches, 55 111. 379. 
 
 2. Trespass. 
 PERROTT V. SHEARER. 
 
 Michigan, 1868. 17 Mich. 48. 
 
 This was an action of trespass for seizing and taking certain 
 goods of the plaintiff. The goods were destroyed by fire, while 
 in the possession of such officer. 
 
 CooLEY, Ch. J. The plaintiff in error, as sheriff of the 
 county of Bay, by virtue of a writ of attachment against the 
 goods and chattels of Henry H. Swinscoe, levied upon a stock 
 of goods which Shearer claimed as assignee of the firm Swinscoe 
 & Son, composed of said Henry H. Swinscoe and George E. 
 Swinscoe. * * * 
 
 The principal question in the case springs from the fact that 
 the goods, while under the control of the defendant, in pursu- 
 ance, as the plaintiff claimed, of said attachment levy, were ac- 
 cidentally destroyed by fire. The plaintiff, it appears, held, at 
 the time, insurance policies upon them to their full value, and, 
 after the fire, presented to the insurance companies proofs of 
 the loss, and received pay therefor. Upon this state of facts it 
 was claimed by defendant, that plaintiff's position was the same 
 as if he had repossessed himself of the goods by replevin; and 
 that he was entitled to recover damages only for their detention
 
 452 DAMAGES IN ACTIONS FOB WRONGS. 
 
 up to the time of the lire. The Circuit Judge held differently, 
 ;:iul instruc'tod the jury that the plaintiff was entitled to recover 
 the full value of the goods, and he had judgment for the value 
 accordingly. 
 
 It certainly strikes one, at first, as somewhat anomalous, 
 that a party should be in position to legally recover of two dif- 
 ferent parties the full value of goods which he has lost ; but we 
 think the law warrants it in the present case, and that the de- 
 fendant suffers no wrong by it. He is found to be a wrong-doer 
 in seizing the goods, and he cannot relieve himself from re- 
 sponsibility to account for their full value except by restoring 
 them. lie has no concern with any contract the plaintiff may 
 have" with any other party in regard to the goods, and his rights 
 or liabilities can neither be increased nor diminished by the fact 
 that such a contract exists. He has no equities as against the 
 plaintiff which can entitle him, under any circumstances, to an 
 assignment of the plaintiff's policies of insurance. The ac- 
 cidental destruction of the goods in his hands was one of the 
 risks he ran when the trespass was committed, and we do not 
 see how the law can relieve him from the consequences. If the 
 owTier, under such circumstances, keeps his interest insured, he 
 cannot be held to pay the money expended for that purpose for 
 the interest of the trespasser. He already has a right of ac- 
 tion for the full value of the goods, and he does not give that 
 away by taking a contract of insurance. For the latter he pays 
 an equivalent in the premium, and is, therefore entitled to the 
 benefit of it, if any benefit shall result. The trespasser pays 
 nothing for it, and is, therefore, justly entitled to no return. 
 The case, we think, is within the principle of Merrick v. Brain- 
 ard, 38 Barb. 574, which appears to us to have been correctly 
 decided. The plaintiff recovers of the defendant for the wrong 
 that has been done him in taking his goods ; and he recovers of 
 the insurance company a large sum for a small outlay, because 
 such payment was the risk they assumed, and for which they were 
 fairly compensated. It is not a question of importance in this 
 inquiry whether the act of the defendant caused the loss or not: 
 his equitable claim to a reduction of damages, if he could have 
 any, would spring from the fact that the plaintiff recovers pay 
 for his property twice ; but the answer to this is, that he re- 
 covers but once for the wrong done him, and he receives the 
 insurance money upon a contract to which the defendant is in
 
 TRESPASS. 453 
 
 no way privy, and in respect to which his own wrongful act 
 can give him no equities. 
 
 We discover no error in the record, and the judgment must be 
 affirmed, with casts. 
 
 Campbell and Graves, JJ., concurred. 
 
 STODGHILL v. CHICAGO, BURLINGTON, & QUINCY 
 RAILROAD. 
 
 Iowa, 1880. 53 la. 341. 
 
 Christopher Stodghill was the owner of a farm of some four 
 hundred and eighty acres in Wapello County. Part of said farm 
 consisted of a tract of twenty-nine acres of creek or pasture 
 land. The defendant's right of way for its railroad was lo- 
 cated along the north line of said tract. The natural channel 
 of North Avery Creek ran across the right of way upon said 
 tract, meandered through it, and recrossed the north line of the 
 land, and the right of way. When the railroad was constructed, 
 bridges were built across the creek which spanned the channel, 
 and did not obstruct the passage of the water in the stream, nor 
 divert it from where it was wont to flow. In 1874 the defend- 
 ants cut a channel on the north side of their right of way, and 
 filled in the bridge where the stream entered plaintiff's land, 
 with earth, which diverted the stream into the new channel en- 
 tirely, except as the water backed through a culvert at the point 
 where the water recrosses the right of way; the said bridge at 
 the last-named point having been previously removed, a culvert 
 there constructed, and the stream filled in at this point, except 
 the culvert aforesaid. 
 
 Christopher Stodghill commenced an action against the de- 
 fendant for damages to his land by reason of the diversion of 
 the stream. He recovered a verdict and judgment for one dollar 
 and costs. The case was affirmed upon appeal to this court. 
 See Stodghill v. C. B. & Q. R. Co., 43 Iowa, 26. 
 
 Said Stodghill died in the year 1876, and by his last will and 
 tcKtament, which was duly admitted to probate, he devised the 
 said twonty-nine acres with other of his lands to the plaintiff. 
 This action was commenced in February, 1877, to recover dam- 
 ages for continuing to divert the water from the natural channel
 
 454 DAMAGES IN ACTIONS FOK WRONGS. 
 
 of said ereok, and for a judgmont directing the abatement and 
 removal of the embankments in the original channel. 
 
 There was a trial by the conrt without the intervention of a 
 jury, and a judgment was rendered for plaintiff for one dollar 
 actual damages, and seventy-five dollars exemplary damages, 
 and an order was made requiring the defendant to abate and 
 remove said obstmctions from the natural channel of the creek. 
 Defendant appeals. 
 
 RoTHROCK, J, When the earth was deposited in the channel 
 of the creek and raised to a sufficient height to cover over the 
 bridge and make a solid embankment upon which to lay the rail- 
 road track, the water in the creek was at once turned into the 
 new channel. The principal question in the case is whether the 
 judgment for damages in favor of Christopher Stodghill was 
 a full adjudication for all injuries to the land, not only up to the 
 commencement of that suit, but for all that might thereafter 
 arise. In Powers v. Council Bluffs, 45 Iowa, 652, the question 
 being as to what is a permanent nuisance, it was held that where 
 it is of such character that its continuance is necessarily an in- 
 jury, and that when it is of a permanent character that will 
 continue without change from any cause but human labor, the 
 damage is original, and may be at once fully estimated and com- 
 pensated; that successive actions will not lie, and that the Stat- 
 ute of Limitations commences to run from the time of the 
 commencement of the injury to the property. That was a case 
 where the plaintiff sought to recover damages against the city 
 for diverting the natural channel of a stream, called Indian 
 Creek, by excavating a ditch in a street in such a manner that 
 it widened and deepened by the action of the water, so as to in- 
 jure plaintiff's lot abutting upon said street. The same rule was 
 recognized in Town of Troy v. Cheshire Railroad Co., 3 Foster 
 (N. H.), 83. In that case the defendant constructed the em- 
 bankment of its railroad upon a part of a highway. The action 
 was by the town to recover damages. The plaintiff claimed that 
 it was entitled to recover for the damages for the permanent 
 injury. The court said: "The railroad is in its nature, design, 
 and use, a permanent structure, which cannot be assumed to 
 be liable to change ; the appropriation of the roadway and mate- 
 rials to the use of the railroad is, therefore, a permanent diver- 
 sion of that property to that new use, and a permanent dis- 
 possession of the town of it as the place on which to maintain a
 
 TRESPASS. 455 
 
 highway. The injury done to the town is, then, a permanent 
 injury, at once done by the construction of the railroad, which 
 is dependent upon no contingency of which the law can take 
 notice, and for the injury thus done to them they are entitled 
 to recover at once their reasonable damages. ' ' 
 
 The ease at bar is much a stronger illustration of what is a 
 permanent nuisance or trespass for which damages, past, present, 
 and prospective, may be recovered, than Powers v. Council 
 Bluffs. In this case the damages to the whole extent were at once 
 apparent. The water was diverted from the natural channel as 
 soon as the embankment was raised to a sufficient height to turn 
 the current into the new channel. The injury to the land was 
 then as susceptible of estimation as it ever afterwards could be, 
 and without calculating any future contingencies. In the other 
 case, when the water commenced to flow in the new channel the 
 plaintiff's lots were not injured. It required time to wash away 
 the banks and work backward before the injury commenced. It 
 is not necessary to dwell upon this question. The rule estab- 
 lished in Powers v. Council Bluffs, supra, is decisive of this case. 
 See, also Chicago & Alton R. R. Co. v. Maher, Supreme Court 
 of Illinois, Chicago Legal News, July 5, 1879. Counsel for ap- 
 pellee contend that the railroad embankment is not permanent 
 because it is liable to be washed out by freshets in the stream, 
 and cannot stand without being repaired. There is no evidence 
 in this record tending to show that the embankment is insufficient 
 to accomplish the purpose for which it was erected; that is, 
 to make a solid railroad track and divert the water into the new 
 channel. One witness testified that it is from sixteen to eighteen 
 feet high. We will not presume that the defendant was guilty of 
 such a want of engineering skill as not to raise its embankments 
 so that they will not be affected by high water. It seems to 
 us that a railroad embankment, of proper width and raised to 
 the proper height, is about as permanent as anything that human 
 hands can make. Before leaving this branch of the case, it is 
 proper to say that the acts complained of were done within the 
 limit of the defendant's right of way, and the injury, if any, to 
 the plaintiff's land, was consequential. The defendant did not 
 enter upon plaintiff's land to take a right of way for its railroad, 
 and Christopher Stodghill did not bring his action to recover 
 upon that ground. As we have a statute providing for pro- 
 ceedings to condemn the land necessary to be taken for right
 
 456 DAMAGES IN ACTIONS KOR WRONGS. 
 
 of way for railroad purposes, it may be that tlu> mode of ascer- 
 taining the damages prescribed by the statute must be pursued. 
 See Daniels v. C. & N. W. R. K. Co., ;};") h.wa, 129. That ques- 
 tion, however, is not in this case, and we only refer to it lest we 
 may be misunderstood. 
 
 Christopher Stodghill, in his petition in the former action, 
 averred that the diversion of the stream from its natural course 
 across said land perpetually deprived him of the use thereof, 
 to his great damage in tlie prosecution of his business, and in 
 the depreciation in the value of his said farm and pasture lands, 
 and he claimed damages in the sum of $499. The court in- 
 structed the jury in that case that they were not to consider 
 the question in regaid to any permanent damage to the land, 
 for the reason that the plaintiff had the right to institute other 
 suits to recover damages sustained after the commencement of 
 the action. 
 
 But the plaintiff claimed damages generally, and by his plead- 
 ings he and those holding under him must be bound. Indeed, 
 we do not understand counsel for appellee to contend otherwise. 
 The damages being entire and susceptible of immediate recovery, 
 the plaintiff could not divide his claim and maintain successive 
 actions. The erroneous instructions of the court to the jury 
 did not affect the question. It was the duty of the plaintiff 
 to have excepted and appealed. "An adjudication is final and 
 conclusive, not only as to the matter actually determined, but 
 as to every other matter which the parties might have litigated 
 and have had decided, as incident to or essentially connected 
 with the subject-matter of litigation." Freeman on Judgments, 
 sec. 249. And see Dewey v. Peck, 33 Iowa, 242; Schmidt v. 
 Zahensdorf, 30 Iowa, 498. 
 
 The foregoing considerations dispose of the case, and it be- 
 comes minecessary to examine or determine other questions dis- 
 cussed by counsel. 
 
 Reversed.
 
 TRESPASS. 457 
 
 KOERBER V. PATEK. 
 
 Wisconsin, 1905. 123 Wis. 453. 
 
 Action to recover damages for mutilation of the dead body of 
 plaintiff's mother. Appeal from an order sustaining a demurrer 
 to the complaint. 
 
 Dodge, J. This action presents a field for consideration un- 
 charted by any direct decisions in this court. The primary and 
 general question is whether any relative, having the convention- 
 ally recognized duty of providing proper obsequies and sepulture 
 for the remains of a deceased relative, has any rights, enforceable 
 by courts, to be protected in the performance of that service. It 
 is said the law protects only the person and the purse (Chapman 
 V. W. U. Tel. Co., 88 Ga. 763), and doubtless, as an epigram- 
 matic generalization, this is reasonably correct. Upon this basis 
 it is argued that such a complaint as the present presents no case 
 of injury either to property or person of the plaintiff — clearly 
 not to the person physically, and not to the property, it is argued, 
 because there can be no property in a dead body. * * * 
 
 For the purposes of this case we shall not deem it necessary to 
 consider whether a corpse can be, in any respect, property. From 
 the authorities cited, and from original reason, the conclusion 
 seems to us irresistible that in the nearest relative of one dying, 
 so situated as to be able and willing to perform the duty of cere- 
 monious burial, there vests the right to perform it, and that this 
 is a legal right, which, as said in some of the cases, it is a wrong 
 to violate, and which, therefore, courts can and should protect 
 and vindicate. * * * 
 
 We can imagine no clearer or dearer right in the gamut of civil 
 liberty and security than to bury our dead in peace and unob- 
 structed ; none more sacred to the individual, nor more important 
 of preservation and protection from the point of view of public 
 welfare and decency; certainly none where the law need less 
 hesitate to impose upon a willful violator responsibility for the 
 uttermost consequences of his act. We recognize, of course, that 
 public welfare may and does require governmental control in 
 many respects for protection of life and health of the people, and 
 for discovery of crime connected with the death of a person, and 
 to such interests the private right is subservient so far as neces- 
 sary. Upon this ground rest cases of autopsies upon dead bodies 
 under public authority, and to satisfy police regulations for as- 
 certainment of cause of death.
 
 458 DAMAGES IN ACTIONS FOR WRONGS, 
 
 The question whether anything more than nominal damages 
 can be recovered has been earnestly argued by counsel, anci is 
 only second in importance to that of the existence of any cause 
 of action at all, for, obviously, in cases of this character, any pe- 
 cuniary loss to plaintiff must usually be merely trifling. The 
 great injury done consists in the outrage upon the sensibilities. 
 Can such injury be considered as legal damage, otherwise than 
 by Avay of imposing punitory damages in case of actual malice ? 
 It is settled in this as in most jurisdictions that mental suffering 
 may be an actual injurj', for which award is to be made strictly 
 as compensation in proper eases. Wilson v. Young, 31 Wis. 574; 
 Gatzow V. Buening, 106 Wis. 1. Such injury, however clearly 
 existent, has been held not a proper element of recoverable dam- 
 ages "in actions on contract, except breach of promise of marriage. 
 Walsh V. Ry. Co., 42 Wis. 23 ; Giese v. Schultz, 53 Wis. 462. Nor 
 in actions of mere negligence, unless, as a proximate result of the 
 negligence, there be physical injury from which flows the mental 
 suffering. Summerfield v. W. U. Tel. Co., 87 Wis. 1. In these 
 respects we differ from a few courts which have adopted what is 
 knowTi as the "Texas doctrine," applied originally to failure to 
 deliver telegrams, but since to other phases of both negligence 
 and breach of contract causing mental anguish. In Indiana it 
 has been invoked to support such damages resulting from breach 
 of contract to prepare and preserve a corpse for burial, Renihan 
 V. Wright, 125 Ind. 536. That doctrine, with its supporting 
 authorities, was reviewed fully in the Summerfield Case, and 
 repudiated. The only other tort action in Wisconsin where 
 mental suffering was denied as an element of compensatory dam- 
 ages is Gatzow V. Buening, 106 Wis. 1, which was for a conspir- 
 acy to induce the breaking of a contract to supply a hearse for a 
 funeral ; the contract being broken, and, as a result, the funeral 
 interrupted. In many other tort actions mental distress has been 
 held a proper independent element of damage, though in no wise 
 resulting from a physical injury, but directly from the wrongful 
 act — from the outrage of some legal right. Only a few such need 
 be cited. Craker v. Ry. Co., 36 Wis. 657 ; Fenelon v. Butts, 53 
 Wis. 344 ; Stutz V. Ry. Co., 73 Wis. 147 ; Grace v. Dempsey, 75 
 Wis. 313 ; Pelardis v. Journal Printing Co., 99 Wis. 156 ; Ford v. 
 Schliessman, 107 Wis. 479. It is thus apparent that some torts 
 do and some do not, subject the perpetrator to liability to com- 
 pensate the anguish and suffering which his wrongful act im-
 
 TRESPASS. 459 
 
 poses upon the victim. Probably the line between them is not so 
 accurately drawTi that the location of every act on the one side 
 or the other is always easy or free from doubt. It is obvious that 
 in mere negligence there is no intent to offer indignity to, or 
 wound the feelings of, another; and it may be legitimately said, 
 as matter of law, that such result from mere inadvertence is so 
 remote and beyond ordinary probabilities that there exists no 
 proximate causal relation between the two, unless a physical in- 
 jury is caused, out of which, in natural sequence, arises mental, 
 like physical, pain. In Summerfield v, W. U. Tel. Co., supra, this 
 court, by the pen of Mr. Justice Winslow, quoted approvingly 
 from W. U. Tel. Co. v. Rogers, 68 Miss. 748, a classification of the 
 torts other than negligence supporting recovery for mental suffer- 
 ing as an independent element, as follows : ' ' Cases of willful 
 wrong — especially those affecting the liberty, character, reputa- 
 tion, personal security, or domestic relations of the injured 
 party. ' ' In Gatzow v. Buening, supra, it was said that the wrong 
 there complained of, already described, did not fall within the 
 above category. This was quite obviously true of the particular 
 tort, to wit, the conspiracy to prevent the making or performance 
 of a contract to supply a hearse for a funeral. In that there 
 could be no intent to wound the feelings of plaintiff — he was not 
 in the mind of the conspirators ; and, if some such result was to 
 be anticipated as possible, it would be quite as remote as from the 
 mere act of breaking the contract. Such damage would be not 
 the direct result of the conspiracy, but remote and consequential, 
 like the disappointment resulting from breach of a promise to 
 supply on time a wedding present or funeral flowers. The prox- 
 imate causal relation between the conspiracy and the mental 
 effect was lacking. Counsel seem to read that case as if it were 
 one against Buening alone for his violence and force in physi- 
 cally preventing plaintiff from using the hearse, in abusive and 
 turbulent manner, evincive of an intent to insult and outrage 
 his feelings. Had that been the act complained of, we could 
 hardly have said that it did not fall within the classification ap- 
 proved in the Summerfield Case, including willful wrongs affect- 
 ing the "liberty," "security," or "domestic relations." In Ford 
 V. Schliessman, supra, it was pointed out that an assault or tech- 
 nical imprisonment, though without physical contact, falls within 
 the classification of the Summerfield Case, because "it invades 
 the personal liberty and rights." Again, in Hacker v. Heiney,
 
 460 DAMAGES IN ACTIONS FOR WRONGS. 
 
 supra, in diiscussing the contention tliat there could be no recov- 
 ery for injury to feelings in absence of other actual damage, it 
 was said: "The rule for which appellant contends has been ap- 
 plied only to cases of negligence or of alleged personal injury, 
 where the mental suffering can result only from the injury, and 
 not from the tort. It has never been applied to cases of malice, 
 such as false imprisonment and slander." In Larson v. Chase, 
 supra, the remarks of ]\litchell, J., on this subject, are so philo- 
 sophical that we cannot forbear quoting them. He says: "Every 
 injury imports a damage. Hence the complaint stated a cause 
 of action for at least nominal damages. We think it states more. 
 There has been a great deal of misconception and confusion as 
 to when, if ever, mental suffering, as a distinct element of dam- 
 age, is a subject for compensation. This has frequently resulted 
 from courts giving a wrong reason for a correct conclusion that 
 in a given case no recovery could be had for mental suffering; 
 placing it on the ground that mental suffering, as a distinct ele- 
 ment of damage, is never a proper subject of compensation, when 
 the correct ground was that the act complained of was not an in- 
 fraction of any legal right, and hence not an actionable wrong at 
 all, or else that the mental suffering was not the direct and prox- 
 imate effect of the wrongful act. * * * But where the 
 wrongful act constitutes an infringement of a legal right, mental 
 suffering may be recovered for, if it is direct, proximate, and 
 natural result of the wrongful act." In Lombard v. Lenox, 155 
 Mass. 70, it is said: "If the ordinary and natural consequence 
 of the tort is to cause an injury to the feelings of the plaintiff, 
 and if the acts are done willfully or with gross carelessness of 
 the right of plaintiff, damages may be recovered for mental suf- 
 fering. " Similar views are expressed by text- writers. 1 Sedg- 
 wick, Dam. (8th Ed.) §§ 43 to 47; 1 Sutherland, Dam. § 95 
 et seq. ; 2 Kinkead, Torts, § 463. 
 
 These expressions from other courts are perhaps useful as in- 
 dicating the philosophy involved in distinguishing between those 
 torts which may and those which cannot be deemed to so proxi- 
 mately cause sense of outrage and mental suffering that the law 
 will recognize such effect as an independent element of recover- 
 able damage, whether resulting merely from some other injury, 
 or directly from the tort itself ; but they do not, in our judgment, 
 vary or enlarge the field charted and delimited in the Summer- 
 field Case, as above quoted. For the present case we are con-
 
 TRESPASS. 461 
 
 vinced that sufficient guide can be found in the catalogue there 
 promulgated. Certainly this complaint asserts a "willful 
 wrong," not only in the sense that some injury to plaintiff's legal 
 rights was intended, but also that an affront to his feelings was 
 so certain to be caused by the defendant 's act that the latter must 
 be deemed to have intended that particular injury. We also 
 think that, without undue stretch of meaning, the wrong com- 
 plained of affects the "domestic relations" — otherwise called the 
 relative rights — of plaintiff. The duty of surviving spouse, par- 
 ent, or child to provide proper burial for the corpse springs from 
 the relationship to the person deceased. The desire to perform 
 such service is founded in that respect and affection entertained 
 for the relative, of whom the body, it is true, is but the symbol, 
 but, for the few hours after life ceases, seems so to still represent 
 him who was, that acts of care and protection to it are still paid 
 to such departed. Mr. Kinkead says, ' ' The family tie takes us to 
 the last resting place of our dead" (2 Torts, § 459), and there- 
 fore classes torts of the kind here presented as committed against 
 the relative rights growing out of the domestic relations, like 
 seduction or abduction of wife or child. Mr. Cooley likewise so 
 classifies them. Torts (2d Ed.) p. 280. Recognition that duties 
 arising in the domestic relation persist beyond death is not want- 
 ing in the law. Upon that idea is predicated the liability of the 
 surviving husband for burial expenses incurred by a stranger 
 for the body of his deceased wife, in strict analogy to necessaries 
 furnished her in life. Bradshaw v. Board, 12 C. B. (N. S.) 344; 
 Cunningham v. Reardon, 98 Mass. 538; Patterson v. Patterson, 
 59 N. Y. 583; Bishop, Hush. & W. § 566. Statutes providing 
 temporary support out of an estate for widow and minor children 
 unquestionably find their reason in the same conception. Doubt- 
 less other illustrations might be suggested, but these suffice to 
 satisfy us that there is neither solecism nor unreason in the view 
 that the right of custody of the corpse of a near relative for the 
 purpose of paying the last rites of respect and regard is one of 
 those relative rights recognized bj' the law as springing from the 
 domestic relation, and that a willful or wrongful invasion of that 
 right is one of those torts for whieh damages for injury to feel- 
 ings are recoverable as an independent element. Apart from 
 this view, however, we should deem it indisputable that the tort 
 alleged is one "affecting the liberty" of plaintiff. The right to 
 entomb the remains of his deceased mother in their integrity and
 
 462 DAMAGES IN ACTIONS FOli WliONGS. 
 
 without mutilation, wo liave already decided, must be recognized 
 as a legal oue. The liberty of a member of a community gov- 
 erned by law is not merely freedom from actual imprisonment, 
 but from obstruction of or interference with those acts which it 
 is his right to do at will. State ex rel. Zillmer v. Kreutzberg, 
 114 Wis. 530. An illustration is the right to vote, mentioned in 
 some of the above-cited eases, with which tlie right alleged to 
 have been invaded in this case seems to stand in complete anal- 
 ogy. We therefore conclude that the sense of outrage and the 
 mental suffering resulting directly from the willful act charged 
 on the defendant in this case are proper independent elements of 
 compensatory damages. * * * 
 
 Order reversed and cause remanded, with directions to over- 
 rule' the demurrer. 
 
 HADWELL V. RIGHTON. 
 
 L. R. 2 K. B. 1907, 345. 
 
 Plaintiff was riding a bicycle on a highway when he ran into 
 three fowls belonging to defendant. A dog belonging to a third 
 party frightened the fowls and one of them flew into the spokes 
 of the wheel causing plaintiff' to fall and damaging his bicycle 
 and himself as well. The court held the damage too remote and 
 plaintiff appeals. 
 
 Phillimore J. I propose to rest my decision in this case upon 
 Cox V. Burbidge, 13 C. B. (N. S.) 430, 436. The passage in that 
 case to which I would specially refer is in the judgment of Erie 
 C. J. : *'To entitle the plaintiff to maintain the action it is neces- 
 sary to show a breach of some legal duty due from the defendant 
 to the plaintiff ; and it is enough to say that there is no evidence 
 to support the affirmative of the issue that there was negligence 
 on the part of the defendant for which an action would lie by 
 the plaintiff. . . . But even if there was any negligence on the 
 part of the ovmer of the horse, I do not see how that is at all 
 connected with the damage of which the plaintiff complains. 
 It appears that the horse was on the highway and that, without 
 anything to account for it, he struck out and injured the plain- 
 tiff. I take the well-known distinction to apply here, that the 
 o\Mier of an animal is answerable for any damage done by it, pro- 
 vided it be of such a nature as is likely to arise from such an ani-
 
 TRESPASS. 463 
 
 mal, and the owner knows it." In the present case the county 
 court judge assumed that the fowls were unlawfully upon the 
 highway as they were not using it for the mere purpose of pas- 
 sage either in the company of their owner or without him. Even 
 if we adopt that assumption, was the damage which in fact hap- 
 pened of such a nature as was likely to result from their un- 
 lawful presence there? There was no antecedent probability 
 that the fowl would be frightened by a dog, still less was there 
 any probability that if so frightened it would fly into the spokes 
 of a bicycle. The owner was not bound to contemplate such a re- 
 sult as likely to flow from his letting the fowls be at large upon 
 the road. Even if the fowl was wrongly upon the highway it 
 would have done no harm but for the wrongful act of the animal 
 of a third person. In the course of endeavoring to avoid one 
 danger it runs into another. And in such a case "Causa proxinia 
 non rcmota spectatur." The negligence, if any, of allowing the 
 fowl to be there was not connected with the damage. Apart 
 from the action of the dog there was no evidence that fowls are 
 in the habit of flying into passing bicycles. 
 
 So far I have assumed that the county court judge was 
 right in treating the fowl as wrongfully upon the highway, but I 
 cannot allow the case to pass without saying that I think the 
 plaintiff's counsel have put too narrow a limitation upon the 
 uses to which a highway may lawfully be put. It was said that 
 the right of members of the public in a highway were confined 
 to passing and repassing, and that animals, except when ac- 
 companied by their owners, had no right to be on the highway at 
 all. In the first place, I think that members of the public, 
 in addition to using it eundo et redeundo, are also entitled to use 
 it morando for a short time. And I doubt whether, even with 
 that addition, the lawful uses are thereby exhausted. For in- 
 stance, if fowls are kept near a highway, and there is a corn 
 stubble belonging to their owner on the other side of the road 
 to which they might naturally and properly go, I am not pre- 
 pared to say that to allow them to go there by themselves would 
 be an unlawful use of the highway by their owner simply be- 
 cause they might while so doing run or fly into some one who 
 was riding a bicycle. 
 
 Appeal dismissed. 
 
 Where in case of mining operations tliere has been a cave-in from 
 failure of the miner to furnish surface support, the measure of dam-
 
 464 DAMAGES IN ACTIONS FOR WRONGS. 
 
 ages is the actual loss the owners of the surface have sustained to the 
 land and buildings thereon. The difference in market value before 
 and after the injury is not the true rule in such cases. Noonan v. 
 I'ardee, 300 Pa. 474. 
 
 Where the tenant of leasehold land brings a suit for trespass resulting 
 in the destruction of grass, the measure of damages is the value of the 
 grass destroyed; that is the liu)it of the tenant's interest. Painter v. 
 Stahley, 15 Wyo. 510. 
 
 A tenant for life leased land to an oil company, and the latter con- 
 tinued to take oil therefrom after the life tenant had died. The re- 
 mainder man sued in trespass, and the court held that the measure of 
 damages was the difference between what oil sells for in the market 
 and the cost of production. Crawford v. Forest Oil Co., 208 Pa. 5. 
 
 The measure of damages for waste by removing timber from land is 
 the diminished value of the land, not the value of the timber in its 
 manufactured state. Nelson v. Churchill, 117 Wis. 10. See also 
 Charles v. Clearfield Lumber Co., 209 Pa. 422. 
 
 In an action of trespass for forcibly excluding plaintiff from fish- 
 ing for salmon in public waters near Tanglefoot Beach along the shore 
 of Alaska, where a verdict of $14,000 was recovered, the court held 
 it error to exclude testimony as to the motive of defendant. Pacific 
 S. W. Co. V. Alaska Packers Asso., 138 Cal. 632. 
 
 Where defendant commits a trespass on land, and seizes growing 
 crops, and does this in good faith, believing he has title, the measure 
 of damages is the value of the crop at the time of the trespass. And 
 where plaintiff is ousted of land having growing crops, the measure 
 of damages is the difference in rental value of the whole leasehold 
 and the part unlawfully seized. Irwin v. Solde, 176 Pa. 594. 
 
 Where the owners of a hotel construct the same so as to reader 
 an adjoining house untenantable, and plaintiff moves out, he can re- 
 cover against the contractor for discomfort, cost of storage of furni- 
 ture and increased cost of living. McFadden v. Thompson, 110 App. 
 Div. N. Y. 285. 
 
 Determination of cost is not a determination of value. To determine 
 value of growing crops see Teller v. Bay & River Dredging Co., 151 
 Cal. 209. 
 
 For destruction of shade trees the only way of estimating damages 
 is to consider the lessened value of the land. If the injury be wanton, 
 punitory damages may be awarded. Oilman v. Brown, 115 Wis. 1. 
 
 So, too, in waste, the question is as to the diminished value of the 
 land. Nelson v. Churchill, 117 Wis. 10. 
 
 Whore the government sues timber thieves for stealing on the public 
 domain, the value of the timber unlawfully cut is the measure of dam- 
 ages. U. S. V. St. Anthony R. R. 192 U. S. 451. 
 
 Where a mining company, through trespass, injures plaintiff's 
 springs, the permanent depreciation of the realty measures the dam- 
 ages — the difference in market value before and after the trespass. 
 Rabe v. Schoenberger Coal Co., 213 Pa. 2.52.
 
 TROVER AND CONVERSION. 465 
 
 Cost of restoring a building injured by trespass may be measure of 
 damages where it is a small sum and less than the amount of deprecia- 
 tion. Bates V. Warrick, 71 Atl. Rep. 1116. 
 
 3. Trover and Conversion. 
 
 FORSYTH V. WELLS. 
 Pennsylvania, 1861. 41 Pa. 291. 
 
 The plaintiff declared in trover for mining and carrying away 
 coal from her lands, to which the defendant pleaded not guilty. 
 
 LowRiE, C. J. We are to assume that it was by mistake 
 that the defendant below went beyond his line in mining his coal, 
 and mined and carried away some of the plaintiff's coal, and it 
 is fully settled that for this trover lies. 3 S. & R. 515 ; 9 Watts, 
 172; 8 Barr, 294; 9 Id.. 343; 9 Casey, 251. 
 
 What, then, is the measure of damages? The plaintiff insists 
 that, because the action is allowed for the coal as personal prop- 
 erty, that is, after it had been mined or severed from the realty, 
 therefore, by necessary logical sequence, she is entitled to the 
 value of the coal as it lay in the pit after it had been mined ; and 
 so it was decided below. It is apparent that this view would 
 transfer to the plaintiff all the defendant's labor in mining the 
 coal, and thus give her more than compensation for the injury 
 done. 
 
 Yet we admit the accuracy of this conclusion, if we may 
 properly base our reasoning on the form, rather than on the 
 principle or purpose of the remedy. But this we may not do; 
 and especially we may not sacrifice the principle to the very form 
 by which we are endeavoring to enforce it. Principles can never 
 be realized without forms, and they are often inevitably em- 
 barrassed by unfitting ones ; but still the fact that the form is for 
 the sake of the principle, and not the principle for the form, 
 requires that the form shall serve, not rule, the principle, and 
 must be adapted to its office. 
 
 Just compensation in a special class of cases is the principle 
 of the action of trover, and a little study will show us that it is 
 no unyielding form, but adapts itself to a great variety of cir- 
 cumstances. In its original purpose, and in strict form, it is an 
 action for the value of personal property lost by one and found
 
 466 DAMAGES IN ACTIONS FOR WRONGS. 
 
 by another, and converted to his own use. But it is not thus re- 
 stricted in practice ; for it is continually applied to every form 
 of wrongful conversion, and of wrongful taking and conversion, 
 and it affords compensation not only for the value of the goods, 
 but also for outrage and malice in the taking and detention of 
 them. 6 S. & R. 426 ; 12 Id. 93 ; 3 Watts, 333. Thus form yields 
 to purpose for the sake of completeness of remedy. Even the 
 action of replevin adapts itself thus. 1 Jones, 381. And so does 
 trespass. 7 Casey, 456. 
 
 In very strict form, trespass is the proper remedy for a 
 wrongful taking of personal property, and for cutting timber, 
 or quarrying stone, or digging coal on another man's land and 
 carrying it away ; and yet the trespass may be waived and trover 
 maintained, without giving up any claim for any outrage or 
 violence in the act of taking. 3 Barr, 13. It is quite apparent, 
 therefore, that this form of action is not so uniform and rigid 
 in its administration as to force upon us any given or arbitrary 
 measure of compensation. It is simply a form of reaching a just 
 compensation, according to circumstances, for goods wrongfully 
 appropriated. When there is no fraud, or violence, or malice, 
 the just value of the property is enough. 11 Casey, 28. 
 
 When the taking and conversion are one act, or one continued 
 series of acts, trespass is the more obvious and proper remedy; 
 but the law allows the waiver of the taking, so that the party 
 may sue in trover ; and this is often convenient. Sometimes it is 
 even necessary ; because the plaintiff, with full proof of the con- 
 version, 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 enable 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, be- 
 cause of the uncertainty of boundaries ; and we must confine our- 
 selves to this. The many conflicting opinions on the measure of 
 damages in cases of wilful wrong, and especially the very learned 
 and thoughtful opinions in the case of Silsbury v. McCoon, 4 
 Denio, 332, and 3 Comst. 379, warn us to be careful how we ex- 
 press ourselves on that subject. 
 
 We do find cases of trespass, where judges have adopted 
 a mode of calculating damages for taking coal, that is substan- 
 tially equivalent to the rule laid down by the Common Pleas in
 
 TROVER AND CONVERSION. 467 
 
 this ease, even where no wilful wrong was done, unless the tak- 
 ing 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 
 arbitrariness 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 Queen's B. 440. n., where Parke, 
 B., decided, in a case of trover for taking coals, that if the de- 
 fendant 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 from the plaintiffs. See also 
 Bainbridge on Mines and Minerals, 510 ; 17 Pick. 1. 
 
 Where the defendant's conduct, measured by the standard of 
 ordinary morality and care, which is the standard of the law, 
 is not chargeable with fraud, violence, or wilful 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 manu- 
 facture 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 nev/ 
 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 
 purpose of all remedies; and so long as we bear this in mind, 
 we shall have but little difficulty in managing the forms of ac- 
 tions 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 ex- 
 pense 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. 
 
 Read, J., dissented.
 
 468 DAMAGES IN ACTIONS FOR WRONGS. 
 
 GROAT V. GILE. 
 
 New York. 1873. 51 N. Y. 431. 
 
 In i\Tay, 1864, defeiulanls sold a lot of sheep and lands to the 
 plaintiffs. At the time of the sale, the sheep were in two fields, 
 and were examined by plaintiffs who bought the whole, except- 
 ing two bucks and a lame ewe, at $4.00 a head. Plaintiff's paid 
 $25.00 on account, and agreed to take them away a few months 
 later. Before they were taken away, the defendant sheared the 
 sheep and converted the wool to his own use. 
 
 A verdict was directed for plaintiffs but was set aside by the 
 General Term of the Supreme Court. 
 
 LoTT, Ch. C. As the verdict at the circuit in favor of the 
 plaintiffs was ordered by the judge who tried the action on the 
 version given by the defendant of the contract or agreement 
 between the parties, it becomes necessary to refer to it with par- 
 ticularity for the purpose of ascertaining whether his conclu- 
 sion of law based thereon was correct. 
 
 The defendant, on his direct examination, after stating that 
 the plaintiffs called on him about the 20th of May, 1864, and that 
 he and the plaintiff Groat had some conversation about the 
 purchase of his sheep and lambs, in which he said that he 
 wanted to sell the old sheep with the lambs, and that he would 
 ask four dollars apiece for them, testified as follows: "They 
 concluded to go and see the sheep ; I told them where they were ; 
 one flock was near a mile from the house ; they went off together ; 
 went to the further lot first ; when they came back from this lot 
 I told them where the others were; I told them I did not be- 
 lieve they would like that lot ; they did not look as well as the 
 others, as some of them had lost their wool; then they went 
 off to see the other lot and came back ; they asked me how many 
 sheep and lambs there were; I told them I could not tell how 
 many there were; I did not know myself; I think I said 
 in the neighborhood of so many sheep and so many lambs; 
 then they inquired about taking the sheep ; it was agreed that 
 they should take the lambs the middle of September and the old 
 sheep the first of November, and pay me four dollars apiece for 
 sheep and lambs ; this was the contract ; I think I told them I 
 would give them a good chance ; something was said about cut- 
 ting the lambs' tails off; T told them I thought it was not pru- 
 dent ; I tried to dissuade them from having it done ; that they
 
 TROVER AND CONVERSION. 469 
 
 had got too large and might die ; something was said in answer 
 to it, but I don't know just what; they asked me if the sheep 
 were sound after they had been to see them; I told them I did 
 not consider them entirely sound ; then they asked that I should 
 doctor the sheep if they needed it; I told them I would; after 
 the talk they handed me over twenty-five dollars to bind the bar- 
 gain, as they said; then they went away." On his cross-exami- 
 nation, he said: "When Groat and Jacobia were there in May, 
 I had sheep in two lots: the sheep I sold them were in the lots 
 mentioned ; I sold them all that were in these lots ; did not know 
 how many sheep I had ; had not counted them for some time ; 
 sometimes they die ; told them I did not know how many I had ; 
 that there would be in the neighborhood of ninety old sheep ; 
 they were to take all the sheep in the two lots, except two bucks 
 and a lame ewe ; they got all the sheep in the two lots except two 
 bucks and a lame ewe ; they agreed to give four dollars per head ; 
 in the bargain they were to have all the sheep except two bucks 
 and a lame sheep ; I agreed to sell the sheep at that price ; noth- 
 ing was said about the wool ; they got ninety-two old sheep and 
 seventy-one lambs." And on further redirect examination he 
 said: "When they made the contract for these sheep, there was 
 nothing said about the wool. ' ' And also : ' ' Some of the lambs 
 came in March, and so along, and some were only a few days 
 old ; some time in August is the usual and proper time for tak- 
 ing lambs from sheep ; they had not been separated from the 
 sheep on the nineteenth of May ; the lambs were in no condition 
 to be separated from the sheep, at that time, without ruining the 
 lambs." 
 
 The preceding statement of the defendant's evidence contains 
 all that relates to the negotiation and making of the agreement, 
 and fully justifies the construction given to it by the learned 
 judge at the circuit. It is clear that the plaintiffs intended to 
 buy of the defendant, and that it was his intention to sell them 
 all of the sheep and lambs that were running in the two lots of 
 land referred to by him (except two bucks and a lame ewe, as to 
 the identity of which there was no question), at four dollars per 
 head, and that no further or other designation or selection was 
 contemplated. All the parties understood what particular sheep 
 and lambs were intended to be sold, and there is no doubt 
 that these were sufficiently identified. Indeed, that fact does not 
 appear to have been disputed on the trial. Under such circum-
 
 470 DAMAGES IN ACTIONS FOR WRONGS. 
 
 stances, when the terms of the sale were agreed on and the pay- 
 ment of tweuty-tive dollars was made to the defendant on ac- 
 count of the purchase-money by the plaintiffs, their liability be- 
 came fixed for the balance, which was ascertainable by a simple 
 aritlimofieal calculation based upon a count of the sheep and 
 lambs and the price to be paid per head for them. No delivery 
 of them or other act whatever in relation to them by the de- 
 fendant was required or intended. The plaintiffs were to take 
 them without an agency in delivering them on the part of the de- 
 fendant, and they, from the time the agreement was made, 
 became the owners thereof. The defendant subsequently kept 
 them at the risk of the plaintiffs. Chancellor Kent, in his Com- 
 mentaries, vol. 2, p. 492, in stating the rule governing sales at 
 common law, says: "When the terms of sale are agreed on and 
 the bargain is struck and everything that the seller has to do 
 with the goods is complete, the contract of sale becomes absolute 
 as between the parties, without actual payment or delivery, and 
 the property and the risk of accident to the goods vests in the 
 buyer. ' ' This rule is modified by our statute of frauds so far as 
 to require, in certain cases, that a note or memorandum of the 
 contract shall be made in writing and subscribed by the parties 
 to be charged, or that the buyer shall accept and receive a part 
 of the property sold, or at the time pay some part of the pur- 
 chase money; and in such cases, he says, at p. 499: "When the 
 bargain is made and is rendered binding by giving earnest, or by 
 part payment, or part delivery, or by a compliance with the 
 requisition of the statute of frauds, the property, and with it the 
 risk, attach to the purchaser ; but though the seller has parted 
 with the title, he may retain possession until payment." The 
 fact that the number of the sheep and lambs sold was not ascer- 
 tained at the time the terms of sale were agreed on did not pre- 
 vent the application of the rule referred to in this case. It is 
 true that the same learned jurist, after stating that "it is a fun- 
 damental principle, pervading everywhere the doctrine of sales 
 of chattels, that if goods of different values be sold in bulk and 
 not separately and for a single price, or per aversionem, in the 
 language of the civilians, the sale is perfect and the risk with the 
 buyer," adds, "but if they be sold by number, weight or measure, 
 the sale is incomplete, and the risk continues with the seller until 
 the specific property be separated and identified." The present 
 case is not one of the latter class. That rule has reference to a
 
 TKOVER AND CONVERSION. 471 
 
 sale, not of specific property clearly ascertained, but of such as is 
 to be separated from a larger quantity, and is necessary to be 
 identified before it is susceptible of delivery. The rule or prin- 
 ciple does not apply where the number of the particular articles 
 sold is to be ascertained for the sole purpose of ascertaining the 
 total value thereof at certain specified rates or a designated fixed 
 price. This distinction is recognized in Crofoot v. Bennett, 2 
 Comst. 258 ; Kimberly v. Patchin, 19 N. Y. 330 ; Bradley v. 
 Wheeler, 44 id. 495. The sale in question was in fact of a par- 
 ticular lot of sheep and lambs, and not of a certain undesignated 
 number to be selected and delivered at a future time, and the 
 postponement of the time for taking them away did not prevent 
 the title passing to the plaintift's. 
 
 A sale of a specified chattel may pass the property therein to 
 the vendee and vest the title in him without delivery. (See 
 Chitty on Contracts, 8th American ed., p. 332, and Terry v, 
 Wheeler, 25 N. Y. 520.) 
 
 All the parties appear to have understood the transaction, at 
 the time it took place, as a present absolute sale and change of 
 title. What was said about cutting the lambs' tails off and doc- 
 toring the sheep, if they needed it, is evidence of such under- 
 standing, and there is nothing in what is said to have been the 
 agreement about taking them away inconsistent with it. That 
 gave the plaintiffs the privilege of leaving them in the defend- 
 ant's pasture till the time specified for taking them away, but 
 did not deprive them of the right to take them before, if they 
 chose to do so. The remark of the defendant at the time to the 
 plaintiffs, that he ' ' would give them a good chance, ' ' shows that 
 such w^as its object and intention. It is proper, moreover, to 
 consider the statement in reference to such agreement in connec- 
 tion with w^hat had been previously testified to by the plaintiffs, 
 and which was not denied by the defendant, and therefore im- 
 pliedly admitted, to the effect that Groat, one of the plaintiffs, 
 before going to look at the sheep and lambs, had stated to the 
 defendant that he had no pasture for them, to w^hich he replied 
 that he had lots of pasture and would keep them for the plain- 
 tiffs if they purchased, and that they, after looking at them, had 
 stated to him that they would take them at the price named, if 
 the parties could agree upon the time for keeping them. Con- 
 sidered in that connection, it is clear that the agreement was 
 one for the plaintiffs' accommodation and an inducement to them
 
 472 DAMAGES IN ACTIONS I'^OU WRONGS. 
 
 to make the purchase at the price asked, which had been fixed 
 irrespective of their subsequent pasturage on the defendant's 
 hind. It affords no ground or warrant for saying that the de- 
 fendant, during the time they were so kept, intended to assume 
 and bear all risks incident to a continuance of his ownership 
 of them, and consequently that the purchase-money receivable 
 by him should depend on the number that should be living at 
 the time specified or limited for that purpose. On the contrary, 
 the fact that the price at which they were sold, was that named 
 by him when the first application to him to sell them was made, 
 without reference to the question of the future keeping of them 
 in his pasture, and the other circumstances attendant on the 
 transaction, as stated by him, clearly shows that such was not 
 his intention. 
 
 It follows, from what has been said, that there was no error 
 in the ruling of the judge that the title to the sheep passed to 
 the plaintiffs immediately upon the completion of the contract 
 and the payment of the twenty-five dollars by them. That nec- 
 essarily carried with it the right to the wool on them, it being 
 shown that there was no reservation thereof or anything said 
 about it during the negotiation or at the time the contract was 
 made. It is not a mere presumption, as stated in the prevailing 
 opinion in the Supreme Court, that the parties "intended, in 
 the absence of evidence to the contrary, that the title to the wool 
 should follow the title to the sheep. " As was well said by Justice 
 Ingalls in his dissenting opinion: "When the sheep were sold 
 the wool w^as groMTi and was a part of the sheep, adding to their 
 value," and there is no reason or principle for saying that such 
 particular part did not pass to the purchaser with the rest of 
 the animals. The sale was of the entire animal and not of dif- 
 ferent parts or portions constituting it, or of what it w^as formed. 
 
 Assuming, then, that the legal effect of the agreement of the 
 parties, as testified to by the defendant himself, was to vest the '^ 
 title to the wool in the plaintiffs, it was clearly incompetent to 
 show a custom in Columbia county where the transaction took 
 place, that the wool of sheep sold, under the circumstances dis- 
 closed, does not go to the purchaser. (See Wheeler v. New- 
 bould, 16 N. Y. 392. 401 : Higgins v. Moore, 34 id. 417; Bradley 
 V. Wheeler, 44 id. 495.) 
 
 There were severnl offers of evidence by the defendant which 
 were rejected by the court. Among them were the following:
 
 TROVER AND CONVERSION. 473 
 
 1st. That the plaintiff, Groat, on a previous occasion, purchased 
 a number of sheep and lambs of the defendant under an ar- 
 rangement precisely similar to the present, and that he did not 
 claim the wool ; 2d. That the plaintiffs admitted to a witness, on 
 being offered $100 for their bargain with the defendant and to 
 take the sheep and lambs off their hands, allowing the defendant 
 to have the wool, refused the offer and said that the sheep, with- 
 out the wool, were worth more money than the offer; and 3rd. 
 That the plaintiff. Groat, admitted that he did not understand 
 he had bought the wool in question, or think of making any claim 
 to it until his co-plaintiff suggested that they could hold it. 
 
 These were properly excluded. It was immaterial to the 
 present controversy what the plaintiffs, or either of them, had 
 claimed of the defendant under a previous sale. Their legal 
 rights could not be controlled under the present contract by a 
 failure to demand what they were entitled to under a previous 
 one, and it cannot be held that the wool, under this agreement, 
 was excepted from the operation of the sale, because one of the 
 plaintiffs did not assert his rights under another, and it could 
 not aid in determining what the contract in dispute was, whether 
 or not the purchase of the sheep was so profitable as to cause 
 the plaintiffs to reject the offer made them for their bargain. 
 Nor could the understanding of one of the plaintiffs, as to the 
 question whether he had bought the wool or not, alter the effect 
 of the transaction or the contract actually entered into. What 
 he in fact did buy was the question, and that did not depend on 
 what he understood, but on the agreement. The defendant was 
 also asked what was the value of the sheep without the wool 
 under the arrangement he had testified to. That question was 
 properly excluded ; the inquiry was wholly irrevalent. The par- 
 ties could make such agreement as they saw fit, and it was 
 immaterial whether the defendant sold the property in ques- 
 tion for more or less than it was worth, in the absence of any 
 fraud or other evidence affecting its validity. 
 
 There was a request to charge the jury that if the statement 
 of the defendant was correct, then the sum of $25.00 paid by 
 the plaintiffs was merely paid to bind the bargain and take the 
 contract out of the statute of frauds, and that the title to the 
 sheep did not thereby pass absolutely to the plaintiffs. This 
 was refused, and what has already been said as to the legal effect 
 of that statement, shows that such refusal was correct.
 
 474 DAMAGES IN ACTIONS FOR WRONGS. 
 
 The court was then asked by the defendant to submit the fol- 
 lowing questions to the jury : 
 
 1st. Whether the contract in suit was executed or executory ; 
 whether it was the intention of the parties that the title to the 
 sheep should pass to the plaintiffs immediately upon the mak- 
 ing of the contract or at some future period. 
 
 2d, Whether the defendant, upon the making of this contract, 
 intended to sell or the plaintiffs to buy the wool in question in 
 this suit ; and on his refusal so to do, and after proper exceptions 
 were taken, he was requested to charge the jury that if the con- 
 tract was executory and it was not the intention to pass the title 
 to the sheep until delivery and payment, then the wool sheared 
 from the sheep, before they were actually deliverd and paid for 
 belonged to the defendant. This was also refused and an excep- 
 tion was taken to such refusal. 
 
 There was no error to submit those questions or give that in- 
 struction to the jury. They all involved the submission of mat- 
 ters of law to their consideration and determination. The court 
 had previously decided that the terms, nature and effect of the 
 contract should be determined and controlled by the defendant's 
 statement, or version of it, which was the most favorable view 
 in which it could be considered for him. The case was thus sub- 
 stantially one in which there was no dispute of facts as to the 
 terms of the agreement, and it therefore became a question of 
 law to be determined by the court whether the contract was ex- 
 ecuted or executory, and what was the intention of the parties 
 (to be ascertained from the contract) as to the nature, extent and 
 effect of the sale. 
 
 The only remaining question to be considered relates to the 
 rule of damages laid down by the court, which he stated to be 
 "the highest market price of wool between the time of the de- 
 mand and the time of trial, with interest from the time of the 
 demand. ' ' 
 
 It may be questionable whether the instruction as to the right 
 to recover interest is correct ; and I understand, from the points 
 of the counsel of the defendant, that he only makes objection 
 on this appeal to that portion of the charge. That question was 
 not presented by his exception, which was to the entire instruc- 
 tion and not to the allowance of interest only. The part allow- 
 ing a recovery for the highest market value between the conver- 
 sion and the time of trial, was held by us in Lobdell v. Stowell,
 
 TROVEE AND CONVERSION. 475 
 
 (decided at the September term, 1872, to be the proper rule or 
 measure of damages or compensation, on the authority of 
 Romaine v. Van Allen, 26 N. Y. 309 ; Burt v. Butcher, 34 id. 493 ; 
 Markham v. Jaudon, 42 id. 235). There was, therefore, no 
 ground of complaint to that portion of the charge. The excep- 
 tion being to that as well as to the portion relating to the interest 
 was too broad and consequently not well taken, and is not avail- 
 able as a ground for setting aside the verdict in favor of the 
 plaintiffs and granting a new trial. 
 
 The result of the views above expressed is, that the order of 
 the General Term granting such new trial should be reversed, 
 and judgment must be ordered against defendant on the verdict 
 with costs. 
 
 All concur. 
 
 Order reversed and judgment accordingly. 
 
 BATEMAN v. RYDER. 
 Tennessee, 1901. 106 Tenn. 712. 
 
 Wilkes, J. This is an action of trover brought by a mother 
 against her daughter and her husband for the conversion of a 
 guitar, four pictures, and a trunk containing clothing and manu- 
 scripts of prose and poetry composed by the plaintiff's former 
 husband. 
 
 The action was commenced before a justice of the peace, and 
 the damages were laid at $500. There was a trial before the 
 court and a jury, on appeal from the justice, when there were 
 verdict and judgment for $200, and defendants have appealed to 
 this court. 
 
 The first three assignments go to the measure of damages. 
 
 Testimony was admitted to show a special value to plaintiff of 
 the articles because they were gifts from her former husband, 
 and because of the associations connected with them. It is said 
 this was erroneous. 
 
 It is said the court charged the jury that, in fixing the value of 
 the property, they should consider the plaintiff's relations to the 
 same. 
 
 What the court did charge on this point was "that the jury 
 must determine from all the evidence on that point what would
 
 476 DAMAGES IN ACTIONS FOR WRONGS. 
 
 be a fair and reasonable value for the property, considering 
 plaintiff's relation to the same and the rights of property." 
 
 The court, upon request, refused to charge that, the action 
 being in trover for the conversion of property, the measure of 
 damages was the actual value of the property. 
 
 These assigments may all be treated together. 
 
 In actions of trover for the conversion of personal property, as 
 a general rule the measure of damages is the market or actual 
 value of the propertj^ at the date of the conversion. 26 Am. & 
 Eng. Enc. Law, 818, and authorities there cited. But damages 
 beyond the actual value of the property converted have been al- 
 lowed the plaintiff when he has been subjected to some special 
 loss. or injury. 26 Am. & Eng. Enc. Law, 849. "One criterion of 
 damages is the actual value to him who owns it, and this is the 
 rule when the property is chiefly or exclusively valuable to him ; 
 such articles, for instance, as family pictures, plate, and heir- 
 looms. These should be valued with reasonable consideration of, 
 and sympathy with, the feelings of the owner." 3 Sutherland 
 on Damages p. 476; Suydam v. Jenkins, 3 Sandf. (N. Y.) 620; 
 Spicer v. Waters, 65 Barb. (N. Y.) 227. 
 
 In Hale on Damages p. 182 § 76, it is said: "When property 
 has a peculiar value to the owner, such as it has to no other per- 
 son, or when it cannot be exactly replaced by other goods of like 
 kind, the actual value to the owner, and not the market value, is 
 the measure of compensation." 
 
 The testimony shows that the four pictures were oil paintings 
 bought in Italy by the plaintiff's husband at a cost of $500, and 
 presented to her while traveling, and were valuable intrinsically 
 as well as from association ; that the original cost of the guitar 
 was $50, and it was highly prized for its associations ; that there 
 was some considerable clothing in the trunk, besides a lot of 
 manuscript productions, in prose and verse, of plaintiff's hus- 
 band, which had never been published, and probably could not be 
 reproduced. There is evidence, on the other hand, that the pic- 
 tures were not well preserved ; that their frames were dilapidated ; 
 that they would probably bring about $20 at auction, and that 
 the guitar would perhaps sell for $5 ; that the clothing was worn 
 and old, and of no real value ; and that the manuscripts were of 
 no value whatever. We think the court gave the proper instruc- 
 tions as to the feature of damages, and, while we would have been
 
 TROVER AND CONVERSION. 477 
 
 better satislied with a smaller judgment, there is ample evidence 
 to support the amount given. * * * 
 
 The judgment of the court below is affirmed with costs. 
 
 BARKER V. LEWIS. 
 
 Connecticut, 1905. 78 Conn. 198. 
 
 Appeal from Court of Common Pleas, New Haven County. 
 
 Action for conversion of household furniture and personal ef- 
 fects. From a judgment for plaintiffs, defendant appeals. 
 
 Prentice, J. The plaintiffs delivered to the defendant, as a 
 warehouseman, for storage, certain household furniture and per- 
 sonal effects. This action was brought to recover damages for 
 conversion. Judgment having been rendered for the plaintiffs 
 upon the verdict of a jur^^, the defendant appealed; assigning 
 various reasons of appeal, which, after elimination and consolida- 
 tion, are in its brief reduced to four claims of error. The most 
 comprehensive and important of these involves a consideration of 
 the rule for the assessment of damages. The property in ques- 
 tion included, as was claimed, certain family records, pictures, 
 photographs, heirlooms, and other articles of peculiar value to 
 the plaintiffs. With respect to these articles the court gave in- 
 structions in the language of Green v. Boston & L. R. Co., 128 
 Mass. 222, 35 Am. Rep. 370, of which no complaint is made. 
 The remaining property was household furniture and effects, in- 
 cluding books, all claimed to have been purchased by or pre- 
 sented to the plaintiff's when new for use by them in house- 
 keeping, and in fact so used by them in their home in New 
 Haven until the time that they were stored with the defendant 
 upon the occasion of their having temporarily broken up house- 
 keeping to go into the country. The defendant claimed that the 
 measure of the plaintiffs' recovery for these articles was their 
 fair market value at the time and place of conversion, with law- 
 ful interest since that date. It asked the court to so charge, and 
 sought by the introduction of evidence to show that there was 
 a secondhand market for such things in New Haven, and pre- 
 sumably, although no definite offer was made, to follow up that 
 line of inquiry by offering evidence of some sort claimed to show 
 the value of articles of the kind in question in such market. The
 
 478 DAMAGES IN ACTIONS FOR WRONGS. 
 
 court was correct in refusing to instruct the jury as requested, 
 and in excluding said testimony. 
 
 The cardinal rule is that a person injured shall receive fair 
 compensation for his loss or injury, and no more. Baldwin 
 V. Porter, 12 Conn. 473. Commonly in cases of conversion the 
 loss is the value of the property. Baldwin v. Porter, supra. 
 Commonly the value of the property, as representing the owner's 
 loss, is its market value, if it have one, since thereby is indicated 
 the cost of replacing. Hence the subordinate rule of general ap- 
 plication appealed to by the defendant. But the principal rule, 
 which seeks to give fair compensation for the loss, is the para- 
 mount one ; and ordinarily, when the subordinate one fails to ac- 
 complish the desired result, it yields to an exception or modi- 
 fication. Sutherland on Damages, §12. It is now generally 
 recognized that wearing apparel in use, and household goods and 
 effects owned and kept for personal use, are articles which can- 
 not in any fair sense be said to be marketable and have a market 
 value, or at least a market value which is fairly indicative of 
 their real value to their owner, and of his loss by being deprived 
 of them. So it has been frequently, and we think correctly, held 
 that the amount of his recovery in the event of conversion ought 
 not to be restricted to the price which could be realized by a sale 
 in the market, but he should be allowed to recover the value to 
 him based on his actual money loss, all the circumstances and 
 conditions considered, resulting from his being deprived of the 
 property; not including, however, any sentimental or fanciful 
 value he may for any reason place upon it. Denver, etc., R. Co. 
 V. Frame, 6 Colo. 385 ; McMahon v. City of Dubuque, 107 Iowa, 
 62, 77 N. W. 517, 70 Am. St. Rep. 143 ; Int. Ry. Co. v. Nicholson, 
 61 Tex. 553 ; Fairfax v. New York C. & H. R. Co., 73 N. Y. 167, 
 29 Am. Rep. 119 ; Sell v. Ward, 81 111. App. 675 ; Joyce on Dam- 
 ages, § 1037 ; Sutherland on Damages, § 1117 ; Sedgwick on Dam- 
 ages, § 251. 
 
 The court in one portion of its charges stated this rule to the 
 jury in substance, in so far, at least, as was required by any claim 
 on the part of the plaintiffs. In another place, however, it was 
 less careful in its language, and, while doubtless intending to ex- 
 press the same principles elsewhere stated, it used the following 
 language: "The measure of damages in this case, gentlemen, 
 relates to the actual value of the property at the time of its con- 
 version ; and that is to be determined from the cost of the prop-
 
 TROVER AND CONVERSION. 479 
 
 erty, the extent to which it has been used, and its condition at 
 the time of the conversion." This was an altogether misleading 
 statement. It selected three of the many factors which might 
 enter into the consideration of the question of fair compensation, 
 made them the sole and decisive ones, and ignored all others. 
 Under such instructions a jury might well go far astray, and we 
 are unable to say, from a study of the charge as a whole, that the 
 error here committed was elsewhere corrected so that the jury ap- 
 proached the inquiry as to the amount of damages to be award- 
 ed with a correct understanding of the law. 
 
 The case of Sanford v. Peck, 63 Conn. 486, 27 Atl. 1057, is re- 
 lied upon by the defendant as supporting its contention that the 
 market value furnishes the measure of recovery in cases of this 
 character. The question here made was not presented or passed 
 upon in that case. The plaintiff claimed to recover the market 
 value and his right to do so was conceded. The question ad- 
 judicated was one as to the admissibility of certain evidence as 
 probative of the market value. 
 
 The complaint alleges that the defendant converted the 
 property in question to its own use and sold the same without 
 authority from the plaintiffs and unlawfully. The defendant 
 contends that the plaintiffs by this averment restricted their right 
 to prove a conversion to one by a sale, and complains of the in- 
 structions of the court to the effect that one might be established 
 by proof of either an unlawful sale or a demand for a return 
 and a refusal. The instructions were correct. 
 
 As a new trial must be granted, the remaining complaints of 
 error do not require attention. 
 
 There is error, and a new trial is granted. All concur. 
 
 WHITE V. YAWKEY. 
 
 Alabama, 1896. 108 Ala. 270. 
 
 This was an action of trover, brought by appellee against the 
 appellants, to recover damages for the conversion by them of 
 certain timber, alleged to have been cut from the land of 
 the plaintiff. Defendants plead that the conversion was inno- 
 cent and imintentional. 
 
 Head, J. The case was tried in the lower court upon the 
 second count of the complaint, which was in trover, and claimed
 
 480 DAMAGES IN ACTIONS FOR WRONGS. 
 
 damages "for the conversion of 100 pine logs cut and taken 
 away" from the lauds of the plaiutiff. The material facts are 
 that, within a year prior to the commencement of the suit, one 
 Jack Brewer cut the pine logs from the timber lands belonging 
 to the plaintiff, and sold them to the defendants to be delivered 
 on the banks of Pea river, where he did in fact deliver them; 
 and that neither he nor the defendants knew at the time the 
 cutting was done that trespasses were being committed on the 
 plaintiff's property, this fact not having been discovered until 
 a survey was made, some time after the acts complained of had 
 been performed. The defendants disposed of the logs, which 
 were worth four cents per foot, at Pea river. * * * With 
 a view to mitigating the damages, the defendants offered to 
 prove the value of the logs prior to their removal from the land, 
 accompanying the offer with the statement to the court that they 
 expected to prove the logs were worth materially more after be- 
 ing transported to and placed on the banks of Pea river than 
 they were before such removal. The court refused to allow this 
 proof to be made, and to the ruling an exception was duly re- 
 served. This presents the single question of merit to be decided 
 upon the appeal. 
 
 It wall be observed from the foregoing statement, that the 
 record makes the case of a conversion by purchasers, innocent 
 of wrongdoing, from an inadvertent trespasser, who, by the ex- 
 penditure of time, labor, and, doubtless, money, had enhanced 
 the value of the pine logs, after their severance from the free- 
 hold and transformation into chattels. The effect of the rul- 
 ing of the circuit court was to exclude from the jury all evidence 
 upon the subject of value, except that confined and limited to 
 the place of delivery to the defendants, and thereby to neces- 
 sitate a verdict for the value at that place, as being the only au- 
 thorized measure of damages, justified by the facts of the case. 
 * * * It is sufficient to say that the modem authorities are 
 practically unanimous in holding that the rule of just compensa- 
 tion for the injury sustained, which is the ideal measure of 
 actual damages, does not require the assessment, against an 
 inadvertent trespasser, of the accession to the value of a chat- 
 tel which his labor has produced, but that he is entitled to an 
 abatement therefor from the enhanced value. (Citing authori- 
 ties.) The same rule prevails when trover is brought against 
 the unintentional trespasser's innocent vendee, who is treated
 
 TROVER AND CONVERSION. 481 
 
 as standing in the shoes of his vendor. (Citing authorities.) 
 It is no answer to this to say that the plaintiff might have 
 brought detinue for the logs wherever he might have found 
 theui, short of a change of identity, and thereby have recovered 
 them in specie after their value had been enhanced. In detinue 
 the title prevails, and the question of damages is not considered. 
 If a party aggrieved elects to bring the equitable action of 
 trover, the assessment of damages may be so adjusted as to com- 
 pensate the plaintiff for his injury, wathout paying him a 
 premium, or depriving an innocent party of that which he has 
 in good faith added to the chattel. Weymouth v. Railway Co., 
 17 Wis. 550, 84 Am. Dec. 763. The rule is different if the tres- 
 pass is wilful or in bad faith. (Citing authorities.) 
 
 The authorities do not agree upon the question whether, in 
 trover against an inadvertent trespasser, or his innocent vendee, 
 for severed portions of the realty, the rule is to allow the value 
 of the property in place, as if it had been purchased in situ by 
 the defendant, at the fair market value of the district — as, for 
 instance, the value of timber standing, or, for coal or ore mined, 
 the value in place — or whether the value to be taken as the basis 
 of recovery is that of the property converted immediately after 
 severance, when it becomes a chattel. The case of Wood v. More- 
 wood, 3 Q. B. 440 (which is regarded as conflicting with the 
 earlier English cases), is the leading English, and Forsyth v. 
 Wells, 41 Pa. 291, 80 Am. Dec. 617, subsequently criticised in that 
 state, is one of the leading American cases supporting the rule 
 first stated, and they have been frequently followed. Many 
 cases which are often cited in favor of the same rule may be 
 distinguished by noting that they were not actions of trover, or 
 that they arose in states which have abolished forms of action, or 
 that the decisions were made in proceedings in equity where 
 the courts were not influenced by the technical rules governing 
 the various common-law actions. In this state, forms of action 
 have not been abolished, and parties must be here held to the 
 legitimate and logical consequences of the particular action 
 which has been instituted. 
 
 Trover is brought for the conversion of personal property, and 
 it would seem incongruous to say that the damages could be 
 assessed upon the principle adopted in actions of trespass 
 quare davsnm fregit, when the gravamen of the complaint is 
 essentially dift'erent. Cases can be easily perceived in which the
 
 482 DAMAGES IN ACTIONS FOR WRONGS. 
 
 value oi the timber after severance would very inadequately com- 
 pensate the owner for the trespass. This would be so when the 
 trees were prematurely cut, or were valuable for shade and fruit. 
 Under such circumstances, he may accommodate his selection of 
 a form of action to the necessities of the case, and bring tres- 
 pass for entering his land, and severing and removing timber 
 or trees, in which case he would recover, as actual damages, the 
 diminished value of the land, or, to state it more definitely, the 
 value of the trees standing and any injury to the freehold by 
 reason of their removal. (Citing authorities.) 
 
 When trover is brought, the trespass upon the land is, so to 
 speak, waived or disregarded; and when brought for the con- 
 version of logs or trees as chattels, under the circumstances of 
 this case, the true rule, in our opinion, is the second above stated, 
 according to which the value immediately after severance, with 
 mterest, furnishes the proper measure of recovery. (Citing 
 authorities. ) 
 
 The circuit court erred in rejecting the proffered proof. * 
 
 For the error in rejecting the evidence designed to mitigate 
 the damages, * * * fji^ judgment is reversed and the cause 
 remanded. 
 
 WALLINGFORD v. KAISER. 
 
 New York, 1908. 191 N. Y. 392. 
 
 Appeal from Supreme Court, Appellate Division, Fourth De- 
 partment. 
 
 Action against sheriff of Erie county. From a judgment of 
 the Appellate Division, affirming a judgment for plaintiff, the 
 defendant appeals. 
 
 WiLLARD Bartlett, J. The only question which we consider 
 it necessary to discuss in passing upon this appeal relates to the 
 measure of damages adopted by the trial court. The action was 
 foi the conversion of a number of horses which were seized by 
 the defendant, assuming to act under a warrant of attachment is- 
 sued to him as sheriff of Erie county; the animals having been 
 taken from a railroad train at East Buffalo while in course of 
 transportation from Chicago, 111., to Liverpool, England. The 
 learned trial judge instructed the jury that, if the plaintiff was
 
 TROVER AND CONVERSION. 483 
 
 entitled to recover at all, he was entitled to recover the value of 
 the horses in Liverpool, less the expense of transporting them and 
 putting them on the market in Liverpool for sale and selling 
 them. No exception was taken to this instruction; but counsel 
 for the appellant had previously disputed the correctness of the 
 rule thus laid down for ascertaining plaintiff's damages by ob- 
 jecting to a question as to the value of one of the horses in Liver- 
 pool at the time that it would have arrived there in due course of 
 transportation, and taking exception to the decision of the court 
 in overruling that objection, the court having stated at the time 
 that one objection to like questions was sufficient and that the de- 
 fendant need not object to each like question. 
 
 In actions for conversion, and actions of a similar character, 
 the general rule is that the value of the property at the place 
 of conversion is the correct measure of damages. 2 Sedgwick 
 on Damages (8th Ed.) §496; Tiffany v. Lord, 65 N. Y. 310; 
 Parmenter v. Fitzpatrick, 135 N. Y. 190; Fleischmann v. Sam- 
 uel, 18 App. Div. 97 ; Hamer v. Hathaway, 33 Cal. 117. But this 
 rule is subject to important qualifications and exceptions. Among 
 these may be mentioned (1) cases where there is no market value 
 for such or like property at the place of conversion. In that 
 event resort is had to evidence of market value at the nearest 
 place where there is a market. Keller v. Paine, 34 Hun. 167, 176. 
 This may be as far removed as San Francisco is from the Isth- 
 mus of Panama (Harris v. Panama R. R. Co., 58 N. Y. 660), 
 or halfway around the earth (Bourne v. Ashley, 1 Lowell, 27, 
 Fed. Cas. No. 1,699) . The case last cited was a libel in admiralty 
 by the owners of one whaling ship against the owners of another, 
 both vessels hailing from New Bedford, for the conversion of a 
 whale in the Okhotsk Sea. There being no market price for 
 whales at the place of conversion, the court held that the libelants 
 were entitled to the value of the oil and bone at New Bedford, 
 which was the controlling market of the country as well as the 
 home port of both the whalers, less the expense of taking the oil 
 and bone out of the whale and getting it to such port. (2) A 
 second class of cases, constituting an exception to the rule that 
 the value of the converted article at the place of conversion is 
 ordinarily the true measure of damages, are actions against com- 
 mon carriers, where the goods are lost, destroyed or damaged in 
 transit, in which the damages recoverable against the carrier are 
 based on the market value at the point of destination. 2 Sedg-
 
 484 DAMAGES IN ACTIONS FOR WRONGS. 
 
 wick on Damages (8th Ed.) §844; .Maync on Damages, 285; 
 Sturgess V. BissoU, 46 N. Y. 462; lloldcii v. N. Y. C. H. R. Co., 
 54 N. Y. Gl)2. 
 
 So far as 1 have been able to ascertain, the precise question 
 presented by this appeal does not appear to have been deter- 
 mined in this state ; that is, whether, where property in the cus- 
 tody of a common carrier in the course of transportation is eon- 
 verted by a stranger, the owner's right of recovery is limited to 
 the market value at the place of conversion, or nearest market, 
 or may be measured by the market value at the place of destina- 
 tion, less the cost of conveyance thither and the selling expenses. 
 That the latter is the only just rule was strongly suggested in 
 Suydam v. Jenkins, 3 Sandf. 614, 622, by Duer, J., in the course 
 of what was pronounced an "extremely able opinion" by Ra. 
 pallo, J., in Baker v. Drake, 53 N. Y. 211, 224. Judge Duer said : 
 "When the market value is justly assumed as the measure of 
 value, there are numerous cases in which the addition of interest 
 would fail to compensate the owner for his actual loss. It may 
 be shown that, had he retained the povssession, he would have de- 
 rived a larger profit from the use of the property than the in- 
 terest upon its value, or that he had contracted to sell it to a 
 solvent purchaser at an advance upon the market price, or that, 
 when wrongfully taken or converted, it was in the course of trans- 
 portation to a profitahle market where it ivould certainly have ar- 
 rived; and in each of these cases the difference between the mar- 
 ket value when the right of action accrued, and the advance 
 which the owner, had he retained possession, would have realized, 
 ought plainly to be allowed as compensatory damages, and as 
 such be included in the amount for which judgment is rendered." 
 The view of Judge Duer, as expressed in the passage which I 
 have emphasized by italics, was adopted by the Supreme Court 
 of Missouri in a well-considered case decided in 1860. Farwell 
 V. Price, 30 Mo. 587. Referring to the rule, as to which some 
 doubt then existed, but which is now well established, that the 
 measure of damages in the ease of a conversion by the common 
 carrier is the market value at the point of delivery, the court 
 went on to say : ' ' And where the wrongdoer is a mere stranger, 
 a trespasser, it is not easy to see upon what ground he can insist 
 that the value of the property at the place where the conversion 
 occurred shall be the measure of damages to which the owner 
 is entitled. Such a rule would in effect force the owner to dispose
 
 TROVER AXD CONVERSION. 485 
 
 of his property in a market not of his own selection, and one 
 where, perchance, the property might be valueless. ' ' In that case 
 the property consisted of flour consigned from St. Louis to Bos- 
 ton, and was converted en route by the forwarding agent at New 
 Orleans. ' ' Going no further for illustration than the case under 
 consideration, we see, as a matter of fact, that the market value of 
 flour at New Orleans is not at all times the same as at Boston, 
 minus the cost of transporting it from one point to the other, 
 though doubtless any considerable disparity could not long con- 
 tinue. Scarcity of capital or other circumstances may depress 
 the price of an article in one market below its value in another, 
 after deducting the expense of removing the article, though in the 
 present condition of trade this could not continue long. But as 
 the price of an article must mainly be regulated by its value for 
 home consumption, and must be so altogether if there is no capi- 
 tal engaged in its removal to other places, the price at the place of 
 conversion would in most instances prove an inadequate compen- 
 sation for the loss sustained by the owner." 
 
 This last proposition seems strictly correct as applied to the 
 proof in the case at bar, which showed that the horses taken from 
 the railway train by the sheriff had been selected at great pains 
 and with special care in reference to the demand in the Liver- 
 pool market. As may be inferred from what has already been 
 said, I think there is and ought to be an exception to the gen- 
 eral rule in trover that the value of the property at the place of 
 conversion is the owner 's measure of damages in the case of goods 
 converted by a stranger at an intermediate point while in the 
 course of transportation, and that where the property when 
 wrongfully taken is on the way to a profitable market, where it 
 would certainly have arrived, the o^\^ler is entitled to recover the 
 value of the goods at the place of destination, less the cost of 
 carriage and the cost of effecting a sale in that market. The pur- 
 pose of the law is to afford just and reasonable compensation 
 to the injured party for the natural and proximate consequences 
 of the wrongful act ; and this can hardly otherwise be accomplish- 
 ed in such a case as that which we have presented for our consid- 
 eration here. The special damage which the plaintiff claimed to 
 have sustained by reason of his inability to sell the horses in Liv- 
 erpool was distinctly alleged in the complaint ; and the defend- 
 ant's lack of information as to the particular destination of 
 the animals is not available to him in mitigation. See Lath-
 
 486 DAMAGES IM ACTIONS FUH WROiSiGS. 
 
 ers V. Wyman. 76 Wis. 616. The eircvinistancos under which the 
 horses were takeu eonstitutecl iiotiee that tliey were destined i'or 
 sojne point beyond East Buffalo. 
 
 The appellant relies u})()n the eases of Urizsee v. Maybee, 21 
 \\'eud. 144, and Spieer v. Waters, 65 Barb. 227 ; but in neither of 
 those eases was the property converted while in the course of 
 transportation. The Brizsee Case was an action of replevin for a 
 quantity of saw logs which were replevied at the mills of the de- 
 fendant in Niagara coiuity. The defendant was allowed to prove 
 what would have been the value of the stuff made from the logs 
 in the Albany and Troy markets at the time when it would in the 
 ordinary course of business have reached those cities. The old 
 Supreme Court, per Cowen, J., held that the ultimate value at 
 Albany or Troy, when in the ordinary course of business the 
 boards would reach there, deducting the expense of manufactur- 
 ing and the price of transportation, was a proper topic of in- 
 quiry, with a view of ascertaining the value of the saw logs at the 
 place where they were replevied, but not for any other purpose. 
 In the Spicer case there was a conversion of lumber in Lewis 
 county, and the trial judge charged the jury that if the lumber 
 was to be taken thence to the Troy market, and there to be held 
 in the plaintiff's lumber yard, they were entitled to recover its 
 market value in Troy, less the cost and risk of transportation. 
 The General Term of the Fifth District (Mullin and Morgan, 
 JJ. ; Bacon, J., dissenting) held that this charge was erroneous, 
 in view of the general rule that in an action for the conversion of 
 personal property the measure of damages was the market value 
 at the time and place of conversion, with interest up to the time 
 of trial. The prevailing opinion shows that the court deemed 
 the decision in Brizsee v. Maybee, supra, controlling on the ques- 
 tion, although, as already suggested, that was not a case of the 
 conversion of goods in transit. 
 
 I find nothing in the reasoning or decision of these cases in con- 
 flict with the conclusion that the present judgment should be 
 affirmed, with costs. 
 
 Vann, J. (dissenting). "When a sheriff is sued, as such, for an 
 official act done in his own county, and damages are assessed 
 against him for the conversion of a common kind of property, 
 they should not be measured by the market price at a place 3,000 
 miles away, but by the market price in the locality where the act 
 of conversion took place. That is the general rule, and there is
 
 TRO\ ER AND CONVERSION. 487 
 
 no occasion for an exception ; for there was a home market, and 
 the defendant was not a common carrier. A public officer, who 
 makes a mistake in an effort to discharge an official duty and is 
 required to pay damages in consequence, should not be compelled 
 to visit foreign countries and import witnesses therefrom in order 
 to keep the damages within reasonable limits. No authority re- 
 quires us to sanction proof of the market price at a remote place 
 on another continent, and it is against public policy to establish 
 a rule that may call a sheriff far from the county, and even the 
 state, where his official duties are to be performed. Evidence 
 of the market price at no place outside of the state where the 
 owner was deprived of his property should be allowed, and I re- 
 gret that a rule is about to be laid do^vn which will not only be 
 inconvenient in practice, but will frequently lead to injustice. 
 As the question is open in this state, why should we go abroad for 
 a market price when we have one at home ? If we can go to Eng- 
 land, we can go to Russia, China, or Australia, and to points 
 where local conditions may temporarily raise the price, and where 
 tariff regulations may hamper investigation and complicate the 
 question. In laying down a rule to govern our own citizens, the 
 market price established by themselves should be sufficient to 
 measure the value of property converted in this state. I ap- 
 prehend that no other rule will be welcome to them, or regarded 
 by them as just or right. Simple rules are the best, and no excep- 
 tion should be made except to prevent injustice. 
 
 Even where the property is on the way to a better market, if 
 the act is neither vindictive nor a violation of contract, future 
 profits, although reasonably certain, should not be awarded, when 
 the owner could purchase similar property at the place of con- 
 version, and thus save prospective profits for himself, and the de- 
 fendant from serious loss. Under such circumstances the home 
 market price and interest is enough, without profits, cases against 
 common carriers excepted, because the law is loath to allow them 
 any excuse for nondelivery. American horses, raised, purchased, 
 and converted in America, should be valued according to the 
 American markets, rather than the English, even if they are on 
 their way to England when converted. 
 
 CuLLEN, C. J., and Gray, Haight, Werner, and Hiscock, JJ., 
 concur with Willard Bartlett, J. Vann, J., reads dissenting 
 opinion. 
 
 Judgment affirmed.
 
 4r88 DAMAGES IN ACTIONS FOR WRONGS. 
 
 "No doubt the true irtMioral nilo of (liiniii.ucs, in trover, is the value 
 of the uoods at the time of conversion, witli interest." Shaw, C. J., 
 in Fowler v. (liliniin. l.'i Met. 2(i7_. 
 
 Wliere defendant innocently converted conl by taking; it from plain- 
 tiff's land, the plaintiff recovered as damages the value of the coal 
 at the mouth of the shaft, less the cost of conveying it from the place 
 where it was dug to the mouth of the shaft. McLeaTi Co. Coal Co. v. 
 Long. SI 111. 359. 
 
 In Learock v. I'axson, 20S I'a. W2, in a case of the wrongful con- 
 version of fluctuating stock, the defendant was held liable to account 
 to the plaintiff for the value of the stock at the highest rate which 
 it had at any time attained since the conversion. Tn Connecticut, 
 however, it was held, in Ling v. Malcom. 77 Conn. 517, that the plain- 
 tiff should "so act as to make his damages as small as he reasonably 
 could." The question is at what price could he have re-purchased the 
 stock after notice of the unlawful conversion and sale. 
 
 Where plaintiff owned an ice cream and candy store, and defendant 
 got a receiver appointed illegally, the plaintiff's damages included 
 the value of the store at the time the receiver was appointed and the 
 actual loss sustained by plaintiff in the suspension of her business. 
 Haverley v. Elliott, 57 N. W. Rep. 1010. 
 
 4. Replevin. 
 
 WILEY V. McGRATH. 
 
 Pennsylvania, 1900. 194 Pa. 498. 
 
 Dean, J. Joseph Wiley, the husband of plaintiff, kept a livery 
 stable on Sydenham street, in Philadelphia. On the 27th of 
 July, 1894, by regular bill of sale, he transferred to his wife, 
 Elizabeth Wiley, four horses, some harness, two carriages, and 
 one coupe, kept at the stable. While the consideration expressed 
 is "one dollar and other good consideration," it is not disputed 
 that she paid a full price for the articles. The wife took posses- 
 sion of the property, and undertook to carry on the stable. She 
 gave notice generally of her purchase, and within a few days, 
 having occasion to call upon Frank McGrath, who conducted a 
 stable on Seventeenth street, she exhibited to him the bill of 
 sale, and also showed it to young Frank C. McGrath, this defend- 
 ant, who is a cousin of Frank McGrath, and assisted in the stable 
 work. Her husband, it appeared, went to Ireland immediately 
 after the sale, from whence he did not return until about the 1st 
 of December following. On the night of December 7th two of
 
 REPLEVIN. 489 
 
 the horses, some harness, and a coach, all of which were embraced 
 in the bill of sale, were taken from the wife's stable by the 
 husband and sold to defendant. When she made search for her 
 property, she called at the McGrath stable, but both McGraths 
 feigned ignorance, and promised their aid in searching for the 
 property. Five days later she discovered it in the McGrath 
 stable. It had been purchased ostensibly by defendant from the 
 husband, by regular bill of sale. Plaintiff at once replevied it. 
 Defendant gave to the sheriff a claim-property bond, and retained 
 possession. In the issue made up, he pleaded non cepit, and on 
 this plea the case went to trial. The learned trial .judge ruled 
 that the plea admitted property in plaintiff, and rejected evidence 
 tending to show a purchase of the property by McGrath from 
 the husband. He also submitted the evidence to the jury, to 
 find whether there had been such flagrant wrong and deception 
 on part of defendant as to warrant punitive damages. The jury 
 found for plaintiff $1,000 damages, and we have this appeal by 
 defendant, who asigns nine errors. The first two allege that the 
 court erred in not instructing the jury that the measure of dam- 
 ages was the actual value of the property at the time the writ 
 was issued. While appellant concedes that punitive damages 
 may be allowed in replevin, yet it is urged that it must be a rare 
 case of misconduct where the jury will be allowed to exceed in 
 their verdict the value of the property. That punitive damages 
 in replevin may be allowed in all eases where there have been 
 peculiar circumstancs of outrage, oppression, and wrong in the 
 taking or detention was settled by this court in McDonald v. 
 Scaife, 11 Pa. St. 381. The case was ably tried by Judge Lowrie 
 in common pleas, and on appeal to this court was fully argued 
 by able counsel on both sides ; nearly all the authorities bearing 
 on the question being cited. This court (Rogers, J., rendering 
 the opinion), after a full review of the authorities and discussion 
 of the subject, at the close of the opinion announces this con- 
 clusion: "On a review of the authorities, we have come to the 
 conclusion that it is settled, on reason and authority, that al- 
 though the ordinary rule is to give damages for the value of the 
 goods taken, with interest, yet the jury may, under peculiar 
 circumstances, go beyond it, by giving exemplary damages, as 
 in case of an action of trespass." What were the circumstances 
 here? This woman purchased this property from a thriftless 
 husband, who immediately deserted her. She undertakes to earn
 
 490 DAMAGES IN ACTIONS FOR WRONGS. 
 
 a living by conducting with it a stable for hire. Almost imme- 
 diately she notifies defendant of her purchase, and exhibits to 
 him the bill of sale. During some time she interchanges business 
 in emergencies with him, for he also carries on a livery stable. 
 He Imew this property was absolutely hers. In a few months, 
 unlmown to the wdfe, the worthless husband returns, and in the 
 nighttime secretly takes his wife 's property from her stable and 
 sells it to defendant, who conceals it. When the wife makes in- 
 quiry of him, he falsely alleges ignorance, and pretends to aid 
 her in finding it. Then she discovers it in his possession and 
 replevies it, and the cause is for trial. He admits, of record, the 
 property is hers, and that he is wrongfully in possession, but 
 seeks to retain it by beating the verdict down to the actual value 
 at the issue of the writ, after he has had possession nearly four 
 years ; that is, after knowingly wronging her out of her property 
 he wrongfully withholds it from her for years, and then seeks to 
 turn the transaction into a forced sale of the property at its 
 actual value w^hen taken. Plaintiff's evidence tended to establish 
 these facts, and the jury believed it. These are peculiar circum- 
 stances of wrong and oppression. They show collusion by de- 
 fendant with a dishonest husband to deprive a wife of her 
 property. Such circumstances are peculiar, because it must be a 
 rare case, taking the worst view of human nature, that a man 
 will be guilty of such conduct. We think the court, under the 
 evidence and the law, committed no error in instructing the jury- 
 that, if they found the facts as plaintiff alleged, they might find 
 punitive damages. 
 
 PABST BREWING CO. v. RAPID SAFETY FILTER CO. 
 
 New York, 1907. 107 N. Y. Supp. 163. 
 
 Erlanger, J. This action was brought about May 20, 1904, to 
 recover the possession of an automobile delivery wagon, or for 
 the sum of $1,000 in case possession thereof could not be given to 
 the plaintiff, and for the sum of $1,000 damages; the plaintiff 
 alleging that the defendant the Rapid Safety Filter Company 
 wrongfully gave possession of the said automobile to its code- 
 fendant, the Mobile Storage & Repair Company, for the purpose 
 of being repaired. Plaintiff also alleged that the wagon was of 
 the value of $1,000, but by reason of the wrongful detention by
 
 REPLEVIN. 491 
 
 tiiQ defendant it depreciated in value to the extent of $1,000. 
 The answer denied the material allegations of the complaint. 
 After the commencement of the action plaintiff replevied the 
 wagon, which remained in its possession down to the time of the 
 trial. The ease was tried on the 1st of April, 1907, and the jury 
 found a verdict in favor of the defendant the Rapid Safety Filter 
 Company, awarding to it possession of the chattel, and assessed 
 its value at $1,000. The judgment entered adjudged that the 
 said defendant recover from the plaintiff' the possession of the 
 chattel described in the complaint, and that in case possession of 
 the said property is not delivered to the said defendant it recover 
 from the plaintiff the sum of $1,000, the value of the said chattel 
 as found by the jury. On the entry of the judgment plaintiff 
 paid the costs and served upon the defendant the Rapid Safety 
 Filter Company a notice to the effect : 
 
 "Please let me know where you desire this chattel delivered. 
 In the event of your failure to advise us, * * * we will store 
 the same at your expense and risk, and subject to your order." 
 
 No execution having been issued, plaintiff placed the wagon in 
 a storage warehouse subject to the order of the said defendant, 
 and, as it claims, delivered the storage receipt to defendant's 
 attorney. The defendant refusing to give a certificate of the 
 satisfaction of the judgment, a motion was made to compel its 
 execution, in order that the judgment might be satisfied of record. 
 In opposition to the motion the filter company contended that on 
 May 7, 1907, it inspected the wagon and found that there were 
 missing one lamp, one complete set of batteries, four battery 
 trays, two lamp brackets, one gong, one brake shoe, one electric 
 controller, one controller lever, one starting switch, and con- 
 siderable portions of the wiring which were present when the 
 machine was replevied, and that the paint and varnish were 
 scratched, marred, and defaced, and the vehicle in other re- 
 spects injured, so that its value was not greater than $100. The 
 court below granted the motion, and from that order this appeal 
 was taken. 
 
 Whatever conflict there may be in the affidavits concerning the 
 alleged depreciation in value of the chattel in suit intermediate 
 its replevin by the plaintiff and the trial, it is clear that the 
 chattel was in the same condition at the time of its tender to the 
 defendant the Rapid Safety Filter Company pursuant to the com- 
 mands of the judgment as it was at the time of the trial. In
 
 492 DAMAGES IN ACTIONS FOU WRONGS. 
 
 an action of replevin the verdict must fix the .lamages, if any, 
 of the prevailing party, and, where it awards to the prevailing 
 party a chattel which has been replevied and afterwards de- 
 livered by the sheriff to the imsuccessful party, the verdict must 
 also (except in cases not material to this (question ) fix the value 
 of the chattel at the time of the trial. Section 1726, Code Civ. 
 Proc. The jury having fixed the value of the chattel at $1,000, 
 it is conclusively presumed that such was its value at the time 
 of the trial. Allen v. Fox, 51 N. Y. 562, at page 564. We are 
 therefore concluded by the judgment as to the value of the chat- 
 tel at that time. 
 
 Under the judgment the plaintiff had the alternative of either 
 paying such value or surrendering the chattel. When the un- 
 successful party in an action of replevin surrenders the chattel 
 described in the judgment, he fully complies therewith. If there 
 has been a depreciation in value while the chattel remained in 
 the possession or under the control of the unsuccessful party, the 
 prevailing party may recover damages for such injury or depre- 
 ciation. Section 1722, Code Civ. Proc. If the property has de- 
 preciated "intermediate the wrongful taking and the trial, still 
 the prevailing party is obliged to take it, if he can obtain it, 
 and he is indemnified for the depreciation by the damages assessed 
 to him." Allen v. Pox, 51 N. Y. 565. Damages for detention 
 includes loss arising from depreciation in value during the period 
 of its detention. Brewster v. Silliman, 38 N. Y. 423. Damages 
 to the chattel while in the possession of the officer acting under 
 the replevin writ must be recovered in the action of replevin, 
 and no action can be brought therefor subsequently, as the matter 
 has become res adjudicata. Ritchie v. Talcott, 10 Misc. Rep. 
 412-414. 
 
 The ease of Kingsley v. Sauer, 17 Misc. Rep. 544, cited by the 
 appellant does not apply. In that case plaintiff recovered judg- 
 ment for 7 tons and 180 cubic feet of hay, and the defendant used 
 a portion of the hay and simply tendered the balance which the 
 plaintiff refused to accept. If this action had been brought for 
 the recovery of two automobile wagons, and the defendant had 
 tendered one only, that ease would have been more in point. 
 It is not claimed by the appellant in its opposing affidavits that 
 at the time the action was brought and the chattel replevied it 
 exceeded in value the sum of $1,000. The jury having found 
 that the value of the chattel at the time of the trial was $1,000,
 
 NUISANCE. 493 
 
 the verdict carries with it the finding that there was no depre- 
 ciation in value intermediate the replevin of the chattel and the 
 trial, and, the chattel being in the same condition at the time it 
 was tendered to the prevailing party as at the time of trial, 
 plaintiff complied with the directions of the judgment, and was 
 entitled to the order which was made. 
 The order should be affirmed. 
 
 In an action of replevin, where defendant was innocent and not a 
 willful trespasser, and by his act has added largely to the value of the 
 chattel taken, the unintentional trespasser is protected and the right 
 of the owner to recover is limited. The expense of converting the 
 thing to its new form is deducted. Eaton v. Langley, 65 Ark. 448. 
 See also Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, in a case 
 involving logs and lumber. See, also, Gregory v. Morris, 96 U. S. 619. 
 
 5. Nuisance. 
 
 SCHLITZ BREWING CO. v. COMPTON. 
 
 Illinois, 1892. 142 111. 511. 
 
 Appeal from the Appellate Court for the Third District. 
 
 This is an action on the case, by the appellee against the ap- 
 pellant company. In the trial court, the verdict and judgment 
 were in favor of the plaintiff, which judgment has been affirmed 
 by the Appellate Court. The declaration consists of two counts. 
 The first count alleges, that plaintiff was possessed of certain 
 premises in Springfield, in which she and her family resided, 
 and that the defendant to wit: on April 20, 1885, wrongfully 
 erected a certain building near said premises in so careless, negli- 
 gent and improper a manner, that, on said day and afterwards, 
 "and before the commencement of this suit," large quantities of 
 rain-water flowed upon, against and into said premises and the 
 walls, roofs, ceilings, beams, papering, floors, stairs, doors, cellar, 
 basement and other parts thereof, and weakened, injured and 
 damaged the same, by reason whereof said messuage and premises 
 became and are damp and less fit for habitation. The second 
 count alleges that plaintiff was the possessor, occupier and owner 
 of said messuage and premises, in which she and her family 
 dwelt, and the defendant, to wit : on said day, caused quantities 
 of water to run into, against and upon the same, and the walls,
 
 494 DAMAGES IN ACTIONS FOR WRONGS. 
 
 roofs, floors, cellars, etc., thereof, and thereby greatly weakened, 
 impaired, wetted and damaged the same, by reason whereof said 
 premises became and were and are damp, incommodious and less 
 fit for habitation. The plea was not guilty. 
 
 The proof tends to show, that plaintiff's building is a two- 
 story brick building with a cellar underneath, the front room 
 on the first floor being used as a butcher's shop and the rest of 
 the building being used as a dwelling; that the building was 
 erected several years before that of the defendant ; that def end- 
 ant 's building is on the lot west of plaintiff's lot, and is about 
 60 feet long, having an office in front and a beer-bottling estab- 
 lishment in the rear, and has one roof which slants towards 
 plaintiff's property; that there are three windows on the west 
 side of plaintiff's house, besides the three cellar windows; that 
 her wall is a little over two feet from the west line of her lot ; 
 that when it rains the water flows against her west wall and 
 some of it into her windows and cellar from the roof of de- 
 fendant 's building ; that the eave-trough is so far below the eave 
 that the water runs over it into the windows, etc. 
 
 Mr. Justice Magruder delivered the opinion of the court. 
 Proof was introduced of damage done to plaintiff's property 
 after the commencement of the suit by reason of rain storms then 
 occurring. The defendant asked, and the court refused to give, 
 the following instruction: "The court instructs the jury that 
 the suit now being tried was commenced in the month of April, 
 1890, and that they are not to take into consideration the ques- 
 tion as to whether or not any damage has accrued to plaintiff's 
 property since the commencement of this suit." 
 
 The question presented is, whether plaintiff was entitled to 
 recover only such damages as accrued before and up to the be- 
 ginning of her suit, leaving subsequent damages to be sued for 
 in subsequent suits, or whether she was entitled to estimate and 
 recover in one action all damages resulting both before and after 
 the commencement of the suit. 
 
 The rule originally obtaining at common law was, that in 
 personal actions damages could be recovered only up to the 
 time of the commencement of the action. 3 Com. Dig. tit. Dam- 
 ages, D. The rule, subsequently prevailing in such actions, is 
 that damages accruing after the commencement of the suit may 
 be recovered, if they are the natural and necessary result of the 
 act complained of, and where they do not themselves constitute
 
 NUISANCE. 495 
 
 a new cause of action. Wood 's Mayne on Das. § 103 ; Birchard v. 
 Booth, 4 AVis. 67 ; Slater v. Rink, 18 111. 527 ; Fetter v. Beale, 1 
 Salk. 11 ; Howell v. Goodrich, 69 111. 556. In actions of trespass 
 to the realty, it is said that damages may be recovered up to the 
 time of the verdict (Com. Dig. 363, tit. Damages, D.) ; and the 
 reason why, in such cases, all the damages may be recovered in 
 a single action, is that the trespass is the cause of action, and 
 the injury resulting is merely the measure of damages. 5 Am. & 
 Eng. Enc. Law, p. 16, and cases cited in note 2. But in the 
 ease of nuisances or repeated trespasses, recovery can ordinarily 
 be had only up to the commencement of the suit, because every 
 continuance or repetition of the nuisance gives rise to a new 
 cause of action, and the plaintiff may bring successive actions as 
 long as the nuisance lasts. McConnel v. McKibbe, 29 111. 483, 
 and 33 id. 175 ; The C, R. I. & P. R. R. Co. v. Moffitt, 75 id. 524; 
 C, B. & Q. R. R. Co. V. Schaffer, 124 id. 112. The cause of action, 
 in case of an ordinary nuisance, is not so much the act of the de- 
 fendant, as the injurious consequences resulting from his act; 
 and hence the cause of action does not arise until such conse- 
 quences occur, nor can the damages be estimated beyond the date 
 of bringing the first suit. 5 Am. & Eng. Enc. Law, p. 17, and 
 cases in notes. It has been held, however, that, where permanent 
 structures are erected, resulting in injury to adjacent realty, all 
 damages may be recovered in a single suit. Idem p. 20 and 
 cases in note. But there is much confusion among the author- 
 ities, which attempt to distinguish between cases where successive 
 actions lie, and those in which only one action may be maintained. 
 
 This confusion seems to arise from the different views enter- 
 tained in regard to the circumstances, under which the injury 
 suffered by the plaintiff from the act of the defendant shall be 
 regarded as a permanent injury. "The chief difficulty in this 
 subject concerns acts which result in what effects a permanent 
 change in the plaintiff's land, and is at the same time a nuisance 
 or trespass." 1 Sedgwick on Das. (8th ed.) sec. 94. Some cases 
 hold it to be unreasonable to assume, that a nuisance or illegal 
 act will continue forever, and therefore refuse to give entire 
 damages as for a permanent injury, but allow such damages for 
 the continuation of the wrong as accrued up to the date of the 
 bringing of the suit. Other cases take the ground, that the entire 
 controversy should be settled in a single suit, and that damages 
 should be allowed for the whole injury past and prospective, if
 
 496 DAMAGES IN ACTIONS FOR WRONGS. 
 
 such injury be proven with reasonable certainty to be permanent 
 in its character. Id. § 94. We think upon the whole that the 
 more correct view is presented in the former class of cases. 
 1 Sutherland on Das. 199-202; 3 id. 369-399; 1 Sedgwick on 
 Das. (8th ed.) §§ 91-94; Uline v. N. Y. C. & H. R. R. Co., 101 
 N. Y. 98 ; Duryea v. Mayor, 26 Hun. 120 ; Blunt v. McCormick, 
 3 Denio, 283 ; Cooke v. England. 92 Amer. Dec. 630, notes ; Reed 
 V. State, 108 N. Y. 407 ; Hargreaves v. Kimberly, 26 W. Va. 787 ; 
 Ottenot V. N. Y. L. & W. R'y Co., 119 N. Y. 603 ; Cobb v. Smith, 
 38 Wis. 21 ; Delaware & R. Canal Co. v. Wright, 21 N. J. L. 
 469 ; Wells V. Northampton Co., 151 Mass. 46 ; Barrick v. Schiflfer- 
 decker, 123 N. Y. 52; Silsby Manuf'g Co. v. State, 104 N. Y. 562; 
 Aldworth v. Lynn, 153 Mass. 53 ; Towti of Troy v. Cheshire R. R. 
 Co., 23 N. H. 83 ; Cooper v. Randall, 59 111. 317 ; C. & N. W. Ry. 
 Co. v. Hoag, 90 111. 339. We do not wish to be understood, how- 
 ever, as holding that the rule laid down in the second class 
 of cases is not applicable under some circumstances, as in the 
 case of permanent injury caused by lawful public structures, 
 properly constructed and permanent in their character. In 
 Uline V. N. Y. C. & H. R. R. R. Co., supra, a railroad company 
 raised the grade of the street in front of plaintiff's lots, so as to 
 pour the water therefrom down over the sidewalk into the base- 
 ment of her houses, flooding the same with water and rendering 
 them damp, unhealthy, etc., and injuring the rental value, etc. ; 
 in discussing the question of the damages, to which the plaintiff 
 was entitled, the court say : " The question however still remains 
 what damages ? All her damages upon the assumption, that the 
 nuisance was to be permanent, or only such damages as she sus- 
 tained up to the commencement of the action ? * * * There 
 has never been in this State before this case the least doubt ex- 
 pressed in any judicial decision * * * that the plaintiff in 
 such a case is entitled to recover only up to the commencement 
 of the action. That such is the rule is as well settled here as any 
 rule of law can be by repeated and uniform decisions of all the 
 courts; and it is the prevailing doctrine elsewhere." Then fol- 
 lows an exhaustive review of the authorities, which sustain the 
 conclusion of the court as above announced. 
 
 In Duryea v. Mayor, supra, the action was brought to recover 
 damages occasioned by the wrongful acts of one, who had dis- 
 charged water and sewage upon the land of another ; and it was 
 held, that no recovery could be had for damages occasioned by
 
 NUISANCE. 497 
 
 the discharge of the water and sewage upon the land after the 
 commencement of the action. 
 
 In Blunt V. McCormick, supra, the action was brought by a 
 tenant to recover damages against his landlord because of the 
 latter 's erection of buildings adjoining the demised premises, 
 which shut out the light from the tenant's windows and doors; 
 and it was held that damages could only be recovered for the 
 time which had elapsed when the suit was commenced, and not 
 for the whole term. 
 
 In Hargreaves v. Kimberly, supra, the action was case to re- 
 cover damages for causing surface water to flow on plaintiff's 
 lot, and for injury to his trees by the use of coke ovens near 
 said lot, and for injury thereby to his health and comfort; and 
 it was held to be error to permit a witness to answer the fol- 
 lowing question: "What will be the future damage to the 
 property from the acts of the defendant?" the court saying: 
 ' ' In all those cases where the cause of the injury is in its nature 
 permanent and a recovery for such injury would confer a 
 license on the defendant to continue the cause, the entire damage 
 may be recovered in a single action ; but, where the cause of the 
 injury is in the nature of a nuisance and not permanent in its 
 character, but of such a character that it may be supposed that 
 the defendant would remove it rather than suffer at once the 
 entire damage, which it may inflict if permanent, then the entire 
 damage cannot be recovered in a single action; but actions may 
 be maintained from time to time as long as the cause of the in- 
 jury continues." 
 
 In Wells V. N. H. & N. Co., supra, where a railroad company 
 maintained a culvert under its embankment, which injured land 
 by discharging water on it, it was held that the case fell within 
 the ordinary rule applicable to continuing nuisances and con- 
 tinuing trespasses ; reference was made to Uline v. Railroad Co., 
 supra, and the following language was used by the Court: "If 
 the defendant's act was wrongful at the outset, as the jury have 
 found, we see no way in which the continuance of its structure 
 in its wrongful form could become rightful as against the 
 plaintiff, unless by release, or grant, by prescription, or by the 
 payment of damages. If originally wrongful, it has not become 
 rightful merely by being built in an enduring manner." 
 
 In Aldworth v. Lynn, supra, where the action was for dam- 
 ages sustained by a landowner through the improper erection
 
 498 DAMAGES IN ACTIONS FOR WRONGS. 
 
 and maintenance of a dam and reservoir by the city of Lynn on 
 adjoining laud, the Supreme Court of Massachusetts say: "The 
 plaintiff excepted to the ruling, that she was entitled to recover 
 damages only to the date of her writ, and contended that the 
 dam and pond were permanent, and that she was entitled to 
 damages for a permanent injury to her property. An erection 
 unlawfully maintained on one's own land, to the detriment of 
 the land of a neighbor, is a continuing nuisance, for the main- 
 tenance of which an action may be brought at any time, and 
 damages recovered up to the time of bringing the suit. * * * 
 That it is of a permanent character, or that it has been con- 
 tinued for any length of time less than what is necessary to 
 acquire a prescriptive right, does not make it lawful, nor de- 
 prive the adjacent landowner of his right to recover damages. 
 Nor can the adjacent landowner in such a case, who sues for 
 damage to his property, compel the defendant to pay damages 
 for the future. The defendant may prefer to change his use of 
 his property so far as to make his conduct lawful. In the present 
 case, we cannot say that the defendant may not repair or recon- 
 struct its dam and reservoir in such a way, as to prevent percola- 
 tion, with much less expenditure than would be required to pay 
 damages for a permanent injury to the plaintiff's land." 
 
 In the case at bar, the defendant did not erect the house upon 
 plaintiff's land, but upon his own land. It does not appear, that 
 such change might not be made in the roof, or in the manner of 
 discharging the water from the roof, as to avoid the injury com- 
 plained of. The first count of the declaration, by its express 
 terms, limits the recovery for damages, arising from the negligent 
 and improper construction of defendant's building, to such in- 
 juries as were inflicted "before the commencement of the suit." 
 The second count was framed in such a way, as to authorize a 
 recovery of damages for the flow of water upon plaintiff's 
 premises from some other cause than the wrongful construction 
 of defendant's building; and accordingly plaintiff's evidence 
 tends to show, that the eave-trough, designed to carry off the 
 water from the roof, was so placed as to fail of the purpose for 
 which it was intended. It cannot be said, that the eave-trough 
 was a structure of such a permanent character that it might not 
 be changed, nor can it be said that the defendant would not re- 
 move the cause of the injury rather than submit to a recovery of 
 entire damages for a permanent injury, or suffer repeated re-
 
 NUISANCE, 499 
 
 coveries during the continuance of the injury. The facts in the 
 record tend to show a continuing nuisance, as the same is defined 
 in Aldworth v. Lynn, supra. There is a legal obligation to re- 
 move a nuisance ; and ' ' the law will not presume the continuance 
 of the wrong, nor allow a license to continue a wrong, or a trans- 
 fer of title, to result from the recovery of damages for prospective 
 misconduct." 1 Suth. on Das. 199, and notes. * * * 
 
 We think the correct rule upon this subject is stated as fol- 
 lows : " If a private structure or other work on land is the cause 
 of a nuisance or other tort to the plaintiff, the law cannot re- 
 gard it as permanent, no matter with what intention it was 
 built; and damages can therefore be recovered only to the date 
 of the action." 1 Sedgwick on Das. (8th ed.) § 93. 
 
 It follows from the foregoing observations, that it was error" 
 to allow the plaintiff' to introduce proof of damage to her property 
 caused by rain-storms occurring after the commencement of her 
 suit, and that the instruction asked by the defendant upon that 
 subject, as the same is above set forth, should have been given. 
 
 The judgment of the Appellate and Circuit Courts are re- 
 versed, and the cause is remanded to the Circuit Court. 
 
 Judgment reversed. 
 
 ACKERMAN v. TRUE. 
 New York, 1903. 175 N. Y. 353. 
 
 ]Martin, J. On March 15, 1898, the defendant conveyed to 
 the plaintiff a plot of ground on the northeast corner of River- 
 side drive and Eighty-second street in the city of New York, 
 which extends along the easterly side of Riverside drive about 
 sixty feet and along the southerly side of Eighty-second street 
 twelve feet. At the time of this conveyance the defendant also 
 owned the property fronting on Riverside drive adjoining the 
 lot conveyed to the plaintiff on the northerly side and extending 
 to Eighty-third street. The plaintiff owned a lot adjoining that 
 conveyed to her by the defendant on which there was a house 
 in which she resided. Subsequent to the conveyance to the 
 plaintiff the defendant constructed a row of houses on the plot 
 owned by him northerly of the plaintiff's lot. The house which 
 the defendant built upon the lot adjoining the plaintiff's was 
 extended three feet and six inches beyond the easterly line of
 
 500 DAMAGES IN ACTIONS FOli WKONGS. 
 
 the street, .and liad in tuUlition wluit is known as a swell front 
 or bay window also extending into Riverside drive. The plaintiff 
 claims that so much of the house built by the defendant adjoining 
 her property as extends beyond the line of Riverside drive and 
 into that street is an unlawful invasion or trespass upon her 
 rights, and is a public nuisance from which she has suffered 
 special damages to a large amount by the diminution oP the value 
 of her property. This action was to compel Ihe defendant to re- 
 move that portion of the building and to pay the plaintiff dam- 
 ages for the injury sustained by her by reason of such encroach- 
 ment and invasion of her rights. 
 
 In the complaint, after describing the situation, it was alleged 
 that the defendant had coinmenced and was erecting in River- 
 side drive, which was a public highway of the city of New York, 
 and adjoining her property, a solid brick and stone wall, four 
 stories in height, and extending into that street about four feet 
 and about thirty-two feet in width ; and that this unlawful struc- 
 ture injures her property, obstructs her view, interferes with 
 her easements of light, air and access appurtenant thereto, and 
 otherwise injures her property to the amount of ten thousand 
 dollars. It is further alleged that the defendant's building is 
 a violation of the provisions of the charter of the city of New 
 York; that it constitutes a nuisance, and is an infringement 
 upon and violation of the plaintiff's rights which will cause her 
 irreparable damage unless the same is removed, for which she has 
 no adequate remedy at law. In her demand for relief she asks 
 for a decree adjudging the defendant's building to be an un- 
 lawful obstruction of the public highway and an unlawful inter- 
 ference with her easements of light, air and access ; that the same 
 be forthwith taken down and removed, and that the defendant 
 be perpetually enjoined from reconstructing the same. An in- 
 junction pendente lite was also asked for and a judgment for ten 
 thousand dollars damages was demanded. * * * 
 
 The defendant insists that inasmuch as the trial court found 
 that the plaintiff has sustained no special damages by reason of 
 the alleged encroachment, the complaint was properly dismissed 
 upon the merits. The difficulty with this finding is that there 
 was no evidence to sustain it, and as the affirmance by the Ap- 
 pellate Division was not unanimous, that question must be con- 
 sidered upon this appeal. The proof showed quite conclusively 
 that the erection and maintenance of this encroachment upon the
 
 NUISANCE. 501 
 
 street affected the value of the plaintiff's property, and that it 
 was worth about fifteen thousand dollars less than it would be 
 if the defendant's wall did not project into the street. The only 
 theory upon which the court found, or which is insisted upon 
 by the defendant as tending to show that the plaintiff sustained 
 no damages, is the fact that her property is now worth more 
 than it was before the wall was erected. It is not claimed that 
 the extension of the wall into the street has improved the value 
 of the plaintiff's property, but the claim is that inasmuch as she 
 can now sell her property for an amount exceeding the price 
 which she paid, she has suffered no damages. The logic of this 
 contention is not apparent. If she made a fortunate purchase, 
 or if it has become so by the improvement of that neighborhood, 
 she is certainly entitled to the benefit of any advance in the value 
 of the property so purchased. In ascertaining the damages she 
 has sustained, the true rule is to prove the value of the property 
 with the defendant's encroachment, and its value with that en- 
 croachment removed and the difference is the measure of her 
 loss. That difference was proved to be fifteen thousand dollars. 
 Under these circumstances, it is difficult, indeed quite impossible, 
 to see how it can be properly said that the plaintiff has suffered 
 no special damages. We are of the opinion that the trial court 
 was not justified, upon the evidence in the record, in finding 
 that the plaintiff has sustained no special damages by reason of 
 the encroachment. 
 
 In the further consideration of this ease it will be assumed 
 that the plaintiff has established the fact that she has sustained 
 special damages by reason of the defendant's encroachment upon 
 the street amounting to about the sum of fifteen thousand dollars, 
 and that these damages are peculiar to the plaintiff and in addi- 
 tion to those which were suffered by the general public. It is 
 well established by the decisions of this court that interferences 
 with public and common rights create a public nuisance, and 
 when accompanied with special damage to the owner of lands 
 give also a right of private action to such owner, and that a 
 public nuisance as to the person who is specially injured thereby 
 in the enjoyment or value of his lands becomes also a private 
 nuisance. That this encroachment upon the street was a public 
 nuisance and that as to the plaintiff it was a private nuisance, 
 we have no doubt. In the language of Blaekstone, a private 
 nuisance is "anything done to the hurt and annoyance of the
 
 502 DAMAGES IN ACTIONS FOR WRONGS. 
 
 lands, tenements or hereditaments of another," which embraces 
 not a mere physical injury to the realty, but an injury to the 
 owner or possessor as respects his dealing with, possessing or en- 
 joying it, and that one erecting or maintaining such a nuisance 
 is liable in an action at the suit of another who has sustained 
 such special damages, and he may be restrained in equity from 
 continuing the nuisance. (Adams v. Popham, 76 N. Y. 410; 
 Francis v. Schoellkopf, 53 N. Y. 152 ; Kavanagh v. Barber, 131 
 N. Y. 211, 213; Wakeman v. Wilbur, 147 N. Y. 657, 663.) In 
 the case last cited Judge O 'Brien said : * ' The obstruction of the 
 public highway is an act which in law amounts to a public nui- 
 sance, and a person who sustains a private and peculiar injury 
 from such an act may maintain an action to abate the nuisance 
 and to recover the special damages by him sustained" (citing 
 People V. Kerr, 27 N. Y. 193 ; Davis v. Mayor, etc., of N. Y., 14 
 N. Y. 506 ; Adams v. Popham, 76 N. Y. 410 ; Chipman v. Palmer, 
 77 N. Y. 51), and he then adds: "The extent of the injury is not 
 generally considered very important. It should be substantial, 
 of course, and not merely nominal, and the fact that numerous 
 other persons have been injured by the act is no ground for a 
 denial of the relief." 
 
 Under the principle of these authorities it becomes obvious, 
 we think, that the plaintiff was entitled to maintain this action 
 not only for the purpose of abating the nuisance, but also to 
 recover any damages she might have sustained by reason of the 
 wrongful acts of the defendant in constructing and maintaining 
 this encroachment upon the street. * * * 
 
 Judgment reversed. 
 
 PRITCHARD V. EDISON ELECTRIC ILLUMINATING CO. 
 
 New York, 1904. 179 N. Y. 364. 
 
 Haight, J. This action was brought to recover the damages 
 resulting from the maintenance of a nuisance by the defendant. 
 The plaintiff's testator, on the 19th day of April, 1890, leased 
 from the owners the property known as "Miller's Hotel," 
 situated on West Twenty-Sixth street. New York, at Nos. 37, 
 39, and 41, for the period of five years, at an annual rental of 
 $15,000, and at the end of that period he renewed the lease for 
 another period of five years at a rental of $12,000 per year. In
 
 NUISANCE. 503 
 
 1888 the defendant constructed and put in operation an electric 
 lighting plant and power station situated upon the same street 
 41 feet west of the hotel. In the complaint it is alleged that the 
 defendant had so constructed and conducted its property and 
 operated its machinery as to discharge upon the premises of the 
 plaintiff great quantities of soot, cinders, ashes, noisome gases, 
 unpleasant odors, steam, and water condensing from steam, which 
 pervaded the premises of the plaintiff, fouling and injuring the 
 same and the furniture therein, and further made and produced 
 loud, disagreeable, and incessant noises, and very great jar and 
 vibration, which was transmitted through the premises of the 
 plaintiff, to the injury of the same, causing a. great nuisance, 
 and disturbing the rest and quiet of its inmates, and preventing 
 their sleep, and injuriously affecting their health and their quiet 
 and peaceful enjoyment and use of their apartments, to the 
 plaintiff's damages, etc. Two actions were brought by the 
 plaintiff 's testator covering different periods of time, which have 
 been consolidated and tried together as one action, resulting in 
 the verdict upon which the judgment appealed from was en- 
 tered. * * * 
 
 The serious question in the case pertains to the rule of damages 
 adopted by the trial court. The jury was charged that : * * If the 
 defendant's power station, as operated, was a nuisance, and les- 
 sened the profits of this hotel, the damages which the plaintiff 
 may recover are to be limited to the actual loss of profits, such 
 as you find from the evidence were caused to be lost through 
 the defendant's acts in the use and operation of its power sta- 
 tion." And again: "Generally, upon the question of the 
 plaintiff's claim that profits were lost, you should first take the 
 gross receipts of this hotel, j'^ear by year, as they appear to you 
 from the evidence to have been, and deduct from them, year by 
 year, the rent paid by ]Mr. Haynes and the running expenses. 
 This would give the net profits of each year." And finally: 
 "You are to notice that at some time after the establishment of 
 the station the rent of the hotel was lessened, and so far Mr. 
 Haynes had less expenses in the running of his hotel. To this 
 extent, if his gross receipts fell off, there would still be no loss, 
 unless the reduction of gross receipts was greater than the reduc- 
 tion of rents. The same considerations would apply to any re- 
 duction of the running expenses of the hotel after the year 1888, 
 since your comparison of profits before and after the station was
 
 504 DAMAGES IN ACTIONS FOR VVKONGS. 
 
 established must bo based upon the net prodts in each year; 
 that is, profits over and above the aetual rent and running ex- 
 penses year by year. You are to make this comparison, gentle- 
 men, for the purpose of finding vi^hether there was a loss during 
 the period after the defeudant's station was in operation. If 
 there was a loss, you are then to consider how much of it was 
 reasonably caused by the defendant's act in maintaining the 
 power station. And the damages which you may award in this 
 action would be the amount of loss which you find to have been 
 caused by the nuisance from November 22d, 1892, to November 
 1st, 1898." 
 
 The plaintiff's evidence tended to show that the premises had 
 been conducted for many years as a family hotel, and that but 
 few rooms were reserved for transients; that in the renting of 
 rooms or apartments the board or meals were included ; and that 
 the gross income from the rental of rooms by the year is shown 
 by Exhibit 9, from which is appears that in 1883 the rents re- 
 ceived amounted to $50,376.22. From this there was a gradual 
 falling off each year, until 1886, when the amount received was 
 but $40,963.56. From this there was a greater increase in rents, 
 even after the establishment of the defendant's plant, until 1891, 
 when the amount received was $46,307.75. During the next year 
 there was a falling off of $6,000, and of the next year of $4,000, 
 and of a gradual decline in the following years, until 1896, when 
 the receipts had fallen to $32,754.49. In 1897 there was again 
 substantial increase in the income. The plaintiff's expert witness 
 Perry gave evidence tending to show there was a depreciation in 
 the rental value of the premises from 1892 down to 1900 of about 
 $2,000 per year. It appears that at the end of the first lease in 
 1895 the landlord, in settling with the plaintiff, his tenant, de- 
 ducted $9,000 from the rent required by the lease ; that in giving 
 the new lease for another five years the rent was reduced $3,000 
 per year ; and that upon the termination of that lease another re- 
 duction was given upon the rent accrued amounting to $10,250. 
 The running expenses of the hotel either before or after de- 
 fendant's plant became a nuisance we have not found in the 
 appeal book, so that we have no basis from which we can ascer- 
 tain the net profits for any year, or as to whether there was any 
 loss of such profits in any year. * * * 
 
 We are thus brought to the consideration of the exceptions 
 taken to the defendant's request to charge. There are two that
 
 NUISANCE. 505 
 
 bear upon the subject of damages which require consideration. 
 The first is: "The measure of damages applicable to a case of 
 this kind is the actual diminution in rental value by reason of 
 the defendant 's acts. ' ' This request undoubtedly states the gen- 
 eral rule, and the diminution in rental value is one of the items 
 of damages applicable to this case. But the trouble with the 
 request is that it is not the only item of damage applicable. As 
 we have seen, the complaint alleges the fouling of the premises 
 and the injuring of the furniture from the great quantities of 
 soot, cinders, etc., escaping from the defendant's premises and 
 pervading those of the plaintiff. During the trial there was some 
 evidence given tending to show that the window curtains, win- 
 dows, and furniture generally would become soiled, and new up- 
 holstering necessary much oftener than before the plant became 
 a nuisance, and that the services of an extra man became neces- 
 sary to do the cleaning, whose services cost from $20 to $25 a 
 month. So that, while diminution in rental value becomes an 
 item of damages which the jury might award, in this case there 
 has been alleged, and evidence given tending to prove, other in- 
 dependent items of damages not covered by the diminution in 
 the rental value of the premises. As to whether loss of profits 
 in a business established upon the leasehold premises can be re- 
 coverable in any case, we are not called upon to consider, nor 
 do we now determine the question, for the reason that it is not 
 raised by any exception which we have power to review. 
 
 The other request to charge is that "loss of income from busi- 
 ness is not provable as an element of damage. ' ' There may be a 
 loss of income, and at the same time an equal lessening of the 
 expenses of the business, so that the net profits would remain the 
 same. This request, therefore, does not present the question 
 as to whether the loss in net profits from a business is provable 
 as an item of damages. In this case the rent of rooms or apart- 
 ments in the hotel was a part of the business in which the plaintiff 
 was engaged. We think that the evidence skowing the deprecia- 
 tion in the rent of the rooms in the hotel from year to year was 
 competent as bearing upon the question as to whether there was 
 a diminution in the rental value of the whole premises, and that 
 the request to charge under the circumstances was properly re- 
 fused. 
 
 For the reasons stated, the judgment should be affirmed, with 
 costs.
 
 506 DAMAGES IN ACTIONS FOR WRONGS. 
 
 CuLLEN, C. J., and Gray, Bartlett, Vann, and Werner, JJ., 
 concur. Martin, J., absent. 
 
 Judgment affirmed. 
 
 An electric lighting company, tlioiigh it has the power of eminent 
 domain, cannot erect a nuisance which impairs the legitimate use of 
 private property. If it does, exemplary damages can be recovered for 
 a second offense. Ganstler v. Met. El. Co., 214 I'a. 028. 
 
 One may be compensated for destruction of ornamental trees, 
 flowers and vines. Articles of luxury will be protected no less than 
 articles of necessity. The law will protect a flower as well as an oak. 
 The law will not compel a man to take money rather than the objects 
 of beauty which he places around his dwelling to gratify his taste. 
 Campbell v. Seaman, 63 N. Y. 5G8. 
 
 Where a nnisance obstructs a public highway and the same can be 
 removed at a trifling cost such cost is the measure of damages. Mel- 
 lick v. Penn. R. R. 203 Pa. 457. 
 
 6. Assault and Battery. 
 
 FETTER V. BEAL. 
 King's Bench, 1698, 1701. I Ld. Raym. 339, 692. 
 
 Special action of trespass and battery for a battery com- 
 mitted by the defendant upon the plaintiff, and breaking his 
 skull. The plaintiff declares of the battery, &e., and that he 
 brought an action for it against the defendant, and recovered 
 £11 and no more ; and that after that recovery part of his skull 
 by reason of the said battery came out of his head, per quod, &c. 
 The defendant pleaded the said recovery in bar. Upon which 
 the plaintiff demurred. And Shower for the plaintiff argued, 
 that this action differed from the nature of the former, and 
 therefore would well lie, notwithstanding the recovery in the 
 other; because the recovery in the former action was only for 
 the bruise and battery, but here there is a maihem by the loss 
 of the skull. As if a man brings an action against another for 
 taking and detaining of goods for two months, and afterwards 
 he brings another action for taking and detaining for two years, 
 the recovery in the former action is not pleadable in bar of the 
 second. If death ensues upon the battery of a servant, this will 
 take away the action per quod servitium amisit. And then if a 
 consequence will take away an action, for the same reason it
 
 ASSAULT AND BATTERY. 507 
 
 will give an action. If a man brings an action for uncovering 
 his house, by which his goods were spoiled, and afterwards by 
 reason of the said uncovering new goods are spoiled, he shall 
 have a new action Quod Holt negavit. And per totam curiam, 
 the jury in the former action considered the nature of the wound, 
 and gave damages for all the damages that it had done to the 
 plaintiff ; and therefore a recovery in the said action is good here. 
 And it is the plaintiff's fault, for if he had not been so hasty, 
 he might have been satisfied for this loss of the skull also. 
 
 Judgment for the defendant, nisi, <&c. 
 
 BEACH V. HANCOCK. 
 
 New Hampshire, 1853. 27 N. H. 223. 
 
 In this action of trespass for an assault, it appeared that while 
 the plaintiff and defendant were engaged in a bitter controversy, 
 the defendant went into his office, which was near at hand, and 
 obtained a gun, which he pointed in a threatening manner at the 
 plaintiff, who was three or four rods away. The defendant 
 snapped the gun which was not loaded two or three times at the 
 plaintiff, the latter not knowing that the gun was not loaded. 
 
 The court instructed the jury that the defendant had com- 
 mitted an assault, and that in assessing damages, it was their 
 duty to consider the effect that trivial damages would have in 
 encouraging a disregard of the laws and disturbances of the 
 peace. The defendant excepted. The jury brought in a verdict 
 for the plaintiff, and the defendant moved for a new trial. 
 
 By Court, Gilchrist, C. J. Several cases have been cited by 
 the counsel of the defendant, to show that the ruling of the 
 court was incorrect. Among them is the case of Regina v. Baker, 
 1 Carr & Kirw, 254. In that case the prisoner was indicted 
 under the statute of 7 Wm. IV and 1 Vic. ch. 85, for attempting 
 to discharge a loaded pistol. Rolpe, B., told the jury that they 
 must consider whether the pistol was in such a state of loading 
 that under ordinary circumstances it would have gone off. and 
 that the statute under which the prisoner was indicted would 
 then apply. He says, also: "If presenting a pistol at a person, 
 and pulling the trigger of it, be an assault at all, certainly in 
 the case where the pistol is loaded, it must be taken to be an
 
 508 DAMAGES IN ACTIONS FOR WRONGS. 
 
 attempt to discharge the pistol with intent of doing some bodily 
 injury." 
 
 From the manner in which this statement is made, the opinion 
 of the court must be inferred to be, that presenting an unloaded 
 pistol is an assault. There is nothing in the case favorable to 
 the defendant. The statute referred to relates to loaded arms. 
 
 The case of Regina v. James, 1 Carr & Kirw 529, was an in- 
 dictment for attempting to discharge a loaded rifle. It was 
 shown that the priming was so damp that it would not go off. 
 TiNDAL, C. J., said: "I am of opinion that this was not a loaded 
 arm within the statute of 1 Vic. eh. 85 ; and that the prisoner can 
 neither be convicted of the felony nor of the assault. It is only 
 an assault to point a loaded pistol at any one, and this rifle is 
 proved not to be so loaded as to be able to be discharged. ' ' 
 
 The reason why the prisoner could not be convicted of the 
 assault is given in the case of Regina v. St. George, 9 C. & P. 
 483, where it was held that on an indictment for a felony, which 
 includes an assault, the prisoner ought not to be convicted of an 
 assault which is quite distinct from the felony charged, and on 
 such an indictment the prisoner ought only to be convicted of an 
 assault which is involved in the felony itself. 
 
 In this case, Parke, B., said: "If a person presents a pistol 
 which has the appearance of being loaded, and puts the party 
 into fear and alarm, that is what it is the object of the law to 
 prevent." 
 
 So if a person presents a pistol, purporting to be a loaded 
 pistol, at another, and so near as to have been dangerous to life 
 if the pistol had gone off, semble that this is an assault, even 
 though the pistol were in fact not loaded. Ibid. 
 
 In the case of Blake v. Barnard, 9 C. & P. 626, which was tres- 
 pass for an assault and false imprisonment, the declaration 
 alleged that the pistol was loaded with gunpowder, ball, and shot, 
 and it was held that it was incumbent on the plaintiff to make 
 that out. Lord Abinger then says, ' * If the pistol was not loaded, 
 it would be no assault," and the prisoner would be entitled to 
 an acquittal, which was undoubtedly correct under that declara- 
 tion, for the variance. Regina v. Oxford, id. 525. 
 
 One of the most important objects to be obtained by the 
 enactment of laws and institutions of civilized society is, 
 each of us shall feel secure against unlawful assaults. With- 
 out such security, society loses most of its value, peace,
 
 ASSAUIiT AND BATTERY. 509 
 
 and order; and domestic happiness, inexpressibly more pre- 
 cious than mere forms of government, cannot be enjoyed 
 without the sense of perfect security. We have a right to live 
 in society without being put in fear of personal harm. But it 
 must be a reasonable fear of which we complain. And it surely 
 is not unreasonable for a person to entertain a fear of personal 
 injury when a pistol is pointed at him in a threatening manner, 
 when, for aught he knows, it may be loaded, and may occasion 
 his immediate death. The business of the world could not be 
 carried on with comfort if such things could be done with im- 
 punity. 
 
 We think the defendant guilty of an assault, and we perceive 
 no reason for taking any exception to the remarks of the court. 
 Finding trivial damages for breaches of the peace, damages in- 
 commensurate with the injury sustained, would certainly lead the 
 ill-disposed to consider an assault as a thing that might be com- 
 mitted with impunity. But at all events, it was proper for the 
 jury to consider whether such a result would or would not be 
 produced. Flanders v. Colby. 28 N. II. 34. 
 
 Judgment on the verdict. 
 
 HANNA V. SWEENEY. 
 Connecticut, 1906. 78 C!onn. 492. 
 
 Torrance, C. J. In the trial court the evidence for the plain- 
 tiff tended to prove that the defendant committed upon him a 
 violent, unprovoked, and malicious assault and battery, whereby 
 the plaintiff was greatly injured in mind, body, and estate. 
 Upon that evidence the plaintiff claimed to be entitled, if the 
 jury found in his favor, not only to full compensation for all his 
 actual injuries, but also to damages, in excess of such compensa- 
 tion, variously termed exemplary, punitive, or vindictive; and 
 the court correctly charged the jury in accordance with the tenor 
 of this claim. St. Peter's Church v. Beach, 26 Conn. 355; Burr 
 V. Plymouth, 48 Conn. 460 ; Maisenbacker v. Society Concordia, 
 71 Conn. 369 ; Welch v. Durand, 30 Conn. 182. 
 
 The court, however, further charged the jury with reference 
 to such damages that, if they found in favor of the plaintiff, they 
 might, "in addition to actual or compensatory damages, award
 
 510 DAMAGES IN ACTIONS FUlJ WRONGS. 
 
 punitive damages or 'smart money,' as it is sometimes called, 
 proportionate to the degree of malice or wantonness evinced by 
 the defendant." It is of this part of the charge that the de- 
 fendant chietly complains. He says that by it the amount of 
 "exemplary" damages which the jury might award to the 
 plaintiff was erroneously left entirely at large to the discretion 
 of the jury, and we think he is right in this claim. At common 
 law, in certain actions of tort, the jury were at liberty to award 
 damages, ''not only as a satisfaction to the injured person, but 
 likewise as a punishment to the guilty, to deter from any such 
 proceeding for the future, and as a proof of the detestation of the 
 jury to the action itself." Pratt, L. C. J., in Wilkes v. Wood, 
 Lofft, 1, 18, 19 ; Huekle v. Money, 2 Wils. 205 ; Lake Shore Eail- 
 way V. Prentice, 147 U. S. 101 ; Goddard v. Grand Trunk Rail- 
 way, 57 Me. 202 ; Day v. Woodworth, 13 How. 363 ; Dalton v. 
 Beers, 38 Conn. 529. 
 
 ^Moreover, at common law, the amount of punitive damages that 
 might be awarded was left almost entirely to the discretion of the 
 jury; for the courts generally refused to grant a new trial for 
 excessive damages of this kind. In Huekle v. Money, supra, 
 the actual damages appeared to be about £20 sterling, but the 
 verdict was for £300 ; and the court, in refusing to grant a new 
 trial, said: "It must be a glaring case, indeed, of outrageous 
 damages in a tort, and which all mankind at first blush must 
 think so, to induce a court to grant a new trial for excessive 
 damages." In Day v. Woodworth, 13 How. 363, 14 L. Ed. 181, 
 in speaking of the discretion of the jury in such eases, Justice 
 Grieb says: "This (i. e., the amount of 'smart money') has been 
 always left to the discretion of the jury, as the degree of punish- 
 ment to be thus inflicted must depend upon the particular cir- 
 cumstances of each case. It must be evident, also, that, as it de-. 
 pends upon the degree of malice, wantonness, or oppression, or 
 outrage of the defendant's conduct, the punishment of his de- 
 linquency cannot be measured by the expenses of the 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 those fees 
 cannot be taken as the measure of punishment or a necessary 
 element in its infliction." That the amount of punitive damages, 
 in eases where such damages may be awarded, is generally left 
 to the discretion of the jury, see, also, Cyc. vol. 13, p. 119, and
 
 ASSAULT AND BATTERY. 511 
 
 cases there cited, and Hale on Damages, c. 7, par. 83, and Sedg- 
 wick's Elements of Damages, p. 85. 
 
 This power of a jury, at common law in certain actions of tort, 
 to award damages beyond mere compensation, and practically of 
 such an amount as they in their discretion may determine, has 
 resulted in the doctrine of punitive damages, which has been 
 called "a sort of hybrid between a display of righteous indigna- 
 tion and the imposition of a criminal fine." Haines v. Schultz, 
 50 N. J. Law, 481. This doctrine has been said to be exceptional, 
 anomalous, logically wTong, and at variance with the general 
 rule of compensation in civil cases ; but, notwithstanding the ob- 
 jections urged against it, it prevails in many, if not in most, 
 of the states. Sedgwick's Elements of Damages, pp. 86, 87. In 
 this state the common-law doctrine of punitive damages, as above 
 outlined, if it ever did prevail, prevails no longer. In certain 
 actions of tort the jury here may award what are called punitive 
 damages, because nominally not compensatory; but in fact and 
 effect they are compensatory, and their amount cannot exceed 
 the amount of the plaintiff's expenses of litigation in the suit, 
 less his taxable costs. ' ' Such expenses in excess of taxable costs 
 * * * limit the amount of punitive damages which can be 
 awarded." Maisenbacker v. Concordia Society, 71 Conn. 369, 
 and cases there cited. 
 
 The court, it is true, told the jury that in estimating punitive 
 damages they might consider counsel fees and other expenses 
 of the plaintiff to which he had been put in attempting to get 
 compensation ; but, probably by an oversight, they were not told 
 that the amount of the punitive damages which they might award 
 v.as limited by the amount of those expenses less the taxable costs 
 in the suit ; and afterwards they were told in effect that the 
 amount of punitive damages was a matter that rested in their 
 discretion, dependent upon "the degree of malice or wantonness 
 evinced by the defendant." 
 
 There is error, and a new trial is granted. 
 
 The other judges concurred. 
 
 In Lowe v. Ring. 123 Wis. 107, it was held that in actions for assault 
 and battery, it is enough to justify exemplary damages that malice 
 prompted the assault, though it existed only a moment before the blow 
 was struck. 
 
 For damairos for assault and immoral solicitations, see Bruske v. 
 Neugent, IK! Wis. 488. 
 
 In an actioji for assault and battery, plaintiff can recover only such
 
 512 DAMAGES IN ACTIONS FOR WRONGS. 
 
 daniajres as are the necessary and proximate result of the act com- 
 plained of. Ihere can be no recovery in such a case for the loss of 
 an otlice of mate in the navy to which plaintiff was about to be 
 appointed. Brown v. Cumminfrs, 7 All. 507. 
 
 In assault and battery the jury tan consider whether the assault was 
 deliberate, or made in the sudden heat of passion. Radostain v. 
 Graside. 115 Cal. 425. 
 
 In these cases the question of verbal provocation is important as 
 bearing on mitigation of damages. Osier v. Walton, G7 N. J. L. 63. 
 
 In such an action plaintiff cannot recover for fright of his wife 
 and subse(iuent loss of her services. Hutchinson v. Stern, 115 App. 
 Div. N. Y. 7:n. 
 
 Wounded feelings of plaintiff, humiliation and disgrace can be con- 
 sidered by the jury where a shop-girl was accused of theft, led through 
 a store and searched and $4.20 taken from her. Henderson v. Agon, 
 148 3Iich. 253. 
 
 Damages (which need not necessarily be nominal damages only) 
 may be awarded for an assault and battery which consisted of the 
 defendant, a milkman, entering the sleeping room of the plaintiff and 
 forcibly waking him. for the purpose of presenting a bill to him. 
 Richmond v. Fisk, 100 Mass. 34. 
 
 7. Slander. 
 
 LYNCH V. KNIGHT. 
 
 House of I.ords, 1861. 9 H. L. Cas. 577. 
 
 Action by Knight and his wife to recover damages for slan- 
 derous words spoken of the wife, imputing immoral conduct on 
 her part prior to marriage. The special damage alleged was 
 loss of consortium by the wife by reason of the speaking of the 
 words. The jury found a verdict for 150 1. 
 
 Lord AA'^ENSLEYDALE. Mental pain or anxiety the law cannot 
 value, and does not pretend 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 esti- 
 mating it, should altogether overlook the feelings of the party 
 interested. For instance, where 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 service is a material damage 
 which a jury has to estimate; when juries estimate that, they
 
 SLANDER. 513 
 
 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 com- 
 fort of her husband's society and affectionate attention, which 
 the law cannot estimate or remedy. She does not lose her main- 
 tenance, which he is bound still to supply. * * • 
 
 FLANNIGAN v. STAUSS. 
 
 Wisconsin, 1907. 131 Wis. 94. 
 
 In an action for slander the respondent recovered a verdict 
 for $500 against the appellant, and judgment was accordingly 
 entered, from which this appeal is taken. 
 
 Timlin, J. The appellant assigns two errors for which he eon- 
 tends the judgment should be reversed. * * * 
 
 The second assignment of error is as follows: "The court 
 erred in denying tlie defendant's motion for a new trial." The 
 motion for a new trial specified six grounds, but the brief of 
 appellant states that this assignment of error is based on the 
 ground that the damages awarded by the jury are excessive, 
 and this is the only ground argued in support of that assign- 
 ment of error. It is conceded that the words charged, if used, 
 were actionable per se. There is also some evidence tending to 
 sustain a claim for punitory damages. It is contended, in sup- 
 port' of the claim that the damages are excessive, that the evidence 
 shows the respondent to be "a woman extremely common, if not 
 coarse." This is based upon the language alleged to have been 
 used by her toward the appellant. It is well for the human race 
 that female chastity is not peculiar alone to the educated and re- 
 fined, but was also characteristic of the "common and coarse" 
 mothers of the stout barbarians who laid the foundation of our 
 present system of education and refinement, and who largely by 
 their possession and preservation of this virtue became the master 
 spirits of the world. It is, to say the least, no indication of de- 
 cadence when the body of our people represented by the jury 
 vigorously resent false and unfounded imputations against female 
 chastity. 
 
 33
 
 514 DAMAGES IN ACTIONS FOR WRONGS. 
 
 It is next contended that the alleged slanderous words were 
 spoken in quarrel, and this should have the effect of reducing the 
 punitory damages. No doubt this is a proper consideration in 
 mitigation of damages, but the questions presented to this court 
 are quite different from the ordinary consideration of mitigating 
 circumstances by a jury. It is said in Donovan v. C. & N. W. 
 Ry. Co., 93 Wis. 373, that in an action for unliquidated damages 
 arising from a tort the court is not at liberty to set aside a 
 verdict on the ground that it is excessive unless the excess is such 
 as to create the belief that the jury have been misled either by 
 passion, prejudice, or ignorance. Applying this test to the ver- 
 dict in question, there is no groimd of reversal. 
 
 The judgment of the circuit court is affirmed. 
 
 "We think the rule is well settled that it is competent to show the 
 reputation previous to the utterance of the alleged slander, as bearing 
 upon the question of damage." Moore, J., in Georgia v. Bond, 114 
 Mich. 197. 
 
 The following were held to be proper instructions: "If you believe 
 from the evidence that at the time of the publication, the plaintiff 
 was a woman of disparaged reputation, then that must be taken into 
 consideration, because a woman whose reputation for chastity and 
 virtue is bad cannot suffer the same damage as a woman of good repu- 
 tation," Fowler v. Fowler, 113 Mich. 576. See Kloths v. Hess. 126 
 Wis. .587. 
 
 In a case of slanderously imputing want of skill to a physician, 
 social degradation and disgrace and loss of professional employment 
 with its honors and rewards can and ought to be considered. Swift v. 
 Dickerman, 31 Conn. 285. 
 
 For actions in slander see Pollard v. Lyon, 91 IT. S. 225; Terwll- 
 liger V. Wands, 17 N. Y. .54. In case of slander, imputing larceny to 
 the plaintiff, on an allegation in mitigation of damages, the defendant 
 cannot show that in a single instance plaintiff behaved badly, but 
 must confine himself to general reputation and character. Mahoney 
 V. Belford, 132 Mass. 393. 
 
 Mental suffering is an element of general damages in an action of 
 libel. Turner v. Hearst, 115 Cal. 394 ; — an action for libel in publishing 
 that Lotta, the actress, had got an order of arrest against plaintiff, 
 an attorney at law. Only actual damages proved can be recovered in 
 Michigan. Andrews v. Booth, 148 Mich. 333.
 
 LIBEL. 515 
 
 8. Lihel. 
 SICRA V. SMALL. 
 
 Maine, 1895. 87 Me. 493. 
 
 Whitemouse, J. This was an action of libel for defamatory 
 matter, published in a newspaper, representing that the plaintiff 
 and Mrs. Blake had "eloped," and were living together in 
 adultery. 
 
 At the trial, evidence was offered by the defendant, and ad- 
 mitted by the court, subject to the plaintiff's right of exception, 
 that the plaintiff's "general character" was bad in the com- 
 munity in which he lived. 
 
 I. It Vv'as not questioned by the plaintiff that, in actions for 
 libel or slander, the character of the plaintiff may be in issue 
 upon the question of damages; but it is contended that the in- 
 quiry should be restricted to the plaintiff 's general reputation in 
 respect to that trait of character involved in the defamatory 
 charge. * * * 
 
 In this class of cases, the defendant may introduce evidence, in 
 mitigation of damages, that the plaintiff's general reputation, as 
 a man of moral worth, is bad, and may also show that his general 
 reputation is bad with respect to that feature of character 
 covered by the defamation in question ; and, as to the admission 
 of such evidence, it is immaterial whether the defendant has 
 simply pleaded the general issue, or has pleaded a justification 
 as well as the general issue. Stone v. Varney, 7 Mete. (Mass.) 
 86; Leonard v. Allen, 11 Gush. (Mass.) 241; Eastland v. Cald- 
 well, 2 Bibb (Ky.) 21; Powers v. Gary, 64 Me. 9; Sutherland on 
 Damages, 679. 
 
 In Stone v. Varney, supra, the libel imputed to the plaintiff 
 "heartless cruelty toward his child," and it was held competent 
 for the defendant to introduce evidence, in mitigation of dam- 
 ages, that "the general reputation of the plaintiff in the com- 
 munity, as a man of moral worth," was bad. After a careful 
 examination of the authorities touching the question, the court 
 say, in the opinion: "This review of the adjudicated cases, and 
 particularly the decisions in this commonwealth and in the state 
 of New York, seems necessarily to lead to the conclusion that 
 evidence of general bad character is admissible in mitigntion of 
 damages. * * * n cannot be just that a man of infamous
 
 516 DAMAGES IN ACTIONS FOR WRONGS. 
 
 character shonhl. for the same libelous matter, be entitled to 
 equal damages w itli the mau ol" unblemished reputation ; yet 
 such uuist be the result, unless character be a proper subject of 
 evidence before a jury. Lord Ellenborough, in 1 Maule & S. 
 28G, says: 'Certainly a person of disparaged fame is not en- 
 titled to the same measure of damages with one whose character 
 is unblemished, and it is competent to show that by evidence.' " 
 
 In Leonard v. Allen, supra, the plaintitf was charged with 
 maliciously burning a schoolhouse, and it was held that, in the 
 introduction of evidence to impeach the character of the plaintiff, 
 in mitigation of damages, the inquiries should relate either to the 
 general character of the plaintiff for integrity and moral worth, 
 or to his reputation in regard to conduct similar in character 
 to the offense with which the defendant had charged him. 
 
 In the recent case of Clark v. Brown, 116 Mass. 505, the 
 plaintiff was charged with larceny. The trial court admitted 
 evidence that the plaintiff's reputation for honesty and integrity 
 was bad, and excluded evidence that his reputation in respect to 
 thieving was bad. But the full court held the exclusion of the 
 latter evidence to be error, and reaffirmed the rule, laid down in 
 Stone V. Varney and Leonard v. Allen, supra, that it was com- 
 petent for the defendant to prove, in mitigation of damages, 
 that the plaintiff's general reputation was bad, and that it was 
 also bad in respect to the charges involved in the alleged slander. 
 
 In Lamos v. Snell, 6. N. H. 413, the defendant's right to in- 
 quire into the plaintiff's "general character as a virtuous and 
 honest man, or otherwise," was brought directly in question ; and 
 it was determined that the defendant was "not confined to evi- 
 dence of character founded upon matters of the same nature 
 as that specified in the charge, but may give in evidence the 
 general bad character of the plaintiff * * * in mitigation of 
 damages, and for this inquiry the plaintiff must stand prepared. ' ' 
 
 In Eastland v. Caldwell, supra, the court say, in the opinion: 
 "In the estimation of damages the jury must take into con- 
 sideration the general character of the plaintiff. * • * In 
 this case, the defendant's counsel was permitted by the court to I 
 inquire into the plaintiff's general character in relation to the 
 facta in issue ; but we are of opinion he ought to have been per- 
 mitted to inquire into his general moral character, without rela- 
 tion to any particular species of immorality; for a man who is 
 habitually addicted to every vice, except the one with which he
 
 LIBEL. 517 
 
 is charged, is not entitled to as heavy damages as one possessing 
 a fair moral character. The jury, who possess a large and al- 
 most unbounded discretion upon subjects of this kind, could 
 have but very inadequate data for the quantum of damages if 
 they are permitted only to know the plaintiff's general char- 
 acter in relation to the facts put in issue." 
 
 With respect to the form of inquiry, it is said to be an in- 
 flexible rule of law that the only admissible evidence of a man's 
 character, or actual nature and disposition, is his general reputa- 
 tion in the community where he resides. Chamb. Best, Ev. 256, 
 note. It would seem, therefore, that, in order to avoid eliciting 
 an expression of the witness' opinion respecting the plaintiff's 
 character, the appropriate form of interrogatory would be an 
 inquiry calling directly for his knowledge of the plamtiff 's repu- 
 tation in the community, either as a man of moral worth, with- 
 out restriction, or in the particular relation covered by the libel 
 or slander. 
 
 II. But the plaintiff also has exceptions to the following in- 
 struction in the charge of the presiding justice: "I am requested 
 by the counsel for the defendant to instruct you that, if the 
 plaintiff's conduct was such as to excite the defendant's sus- 
 picions, it should be considered in mitigation of damages, the 
 plaintiff alleging that he had never been suspected of the crime 
 alleged. I give you that instruction. " * * * 
 
 The obvious objection to it is that the damages in an action of 
 slander are to be "measured by the injury caused by the words 
 spoken, and not by the moral culpability of the speaker." We 
 have seen that the defendant is permitted to prove that the 
 plaintiff's general reputation is bad, because this evidence has a 
 legitimate tendency to show that the injury is small ; but the 
 evidence of general report that the plaintiff is guilty of the im- 
 puted offense is inadmissible for the purpose of reducing dam- 
 ages. Powers v. Gary, supra; Mapes v. Weeks, 4 Wend. (N. Y.) 
 659; Stone v. Vamey, supra. A fortiori, evidence of the de- 
 fendant's suspicions, however excited, cannot be received for 
 such a purpose. Watson v. ^Moore, supra. 
 
 This instruction to the jury must therefore be held erroneous ; 
 and for this reason the entry must be, exceptions sustained. 
 
 Haskell, J. concurred in the result.
 
 518 DAMAGES IX ACTIONiS FOR WRONGS. 
 
 SMITH V. MATHEWS. 
 
 New York, 1S97. 152 X. Y. 152. 
 
 Bartlett, J. This is an action to recover damages for an 
 alleged libelous publication in two newspapers of the defendants, 
 and a jur^ rendered a verdict in favor of the plaintiff for $4,000. 
 The general term of the late superior court of Buffalo reversed 
 the judgment entered upon the verdict, and ordered a new trial. 
 A single question is presented on this appeal. The learned trial 
 judge, after a very full and fair charge to the jury, was requested 
 by coimsel for defendants to charge "that, unless defendants 
 were moved by actual malice, the jury should not award the 
 plaintiff damages by way of punishment." The court replied: 
 "Yes, I charge you they must be moved by actual malice; but 
 you may find actual malice if you find they failed to make an 
 investigation as to the truthfulness of the charge." To this 
 charge the defendants excepted. Taken as abstract propositions, 
 both the request of defendants' counsel and the response of the 
 court involved legal error. If by " actual malice ' ' the defendants ' 
 coimsel referred to actual spite or wicked intention on the part of 
 defendants, then his legal proposition is unsound, as damages, 
 by way of punishment, are not limited to actual malice as thus 
 defined. If the trial judge meant to state to the jury that a 
 failure on the part of the defendants to investigate the truthful- 
 ness of the charge before publication entitled them to find ' ' actual 
 malice" in the sense that it showed the defendants were moved 
 hy spite and v/icked intention against the plaintiff, it is clearly 
 erroneous as a legal proposition. The reversal of the general 
 term rests upon this alleged error in the charge, for the reason 
 that prejudice may have resulted to the defendants therefrom, 
 as the jury might have based their verdict upon actual, as dis- 
 tinguished from implied, malice, or malice in law. It is neces- 
 sary, in order to properly decide the question thus presented, 
 to examine the entire charge to the jury in the light of the facts 
 and the proceedings at the trial. The defendants published the 
 alleged libel in two newspapers owned by them, — the Buffalo 
 Morning Express, issued daily, and the Buffalo Illustrated Ex- 
 press, issued weekly. The plaintiff, at the time of the publica- 
 tion, was a young married woman, living with her husband 
 and children in Toronto, province of Ontario, moving in high 
 social circles, and possessed of a good reputation. On or about
 
 LIBEL. 519 
 
 June 14, 1890, the defendants published in their newspapers an 
 article received by them through the United Press Association, 
 charging that the plaintiff, the wife of a Toronto merchant, had 
 eloped with one Rutherford, a young bachelor of 30 ; that the in- 
 cident had created a great stir in Toronto, and her husband 
 would investigate, etc. It was admitted by defendants at the 
 trial that there w^as no elopement, and the plaintiff proved that 
 she was escorted to New York by Rutherford at the suggestion 
 and request of her husband, who met her at the Grand Central 
 Station on their arrival in that city. For the purposes of this 
 appeal, it can be taken as admitted that the article complained 
 of Avas a gross libel, charging the plaintiff, a reputable married 
 woman, with the gravest offense that can be connnitted by a wife 
 and mother; that it was published in the two newspapers of 
 defendants, both of which were circulated to some extent in the 
 city of Toronto, wiiich is distant 70 miles from Buffalo. 
 
 At the close of the main charge the defendants' counsel said: 
 "I except to that portion of your honor's charge in which you 
 instruct the jury that they may give damages by way of punish- 
 ment, it being conceded that there was no actual malice either 
 upon the part of the defendants or their agent. By the Court : 
 You will not misunderstand the court upon that proposition. 
 They have disclaimed any actual malice, and the court has 
 told you that must be accepted by you as true ; that they did not 
 at the time actually intend to inflict injury; consequently from 
 that statement you would not be justified in awarding damages 
 by way of punishment. But if you find that they could have 
 found out the truthfulness or untruthfulness of this charge 
 that they made, and they failed to make any investigation, you 
 would be able to find such action upon their part, or upon the 
 part of their agent, was a wanton act of negligence from which 
 the law would imply malice, and you would be authorized to 
 award vindictive damages, if you so find." It was at this point, 
 and after the court had again placed correctly before the jury 
 the precise issue and the rule of damages, that the erroneous 
 charge was made upon v.hich the general term reversed, and to 
 which we have adverted. We are unable to agree with the 
 learned general term that it cannot be said with reasonable cer- 
 tainty that the defendants were not prejudiced by this lapse of 
 the trial judge in telling them they could find actual malice if 
 they found the defendants had failed to make an investigation
 
 520 DAMAGES IN ACTIONS FOR WRONGS. 
 
 as to the truthfulness of the charge. The entire charge disck)ses 
 repeated statements to the jury tliat there was no actual malice 
 on the part of the defendants, and that, if they were to be held 
 liable, it was by reason of implied malice for a reckless and 
 negligent publication of the libel, and we are satisfied that the 
 jury were not misled. This error of the trial judge was harm- 
 less under the well-established rule that it may often occur in 
 a charge to the jury that particular words or expressions used, 
 when taken by themselves, will be objectionable, or seem to be 
 erroneous, but they should not be considered independently of 
 the context. Chellis v. Chapman, 1 25 N. Y. 214 ; Sperry v. Miller, 
 16 N. Y. 407 ; Losee v. Buchanan, 51 N. Y. 492 ; Railroad Co. v. 
 Babcock, 154 U. S. 201. This case was submitted to the jury in 
 a manner most favorable to the defendants. It is undisputed 
 upon the evidence that this publication was reckless and aegli- 
 gent; nevertheless the trial judge submitted that question to the 
 jury, and told them they could award nominal, actual, or puni- 
 tive damages. The learned counsel for the defendants insists 
 that punitive damages are only recoverable in case of actual 
 malice, when the wicked intent to injure exists. The rule is 
 otherwise, and it has been repeatedly held in this state that a 
 libel, recklessly or carelessly published, as well as one induced 
 by personal ill will, will support an award of punitive damages. 
 Warner v. Publishing Co., 132 N. Y. 181 ; Holmes v. Jones, 121 
 N. Y. 461, and cases cited ; Id., 147 N. Y. 59. 
 
 The defendants have been cast in heavy judgment, and it may 
 be that a smaller verdict would have answered the purposes of 
 justice under the circumstances ; but this publication was grossly 
 negligent, and attacked, without the shadow of justification, the 
 good name of an innocent wife and mother, charging her, in 
 effect, with unfaithfulness to her marriage vows, and the aban- 
 donment of her children. All this came about, not because the 
 defendants were impelled by a wicked intent to injure this 
 plaintiff, but for the reason that, as one of them admitted upon 
 the witness stand, it was not their custom, on receiving articles 
 of news, to ascertain their truth or falsity before publication. 
 The publishers who adopt this reckless rule in the conduct of 
 their business must abide the consequences. The order appealed 
 from should be reversed, and the judcrmont entered upon the ver- 
 dict, and the order denying a new trial affirmed, with costs. All 
 concur. Ordered accordingly.
 
 LIBEL. 521 
 
 TAYLOR V. HEARST. 
 
 California, 1897. 118 Cal. 366. 
 
 Action for libel. Judgment of $500 in favor of plaintiff, from 
 which defendant appeals. 
 
 Henshaw, J. This is a second appeal. The facts are sub- 
 stantially the same as those considered upon the first appeal. 
 They will be found set forth at length in Taylor v. Hearst, 107 
 Cal. 262. It will be observed that the question of express malice, 
 which may be evidenced either by a willful intent to injure, or 
 by gross carelessness, was, under the facts and the law as laid 
 down in the former opinion, entirely removed from the case. 
 This was the view taken by the trial court, and the jury'was so 
 instructed. Plaintiff's recovery, therefore, was limited to com- 
 pensatory damages. Certain questions asked of defendant's wit- 
 nesses were ruled out under objections. These questions were ad- 
 dressed to the good faith of the publication, and to the negligence 
 of the publisher. But good faith and reasonable care are per- 
 tinent inquiries where the question of punitive damages is in- 
 volved, not where, the matter being libelous per se, and its pub- 
 lication admitted, the recovery is expressly limited to compen- 
 satory damages; for a plaintiff under such facts is entitled to 
 compensatory damages, without regard to the good faith or cau- 
 tion which attended the publication. Wilson v. Fitch, 41 Cal. 
 363; Taylor v. Hearst, 107 Cal. 262; Turner v. Hearst, 115 Cal. 
 394 ; McAllister v. Detroit Free Press Co., 76 Mich. 338 ; Scrippa 
 V. Reilly, 38 Mich. 10 ; Warner v. Publishing Co., 132 N. Y. 185. 
 
 Instruction 3, given by the court, is as follows: "Good faith 
 requires of a publisher that he exercise the care and vigilance 
 of a prudent and conscientious man, wielding, as he does, the 
 great power of the public press. There must be an absence, not 
 only of improper motives, but of negligence, on the part of the 
 defendant." This instruction would have had pertinency if 
 addressed to a case in which punitive damages were claimed. 
 Upon the facts of this case it had no bearing, for, as has been 
 said, the court instructed the jury as matter of law that punitive 
 damages could not be awarded. No injury, therefore, could have 
 been worked appellant. 
 
 The award of $500 for compensatory damages cannot be re- 
 garded as excessive. Wilson v. Fitch, 41 Cal, 363; Gilman v. 
 McClatchy, 111 Cal. 606. The judgment and order appealed 
 from are affirmed. We concur: McFarland, J.; Temple, J.
 
 522 DAMAGES IN ACTIONS FOR WRONGS. 
 
 BUTLER V. IIOBOKEN PRINTING AND PUB. CO. 
 
 New Jersey, 1905. 73 N. J. L. 45. 
 
 Reed, J. This is an action for damages for libel, defaming 
 the plaintiff. The plaintiff was a professional riiie expert. Her 
 professional name is Annie Oakley. As such she traveled with 
 Buffalo Bill's show for a number of years. The Hoboken Ob- 
 server, published by the defendant, published an article headed 
 "Downfall of a Famous Woman Sharpshooter. Annie Oakley, 
 a Victum of Drugs, Sent to Jail." It was asserted that Annie 
 Oakley was a prisoner in the Harrison street police court; that 
 she was arrested, charged with robbery ; that she pleaded guilty, 
 and was fined ; that according to the police she was addicted to 
 the use of drugs ; that she was formerly with Buffalo Bill's show; 
 that she was then destitute, and forced to accept shelter from an 
 old colored man named Curtis ; that a justice of the peace sent 
 her to bridewell for 25 days. For the injury occasioned by this 
 publication this action was brought, and a verdict of $3,000 re- 
 covered. This hearing is upon the return of a rule to show cause 
 why this verdict should not be set aside and a new trial granted. 
 It appears that the same item was sent out from Chicago, and 
 was published in a number of newspapers throughout the country. 
 The trial justice very properly charged that the defendant was 
 liable for only that portion of the entire injury resulting from 
 these publications as could be attributed particularly to the de- 
 fendant. The trial justice also properly overruled testimony to 
 show the particulars of actions brought against other newspapers 
 for publishing a similar libel and the amount of damages re- 
 ceived in some of those suits. 
 
 There is, however, another phase of the case which seems to 
 call for more consideration. The declaration charged, as the re- 
 sult of the publications, that the defendant was greatly injured 
 in health and obliged to go to great expense for procuring physi- 
 cians and medicines. The trial justice charged that the de- 
 fendant was responsible for so much of the injury to her health 
 and resultant disability to follov/ her profession as was pro- 
 duced by this article. No exception was taken to this part of 
 the charge, nor was the attention of the trial justice called to 
 this language, nor, indeed, was any modification of this language 
 suggested. The counsel for the defendant now insists that injury 
 to health is not a legitimate element of damage in actions for
 
 LIBEL. 523 
 
 defamation of character. Even if this insistment is well 
 grounded, as no exception was taken at the trial to the charge, 
 the defendant is not strictissimi juris entitled to now raise that 
 point. When an exception is taken to an instruction or to the 
 admission of illegal evidence, the court, upon motion for a new 
 trial, will not set aside the verdict if it appears that justice has 
 been done. So, on the other hand, a verdict may be set aside 
 when the rules of damages adopted are erroneous or testimony 
 concerning them irrelevant, although no objection was made at 
 the trial. Stewart's Digest, pp. 838, 839, §§ 10, 11, 40; Lippin- 
 cott V. Souder, 8 N. J. Law, 161-165; Hatfield v. C. R. R., 33 
 N. J. Law, 251. The Hoboken Observer is a local newspaper 
 circulating in the southern part of Hudson county. It is im- 
 possible to resist the conclusion that the element of ill health 
 and its alleged consequences must have figured most influentially 
 in inducing the jury to award $3,000 as damages. The injury 
 caused by this publication to the private or professional reputa- 
 tion of the plaintiff, she following her profession in Europe as 
 well as the United States, could hardly have been, under the cir- 
 cumstances, equivalent to $3,000. Indeed, in her testimony the 
 money feature of special importance was her inability to shoot 
 because of nervous prostration caused by this and other publica- 
 tions. By reason of this, she says, she was compelled to abandon 
 an arrangement for the season of 1903 by which she was to re- 
 ceive $150 a week. So it would seem clear that this factor must 
 have entered into the assessment of damages returned by the 
 jury. If, therefore, it be true that injury to the health of a 
 libeled person and the consequences flowing therefrom is not a 
 legitimate ground for assessing damages, a new trial should be 
 directed, although the error crept into the trial without ob- 
 jection. 
 
 The ease upon the authority of which the defendant's insist- 
 ment is grounded is Terwilliger v. Wands, 17 N. Y. 54. That 
 was an action for slander charging the plaintiff with unchastity. 
 The special damages proved were impaired health and mental 
 trouble caused by the spoken words. The words spoken were 
 not actionable in themselves, and so it required proof of some 
 special damages to support the action. It was held that ill 
 health, although actually produced by the slander was not, in a 
 legal view, a natural or ordinary consequence of the slander. This 
 case was decided in 1858. Two years later the English Court of
 
 624 DAMAGES IN ACTIONS FOR WRONGS. 
 
 Exchequer, in Allsop v. Allsop, 5 Hurl. & N. 534, was ealled 
 upon to deal with an action for .slander, in which damages were 
 claimed for sickness caused by a false charge of unchastity. Pol- 
 lock, C. B., said: '"There is no precedent for any such special 
 damage as that laid in the declaration being made a ground of 
 action, so as to render actionable what would otherwise not be so. 
 * * * This particular damage depends upon the tempera- 
 ment of the party affected, and it may be laid down that ill- 
 ness, arising from the excitement which the slanderous language 
 may produce, is not that sort of damage which forms a ground 
 of action." In Lynch v. Knight, decided in the House of Lords 
 in 1864, and reported in 9 House of Lords Cases, 593, and in 8 
 English Rul. Cases, 382, 388, Lord Brougham, in giving judg- 
 ment, remarked: ''I think Allsop v. Allsop was well decided, 
 and that mere mental suffering or sickness supposed to be caused 
 by the speaking of words not actionable in themselves, would not 
 be special damages to support the action." Lord Wensleysdale 
 said: "Mental pain or anxiety the law cannot value, and does 
 not pretend 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 in- 
 stance, when 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 services is a material damage, which a jury has 
 to estimate. When juries estimate that, they usually cannot 
 avoid considering the injured honor and the wounded feelings of 
 the parent." 
 
 Each of the three cases mentioned was an action for slander, 
 and the slander charged was for speaking words which were not 
 actionable per se, and only became such if followed by special 
 damage. The question in each case was in respect to the kind of 
 special damage which would give rise to a cause of action. 
 These cases seem to settle the rule that neither mental suffering 
 nor physical sickness will alone do so in that class of actions. 
 The present action belongs to a different class. The words for 
 which damages are sought, not only charged the defendant with 
 a crime and so were actionable per se, but they were printed and, 
 as a libel, were similarly actionable. In this class of actions for 
 defamation of character, upon proof of the publication, damages
 
 LIBEL. 525 
 
 are presumed to have accrued; therefore in such actions it is 
 not necessary for the plaintiff in his declaration to plead special 
 damages in order to support his action. If he desires to prove 
 special damages he must plead them, it being the rule that no 
 evidence shall be received of any loss or injury which the plaintiff 
 sustains from the words used unless it be specially stated in the 
 declaration and if named it must be proved as stated. 2 Saund- 
 ers on Pleading & Evidence, marg. p. 927. 
 
 At this point arises the important question whether the range 
 of what may be pleaded or proved as damages is wider in this 
 class of actions than in those which depend entirely upon proof 
 of special damages. IVIr. Odgers, after stating the rule respect- 
 ing special damages in the first class, if they have been properly 
 pleaded proceeds to say that the law is not quite so strict in ac- 
 tions where the words are actionable per se; and that although 
 when the words are not actionable per se, mental distress, illness, 
 etc., do not constitute special damages, yet where the words are 
 actionable per se the jury may take such matters into their 
 consideration in according damages. Odgers on Libel & Slander. 
 His authority for this statement is the remark of Lord Wensleys- 
 dale in Lynch v. Knight, supra, already quoted. Now it is to be 
 observed that Lord Wensleysdale did not say that mental suffer- 
 ings are to be regarded as a subject for special damages when 
 the words are actionable per se. What he did say was that a 
 jury, if permitted to return damages for a legal cause of action, 
 would be influenced by the considerations mentioned. It is con- 
 ceded, however, that while mental suffering will not support an 
 action for words not actionable per se, nevertheless, damages for 
 mental suffering may be assessed in actions for defamation ac- 
 tionable per se. In Massachusetts, such damages for mental 
 distress are regarded as general, and are recoverable, without 
 being specially pleaded. Chesley v. Thompson, 137 Mass. 136; 
 Lombard v. Lennox. 155 Mass. 76. In New York such damages 
 seem to be regarded as punitive and assessable only in cases 
 where there is proof of actual malice. Brooks v. Harison, 91 N. 
 Y. 83-02 ; Warner v. P. P. Co.. 132 N. Y. 181 ; Van Ingen v. Star 
 Co.. 1 App. Div. 429. affirmed 157 N. Y. 695. 
 
 The right of a libeled person to recover damages as a compen- 
 sation for her feelings was recognized by our Court of Errors 
 and Appeals in the ease of Knowlden v. Guardian Printing Co., 
 reported in 40 Vronm 670. Indeed, mental anguish, mortifica-
 
 526 DAMAGES IN ACTIONS FOR WRONGS. 
 
 tion, and anger are the necessary results from defamation of 
 eliaraetor, and so may be said to be legally inferred from the 
 fact of defamation. But, when physical injury is predicated of 
 the defamatory words spoken, it cannot be said that it is either 
 the necessary or natural consequence therefrom. In rare in- 
 stances physical sickness may result from mental worry, but it is 
 an exception to the rule. Even then, it is a step removed from 
 the first result, and cannot be said to be the proximate con- 
 sequence of the dafamatory words. The entire absence of any 
 precedent, so far as I have examined the question, for the assess- 
 ment of damages in this class of cases for physical ailment is a 
 remarkable feature in the administration of the law, if such 
 right to damages exists. There is au abundance of authority sup- 
 porting the assessment of damages for mental anxiety, but none 
 for damages for physical sickness. The same may be said of the 
 other class of actions alluded to by Lord "Wensleysdale, actions 
 for seduction based upon the fiction of loss of services. By in- 
 veterate usage, the relations of master and servant having been 
 established, the parent is to be permitted to recover for injured 
 feelings. But it admittedly rests upon the gromid of inveterate 
 usage, and not upon any logical basis. Sedgwick on Damages, p 
 542. 
 
 In the present ease the damages resulting from physical ill- 
 ness which the jury was permitted to consider did not stop with 
 the mere compensation for such physical pain and expenses for 
 medical treatment. The important loss resulting from her 
 broken health was that she was compelled by reason of it to 
 abandon her profession for a season at a loss of $150 a week. This 
 alleged loss, it is perceived, did not result from failure to procure 
 engagements by reason of loss of professional standing caused 
 by the defendant's words. The loss of employment, therefore, 
 was not the result of injured reputation, but of physical inability 
 to shoot. This inability is traced back to mental worry, which 
 resulted from knowledge by the plaintiff that she had been de- 
 famed. I am of the opinion that damages for loss of earnings 
 so resulting, as well as for physical distress, are too remote. Nor 
 can the amount of damages found be vindicated upon the ground 
 that they might have been exemplary. The absence of actual 
 malice was admitted by the plaintiff upon the trial, and the 
 right to recover punitive damages was disclaimed. 
 
 The rule should be made absolute.
 
 FALSE IMPRISONMENT. 527 
 
 Punitive damages may be awarded for libel where defendant refuses 
 to publish a retraction, but in fact republishes the libel. Crane v. 
 Bennett, 177 N. Y. lOG. But such damages cannot be awarded if the 
 libel was published without malice. Oilman v. McClatchy, 111 Col. 
 606. But where defendant acted with reckless and careless indiffer- 
 ence to the rights of the plaintiff, and took no pains to get a correct 
 story and details, punitive damages were properly awarded. Russell 
 V. Washington Post, 31 App. D. C. 277. See also Bee Pub. Co. v. 
 World Pub. Co., S2 ^;. W. Rep. 28; Pellardis v. Journal Print Co., 99 
 Wis. 156; Bishop v. Journal Newspaper Co., 168 Mass. 327. 
 
 9. False Imprisonment. 
 WEGNEK V. RISCH. 
 
 Wisconsin, 1902. 114 Wis. 270. 
 
 This is an action for false imprisonment. The evidence tended 
 to show that early of a Sunday morning, before 4 o'clock, the 
 plaintiff was rambling about the neighborhood of the beat of the 
 defendant, who was a policeman in the western part of Milwau- 
 kee, in a manner to excite attention and suspicion. Upon in- 
 quiry, she somewhat incoherently stated a desire to find a man 
 from whom she wanted to get some money, and at last, under 
 the guidance of the defendant, found the house, and entered into 
 colloquy with the man en the subject of money. He told the 
 policeman that she was crazy. The policeman left them in violent 
 controversy. Shortly afterward his attention was called to her 
 in another part of his beat by persons who had observed her wan- 
 dering aimlessly about, and who suggested that she needed to be 
 taken care of. The defendant talked with her again. She told 
 him she lived on Jackson street, far on the other side of the city, 
 but could not tell where on Jackson street. He urged her to go 
 home, and then told her that if she would not go home he would 
 have to send her to the station, to which she responded, "All 
 right." He accordingly conducted her to the nearest patrol box, 
 called a wagon, and turned her over to it with the explanation 
 that she had been acting strangely, and he had arrested her for 
 safe keeping. She was then taken to the station house, where 
 she was not confined, but remained something like an hour, gave 
 her residence, and was allowed to go home. According to the 
 evidence of the defendant's witnesses, there was much to justify
 
 528 DAMAGES IN ACTIONS FOK WUONQS. 
 
 the belief that the woman was demented and unfit to care for 
 herself or be at large. The plaintiff's testimony gave a very- 
 different color to the whole transaction. The jury found a ver- 
 dict for the plaintiff, and assessed her damages at six cents, 
 which verdict her attorneys moved to set aside on the ground of 
 inadequacy of damages. That motion being overruled, judgment 
 was entered on the verdict, from which the plaintiff appeals. 
 
 Dodge, J. After careful examination of the record, we feel 
 constrained to the conclusion that the trial court was guilty of no 
 abuse of his discretion in refusing to set aside the verdict on the 
 plaintiff's motion. Conceding, as perhaps the evidence estab- 
 lishes without controversy, that there was technically an unlaw- 
 ful arrest, in that the plaintiff was committing neither any crime 
 nor a breach of the peace, yet the defendant's testimony that he 
 arrested her because he believed her insane and in need of care 
 for her own safety is of course sufficient to support such view of 
 his conduct by the jury. In the absence of any violence and of 
 any indignities other than the mere peaceful and orderly trans- 
 portation of the defendant to a place of safety, when she was 
 momentarily exposing herself to a far higher degree of noto- 
 riety and disgrace, although technically an unlawful deprivation 
 of her liberty, we cannot say that the jury acted wholly outside 
 of their proper province in finding only nominal damages. The 
 rules of law which place that question more than all others in the 
 hands of a jury are too trite to need more than suggested ref- 
 erence. Henderson v. McReynolds, 60 Hun, 579, and Brad- 
 laugh V. Edwards, 11 C. B. (N. S.) 377, present extreme illus- 
 trations of eases in which courts have declined to set aside ver- 
 dicts for nominal damages. In this case the spoken evidem^e 
 was, of course, much supplemented to the jury and the trial 
 court by the personal appearance both of the plaintiff and de- 
 fendant ; and that court having, in its discretion and with these 
 advantages, approved the jury's action, we cannot, in the light 
 of any information contained in the record, overrule his con- 
 clusion, w^hether as an original question we might or might not 
 have reached the same conclusion. 
 
 Judgment affirmed.
 
 FALSE IMPRISONMENT. 529 
 
 CRAVEN V. BLOOMINGDALE. 
 
 New York, 1902. 171 N. Y. 439. 
 
 An action to recover damages for illegal arrest. 
 
 Babtlett, J. We are of opinion that the learned trial judge 
 failed to instruct the jury properly as to the law of punitive or 
 vindicative damages. A brief statement of the facts is necessary 
 in order to present the legal question involved. The defendant 
 is the proprietor of a department store in the city of New York, 
 under the firm name of Bloomingdale Bros. In the conduct of 
 the business a large number of wagons owned by defendant are 
 used in delivering goods purchased. The driver of the wagon 
 involved in this action to recover damages for false imprisonment 
 was employed under a written contract which authorized the de- 
 fendant to charge him for, and deduct from his wages, any 
 money, or the value of any merchandise, which might be lost, 
 damaged, destroyed, or stolen after being placed in his charge. 
 The driver also gave a bond, with surety, imder this contract. 
 The plaintiff purchased an article which, on delivery, proved un- 
 satisfactory. It was returned, and another sent in exchange. 
 Full payment had been made on the original purchase, and on 
 the second article a small balance was due defendant. An error 
 was made in defendant's store, by which the driver was required 
 to collect the full price of the article, and not the balance actually 
 due. The driver, on delivering the second article, insisted on 
 full payment, or a return of the property. An altercation ensued 
 between the plaintilf' and the driver, and as the latter was denied 
 full payment, or the return of the property, he sent out for a 
 policeman ; and the result was that plaintiff was arrested, taken 
 to the police station, and. on a statement of the facts, at once 
 discliarged. The matter being brought to defendant's attention, 
 he said he "was sorry that such a thing had happened," and 
 asked what he couhl do. Tlie plaintiff demanded the return of 
 his money, and stated he desired to have no further business 
 with the firm. This action was then commenced, and the jury 
 rendered a verdict for $1,250. The appellate divison affirmed 
 the judgment entered upon this verdict. 
 
 "We have here presented the question as to the proper measure 
 of damages in the case of a merchant whose servant, in the deliv- 
 ery of goods, causes the illegal arrest of a customer. The fact 
 that the master was not present when the arrest was made does 
 
 34
 
 530 DAMAGES IN ACTIONS FOR WRONGS. 
 
 not necessarily absolve him from liability. If, on the evidence, 
 the jury could Hnd that the master autliorized the arrest, or sub- 
 sequently ratilied it, he must respond in damages. In the case 
 before us it is not claimed the master directly authorized the ar- 
 rest of the plaintiff, or ratified it when brought to his attention. 
 It was, however, a question for the jury to determine, if the 
 evidence warranted it, whether the manner in which the defend- 
 ant conducted his business, through the intervention of the 
 driver, constituted such a system as to render the act of the 
 driver the act of the master. 
 
 After the trial judge had completed his main charge, he took 
 up the plaintiff's requests, and said: "I do not think I made it 
 very clear to the jury, — the distinction between compensatory 
 and punitive damages. It is as follows: Damages in an action 
 for false imprisonment, for humiliation, insult, and wounded sen- 
 sibilities, are regarded in law as compensatory damages. If you 
 find for the plaintiff, when you have reached some sum, — made 
 up your mind ; some sum that you think is reasonable and right 
 in the way of compensatory damages, — then you have the power, 
 if you think proper, to add to that some sum by way of punitive 
 or vindicative damages. But your verdict will be an aggregate 
 sum." At the close of the charge the defendant's counsel ex- 
 cepted to that portion of it in which the court said that it was 
 within the province of the jury to give punitive or vindicative 
 damages ; also where the court said that the jury have the right 
 to add a sum of punitive damages. The defendant's fifth request 
 to charge reads, "That if the jury finds in favor of the plain- 
 tiff, they may not award punitive damages." The court refused 
 to so charge, and an exception was taken. 
 
 The learned appellate division placed its affirmance of the 
 judgment of the trial term upon the rule laid down in Lynch v. 
 Kailroad Co., 90 N. Y. 77, which was an action for false im- 
 prisonment, and quoted the language of the court in that case. 
 * * * We are unable to see the similarity between these two 
 cases. The gate keeper in the case cited rested under the duty to 
 collect a ticket before a passenger was allowed to pass out. The 
 passenger claimed that he had lost his ticket, and the gate 
 keeper assumed it to be his duty to detain him and prosecute him 
 under the circumstances. The case at bar presents a very dif- 
 ferent situation. The driver's remark, "I have got to have the 
 stove or the money, because I am responsible for it," should be
 
 FALSE IMPRISONMENT. 531 
 
 considered by the jury in determining whether the driver acted 
 for the defendant or himself. If the jury are to pass upon the 
 question whether a system existed in defendant's business au- 
 thorizing this arrest, they must also consider the circumstances 
 under which the driver was employed. He was required to give 
 security on entering his employment, and was personally liable 
 to his employer for the goods intrusted to his care, or the money 
 called for by his list. Undoubtedly, in the case supposed by the 
 appellate division, — of an article taken from the wagon b}' a thief 
 while passing along the street, — the driver, whether acting in his 
 o\ATi behalf or that of his master, would be justified in pursu- 
 ing the thief and causing his arrest. We are of the opinion 
 that the jury retired without an accurate conception of the rule 
 of damages in actions for false imprisonment. It is undoubtedly 
 the rule that the master is liable in compensatory damages if his 
 manner of conducting business justified the jury in believing 
 that the servant was acting within the scope of his employment 
 and discharging the ordinary duties imposed upon him. 
 
 The case at bar is clearly distinguishable from the recent case 
 of Stevens v. O'Neill, 51 App. Div. 364, 64 N. Y. Supp. 663, 
 affirmed in 169 N. Y. 375, 62 N. E. 424. In that case the plain- 
 tiff had been arrested in the store of the defendant under cir- 
 cumstances peculiarly distressing and humiliating. The above 
 case, and other cases of like character, involving the conduct of 
 retail stores, disclose a detective system which authorized officers 
 and others in the employ of merchants to subject customers sus- 
 pected of theft to personal search and other indignities. A system 
 was thus established which made the acts of those effecting the 
 arrest clearly those of the master. The case as bar is distinguish- 
 able from this line of authorities. In Voltz v. Blackmar, 64 N. 
 Y. 440, Judge Andrews (page 444) uses this language: "In 
 punitive actions, as they are sometimes termed, such as libel, as- 
 sault and battery, and false imprisonment, the conduct and mo- 
 tive of the defendant is open to inquiry with a view to the assess- 
 ment of damages ; and if the defendant, in committing the -uTong 
 complained of, acted recklessly or willfully or maliciously, with a 
 design to oppress or injure the plaintiff, the jury, in fixing the 
 damages, may disregard the rule of compensation, and beyond 
 that may, as a punishment to the defendant, and as a protec- 
 tion to society against the violation of personal rights and social 
 order, award such additional damages as, in their discretion, they
 
 532 DAMAGES IN ACTIONS FOR WRONGS. 
 
 may deem proper. The same rule has been held to apply in the 
 Ccise of willful injury to property, and in actions of tort founded 
 upon negligence amounting to misconduct and recklessness. Til- 
 lotsou V. Cheetham, 3 Johns, 56, King v. Koot, 4 Wend, 113; 
 Tifft V. Culver, 3 Ilijl, 180 ; Cook v. Ellis, 6 Hill, 466 ; Burr v. 
 Burr, 7 Hill, 207; Taylor v. Church, 8 N. Y. 460; Hunt v. Ben- 
 nett, 19 N. Y. 173; Millard v. Brown, 35 N. Y. 297." In Cleg- 
 horn V. Railroad Co., 56 N. Y. 44, the question involved was that 
 of the negligence of an employe; and Church, C. J., said: "For 
 the purposes of this case the following rule may be laid down as 
 fairly deducible from the authorities, viz. : For injuries by the 
 negligence of a servant while engaged in the business of the 
 master, within the scope of his employment, the latter is liable 
 for compensatory 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. 
 * * * Something more than ordinary negligence is requisite. 
 It must be reckless and of a criminal nature, and clearly estab- 
 lished." 
 
 In Railroad Co. v. Prentice, 147 U. S. 101, the law of punitive 
 damages is exhaustively discussed. 
 
 It is to be observed that neither in Mott v. Ice Co., 73 N. Y. 
 547, nor in Lynch v. Railroad Co., 90 N. Y. 77, cited by the 
 learned appellate division, was the law of punitive damages dis- 
 cussed, nor did the court below consider the question. In Mott 
 V. Ice Co., supra, the question was whether the driver of defend- 
 ant's ice wagon ran into plaintiff's carriage maliciously or in- 
 tentionally, or whether the collision was due to negligent and 
 reckless driving on the part of defendant's servant. Judge 
 Allen, in writing for the court in this case, after alluding to the 
 liability of the master for the acts of his servant within the 
 scope of his employment, said : * ' But if the servant goes outside 
 of his employment, and, without regard to his service, acting 
 maliciously, or in order to effect some purpose of his own, 
 wantonly commits a trespass, or causes damage to another, the 
 master is not responsible, so that the inquiry is whether the 
 wrongful act is in the course of the employment, or outside 
 of it, and to accomplish a purpose foreign to it. In the lat- 
 ter case the relation of master and servant does not exist so as 
 to hold the master for the act. Croft v. Alison, 4 Bam. & Aid. 
 590 ; Wright v. Wilcox, 19 Wend. 343 ; Vanderbilt v. Turnpike
 
 FALSE IMPRISONMENT. 533 
 
 Co., 2 N. Y. 479; Mali v. Lord 39 N. Y. 381 ; Fraser v. Freeman, 
 43 N. Y. 566 ; Higgins v. Railroad Co., 46 N. Y. 23 ; Rounds v. 
 Railroad Co., 64 N. Y. 129 ; Isaacs v. Railroad Co., 47 N. Y. 122." 
 The learned judge, after discussing the evidence in detail, said : 
 "The whole evidence of the witness only tended to show gross 
 carelessness on the part of the driver of the ice cart, and that 
 was the most, that the witness intended by the answer to either 
 question. When the evidence is that the wrongful act was not 
 within the general scope of the servant 's employment, and so not 
 within the express or implied authorization of the master, it is 
 for the court to pass upon the competency of the evidence, and 
 for the jury to give effect to it." It thus appears that this last 
 case dealt only with the ordinary situation of the reckless driv- 
 ing of defendant's servant. 
 
 It is apparent that when the trial judge, in the case before us, 
 having instructed the jury as to the law of compensatory dam- 
 ages, told them, in effect, that they had also the power, if they 
 thought proper, to add to such sum as they fixed for compen- 
 sation an amount for punitive or vindictive damages, the jury 
 were furnished no rule under which these latter damages could 
 be assessed. They were simply told that they had the power 
 to award them. We do not wish to be understood as expressing 
 any opinion as to the merits of this case, or as laying down a rule 
 as to its particular facts that will embarrass the court below on a 
 second trial. It will be for the jury to determine, upon the 
 facts submitted for their consideration, whether the driver was 
 acting within the general scope of his employment when he 
 caused the arrest of the plaintiff, or was proceeding outside of 
 that relation, and to accomplish a purpose foreign to it. If the 
 jury find against the defendant, they will be at liberty to assess 
 such reasonable compensatory damages as the plaintiff is entitled 
 to by reason of the indignity of the arrest, and the humiliation 
 incident thereto. Punitive or vindictive damages can be added 
 to compensatory damages only when the case is brought within 
 the rule so clearly laid down in the authorities we have discussed. 
 This is a question for the jury to decide, if there is evidence for 
 their consideration, under proper instructions by the trial judge. 
 
 The judgment of the appellate division should be reversed, and 
 a new trial granted, with costs to abide the event. 
 
 Parker. C. J., and Gray, O'Brien, Haigitt, Martin, and 
 ViLNN, JJ., concur. Judgment reversed, etc.
 
 534 DAMAGES IN ACTIONS FOR WRONGS. 
 
 In an action for false imprisonment, the plaintiff may I'ecover such 
 damages as will reasonably compensate him for such injuries as he 
 may have alleged and proved as a result therefrom, including dam- 
 ages for indignity, ridicule, and humiliation. McCaffrey v. Thomas, 4 
 Penuewiirs Delaware Keports, 437. A railroad company is liable for 
 punitive damages, when its train conductor unlawfully arrests and 
 imprisons a person on the train, when such act is malicious, wanton, 
 willful, or reckless. Davis v. Chesapeake & Ohio Ry. Co., 61., W. Va. 
 246. See also Linnex v. Baufield, 114 Mich. 93; and Bernheimer v. 
 Becker, 102 Md. 250 ; and Cone v. C. R. of N. J., 62 N. J. L. 99. 
 
 10. Malicious Prosecution, 
 SAMIELOFF v. N. Y. & Q. C. RY. CO. 
 
 New York, 1907. 107 N. Y. Supp. 774.', 
 
 Clarke, J. This is an action to recover damages for false ar- 
 rest and malicious prosecution. The plaintiff testified that he 
 was a passenger on a car of the defendant, and was making a trip 
 to the cemetery to visit his wife's grave; that, as the car upon 
 which he was riding approached the cemetery, he saw a disturb- 
 ance or fight around a preceding car between the conductor and 
 the motorman of that car and a number of passengers; that he 
 took no part in the fracas, but protested to the motorman upon 
 his car, and was told to "shut up," with an opprobious epithet, 
 "or he would get his face punched in ; " that on the way back 
 to the terminus at the Thirty-Fourth Street ferry he again pro- 
 tested and received a similar reply ; that he then told the motor- 
 man, "You so fresh to me, when the car stops in Thirty-Fourth 
 street, near to the ofSce to the ferry, then I be a witness. I go 
 into the office, and I tell everything I saw what you do with these 
 people;" that, when he got off the car at the ferry, he was ar- 
 rested upon the complaint of the conductor of the car around 
 which the fight had raged, whose head was cut and bleeding ; that 
 he was locked up overnight, held for the grand jury, was indicted, 
 tried by a petit jury, and acquitted. The charge in that proceed- 
 ing was that he had assaulted the conductor of the prior ear 
 with a stone. He produced no witnesses in regard to the occur- 
 rence at the cemetery. The conductor upon whose complaint the 
 plaintiff was arrested is dead, but the company produced tv.-o 
 employes and four apparently disinterested witnesses who were
 
 MALICIOUS PROSECUTION. 535 
 
 passengers, the substance of whose testimony was that the plain- 
 tiff took part in the fight, threw a stone at the conductor, and was 
 about to throw another when he was stopped by the conductor 
 of his o^^^l car, and that he had a wrestle and struggle with that 
 conductor and tore his coat. The juiy found a verdict for the 
 plaintiff, and assessed the damages at $2,000. 
 
 In charging the jury the learned court said : 
 
 * ' Because of what plaintiff 's counsel urged on the question of 
 exemplary or punitive damages, I charge you that unless the evi- 
 dence satisfies you and persuades you, and not upon speculation 
 or conjecture, that the defendant company had knowledge of any 
 malicious act of the conductor, in the event that you should find 
 that the conductor personally acted maliciously and with know- 
 ledge of the defendant company, even then there can be no re- 
 covery by way of exemplary damages or punitive damages against 
 the defendant company, because of the individual malice of the 
 conductor, even though you find that the act was within the con- 
 ductor 's duty. The law only charges and makes a master re- 
 sponsible for the individual malicious act of a servant when the 
 master actually authorized it, had knowledge of it, or affirma- 
 tively ratified it. All of these elements must be proven to your 
 satisfaction by evidence, and not by speculation or conjecture, 
 namely, that the defendant company authorized the individual 
 malicious act, that the defendant company had knowledge of it, 
 and, having knowledge of a malicious act of the conductor, that 
 it expressly ratified it." 
 
 Defendant excepted to the charge of the court, leaving to the 
 jury all the question of exemplary damages. The respondent 
 admits that the question of exemplary damages should not have 
 been left to the jury. He says in his brief : 
 
 "This exception is without merit, because as matter of fact 
 the court did not leave to the jury any question of exemplary 
 damages. The court simply stated an abstract question of law 
 favorable to the defendant, and a general exception to the charge 
 is without purpose." 
 
 But from what the court said it is quite evident that plain-> 
 tiff's counsel had very earnestly presented the question of exem- 
 plary damages and claimed to recover therefor in summing up 
 the case to the jury ; and it is quite evident from the exception 
 and the court's reply to the exception that it was leaving to the 
 jury the question of exemplary damages. There is no evidence
 
 536 DAMAGES IN ACTIONS FOK WRONGS. 
 
 in the ease, if the rules laid down by the trial court are correct, 
 to sustain the tlnding of malice on the part of the company such 
 as to charge them with exemplary damages. 
 
 In Craven v. Bloomingdale, 171 N. Y., 439, G4 N. E. 169, it was 
 held that : 
 
 "A master cannot be held liable for punitive or vindictive 
 damages by reason of wanton, oppressive, or malicious acts of the 
 servant, unless there is proof to implicate him and make him 
 particeps criminis of his servant 's acts ; and in an action brought 
 against a master for an illegal arrest caused by his servant, it is 
 reversible error for the trial court, after instructing the jury as 
 to the law of compensatory damages, to instruct them that they 
 had also the power, if they thought proper, to award punitive 
 or vindictive damages, in addition to the amount fixed by them 
 for compensatory damages, without further instructing them 
 that such damages should not be awarded unless there was proof 
 showing that the acts of the servant were wanton, oppressive, 
 or malicious, and that the master was implicated with the servant 
 therein, or had either expressly or impliedly authorized or rat- 
 ified them." 
 
 The learned court correctly charged the law, but, as there was 
 no evidence upon which the jury could have charged the alleged 
 malicious acts of the servant upon the master, when the court's 
 attention was called by the exception to the fact that he had left 
 to the jury the question of exemplary damages, he should have 
 instructed them that compensatory damages were all that they 
 could find. The considerable space given in the charge to the 
 discussion of this question which was not properly before the 
 jury had a tendency to confuse the issue, and was harmful to the 
 defendant. 
 
 The verdict is against the weight of the evidence, and there- 
 fore the judgment and order should be reversed, and a new trial 
 ordered, with costs to the appellant to abide the event. All con- ' 
 cur.
 
 FRAUD AND DECEIT. 537 
 
 11. Fraud and Deceit. 
 
 PEEK V. DERRY. 
 Supreme Court of Judicature, 1887. L. R. 37 Ch. Div, 541. 
 
 This is an action of deceit. 
 
 Plaintiff purchased 400 shares of stock in the Plymouth, 
 Devenport & District Tramways Company for which he paid 
 £4000. The action is brought for damages sustained by reason 
 of reliance on untrue statements in the prospectus of the com- 
 pany made by the defendant to the effect that the company had 
 an absolute right to use steam and other mechanical power which 
 representation had induced the plaintiff to make the purchase. 
 
 Cotton, L. J. * * * The damage to be recovered by the 
 plaintiff is the loss which he sustained by acting on the repre- 
 sentations of the defendants. That action was taking the shares. 
 Before he was induced to buy the shares, he had the £4000. in 
 his pocket. The day when the shares were allotted to him, which 
 was the consequence of his action, he paid over that £4000., and 
 he got the shares; and the loss sustained by him in consequence 
 of his acting on the representations of the defendants was having 
 the shares, instead of having in his pocket the £4000. The loss, 
 therefore, must be the difference between his £4000. and the then 
 value of the shares. Now it must not be taken that the value of 
 the shares must be what they would have sold for in the market, 
 because that might not show the real value at all. * * * 
 
 Sir James Hannen. I will add only a few words. * * * 
 The question is, how much worse off is the plaintiff than if he had 
 not bought the shares ? If he had not bought the shares he would 
 have had his £4000. in his pocket. To ascertain his loss we must 
 deduct from that amount the real value of the thing he got. That 
 must be ascertained by the light of the events which have hap- 
 pened down to the time of the inquiry— not what the shares 
 might have been sold for, because he was not bound to sell them, 
 and subsequent events may show that what the shares might have 
 been sold for was not their true value, but a mistaken estimate of 
 their value. 
 
 Lopes, L. J. The question in this case is what is the loss which 
 the plaintiff has sustained by acting on the mere representation 
 of the defendants, and what is the true measure of his damage? 
 In my opinion, it is the difference between the £4000. he paid
 
 538 DAMAGES IN ACTIONS FOR WRONGS, 
 
 luul tlic real value oC the shares after they were allotted. Any 
 damage occurring after the discovery of the fraud, when the 
 plaintiff might have rescinded the contract, and which would not 
 be attributable to his acting on the misrepresentation, but to 
 other causes, in my opinion would not be recoverable. 
 
 GUSTAFSON v. RUSTEMEYER. 
 
 Connecticut, 1898. 70 Conn. 125. 
 
 Action to recover damages for fraud in the exchange of real 
 property. Judgment for plaintiff. Defendant appeals. 
 
 Torrance, J. The first question to be considered is whether 
 the court erred in sustaining the demurrer to the counterclaim. 
 The false representation therein set out and relied upon relates 
 simply to the worth of the Julius street property over and above 
 the incumbrances. It is a mere naked rejjresentation of the value 
 of an equity of redemption, and nothing more. The general rule 
 is that a mere naked assertion of the value without more, made 
 between vendor and vendee during negotiations for a sale, though 
 untrue, and known to be so by the one who makes it, and relied 
 upon by the other, to his hurt, does not constitute an actionable 
 deceit; and this for the reason that such an assertion, in most 
 cases, is, and is understood to be, the statement of an opinion, and 
 not of a fact, and the party to whom it is made has no right to 
 rely upon it, and, if he does so, his loss, if any occurs, is held to 
 be the result of his owo. folly. 1 Big. Fraud, p. 490 ; Parker v. 
 Moulton, 114 Mass. 99 ; Morse v. Shaw, 124 Mass. 59 ; Homer v. 
 Perkins, Id. 431 ; Ellis v. Andrews, 56 N. Y. 83 ; Chrysler v. 
 Canaday, 90 N. Y. 272 ; Shanks v. Whitney, 66 Vt. 405. See, also, 
 cases cited in note to Cottrill v. Krum, in 18 Am. St. Rep. 556 
 (s. c. 100 Mo. 397). There are, undoubtedly, exceptions to this 
 general rule, arising out of the special circumstances under 
 which the representation as to mere value is made, — as, for in- 
 stance, where the one who makes the representation holds a posi- 
 tion of trust or confidence towards the other, which gives the lat- 
 ter a right to rely on the representation, or where the seller has, 
 or assumes to have, special knowledge of the value of the prop- 
 erty, and the buyer has no knowledge thereof, and the latter, to 
 the seller's Imowledge, trusts entirely to the seller's representa- 
 tion. In such cases the seller may justly be held liable for his
 
 FRAUD AND DECEIT, 539 
 
 false representations, because by them the buyer is fraudulently 
 induced to forbear inquiry as to their truth. A mere false repre- 
 sentation as to the value of real estate, knowingly made by the 
 seller to the buyer, is not actionable, unless the buyer has been 
 fraudulently induced to forbear inquiry as to its truth ; and in 
 that case the means by which he was thus induced to forbear 
 inquiry must be specifically set forth in the pleading. ' ' To such 
 - representations the maxim caveat emptor applies. The buyer is 
 not excused from an examination unless he be fraudulently in- 
 duced to forbear inquiries which he would otherwise have made. 
 If fraud of this latter description is relied on as an additional 
 ground of action, it must be specifically set forth in the dec- 
 laration, and cannot be charged in general terms only. ' ' Parker 
 V. Moulton, 114 Mass. 99, 100 ; Ellis v. Andrews, supra; Chrys- 
 ler V. Canaday, supra. Upon the counterclaim, as it stands, the 
 defendant's case falls within the general rule, and not within any 
 of the recognized exceptions. If he desired to bring it within any 
 of these exceptions, he should have alleged the specific facts 
 which would bring it within one of them ; but this he did not do, 
 and for this reason the demurrer was properly sustained. 
 
 In his brief the defendant claims, in substance, that the gen- 
 eral principles here applied to the statement of facts in the coun- 
 terclaim, if applied to the facts found, show that the plaintiffs 
 have no cause of action. He says, "Misrepresentations of the 
 dimensions of the farm in question by the defendant to the plain- 
 tiff, even though intentional, cannot lay a foundation for an ac- 
 tion, upon the facts found by the court." If the defendant were 
 at liberty to make this claim here, it might be shown in reply that 
 the facts set up in the counterclaim, and the facts found, differ 
 very materially, and that this difference may be just the dif- 
 ference between a false representation that is actionable and one 
 that is not; but the defendant, under the statute, (Gen. St. 
 §1135), is not at liberty to make this claim here, because he 
 did not make any claim of this kind in the court below, nor has 
 he made it in his assignments of error. Under the circumstances 
 of this case, we decline to consider this claim. 
 
 The defendant claims that the court excluded the evidence of 
 the value of the Julius street property as compared with the 
 value of the farm, and that it erred in so doing. Although there 
 is some doubt as to whether the court did absolutely and finally 
 rule this evidence out, we will consider the case as if it had so
 
 540 DAMAGES IN ACTIONS FOR WRONGS. 
 
 ruled. The defendant claimed that the measure of damages was 
 the difference between the value of the farm and the value of the 
 property given in exchange for it, while the plaintiffs claimed 
 that it was the difference between the value of the property which 
 the defendant owned and conveyed and its value if it had been 
 as represented. From the record, it is clear that this evidence 
 was offered solely as bearing upon the question of damages, and 
 on the assumption that the rule as to the measure of damages 
 was as claimed by the defendant. In his brief the defendant now 
 claims that the evidence was admissible for another purpose, 
 namely, as "tending to show the improbability of his having 
 made the representations complained of." The evidence was un- 
 doubtedly admissible for this purpose, and for other purposes, 
 as, for instance, as evidence — but not conclusive — to show, from 
 the price paid, the value of the farm conveyed to the plaintiffs. 
 Big. Frauds, pp. 627, 628 ; 3 Suth. Dam. p. 592. But the trouble 
 with this claim is that it was not made in the court below, and 
 cannot be considered now. The question, then, whether the court 
 erred in excluding this evidence, depends on the further question, 
 what is the proper measure of damages in cases of this kind? 
 A vendee, induced to purchase land by false and fraudulent rep- 
 resentations, may, acting seasonably, rescind the contract, and, 
 after giving or offering to give back what he received, may re- 
 cover back the consideration, or he may retain the land, and re- 
 cover damages for the deceit in a proper action. Ives v. Carter, 
 24 Conn. 392 ; Krumm v. Beach, 96 N. Y. 398 ; Vail v. Reynolds, 
 118 N. Y. 297 ; Pryor v. Foster, 130 N. Y. 171. The present case 
 is one where the plaintiffs have elected to keep the land, and seek 
 to recover for the deceit in an action of tort ; and the question is, 
 what is the measure of damages in this action? Upon this 
 question the decisions of the courts of last resort are not in har- 
 mony. In one class of cases the measure of damages is held to be 
 the difference between the actual value of the property at the 
 time of the purchase and its value if the property had been what 
 it was represented or warranted to be, while in the other class of 
 eases it is held to be the difference between the real value of the 
 property retained by the plaintiff, as it was at the time of the 
 purchase, and the value of that which he gave for it. In the 
 former class of eases the plaintiff is allowed the benefit of his 
 bargain; in the latter, he is not. Morse v. Hutehins, 102 Mass. 
 439, is an example of the first class of cases, while Smith v. Bolles,
 
 FRAUD AND DECEIT. 541 
 
 132 U. S. 125, is an example of the other class. In Morse v. 
 Hutchins the court say : " It is now well settled that, in actions 
 for deceit or breach of warranty, the measure of damages is the 
 difference between the actual value of the property at the time 
 of the purchase and its value if the property had been what it 
 was represented or warranted to be. * * * This is the only 
 rule which will give the purchaser adequate damages for not hav- 
 ing the thing which the defendant undertook to sell him. To 
 allow to the plaintiff * * * Q^\y ^jjg difference between the 
 real value of the property and the price which he was induced 
 to pay for it would be to make any advantage lawfully secured to 
 the innocent purchaser in the original bargain inure to the bene- 
 fit of the wrongdoer, and, in proportion as the original price was 
 low, would afford a protection to the party who had broken, at 
 the expense of the party who was ready to abide by, the terms of 
 the contract." In Smith v. BoUes, on the other hand, it was said: 
 "The measure of damages was not the difference between the con- 
 tract price and the reasonable market value if the property had 
 been as represented to be, even if the stock had been worth the 
 price paid for it ; nor, if the stock were worthless, could the plain- 
 tiff have recovered the value it would have had if the property 
 had been equal to the representations. What the plaintiff might 
 have gained is not the question, but what he had lost by being 
 deceived into the purchar^e. The suit was not brought for breach 
 of contract. The gist of the action was that the plaintiff' was 
 fraudulently induced by the defendant to purchase stock upon 
 the faith of certain false and fraudulent representations. 
 * * * The defendant was liable to respond in such dam- 
 ages as naturally and proximately resulted from the fraud. He 
 was bound to make good the loss sustained, such as the moneys 
 the plaintiff had paid out, and interest, and any other outlay legit- 
 imately attributable to defendant's fraudulent conduct; but this 
 liability did not include the expected fruits of an unrealized 
 speculation." Both of these eases relate to sales of personal 
 property, but no distinction is made, in the application of these 
 rules, between sales of personal and sales of real property. Big. 
 Frauds, p. 627 ; Sedg. Dam. (2d Ed.) p. 559 ; 3 Suth. Dam. § 1171. 
 And no good reason has yet been given why there should be any 
 such distinction. Both courts, in the cases above mentioned, 
 recognize the existence of the general rule that the defendant 
 is only liable for such damages as are the natural and proxi-
 
 542 DAMAGES IN ACTIONS FOR WRONGS. 
 
 mate result of his fraud, but they differ in appl^ying it. In 
 ]\Iorse V. Ilutchius the loss of the beuelits of his bargain is re- 
 garded as one of the elements of plaintiff's damages, resulting 
 nnturnlly and proximately from the fraud, while in Smith v. 
 Bolles such loss is not so regarded. The general rule in regard to 
 the measure of damages in actions of deception has been stated, 
 aiul we think correctly, as follows: "The defendant is liable, 
 not for everything that follows upon his fraud, but for what 
 niaj^ be presumed to have been within his contemplation at the 
 time, as a man of average intelligence." Big. Frauds, p. 625. 
 Applying the general rule as thus stated to a case like the present, 
 we think the loss of the benefits of the bargain is one of the 
 elements of damages which the defendant must be held to have 
 contemplated as the natural and proximate result of his conduct, 
 and for which he is therefore answerable. In Big. Frauds, p. 627, 
 the rule is stated as follows: "It is now well settled that, in 
 actions for deceit or breach of warranty in sales of personalty 
 or realty, the measure of damages is the difference between the 
 actual value of the property at the time of the purchase and its 
 value if the property had been what it was represented or war- 
 ranted to be," citing numerous cases. This is the rule, also, as 
 stated, and favored in 3 Suth. Dam. pp. 589, 592. It is the rule 
 adopted and followed in numerous cases relating to the sale o^ 
 personal property, and it is the rule adopted and followed in 
 the following cases relating to the sale of real estate : Krumm v. 
 Beach, supra; Vail v. Reynolds, supra, in New York; Drew v 
 Beall, 62 111. 164, 168; Nysewander v. Lowman, 124 Ind. 584; 
 Page v. Parker, 43 N. H. 363 ; Shanks v. Whitney, 66 Vt. 405 ; 
 Williams v. McPadden, 23 Fla. 143. Moreover, it is the rule 
 adopted and followed by this court in Murray v. Jennings, 42 
 Conn. 9. In that case it does not appear to have been much 
 discussed, but its application was directly in question, — was, in- 
 deed, the only question in the case, — and it was specifically and 
 deliberately adopted and followed. We see no good reason why 
 it should not be considered as the settled rule in this state. The 
 evidence of the value of the Julius street property, then, hav- 
 ing been offered solely for the purpose of showing the amount 
 of the plaintiff's damages, under the rule laid down in Smith v. 
 Bolles, was inadmissible, and the court committed no error in 
 excluding it for that purpose.
 
 FRAUD AND DECEIT. 543 
 
 The court below did not err in admitting the evidence in ques- 
 tion. * * * 
 
 In his last assignment of error, the defendant claims, in effect, 
 that the court failed to adopt and apply any fixed rule as to the 
 measure of damages, and did not assess them "in accordance 
 with the rules of exact justice." The record shows that the par- 
 ties upon the trial made specific, conflicting claims with respect 
 to the rule of damages ; and they were entitled to have the true 
 rule applied, and to know which of the conflicting rules was ap- 
 plied by the court. It was the duty of the court to adopt and 
 apply the rule which the plaintiffs contended for, and it was also 
 its duty to make this known to the parties in some way. The 
 record upon this point is not as clear as it should be. It says: 
 "Adopting either rule, I find from the evidence as to the value 
 of the several properties that the result would be approximately 
 the same." The fact implied in this statement, that the court 
 had heard and considered evidence as to the value of both prop- 
 erties, would seem to indicate the adoption of the rule which the 
 defendant contended for, while there are other things elsewhere 
 in the record which seem to indicate that the court adopted the 
 other rule. The record does not show, either expressly or by 
 clear implication, which of the conflicting rules the court 
 adopted and applied. Perhaps the fair import of the record is 
 that in the process of assessing the damages the court applied 
 both rules, and, finding the results approximately the same, did 
 not decide which of them was the true rule, and exclusively ap- 
 plicable. It was the duty of the court to decide this question, 
 however, and to make its decision manifest in some way to the 
 parties, and this was not done. We think the court erred in this 
 but if, as is found, the application of either rule leads in this 
 case to substantially the same result, it is difficult to see how the 
 defendant has been harmed by the error, and for this reason we 
 do not advise a new trial on account of it. There is no error. 
 The other judges concurred, except Hamersley, J., who dis- 
 sented. 
 
 BROWN V. MORRILL. 
 
 New York, 1907. 55 Misc. 224. 
 
 Platzek, J. This is on appeal by the defendant from a judg- 
 ment of the City Court in ''avor of plaintiff for $573.70. The
 
 544 DAMAGES IN ACTIONS FOK WllONGS. 
 
 reispoudent's counsel in his points states: "The plaintiff's ac- 
 tion is for deceit, lie claims that he was induced by false repre- 
 sentations to execut(> a lease to defendant's premises, to move in 
 at a cost and expense and pay a month's rent," and specifying 
 these items and the loss of tlie use and profits of his plant as his 
 resulting damages. "The trial below was had on that issue and 
 on that theory alone." The defendant interposed a general de- 
 nial and asserted a coimterclaim for past due rent. The appel- 
 lant's theory is that the rights and obligations of the parties 
 were measured and controlled by the written lease, and objected 
 to the admission of testimony, and conducted the defense on the 
 assumption that the lease entirely controlled and that evidence 
 was admitted and given to vary and contradict the written in- 
 strument. The defendant's counsel is wrong in his view of the 
 law, for the reason that the plaintiff is not suing for a breach of 
 the covenant of the lease, but is seeking to recover damages for 
 deceit in being fraudulently induced to sign the lease, relying 
 upon the representations of the defendant. It is elemental that, 
 in an action for deceit and false representations, the necessary 
 allegations are: First. The fraudulent representation relied 
 upon to sustain the cause of action. Second. The falsity of the 
 representation. Third. The scienter. Fourth. The intent to 
 deceive. Fifth. Proper damages. The only one of these ele- 
 ments found in the complaint is the representation ; and that is" 
 not stated to be fraudulent, the alleged representation in this 
 case being: "^Mr. Lovejoy, the agent, showed me the electric 
 service in the building, and said to me that all I needed is to go 
 on and start to do work." "It was said, the electric service was 
 right in the building, and I could have it if I want to." Lovejoy 
 testified: "I told him that it was up to him to make arrange- 
 ments to have his electricians come there. That was while I was 
 in the building showing him the place." Plaintiff moved in and 
 claims to have procured motor and wiring, but a tenant who had 
 the basement refused to allow any connection to be made. It 
 must always be remembered that no such condition or promise 
 or suggestion is contained in the lease executed between the par- 
 ties, which is in evidence and part of the record. It is nowhere 
 alleged in the complaint that any representation was false and 
 made with the intent to deceive, or that the defendant had 
 knowledge of the falsity and induced the plaintiff to rely on the 
 representation, knowing it to be false. In nn action for deceit.
 
 FRAUD AND DECEIT. 545 
 
 no recovery can be had on proof of the mere breach of a con- 
 tract, unless all the necessary allegations to sustain a recovery 
 for fraud and deceit are alleged, and then the breach of the con- 
 tract may be averred by way of inducement only and not for any 
 other purpose. Search will be made in vain in the complaint for 
 any allegations and in the evidence in the case for any testimony 
 to sustain an action for deceit and fraudulent representations 
 relating to the lease in question. The plaintiff offered evidence 
 of lost profits as an element of damages. Objection was made 
 and overruled and duly excepted to. It was, in my judgment, 
 reversible error to admit proof of lost profits in this case. The 
 true rule of damages in this ease is analogous to that of an 
 evicted tenant, and is the difference between the value of the 
 lease for the unexpired term and the stipulated rent, as well as 
 the cost of moving into and out of the premises. An evicted 
 tenant cannot recover prospective or lost profits. The measure 
 of damages is, whether the action be on contract or in tort, the 
 same, viz., the difference between the rent reserved and the value 
 of the premises for the term, and the cost of moving in and out. 
 Trull V. Granger, 8 X. Y. 115. This case was cited with approval 
 in Eastman v. Mayor, 152 N. Y. 473. See also Oehlhof v. Solo- 
 mon, 73 App. Div. 329, on rule as to damages generally, in ac- 
 tions for deceit and fraudulent representation. This judgment 
 should be reversed. First. Because the allegations of the com- 
 plaint are insufficient and do not set out a cause of action for 
 deceit and fraudulent representations. Second. Because the evi- 
 dence in the case is wholly insufficient to sustain a cause of action 
 for deceit and false representations in the making of the said 
 lease. Third. Because of error in admitting evidence, against 
 objection, covering items for lost profits in the business of the 
 plaintiff, amounting to $300. Fourth. Because the judge in his 
 charge to the jury submitted to them as an element of damages : 
 "That he also lost certain profits in his business, which he has 
 detailed to you, amounting to about $300, which, added to the 
 $315, makes $615. which is the amount he seeks to recover at your 
 hands," to which the defendant's counsel duly excepted. 
 
 GiLDERSLEEVE and Seabury. JJ., concur. 
 
 Judgment reversed and new trial ordered, with costs to ap- 
 pellant to abide event. 
 
 Where mining stock, represented as treasury stock, is sold under 
 false representations, and is in reality private stock, the damages
 
 546 DAMAGES IN ACTIONS FOR WRONGS. 
 
 resulting may be wholly speculativo and recovery niay be precluded. 
 Fludlater v. Dorland, 152 Micb. 301, 
 
 lu an action of deceit for fraudulent sale of a gold mine, the ques- 
 tion is what the plaintiff lias lost by being deceived into the purchase. 
 The reasonable market value, if the property had been as represented, 
 affords no proper test of recovery. Sigafus v. Porter, 179 U. S. 116. 
 
 Plaintiff, in a legal sense, is not damaged by a false representation 
 by which he is not influenced. Taylor v. Guest, 58 N. Y. 262. 
 
 12. Seduction. 
 
 HEWITT V. PRIME. 
 New York, 1839. 21 Wend. 79. 
 
 This was an action on the case for the seduction of the seven- 
 teen-year-old daughter of the plaintiff, while she was, as yet, a 
 member of her father's family. The girl testified on her chief 
 examination that she had been induced by the defendant to swear 
 the child upon some other person than himself, in consideration 
 for his promising to marry her. Therefore she made oath before 
 the justice that B. F., a fictitious person, was father of the child. 
 
 The plaintiff also brought forward the testimony of a practicing 
 physician that the defendant had applied to the physician for 
 drugs to secure an abortion, and upon one occasion, said that 
 the female gotten with child was the plaintiff's daughter. The 
 judge charged the jury that the daughter being a minor, a mem- 
 ber of her father's family and under his control when seduced, 
 no loss, expense, or damage, prior to the commencement of the 
 action need be shown, it being sufficient to prove the seduction. 
 The jury found for the plaintiff and the defendant demands a 
 new trial. 
 
 By the Court, Nelson, Ch. J. The witness, (the physician), 
 I think, was not privileged. It is very doubtful whether the 
 communication made to him by the defendant can be considered 
 as consulting him professionally, within the meaning of the 
 statute; and it is certain, that the information given was not 
 essential to enable him to prescribe for the patient, if the daughter 
 of the plaintiff should be considered a patient in respect to the 
 transaction. 2 R. S. 406, § 73. 
 
 The judge ruled in the course of the trial that no actual loss 
 of service, expense or damage, prior to the commencement of the
 
 SEDUCTION. 547 
 
 suit, need be shown; that the proof of the seduction was suffi- 
 cient under the circumstances, pregnancy having ensued, and 
 the daughter being a minor and a part of her father's family at 
 the time. It is now fully settled both in England and here, 
 Maunder v. Venn, 1 Mood. & Malk. 323, Peake's N. P. 55, 233, 
 2 Stark. Ev. 721, 9 Johns. R. 387, 2 Wendell, 459, 7 Carr. & 
 Pa;yTie, 528, that acts of service by the daughter are not neces- 
 sary; it is enough if the parent has a right to command them, 
 to sustain the action. If it were otherwise, says Littledale, J., 
 in Maunder v. Venn, no action could be maintained for this in- 
 jury in the higher ranks of life, where no actual services by the 
 daughter are usual. After this, I do not perceive how we can 
 consistently maintain, that proof of actual loss of service is in- 
 dispensable to uphold the action. If it may be sustained upon 
 the mere right to claim them, or in the language of the eases, 
 upon the supposed services, where none were ever rendered in 
 fact, the ground of it, in the supposed case, precludes the pos- 
 sibility of any actual loss. Such is the spirit of the more re- 
 cent cases, as wdll be seen by a reference to those above cited. 
 It was conceded by Hulloek, sergeant, for the defendant in 
 Revill v. Salterfit, 1 Holt, 450, that in most of these cases, the 
 condition of service was regarded as a mere conveyance to the 
 action. It was the form, he said, through which the injury M'as 
 presented to the court ; and having obtained its admission, upon 
 legal principles, it brought along with it all the circumstances 
 of the case. 
 
 The ground of the action has often been considered technical, 
 and the loss of service spoken of as a fiction, even before the 
 courts ventured to place the action upon the mere right to claim 
 the services; they frequently admitted the most trifling and 
 valueless acts as sufficient. In the case of Clark v. Fitch, 2 
 Wendell, 459, there was no proof of actual loss. And Martin v. 
 Payne, 9 Johns. R. 387, was decided upon the ground that none 
 were necessary. The only actual liability of the father that ap- 
 peared in the former case, were for the expenses of the lying 
 in, which have never been regarded as the foundation of the suit ; 
 they are received in evidence only by way of enhancing the 
 damages. It is apparent from a perusal of the modern cases, 
 and elementary writers in England, upon this subject, that the 
 old idea of loss of menial services, which lay at the foundation 
 of the action, has gradually given way to more enlightened and
 
 548 DAMAGES IN ACTIONS FOR WRONGS. 
 
 refined views of the domestic relations : tliese are, that the ser- 
 vices of the child are not alone regarded as of value to the 
 parent. As one of the fruits of more cultivated times, the value 
 of the society and attentions of a virtuous and innocent daughter, 
 is properly appreciated ; and the loss sustained by the parent 
 from the corruption of her mind and the defilement of her person, 
 by the guilty seducer, is considered ground for damages, con- 
 sistent even with the first principles of the action. The loss 
 of these qualities, even in regard to menial services, would neces- 
 sarily greatly diminish their value. 
 
 The action then, being fully sustained, in my judgment, by 
 proof of the act of seduction in the particular case, all the com- 
 plicated circumstances that followed come in by way of aggre- 
 vating the damages. It is not necessary that these should tran- 
 spire before suit brought ; if they are the natural consequences 
 of the guilty act, they are but the incidents which attend, and 
 give character to it. 
 
 Upon these views I concur with the learned judge who re- 
 viewed the case below, in denying a new trial. 
 
 New trial denied. 
 
 MATHIES V. MAZET. 
 
 Pennsylvania, 1894. 164 Pa. 580. 
 
 Action for seduction of plaintiff's wife. Judgment for plain- 
 tiff. Defendant appeals. 
 
 Sterrett, C. J. * * * Assuming the facts to be substan- 
 tially as claimed by plaintiff, and as the jury must have found 
 them, he was clearly entitled to recover damages, personal to 
 himself, resulting from the acts complained of, — not merely a 
 part, but the whole, of such resultant damages. Hence, it was 
 strictly proper for the learned judge to call the jury's atten- 
 tion — as he did in that part of the charge complained of in the 
 first specification — to the several ways in which the plaintif? 
 could, and presumably did, suffer personal damages; and it thus 
 became the duty of the jury to determine for themselves, from 
 all the evidence, whether he did thus suffer from defendant's 
 wrongful acts, and, if so, to v/hat extent. 
 
 AVhat was said in that part of the charge recited in the second 
 specification was fully warranted by MeAlmont v. McClelland,
 
 SEDUCTION. 549 
 
 14 Serg. & R. 361, wherein Mr. Justice Duncan said: "This 
 inquiry into the condition of the defendant has constantly been 
 made, and has always been applied to those cases where damages 
 are designed, not only as a satisfaction for the injury, but as 
 a terror to others, and as a proof of the detestation of juries. In 
 cases of crim. con., actions for debauching a man's daughter, 
 * * * actions for malicious prosecution, slander, and other 
 actions of the same species, where the damages are not matters 
 of calculation by dollars and cents, but where each must depend 
 on its own particular circumstances of aggravation, and the con-- 
 dition in life of the parties, courts, unless the damages are out- 
 rageous, never set aside the verdict on account of the damages, 
 but always take into view the situation of the parties as to prop- 
 erty, and this they can only know from the evidence. * * * 
 Damages are given by way of example. That which vrould be 
 exemplary as to one would not make another feel. — would be no 
 terror to him." 
 
 Properly construed, and as the jury doubtless understood the 
 language employed, there is no error in that part of the charge 
 quoted in the third specification. In saying to the jury: "You 
 are to look at the wrong done to his social and family relations. 
 You are to consider the dishonor brought upon his family," etc., 
 — the learned judge referred solely to the personal sufferings 
 and losses of the plaintiff, and not to the sufferings and losses of 
 the family, as contradistinguished from those of the plaintiff 
 himself. "When dishonor was brought upon the family, he, of 
 course, as its head, suffered thereby personally. When read in 
 connection with the context and other parts of the charge, the 
 meaning of the court cannot be mistaken. 
 
 The doctrine of punitive or exemplary damages, as applicable 
 to such cases as this, is as old as the commonwealth itself, and 
 it will be an evil day to the cause of justice and good morals if 
 the principle upon which such damages have hitherto been sus- 
 tained should be abandoned. On principle as well as authority, 
 the learned judge was substantially correct in employing the 
 language recited in the fourth specification. Cornelius v. Ham- 
 bay, 150 Pa. St. 359. * * * 
 
 Judgment affirmed. 
 
 In an action for breach of promise of marriage, birtli of an illegiti- 
 mate child can be proved in aggravation of damages. Tubbs v. Van
 
 550 DAMAGES IN ACTIONS FOR WRONGS. 
 
 Kleek. 12 111. 446. In such au action the wealth of defendant can be 
 shown on the question of damages. Jacoby v. Stark, 20r> 111. 34. 
 
 In Grable v. Margrave, 4 111. 372, it was held that evidence of the 
 pecuniary condition of the father was allowable on the question of 
 damages. 
 
 It was held in Stewart v. Smith, 1)2 Wis. 7(i, that in an action for the 
 seduction of plaintiff's daughter, evidence was admissible, in mitiga- 
 tion of damages, to show lier want of chastity prior to the seduction ; 
 such evidence, including not only her general reputation, and specific 
 acts of nnchastity, but also impure conversation and improper fa- 
 miliarity with men. 
 
 Loss of services, loss of comfort and consolation, disgrace, and dis- 
 honor are elements of recovery in an action by a parent for the se- 
 duction of his daughter, and where intercourse is admitted, but seduc- 
 tion denied, plaintiff may show, in aggravation of damages, that the 
 defendant after discovering that she was in the family way agreed 
 to marry her. Milliken v. Long, 188 Pa. 411. 
 
 13. Criminal Conversation. 
 
 ANGELL V. REYNOLDS. 
 Rhode Island, 1904. 26 R. I. 160. 
 
 TiLLiNGHAST, J. This is an action of trespass on the case for 
 alienating the affection of the plaintiff's husband, whereby she 
 alleges that she wholly lost his society, aid, and support. At the 
 trial of the case in the common pleas division a verdict was ren- 
 dered in favor of the plaintiff, and her damages were assessed 
 at the sum of $1,500. The case is now before us on the de- 
 fendant 's petition for a new trial on the grounds that the verdict 
 was against the evidence, and that certain rulings of the trial 
 court were erroneous. 
 
 The rulings specially relied on by defendant's counsel as be- 
 ing erroneous, and the only ones which we feel called upon to 
 consider, were those relating to certain testimony offered, and 
 certain refusal of requests to charge, bearing upon the question 
 of damages. The defendant offered to prove, in substance, that 
 plaintiff's husband had been improperly familiar with other 
 women than herself during the same period that she was charged 
 with having maintained illicit relations with him, and hence that 
 she was not responsible, in any event, for all the damages which 
 the plaintiff had sustained in the premises. In other words, the
 
 CRIMINAL CONVERSATION. 551 
 
 defendant 's contention, in effect, was that the plaintiff 's husband 
 was a man of general bad character as a husband, and hence 
 that the plaintiff could not look to her for all the damages which 
 she had sustained thereby. However ungracious, or even odious, 
 such a defense may seem to be from a purely moral standpoint, 
 it is doubtless one which a defendant may interpose in a case of 
 this sort. The question here is, how much has the plaintiff been 
 damaged by the wrongful acts of the defendant in the premises, 
 and not by the wrongful acts of others in the same direction? 
 And if it should be made to appear that the husband's affection 
 for his wife had, for any cause, commenced to wane before his 
 intimacy with the defendant commenced, and that the defendant, 
 taking advantage of that condition of things, secured for herself 
 what there was left of his love for his wife, she can only be legally 
 called upon to make the plaintiff whole for the share thereof 
 which she thus took from her. Or, to state it differently, what 
 was the loss which the plaintiff sustained by reason of the part 
 which the defendant took in the premises? It is true, this may 
 seem like an impossible question for a jury to answer, for how 
 far the charms and blandishments of one woman, as compared 
 with those of another or of others, may go in accomplishing the 
 total destruction of a husband's affection for his wife, cannot be 
 determined by any mathematical rules. But yet, like many other 
 questions in practical life, it is capable of a reasonable solution. 
 The law bearing upon the question under consideration doubt- 
 less is that "evidence in mitigation of damages will be received 
 if it tends to show that the plaintiff has, in fact, suffered less 
 injury than would otherwise be a probable inference from the 
 acts proved." Sutherland on Damages (3d Ed.) §745. Hence, 
 in a case of this sort, it is proper to show unhappy relations be- 
 tween the plaintiff and her husband, or that she was wanting in 
 affection for him (Hadley v. Heywood, 121 Mass. 236; Coleman 
 V. White, 43 Ind. 429 ; Palmer v. Crook, 7 Gray, 418 ; Peek v. 
 Traylor [Ky.l 34 S. W. 705; Rudd v. Rounds, 64 Vt. 432; Rose 
 V. Mitchell, 21 R. I. 270), or that there had been improper 
 familiarities between him and other women (Norton v. Warner, 
 9 Conn. 172; Waldron v. Waldron [C. C] 45 Fed. 315). In 
 Bailey v. Bailey, 94 Iowa, 598, which was an action by a wife 
 against her father-in-law for alienating the affections of her 
 husband, it was held to be reversible error to exclude evidence 
 showing what the husband 's state of mind towards his wife was,
 
 552 DAMAGES IN ACTIONS FOR WRONGS. 
 
 and that other causes than the defendant's acts had to do with 
 the alienation. In Churchill v. Lewis, 17 Abb. N. C. 226, it was 
 held that the true relations between the plaintiff and her hus- 
 band, and whether hapi\v, or otlicrwise before the ac- 
 quaintance with defendant; the state of his feeling and 
 the extent of his affections toward his wife; and the 
 effect produced upon the plaintiff by the existence of the rela- 
 tions between her husband and the defendant, as they appeared 
 to her at the time — may be considered by the jury in estimating 
 the damages. Prettyman v. Williamson, 1 Pennewill, 224 ; Schorn 
 V. Berry, 63 Hun, 110; Browning v. Jones, 52 111. App. 597; 
 1 Greenl. Ev. (13th Ed.) § 102; Cool. Torts (2d Ed.) pp. 263, 
 264; Abbott's Trial Ev. 686; Ency. Ev. vol. 1, pp. 765, 766, and 
 cases cited; 2 Hilliard on Torts, p. 509, § 21— are amongst the 
 numerous authorities to the same general effect. But plaintiff's 
 counsel contends that, even conceding that her husband had im- 
 proper relations with other women than the defendant, yet, as 
 the evidence shows that the plaintiff was not aware of that fact, 
 and that, as he was affectionate towards her, and made a satis- 
 factory husband, until the defendant interferred in the premises, 
 it was not competent for the defendant to prove his secret vices, 
 unless it could also be shown that they resulted to the injury of 
 the plaintiff. We cannot agree with this contention. A wife is 
 entitled to the full and undivided conjugal affection of her hus- 
 band, and it is quite impossible that she should enjoy this right 
 if he is improperly familiar with other women. There must 
 necessarily be at least a weakening of the affections, or what is 
 technically known as "the loss of consortium," in every such 
 case — that is, a deprivation of the full society, affection, and 
 assistance to which a wife is entitled; and hence, whether she 
 has knowledge of the wrong or not, it cannot fail to result to 
 her injury. The marital rights of a woman are unlawfully in- 
 vaded whenever any one steps in between her and her husband, 
 whether with or without her knowledge, and secures any part of 
 the society, affection, or assistance which belongs to her. And 
 for such unlawful act the wife is entitled to be remunerated 
 in damages. It follows, then, in the case at bar, that if the de- 
 fendant could show that others than herself had also been guilty 
 of alienating the affection of the plaintiff's husband to any ex- 
 tent, although this fact was unknown to the plaintiff, she had the
 
 CRIMINAL CONVERSATION. 553 
 
 right to do so in mitigation of damages. Wolf v. Frank, 92 
 Md. 138. 
 
 An examination of the evidence in the case shows that up to the 
 time when the plaintiff 's husband Avent away with the defendant 
 he furnished her with a comfortable support, paying over to her 
 his entire wages, and contributing generally to her comfort and 
 happiness ; but that after the defendant interfered in the prem- 
 ises, and won his affection, he absolutely neglected the plaintiff, 
 giving her no money for food or clothing, so that she was obliged 
 to procure the necessaries of life as best she could. It also ap- 
 pears by the uncontradicted testimony in the case that the 
 plaintiff and her husband were fond of each other, and had no 
 trouble, until he became acquainted with the defendant ; that the 
 latter wrote him a large number of love letters, wherein it ap- 
 pears that she had great affection for him — that she desired to 
 marry him; that she made appointments to meet him in Provi- 
 dence and elsewhere for improper purposes; that she was un- 
 willing that this intimacy should cease, although he desired it; 
 and that in all these matters she was the aggressive party. In 
 view of these facts, and of the further fact that the defendant did 
 not personally deny any of the charges made against her, and 
 did not even testify in her own behalf at the trial, it appears 
 beyond question that, even if she was not guilty of alienating the 
 affections of the plaintiff's husband as a whole, yet she was the 
 main cause thereof. And hence, while a new trial must be 
 granted on account of the error of the trial court in ruling out 
 the evidence which was offered in mitigation of damages, as afore- 
 said, there is no occasion for a new trial on the merits of the 
 case, and we will therefore grant a new trial, the same to be 
 limited to the question of damages only. 
 
 Case remanded for a new trial in accordance with this opinion. 
 
 SHANNON V. SWANSON. 
 
 Illinois, 1904. 208 111. 52. 
 
 BoGGS, J. This was an action on the case, brought by the de- 
 fendant in error against the plaintiff in error for the seduction 
 and alienation of the affections of Louise Swanson, wife of the 
 defendant in error, by the plaintiff in error. On the trial before 
 the court and a jury, judgment was entered in favor of the
 
 55-1 DAMAGES IN ACTIONS FOR WRONGS. 
 
 defendant in error in the sinu of $1,000, and the judgment was 
 affirmed by the ^VppeUate Court for the Second District. The 
 record is before us on a writ of error. * * * 
 
 A husband is entitled to recover substantial damages from 
 one who has committed adultery with his wife, although he 
 proves no resulting expense or loss of services (Yundt v. Hart- 
 runft, 41 111. 9; 8 Am. & Eng. Ency. of Law [2d Ed.] 266), and 
 this answers the complaints as to instructions Nos. 2 and 6. 
 
 It is complained that instruction No. 3 contains an assumption 
 that the plaintiff in error had been guilty of adultery with the 
 wife of the defendant in error, and, as to the fourth instruction, 
 that it assumes the relations between the husband and wife were 
 cordial and affectionate. Both of the instructions are so drawn 
 as that they are likely to provoke the criticism made against 
 them. The purpose of instruction No. 3 was to advise the jury 
 of the general legal principle that the fact that a husband has 
 forgiven the conduct of an adulterous wife does not relieve the 
 seducer of the wife from legal liability to answer in damages to 
 the husband, and the language found in an opinion of the Su- 
 preme Court of New Hampshire announcing that doctrine was 
 framed into the instruction. In the concluding portion of the 
 instruction the phrase, "if any you find from the evidence," 
 clearly refers to the words "offenses of the defendant," found 
 immediately preceding such phrase, and would, we think, pre- 
 vent the jury from being misled to believe the court assumed it 
 to be true, or to have been proven, that defendant had com- 
 mitted the offense of adultery. There is no assumption of fact 
 in the fourth instruction. Whether the relations between the 
 husband and wife were cordial and affectionate was left by it to 
 be determined by the jury from the evidence. 
 
 The fact that Parker Shannon, a brother of the plaintiff in 
 error, had also had intercourse with the wife of the defendant 
 in error, and that the defendant in error had instituted an action 
 against him, and in settlement of the suit had received the 
 sum of $1,000 from Parker, and had executed a release of the 
 cause of action against Parker, did not bar the action against 
 the plaintiff in error, or make it incumbent upon the trial judge 
 to grant the motion for an instruction directing a peremptory 
 verdiet for the defendant. The acts of adultery of Parker Shan- 
 non and of the plaintiff in error were separate and distinct acts, 
 and not one act or wrong, and no right of action accrued against
 
 CRIMINAL CONVERSATION. 555 
 
 them jointly. There being no joint liability, the doctrine that 
 satisfaction by one joint tort feasor bars recovery against all 
 other of such tort feasors has no application. Yeazel v. Alex- 
 ander, 58 111. 254; Chicago & Northwestern Eailway Co. v. Scates, 
 90 111. 586. The judgment is affirmed. 
 
 Judgment affirmed. 
 
 In actions of tort, and certainly in crim. con., the amount of 
 damages is peculiarly within the discretion of the jury, so that appel- 
 late courts will disturb the verdict only where passion and prejudice 
 are shown. Speck v. Gray, 14 Wash. 589. 
 
 In crim. con. the deprivation of services is not one that implies a 
 loss measurable by pecuniary standards of value. The husband is 
 entitled to "consortium" or conjugal fellowship. If statutes give the 
 wife her own earnings that makes no difference with the husband's 
 claim. Long v. Booe, 106 Ala. 570. 
 
 If the love and harmony and affectionate intercourse of husband 
 and wife had been previously impaired through the misconduct of the 
 husband, this may be shown in mitigation of damages, if pleaded. 
 Palmer v. Cook, 7 Gray 418.
 
 VII. BREACH OF PROMISE TO MARRY. 
 
 KELLERT v. ROBIE. 
 
 Wisconsin, 1898. 99 Wis. 303, 
 
 WiNSLOW, J. This is an action for breach of promise of mar- 
 riage, and the plaintiff has obtained a judgment for damages 
 fixed at $3,500. The contract of marriage was admitted, but 
 the defendant claimed that there was a subsequent mutual re- 
 lease. This was denied by the plaintiff, and upon this issue the 
 case was tried. The evidence showed that the parties became en- 
 gaged August 30, 1890, the plaintiff then being twenty years 
 of age ; and it was agreed that the marriage should not take place 
 for three years. The parties were farmers' children, and lived 
 with their parents in adjoining towns in Winnebago county, 
 about a mile and a half from each other. After the engagement, 
 the defendant frequently called upon the plaintiff until Decem- 
 ber 17, 1893, at which time the defendant claims that the plaintiff 
 suggested to him that, as long as his (defendant's) people were 
 opposed to the match, they should separate, and call the en- 
 gagement off, and that he assented to this proposition. The de- 
 fendant never called on the plaintiff after this time, although 
 they had some correspondence, which is in the record. Soon after 
 this alleged conversation, the defendant commenced to call upon 
 another young lady in the neighborhood, and continued to pay 
 attention to her without objection on the part of the plaintiff, 
 until he was married to her in December, 1895. The plaintiff 
 denied positively that she released the defendant from the en- 
 gagement. In the course of her examination as a party under 
 section 4096, Rev. St., she admitted that they had a conversation 
 in December, 1 893, in which she says, ' ' I told him if he did not 
 w^ant to marry me, of course he could suit himself; but he said 
 he was marrying me, not his people, and he came to see me just 
 the same." The evidence showed that the defendant was worth 
 about $6,000. composed of his interest in the estates of his father 
 and grandfather, both of which were still unsettled. 
 
 Several exceptions to rulings upon evidence and to the charge 
 
 556
 
 BREACH OF PROMISE TO MARRY. 557 
 
 of the court were argued by the appellant, but, as we do not think 
 we should be compelled to reverse the judgment on account of 
 them alone, we shall not discuss them, but proceed to the main 
 question, namely, whether the verdict is contrary to the evidence. 
 Upon this question, after careful consideration of all the evidence, 
 and especially of the letters written by the plaintiff after the 
 alleged release, we can come to no conclusion except that the 
 verdict is clearly against the preponderance of the evidence. 
 These letters demonstrate to a certainty that something of a seri- 
 ous nature had interrupted the relations of the parties about the 
 time that the defendant alleges the release took place. No ex- 
 planation as to what this serious event was is offered except the 
 defendant's explanation of a release. We shall not give the 
 letters in full, but content ourselves with some extracts, which 
 seem to conclusively establish that the former relationship was 
 broken off, and that marriage was no longer contemplated. In a 
 letter of January 21, 1894, she says: "Fred: If you desire a 
 change, why take it, and end the matter right here. As I said 
 previously, I cannot count second. I am glad of one thing: if 
 we do separate forever, you can always think that I performed 
 my duty by you from the very first to the last." On March 1, 
 1894, she wrote : "Fred : You may think it queer on my part in 
 asking you to come and see me, after what has happened. I 
 would never do so if it were not absolutely necessary, Fred ; that 
 you know. I know it will cause hard feelings, but I cannot help 
 it. You must know, and the sooner the better. So let me see 
 you as soon as possible. If I have done wrong in writing, please 
 forgive me, Fred; it is for j^our and my welfare." On March 
 8, 1894, she wrote again: "I just want you to come just once, 
 and risk everything to oblige me. Your trouble is as nothing 
 compared to mine. I knew you were in town Monday. I seen 
 your horse, and someway I felt you were there. I don't feel 
 hard toward you one bit, Fred. You will find me just the same. 
 I am not fickle ; once is forever with me ; so don 't feel bad about 
 nothing. You shall never suffer through me again. I hope the 
 day may come when you forget that you ever knew me. * * * 
 Now, Fred, if you don 't want to come, and if you think you will 
 be happier by staying away, why I will try and bear it." 
 When the plaintiff said to the defendant in her letter of January 
 21st, "If you desire a change, take it, and end the matter right 
 here," we can see no escape from the conclusion that it was an
 
 558 BREACH OP PROMISE TO MARRY. 
 
 offer of freedom from the engagement ; and when it further ap- 
 pears that the defendant acted upon this or a similar offer, and, 
 without objection from the plaintiff, but with her knowledge, 
 courted and married another woman, it nuist be considered that 
 the offer was accepted, and that the plaintiff' has become bound 
 by the offer and its acceptance. We are unable to understand 
 how, in the face of this evidence, the jury could have found that 
 there was not a mutual release of the engagement. In connec- 
 tion with this unaccountable verdict, we cannot refrain from 
 saying that the damages awarded are grossly excessive, and that 
 we should feel obliged to reverse upon this ground in any event. 
 The defendant's estate amounted to about $6,000, and there are 
 no circumstances of aggravation in the case. The defendant is 
 now married, and to give considerably more than half of his 
 property as damages upon the facts appearing here, even if there 
 had been no express release, we regard as out of the bounds of 
 reason. The damages are so far excessive as to show passion, if 
 not perversity, on the part of the jury. 
 
 Judgment reversed, and action remanded for a new trial. 
 
 EGBERTS V. DRUILLARD. 
 Michigan, 1900. 123 Mich. 286. 
 
 Hooker, J. In an action for breach of promise of marriage, 
 the court permitted plaintiff's counsel to prove various slan- 
 derous statements concerning the plaintiff, made by the defendant 
 to third parties at different places and times, after the relations 
 had ended, in the absence of the plaintiff, as a reason for break- 
 ing his engagement and refusing to marry her. There is no doubt 
 that this testimony was admissible under authorities hereinafter 
 cited, but an improper use was made of it. The court instructed 
 the jury that "therefore, if the jury find from the evidence that 
 the defendant wantonly, recklessly, and unjustifiably broke off 
 his engagement with the plaintiff, and you further find from the 
 evidence that in order to excuse himself for so doing he made 
 statements regarding her physical condition which would bring 
 her into even greater ridicule and contempt than the mere break- 
 ing off of the engagement would do, and the tendency of which 
 would be to disgrace her and ruin her future prospects and wel- 
 fare, and you further find from the evidence that such statements
 
 BREACH OF PROMISE TO MARRY. 559 
 
 were untrue, and that the defendant knew or had good reason to 
 believe them to be false and untrue, and made such statements 
 in bad faith, then you should, in the exercise of a sound and 
 reasonable discretion, award her such additional damages as in 
 your judgment she has suffered by reason of the false and slan- 
 derous statements so made by the defendant." This language 
 was broad enough to lead the jury to understand that they could 
 award full damages for these slanders to the same extent as would 
 have been permissible had the various slanders been counted 
 upon in an action for defamation. It has been said that the 
 testimony was admissible, but it was only for the purpose of 
 showing a bad motive, by way of aggravation of damages, just 
 as willfulness and malice may be shown in a case of tort, to which 
 this class of cases are by the authorities cited said to be analogous 
 in some respects. The proof of these slanders was admissible, not 
 as substantive causes of action, but as explanatory of the act of 
 the defendant in breaking the contract, just as a libel not de- 
 clared upon is admissible to explain the animus of a defendant 
 in publishing the libel counted upon in an action for defamation. 
 An examination of the authorities will show this. In those juris- 
 dictions Avhere punitory damages are permitted, the rule is that 
 these slanders may be shown as a basis for them. Sutherland 
 says, in his work on Damages (section 987), that circumstances 
 are admissible to show wantonness and ruthlessness, and that 
 she may be allowed, not only full compensation (i. e., for the 
 breach of promise, not slander), but by way of punishment. 
 There is nothing in the quotation from Sutherland cited which 
 in my opinion justifies the inference that compensation for the 
 direct injuries occasioned by such slanders are recoverable in the 
 action for breach of promise, or that they may not be recovered 
 in an action of slander, despite a previous recovery of legitimate 
 damages in an action for the breach of promise of marriage. In 
 Southard v. Rexford, 6 Cow. 261, the court went no further than 
 to say that a slanderous defense is a circumstance that may aggra- 
 vate damages. In Kniffen v. McConnell, 30 N. Y. 291, 292, this 
 is the interpretation put upon the opinion in Southard v. Rex- 
 ford, and it is said that such rule is an anomaly, and "should 
 not be extended further than that ca.se has carried it." These 
 eases are reviewed in Thorn v. Knapp, 42 N. Y. 474, showing that 
 these cases stand upon the proposition that, "in an action for 
 breach of promise of marriage, it is competent, for the purpose of
 
 560 BREACH OF PROMISE TO MARRY, 
 
 enhancing the damages, to prove the motives that actuated the 
 defendant; that he entered into the contract and broke it with 
 bad motives and a wicked heart." In Johnson v. Jenkins, 24 
 N. Y. 252, Judge Allen clearly shows the use to be made of such 
 evidence. He says: "Every circumstance attending the break- 
 ing off of the engagement becomes a part of the res gestae. The 
 reasons which were operative and influential with the defendant 
 are material, so far as they can be ascertained ; and whether they 
 are such as, tending to show a willingness to trifle with the con- 
 tract 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 con- 
 fine the damages within the limit of a just compensation, will 
 always be for the jury to determine. * * * Had the de- 
 fendant by his declarations shown a wicked mind in the transac- 
 tion, it is evident that they very properly would have been sub- 
 mitted 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 be- 
 cause she was a prostitute; could she not, upon the same prin- 
 ciples, have proved this in enhancement of damages? No dam- 
 ages could be allowed for defaming her by the utterance of these 
 words ; but they could be proved as showing the mind with which 
 the contract was broken, and as thus bearing upon the damages 
 to be allowed for that." Thorn v. Knapp, 42 N. Y. 479. In 
 Chellis V. Chapman, 125 N. Y. 214, the same doctrine is adhered 
 to, viz., that the damages may be enhanced by proof of breach 
 of contract from bad motives. In Sherman v. Rawson, 102 Mass. 
 399, the court said : ' ' Damages, it is true, must be awarded solely 
 for the suffering which would result from the defendant's refusal 
 to perform his promise,"— adding that they cannot be justly 
 estimated without taking into consideration the circumstances of 
 the relation and the breach. Baldy v. Stratton, 11 Pa. St. 325. 
 goes no further, and we have not found a single case that per- 
 mits full recovery for such slanders as are proven in this case in 
 an action for the breach of promise, or that holds that an action 
 for slander is barred by a judgment upon the breach of promise. 
 The judgment should be reversed, and a new trial ordered. The 
 other justices concurred.
 
 BREACH OF PROMISE TO MARRY. 561 
 
 SALCHERT v. REINIG. 
 
 Wisconsin, 1908. 135 Wis. 194. 
 
 Action for breach of promise to marry, alleged to have been 
 made about the 1st of August, 1902, aggravated by seduction 
 accomplished in reliance upon said promise, and followed by 
 nearly three years of frequent illicit connection between the 
 parties. The defendant denied any promise of marriage, but ad- 
 mitted the establishment and continuance of such illicit relations 
 upon the basis of a cash payment on each occasion thereof. The 
 answer pleaded was a simple general denial. The jury, by special 
 verdict, found that about the 1st of August defendant did offer 
 or promise to marry the plaintiff, and that she accepted the offer ; 
 that said offer or promise was not conditioned upon sexual in- 
 tercourse or upon her becoming pregnant by him ; that plaintiff 
 held herself ready and willing to marry the defendant until his 
 wedding with another woman in April, 1906; that the time be- 
 tween the making of such promise and said April, 1906, was a 
 reasonable time for the engagement to continue without marriage 
 taking place ; assessed the damages for breach of promise, regard- 
 less of any question of seduction, at $10,000 ; and by the eighth 
 answer found that the defendant seduced the plaintiff "under 
 such promise;" and by the ninth answer that the damages by 
 reason of the seduction was $5,000. Motions for nonsuit and 
 for direction of verdict in favor of defendant were duly made 
 and overruled, with exception, and, after verdict, motion was 
 made to change the answers of the several questions and to ren- 
 der judgment for the defendant, and if that be denied that the 
 verdict be set aside, and a new trial granted ; all of which motions 
 were denied, over exception, and judgment rendered for both 
 sums of damages included in the special verdict, to wit, $15,000, 
 from which judgment the defendant appeals. 
 
 Dodge, J. Appellant's most urgent contention is that the trial 
 court erred in refusing to direct verdict for defendant, or to in- 
 sert answers in the special verdict negativing the promise of 
 marriage, and that he also erred in not setting aside that verdict 
 as opposed by great weight and preponderance of evidence. 
 The action of a trial court in the second respect is an exercise 
 of discretion with which the appellate court will not interfere. 
 Although convinced that some credible evidence supports the 
 verdict, if the trial judge is persuaded that such evidence is rela- 
 
 26
 
 562 BREACH OF PROMISE TO MARRY. 
 
 lively so weak or unconvincing, when compared with the adverse 
 evidence, that there is danger that the verdict will work injus- 
 tice, he is vested with a broad discretion to protect against such 
 peril b}' granting the parties a new trial. Baunon v. Ins. Co., 
 115 Wis. 250 ; Peat v. Ry. Co., 128 "Wis. 8G. But when this stage 
 has been passed, the question whether the court should direct a 
 verdict, or whether this court on appeal may in effect do so, de- 
 pends merely upon whether there is any credible evidence which, 
 in the most favorable view, and granting all reasonable inferences 
 and construction in favor of the conclusion of the jury, tends to 
 support the verdict. To declare sworn testimony of a fact in- 
 credible we must be convinced that it is so in conflict with the 
 uniform course of nature or with fully established physical facts 
 that no reasonably intelligent man could give it credence. Beyer 
 V. Ins. Co., 112 Wis. 138 ; Hirte v. Eastern Wis. Ry. & L. Co., 
 127 Wis. 230; Peat v. Ry. Co., 128 Wis. 86. In this case the 
 plaintiff testified positively to the fact of a promise of marriage, 
 and of course this suffices of itself to support the verdict on that 
 subject, unless rendered incredible by other evidence in the sense 
 above stated. No corroboration is required. Giese v. Schultz, 
 65 Wis. 487. It is opposed in the first instance by the categorical 
 denial of the defendant, but this simply presents a case of two 
 conflicting witnesses, one or the other of whom may be credited 
 by a reasonable person according to their appearance, interest, 
 fairness, and manner of testifying. While the plaintiff is in- 
 volved in some measure of contradiction as to the details of the 
 interview in which the promise was made, so also is the de- 
 fendant's testimony permeated by contradictions, uncertainty, 
 and evasion. Throughout his examination, under section 4096, 
 Stat. 1898, through many consecutive answers relating to the 
 most material events he contented himself with denying memory 
 or knowledge, and later testified thereto fully and in detail, 
 thus placing his testimony at one time in direct contradiction 
 therewith at another. Again, there is the asserted improbability 
 that a man in his rank of life would engage himself in marriage 
 to the plaintiff, and there is conduct on her part considered by 
 the defendant's attorney as variant from that which usually 
 accompanies the relations between engaged persons. But we can 
 see nothing in this more than mere improbability, and not enough 
 to make it impossible for an ordinarily intelligent person to be- 
 lieve in the existence of the prom.ise of marriage notwithstanding
 
 BREACH OF PROMISE TO MARRY. 563 
 
 such conduct. The unsavory character of the evidence descriptive 
 of the relations of the parties must make it suffice to state our 
 conclusion that after careful examination thereof we cannot deem 
 any of the facts disclosed as so inconsistent with plaintiff's testi- 
 mony as to this promise as to render it so incredible that it might 
 not by reasonable men be believed, and so that it obviously fur- 
 nishes support for that part of the verdict. * * * 
 
 We cannot think the contention that the damages are excessive 
 worthy of extended consideration l)y the appellate court after ad- 
 verse ruling below. Ten thousand dollars for the loss of a mar- 
 riage to a man of the wealth which evidence at least tended to 
 ascribe to the defendant, after an engagement of some four years, 
 is well within the limits of verdicts which have been sustained. 
 The translation into terms of money of those peculiarly indefinite 
 damages which result from a breach of such a contract is so a 
 matter of estimate that courts on appeal are extremely reluctant 
 to interfere with the conclusion of the jury thereon. 
 
 AVe have gone over all the assignments of error relating to 
 those portions of the recovery other than for seduction, at least 
 so far as seems to be justified by their importance, and find none 
 which can in our opinion warrant any reversal up to the point 
 of the recovery of damages for the breach of promise unaffected 
 by consideration whether the seduction of the plaintiff was ac- 
 complished in reliance upon the promise of marriage. When the 
 court came to the question of seduction, he instructed the jury 
 that if they found it they should, in answer to the ninth question, 
 fix sucii sum as will compensate her for the additional injuries 
 resulting from the seduction which would include loss of virtue, 
 injury to reputation, and her mental suffering following from 
 such loss and such injury, and this too after directing them to 
 include, in response to the seventh question, the amount of her 
 damages for the breach of the promise of marriage independent 
 of seduction, the elements of which he described as "benefits 
 and advantages lost to her by the defendant's breach of the con- 
 tract, together with such sum as will compensate her for such 
 humiliation and mental suffering as resulted from defendant's 
 rejection and repudiation of her." The ninth question could 
 have been no broader had plaintiff in form stated tvv^o causes of 
 action in her complaint, one for breach of promise, and another 
 for seduction as an independent cause of action. But by the 
 common law, which has received no modification by statute in
 
 564 BREACH OF PROMISE TO MARRY. 
 
 Wisconsin, though it has in some states, the seduced party has 
 no cause of action for seduction. She is a consenting party, and 
 the policy of the hnv has been to give her no recovery, no matter 
 how her consent is obtained, for seduction as such; leaving the 
 seducer to be dealt with under the criminal law when he is 
 brought within its terms. In the two cases in this state, which 
 are cited as authority in nearly all text books, Leavitt v. Cutler, 
 37 Wis. 46, and Giese v. Schultz, 53 Wis. 462, Id. 65 Wis. 487, 
 and Id. 69 Wis. 521, this view was most distinctly pointed out, 
 and while in Leavitt v. Cutler there were mentioned as elements 
 of damage for breach of promise such things as the "loss of 
 virtue" and the "injury to reputation," with an expressed doubt 
 whether they belonged there, it was declared that the fact of 
 seduction could bring in no additional element of damage, but at 
 most might serve to enhance the amount of those elements which, 
 independently, belonged in the action for breach of promise. 
 Just what those elements are, and whether they include loss of 
 reputation, is left in doubt by the Wisconsin cases. In Coolidge 
 V Neafc, 129 Mass. 146, they are defined as follows: (1) "The 
 disappointment of the plaintiff's reasonable expectations 
 * * * including ' the money value of w^orldly advantages of a 
 marriage which would have given her a permanent home and an 
 advantageous establishment.' " (2) "The wound and injury to 
 her affections. " ( 3 ) " Whatever mortification or distress of mind 
 she suffered, resulting from the refusal of the defendant to fulfill 
 his promise." Whether there may be any other elements is im- 
 material to the present case, for the trial court defined the 
 elements for which damages might be allowed for the breach of 
 promise: "The benefits and advantages lost to her by the de- 
 fendant's breach of the contract, together with such sum as will 
 compensate her for such humiliation and mental suffering as 
 resulted to her from defendant's rejection and repudiation of 
 her." Now, under the rule of Giese v. Schultz, the utmost effect 
 of her seduction would have been under this rule of the trial 
 court to enhance the sum which the jury might have thought 
 would compensate her for one or the other of these elements, 
 and, obviously, it was not so limited by the instruction given, 
 which authorized compensation for the "additional injury re- 
 sulting from seduction." That is in direct disregard of the rule 
 of this court, and must be considered error, the effect of which
 
 BREACH OF PROMISE TO MARRY. 565 
 
 on the judgment, however, need not be considered by reason of a 
 more radical objection now to be stated. 
 
 In the finding (No. 8) as to whether or not seduction had 
 taken place the court left to the jury whether the plaintiff had 
 ever had sexual intercourse, otherwise than by force and against 
 her will, with any man prior to the promise of marriage. He 
 subsequently concluded that this was too restrictive, and declined 
 to set the verdict aside, although not supported by evidence under 
 that rule, holding that one act of sexual intercourse could not 
 be said to render a woman unchaste. This opens a broad field of 
 inquiry, full perhaps of close distinctions. But the general rule 
 of law seems to be, from the weight of authority, that although a 
 woman may at one time have lapsed from physical chastity, if it 
 appear affirmatively that she has reformed and at the time of 
 the offense maintained a habit of sexual virtue, she may be 
 deemed chaste within the meaning of the law, so that an invasion 
 of that virtue under a promise of marriage may serve in greater 
 or less degree to enhance the damages she would suffer by a 
 breach. Suther v. State, 118 Ala. 88; Smith v. State, 118 Ala. 
 117; Smith V. Milburn, 17 Iowa, 30; People v. Clark, 33 Mich. 
 112; People V. Squires, 49 ^lich. 487. We do not, however, in 
 the present case, need to discuss the exact lines of this doctrine. 
 If it appear that a woman has willingly associated herself in the 
 sexual act with a man other than her husband, in a manner and 
 by conduct which excludes the existence of any barrier of virtue 
 or chastity of character needing to be overcome by seductive arts, 
 and that she continued such intercourse at short intervals with- 
 out suggestion of any repentance or reformation or other break 
 in its continuity, the mere fact that in the course thereof, and 
 after the illicit relations are established, there intervenes a 
 promise of marriage cannot support a finding that the seduction 
 has been accomplished by such promise, although she may testify 
 that she continued the libidinous relations by reason of it. It is 
 seduction by promise of marriage which justifies enhancement 
 of damages, not merely sexual intercourse. The latter may be 
 the result of inclination, passion, or cupidity without entitling 
 the woman to any reward by law. People v. Clark. 33 IMich. 112 ; 
 Patterson v. Haydon 17 Or. 238 ; Bowers v. State, 29 Ohio St. 
 542; State v. Brassfield, 81 Mo. 151 ; Comer v. Taylor, 82 Mo. 
 341; Stowers v. Singer, 113 Ky. 584: Hogan v. Cregan, 6 Rob 
 (N. Y.) 138. In the present case it is established, without dis-
 
 566 BREACH OP PROMISE TO MARRY. 
 
 pute, that on at least one and perhaps two occasions the plaintiff 
 and defendant associated in a sexual encounter before any talk 
 of marriage. The circumstances surroimding the first of these 
 are detailed by the defendant, and show a most ready joining 
 therein by the plaintiff — true, with no words of consent, but by 
 acts of preparation and co-operation which are fully the equiva- 
 lent thereof and evincive of entire familiarity with and inclina- 
 tion to the act. This testimony stands undisputed, except by the 
 plaintiff's negative answer to a leading question, over objection: 
 "Did you ever consent to allow Mr. Reinig to have sexual inter- 
 course with you before he promised to marry you?" — which is 
 far too much a mere conclusion of the witness and evasive of the 
 real facts to constitute any denial of the specific description of 
 her conduct given by the defendant. This act of voluntary and 
 willing intercourse within a very few days before the time when 
 it is claimed the promise of marriage was made, and the entire 
 resemblance to it of the subsequent conduct of the plaintiff in 
 joining with the defendant in sexual intercourse, none of which 
 were coincident in time with the promise, make it to our minds 
 an entirely uncontradicted fact that her yielding was in no wise 
 induced by or dependent on the promise of marriage, and that 
 the finding of the jury to the eighth question was wholly un- 
 supported. The court should upon defendant's motion, have re- 
 versed the answer to that question, or indeed, preferably, should 
 have declined to submit it to the jury. The conclusion thus 
 reached does not affect the rest of the verdict. The error of the 
 court can now be corrected by eliminating from the recovery all 
 that portion which depends upon the answers to the eighth and 
 ninth questions. 
 
 Judgment modified by reducing the damages to the sum of 
 $10,000, and, as so modified, is affirmed. Appellant to recover 
 costs in this court.
 
 VIII. ACTIONS AGAINST TELEGRAPH 
 COMPANIES. 
 
 PRIMROSE V. WESTERN UNION TELEGRAPH 
 COMPANY. 
 
 United States Supreme Court, 1894. 154 U. S. 1. 
 
 This was an action on the case, brought Jan. 25, 1888, by Frank 
 J. Primrose, a citizen of Pennsylvania, against the Western 
 Union Telegraph Company, a corporation of New York, to re- 
 cover damages for a negligent mistake of the defendant's agent 
 in transmitting a telegraphic message from the plaintiff at 
 Philadelphia to his agent at Waukeney in the State of Kansas. 
 
 The defendant pleaded: 1st, not guilty; 2d, that the message 
 was an unrepeated message, and was also a cipher and obscure 
 message, and therefore by the contract between the parties under 
 which the message was sent the defendant was not liable for the 
 mistake. * * * 
 
 Gray, J. The plaintiff introduced evidence tending to show 
 that he had suffered a loss of upwards of $20,000. * * * Be- 
 yond this, under any contract to transmit a message by tele- 
 graph, as under any other contract, the damages for a breach 
 must be limited to those which may be fairly considered as aris- 
 ing according to the usual course of things from the breach of 
 the very contract in question, or which both parties must rea- 
 sonably have understood and contemplated, when making the 
 contract, as likely to result from its breach. This was directly 
 
 adjudged in Western Union Tel. Co. v. Hall, 124 U. S. 444. 
 
 * # # 
 
 The learned justice here reviews Hadley v. Baxendale and 
 continues as follows: 
 
 In Sanders v. Stuart, which was an action by commission 
 merchants against a person whose business it was to collect and 
 transmit telegraph messages, for neglect to transmit a message 
 in words by themselves wholly unintelligible, but which could 
 be understood by the plaintiffs' correspondent in New York as 
 
 567
 
 568 ACTIONS AGAINST TELEORAPJl COMPANIES. 
 
 giving a large order for goods, whereby the pkwutilLs lost profits, 
 whieh they would otherwise have made by the transjietion, to 
 the amount of £150. Lord Chief Justice Coleridge, speaking for 
 himself and Lords Justices Brett and Lindley, said: ''Upon 
 the facts of this case we think that the rule in Hadley v. Baxen- 
 dale applies, and that the damages recoverable are nominal only. 
 It is not necessary to decide, and we do not give any opinion 
 how the case might be, if the message, instead of being in lan- 
 guage utterly unintelligible, had been conveyed in plain and in- 
 telligible words. It was conveyed in terms which, as far as the 
 defendant was concerned, were simple nonsense. For this reason, 
 the second portion of Baron Alderson's rule clearly applies. No 
 such damages as above mentioned could be 'reasonably supposed 
 to have been in the contemplation of both parties, at the time 
 they made the contract, as the probable result of the breach 
 of it ; ' for the simple reason that the defendant, at least, did 
 not know what his contract was about, nor what, nor whether 
 any, damage would follow from the breach of it. And for the 
 same reason, viz., the total ignorance of the defendant as to the 
 subject-matter of the contract (an ignorance knoA\'n to, and, in- 
 deed, intentionally procured by the plaintiffs), the first portion 
 of the rule applies also ; for there are no damages more than 
 nominal which can * fairly and reasonably be considered as arising 
 naturally, i. e., according to the usual course of things, from the 
 breach' of such a contract as this. " 1 C. P. D. 326, 328 ; 45 Law 
 Journal (N. S.) C. P. 682, 684. 
 
 In United States Telegraph Company v. Gildersleve, which 
 was an action by the sender against a telegraph company for 
 not delivering this message received by it in Baltimore, addressed 
 to brokers in New York, "Sell fifty (50) gold," Mr. Justice 
 Alvey, speaking for the Court of Appeals of Maryland, and 
 applying the rule of Hadley v. Baxendale, above cited, said: 
 "While it was proved that the despatch in question would be un- 
 derstood among brokers to mean fifty thousand dollars of gold, 
 it was not shown, nor was it put to the jury to find, that the ap- 
 pellant's agents so understood it, or whether they understood it 
 at all. 'Sell fifty gold' may have been understood in its literal 
 import, if it can be properly said to have any, or was as likely 
 to be taken to mean fifty dollars, as fifty thousand dollars, by 
 those not initiated. And if the measure of responsibility at all 
 depends upon a knowledge of the special circumstances of the
 
 ACTIONS AGAINST TELEGRAPH COMPANIES. 569 
 
 ease, it would certainly follow that the nature of this despatch 
 should have been communicated to the agent at the time it was 
 offered to be sent, in order that the appellant might have ob- 
 served the precautions necessary to guard itself against the risk. 
 But without reference to the fact as to whether the appellant 
 had knowledge of the true meaning and character of the despatch, 
 and was thus enabled to contemplate the consequences of a breach 
 of the contract, the jury were instructed that the appellee was 
 entitled to recover to the full extent of his loss by the decline in 
 gold. In thus instructing the jury, we think the court committed 
 error, and that its ruling should be reversed." 29 Maryland, 
 232, 251. 
 
 In Baldwin v. United States Tel. Co., which was an action 
 by the senders against the telegraph company, for not deliver- 
 ing this message, "Telegraph me at Rochester what that well is 
 doing," Mr. Justice Allen, speaking for the Court of Appeals of 
 New York said : ' ' The message did not import that a sale of any 
 property, or any business transaction, hinged upon the prompt 
 delivery of it, or upon any answer that might be received. For 
 all the purposes for which the plaintiffs desired the informa- 
 tion, the message might as well have been in a cipher, or in an 
 unknown tongue. It indicated nothing to put the defendant upon 
 the alert, or from which it could be inferred that any special 
 or peculiar loss would ensue from a non-delivery of it. When- 
 ever special or extraordinary damages, such as would not natural- 
 ly or ordinarily follow a breach, have been awarded for the non- 
 performance of contracts, whether for the sale or carriage of 
 goods, or for the delivery of messages by telegraph, it has been 
 for the reason that the contracts have been made with reference 
 to peculiar circumstances kno^Mi to both, and the particular 
 loss has been in the contemplation of both, at the time of making 
 the contract, as a contingency that might follow the non-per- 
 formance." "The despatch not indicating any purpose other 
 than that of obtaining such information as an owTier of property 
 might desire to have at all times and without reference to a 
 sale, or even a stranger might ask for purposes entirely foreign 
 to the property itself, it is very evident that, whatever may have 
 been the special purpose of the plaintiffs, the defendant had no 
 knowledge or means of knowledge of it, and could not have con- 
 templated either a loss of a sale, or a sale at an under value, or 
 any other disposition of or dealing with the well or any other
 
 570 ACTIONS AGAINST TELEGRAPH COMPANIES. 
 
 property, as the probable or possible result of a breach of its con- 
 tract. The loss which would, naturally and necessarily, result 
 froin the failure to deliver the message, w^ould be the money paid 
 for its transmission, and no other dania«!;os can be claimed upon 
 the evidence as resulting from the alleged breach of duty by 
 the defendant." 45 N. Y. 744, 749, 750, 752. See also Hart v. 
 Direct Cable Co., 86 N. Y. 633. 
 
 The Supreme Court of Ilinois, in Tyler v. Western Union Tel. 
 Co., took notice of the fact that in that ease "the despatch dis- 
 closed the nature of the business as fully as the case demanded. ' ' 
 60 Illinois, 434. And in the recent case of Postal Tel. Co. v. 
 Lathrop, the same court said: "It is clear enough that, apply- 
 ing the rule in Hadley v. Baxendale, supra, a recovery cannot be 
 had for a failure to correctly transmit a mere cipher despatch 
 unexplained, for the reason that to one unacquainted with the 
 meaning of the ciphers it is wholly unintelligible and nonsensical. 
 An operator would, therefore, be justifiable in saying that it can 
 contain no information of value as pertaining to a business 
 transaction; and a failure to send it, or a mistake in its trans- 
 mission, can reasonably result in no pecuniary loss." 131 Illinois, 
 575, 585. 
 
 The same rule of damages has been applied, upon failure of a 
 telegraph company to transmit or deliver a cipher message, in 
 one of the Wisconsin cases cited by the plaintiff, and in many 
 cases in other courts. ( Citing authorities. ) 
 
 In the present case, the message was, and was evidently in- 
 tended to be, wholly unintelligible to the telegraph company or 
 its agents. They were not informed, by the message or other- 
 wise, of the nature, importance, or extent of the transaction to 
 which it related, or of the position which the plaintiff would 
 probably occupy if the message were correctly transmitted. Mere 
 knowledge that the plaintiff was a wool merchant, and that To- 
 land was in his employ, had no tendency to show what the 
 message was about. According to any understanding which the 
 telegraph company and its agents had, or which the plaintiff 
 could possibly have supposed that they had, of the contract 
 between these parties, the damages which the plaintiff seeks to re- 
 cover in this action, for losses upon wool purchased by Toland, 
 were not such as could reasonably be considered, either as aris- 
 ing, according to the usual course of things, from the supposed 
 breach of the contract itself, or as having been in the contempla-
 
 ACTIONS AGAINST TELEGRAPH COMPANIES. 571 
 
 tion of both parties, when they made the contract, as a probable 
 result of a breach of it. 
 
 In any view of the ease, therefore, it was rightly ruled by the 
 Circuit Court that the plaintiff could recover in this action no 
 more than the sum which he had paid for sending the message. 
 
 Judgment affirmed. 
 Mr. Chief Justice Fuller, and Mr. Justice HARLiVN, dis- 
 isented. 
 
 McPEEK V. WESTERN UNION TELEGRAPH CO. 
 Iowa, 1899. 107 Iowa, 356. 
 
 Ladd, J. September 20, 1896, after mortally wounding John 
 Finley, the marshal of Morning Sun, Orman McPherson fled. A 
 few days later the plaintiff saw his wife, who promised to assist 
 him in procuring the arrest of her husband. McPeek obtained 
 McPherson 's pension papers from Keithsburg, 111., for her; and 
 she advised him (being in secret correspondence under an as- 
 sumed name) of having these, and he came to her room at the 
 hotel at Morning Sun, where she was employed as cook, October 
 22, 1896, at about 10 o'clock p. m. (having so arranged earlier in 
 the evening), and there remained until between 3 and 4 o'clock 
 the following morning. Before coming in, he gave up his re- 
 volvers, and she placed them in a bureau, where they remained 
 during his stay. She had agreed to write to McPeek when she 
 expected her husband, but, if he came unexpectedly, then to tele- 
 graph him. At about 7 o'clock p. m. of the 22d, she delivered to 
 the defendant's agent at Morning Sun this telegram: "E. E. 
 McPeek, Winfield: Come on first train. Answer. M. E. M. — " 
 telling him she wanted it "sent right away and delivered and 
 wanted an answer." * * * 
 
 Ridgway, the agent at Winfield, usually closed his ofKce at 6 
 o'clock, but was ordinarily at the station at about 9 o'clock. 
 He received the message at 9: 15 o'clock p. m., and carried it to 
 the plaintiff's house, reaching there at about 9:30. After re- 
 peatedly rapping on the door, and being unable to arouse anyone, 
 as he says, he placed the message over the door knob, with the 
 end of the envelope between the door and the jamb, where it 
 was found the next day at between 9 and 10 o'clock a. m. It 
 seems the agent supposed the family was away from home and
 
 572 ACTIONS AtJAINST TELEGRAPH COMPANIES. 
 
 would find it upon their return. * * * The only train 
 * * * leaving Winfiold for JNlorning Sun * * * \qH the 
 former place at 6 o'clock a. ni. McPeek told Ridgway he was 
 making an eft'ort to capture IMcPherson, and might get a telegram 
 fron. 31orning Sun concerning the matter. * * * 
 
 On the 21st day of October, 1896, the governor of Iowa, by 
 proclamation, offered a reward of three hundred dollars for the 
 arrest of ^IcPlierson. and his delivery to the proper authorities. 
 The plaintiff's action is based on the allegation that he lost this 
 reward through the negligence of the defendant in not delivering 
 the message on the evening of October 22d. * * * 
 
 III. It is insisted that the damages were remote, and not such 
 as either party might have contemplated from the wording of 
 the message. But extrinsic evidence was admissible to show that 
 defendant had notice of the importance of the message. Cable 
 Co. V. Lathrop, 131 111. 575 (23 N. E. 583), Telegraph Co. v. 
 Edsall, 74 Tex. 329. The appellant argues the case on the theory 
 that the action of plaintiff is for the breach of contract. He 
 made no contract with the defendant. This is conceded by ap- 
 pellant in its opening argument, and denied in its reply. The 
 first impression was undoubtedly the correct one. The contract 
 was with the sender of the message, and whether recovery might 
 be had for breach thereof, because made for plaintiff's benefit, 
 we need not determine. This action is based on the negligence 
 of the defendant in the performance of a duty in its public 
 capacity as a common carrier of messages. In all such actions, 
 soimding in tort, the injured party is not limited to damages 
 which might reasonably have been within the contemplation of 
 the parties, but recovery may be had "for all the injurious results 
 which flow therefrom, by ordinary natural sequence, without the 
 interposition of any other negligent act or overpowering force." 
 Mentzer v. Telegraph Co., 93 Iowa, 757. [Here the learned jus- 
 tice cites many authorities.] 
 
 There was evidence tending to show that immediate delivery 
 was requested and that the agent at Winfield knew that McPeek 
 was expecting a message, that it would relate to the capture of 
 McPherson, and that prompt delivery was required. If so, while 
 he may not have kno^Ti of the reward being offered, he may well 
 be credited vnth understanding that McPeek was putting forth 
 his efforts to accomplish a purpose from which he anticipated 
 some benefit to accrue to himself. The law authorizes the offer-
 
 ACTIONS AGAINST TELEGRAPH COMPANIES. 573 
 
 ing of such rewards, and it is not too strict a rule to hold the de- 
 fendant responsible for such losses as may reasonably be an- 
 ticipated to follow its negligence, whether informed definitely 
 what these may be or not. It was charged with knowledge that 
 such a reward might be made, and it might reasonabl}^ reckon on 
 such a contingency, in omitting its duty with reference to such a 
 message. Nor was the plaintiff advised that the reward had 
 actually been offered on October 22d, though he understood it 
 would be, and was acting to secure this and others proposed by 
 local officers. That the omission of the defendant caused greater 
 loss than he then supposed, does not affect its liability, or his 
 right of recovery. Certainly the loss of the reward was the 
 direct result of the failure to arrest and deliver McPherson 
 to the proper authorities, for this was the very condition of its 
 payment. 
 
 IV. The burden was on the plaintiff to prove that in all reason- 
 able probability the loss resulted from the negligence of the de- 
 fendant. Hendershott v. Telegraph Co., 106 Iowa, 529. Had 
 the plaintiff proceeded by team to IMorning Sun, with the as- 
 sistance of the two constables and another, there seems no good 
 reason to doubt that he would have arrested IMcPherson, who had 
 been disarmed by his wife. This is not absolutely certain, for 
 many contingencies may be supposed, which could have inter- 
 vened. While these might well be considered, they do not war- 
 rant us in saying that these men would not have accomplished 
 that which has often been done before, and which is ordinarily 
 done by officers in like situation. "Whether they would in all 
 probability have succeeded, was for the jury to determine. 
 
 V. It is suggested that as the train did not go until 6 : 06 in 
 the morning, even if the message had been delivered the plaintiff 
 could not have reached Morning Sun in time to make the arrest. 
 But the plaintiff had made every arrangement to go by team. 
 The message was understood by the plaintiff to require imme- 
 diate attention owing to his agreement with Mrs. McPherson. 
 « * * 
 
 We discern no error in the record, and the judgment must be 
 affirmed.
 
 574 ACTIONS AGAINST TELEGRAPH COMPANIES. 
 
 WESTERN UNION TELEGRAPH CO. v. NYE. 
 
 Nebraska. 1903. 70 Neb. 251. 
 
 Albert, C. This action was brought by the Nye & Schneider 
 Company against the Western Union Telegraph Company to re- 
 cover damages sustained by the former by reason of the negli- 
 gent dela}^ of the latter in transmitting a telegram. It sufficiently 
 appears from the pleadings and the evidence that the plaintiff, 
 whose home office is at Fremont, had a branch office at More- 
 head, Iowa, where it was engaged in the grain business. On the 
 13th day of June, 1901, plaintitf 's agent in charge of the business 
 at the latter place had a cash offer of 35 cents per bushel for 
 5,000 bushels of corn, Avhich the plaintiff had on hand at that 
 point, which was to stand open for acceptance until 7 : 30 p. m. 
 of that day. The agent communicated the offer to the plaintiff at 
 its home office. On receipt of such communication, the plaintiff, 
 on the same day, delivered a message to the defendant, for trans- 
 mission to the agent of the former at Morehead, Iowa, directing 
 him to accept the offer. Had the defendant used due diligence 
 in the transmission of the message, it would have reached the 
 agent in time to enable him to take advantage of the offer and 
 close the sale before the time for which the offer was to hold good 
 expired. But by reason of the negligent delay in the transmis- 
 sion, it did not reach him until after 7 :30 of that day, in con- 
 sequence whereof the plaintiff failed to make the sale. Had the 
 offer been accepted within the time fixed, the party making the 
 offer would have paid the price in cash, and the corn would have 
 been delivered to him at Morehead. The market value of the 
 corn on that day, and for sometime thereafter, was 32 cents per 
 bushel. Afterward the price advanced, so that, between the 24th 
 day of June and the 5th day of November following, the plaintiff 
 disposed of the corn at retail at a higher price than that specified 
 in the offer hereinbefore mentioned. A trial to the court without 
 a jury resulted in a finding for the plaintiff ; the court adopting 
 as the measure of damages the dift'erence between the price offered 
 for the com on the 13th day of June, 1901, and its market value 
 at IMorehead on that day, and gave judgment accordingly. The 
 defendant brings error. 
 
 The defendant contends that the measure of damages adopted 
 by the trial court is erroneous, as applied to the facts in this 
 ease, because the plaintiff, having eventually sold the com at a
 
 ACTIONS AGAINST TELEGRAPH COMPANIES. 575 
 
 higher price than that accepted by the message in question 
 suffered no loss, and therefore sustained no actual damages, by 
 reason of the delay in the delivery of the message. At first sight 
 this contention appears reasonable, but we do not believe it will 
 bear analysis. The action is one for breach of contract, and the 
 breach relied upon is the failure of the defendant to transmit 
 and deliver the message within what, under all the circumstances, 
 would have been a reasonable time. In such cases the general 
 rule is that, so far as it can be done by money, the injured party 
 is to be placed in the same situation in which a performance of 
 the contract would have placed him. But it would be impossible 
 to follow the labja-inth of remote results and consequences of a 
 breach of contract, and determine either the ultimate situation 
 of the party as affected thereby, or what such situation would 
 have been, had the contract been performed. The law, there- 
 fore, takes into account only approximate results, and disregards 
 such as are remote, or are the product of intervening or inde- 
 pendent causes. Hence the situation of the injured party which 
 forms the basis of the comparison must be his situation when the 
 breach of contract occurred, and before remote or independent 
 causes had intervened to change it. His situation after that 
 time can never be material as an ultimate fact in the case, be- 
 cause, after the intervention of such causes, it can never be known 
 with f!ny reasonable degree of certainty to what extent it is due 
 to causes only remotely connected with the breach of contract, 
 or wholly independent of it. In the present case, although it is 
 questioned by the defendant, we think the evidence is ample to 
 sustain a finding that the delivery of the corn and the payment 
 of price would have followed immediately upon the delivery of 
 the message, had it been delivered in due time. Hence, upon the 
 failure to deliver the message, the plaintiff has 5,000 bushels of 
 com, which, instead of being worth $1,750, as it would have been, 
 had the message been duly delivered, was worth only $1,600. 
 In other words, the plaintiff's situation, upon the defendant's 
 failure to deliver the message, and before any remote or inde- 
 pendent causes had intervened to change it, was such that it 
 would have required $150 to make what it would have been, had 
 the message been delivered. The subsequent rise in the market, 
 and sale of the com on such market, are no more proximate re- 
 sults of the breach of contract or the contractual relations of the 
 parties than a subsequent decline in the market, and sale of the
 
 576 ACTIONS AGAINST TEIjEGRAPII COMPANIES. 
 
 corn at a loss, would have been. The same principle that would 
 have relieved the defendant from increased liability, had the 
 market declined, excludes it from participation in the profits 
 resulting from its advances. In neither case would it be possible 
 to determine to what extent the result was due to the interven- 
 tion of remote or independent causes. 
 
 Besides, as a matter of pure justice between the parties, we are 
 satisfied that the rule adopted by the trial court is right. Had 
 the plaintiff, immediately upon the failure to deliver the message, 
 sold the corn at the then market price, the measure of damages, 
 in the absence of special circumstances, Avould have undoubtedly 
 been the difference between such price and what the plaintiff 
 would have received for it had the message been delivered in due 
 time. Every hour it held the corn after the cause of action arose 
 was at is own risk, because it will not be claimed that the damages 
 recoverable would have been increased by the loss or destruction 
 of the corn or its decline in price after that time. Those are 
 risks incident to the business of the merchant, and w^hich he takes 
 into account in estimating his profits and deciding upon a cause 
 of action. Holding the corn for a better market also involved 
 interest on the capital invested, storage, the negotiations of 
 another sale, and other outlays, to say nothing of the foresight 
 and energy necessary to conduct the venture to a successful issue. 
 Is there any good reason why the defendant, who risked nothing, 
 invested nothing, and did nothing in the venture, should be per- 
 mitted to share in the profits? AVe think not. We are aware 
 that a different conclusion was reached in Houston E. & Tel. Co. 
 V. Davids-on (Tex. Civ. App.), cited by defendant; but it is not 
 supported by any line of reasoning, nor is it entirely clear that 
 the point was necessarily involved in the case. But however 
 that may be, it does not commend itself to us as a sound rule of 
 law, and we must therefore decline to follow it. The defendant 
 also cites Michalwait v. AVestern Union Tel. Co. (Iowa) 84 N. W. 
 ]038. In that case a buyer delivered a message to the defendant, 
 a telegraph company, for transmission to the plaintiff, which 
 contained an offer to pay 20yo cents per bushel for corn. Through 
 a mistake of the defendant, the message, when delivered to the 
 plaintiff, read 2114 cents per bushel. On receipt of the message 
 the plaintiff went into the market and filled the order, paying 
 21 cents per bushel for a part of the corn, and 20 cents for the 
 balance. The purchaser refused to pay more than 201/2 cents
 
 xVCTIONS AGAINST TELEGRAPH COMPANIES. 577 
 
 per bushel for the corn, and it was delivered to him at that price. 
 In passing on the case, Waterman, J., said: "Plaintiffs claim 
 a loss of profits. If this were a case where loss of profits might 
 be considered, still we think they could not recover. The mis- 
 take in the message caused them no loss of profits, for, if it had 
 been correctly transmitted, they would have been in the same 
 situation they now are. They obtain from Russell the exact 
 price fixed in his message, and as it should have been sent. There 
 is no showing that the work of procuring the corn was worth 
 more than the margin of profit received." We think that case 
 is clearly distinguishable from the one at bar, and is not in 
 point. In that case there was nothing to show that the plaintiffs 
 would have been in any better position, had the message been 
 correctly transmitted. It does not appear that they paid any 
 more for the com to fill the order by reason of the mistake, nor 
 that by reason of the mistake they did anything they would not 
 have done, had it not occurred. Hibbard v. Western Union Tel. 
 Co., 33 Wis. 558, is another case cited by the defendant. The 
 reasoning in that case seems to us to tell against the defendant, 
 and to support the conclusion heretofore reached by us in the 
 present case. The same may be said of Western Union Tel. 
 Co. V. Hall, 124 U. S. 144, and Squire v. Western Union Tel. Co., 
 98 Mass. 232. 
 
 But the defendant further contends that the plaintiff did not 
 learn of the failure of the sale by reason of the non-delivery 
 of the message until some three days more thereafter, and that, 
 under such circumstances, it was necessary for the plaintiff to 
 show the value of the corn at the time it learned that the sale 
 had thus failed. In support of this contention the Texas case 
 above referred to is again cited. We do not deem it necessary 
 in this case to determine whether the rule hereinbefore approved 
 would be affected by such circumstances, because, were we to 
 adopt the modification suggested, the result in this case would 
 be precisely the same. The plaintiff is a corporation, and acts 
 only through its agents. Its agent at Morehead, through whom 
 the negotiations for the proposed sale were conducted, the moment 
 the message was not delivered within the required time, knew 
 that the sale had failed. What he knew, the plaintiff knew. 
 Hence the failure of the salo, and knowledge on the part of the 
 plaintiff that it had failed, were contemporaneous, and the mar- 
 
 37
 
 578 ACTIONS AGAINST TELEGRAPH COMPANIES. 
 
 kot price of the com when the sale failed, and when the plaintiflE 
 learned that it had failed, would be the same. 
 
 It is therefore rccoiuniendcd that the judgment of the district 
 court be affirmed. 
 
 Per Curiam. For the reasons stated in the foregoing opinion, 
 the judgment of the district court is affirmed. 
 
 DuFFiE, C. (concurring). I fully concur in the opinion of 
 Judge Albert, heretofore filed in this ease. The facts are 
 sufficiently set forth in his oi)inion. It is earnestly insisted by 
 the plaintiff in error that, because the Nye-Schneider Company 
 finally succeeded in disposing of its corn at an advantage over 
 the offer made by the proposed purchaser, it was not damaged 
 by the failure of the defendant in error to transmit and deliver 
 the message accepting the offer. On the contrary, it is said that 
 the Nye-Schneider Company profited by the neglect of the 
 plaintiff in error, and was benefited thereby. It has also been 
 suggested that, before the defendant in error could recover, it 
 should have disposed of the corn on the market at the best price 
 which could be obtained, and that, until such sale was made, 
 no cause of action accrued to it. I am not disposed to accept 
 these views. Had the message accepting the offer been promptly 
 delivered, a sale of the corn at a price IV2 cents above the market 
 value would have been consummated on the evening of June 13, 
 1901. A failure to deliver the message prevented the sale, and 
 the consequence was that the defendant in error had on hand 
 5,000 bushels of corn, which would otherwise have been dis- 
 posed of at a profit of $75 above the market price at that date. 
 It is clear, therefore, that on the evening of June 13th it had 
 been damaged to the extent of $75. A right of action accrued 
 to it immediately for this amount. We know of no principle 
 which would deprive it of this right of action, or which would 
 give the plaintiff in error the benefit of a rise in the com market, , 
 or allow such advance to be shown in mitigation of damages. The 
 rule is aptly stated by Sutherland in his work on Damages 
 (volume 1, p. 242), where it is said : "There can be no abatement 
 of damages on the principle of partial compensation received for 
 the injury, where it comes from a collateral source, wholly inde- 
 pendent of the defendant, and is as to him res inter alios acta." 
 There appears to be a dearth of authorities on the exact question 
 involved, but, in my opinion, the same principle and the same 
 measure of damage should be applied that obtain in the case of a
 
 ACTIONS AGAINST TELEGRAPH COMPANIES. 579 
 
 purchaser of personal property who refuses to accept the goods 
 purchased at the time fixed for the delivery. In such case the 
 authorities all agree that a right of action for damges arises in 
 favor of the vendor for the injury or loss he has sustained by 
 reason of the breach of the contract, and this is ordinarily or 
 generally the difference between the market value of the property 
 at the time and place of delivery and the price fixed by the con- 
 tract. Funke v. Allen, 54 Neb. 407; Lincoln Shoe Mfg. Co. v. 
 Sheldon, 44 Neb. 279. It is true that the vendor, on refusal of 
 the vendee to accept, has a right, if he so elects, to resell the 
 goods; but this seems to be a method only of ascertaining their 
 market value, and the extent of the damages. Sutherland, in his 
 work, has given the rule established by the decided cases, as fol- 
 lows : ' ' An executory agreement which requires a subsequent 
 acceptance of the property by the buyer to consummate the sale 
 does not become a complete bargain and sale, so as to vest the 
 title in him, if he refuses to take the goods. In such case the 
 vendor is entitled to recover damages only to the extent of his 
 actual injury from the failure of the vendee to fulfill his con- 
 tract, which is ordinarily the difference between the contract 
 price and the market value at the time and place of the breach, 
 with interest. This may be ascertained and fixed by a resale 
 within a reasonable time, and after notice to the vendee of the 
 vendor's intention to resell, taking all proper measures to secure 
 as fair and favorable a sale as possible. Such resale is made 
 on the theory that the property is that of the vendee, retained by 
 the vendor as a means of realizing the contract price. He acts as 
 the agent of the vendee, and deducts from the proceeds all the 
 expenses incurred. After notice of the vendor's intention to re- 
 sell, no notice of the time and place of the resale is required to be 
 given, but it must be made according to the usage of trade. If 
 the net proceeds of the trade are less than the contract price, he 
 may recover, by action on the contract, the deficiency." Benja- 
 min, Sales, § 758, says: "When the vendor has not transferred 
 to the buyer the property in the goods which are the subject of 
 the contract, as has been explained in book 2, as where the agree- 
 ment is for the sale of goods not specific, or of specific goods 
 which are not in a deliverable state, or which are to be weighed 
 or measured before delivery, the breach by the buyer of his 
 promise to accept and pay can only nffect the vendor by way of 
 damages. The goods are still his. He may resell or not, at his
 
 5S0 ACTIONS AGAINST TELEGRAPH COMPANIES. 
 
 pleasure. But his only at-tion aj^cainst the buyer is for damages 
 for nouac'ceptance. He ean, in general, only recover the damage 
 that he has sustained, not the full price of the goods. The law, 
 with the reason for it, was thus stated by Tindal, C. J., in de- 
 livering the opinion of the Exchequer Chamber in Barrow v. 
 Arnaud: 'Where a contract to deliver goods at a certain price 
 is broken, the proper measure of damages, in general, is the 
 difference between the contract price and the market price of 
 such goods at the time when the contract is broken, because the 
 purchaser, having the money in his hands, may go into the 
 market and buy. So, if a contract to accept and pay for goods 
 is broken, the same rule may be properly applied, for the seller 
 may take his goods into the market and obtain the current price 
 for them.' " It is conceded that, by keeping the corn, defendant 
 in error kept it at its o^^^l risk. In other words, had the price 
 of corn gone down in the market, the Nye-Schneider Company 
 would have had to bear the loss, whatever it might be, and could 
 recover from the plaintiff in error only the difference between 
 the price offered and the fair market value of the com, giving 
 it a reasonable time within which to dispose of the same. The 
 corn being kept at defendant's o-\vn risk entitles it certainly to 
 any advance in the price w^hile so held. The plaintiff in error 
 cannot claim the benefit arising solely from a risk assumed by 
 defendant in error, and for which plaintiff in error could in 
 no wise and under no circumstances be made liable. This prin- 
 ciple is fairly established in Bridgford v. Crocker, 60 N. Y. 627, 
 where it is said: "Upon the failure of the vendee to perform 
 an executory contract for the purchase of cattle, the vendor 
 may elect to tender the property and sue for the contract price, 
 or to retain the property as his own and recover as his damages 
 for the breach the difference between the market value at the 
 time the vendee was to receive delivery and the contract price. 
 If he elect the latter course, and the property subsequently rises 
 in value in the market, the vendee cannot avail himself thereof, 
 but the vendor is entitled to the benefit." A sale of the corn at 
 an advance over the market price was lost through the negligence 
 of the plaintiff in error. Had the defendant in error, on learn- 
 ing of this neglect, offered the corn on the market, and sold it 
 for the market price, no one disputes the liability of plaintiff in 
 error for the difference between the price so obtained and the 
 offer made by the proposed purchaser ; but, because the defendant
 
 ACTIONS AGAINST TELEGRAPH COMPANIES. 581 
 
 in error exercised its right to hold the corn at its own risk, the 
 telegraph company claims the benefit of the advance in value 
 which finally obtained. In other words, it seeks to take advantage 
 of a venture in which it took no part, and of which it assumed 
 no risk — the benefit of a hazard from which it could not be in- 
 jured. The risk was that of the defendant in error, and the ad- 
 vantage arising therefrom belongs to it alone. 
 
 Exemplary damages are allowed, when the defendant fails to deliver 
 a death message, when the evidence shows wanton and reckless disre- 
 gard of the rights of plaintiff. W. U, T. Co. v. Gilstrap, 77 Kan. 191. 
 
 When the plaintiff sends a telegram to his brother reciuesting a 
 ticket to be sent by telegraph, and when the agent was informed that 
 the plaintiff was without means to "lay over." the defendant is liable 
 for his suffering from cold and hunger, in sleeping out of doors, and 
 in attempting to reach his home 400 miles distant, owing to the non- 
 delivery of the telegram. Barnes v. W. U. Tel. Co. 27 Nev. 438. 
 
 To entitle a first cousin to damages for mental suffering from 
 failure to attend the funeral, such suffering caused by negligence in 
 delivering a telegram, special damages must be specifically alleged, 
 and the telegraph company must have had special notice of the cir- 
 cumstances. Johnson v. W. U. Tel. Co., 81 S. C. 235. But in case of a 
 son. prevented from attending the burial of his mother, such actual 
 damages as result naturally from the negligence may be recovered 
 under a general averment of damages. So Relle v. W. U. Tel. Co., 
 55 Tex. 308. 
 
 No damages allowed for physical pain endured during the interval 
 between the time when the telegram summoning a physician, should 
 have been delivered, and the time when it was actually delivered, 
 owing to the negligence of the telegraph company. Seifert v. W. U. 
 Tel. Co., 129 Ga. 121. See also Squire v. W. U. Tel. Co., 98 Mass. 2.32 ; 
 Barker v. W. U. Tel. Co., 134 Wis. 147; W, U. Tel. Co. v. Hall. 124 
 U. S. 444 ; W. U. Tel. Co. v. Rogers, 68 Miss. 748. 
 
 Where a telegram announcing the death of plaintiff's grandmother 
 was not delivered, damages for mental anguish were not allowed 
 where there was no pecuniary or bodily injury. W. U. Tel. Co. v. 
 Ferguson, 157 Ind. 37. 
 
 If the message is a cipher message and its importance is not dis- 
 closed, the company's liability is limited to the amount paid for its 
 transmission. Fergusson v. Anglo-American Tel. Co., 178 Pa. 377, See, 
 too, W. U. Tel. Co. V. Hall, 124 U. S. 444.
 
 IX. ACTIONS UNDER "CIVIL DAMAGE 
 
 ACT." 
 
 MERRINANE v. jMILLER. 
 
 Michigan, 1907. 148 Mich. 412. 
 
 Blair, J. Plaintiff, the wife of John JNIerrinane, brought this 
 action, in accordance with the provisions of the civil damage 
 act, to recover damages of defendant, a saloon keeper, and his 
 different bondsmen for three successive years, occasioned by sales 
 of liquor to her husband. Plaintiff and her husband, then re- 
 cently married moved to Grass Lake, in Jackson county, where 
 defendant was conducting his business, in November, 1902. They 
 were married in June, 1901, and lived at Chelsea till their re- 
 moval to Grass Lake. Plaintiff's husband was a telegrapher in 
 the employ of the Michigan Central Railroad Company, earning 
 $50 per month, and at the time he went to Grass Lake was a 
 sober, industrious man of excellent habits, and had $500 of his 
 earnings in bank. In the spring, after going to Grass Lake, he 
 began to drink moderately at defendant's saloon, of which 
 plaintiff's brother was bartender, and prior to December, 1903, 
 occasionally got intoxicated. On December 22d he was notified 
 of his discharge, as follows: "Dear Sir: I enclose you time 
 ticket for $27.44 covering 17 days' service in December, and 
 beg to advise you that by direction of Mr. D. S. Sutherland, 
 Div. Supt., your services are dispensed with, having proven un- 
 satisfactory. Yours truly, E. H. Millinghok, Supt. Tel." After 
 his discharge he drank heavily and soon became a common 
 drunkard. They paid $7 per month house rent and from $25 
 to $30 per month for the support of the family out of the money 
 in the bank until March, 1905, when the money was all gone, 
 and plaintiff has since that time supported herself without as- 
 sistance from her husband. Merrinane was night operator, his 
 hours of duty being from 7 p. m. to 7 a. m. Plaintiff testified : 
 ' ' I knew he slept while he was on duty. He always had a student 
 that knew the call, and they would call him when they needed 
 
 582
 
 ACTIONS UNDER '' CIVIL DAMAGE ACT." 583 
 
 him. He was a fellow that couldn't sleep daytimes very much. 
 He would try. I would often see him go to bed five or six times 
 in one day, but he never could get used to sleeping daytimes, 
 and he always had a student, and it didn 't make much difference 
 because they could arouse him when they needed him. * * * 
 Did not ask jNIiller not to sell her husband. Witness never per- 
 sonally forbid ]Miller from selling her husband liquor. Did once 
 through her brother, that was in March, 1905. Up to IMarch, 
 1905, witness never forbid either the bartender or Miller either 
 verbally or in writing not to sell her husband liquor; heard her 
 husband call for a drink. She made no objection ; said nothing 
 to IMiller at that time, although she had the opportunity." De- 
 fendant was the only witness in his behalf and testified, in sub- 
 stance, as follows: "He patronized my business more or less 
 during the spring of 1903. To m.y knowledge I never saw him 
 intoxicated during that time. I never sold him when he was in- 
 toxicated; don't know whether my bartender sold him or not. 
 * * * "When a man is intoxicated, in my judgment, he would 
 be so he couldn't help himself. To be intoxicated would be un- 
 able to help himself, would lay in a stupor, and would not be 
 able to go home. A man who is able to go home, though he reels 
 and takes up the whole sidewalk, I should not judge to be intox- 
 icated." Plaintiff's counsel presented no requests to charge. 
 The jury returned a verdict in favor of plaintiff and against all 
 of the defendants for the sum of $600. Plaintiff made a motion 
 for a new trial on the ground that the verdict was against the 
 law and the evidence and the damages awarded grossly inade- 
 quate. The motion was denied, reasons therefor filed, exception 
 taken, and error assigned thereon. Plaintiff brings the record 
 to this court for review upon writ of error. 
 
 In view of the verdict in plaintiff's favor against all of the 
 defendants, the only assignments of error which require consid- 
 eration are those based upon the denial of the motion for a new 
 trial, and upon such rulings and instructions of the court as may 
 have affected the amount of the damages. The seventh, eighth, 
 and thirteenth assignments of error allege error in instructing 
 the jury that the plaintiff could only complain of unlawful sales 
 which were unlawful because made to an intoxicated person or 
 one in the habit of getting intoxicated. "I do not mean by un- 
 lawful sales, sales made after hours at night or before lawful 
 hours begin in the morning. We are not undertaking to punish
 
 584 ACTIONS UNDER '' CIVIL DAMAGE ACT." 
 
 ]\Ir. ]\Iiller because he kept open too late at night or opened up 
 too early in the morning, or was open on Sunday or Christmas, 
 or any other holiday. But you have a right to consider what 
 sales he made and when he made them, if they were made to Mr. 
 Merrinane, simply to enable you to imderstand in what way Mr. 
 Miller was dealing with Mr. Merrinane; and, if he sold him 
 liquors during the time he was a man in the habit of getting in- 
 toxicated or at times when he was intoxicated, he is liable, and 
 it is sufficient whether he sold them out of hours or in hours. 
 But, as I say, you may consider whether they were out of hours 
 simply in connection with determining any wantonness, or reck- 
 lessness or carelessness in the way he was dealing with ]\Ir. Merri- 
 nane, and for no other purpose." This question arose during 
 the progress of the trial, and plaintiff's counsel stated his posi- 
 tion as follows : "If the sales the first year were legal at the time 
 he was being made a drunkard, the bondsmen for that year are 
 not liable. * * * jf i\^q ggies are illegal and they tend to 
 create the habit which makes him a drunkard, they are liable." 
 It was held by this court in Peacock v. Oaks, 85 Mich. 578, that 
 there could be no recovery under the statute for injuries caused 
 by the sale or furnishing of liquor to another, unless such sale or 
 furnishing is in violation of law. Whether this broad statement 
 of the law may not require some qualification it is unnecessary 
 to determine in this case. Plaintiff's counsel conceded that 
 plaintiff could only complain of illegal sales, but contended that 
 among such sales were included sales after hours or on Sundays, 
 etc. We think the instruction properly limited the effect of such 
 sales. 
 
 The ninth assignment of error complains of an instruction 
 that plaintiff was not seeking to recover any part of the money 
 that her husband spent for liquor. There is no specific claim 
 for such an item of damages in the declaration, nor was any evi- 
 dence given from which the jury could determine the amount of 
 money spent for liquor by Merrinane. 
 
 The tenth assignment of error is as follows : ' ' The court erred 
 in charging the jury, as follows: 'But, if the amount she would 
 receive had only been diminished and she had not been entirely 
 deprived of it, then you would consider the extent of the diminu- 
 tion, if any, of her support due to those causes.' " It is con- 
 tended that the testimony showed a complete and not a partial 
 loss, and the instruction was therefore erroneous. The conten-
 
 ACTIONS UNDER ''CIVIL DAMAGE ACT." 585 
 
 tion is not sustained by the record. There was only a partial loss 
 during the first year at least. 
 
 The eleventh assignment of error is as follows: "The court 
 erred in charging the jury as follows: 'Now, the expectancy 
 tables have been sho%\Ti here in evidence. Her age is 29 and his 
 age 33. Her expectancy is 36 2-10 years and his expectancy 
 33 21-100. These are simply given to you as aids, not as absolute 
 proof that he would live 33 years, or that she would live 36 
 years. ' ' ' The court correctly stated the general rule ; and, if 
 plaintiff's counsel claimed that the facts of this case took it out 
 of the general rule, he should have brought such contention to 
 the attention of the court. Davis v. :\I. C. R. R. (Mich.) Ill 
 N. W. 76. 
 
 The serious question in the case is presented by the assignment 
 of error upon the denial of the motion for a new trial. Are the 
 damages so clearly inadequate, as claimed by plaintiff's counsel, 
 that the trial judge ought to have awarded a new trial? The 
 facts establishing plaintiff's cause of action, as presented by this 
 record, are practically imdisputed, and plaintiff would have been 
 entitled, upon request therefor, to an instruction that she was 
 entitled to a verdict, and the only question for the jury was as 
 to the amount of the damages she had suffered. The undisputed 
 facts presented by this record show that, when plaintiff and her 
 husband moved to Grass Lake, he was a temperate, industrious 
 man, of good standing in his vocation, earning $50 a month and 
 contributing to his wife's support from $25 to $30 per month. 
 A few months after coming to Grass Lake, he began drinking at 
 defendant's saloon, and from that time on he gradually be- 
 came intemperate until his discharge in December, 1903. "At 
 the time of his discharge, he was there nearly all the time." 
 After his discharge his descent was rapid until he became a 
 common drunkard, and was no longer capable of furnishing any 
 support to plaintiff. The defendant Miller and his employes 
 began and completed IVIerrinane's ruin. So far as this record 
 discloses, they had no helpers. As often as he requested, after 
 legal hours, on Sundays, or legal holidays, regardless of the law 
 and his wife, so long as he was able to stand before the bar, 
 they dealt out the liquor to him, and only desisted when "he lay 
 in a stupor, and would not be able to go home." "IMiller sold 
 him liquor while in that condition any time he wanted it if he 
 could only stand up and drink. * * * Witness [the bar-
 
 586 ACTIONS UNDER *' CIVIL DAMAGE ACT." 
 
 teuder] told ^liller if ho kept selling Merrinane liquoiir it would 
 make him trouble. ^Biller said he would not sell it to him, but 
 the next day he would get it just the same. Miller said it was 
 a good thing for witness's sister to get a divorce from JNIerrinane. 
 Miller said that it was the way his sister's husband went. lie 
 either died or else she got a divorce. Miller said he thought 
 Merrinane was so far gone he would never stop drinking. ' ' None 
 of these statements were denied by ]\Iiller, and so clear a right 
 to exemplary damages is presented by this record that a peremp- 
 tory instruction to that effect would have been justified. The 
 case is unique, in that the facts which support the cause of ac- 
 tion are undisputed and no attempt is made to soften the harsh 
 features of the ease or mitigate the damages. On the contrary, 
 we have the opinion of the principal defendant that the damage 
 was complete ; that ' ' INIerrinane was so far gone he would never 
 stop drinking." Upon any reasonable theory of the facts dis- 
 closed by this record, we cannot regard the amount awarded 
 plaintiff by the verdict of the jury as an adequate measure of 
 her damages, and we think the trial judge erred in denying the 
 motion for a new trial. 
 
 The judgment is reversed, and a new trial granted. 
 
 BECKERLE v. BRANDON. 
 
 Illinois, 1907. 229 111. 323. 
 
 This is an action on the case brought by John Brandon and 
 Sarah Brandon, appellees, in the circuit court of Jackson county, 
 under section 9 of the dramshop act (Hurd's Rev. St. 1904, c. 
 43), against George Beckerle, appellant, and one D. P. Willis, 
 for injury to their means of support occasioned by the death of 
 their son, John Brandon, Jr. A plea of the general issue was 
 filed by defendants, and the trial resulted in a verdict and judg- 
 ment for plaintiffs in the sum of $3,000. Defendants appeal. 
 The declaration, which contains but one count, charges: That 
 Beckerle conducted a dramshop in Murphysboro, Jackson 
 county, 111., in a certain building leased from one D. P. Willis; 
 that Willis knew for what purpose the building was leased ; that 
 on September 1, 1905, while conducting said business, said Beck- 
 erle sold and gave intoxicating liquors to plaintiffs' minor son, 
 causing his intoxication, and while so intoxicated, and in conse-
 
 ACTIONS UNDER '' CIVIL DAMAGE ACT." 587 
 
 quence thereof, he was struck and killed by a certain railroad 
 train; that during his lifetime their said son earned the sum of 
 $70 per month ; that they were entitled to his wages ; that he con- 
 tributed the same to their maintenance and support ; and that 
 by reason of his death they have been injured in their means of 
 support and deprived of the same. It appears from the record 
 that on August 31, 1905, Beckerle kept a saloon in the city of 
 Murphysboro in a building leased from D. P. "Willis, who was 
 the owner thereof. The deceased, who was a minor son of the 
 plaintiffs, 17 years of age and residing with them, was em- 
 ployed as a mule driver in a coal mine, earning the sum of $2.42 
 a day. It seems from the evidence that all of the money earned 
 by the son was by him paid over to his parents and used by them 
 in support of the family. In the early part of the evening of 
 August 31, 1905, Jolin Brandon, Jr., with several other boys, 
 went to the saloon of defendant Beckerle, where they remained 
 until midnight, drinking intoxicating liquors and playing cards. 
 The saloon closed at midnight, and by that time Brandon was 
 very much intoxicated. Liquor had been sold and served to 
 him in the saloon on that evening by both Beckerle and his bar- 
 keeper. He was perfectly sober when he entered Beckerle 's sa- 
 loon and had obtained liquor from no other place during the 
 night. As the saloon closed, one of Brandon's associates ob- 
 tained a pint of whisky from the barkeeper, and, with this com- 
 panion and another, Brandon started for Lit. Carbon, where all 
 three resided, on the opposite side of the Big ]Muddy river from 
 Murphysboro. To reach their homes they started to cross the 
 stream on the Illinois Central Railroad bridge, which spans 
 the river at that place. When about halfway across they stopped. 
 and each took a drink of whisky. They then sat down on the 
 bridge, and in a few minutes fell asleep. Between two and three 
 hours afterward, deceased, while still asleep on the bridge, was 
 struck by a passing train and received injuries from which he 
 died the following afternoon. It is urged by appellants as 
 groimds for reversal : First, the court erred in passing on in- 
 structions; second, the court erred in passing on objections to 
 evidence. 
 
 Scott, J. (after stating the facts as above). There is evidence 
 in the record which shows that the deceased was but 17 years of 
 age; that on the night of his death Beckerle, by himself or his 
 barkeeper, sold intoxicating liquor to the boy which caused his
 
 588 ACTIONS UNDER '' CIVIL DAMAGE ACT." 
 
 intoxication, and also sold him liquor of that nature after he 
 was so intoxicated ; that the appellees were injured in their 
 means of support in consequence of such intoxication ; and 
 that Willis rented the premises to Beckerle and knowingly per- 
 mitted the sale of intoxicating liquors therein. 
 
 The court gave plaintiffs' instruction No. 8, which advised the 
 jury that if they found for the plaintiffs, and found certain 
 alleged facts to be true, they might then return a verdict in- 
 cluding exemplary damages. This is said to have been wrong 
 so far as Willis, the owner of the property, is concerned, as 
 the evidence did not show any intentional wrongdoing, or any 
 reckless, malicious, wanton, or oppressive conduct on his part. 
 Section 9 of chapter 43, Hurd's Rev. St. 1905, gives a right of 
 action against the liquor seller under certain circumstances, 
 and provides that the OAvner of the building, in specified con- 
 tingencies, "shall be liable, severally or jointly, with the person 
 or persons selling or giving intoxicating liquors aforesaid, for 
 all damages sustained, and for exemplary damages." The lan- 
 guage just quoted received the consideration of this court in 
 Hackett v. Smelsley, 77 111. 109, and the reasoning of that opinion 
 warranted the circuit court in giving the instruction above re- 
 ferred to. 
 
 It is then urged that the court erred in not permitting the de- 
 fendants to show that the father and son visited and drank to- 
 gether at other saloons at other times. Inasmuch as the plaintiffs 
 were claiming vindictive damages, this evidence was competent. 
 Hackett v. Smelsley, supra. The fact that the wife sued jointly 
 with the husband did not warrant its exclusion. If the father 
 had on other occasions consented to the sale of intoxicating liquor 
 to his minor son, the jury had a right to take that fact into con- 
 sideration in determining whether vindictive damages should 
 be awarded, and in fixing the amount thereof in case they 
 awarded damages of that kind, no matter who sued. We think, 
 however, that this error does not warrant a reversal. It was 
 shown by the testimony of the father and others that on earlier 
 occasions at Beckerle 's bar the son had bought intoxicants, 
 the father consenting, and that the son had there, in the presence 
 of the father, partaken of the same without objection from the
 
 ACTIONS UNDER ''CIVIL DxVilAGE ACT." 589 
 
 latter. Under these circumstances the exclusion of the evidence 
 in question was not harmful. 
 
 The judgment of the Appellate Court will be affirmed. 
 
 Judgment affirmed. 
 
 The Civil Damage Act in Illinois declares that for wrongful death 
 through intoxication caused by drinking at defendant's saloon "the 
 jury may give such damages as they shall deem a fair and just com- 
 pensation." Where deceased was a counrmed inebriate, whose wife 
 had obtained a divorce, and whose next of kin was an adult self- 
 su^iporting brother, it was held, in North Chicago St. Railway Co. v. 
 Biddie, 40 N. E. Rep. 942, that only nominal damages could be re- 
 covered. 
 
 A saloon-keeper is liable under the civil damage law, when it is 
 shown that his agent sold liquor to a man, who, when intoxicated, 
 committed suicide, when said saloon-keeper had been notified by de- 
 cedent's wife not to sell liquor to her husband. Dice v. Sherberneau, 
 152 Mich. 601. See also Hilliker v. Farr, 149 Mich. 444.
 
 X. EMINENT DOMAIN. 
 SOUTH BUFFALO RAILWAY CO. v. KIRKOVER. 
 
 New York, 1903. 176 N. Y. 301. 
 
 Bartlett, J. The single question of law presented by this 
 appeal is as to the rule which should govern the commissioners 
 in awarding compensation for damages to the part of the tract 
 of land not taken. The counsel for the appellant railroad com- 
 pany insists that the proper rule as to damages, in addition to 
 those allowed for the land actually taken, may be thus stated: 
 ' ' Compensation is only allowed for such damages to the residue 
 as are caused by the severance from it of the part taken, and 
 (according to some of the cases) in estimating such damages 
 the grade or elevation of the railroad may be taken into account 
 as an element of the severance." The learned Appellate Divi- 
 sion in its opinion (83 N. Y. Supp. 613) states the rule to be that 
 the o\^Tier is entitled to recover the market value of the premises 
 actually taken by such railroad company, and also any damages 
 which resulted to the portion of his premises not taken, not only 
 by reason of the taking of the property acquired by the railroad 
 company, but also by reason of the use to which the property 
 was put by the company. It has been frequently pointed out 
 in judicial opinions that there has been great conflict of au- 
 thority in this state as to which of the rules above stated was 
 best calculated to do justice between the parties. The early 
 cases in the Supreme Court laid down the rule insisted upon 
 by appellant's counsel. Troy & Boston R. R. Co. v. Lee, 13 Barb. 
 169 ; Albany Northern R. R. Co. v. Lansing, 16 Barb. 69 ; Can- 
 andaigua & N. F. R. R. Co. v. Payne, Id. 273 ; Matter of Union 
 Village & Johnson ville R. R. Co., 53 Barb. 457 ; Black River & 
 M. R. R. Co. V. Barnard, 9 Hun, 104; Albany & Susquehanna R. 
 Co. V. Dayton, 10 Abb. Prae. (N. S.) 183. In Matter of Utica, 
 C. & S. Valley R. R. Co., 56 Barb. 456, the General Term held 
 that, when land is taken for the construction of a railroad with- 
 out the oonsent of an owmer, compensation to be paid therefor 
 is not limited to the actual value of the land taken and the de- 
 
 590
 
 EMINENT DOilAIN. 591 
 
 preciation of the residue of the lot from which it is taken by 
 such separation; but the owner is entitled to recover also for 
 any depreciation caused by the use to which it is appropriated. 
 This case was followed in Matter of N. Y. C. & H. R. R. R. Co., 
 15 Hun, 63, and Matter of N. Y., Lackawanna & Western Ry. 
 Co., 29 Hun, 1. The tendency of judicial decisions in the Su- 
 preme Court has been in favor of the more liberal rule adopted 
 by the court below in the case at bar. 
 
 Our attention has not been called to any case in this court 
 where the question was presented under the precise state of 
 facts disclosed by this record. In Henderson v. N. Y. C. R. R. 
 Co., 78 N. Y. 423, it was held that in a proceeding by a railroad 
 corporation to acquire a right to laj^ its tracks in a street or high- 
 way, the fee of which is in the owner of the adjoining land, the 
 proper compensation is : First. The full value of the land taken. 
 Second. The fair and adequate compensation for the injury the 
 owner has sustained and will sustain by the making of the rail- 
 road over liis land ; and for this purpose it is proper to ascertain 
 and determine the effect the conversion of the street into a rail- 
 road track will have upon the residue of the owoier's land. In 
 Newman v. Metropolitan Elevated Ry. Co., 118 N. Y. 618, Judge 
 Brown (page 623, 118 N. Y., and page 902, 23 N. E.) uses this 
 language: "The principle upon which compensation is to be 
 made to the owner of land taken by proceedings under the gen- 
 eral railroad law has been frequently considered by the courts 
 of this state, and the rule is now established, first, that such 
 owner is to receive the full value of the land taken ; and, second, 
 where a part only of land is taken, a fair and adequate com- 
 pensation for the injury to the residue sustained, or to be sus- 
 tained, by the construction and operation of a railroad." The 
 case in which the learned judge wrote was one of that large class 
 of elevated railway cases in the city of New York involving 
 injury to the easements of light, air, and access, no land being 
 taken. In Bohm v. Metropolitan Elevated Ry. Co., 129 N. Y. 
 576, Judge Peckham uses this language: "Then, as to the land 
 remaining, the question has boon to some extent mooted whether 
 the company should pay for the injury caused to such land by 
 the mere taking of the property, or whether, in case the pro- 
 posed use of the property taken should depreciate the value of 
 that which was not taken, such proposed use could be regarded, 
 and the depreciation arising therefrom be awarded as a part of
 
 592 EMINENT DOMAIN. 
 
 the consequential damages suffered from the taking. I think the 
 hitter is the true rule." The learned judge cites Henderson v. 
 N. Y. C. R. R. Co., 78 N. Y. 423, 433 ; Newman v. Metr. El. Ry. 
 Co., 118 N. Y. 618 ; Matter of Brooklyn Elevated R. R. Co., 55 
 Ilim, 165, 167, adding: "The question might be of great im- 
 portance Avhere there was an injury to the remaining land; but, 
 if there has been no injury, the inquiry as to the scope of the 
 liability for damages is not material." This was also an elevated 
 railroad case, involving only the injury to easements, and no 
 land was taken. It may be true, as stated by appellant's counsel, 
 that the precise question now presented has never been passed 
 upon by this court. It is, however, equally true that the deci- 
 sions in the Supreme Court and in this court tend strongly to 
 the recognition of the more liberal rule. 
 
 Considering the principle involved, unembarrassed by legal 
 decisions, it is reasonable that where the state, in the exercise of 
 the right of eminent domain, sees fit to take the property of the 
 citizen without his consent, paying therefor such damages as are 
 the result of the taking, the commissioners in the condemnation 
 proceedings should not only be permitted, but required, to 
 award the owner a sum that will fully indemnify him as to those 
 proximate and consequential damages flowing from this act of 
 sovereign power. The exercise of the right of eminent domain 
 is allowed upon the theory that, while the taking of property may 
 greatly inconvenience the individual owners affected, it is in 
 the interest and to promote the welfare of the general public. 
 This being so, there is no reason why the citizen whose land is 
 taken in invitum should suffer any financial loss that may be 
 prevented by awarding him proximate and consequential dam- 
 ages. It may well be that in every case there are remote damages 
 that the citizen, under the circumstances, must suffer. It not 
 infrequently happens that some extensive public improvement, 
 as the construction of a great reservoir in the vicinity of a 
 large city like New York, drives families from old homesteads 
 occupied for generations, and submerges the entire property. It 
 it apparent that in such cases no reasonable and lawful rule of 
 damages can fully compensate the landowners thus dispossessed. 
 In the ease at bar we have the ordinary and usual situation, 
 where the commissioners have reported in favor of paying the 
 owner the value of the land taken, and the damage to the bal- 
 ance by reason of the severance, and the use to which the prop-
 
 EMINENT DOMAIN. 593 
 
 erty taken is to be put by the railroad company. It is insisted 
 on behalf of the appellant that the commissioners erroneously 
 took into account as factors causing damage the use to which the 
 property was to be put ; that is, the operation thereon of a rail- 
 road, with its smoke, noise, dust and cinders, and the embank- 
 ment obstructions to the view. It is also argued that the elevated 
 railroad cases in the city of New York are in a special category, 
 and not applicable to the case at bar. In most of the elevated 
 railroad cases the city owned the fee of the street, the railroad 
 being erected therein by legislative grant, and the original ques- 
 tion presented to this court was whether the injury suffered by 
 the abutting o^vner to his easements of light, air, and access 
 created a cause of action against the railroad company. It was 
 held in the Story Case, 90 N. Y. 122, that these easements be- 
 came at once appurtenant to the land, forming an integral part 
 of the estate, and constituted property within the meaning of the 
 state Constitution (article 1, § 6), which prohibits the taking of 
 private property without just compensation. It therefore fol- 
 lowed that in the trial of the elevated railroad cases any evidence 
 was competent tending to show injury to these easements of 
 light, air, and access, as they were property, A similar rule of 
 evidence is applicable to the case before us. The difference be- 
 tween the elevated railroad cases and this case is not material. 
 In this case, as in the elevated railroad cases, one of the questions 
 is as to the damages inflicted upon land not taken, and the in- 
 quiry is, to what extent does the use of the railroad on the ad- 
 jacent property taken damage the property the fee of which re- 
 mains in the defendants? This property is the land and its 
 appurtenances. Any evidence tending to legally establish the 
 amount of this damage is competent. 
 
 It is to be assumed that the commissioners appointed from time 
 to time in condemnation proceedings are intelligent and com- 
 petent men, anxious to do exact justice between the parties. It 
 may be further assumed that they will judiciously discriminate 
 between farm lands in the country and property located within 
 the limits of a city, upon which dwellings and other structures 
 may be ultimately erected. In the one case, under existing con- 
 ditions, damages might be slight, while in the other very sub- 
 stantial. In this case it is pointed out in the opinion of the 
 learned Appellate Division that the average amount of dam- 
 ages to the property not taken was $94,435, as fixed by nine wit- 
 
 38
 
 594 EMINEJST DOMAIN. 
 
 nesses called by the defendants, but the commissioners found 
 the damages to be $41,500. Attention is also called to the fact 
 in the opinion that the average amount of damages fixed by- 
 plaintiff's witnesses was much less than the award. It appears 
 by the report of the commissioners that on a number of days, by 
 consent of counsel, they personally inspected the premises in- 
 volved in this proceeding. We are of opinion that the rule of 
 damages adopted by the commissioners was the proper one, 
 and that the record discloses no legal error. 
 
 The order and judgment appealed from should be affirmed, 
 with costs. 
 
 Parker, C. J., and O'Brien, Martin, Vann, Cullen, and 
 Werner, JJ. concur. 
 
 Order affirmed, with costs. 
 
 STEPHENS V. NEW YORK, 0. & W. RY. CO. 
 
 New York, 1903. 175 N. Y. 72. 
 
 The action was commenced in 1889 to restrain the operation 
 of the defendant's road upon tracks opposite the plaintiff's 
 premises on Second street, in the village of Fulton, until his 
 interests were acquired through condemnation proceedings, and 
 to recover the damages sustained by him in the past. The prin- 
 cipal defense to the action was based upon a resolution of the 
 trustees of the village permitting the defendant's predecessor, 
 the New York & Oswego Midland Railroad Company, to lay 
 the track of its railroad in the street, and upon an instrument in 
 writing, and under seal, executed by the plaintiff and other 
 abutting landowners, giving their consent to the operation of 
 the railroad upon the street in front of their lots. The trial was 
 had before a referee, who, upon findings, rendered a decision in 
 favor of the defendant, and dismissed the complaint. Upon ap- 
 peal the Appellate Division in the Fourth Department affirmed 
 the judgment entered upon the referee's decision, and the plain- 
 tiff appealed to this court. 
 
 The referee held that the instrument signed by the plaintiff 
 was a license, and that its effect was to abandon what easements 
 the plaintiff had in the street, and to preclude him from re- 
 covering any damages consequent upon the construction and 
 operation of the railroad.
 
 EMINENT DOMAIN. 595 
 
 Gray, J. "Whether we hold the instrument in question, to 
 which the plaintiff affixed his seal and signature, to be a license 
 or an agreement for an easement, is not very material to the 
 decision, in my opinion, for the reason that in either holding it 
 was quite inadequate to confer a right to make use of the street 
 for railroad operations to an unlimited extent. 
 
 I reach the conclusion that, the location or route of the pro- 
 posed railway being indefinitely described upon the map and by 
 the plaintiff's agreement, the principle of construction which 
 obtains in the cases of grants of easements made in general terms 
 should govern here, and, applying it to the established facts, the 
 court should hold that the track, as located in the center of Sec- 
 ond street, was unchangeable, and that the railway could not be 
 added to upon the plaintiff's land without his further permission, 
 or the acquisition of the right through statutory condemnation 
 proceedings. Washburn on Easements, 225, 240 ; Onthank v. 
 Lake Shore & M. S. R. R. Co., supra; Jennison v. Walker, 11 
 Gray, 423. When the railroad company undertook to change 
 and to add to its tracks in the ways described, it became a 
 trespasser as to the plaintiff. It rendered itself liable to be 
 restrained in its operations, and to a recovery of dam- 
 ages for any injuries sustained. So far as the ordinary 
 and necessary operation of its railroad upon the one track 
 through the street would cause annoyance, or constitute a nui- 
 sance, affecting the enjoyment and use of his property, the plain- 
 tiff could not complain. No recover}^ of consequential damages 
 could be had which were occasioned by the injuries resulting 
 therefrom. They would be the incidents of the right granted, 
 as to which the defendant would be released. But, so far as it 
 was a trespasser upon plaintiff's land, the defendant could be 
 compelled to acquire further easements therein, if needed for 
 its corporate purposes, by purchase or through condemnation 
 proceedings, under the penalty of being restrained in its oper- 
 ations if it failed to do so ; and, so far as damages had been sus- 
 tained through defendant's wrongful acts, to the extent that 
 they maj^ be separately established as resulting therefrom, they 
 can be recovered by the plaintiff. That any appreciable dam- 
 age resulted from the sliglit change in the location of the pas- 
 senger and freight depots is not apparent upon the proofs. 
 They were necessary incidents to the operation of the railroad 
 as authorized.
 
 596 EMINENT DOMAIN. 
 
 For these reasons, I advise a reversal of the judgment, and 
 that a new trial should be ordered, with costs to abide the event. 
 
 Parker, C. J., and Martin, Cullen, and Werner, JJ. concur. 
 Bartlett, J., concurs in result. Haight, J., absent. 
 
 Judgment reversed, etc. 
 
 HENKEL V. WABASH, P. T. R. CO. 
 
 Pennsylvania, 1906. 213 Pa. 485. 
 
 Fell, J. This action was to recover the value of land taken 
 by the defendant company under the right of eminent domain 
 for the purpose of building a station. The specifications of 
 error all relate to the admission of testimony offered by the de- 
 fendant. The main ground of the appellant's complaint is that 
 the defendant was allowed to prove the circumstances at- 
 tending the sale of two properties in the immediate vicinity. The 
 plaintiff's counsel had called the attention of witnesses on both 
 sides to these sales, his own in their examination in chief, and 
 on the cross-examination of the defendant's witnesses he had 
 sho^Mi the prices paid. On the cross-examination of the plain- 
 tiff's witnesses it appeared that one of them had based his opinion 
 of the value of the plaintiff's property entirely on one of these 
 sales, and that another witness had based his opinion mainly, 
 if not exclusively, on the two sales. The prices paid for these 
 properties thus became a standard of value of property in the 
 vicmity. The defendant's offer was not to show the prices paid 
 for these two properties, but to prove by the purchasers that the 
 sales were made under special circumstances, and that the prices 
 were greatly in excess of the market values and were not a cri- 
 terion thereof. 
 
 It has been long established that the proper test of the value of 
 land taken under the right of eminent domain is its market value, 
 and that this value is not to be ascertained by proof of particular 
 sales, but by the general selling price of land similarly situated. 
 While particular sales may not be proved as establishing a market 
 value, the good faith of a witness and the accuracy and extent 
 of his knowledge may be tested by questioning him as to par- 
 ticular sales, to ascertain whether he knew of and considered 
 them in forming an opinion. These inquiries go directly to
 
 EMINENT DOMAIN. 597 
 
 the value of the opinion expressed. We see no reason why a 
 party against whose interest a witness has testified may not show 
 that the opinion expressed is valueless as evidence, because 
 it is founded on a misapprehension of the facts, as that a sup- 
 posed sale has never been made, or that the consideration named 
 was fictitious, or that the sale had been without regard to the 
 market value. This does not lead, as would the proof of par- 
 ticular sales, to the trial of collateral issues. It goes only to im- 
 pair the value of an opinion which has become evidence in the 
 case by showing that it is based on a misapprehension of the real 
 facts. 
 
 The assignments of error are overruled, and the judgment is 
 affirmed. 
 
 IN RE CITY OF NEW YORK. 
 
 New York. 1907. 107 N. Y. Supp. 567. 
 
 BiscHOFF, J. The award for parcels Nos. 1 and 2 in this pro- 
 ceeding involves an inconsistency which requires that the report 
 be sent back to the commissioners for further consideration. 
 These parcels comprised the larger part of the block bounded 
 by Fifteenth and Sixteenth streets, Tenth avenue, and the North 
 river; and the whole block was in single ownership of the es- 
 tate of Bradish Johnson, a corporation, and leased to the Central 
 Railroad of New Jersey for the purposes of a freightyard, at 
 a net annual rent of $55,000 under a lease, made in the year 
 1892, to endure for 21 years. The commisioners have awarded 
 to the owner for the land and bulkhead rights taken the sum 
 of $752,000, and to the tenant $48,000, and have apportioned 
 the rent of the land not taken in the sum of $12,000 per annum. 
 
 The gross award for all interests in these parcels is thus $800,- 
 000 ; and, if the lease was a fair measure of the value of the land, 
 the apportionment of rent discloses that the tenant had agreed 
 to pay $43,000 a year net for the land taken. Thus a value of 
 over $1,000,000 is indicated, at the ordinary investment rate, 
 which measures the value of the land under a lease of this char- 
 acter, and the award of $800,000 would appear, upon this 
 basis, to be quite inadequate. There was expert evidence, how- 
 ever, that the rent reserved in the lease was too high ; and, while 
 this proof was not of a very satisfactory character, it may be
 
 598 EMINENT DOMAIN. 
 
 that it could snfliee for acceptance by the commissioners without 
 disapproval by the court, in view of the court's limited power 
 to review the evidence in these proceedings, but if, upon this 
 theory, the nward to the owner may be deemed adequate, the 
 tenant nuist ,'ecessarily have made a very bad bargain and was 
 benefited by being relieved of the grater part of its burden. But 
 the tenant has been awarded $48,000 ; and since an allowance for 
 fixtures could not, upon the evidence, have well exceeded $20,- 
 000, it is clear that a large siun has been allowed for the loss of 
 the lease. It is impossible to say that the tenant was damaged if 
 the rent reserved was too high for this class of property ; and if 
 it was not too high, the owner's award is inadequate by some 
 $200,000, an amount which, in no possible aspect of the proof, 
 could be applied as an offset for benefit to the remaining prop- 
 erty. 
 
 The award to the Consolidated Gas Company, the owner of 
 adjacent property, is to some degree involved, since, while the 
 character of the parcels is not the same, in the uses to which they 
 may be put, the value of one parcel bears upon the value of the 
 other because of their similarity of situation, and therefore the 
 awards as to all parcels should be reconsidered. 
 
 Certain objections which have been presented, may properly be 
 passed upon at the present time, notwithstanding that the re- 
 port, as it stands, cannot be confirmed. The contention that 
 benefits should be eliminated in the fixing of awards is met by 
 the recent decision of the Appellate Division in Matter of North 
 River between West Eighteenth and West Twenty-Third streets, 
 118 App. Div. 865, 105 N. Y. Supp. 750, and the benefits ac- 
 cruing from the improvement were thus properly considered 
 by the commissioners. 
 
 The Consolidated Gas Company objects to the disallowance of 
 compensation for damages suffered by it through the lessened 
 value of its equipment in the streets of the city by reason of 
 the taking of its gas tanks in this proceeding, the property re- 
 ferred to being in the form of gas mains laid in the city streets 
 and fed by these tanks. If these mains were laid in the streets 
 under a license from the city merely, the claimant necessarily 
 would be at the risk of being required to remove the property 
 or to change its position when public convenience demanded it 
 (:Matter of Deering, 93 N. Y. 361), and the bringing of this pro- 
 ceeding w^ould serve in effect as the revocation of a license by
 
 EMINENT DOMAIN. 599 
 
 the city, so far as it was revocable (Kingsland v. Mayor, 110 N. 
 Y. 569, 18 N. E. 435) ; but it is claimed that the right to lay 
 these mains in the streets existed by virtue of the claimant's 
 charter, and that the city was not in a position to interfere with 
 the rights so acquired. This contention I take to be untenable. 
 The origin of the claim to a right to lay gas mains in the streets, 
 so far as a right is deemed to have accrued to this claimant, is a 
 certain franchise granted to the Municipal Gas Light Company 
 by the city on March 22, 1877. The Municipal Gas Light Com- 
 pany was one of the constituent companies of the claimant corpo- 
 ration, but the franchise referred to contained the following 
 provision : 
 
 ' ' Neither said permission nor any right conferred on said com- 
 pany by said resolution shall be assigned or transferred without 
 the previous consent of the common council." 
 
 Upon the consolidation which took place and which resulted 
 in the formation of the claimant, the Consolidated Gas Company, 
 under chapter 367, p. 448, Laws 1884, such rights as were pos- 
 sessed by the constituent companies passed to the corporation 
 thus formed, but no greater rights were acquired than were 
 originally possessed; and, failing the consent of the common 
 council, there appears to have been no warrant in law for this 
 claimant's maintenance of the gas mains in these streets. In 
 this view, the claimant took no rights in the matter which could 
 survive the city 's determination to revoke the permission deemed 
 to have been granted to the Municipal Gas Light Company to lay 
 the mains, and there was no damage which could be made the 
 subject of compensation in this proceeding because of the dimi- 
 nution in the value of the property thus placed in the streets. 
 Again, it would appear that the commissioners had no authority 
 to award damages for property not embraced within the area of 
 the improvement. The matter is regulated by section 822 of the 
 charter, which limits the award of damages to compensation for 
 the property taken, and does not appear to include, by inference, 
 consequential injury to the business of the owner elsewhere in 
 the city by reason of the taking of the land. 
 
 The objection that the commissioners failed to make an al- 
 lowance for "plottage" — a supposed enhancement of value by 
 reason of the fact that the parcels, of which this claimant was the 
 owner, were in a single ownership — is met in the finding of 
 the commissioners that as a matter of fact in these instances no
 
 600 EMINENT DOMAIN. 
 
 such added value did exist. The question whether or not "plot- 
 tage" is an element of value depends necessarily upon the evi- 
 dence of the particular circumstances surrounding the use of 
 the property and its situation, and there is no rule of law that 
 "plottage," taken alone, must have a value in every case. 
 
 It is also objected by both claimants that the commissioners 
 refused to state what additional value was given to the land be- 
 cause of the fact that the land and the bulkhead rights belonged, 
 in each instance, to the same claimant. The report contains the 
 statement that the commissioners have taken into consid- 
 eration and account the fact that the o\\Tiership of the bulkhead 
 and bulkhead rights and the lands immediately adjacent were 
 in the same owners, and have found that this fact increases the 
 value of the land taken, and have included such increase in 
 value in their awards. This statement appears to be all that 
 can properly be required within the ruling of Board of Water 
 Commissioners v. Shutts, 25 App. Div. 22. 
 
 For the reasons stated, the motion to confirm the report is 
 denied, and the report will be sent back to the commissioners for 
 further consideration of the awards made. 
 
 Motion denied and report sent back. 
 
 In proceedings to condemn land for cemetery purposes, the court 
 may consider any use to which the property may be profitably ap- 
 propriated; yet it is not necessary to presume that the land would 
 ever be put to any other use than that to which it is at present de- 
 voted. Phillips V. Town of Scales Mound, 195 111. 353. 
 
 The measure of damages for land taken by a railroad is the differ- 
 ence in the market value of the tract, as a whole, before taking and 
 afterwards. Profits of business cannot be recovered in condemnation 
 proceedings, particularly speculative profits, such as profits from raising 
 50,000 ducks per year on a farm. Cos. v. Phila. H. & P. Co., 215 
 Pa. 506. 
 
 Where a quarry is condemned under eminent domain, the proper 
 measure of damages is the actual value of the stone in place, and not 
 the value of that stone when cut and sold in the market. Cole v. 
 Ellwood Power Co., 216 Pa. 203. 
 
 See as to rule of damages, where the entire use of a house is taken, 
 Hutchins v. Munn, 209 U. S. 246. 
 
 Diversion of traffic is not an element of compensation in condemna- 
 tion proceedings. Chicago v. Lonergan. 106 Til. 518. 
 
 Increased danger from fire and increased danger to live stock can 
 be considered. Chicago S. Ry. Co. v. Nolin, 221 111. 373. 
 
 Substantial damages may be awarded for interference with an ease- 
 ment of an adjoining owner by smoke, ashes, vibration, dust, dirt and
 
 EMINENT DOMAIN. 601 
 
 drippings, caused by the operation of a railroad. L. I. R. R. Co. v. 
 Garvey, 159 N. Y. 334. «ee, too, Monday Mfg. Co. v. Penn. R. R. 
 215 Pa. 110. 
 
 An award to the owner, made after the construction of a reservoir 
 should include the value of the construction and work placed upon 
 the land. The true inquiry is: How much do the improvements 
 enhance the value of the owner's land? Village of Johnsville v. 
 Smith, 181 N. Y. 341.
 
 XL VALUE. 
 
 KOUNTZ V. KIRKPATRICK. 
 Pennsylvania, 1872. 72 Pa. 376. 
 
 Action of assumpsit brought August 30, 1870, by Joseph Kirk- 
 patrick and James Lyons, trading as Kirkpatrick & Lyons, to 
 the use of Frederick Fisher & others, trading as Fisher Brothers, 
 against William J. Kountz, for refusal to deliver 2,000 barrels 
 of crude petroleum under a written contract of sale made on the 
 7th day of June, 1869. 
 
 The verdict was for plaintiffs for $3,753 ; the defendant took 
 out a writ of error. 
 
 Agnew, j. * * * 
 
 The act of Kirkpatrick & Lyons, complained of as members 
 of an unlawful combination to raise the price of oil, was long 
 subsequent to their assignment of Kountz 's contract, and was 
 a mere tort. The contract was affected only by its results as 
 an independent act. It does not seem just, therefore, to visit 
 this effect upon Fisher & Brothers, the antecedent assignees. 
 The act is wholly collateral to the ownership of the chose itself, 
 and there is nothing to link it to the chose, so as to bind the 
 assignors and assignees together. After the assignment, there 
 being no guaranty, the assignors had no interest in the perform- 
 ance of this particular contract, and no motive, therefore, aris- 
 ing out of it to raise the price on Kountz. The acts of Kirk- 
 patrick & Lyons seem, therefore, to have no greater or other 
 bearing on this contract than the acts of any other members of 
 the combination, who were strangers to the contract. 
 
 In regard to notice of the assignment to Kountz, it is argued, 
 that having had no notice of it, if he knew of the conspiracy to 
 raise the price of oil, and thus to affect his contract, and that 
 Kirkpatrick & Lyons were parties to it, he might have relied 
 on that fact as a defense, and refused to deliver the oil, and 
 claimed on the trial a verdict for merely nominal damages for 
 his breach of his contract. Possibly in such a special case, 
 want of notice might have constituted an equity, but the answer 
 
 602
 
 VALUE. 603 
 
 to this case is, that no such point was made in the court below, 
 and there does not seem to be any evidence that Kountz knew 
 of the conspiracy, and Kirkpatrick & Lyons 's privity, and rely- 
 ing on these facts, desisted from purchasing oil to fulfil his con- 
 tract with them. As the case stood before the court below, we 
 discover no error in the answers of the learned judge on this 
 part of it. 
 
 The next question is upon the proper measure of damages. 
 In the sale of chattels, the general rule is, that the measure is 
 the difference between the contract price and the market value 
 of the article at the time and place of delivery under the con- 
 tract. It is unnecessary to cite authority for this well estab- 
 lished rule, but as 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 it- 
 self, 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 equiva- 
 lent set upon an article by a seller, which he demands for it: 
 Id. Ihid. Value and price are, therefore, not synonyms, or 
 the necessary equivalents of each other, though commonly, mar- 
 ket value and market price are legal equivalents. When we 
 examine 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 chat- 
 tels are broken by the vendor's failing to deliver property ac- 
 cording to the terms of the bargain, 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 plaintiff's real 
 loss, and that with this sum, he can go into the market and
 
 604 VALUE. 
 
 supply himself with the same article from another vendor." 
 Judge Rogers uses the same term in Smethurst v. Woolston, 5 
 AV. & S. lOi) : ' ' The value of the article at or about the time 
 it is to be delivered, 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. & K. 32. Judge Ser- 
 geant, also, in O 'Conner 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 dis- 
 tinction between ternvs. It is therefore 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 op- 
 pression, fraud, malice or negligence enter into the question, 
 "the declared object (says Mr. Sedgwick, in his work on Dam- 
 ages) is to give compensation to the party injured for the actual 
 loss sustained," 4th ed., pp. 28, 29; also, pp. 36, 37. Among 
 the many authorities he gives, he quotes the language of C. J. 
 Shippen, in Bussy v. Donaldson, 4 Dallas, 206. "As to the as- 
 sessment of damages (said he), it is a rational and legal prin- 
 ciple, that the compensation should be equivalent to the injury." 
 "The rule," said C. J. Gibson, "is to give actual compensa- 
 tion, by graduating the amoimt of the damages exactly to the 
 extent of the loss." "The measure is the actual, not the specu- 
 lative loss:" Forsyth v. Palmer, 2 Harris, 97. Thus, compen- 
 sation being the true purpose of the law, it is obvious that the 
 means employed, in other words, the evidence to ascertain com- 
 pensation, 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 article is the true and only test of 
 value, is to abandon the proper object of damages, viz., compen- 
 sation, 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
 
 VALUE, 605 
 
 every person unjustly deprived of his rights, should at least be 
 fully compensated for the injury he sustained. Where articles 
 have a determinate value and an unlimited production, the gen- 
 eral rule is to give their value at the time the owner was de- 
 prived 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 demand, 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 
 eases, 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 purchase 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 in^'arible standard, and that the 
 converse of the case then before Judge Lewis is equally true — 
 that is to 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 measure of damages where 
 there is one, but not always by a particular means for its ascer- 
 tainment. Now the measure in a case like the present, is the dif- 
 ference betAveen the price contracted to be paid and the value 
 of the thing when it ought to have been accepted; and though 
 a resale is a convenient and often satisfactory means, it does not 
 follow that it is, nor was it said in Girard v. Taggart, 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 admitted; 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 tlie just and full value of the
 
 600 VALUE. 
 
 property, and if at the time ot" the trespass the market was 
 depressed, too mueli importance was not to be given to that 
 fact. "If (says Jndge Strong) at any particular time, there be 
 no market demand for an article, it is not of course on that ac- 
 count 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 in justice or law, in an unnatural 
 depression 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 au- 
 thorities, prove that an inflated speculative market price, not 
 the result of natural causes, but of artificial means to stimulate 
 prices by unlawful combinations for the purposes of gain, can- 
 not 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 : Blyenburgh et al. v. Welsh et al., Bald- 
 win 's Rep. 331. Judge Baldwin had charged the jury in these 
 words: "If you are satisfied from the evidence, 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, and witnesses 
 vary in their statements, you must adopt that which you think 
 best accords with the proof in the case. ' ' In granting a new trial, 
 Judge Hopkinson 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 con- 
 sider 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 
 sometimes put fantastical prices upon their property. For rea- 
 sons personal 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 augment 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 according to what in their opinion will 
 be its market price or value, provided the rumor shall prove to
 
 VALUE. 607 
 
 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 sup- 
 posed it will be worth at a future day, if the contingency 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 
 ease 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 com- 
 pel the sellers to pay heavy damages for nonfulfillment 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 hold- 
 ers of the coffee might choose to ask for it ; substituting a ficti- 
 tious, 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 w^de 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 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 
 regulating the measure of damages, contemplates a range of the 
 entire market, and the average of prices, as thus found, run- 
 ning 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 interested 
 and illegitimate combinations, for temporary, special and selfish 
 objects, independent of the objects of lawful commerce ; a forced 
 and violent perversion of the laws of trade, not within the con- 
 templation of the regular dealer, and not deserving to be re-
 
 60S VALUE. 
 
 garded as a proper basis upon which to determine the value, 
 when the faot becomes 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 con- 
 tracts, to deliver a given number of shares at a certain day, in 
 which the seller's performance has been forestalled by w^hat is 
 called cornering ; in other words, buying up all the floating shares 
 in the market. These contracts, like other stock- jobbing trans- 
 actions, in which parties deal upon honor, are seldom subjected 
 to the test of judicial experiment, but they would necessarily 
 be declared fraudulent." 
 
 "Without adding more, I think it is conclusively sho^vr 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 un- 
 naturally inflated. It remains only to ascertain whether the 
 defendant gave such evidence 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 frori 
 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 am^ong them Kirkpatrick & Lyons, combined to- 
 gether to purchase crude oil, and hold it until the close of the 
 year 1869; that these persons were the holders, as 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 81st day of December, 1869, 
 reaching the price of seventeen to eighteen cents per gallon, and 
 then suddenly 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 imtil January 1st, 1870, otherwise we would 
 have been heading the market on ourselves. Mr. honrr says that 
 on the 3d of January, 1870, he sold oil to Fisher & Brother (the 
 plaintiffs) at thirteen cents a gallon, and could fn-l no other
 
 VALUE. 609 
 
 purchaser at that price. Several witnesses, dealers in oil, tes- 
 tified that they knew of no natural cause to create such a rise in 
 price, or to make the difference in price from December to Jan- 
 uary. It was testified, on the contrary, that the winter pro- 
 duction of oil was greater in December, 1869, than m 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 of January, 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 fulfil 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 cause 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 capitalists, forced up in a few days to a price over 
 two hundred dollars a share, can be a lawful measure of dam- 
 ages. Men are not to be stripped of their estates by such cruel 
 and wrongful practices; and courts of justice cannot so wholly 
 ignore justice as to assume such a false standard of compensa- 
 tion. Our views upon the effect of the affidavit of defense, on 
 which the learned judge in a great measure ruled the question 
 of damages, will be expressed in the case of Kountz v. The Citi- 
 zens' Oil Refining Co., in an opinion to be read immediately. 
 
 Judgment reversed, and a venire facias de novo awarded. 
 
 Sharswood and Williams, JJ., dissented on the question of 
 the measure of damages. 
 
 39
 
 610 V.VLUE. 
 
 BOOM CO., V. PATTERSON. 
 United States Supreme Court, 1878. 98 U. S. 403. 
 
 Field, J. The plaintiff in error is a corporation created under 
 the laws of Minnesota to construct boonis betweens certain des- 
 ignated points on the Mississippi and Rum. Rivers in that state. 
 * * * The defendant in error, Patterson, was the owner in 
 fee of an entire island and parts of two other islands in the 
 Mississippi River above the Falls of St. Anthony, in the county 
 of Anoka, in Minnesota. These islands formed a line of shore, 
 with occasional breaks, for nearly a mile parallel with the west 
 bank of the river, and distant from it about one-eighth of a mile. 
 The land owned by him amounted to a little over thirty-four 
 acres, and embraced the entire line of shore of the three islands, 
 with the exception of about three rods. The position of the 
 islands specially fitted them, in connection with the west bank 
 of the river, to form a boom of extensive dimensions, capable 
 of holding with safety from twenty to thirty millions of feet of 
 logs. All that was required to form a boom a mile in length 
 and one-eighth of a mile in width was to connect the islands with 
 each other, and the lower end of the island farthest down the 
 river with the west bank; and this connection could be readily 
 made by boom sticks and piers. 
 
 The land on these islands owTied by the defendant in error the 
 company sought to condemn for its uses; and upon its applica- 
 tion commissioners were appointed by the District Court to ap- 
 praise its value. They awarded to the owner the sum of $3,000. 
 The company and the owner both appealed from this award. 
 
 Upon the question litigated in the court below, the compen- 
 sation which the owner of the land condemned was entitled to 
 receive and the principle upon which the compensation should 
 be estimated, there is less difficulty. In determining the ' 
 value of land appropriated for public purposes, the same 
 considerations are to be regarded as in a sale of property 
 between private parties. The inquiry in such cases must 
 be what is the property worth in the market, viewed not 
 merely with reference to the uses to which it is at the time 
 applied, but with reference to the uses to which it is plainly 
 adapted ; that is to say, what is it worth from its availability for 
 valuable uses. Property is not to be deemed worthless because
 
 VALUE, 611 
 
 the OAvner allows it to go to waste, or to be regarded as valueless 
 because he is unable to put it to any use. Others may be able to 
 use it, and make it subserve the necessities or conveniences of life. 
 Its capability of being made thus available gives it a market 
 value which can be readily estimated. 
 
 So many and varied are the circumstances to be taken into ac- 
 count in determining the value of property condemned for pub- 
 lic purposes, that it is perhaps impossible to formulate a rule 
 to govern its appraisement in all cases. Exceptional circum- 
 stances will modify the most carefully guarded rule ; but, as a 
 general thing, we should say that the compensation to the owner 
 is to be estimated by reference to the uses for which the prop- 
 erty is suitable, having regard to the existing business or wants 
 of the community, or such as may be reasonably expected in the 
 immediate future. 
 
 The position of the three islands in the Mississippi fitting them 
 to form, in connection with the west bank of the river, a boom 
 of immense dimensions, capable of holding in safety over twenty 
 millions of feet of logs, added largely to the value of the lands. 
 The boom company would greatly prefer them to more valuable 
 agricultural lands, or to lands situated elsewhere on the river; 
 as, by utilizing them in the manner proposed, they would save 
 heavy expenditures of money in constructing a boom of equal 
 capacity. Their adaptability for boom purposes was a cir- 
 cumstance, therefore, which the OA\Tier had a right to insist upon 
 as an element in estimating the value of his lands. 
 
 "We do not understand that all persons except the plaintiff in 
 error were precluded from availing themselves of these lands for 
 the construction of a boom, either on their o\ati account or for 
 general use. * * * 
 
 The adaptability of the lands for the purpose of a boom was, 
 therefore, a proper element for consideration in estimating the 
 value of the lands condemned. The contention on the part of the 
 plaintiff in error is, that such adaptability should not be con- 
 sidered, assuming that this adaptability could never be made 
 available by other persons, by reason of its supposed exclusive 
 privileges ; in other words, that by the grant of exclusive priv- 
 ileges to the company the o^vn^r is deprived of the value 
 v.'hich the lands, b}^ their adaptal)ility for boom purposes, pre- 
 vioiLslj'' possessed, and therefore should not now receive anything 
 from the company on account of such adaptability upon a con-
 
 612 v^UjUe. 
 
 denination of the lands. We do not think that the owner, by the 
 charter of the company, lost this element of value in his prop- 
 erty. 
 
 The views we have expressed as to the justness of considering 
 the peculiar fitness of the lands for particular purposes as an 
 element in estimating their value find support in the several 
 cases cited by counsel. Thus, In the Matter of Furman Street, 
 (17 Wend. 669,) where a lot upon which the owner had his 
 residence was injured by cutting down an embankment in open- 
 ing a street in the city of Brooklyn, the Supreme Court of New 
 York said that neither the purpose to which the property was 
 applied, nor the intention of the owner in relation to its future 
 enjoyment, was a matter of much importance in determining the 
 compensation to be made to him ; but that the proper inquiry was, 
 "What is the value of the property for the most advantageous 
 uses to which it may be applied ? " In Goodwin v. Cincinnati & 
 Whitewater Canal Co. (18 Ohio St. 169), where a railroad com- 
 pany sought to appropriate the bed of a canal for its track, the 
 Supreme Court of Ohio held that the rule of valuation was what 
 the interest of the canal company was worth, not for canal pur- 
 poses or for any other particular use, but generally for any and 
 all uses for which it might be suitable. And in Young v. Har- 
 rison, (17 Ga. 30,) where land necessary for an abutment of a 
 bridge was appropriated, the Supreme Court of Georgia held 
 that its value was not to be restricted to its agricultural or pro- 
 ductive capacities, but that inquiry might be made as to all pur- 
 poses to which it could be applied, having reference to existing 
 and prospective wants of the community. Its value as a bridge 
 site was, therefore, allowed in the estimate of compensation to 
 be awarded to the owner. * * * 
 
 Judgment affirmed. 
 
 HILTON V. PHOENIX ASSURANCE CO. 
 
 Maine, 1898. 92 Me. 272. 
 
 S.WAGE, J. Action on policy of fire insurance dated September 
 4, 1889. The case comes to us on report. It is conceded that the 
 policy was issued and the premium paid, and that the property 
 was destroyed by fire September 1, 1892, within the life of the 
 policy. The policy covered two sets of buildings and other prop-
 
 VALUE. 613 
 
 erty. The property burned with the insurance upon it is de- 
 scribed in the policy as follows : ' ' $800 on frame dwelling house 
 and L ; $700 on frame barn situate about 100 feet from said 
 dwelling, and $200 on hay therein, — ^situate in school district No. 
 6, Wells, Me., and also occupied by insured." In a previous part 
 of the policy, another dwelling house, also insured, was described 
 as "occupied by assured as a residence." * * * 
 
 It remains for us to estimate the amount of the plaintiff's 
 loss. This is a question which should have been submitted to a 
 jury. The evidence necessarily consists of the opinions of wit- 
 nesses. Very much depends upon their intelligence and credi- 
 bility, and glean as well as we may from the cold printed page, 
 we cannot be sure that we are able to distinguish those to whom 
 most credit should be given. A jury, seeing and hearing them, 
 could judge better than we. The witnesses estimate the loss all 
 the way from $1,700 for the house, and $1,100 for the barn 
 (which is the same as claimed by the plaintiff in his proof of 
 loss) , to $600 for both buildings. The higher estimates are clearly 
 made on a wrong basis, — what it would cost to replace the burned 
 buildings with new ones. The policy is a contract of indemnity 
 merely. Donnell v. Donnell, 86 Me. 518. The plaintiff is entitled 
 only to have his actual loss made good. The true measure of 
 damages is the value of the buildings themselves as they stood 
 upon the land just before the fire. 2 Sedg. Meas. Dam. §722. 
 These buildings, though apparently in a fair state of repair, 
 were old, — some of them very old. They were no longer in use, 
 but we cannot assume that they were useless. Upon the whole, 
 it is the opinion of the court that the plaintiff should be allowed 
 to recover $800 for the loss of his buildings. He also lost five tons 
 of hay, for which he should be allowed $60. The policy provides 
 that payment shall be made within 60 days after due notice and 
 proof of loss shall have been made by the assured. We think 
 the plaintiff' should recover interest after 60 days from tlie time 
 he corrected his proof of loss, which was June 12, 1893. 
 
 Judgment for plaintiff for $860, and interest from August 11, 
 1893.
 
 614 VALUE. 
 
 McMAHON V. CITY OF DUBUQUE. 
 
 Supreme Court of Iowa. 1898. 107 Iowa, 62. 
 
 Action for damages occasioned by a fire set out from sparks es- 
 caping from the smokestack of a steam road roller owned and 
 being operated by the city of Dubuque in rolling newly laid 
 macadam on one of its streets on which the lots of plaintiff abut- 
 ted. The house thereon, with its contents, was destroyed. The 
 jury returned a veidict for the plaintiff on which judgment was 
 rendered, and the defendant appeals. 
 
 Ladd, J, The household goods and wearing apparel of the 
 plaintiff and his family w^ere destroyed. These had been used, 
 were worn, and somewhat out of style. Such property has no 
 recognized market value, and recovery must be based on its actual 
 value. Gere v. Insurance Co., 67 Iowa, 272, Clements v. Railway 
 Co., 74 Iowa, 442. To ascertain the actual value, it was proper to 
 take into consideration the original cost of the articles, the ex- 
 tent of their use, whether worn or out of date, their condition at 
 the time, and from all these determine what they were fairly 
 worth. The cost alone would not be the correct criterion for the 
 present value, but it would be difficult to estimate the value of 
 such goods except by reference to the former price, in connec- 
 tion Avith wear, depreciation, change in style, and present con- 
 dition. Luse V. Jones, 39 N. J. Law, 707 ; Railway Co. v. Nich- 
 olson, 61 Tex. 550, Lumber Co. v. Wilmore, 15 Col. Sup. 136; 
 Printz V. People, 42 Mich 144. * * * Evidence was received, 
 over the defendant's objection, showing the actual value of the 
 house at the time of the fire, and, it is said, this does not furnish 
 the true basis of recovery. The fundamental principle in all ac- 
 tions for damages is that just compensation be made to him who 
 has suffered injury from another in his person or property, and, 
 in order to give satisfaction, measured in money, such rules are 
 formulated as are thought best adapted to accomplish this pur- 
 pose. A distinction has, for this reason, been made between 
 growing crops, shrubs, and trees, whose chief value is because 
 of their connection with the soil and their incidental enhance- 
 ment of the value of the land, and those improvements which 
 may be replaced at will, and whose value may readily be de- 
 termined, apart from the ground on which they rest. It is thus 
 put by ]\Ir. Sutherland in his work on Damages (volume 3, p. 
 368) : "If the thing destroyed, although it is a part of the realty,
 
 VALUE. 615 
 
 has a value which can be accurately' measured and ascertained 
 without reference to the soil on which it stands, or out of which 
 it gi'ows, the recovery may be the value of the thing thus de- 
 stroyed, and not for the difference in value of the land before 
 and after such destruction." In Drake v. Railway Co., 63 Iowa, 
 310, crops were destroyed by overflow caused by an embank- 
 ment, and the measure was held to be the difference between the 
 market value of the land immediately before and after the in- 
 jury. This rule was approved in Sullens v. Railway Co., 74 Iowa, 
 660, and applied, where growing trees were burned, in Green- 
 field v. Railway Co., 83 Iowa, 276, and Brooks v. Railway Co., 73 
 Iowa, 182. See Smith v. Railroad Co., 38 Iowa, 518 ; Striegel v. 
 Moore, 55 Iowa, 88. In Rowe v. Railway Co., 102 Iowa, 288, the 
 court said : ' ' Appellant 's contention results in fixing the value 
 of each tree destroyed or damaged by the fire, and the aggre- 
 gate of such values would be the measure of plaintiff's recov- 
 ery. Such a rule may well be held applicable to the destruction 
 by fire of buildings, fences, and other improvements, which may 
 at once be replaced, where the exact cost of restoring the prop- 
 erty destroyed is capable of definite ascertainment, and where 
 there is no damage of the realty itself." It is apparent that the 
 growing crops, small trees, and orchards are of little or no use 
 separated from the soil, and that their value must necessarily be 
 determined in connection with the land on which they stand. 
 This is not true of improvements which may be replaced at will. 
 In Graessle v. Carpenter, 70 Iowa, 167, the defendant, by dig- 
 ging trenches and laying water pipes, injured the plaintiff's 
 fences, walks, house, and shrubs. It was not sho^vn the acts 
 were of such a nature as to permanently injure the real estate, 
 or that it could not be restored to its condition before the fire. 
 The court, through Beck, J., announced the rule to be that which 
 will "give the plaintiff just and full compensation. * * * 
 In the case before us the familiar and simple rule applicable to 
 such cases would perfectly attain that end. That rule is this: 
 The plaintiff may recover as damages the sum which, expended 
 for the purpose, would put the property in as good condition 
 as it was in before the injury, with the additional sums which 
 would compensate the plaintiff for the use and enjoyment of the 
 property, should he be deprived thereof by the injury, and the 
 value of such property, as trees, buildings, and the like, which 
 have been wholly destroyed, and cannot be restored to the con-
 
 616 VALUE, 
 
 dition they were in before the injury." We take it, the trees and 
 shrubs were of a character which might be replaced by others of 
 the same actual value ; otherwise the case is not in harmony with 
 those cited. In Freeland v. City of Muscatine, 9 Iowa, 465, the 
 defendant, in changing the grade, dug away the dirt, and caused 
 the plaintiff's house to fall, and it was held: "The cost of re- 
 building or repairing was properly taken into consideration, if 
 we imderstand it as having reference to the quality and condi- 
 tion of the building before the accident, and the instiiiction can- 
 not be taken in any other sense. It is the cost of rebuilding and 
 repairing, which implies the restoring it to as good a condition 
 as before, and not the putting a new and firm building in the 
 place of an old and decayed one." To prove the market value 
 of the land immediately before and after the fire would be ac- 
 complishing, by eireiunlocution, what might be directly ascer- 
 tained, for such difference would be the value of the house. 
 True, location may sometimes have a bearing, as where a build- 
 ing is so situated as not to be useful for the purpose of its con- 
 struction. In such cases this must be taken into consideration 
 in fixing the real value. But it could be as readily done in es- 
 timating this separate from as with the land. Simplicity and 
 directness are particularly favored in modem jurisprudence. 
 True, such property may have no market value. It does, how- 
 ever, have actual value, and this is then the measure of recovery. 
 The ruling was right. * * * 
 
 Affirmed. 
 
 TREANOR V. NEW YORK BREWERIES CO. 
 
 New York, 1906. 51 Misc. 607. 
 
 DowLiNG, J. From testimony which the jury had a right to 
 believe it was sho\^Ti in this case that the plaintiff, being desir- 
 ous of embarking in the saloon business, and having ascertained 
 that he could rent a desirable location for the term of 10 years, 
 provided he would expend $7,000 in furnishing the place with 
 certain fixtures, and that the good will could be purchased for 
 the sum of $250, made an agreement with the defendant, through 
 its general manager, one Tighe, who agreed to loan plaintiff said 
 sum of $7,000, taking a mortgage upon the lease and fixtures ; the 
 plaintiff agreeing to purchase beer made by the defendant.
 
 VALUE. 617 
 
 Thereupon the plaintiff made the lease, paid the $250 to the 
 former lessee for the good will of the business, paid the sum of 
 $500 for two months' rent, and took possession of the premises, 
 which he occupied for that time. In the meantime, after several 
 requests to do so, the defendant's manager refused to make any 
 loan to plaintiff. The plaintiff thereupon secured a release from 
 his landlords upon payment to them of the sum of $500, and 
 brought this action for breach of contract, and recovered a 
 judgment for the sum of $1,250, made up as follows: $500 for 
 the two months' rent paid, $250 for the good will of the business, 
 and $500 paid for the release. The appellant claims (1) that 
 there was no consideration for the contract; (2) that Tighe had 
 no authority to make the contract; (3) that plaintiff can recover 
 only nominal damages ; (4) that the judgment is against the 
 weight of evidence, and (5) that the items of damage are not re 
 coverable. 
 
 "Without a lengthy discussion of the merits of the several ob- 
 jections raised by the appellant, it is sufficient to say that there 
 is sufficient testimony in the case to sustain a judgment against 
 the defendant, but we think that as to the item of $500 paid "for 
 the rent for two months the defendant is not properly chargeable 
 therew^ith. The plaintiff occupied the premises for the two 
 months for which he paid rent. As to whether the usable value 
 of the premises in the condition the plaintiff took them was less, 
 equal to, or more than the amount of rent paid therefor by him, 
 there is no evidence. Presumably, in the absence of evidence to 
 the contrary, the premises were worth the rent paid. It is true 
 it appears that after he had been in the premises for two months 
 he found that, unless the proposed repairs were made, he could 
 not successfully continue the business. Nevertheless it does not 
 appear that he met with any loss during the two months he re- 
 mained in occupancy. 
 
 Unless the plaintiff will stipulate to reduce the amount of re- 
 covery to the sum of $750, the judgment will be reversed, and a 
 new trial ordered, with costs to appellant to abide the event. If 
 such stipulation is made, judgment affirmed, as modified, without 
 costs to either party. 
 
 All concur.
 
 618 V.VLUE. 
 
 SILLS V. COCHEMS. 
 
 Colorado. 190{). 36 Col. 524, 
 
 Bailey, J. But one question is presented for determination 
 in this ease: Is testimony tending to show that phiintitf was 
 busily engaged in the practice of his profession admissible in an 
 action brought by a physician to recover judgment for the value 
 of professional services rendered, where the price to be charged 
 for such services was not agreed upon 'i 
 
 It is said that "when an attorney sues upon a quantum meruit 
 for professional services, his professional standing is a proper 
 subject of inquiry as affecting the value of his services. And 
 the anv)unt of his professional business may be inquired into, as 
 tending to show his professional standing." Weeks on Attorneys 
 i.t Law, 681 ; Phelps v. Hunt, 40 Conn. 97. Counsel has called 
 our attention to no case, and we know of none, wherein it is held 
 that a different rule should obtain in determining the value of a 
 physician's services. The same reasoning which prompts the 
 doctrine as to attorneys seems to warrant its application to phy- 
 sicians. The value of professional services may depend very con- 
 siderably upon the character and standing of him who performs 
 them. In the first place, there are diversities of gifts. The pe- 
 riod of time passed in the profession, the experience acquired, de- 
 gree- cf skill, aud the faculty of using professional knowledge 
 make great differences in individuals. The services of some are 
 wo.th more tl;;)n the services of others, because they will com- 
 mand more. Should a question arise as to the value of services, 
 in an action brought by a physician to recover fees, where the 
 nature oi the services performed makes the possession of certain 
 qualifications to constitute an important element in the value of 
 those services, as in this case where the plaintiff was called be- 
 cause of his peculiar skill as a diagnostician, evidence of profes- 
 sional standing is clearly admissible and is entitled to consider- 
 ation. 
 
 The fact that plaintiff was extremely busy tends to show his 
 professional standing, and tends to show, in connection with 
 other testimony concerning the length of time he had practiced 
 medicine in that community, his experience, which gave him the 
 requisite knowledge and ability to properly diagnose and pre- 
 scribe the necessary medicines for diseased persons. If constant 
 practice in the art of his profession renders a prar-titioner m.cre
 
 FLUCTUATION IN VALUE. 619 
 
 capable than he otherwise would be, the extent of such a practice 
 is a matter which may be properly inquired into for the purpose 
 of determining the value of the services rendered. 
 
 The judgment of the district court will be affirmed. 
 
 Affirmed. 
 
 Gabbert, C. J., and Goddard, J., concur. 
 
 1. Fluctuation in Value. 
 
 BAKER V. DRAKE. 
 New York, ]873. 53 N. Y. 211. 
 
 Rapallo, J. The most important question in this case is that 
 which relates to the rule of damages. The judge at the trial, fol- 
 lowing the case of iMarkham 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 vras sold 
 by the defendants and the highest market value w^hich it reached 
 at any time after such sale dowTi to the day of trial. 
 
 This rule of damages has been recognized and adopted in sev- 
 eral 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-examine the subject, and in IMathews v. Coe, 49 N. Y. 57, per 
 Church, C. J., stated very distinctly that an unqualified rule, giv- 
 ing 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 w^e 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 necessary. 
 
 AVhether the present action is one for the conversion of prop- 
 erty of the plaintiff, or for the breach of a special contract, pre- 
 sents 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
 
 620 VALUE. 
 
 the eireiinistances of the case, the riUe adopted by the court be- 
 k)\v affords the jihiintiff more than a just indenmity for the k)ss 
 he sustained by the sale of the stock. It is uot pretended that the 
 defendants 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 defend- 
 ants 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 stock by the 
 defendants is sho\ATi 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 direc- 
 tion as to the sale and disposition 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 secur- 
 ity, or require him to take and pay for the stocks, and give him 
 due notice of the time and place of sale, and due opportunity 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. 
 
 This is all that appears upon the record in reference to the 
 contract 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 only to dispute 
 certain charges of interest, which, however, if successfully as- 
 sailed, 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 but $4,240 toward the purchase of shares, which,
 
 FLUCTUATION IN VALUE. 621 
 
 at the time of the alleged wrongful sale, Nov. 14, 1S68, had cost 
 the defendants upward of $66,300 over and above all the sums so 
 advanced 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 
 arising from the sale, after paying the amount due the defend- 
 ants, 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 
 commencement of this action, Nov. 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 be- 
 fore the trial, the stock underwent alternate elevation and de- 
 pression, 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, Oct. 
 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 dif- 
 ference 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 
 damages, could not have been arrived at except upon the un- 
 reasonable 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 point, but that he would have been so for- 
 tunate as to seize upon that precise moment to sell, thus avoid- 
 ing the subsequent decline, and realizing the highest profit which 
 could have possibly been derived from the transaction by one en- 
 dowed 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 do\vn as an
 
 62:2 ViVLUE. 
 
 inflexible rule of law that as damages for its wrongful interrup- 
 tion 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 for- 
 tmiate 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 amoimt 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 authorities which are supposed to govern 
 the question, I will briefly suggest what would be a proper indem- 
 nity 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 supplied all the capital embarked in the speculation, except 
 the comparatively trifling sum which remained in their hands as 
 margin. Assuming 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 vvith 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 re- 
 quired him to supply further margin, and involved a risk of ulti- 
 mate loss. 
 
 If, upon becoming informed of the sale, he desired further to 
 prosecute the adventure and take the chances of a future market, 
 he had the right to disaffirm the sale and require the defendants 
 to replace the stock. If they failed or refused to do this, his rem- 
 edy 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 plaintiff 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
 
 FLUCTUATION IN VALUE. 623 
 
 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 plain- 
 tiff, 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 natur- 
 ally 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 be- 
 yond the scope of a reasonable indemnity to the customer whose 
 stocks have been improperly sold, places him in a position incom- 
 parably 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 eon- 
 duct 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 keeping his margins good and relieved of all 
 apprehension of being sold out for want of margin. If the stock 
 should fall or become worthless, he can incur no loss, but, if at 
 any period during the months or years occupied in the liti- 
 gation 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 
 seize 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. * * * 
 
 The most thorough consideration of the subject to be found in 
 any reported case is contained in the extremely able opinion of 
 Duer, J., in Suydam v. Jenkins, 3 Sandf. Sup. Court Reports, 619 
 to 647, where that accomplished jurist reviews, with great dis- 
 crimination, many of the cases here referred to, and others which 
 have not been cited, and arrives substantially at the same conclu- 
 sion as that reached by Church, C. J., in Mathews v. Coe, that the 
 highest price which the property has borne at any time between 
 its conversion and the trial cannot in all cases be the just meas- 
 ure of damages. The reasoning contained in that opinion is of
 
 624 v.iLUB. 
 
 such force as to outweigh the apparent preponderance of author- 
 ity in favor of the rule claimed, and deiuoustrates 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. 
 
 When we consider the opposition which this rule has con- 
 stantly encountered in the courts, the variety of the judgments in 
 the cases in which it has been invoked, and the doubting man- 
 ner in which it has been referred to by eminent jurists, whose de- 
 cisions 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 Startup v. Cortazzi, 2 Cr., Mees. & Rose. 165 ; 2 K. 
 Com., 637, 11th ed., note ; Owen v. Routh, 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 N. H. 79 ; 
 BrasT, v. Worth, 40 Barb. 648 ; Pinkerton v. Manchester R. R., 42 
 N. H. 424 ; 45 N. 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. Jaudon, embody the 
 sounder reasons, and that the rule of damages laid down in that 
 case and followed in the present one is not well founded, and 
 should not be sustained. 
 
 For this reason, without passing upon the other questions 
 involved in the case, I think the judgment should be reversed 
 and a nev/ trial ordered, with costs to abide the event. 
 
 All concur. 
 
 Judgment reversed. 
 
 INGRAM V. RANKIN. 
 Wisconsin, 1879. 47 Wis. 406. 
 
 Taylor, J. * * * Upon the question of damages, the 
 court instructed the jury as follows: "Testimony has been given 
 in respect to the value of this property ; not the value of the 
 property at the time it was taken, but the highest value of this 
 property at any time since the property was taken, to the present 
 time. If the plaintiff be entitled to recover, he is entitled to 
 recover the highest value of the property within that period of
 
 FLUCTUATION IN VALUE. 625 
 
 time, from the time it was taken to the present time. ' ' To this 
 instruction the defendants duly excepted. 
 
 After a careful consideration of the decisions of this court 
 upon the question as to the rule of damages in actions of this 
 kind, and an examination of a large number of cases decided 
 by the courts of other States in this country, and by the courts 
 of England, we are satisfied that the rule as laid down by the 
 learned Circuit Judge is not sustained by the weight of author- 
 ity, and that it ought not to be adopted by this court upon prin- 
 ciple. We think the rule adopted by the Circuit Court would 
 in many cases work great injustice, and violate the rule that 
 compensation for the plaintiff's loss is the true rule of damages 
 
 in all cases in which he is not entitled to exemplary damages. 
 
 * * * 
 
 It certainly cannot be said that this court has in any case 
 decided that, either in actions for the non-delivery of chattels 
 according to agreement, or in actions to recover damages for 
 the conversion of the same, the plaintiff may recover as dam- 
 ages the highest market value of the chattels at any time inter- 
 mediate the time when they should have been delivered accord- 
 ing to contract, or the time when they were converted, and the 
 day of trial. On the other hand, we think the uniform course of 
 decision is, that the measure of damages is the value of the prop- 
 erty at the time fixed for the delivery, or at the time of the con- 
 version, with interest to the day of trial; the only exception to 
 the rule being that in case of replevin, where the property is m 
 esse and supposed to be in the hands of the defendant at the 
 time of the trial, if plaintiff recovers, he may recover as his dam- 
 ages the value of the property on the day of trial, excluding any 
 value added to the same by labor or money of the defendant, or 
 those under whom he claims. 
 
 If the question were open for consideration in this court, and 
 we were at liberty now to fix a rule of damages in cases like the 
 one at bar, we should feel constrained to fix the one which has 
 already been established by this court. It is said that the rule 
 giving as damages the highest market value intermediate the 
 conversion or day of delivery and the day of trial, should be 
 applied to articles of trade and commerce which fluctuate in 
 value from day to day ; and that to adhere to the rule of value 
 at the time of the conversion would in many cases allow 
 the wrong-doer to make profit out of his own wrong, or at all 
 
 40
 
 626 VALUE. 
 
 1 vents it iniglit prevent tlie plaintiff from taking advantage of a 
 lising market, and thereby might deprive hira of his reasonable 
 oxpeetations of protit from his investments. 
 
 There can be no force in the argument that the defendant 
 would be allowed to make money out of his own tortious act. 
 If the wrong-doer sells the property which he has unlawfully 
 taken from another, the owner of the property can waive the 
 tort and sue the tort-feasor for the money he has received upon 
 such sale of his property, and thereby prevent him from making 
 a profit out of his wrong. But the rule which allows the plaintiff 
 to recover the highest market value is objectionable, because it 
 allows him to recover speculative damages, especially when a long 
 time elapses between the conversion and the day of trial. In 
 most cases property which rapidly changes in value is not re- 
 tained in the possession or owTiership of one person for a great 
 length of time; and it would bo a matter of the utmost doubt 
 whether the plaintiff, had he not been deprived of the possession 
 of his property, would have realized the highest market value to 
 which it might have attained during the time of the conversion 
 and the time of trial ; and in those cases where the market value 
 is very fluctuating, great injustice would be done by this rule 
 to the man who honestly converted such property, in the belief 
 that it was his own, if, after the lapse of five or six years, he 
 should be called upon to pay the highest market value it had at- 
 tained during that time. The hardship of enforcing this rule in 
 the case of stocks, which is perhaps property of the most unfixed 
 value, forced the Court of Appeals in New York to repudiate the 
 rule, after it had been partially adopted by the courts of that 
 State. See Bfker v. Drake, 53 N. Y. 211; Bank v. Bank, 60 
 N. Y. 42. * "* * 
 
 The rule fixing the measure of damages in actions for breaches 
 of contract for the delivery of chattels, and in all actions for 
 the wrongful and unlawful taking of chattels, whether such as 
 would formerly have been denominated trespass de donis or 
 trover, at the value of the chattels at the time when delivery 
 ought to have been made, or at the taking or convereion, with 
 interest, is certainly founded upon principle. It harmonizes with 
 the rule which restricts the plaintiff to compensation for his loss, 
 and is as jast and equitable as any other general rule which the 
 courts have been able to prescribe, and has greatly the advan- 
 tage of certainty over all others.
 
 FLUCTUATION IN VALUE. 627 
 
 We have concluded, therefore, to adhere to the general rule 
 laid down by this court in the cases cited, and hold that in all 
 actions, either upon contract for the non-delivery of goods, or 
 for the tortious taking or conversion of the same, "unless," in 
 the language of Sedgwick (Damages, 6th ed., p. 1591), "the 
 plaintiff is deprived of some special use of the property antici- 
 pated by the wrong-doer," and in the absence of proof of cir- 
 cumstances which would entitle the plaintiff to recover ex- 
 emplary or panitor}^ damages, the measure of damages is, first, 
 the value of the chattels at the time and place when and where 
 the same should have been delivered, or of the wrongful taking 
 or conversion, with interest on that sum to the date of trial; 
 second, if it appears that the defendant, in case of a wrongful 
 taking or conversion, has sold the chattels, the plaintiff may, at 
 his election, recover as his damages the amount for which the 
 same were sold, with interest from the time of the sale to the 
 day of trial; third, if it appears that the chattels wrongfully 
 taken or converted are still in the possession of the defendant at 
 the time of the trial, the plaintiff may, at his election, recover 
 the present value of the same at the place where the same were 
 taken or converted, in the form they were in when so taken or 
 converted. 
 
 These rules will prevent the defendant from making profit out 
 of his own wrong, will give the plaintiff' the benefit of any ad- 
 vance in the price of the chattels when defendant holds posses- 
 sion of the same at the time of the trial, and on the whole will 
 
 be much more equitable than the rule given by the court below. 
 * * * 
 
 By the Court. — The judgment of the Circuit Court is reversed, 
 and the cause remanded for a new trial. 
 
 GALIGHER v. JONES. 
 United States Supreme Court, 1889. 129 U. S. 193. 
 
 Bradley, J. This is a suit brought by Jones, a stockbroker, 
 against his customer, for the balance of account alleged to be due 
 to the plaintiff arising out of advances of money and purchases 
 and sales made, and commissions. * * * Galigher, the de- 
 fendant below, in his answer, alleged that in the month of
 
 628 VALUE. 
 
 November, 1878, the plaintiff, as defendant's agent, held for him 
 600 shares of mining stock, known as "Challenge" stock; and 
 without his consent, on the 27th and 2!)th of said November, sold 
 the same for his, the plaintiff's, own use, to the damage of the de- 
 fendant of $2850. * * * 
 
 As to the second item of counterclaim * * * viz. : the 
 alleged wrongful sale by the plaintiff of 600 shares of "Chal- 
 lenge" stock, the referee found that the plaintiff held such stock 
 for the defendant, and On the 27th and 29th of November, 1878, 
 of his own motion, and without notice to the defendant, sold it for 
 $1.25 per share; that in December the stock sold as high as $2 
 per share ; in January the highest price was $3.10 ; in February 
 the" highest price was $5.50. The referee allowed the defendant 
 the highest price in January, namely, $3.10 per share, being an 
 advance of $1.85 above what the plaintiff sold the stock for, 
 which, for the whole 600 shares, amounted to $1110. The reason 
 assigned by the referee for not allowing the defendant the highest 
 price in February (namely, $5.50 per share) was that before that 
 time the defendant had reasonable time, after receiving notice of 
 the sale of his stock by the plaintiff, to replace it by the purchase 
 of new stock, if he desired so to do; and he allowed him the 
 highest price which the stock reached within that reasonable time. 
 In this conclusion we think the referee was correct, and as to 
 this item we see no error in the result. * * * 
 
 It has been assumed, in the consideration of the case, that 
 the measure of damages in stock transactions of this kind is the 
 highest intermediate value reached by the stock between the 
 time of the wrongful act complained of and a reasonable time 
 thereafter, to be allowed to the party injured to place himself in 
 the position he would have been in had not his rights been vio- 
 lated. This rule is most frequently exemplified in the wrongful 
 conversion by one person of stocks belonging to another. To al- 
 low merely their value at the time of conversion would, in most 
 cases, afford a very inadequate remedy, and, in the case of a 
 broker, holding the stocks of his principal, it would afford no 
 remedy at all. The effect would be to give to the broker the con- 
 trol of the stock, subject only to nominal damages. The real 
 injury sustained by the principal consists not merely in the as- 
 sumption of control over the stock, but in the sale of it at an un- 
 favorable time, and for an unfavorable price. Other goods 
 wrongfully converted are generally supposed to have a fixed
 
 FLUCTUATION IN VALUE. 629 
 
 market value at which they can be replaced at any time; and 
 hence, with regard to them, the ordinary measure of damages is 
 their value at the time of conversion, or, in case of sale and pur- 
 chase, at the time fixed for their delivery. But the application 
 of this rule to stocks would, as before said, be very inadequate 
 and unjust. 
 
 The rule of highest intermediate value as applied to stock trans- 
 actions has been adopted in England and in several of the States 
 in this country; whilst in some others it has not obtained. The 
 form and extent of the rule have been the subject of much dis- 
 cussion and conflict of opinion. The cases will be found collected 
 in Sedgwick on the Measure of Damages [479], vol. 2, 7th ed. 
 379, note (b) ; Mayne on Damages, 83 (92 Law Lib.) ; 1 Smith's 
 Lead. Cas. (7 Amer. ed.) 367. The English cases usually re- 
 ferred to are Cud v. Rutter, 1 P. Wms. 572, 4th ed. [London, 
 1777], note (3) ; Owen v. Routh, 14 C. B. 327; Loder v. Kekule, 
 3 C. B. (n. s.) 128; France v. Gaudet, L. R. 6 Q. B. 199. It is 
 laid down in these cases that where there has been a loan of stock 
 and a breach of the agreement to replace it, the measure of dam- 
 ages will be the value of the stock at its highest price on or be- 
 fore the day of trial. 
 
 The same rule was approved by the Supreme Court of Penn- 
 sylvania in Bank of Montgomery v. Reese, 26 Penn. St. (2 
 Casey), 143, and Musgrave v. Beckendorff, 53 Penn. St. (3 P. F. 
 Smith) 310. But it has been restricted in that State to cases in 
 which a true relation exists between the parties, — a relation 
 which would probably be deemed to exist between a stock-broker 
 and his client. See "Wilson v. Whitaker, 49 Penn. St. (13 Wright) 
 114; Huntingdon R. R. Co. v. English, 86 Penn. St. 247. 
 
 Perhaps more transactions of this kind arise in the State of 
 New York than in all other parts of the country. The rule 
 of highest intermediate value up to the time of trial formerly 
 prevailed in that State, and may be found laid down in Romaine 
 v. Van Allen, 26 N. Y. 309, and Markham v. Jaudon, 41 N. Y. 
 235, and other cases,— although the rigid application of the rule 
 was deprecated by the New York Superior Court in an able opin- 
 ion by Judge Duer, in Suydam v. Jenkins, 3 Sandford, N. Y. 614. 
 The hardship which arose from estimating the damages by the 
 highest price up to the time of trial, which might be years after 
 the transaction occurred, was often so great, that the Court of 
 Appeals of New York was constrained to introduce a material
 
 630 VALUE. 
 
 modification in the form of the rule, and to hold the true and just 
 measure of damages in these cases to be, the highest intermediate 
 value of the stock between the time of its conversion and a rea- 
 sonable time after the owner has received notice of it to enable 
 him to replace the stock. This modification of the rule was very 
 ably enforced in an opinion of the Court of Appeals delivered by 
 Judge Rapallo. in the case of Baker v. Drake, 53 N. Y. 211, which 
 w^as subsequently followed in the same case in G6 N. Y. 211, and 
 in Gruman v. Smith, 81 N. Y. 25 ; Colt v. Owens, 90 N. Y. 368 ; 
 and Wright v. Bank of ]\Ietropolis, 110 N. Y. 237. 
 
 It would be a herculean task to review all the various and con- 
 flicting opinions that have been delivered on this subject. On 
 the whole it seems to us that the New York rule, as finally settled 
 by the Court of Appeals, has the most reasons in its favor, and we 
 adopt it as a correct view of the law. 
 
 The judgment is reversed and the cause remanded to the 
 Supreme Court of Utah with instructions to enter judgment 
 in conformity with this opinion. 
 
 A race-horse was killed at Panama, where there is no market for such 
 proiterty. Held that market value at .San Francisco, the place of 
 destination, could he shown. Harris v. Panama R. R., 58 N. Y. 660. 
 The same doctrine was announced in a case of the conversion of a 
 ship. Glashy v. Cfibot, 135 Mass. 435. The risk of getting the ship 
 to the market should be considered also. 
 
 But the general rule of damages in case of conversion of personal 
 property is the value at the time of conversion and interest on its 
 fair value from that time. Redmond v. Am. Mfg. Co., 121 N. Y. 415. 
 
 In estimating the value of a life estate the Carlisle tables are ad- 
 missible in evidence, in connection with expert testimony of computa- 
 tions thereunder. City of Joliet v. Blower, 155 111. 414. See, too, Ker- 
 rigan V. Penn. R. R. Co., 44 Atl. Rep. 1009. 
 
 Where sawmill property was wrongfully attached and bankruptcy 
 resulted, the measure of damages was held to be the less of its use, 
 not injury to credit. Union Nat. Bank v. Cross, 100 Wis. 1S7. 
 
 Where through mining operations permanent injuries to land result 
 from failure to give surface support, the measure of damages is the 
 depreciation of the value of the land. Weaver v. Berwind, 216 Pa. 19.5. 
 
 Where a railroad company has been cutting timber on the lands of 
 the United States, the defendant must pay as damages the value of 
 the timber at the time and place of the cutting, not of the delivery. 
 U. S. V. St. Anthony R. R. Co., 192 U. S. 541. So where an animal 
 Is killed as having tuberculosis, the value of the animal is estimated 
 as an animal in a diseased condition. Tappen v. State of New York, 
 146 N. Y. 44. Where shade trees have been destroyed, the rule of 
 damages is to ascertain the difference between the value of the land 
 before and after the iiijury. l^vansv. Keystone Gas Co., 148 N. Y. 112.
 
 XII. MITIGATION OF DAMAGES. 
 
 CURRIER V. SWAN. 
 
 Maine, 1874. 63 Me. 323. 
 
 Peters, J. An affray took place between the plaintiff and one 
 of the defendants, at a railroad depot in the afternoon, and on 
 the evening of the same day that defendant with the others pro- 
 ceeded to the plaintiff's house, and inflicted violence upon him 
 there. The defendants desired to show what took place in the 
 afternoon, in mitigation of damages for the assault committed 
 afterwards. The justice presiding admitted in evidence the fact 
 that there had been an affray, but excluded evidence of the de- 
 tails of it. 
 
 The ruling, both as to the admission aud exclusion of evidence, 
 was right. The admission was right, because it was to show the 
 object and purpose of the second assault, or the state of mind 
 with which it was done. Otherwise, there would have been noth- 
 ing to indicate to the jury but that the house was entered for the 
 purpose of robbery and plunder, or something of the kind. The 
 fact of a previous affray might have some weight upon the ques- 
 tion of the amount of damages recoverable, and might legiti- 
 mately be regarded as a part of the transaction to be investigated 
 in this suit. But the further evidence, offered and excluded, was 
 not fairly a part of the facts involved in this investigation. The 
 assault complained of here was committed at another time and at 
 another place, and mostly by other parties. It was immaterial 
 whether the fault of the previous affray was in the one or the 
 other party concerned. If the defendant was ever so right in 
 the first affray, he should have resorted to proper legal reme- 
 dies, and not assume to take the law into his own hands. If he 
 is permitted to show the merits of the controversy in the after- 
 noon, then the plaintiff would have as much right to show the 
 provocation that led him into that affray, and the result would 
 be, the trial of several causes in one ; and, as said in Mathews v. 
 Terry, 10 Conn. 459, "the jury would be distracted with a mul- 
 tiplicity of questions and issues." The early and leading case of 
 
 631
 
 632 MITIGATION OF DAMAGES. 
 
 Avery v. Ray, 1 JMass. 12, decided in 1812, has been recognized as 
 a correct authority upon this subject, in most of the courts in 
 this country, ever since. It has been invariably followed in 
 ^Massachusetts, in many subsequent cases. Of course, the general 
 principle there enunciated may be modified by controlling cir- 
 cumstances in other cases ; as in Prentiss v. Shaw, 56 Me. 437, 
 cited and much relied on by these defendants. That case was de- 
 cided upon its peculiar facts. The evidence introduced in miti- 
 gation there was mainly to show the innocent intention of the 
 parties sued. They supposed (as they claimed) that they were 
 acting under an official right to act. They had received (al- 
 though improperly) an order, from persons in authority, to 
 make the arrest. Their own motive and good faith in obeying 
 the order, had much to do with the question as to how far puni- 
 tive damages should be recovered. So in the case at bar, as much 
 evidence was admitted as would fairly show what the motive of 
 the defendants was in the assault committed by them, and with 
 what coolness and deliberation, or otherwise, the act was done. 
 
 The other exception in this case can not be sustained. But one 
 verdict could be rendered. Therefore the damages must be joint, 
 and not several. The question is, what damages has the plain- 
 tiff sustained ? For those, whatever they are, all the participants 
 in the assault are liable. There are no degrees of guilt. These 
 principles are clearly settled and stated in the cases cited in 
 argument. * * * The general verdict must stand. 
 
 Exceptions and motion overruled. 
 
 All concur. 
 
 GOLDSI\IITH V. JOY. 
 
 Vermont. 1889. 61 Vt. 488. 
 
 Trespass for assault and battery upon plaintiff's intestate, 
 who at the time of the affray was suffering from Bright 's disease 
 and subsequently died of it. It was claimed that his death was 
 materially hastened hy the assault. Verdict and judgment for 
 plaintiff. Exceptions by the defendant. 
 
 In instructing the jury, the court, among other things, said: 
 "Now, then in respect to that question, mere words made use of 
 by one person to another are no legal excuse whatever for the in- 
 fliction of personal violence. It makes no difference how violent
 
 MITIGATION OF DAMAGES. 633 
 
 the language used may be, no man has the right to use personal 
 violence upon another when he is induced to simply by the use 
 of words. That is no defense to the action. But when you come 
 to the question of whether a particular case is one that deserves 
 the awarding of exemplary damages, then you are to consider all 
 the circumstances in the case, the provocation, if any, that the de- 
 fendant had, and everything that is calculated on the one hand 
 to aggravate his act, and on the other hand to palliate his act, 
 are to be considered. 
 
 "As I have already said on the main question of compensatory 
 damages, there is no defense here whatever. No matter what 
 was said, no matter how much provocation the defendant had, he 
 is bound to answer for the compensatory damages at any event. 
 As to exemplary damages, in the exercise of a wise discretion 
 you will not allow them unless you are satisfied that the act of 
 the defendant was high-handed, wanton and inexcusable, and in 
 determining that question you are to take into view all the pro- 
 vocation that he had. Now, then, gentlemen, if the provocation 
 was slight, it is quite different, and it should have less weight 
 in determining the question whether you shall award exemplary 
 damages than it would have if the provocation was great. ' ' 
 
 Tyler, J. The court instructed the jury that there was no de- 
 fense to the claim for actual or compensatory damages; that 
 words were no legal excuse for the infliction of personal violence ; 
 that no matter how great the provocation, the defendant was 
 bound in any event to answer for these damages. 
 
 It is a general and wholesome rule of law that whenever, by 
 an act which he could have avoided and which cannot be justified 
 in law, a person inflicts an immediate injury by force, he is 
 legally answerable in damages to the party injured. 
 
 The question whether provocative words may be given in evi- 
 dence under the general issue to reduce actual damages in an ac- 
 tion of trespass for an assault and battery has undergone wide 
 discussion. 
 
 The English cases lay down the general rule that provocation 
 may mitigate damages. The case of Frazer v. Berkeley, 7 C. & P. 
 789, is often referred to, in which Lord Abinger held that evi- 
 dence might be given to show that the plaintiff in some degree 
 brought the thing upon himself ; that it would be an unwise law 
 if it did not make allowance for human infirmities ; and if a per-
 
 634 MITIGATION OP DAMAGES. 
 
 son ooniinit violence at a time when he is smarting under im- 
 mouiate provocation, that is matter of mitigation. 
 
 TiNDAL, Ch. J., in Perkins v. Vaughan, 5 Scott's N. R. 881, 
 said : "I think it will be found that the result of the cases is that 
 the matter cannot be given in evidence where it amounts to a de- 
 fense, but that where it does not amount to a defense, it may be 
 given in mitigation of damages." Linford v. Lake, 3 H. &; N". 
 275 ; Addison on Torts, § 1393, recognizes the same rule. 
 
 In this country, 2 Greenl. on Ev., § 93, states the rule that a 
 provocation by the plaintiff may be thus shown if so recent as 
 to induce a presumption that violence was committed under the 
 immediate influence of the passion thus wrongfully excited by 
 the- plaintiff. The earlier cases commonly cited in support of 
 this rule are Cushman v. Ryan, 1 Story, 100; Avery v. Ray, 1 
 Mass. 12 ; Lee v. Woolsey, 19 Johns. 241 ; and Maynard v. Berke- 
 ley, 7 Wend. 560. The Supreme Court of Massachusetts has 
 generally recognized the doctrine that immediate provocation 
 may mitigate actual damages of this kind. Mowry v. Smith, 9 
 Allen, 67 ; Tyson v. Booth, 100 Mass. 258 ; Bonino v. Caledonio, 
 144 Mass. 299. It is also said in 2 Sedgwick (7th ed.), 521: "If, 
 making due allowance for the infirmities of human temper, the 
 defendant has reasonable excuse for the violation of public or- 
 der, then there is no foundation for exemplary damages, and 
 the plaintiff can claim only compensation. It is merely the 
 corollary of this, that when there is a reasonable excuse for the 
 defendant, arising from the provocation or fault of the plaintiff, 
 but not sufficient entirely to justify the act done, there can be 
 no exemplary damages, and the circumstances of mitigation 
 must be applied to the actual damages. If it were not so the 
 plaintiff would get full compensation for damages occasioned 
 by himself. The rule ought to be and is, practically, mutual. 
 ^Malice and provocation in the defendant are punished by in- 
 flicting damages exceeding the measure of compensation, and 
 in the plaintiff by giving him less than that measure." 
 
 In Burke v. Melvin, 45 Conn. 243, Park, Ch. J., held that 
 the whole transaction should go to the jury. "They could not 
 ascertain what amount of damages the plaintiff was entitled to 
 receive by considering a part of the transaction. They must 
 look at the whole of it. They must ascertain how far the plain- 
 tiff was in fault, if in fault at all, and how far the defendant, 
 and give damages accordingly. The difference between a pro-
 
 MITIGATION OF DAMAGES. 635 
 
 voked and an unprovoked assault is obvious. The latter would 
 deserve punishment beyond the actual damages, while the dam- 
 ages in the other case would be attributable, in a great meas- 
 ure, to the misconduct of the plaintiff himself. ' ' In Bartram v. 
 Stone, 31 Conn. 159, it was held that in an action for assault 
 and battery the defendant might prove, in mitigation of dam- 
 ages, that the plaintiff, immediately before the assault, charged 
 ;him with a crime, and that his assault upon the plaintiff was 
 occasioned by "sudden heat," produced by the plaintiff's false 
 accusation. See also Richardson v. Hine, 42 Conn. 206. 
 
 In Kiff V. Youmans, 86 N. Y. 324, the plaintiff was upon 
 defendant's premises for the purpose of committing a trespass, 
 and the defendant assaulted him to prevent the act, and the 
 onl}^ question was whether he used unnecessary force. Dan- 
 FORTH, J., said: "It still remains that the plaintiff provoked the 
 trespass, was himself guilty of the act which led to the disturb- 
 ance of the public peace. Although this provocation fails to 
 justify the defendant, it may be relied upon by him in mitiga- 
 tion even of compensatory damages. This doctrine is as old 
 as the action of trespass, and is correlative to the rule which 
 permits circumstances of aggravation, such as time and place of 
 an assault, or insulting words, or other circumstances of indig- 
 nity and contumely to increase them." 
 
 In Robinson v. Rupert, 23 Pa. St. 523, the same rule is adopted, 
 the court saying: "Where there is a reasonable excuse for the 
 defendant, arising from the provocation or fault of the plain- 
 tiff, but not sufficient to entirely justify the act done, there can be 
 no exemplary damages, and the circumstances of mitigation 
 must be applied to the actual damages." 
 
 In Ireland v. Elliott, 5 la. 478, the court said: "The farthest 
 that the law has gone, and the farthest that it can go, whilst 
 attempting to maintain a rule, is to permit the high provocation 
 of language to be shown as a palliation for the acts and results 
 of anger; that is, in legal phrase, to be shown in mitigation of 
 damages." 
 
 In Thrall v. Knapp, 17 la. 468. the court said: "The clear 
 distinction is this : contemporaneous provocation of words or 
 acts are admissible, but previous provocations are not, and the 
 test is whether, 'the blood has had time to cool.' " * * * 
 "The law affords a redress for every injury. If the plaintiff 
 slandered defendant's daughters, it would entirely accord with
 
 636 MITIGATION OF DAMAGES. 
 
 his natural feeling to chastise him ; but the policy of the law is 
 against his right to do so, especially after time for reflection. 
 It affords a peaceful remedy. On the other hand the law so 
 completely disfavors violence, and so jealously guards alike in- 
 dividual rights and the public peace that, if a man gives another 
 a cuff on the ear, though it costs him nothing, no, not so much 
 as a little diachylon, yet he shall have his action." Per Lord 
 Holt, 2 Ld. Raym. 955. The reasoning of the court seems to 
 make against his rule that provocations such as happen at the 
 time of the assault may be received in evidence to reduce the 
 amount of the plaintiff's recovery. 
 
 In Moreley and Wife v. Dunbar, 24 Wis. 183, Dixon, Ch. J., 
 held; that notwithstanding what was said in Birchard v. Booth, 
 4 Wis. 85, circumstances of provocation attending the transac- 
 tion, or so recent as to constitute a part of the res gestcB, though 
 not sufficient entirely to justify the act done, may constitute an 
 excuse that may mitigate the actual damages; and, where the 
 provocation is great and calculated to excite strong feelings of 
 resentment, may reduce them to a sum which is merely nominal. 
 But in Wilson v. Young, 31 Wis. 574, it was held by a majority 
 of the court that provocation could go to reduce compensatory 
 damages only so far as these should be given for injury to the 
 feelings, Dixon, Ch. J., however, adhering to the rule in Moreley 
 V. Dunbar, that it might go to reduce all compensatory dam- 
 ages; but in Fenelon v. Butts, 53 Wis. 344, and in Corcoran v. 
 Harron, 55 Wis. 120, it was clearly held that personal abuse of 
 the assailant by the party assaulted may be considered in miti- 
 gation of punitory, but not of actual damages, which include those 
 allowed for mental and bodily suffering ; that a man commencing 
 an assault and battery under such circumstances of provocation 
 is liable for the actual damages which result from such assault. 
 
 In Donnelly v. Harris et al., 41 111. 126, the court instructed 
 the jury that words spoken might be considered in mitigation of 
 damages. Walker, Ch. J., in delivering the opinion of the Su- 
 preme Court remarked : ' ' Had this modification been limited to 
 exemplary damages it would have been correct, but it may well 
 have been understood by the jury as applying to actual dam- 
 ages, and they would thus have been misled. To allow them the 
 effect to mitigate actual damages would be virtually to allow them 
 to be used as a defense. To say they constitute no defense, and 
 then say they may mitigate all but nominal damages, would, we
 
 MITIGATION OF DAMAGES. 637 
 
 think, be doing by indirection what has been prohibited from 
 being done directly. To give to words this effect, would be to 
 abrogate, in effect, one of the most firmly established rules of the 
 law." See also Ogden v. Claycomb, 52 111. 366. In Gizler v. 
 Witzel, 82 111. 322, the court said in reference to the charge 
 of the court below : ' ' The third instruction tells the jury among 
 other things that the plaintiff, in order to recover, should have 
 been guilty of no provocation. This is error. It is wholly im- 
 material what language he may have used, so far as the right 
 to maintain an action is concerned, and even if he went beyond 
 words and committed a technical assault, the acts of the defend- 
 ant must still be limited to a reasonable self-defense." 
 
 In Norris v. Casel, 90 Ind. 143, this precise question was not 
 raised, but the court said in reference to the instructions of the 
 court below, that the first part of the charge, that the provoca- 
 tion by mere words, however gross and abusive, cannot justify 
 an assault, was correct, and that a person w^ho makes such words 
 a pretext for committing an assault, commits thereby not only 
 a mere wrong, but a crime, and the person so assaulted is not 
 deprived of the right of reasonable self-defense, even though 
 he used the insulting language to provoke the assault against 
 which he defends himself; but whatever may have been his 
 purpose in using the abusive language, it cannot be made an 
 excuse for the assault. 
 
 Johnson v. McKee, 27 Mich. 471, was a case very similar to 
 the one at bar, and was given to the jury under like instructions. 
 The Supreme Court said: "In regard to provocation, the court 
 charged in effect, that if plaintiff provoked defendant, and the 
 assault was the result of that provocation, he could recover 
 nothing beyond his actual damages and outlays, and would be 
 precluded from claiming any damages for injured feelings or 
 mental anxiety. In other words he would be cut off from all 
 the aggravated damages allowed in cases of willful injury, and 
 sometimes loosely called exemplary damages. As there is no 
 case in which a party who is damaged and is allowed to recover 
 anything substantial, cannot recover his actual damages, the 
 rule laid down by the court was certainly quite liberal enough, 
 and if any one could complain it was not the defendant." 
 
 The court said in Prentiss v. Shaw, 56 Me. 712: "We under- 
 stand the rule to be this: a party shall recover as a pecuniary 
 recompense the amount of money which shall be a remuner-
 
 638 MITIGATION OF DAMAGES. 
 
 at ion, as near as maj- be, for the actual, tangible, and imme- 
 diate result, injur}', or cousoquence of the trespass to his person 
 or property. * * * if the assault was illegal and unjustified, 
 why is not the plaintiff in such case entitled to the benefit of 
 the general rule, before stated, that a party guilty of an illegal 
 trespass on another's person or property, must pay all the dam- 
 ages to such person or property, directly and actually resulting 
 from the illegal act. * * * "Where the trespass or injury is 
 upon personal or real property it would be a novelty to hear a 
 claim for a reduction of the actual injury based on the ground 
 of provocation by words. If, instead of the owner's arm, the 
 assailant had broken his horse's leg, * * * must not the 
 defendant be held to pay the full value of the horse thus ren- 
 dered useless?" The learned judge admits that the law has 
 sanctioned, by a long series of decisions, the admission of evi- 
 dence tending to show, on one side, aggravation, and on the 
 other, mitigation of the damages claimed, but he holds the law 
 to be that mitigating circumstances can only be set against ex- 
 emplary damages, and cannot be used to reduce the actual dam- 
 ages directly resulting from the defendant's unlawful act. 
 
 In a learned article on damages, in actions ex delicto, 3 Am. 
 Jur. 287, it is said: "If the law awards damages for an injury, 
 it would seem absurd, even without resorting to the definition 
 of damages, to say that they shall be for a part only of the 
 injury." 
 
 "It is a reasonable and a legal principle that the compensa- 
 tion should be equivalent to the injury. There may be some 
 occasional departures from this principle, but I think it will be 
 found safest to adhere to it in all cases proper for a legal in- 
 demnification in the shape of damages." Ch. J. Shippen, 4 
 Dall. 207. 
 
 Jacobs v. Hoover, 9 Minn. 204, Cushman v. Waddell, Bald- 
 win, 57, and McBride v. McLaughlin, 5 Watts, 375, are strong 
 authorities in support of the rule that provocative language 
 used by the plaintiff at the time of the battery should be given in 
 evidence only in mitigation of exemplary damages, and that un- 
 less the plaintiff has given the defendant a provocation amount- 
 ing in law to a justification he is entitled to receive compensa- 
 tion for the actual injury sustained. 
 
 If provocative words may mitigate, it follows that they may 
 reduce the damages to a mere nominal sum and thus practically
 
 MITIGATION OF DAMAGES. 639 
 
 justify an assault and battery. But why under this rule may 
 they not fully justify? If in one case, the provocation is so 
 great that the jury may award only nominal damages, why, in 
 another, in which the provocation is far greater, should they 
 not be permitted to acquit the defendant and thus overturn the 
 well-settled rule of law, that words cannot justify an assault? 
 On the other hand if words cannot justify they should not miti- 
 gate. A defendant should not be heard to say that the plain- 
 tiff was first in the wrong by abusing him with insulting words 
 and therefore, though he struck and injured the plaintiff, he was 
 only partly in the wrong and should pay only part of the actual 
 damages. 
 
 If the right of the plaintiff to recover actual damages were 
 in any degree dependent on the defendant's intent, then the 
 plaintiff's provocation to the defendant to commit the assault 
 upon him would be legitimate evidence bearing upon that ques- 
 tion, but it is not. Even lunatics and idiots are liable for actual 
 damages done by them to the property or person of another, 
 and certainly a person in the full possession of his faculties 
 should be held liable for his actual injuries to another unless 
 done in self-defense or under reasonable apprehension that the 
 plaintiff was about to do him bodily harm. The law is that a 
 person is liable in an action of trespass for an assault and bat- 
 tery, although the plaintiff made the first assault, if the defend- 
 ant used more force than was necessary for his protection, and 
 the symmetry of the law is better preserved by holding that 
 the defendant's liability for actual damages begins with the 
 beginning of his own wrongful act. It is certainly in accord- 
 ance with what this court held in Rowland v. Day & Dean, 
 56 Vt. 318, that, "That law abhors the use of force either for 
 attack or defense, and never permits its use unnecessarily." 
 
 Exemplary damages are not recoverable as matter of right, 
 but as was stated by Wheeler, J., in Earl and Wife v. Tupper, 
 45 Vt. 275, they are given to stamp the condemnation of the 
 jury upon the acts of the defendant on account of their ma- 
 licious or oppressive character. Boardman v. Goldsmith, 48 
 Vt. 403, and cases cited ; Mayne on Dam. 5865 ; Voltz v. Black- 
 mer, 64 N. Y. 440. 
 
 The instructions to the jury upon this branch of the case were 
 in substantial accordance with the law as above stated. As 
 exemplary damages were awardable in the discretion of the
 
 640 MITIGATION OF DAMAGES. 
 
 jury, the charge was also correct that the influence of an ex- 
 ample in a case of this kind depended on the character and 
 standing: of the parties involved. 
 
 We tiud no error in the charge, and the judgment is af- 
 firmed. 
 
 NICKOLL V. ASHTON. 
 
 L. R. 1900. 2 Q. B. 298. 
 
 Mathew, J. This is an action brought to recover damages 
 for breach of a contract dated October 24, 1899, whereby the 
 defendants sold to the plaintiffs a cargo of Egyptian cotton- 
 seed to be shipped at Alexandria, Port Said and Ismailia 
 during the month of January, 1900, by the steamship Orlando 
 at 6 1. 3s. 9d. per ton. After the contract had been so made the 
 Orlando, which was then in the Baltic, was stranded by perils 
 of the sea, and was so damaged as to render it impossible for 
 her to arrive at the port of loading within the time stipulated; 
 and notice of that fact was on December 20 given to the plain- 
 tiffs. Thereupon there was a proposal made to settle any dispute 
 between the parties by arbitration ; but the attempt to arbitrate 
 became abortive, and the case came into court and was tried 
 before me. 
 
 It was contended on behalf of the plaintiffs that the con- 
 tract to ship the cargo in January was absolute, and that a 
 warranty should therefore be implied that the ship would then 
 be fit to take the cargo on board. It was said that the defend- 
 ants, not having provided by the terms of their contract against 
 such a contingency, took upon themselves the risk of the ship 
 being lost or disabled by perils of the sea. The principle upon 
 which the plaintiffs rested their contention is indicated in a 
 number of cases of which the recent case of Ashmore & Son v. 
 Cox & Co., 1899, 1 Q. B. 436, is an instance. 
 
 On the other hand, it was contended for the defendants that 
 it was unreasonable to imply such a warranty, for no man of 
 business would be likely in such a contract to insure the safety 
 of the ship from the date of the contract till the following 
 January. Both parties, it was said, assumed that the ship 
 would be fit to fulfill her engagement, and therefore had con- 
 templated her continued existence and fitness to take the cargo
 
 MITIGATION OF DAMAGEs. 641 
 
 on board as the basis of what was to be done. It was argued 
 that a condition ought to be implied that the defendants should 
 be excused from performance of the contract when performance 
 became impossible by the loss or damage of the ship by sea peril. 
 Many cases were cited in support of this contention but reliance 
 was principally placed upon the statement of the law by Black- 
 bum, J., in Taylor v. Caldwell, 3 B. «fe S. at p. 833, which is in 
 these terms: "There seems no doubt that where there is a 
 positive contract to do a thing not in itself unlawful, the con- 
 tractor must perform it or pay damages for not doing it, al- 
 though in consequence of unforeseen accidents the perform- 
 ance of his contract has became unexpectedly burthensome or 
 even impossible. * * * But this rule is only applicable 
 when the contract is positive and absolute, and not subject to 
 any condition either express or implied; and there are authori- 
 ties which, as we think, establish the principle that where, from 
 the nature of the contract, it appears that the parties must from 
 the beginning have known that it could not be fulfilled unless 
 when the time for the fulfillment of the contract arrived some 
 particular specified thing continued to exist, so that, when en- 
 tering into the contract, they must have contemplated such con- 
 tinuing existence as the foundation of Avhat was to be done ; there, 
 in the absence of any express or implied warranty that the thing 
 shall exist, the contract is not to be construed as a positive con- 
 tract, but as subject to an implied condition that the parties 
 shall be excused in case, before breach, performance becomes im- 
 possible from the perishing of the thing without default of the 
 contractor." In the course of argument cases were referred to 
 as showing that that principle is well established in the law, and 
 it may be pointed out that it is recognized in the Sale of Goods 
 Act, 1893, s. 7 of which provides that "Where there is an agree- 
 ment to sell specific goods and subsequently the goods, without 
 any fault on the part of the seller or buyer, perish before the 
 risk passes to the buyer, the agreement is thereby avoided." 
 It seems to me that the defendants' contention is right, and 
 that under the circumstances the contract was at an end. It had 
 become impossible of performance, and the condition ought to 
 be implied that neither party was to be bound. 
 
 It was further contended for the plaintiffs that, although 
 such an implication might arise under other circumstances, it 
 was not reasonable having regard to the provisions of clause 5
 
 042 MITIGATION OF DAMAGES. 
 
 of the contract, wliieli was in the following terms: "In case 
 of prohibition of export, blockade, or hostilities, preventing ship- 
 ment, this contract or any unfulliiled part tliereof is to be 
 cancelled." It was said that that clause contained the sole con- 
 ditions on which the contract was not to be binding, and that no 
 additional condition ought to be implied, upon the principle that 
 expression facit cessare taciturn. The conditions, however, are 
 not repugnant. They are all useful and reasonable. And the 
 implied condition contended for by the defendants applies to a 
 different stage of the transaction from that contemplated by 
 clause 5. T therefore think that that contention of the plaintiff 
 fails. 
 
 But then it was asked, How far is the implication of this con- 
 dition to go? Is it to be implied in all cases, as, for example, 
 where the shipowner sends the vessel to another port, or absolutely 
 refuses to take the cargo on board? The answer is that in such 
 a case the implication w^ould not be reasonable, for the plaintiffs 
 would naturally assume that the defendants were protected by 
 a contract of charterparty which would bind the shipowTier to 
 take the cargo on board, and that there would consequently 
 be a remedy over against him if he refused to do so. 
 
 There is one other matter which was much discussed in argu- 
 ment, and to which, although it is unnecessary for the purposes 
 of my judgment, I should like to refer, and that is the question 
 as what would have been the proper measure of damages if 
 the plaintiffs had been entitled to recover. It appeared 
 thai towards the end of December the plaintiffs might have ob- 
 tained another cargo at the then market price, which was much 
 lower than the price at the end of January. But it was insisted for 
 the plaintiffs that they were entitled to wait and watch the rising 
 market until the end of January, and then claim their damages 
 on the footing of the then market price. In my opinion that con- 
 tention was wholly untenable. Having regard to the decision 
 in Roth & Co. v. Taysen, 1 Com. Cas. 306, I think the plaintiffs 
 were boimd to endeavor to mitigate the loss by acting as or- 
 dinary men of business would have acted, that is to say, by 
 determining the liability at the earliest date at which they 
 were able to obtain another cargo. There must be .judgment for 
 the defendants. 
 
 Judgment for defendants.
 
 MITIGATION OP DAMAGES. 643 
 
 In an action of trespass de honi^ asportatis, when the goods taken 
 by the trespasser are restored to the plaintiff and accepted by him, 
 that fact may be shown in mitigation of damages. Hopple v. Higbee, 
 3 Zab. 342. 
 
 Evidence of the plaintiff's general bad character, in an action of 
 slander, is admissible in mitigation of damages. Sayre v. Sayre, 1 
 Dutcher 235. 
 
 In an action for slander imputing unchastity to a married woman, 
 the wife of plaintiff, it is allowable for defendant to prove the woman's 
 general reputation for chastity was bad. Duval v. Davey, 32 Oh. St. 604. 
 
 Sick benefits received by the plaintiff from any source other than 
 the defendant cannot be considered by the jury in making up their 
 verdict. Baltimore City Passenger Ry. Co. v. Baer, 90 Md. 97.
 
 XIII. INTEREST. 
 ATWOOD V. BOSTON FORWARDING & TRANSFER CO. 
 
 Massachusetts, 1904. 185 Mass. 557. 
 
 Knowlton, C. J. The plaintiffs' horse was seriously injured 
 through negligence for which the defendant is liable, and, after 
 unavailing efforts for nearly a month to cure him, he was killed. 
 The exceptions relate to the question whether the plaintiffs, 
 having a reasonable expectation that the horse could be cured, 
 and that their damages could be lessened by an attempt to cure 
 him, are entitled to recover such a sum as they reasonably and 
 prudently expended in making this attempt. The defendant 
 asked the court to rule that in no event can the damages exceed 
 the value of the horse at the time of the injury. 
 
 When an animal is killed throught the fault of the defendant, 
 the damage which the oAvner may recover is the value of the 
 animal at the time of the injury. But if an animal is injured 
 in such a way that proper care and attention reasonably may be 
 expected to effect a cure, which will leave the damage from the 
 injury much less than if he died, it is the duty of the owner to 
 give it such care and attention, in order that the damages may 
 not be augmented by neglect. Tindall v. Bell, 11 M. & W. 228 ; 
 Graves v. Moses, 13 Minn. 337. The expense properly incurred 
 for this purpose is a part of the damage to the owner, for which 
 he is entitled to compensation, as well as for the diminution in 
 value or other loss that may finally result directly from the in- 
 jury notwithstanding these efforts. Gillett v. Western Railroad 
 Co., 8 Allen, 560; Johnson v. Holyoke, 105 ]\Iass. 80; Wheeler 
 V. To^m of Townshend, 42 Vt. 15; Street v. Laumier, 34 Mo. 
 469. These expenses reasonably incurred in making a proper 
 effort to diminish the loss are to be paid as well when the effort 
 is unavailing as when it is successful. It would be most unjust 
 to impose upon an owner the duty of trying to effect a cure, 
 if that is what ought to be done, and to leave him remediless 
 for expenses so incurred if his attempt proves unsuccessful. 
 Of course, he is bound to act in good faith, and to exercise a 
 
 644
 
 INTEREST. 645 
 
 sound discretion, so as not to make an unreasonable expenditure, 
 in reference to the probability of diminishing the damages; but 
 if money is prudently expended in the hope of mitigating the 
 injury, and notwithstanding this the animal is lost, there is no 
 good reason why this expense, as well as the value of the animal, 
 should not be included as a part of the damages. This is in 
 accordance with the weight of authority. Watson v. Proprietors 
 of the Lisbon Bridge, 14 Me. 201; Board of Commissioners of 
 Sullivan County v. Arnett, 116 Ind. 438 ; Gulf, C. & S. F. R. Co. 
 V. Keith, 74 Tex. 287 ; St. Louis, I. M. & S. Railway v. Biggs, 50 
 Ark. 169. See, also, Ellis v. Hilton, 78 Mich. 150 ; 2 Sedgwick 
 on Dam. (8th Ed.) 17; 1 Sutherland on Dam. (3d Ed.) ^ 67. 
 "VVe are of opinion that there was no error in the ruling given on 
 this point. 
 
 The defendant contends that the jury ought not to have been 
 instructed to add interest in making up their verdict. "We 
 think that in this commonwealth interest, eo nomine, is not al- 
 lowed in this class of cases, but that, in determining the amount 
 of damages, the jury may consider the lapse of time since the 
 injury, and the fact that their assessment is to be made on the 
 day of the verdict for a loss which occurred a long time before. 
 This may be necessary to make the compensation adequate. 
 Frazer v. Bigelow Carpet Co., 141 Mass. 126; Ainsworth v. 
 Laking, 180 Mass. 397-402. For the reasons stated in the case 
 last cited, we do not think the defendant is shown to have been 
 injured, so as to make a new trial necessary. 
 
 Exceptions overruled. 
 
 BERNHARD v. ROCHESTER GERMAN INS. CO. 
 
 Connecticut, 1906. 79 Conn. 388. 
 
 Action to recover on a fire insurance policy, brought in the 
 Superior Court, where a demurrer to the complaint was over- 
 ruled. A judgment was rendered for the plaintiff and defend- 
 ant appeals. 
 
 Prentice, J. The defendant issued its policies to the plaintiff 
 upon his dwelling house and its contents. A fire occurred. The 
 insured is now seeking to recover upon the policies on account 
 of the loss thereby occasioned. The facts found disclose (1)
 
 G4G INTEREST. 
 
 that the required proofs of h:)ss were not furnished to the de- 
 feudaut within the time prescribed therefor; and (2) that no 
 award has been made by the appraisers to whom the ascertain- 
 ment of the amounts of loss had, prior to the suit, been sub- 
 mitted. The defendant contends that each of these facts is suf- 
 ticieutto preclude the plaintiff's recovery. * * * 
 
 In rendering judgment the court included interest from July 
 1, 1901, being the date of the defendant's repudiation of lia- 
 bility, upon the amount of the loss upon the personal property, 
 but none upon the amount of the building loss. The defendant 
 complains of the inclusion of this interest. The court made its 
 distinction between the two losses upon the ground that the 
 latter loss was not definitely ascertainable until it was deter- 
 mined by the judgment of the court, while there was no serious 
 controversy between the parties as to the amount of the former. 
 There was no error in the action of the court; neither would 
 there have been had interest upon the other loss been included. 
 By the inclusion of interest upon the amoiuits which the policies 
 obligated the defendant to pay from the time when it refused 
 recognition of any liability and put an end to the prescribed 
 processes of adjustment, and by such inclusion only could the 
 court compensate the plaintiff for what he had suffered by rea- 
 son of the delay resulting from the defendant's wrongful act. 
 ' ' Interest by our law is allowed on the groimd of some contract, 
 express or implied, to pay it, or as damage for the breach of 
 some contract or the violation of some duty. ' ' Selleck v. French, 
 1 Conn. 32, 33, 6 Am. Dec. 185. This court has never adopted 
 for general application the arbitrary rule that interest upon 
 unliquidated demands will not be allowed as damages. On the 
 contrary, we have long and repeatedly held that, in certain 
 classes of cases, such an element of damage was one to be prop- 
 erly taken into account. White v. Webb, 15 Conn. 305 ; Clark 
 V. Whittaker, 19 Conn. 319, 48 Am. Dec. 160 ; Cook v. Loomis, 
 26 Conn. 483; Oviatt v. Pond, 29 Conn. 479, 485; Clark v. 
 Clark, 46 Conn. 586, 590 ; Union Hardware Co. v. Plume & At- 
 wood Mfg. Co., 58 Conn. 219, 222, 20 Atl. 455; Regan v. New 
 York & N. E. R. Co., 60 Conn. 124, 142, 22 Atl. 503, 25 Am. St. 
 Rep. 306 ; Healy v. Fallon, 69 Conn. 235, 37 Atl. 495 ; New York, 
 X. H. & H. R. Co. V. Ansonia L. & W. P. Co., 72 Conn. 703, 705, 
 46 Atl. 157. 
 
 The purpose sought in awarding damages other than vindictive
 
 INTEREST. 647 
 
 is to make a fair compensatiou to one who has suffered an in- 
 jury. Barker v. Lewis Storage & Transfer Co., 78 Conn. 198. 
 Courts are more and more coming to recognize that a rule for- 
 bidding an allowance for interest upon unliquidated damages is 
 one well calculated to defeat that purpose in many cases, and 
 that no right reason exists for drawing an arbitrary distinction 
 between liquidated and unliquidated damages. Sedgwick on 
 Damages (8th Ed.) §§ 299, 300, 312, 315. There are actions to 
 v.hich the suggested rule is applicable. Regan v. New York & 
 N. E. R. Co., 60 Conn. 124. Others, however, present con- 
 ditions where without an allowance for interest, although the 
 demand may be unliquidated, fair compensation for the injury 
 done would not be accorded and justice thus denied. The de- 
 termination of whether or no interest is to be recognized as a 
 proper element of damage is one to be made in view of the de- 
 mands of justice rather than through the application of any 
 arbitrary rule. New York, N. H. &, H. R. Co. v. Ansonia L. & 
 W. P. Co., 72 Conn. 703, 705. 
 
 There is no error. The other Judges concurred. 
 
 In actions for tort, in absence of statute, interest is not in general 
 allowable as an absolute right. Drumra-Flato Com'n. Co. v. Edmisson, 
 208 U. S. 534. 
 
 In Frazer v. Bigelow Carpet Co. 141 Mass. 126, it was held that in 
 action for the negligent destruction of property interest is allowed. 
 
 Interest is not allowed as a matter of law in cases of tort. Its 
 allowance as damages rests in the discretion of the jury. Lincoln v. 
 Claflin 7 Wall. 139. 
 
 A partner who fails to pay in his contribution to the capital stock 
 is liable for interest thereon. Delp v. Edlis, 190 Pa. 25. 
 
 Bonds and coupons by universal usage and custom have all the 
 qualities of com.mercial paper and interest is allowed upon them. 
 Aurora City v. West, 7 Wall. 82. 
 
 In a case of eminent domain, interest cannot be allowed until the 
 possession of the property has been taken. South Park Com'r. v. 
 Dunlevy, 91 111. 49. See also Old Colony Railroad v. Miller, 125 Mass. 1. 
 
 In an action for rent, • the defendant can be charged with interest 
 upon each item of rent from the time when it fell due. Van 
 Rensselaer v. .lewett, 2 N. Y. 135. 
 
 Interest is not allowed in a case of personal injuries resulting from 
 the negligence of the defendant. Louisville & Nashville Ry. Co. v. 
 Wallace, 91 Tenn. 35.
 
 XIV. EXPENSES OF LITIGATION. 
 
 DAY V. WOODWORTII. 
 
 United States Supreme Court, 1851. 13 How. 3G3. 
 
 This was an action of trespass quare clausum fregit, brought 
 by Day, a citizen of New York against the defendants for pull- 
 ing down a mill-dam in Great Barrington, Masschusetts. 
 
 Grier, j * * * 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 maintain 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, etc., if there was any 
 expense in taking down more of the dam than was justifiable," 
 and gave as a reason that the defendants thereby became tres- 
 passers ab initio. 
 
 The court instructed the jury "that if they should find for 
 the plaintiff 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 damages the cost of replacing such ex- 
 cess, and compensation for any delay or damage occasioned by 
 such excess, but not anything for counsel fees or extra compensa- 
 tion 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 prosecuting his suit. 
 
 It is a well-established principle of the common law, that in 
 actions of trespass and all actions on the ease for torts, a jury 
 may inflict what are called exemplary, punitive, or vindictive 
 damages upon a defendant, having in view the enormity of his 
 
 648
 
 EXPENSES OF LITIGATION. 649 
 
 offence rather than the measure of compensation to the plain- 
 tiff. We 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 argument. 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 depend on the circumstances, showing the 
 degree of moral turpitude or atrocity of the defendant's con- 
 duct, and may properly be termed exemplary or vindictive rather 
 than compensatory. 
 
 In actions of trespass, where the injury has been wanton and 
 malicious, or gross and outrageous, courts permit juries to add 
 to the measured compensation of the plaintiff which he would 
 have been entitled to recover, had the injury been inflicted 
 without design or intention, something farther by way of punish- 
 ment 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 inflicted must depend 
 on the peculiar circumstances of each case. It must be evident, 
 also, that as it depends upon the degree of malice, wantonness, 
 oppression, or outrage of the defendant's conduct, the punish- 
 ment of his delinquency cannot be measured by the expenses of 
 the 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 jur\^ to include in their 
 verdict, in certain cases, a sum sufficient to indemnify the plain- 
 tiff 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 judgment, the defendant was in misericordia 
 for his unjust detention of the plaintiff's debt, and was not
 
 650 EXPENSES OF LITIGATION. 
 
 therefore punished with the expensa I His under that title. But 
 this being considered a great hardship, the statute of Gloucester 
 (G Edw. 1, e. 1) was passed, which gave costs in all cases when 
 the itlaintift' recovered damages. This was the origin of costs 
 dc inennuittu; for when the damages were found by the jury, 
 the judges held themselves obliged to tax the moderate fees of 
 eoimsel and attorneys that attended the cause. See Bac. Abr. 
 tit. Costs. 
 
 Under the provisions of this statute every court ot connnon 
 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 es- 
 pecially so in this country (where the legislatures of the dif- 
 ferent States have so much reduced attorneys' fee-bills, and 
 refused to allow the honorarium paid to counsel 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 
 coimsel fees and expenses as a part of the actual damages in- 
 curred by the plaintiff, and then the court add legal costs de in- 
 cremento, the defendants 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 we are informed, 
 has invested the jury with this power or privilege. It has been 
 sometimes exercised by the permission 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 defendant 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 dis- 
 cretion 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 plaintiff; and yet neither court nor 
 jury can compensate him, if the verdict and judgment be in his
 
 EXPENSES OF LITIGATION. 651 
 
 favor, or amerce the plaintift' jjro falso clamore beyond tax costs. 
 Where such a rule of law exists allowing the jury to find costs 
 de incretncnto in the shape of counsel fees, or that equally in- 
 definite and unknown quantity denominated (in the plaintiff's 
 prayer for instruction) "&c.," they should be permitted to do 
 the same for the defendant 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 expenditure in the suit, 
 and as punishment of defendant for his unjust detention of the 
 debt; and it is a moral offence of no higher order, to refuse 
 to pay the price of a patent or the damages for a trespass, which 
 is not wilful 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 Lincoln v. the Saratoga Railroad, 29 Wendell, 435. 
 
 We are of the 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 clearly proper as re- 
 spected the measure of damages, and that the jury had nothing 
 to do with the question whether their verdict would carry costs. 
 
 The judgment is therefore affirmed. 
 
 AGIUS V. GREAT WESTERN COLLIERY COMPANY. 
 
 L. R. 1899. 1 Q. B. 413. 
 
 Action for breach of contract by defendants for supply of 
 coal to plaintiff. Plaintiff had contracted with one Nye to sup- 
 ply bunker coal for his, Nj^e's steamers; and, not having such 
 coal owing to defendant's breach, he was sued by Nye and sub- 
 jected to costs and extra costs. Plaintiff then brought this ac- 
 tion, claiming as damages the money paid as costs, which he duly 
 secured and defendant appeals. 
 
 Earl op Halsbury, L. C. I am of opinion that this appeal 
 must be dismissed. Only one question of any substance remains 
 to be decided in this case. With regard to the question whether 
 there was a breach by the defendants of their eontraot, it ap-
 
 G52 EXPENSES OF LITIGATIOX. 
 
 pears to me that there was ample evidence of such a breach. It 
 is really iiiniecessary to retry that question, which was very 
 iaintly contested before the learned judge at the trial. It being, 
 therefore, sufficiently proved, and practically uncontested, that 
 there was a breach of contract by the defendants, the question 
 arises, what amount of damage is recoverable for that breach of 
 contract? Upon the hypothesis that there was a breach of con- 
 tract, it was ultimately admitted, and it really could not upon 
 the evidence be contested, that the plaintiff is entitled to re- 
 cover as damages the sum which he had to pay to the shipowners 
 in their action against him; and in substance, therefore, the 
 onlj' question which we now have to determine is whether or not 
 the costs incurred by the plaintiff in defending that action can 
 be recovered by him from the defendants in the present action. 
 This question certainly arises under circumstances w^iich would 
 render it a very unreasonable state of the law, if the plaintiff 
 could not recover those costs. The result of the course taken 
 by the plaintiff has been that, with regard to a very serious and 
 important portion of the claim made by the shipowners, he 
 succeeded in that action, and has in consequence recovered from 
 the plaintiffs therein some costs for which credit has to be given 
 to the defendants in the present action; and the plaintiff con- 
 tends that what he reasonably did in his own interest in defend- 
 ing the action has inured to the benefit of the present defend- 
 ants, for the amount of the damages, which admittedly would 
 be recoverable over against them, was thereby reduced from the 
 150 £., the amount which was claimed, to 20 £. It would be a 
 strange thing, in my opinion, if the success of the defense, by 
 which the damages were so reduced, prevented the plaintiff's 
 recovering from the defendants the costs which he has incurred 
 therein. I am very glad to say that in my view the law is not 
 as contended for by the defendants. It was laid down in 1854 
 in the case of Hadley v. Baxendale, 9 Ex. 341, and has ever 
 since been accepted as the guiding rule of law as to the measure 
 of damages in an action of contract, that, when two parties have 
 made a contract which one of them has broken, then, if the dam- 
 ages claimed in respect of the breach of contract are such as 
 may be fairly and reasonably considered as arising naturally, 
 i. e., according to the usual course of things, from the breach of 
 contract itself or such as may reasonably be supposed to have 
 been in the contemplation of the parties, at the time when they
 
 EXPENSES OF LITIGATION. 653 
 
 made the contract, as the probable result of a breach of it, they 
 are recoverable. Applying that test to the present case, is what 
 happened here a consequence that might reasonably be expected 
 to follow from the defendants' breach of contract? Both parties 
 carried on business at Cardiff. The defendants knew what the 
 plaintiff's business was, and that the coals were required for 
 the purpose of supplying coals to steamers lying in the tidal 
 harbor at Cardiff. Under the circumstances it is idle to suggest 
 that it was not in the contemplation of the parties that a breach 
 of the contract to supply coals would probably lead to such a 
 claim against the plaintiff as was set up by the shipowners in 
 this case. It would, under the circumstances, almost necessarily 
 follow from a breach of the contract that such a claim would be 
 made. It is also obvious that, if such a claim were made, it 
 would be reasonable for the plaintiff, if, as was the case, he could 
 not show that he was not liable, to take such steps as might be 
 necessary to ensure that, at all events, the damages recovered 
 should not be extravagant. It would be contrary to the ordinary 
 principles of conduct in business that he should not endeavor 
 to do this. This is exactly what the plaintiff did in the present 
 case. The question is whether upon the principle laid dowTi in 
 Hadley v. Baxendale, supra, the plaintiff has not a right to re- 
 cover these costs as reasonably incidental to the breach of con- 
 tract. * * * 
 
 I think that the judgment must be affirmed. * * * 
 Chitty, L. J. I am of the same opinion. I think the case 
 falls within the rule laid do^^Ti in Hadley v. Baxendale, supra, 
 namely, that damages are recoverable in an action for breach of 
 contract which may reasonably be supposed to have been in the 
 contemplation of the parties when they made the contract as 
 the probable consequences of a breach of it. The coal was sold in 
 this case for a particular purpose as is shoAvn upon the face of 
 the contract itself. The plaintiff carried on business in the same 
 town as the defendants, and they knew the nature of his busi- 
 ness; and it appears from the terms of the letters which con- 
 stitute the contract that they knew that the coal was wanted for 
 steamers of which the steamer delayed was one. It is not nec- 
 essary for me to repeat the facts at length, but I am satisfied 
 that they were such as to bring the case within the doctrine of 
 Hadley v. Baxendale, supra, so far as the damages recovered by 
 the shipowners from the plaintiff are concerned. Then comes
 
 654: EXPENSES OF LITIGATION. 
 
 the question as to the costs of the defense of the action brought 
 by the shipowners against the plaintitf. Channell, J., has held 
 that the course taken by the plaintiff in defending that action 
 was reasonable. It was taken really not only in his own in- 
 terest, but in that of the defendants, for the result of it was to 
 rrduce the damages from 150 £., which was the amount claimed, 
 to 20 £., and, by taking the step of paying 20 £., into court, the 
 piaintiff got from the shipowners the costs as between party 
 and part}' of the proceedings subsequent to the payment into 
 court. So the defense was one which in the result was for the 
 benefit of the defendants. "With regard to the authorities I 
 have nothing to add except to say that I think that Hammond & 
 Co. V, Bussey, 20 Q. B. D. 79, was rightly decided, and that, if 
 there is any conflict between it and Baxendale v. London, 
 Chatham and Dover Ry. Co., L. R. 10 Ex. 35, I think it ought 
 to be followed rather than that case. 
 
 "With regard to the scale upon which Channell, J. has allowed 
 the costs, I think that he made the right order in confining them 
 to such costs as were reasonably incurred by the plaintiff, 
 namely, first those which he had to pay to the plaintiffs, in the 
 action against him in respect of the proceedings prior to the 
 payment into court, and secondly his own costs subsequent to 
 that date, not meaning thereby any extravagant costs which he 
 might choose to incur, but only reasonable costs upon the foot- 
 ing that the costs were to be paid by a third party. 
 
 Appeal dismissed. 
 
 As a general rule when a party is called upon to defend a suit, 
 founded upon a wrong, for whicli 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 wrongful act of the other, 
 if he has notified the other to appear and defend the suit. Westfield 
 V. Mayo, 122 Mass. 100. 
 
 Counsel fees were allowed in an action for a breach of contract 
 not to engage in the laundry business. My Laundry Co. v. Schmeling, 
 129 Wis. 597.
 
 XV. EVIDENCE. 
 
 LOUISVILLE N. A. & C. R. R. v. SPARKS. 
 
 Indiana, 1895. 12 Ind. 410. 
 
 Reinhard, J. The appellees are husband and wife, and this 
 action was brought by them against the appellant for damages 
 to the real estate of the wife on account of the alleged negligence 
 of the appellant in reconstructing a culvert near its railroad 
 and the said real estate, causing the water to back, overflow, 
 and stand upon the same, and injuring it in various ways, and 
 injuring the crops thereon and the health of the appellee Fannie 
 A. Sparks. In the court below the appellees recovered. AX the 
 trial, appellees' counsel propounded to John P. Sparks, the hus- 
 band and witness of Fannie A. Sparks, the following question: 
 ''You may state to the jury what, in your judgment, is the de- 
 preciation in value of the property, and injury to the crops, on 
 account of these overflows that you have detailed occurring since 
 the sewer pipe was substituted for the culvert." To this ques- 
 tion the appellant's counsel objected, because it sought to elicit 
 from, the witness a conclusion, and not a fact. The objection 
 was overruled, and the appellant excepted. The witness then 
 answered, "A thousand dollars," which was all the evidence 
 given on the subject of the amount of damages. The question 
 involved two elements of damages, viz., damages to tlie real 
 estate, and damages to the growing crops. Each of these formed 
 a proper subject of inquiry, wliich should have been pursued 
 separately, although tho object was not based upon the ground 
 of the duplicity of the question. 
 
 Before determining the question before us, it is proper to as- 
 certain what is the measure of damages for the injury to the 
 land and to the growing crops. Injuries of the character here 
 sued for are somewhat analogous to those involved in actions for 
 damages for the wron-iful appropriation of land for municipal 
 corporations or railroad companies. In all such cases, where the 
 injury is a permanent one, the measure of damages to the land 
 is the diminished market value of the same by reason of the in- 
 
 6.^5
 
 651' EVIDENCE. 
 
 jury, which is ascertained by proof of the market value before 
 tho injury and the market value after the injury, leaving it 
 to the jury or court trying tlie cause to calculate the difference. 
 If, however, the injury is not a permanent one, and the action 
 does not recognize the right of the defendant to continue the ob- 
 struction, then it seems that damages can only be recovered up 
 to the time of the commencement of the action, and that succes- 
 sive actions may be brought for successive injuries resulting 
 from tlie same, and the measure of damages is found in the de- 
 preciation, not of the value of the land, but of the value of the 
 use of the same, which is ascertained by proof of such value be- 
 fore and after the injury. 1 Suth. Dam. § 116; Sedg. Dam. (8th 
 Ed.) .§ 942, and cases there cited; City of Ft. Wayne v. Hamil- 
 ton, 132 Ind. 487 ; Railway Co. v. Eberle, 110 Ind. 542, 551. 
 
 "Where the destruction or injury of the crops enters into the 
 damages as an element, such damages are measured by proof of 
 the value of the crops with and without the injury, leaving the 
 court or jury to determine the difference as in the other case. 
 "We recognize the fact, however, that an injury resulting from 
 such an act of negligence as the one here complained of may be 
 in part permanent and in part temporary or transient. Thus, 
 the land and buildings may have been permanently injured by 
 w'ashouts and gullies, so as to diminish the value of the entire 
 tract or parcel, while, in addition, there may have been tempo- 
 rary injuries. In the present case the injury to the soil or real 
 estate seems to have been of a permanent character, the other 
 injuries complained of being injuries to the crops growing on 
 the place, and injury to the health of the appellee Fannie A. 
 Sparks. Hence the measure of damages for the injury to the 
 real estate is the difference in its value by reason of the injuries, 
 which is ascertained by proof of the value of the land before 
 and after the same. Railroad Co. v. Smith, 6 Ind. App. 262. 
 
 "Whatever damage was occasioned by injury to the crops 
 should be proved by showing the difference in the value of such 
 crops wdth and without the injury. Values, as counsel correctly 
 contend, may be proved by the opinions of witnesses, for these 
 are. after all, but estimates based upon the fact that other prop- 
 erty of a similar character in the neighborhood has been or could 
 be sold for similar prices. Such opinions may also be based 
 upon the knowledge of the witness of the persons desiring to 
 purchase the property and the prif^e Ihat thoy am offeror] for it.
 
 EVIDENCE. 657 
 
 There would have been, consequently, no valid objection to ask- 
 ing the witness his opinion as to the value of the property, or 
 the difference in value before and after the injury, and possibly 
 there may have been no error in asking him his opinion as to the 
 depreciation; but that portion of the question which required 
 the witness to give his judgment or estimate of the "injuries" 
 to the crops was decidedly objectionable, for the reason that it 
 was an attempt to substitute the conclusion or opinion of the 
 witness for that of the jury on a question directly involved in the 
 issues. What the injuries or damages, or any portion of them, 
 are or were in this case, was for the jury, and not for the wit- 
 ness to decide. If it were left to the witness to pass 
 judgment on what the amount of damages or injury is 
 or should be, he might base his estimate upon things which 
 do not lawfully enter into the consideration of the ques- 
 tion as elements of damages. For this and other reasons, the 
 witness should not be allowed to give his own conclusions or 
 estimates of the damages. True, the damages may be proved by 
 opinion evidence. Not, however, by opinions of what the injury 
 amounts to in dollars and cents, but by opinions of the value of 
 the crops before and after the injury, which is quite a different 
 thing. 
 
 Judgment reversed. 
 
 SHARP V. UNITED STATES. 
 
 U. S. Supreme Court, 1903. 191 U. S. 341. 
 
 The plaintiff in error has sued out this writ for the purpose 
 of reviewing a judgment of the United States circuit court of 
 appeals for the third circuit, which affirmed a judgment of the 
 district court of New Jersey, awarding damages to plaintiff 
 in error for the taking of certain property of his on the Delaware 
 river, near Fort Mott, in that state. The award of the jury was, 
 in the opinion of the plaintiff in error, entirely inadequate as 
 just compensation to him as the owner of the land for its taking 
 by the government. 
 
 The jury found and assessed the value of the lands and the 
 damages sustained at the sum of $12,000, to be paid the plaintiff 
 in error by the United States. Judgment having been duly en- 
 tered upon the award of the jury, an appeal was taken to the 
 
 42
 
 658 EVIDENCE. 
 
 circuit court of appeals, where the judgment was affirmed, and 
 the case is now before us on writ of error sued out by the owner 
 of the hind. 
 
 Mr. Justice Peckham, after making the foregoing statement 
 of facts, delivered the opinion of the court: * * * 
 
 The questions to be reviewed by this court arise upon ex- 
 ception appearing in the record taken upon the decisions of 
 the court in relation to the admissibility of evidence, and also 
 to the charge of the court as to the proper items to be considered 
 by the jury in arriving at their verdict. 
 
 The errors assigned and upon which the argument was had 
 in the circuit court of appeals were twelve in number. They 
 are in substance the same here. The first seven refer to the re- 
 jection of evidence in regard to offers to purchase the lands from 
 the plaintiff in error. It was held by the trial court, in response 
 to the proposal to give such evidence, that the plaintiff in error 
 could not testify to different offers he had received to purchase 
 the property for hotel, residential, or amusement purposes, or 
 for a ferry, or a railroad terminal, or to lease the property for 
 hotel purposes. 
 
 Upon principle, we think the trial court was right in rejecting 
 the evidence. It is, at most, a species of indirect evidence of the 
 opinion of the person making such offer as to the value of the 
 land. He may have so slight a knowledge on the subject as to 
 render his opinion of no value, and inadmissible for that reason. 
 He may have wanted the land for some particular purpose dis- 
 connected from its value. Pure speculation may have induced 
 it, a willingness to take chances that some new use of the land 
 might, in the end, prove profitable. There is no opportunity to 
 cross-examine the person making the offer, to show these various 
 facts. Again, it is of a nature entirely too uncertain, shadowy, 
 and speculative to form any solid foundation for determining 
 the value of the land which is sought to be taken in condemna- 
 tion proceedings. If the offer were admissible, not only is it al- 
 most impossible to prove (if it exist) the lack of good faith 
 in the person making the oft"er, but the circumstances of the 
 parties at the time the offer was made as bearing upon the value 
 of such offer may be very difficult, if not almost impossible to 
 show. To be of the slightest value as evidence in any court, an 
 offer must, of course, be an honest offer, made by an individual 
 capable of forming a fair and intelligent judgment, really
 
 EVIDENCE. 659 
 
 desirous of purchasing, entirely able to do so, and to give the 
 amount of nione}" mentioned in the offer, for otherwise the offer 
 would be but a vain thing. Whether the owner himself, while 
 declining the offer, really believed in the good faith of the party 
 making it, and in his ability and desire to pay the amount of- 
 fered, if such offer should be accepted, or whether the offer was 
 regarded as a mere idle remark, not intended for acceptance, 
 would also be material upon the question of the bona fides of 
 the refusal. Oral and not binding offers are so easily made and 
 refused in a mere passing conversation, and under circumstances 
 involving no responsibility on either side, as to cast no light upon 
 the question of value. It is frequently very difficult to show 
 precisely the situation under which these offers were made. In 
 our judgment they do not tend to show value, and they are un- 
 satisfactory, easy of fabrication, and even dangerous in their 
 character as evidence upon this subject. Especially is this the 
 case when the offers are proved only by the party to whom they 
 are alleged to have been made, and not by the party making 
 them. There is no chance to cross-examine as to the circum- 
 stances of the party making the offer in regard to good faith, 
 etc. Evidence of this character is entirely different from evi- 
 dence as to the price offered and accepted or rejected for ar- 
 ticles which have a known and ready sale in the market. The 
 price at the stock exchange of shares of stock in coroporations 
 which are there offered for sale or dealt in is some evidence of 
 the value of such shares. So evidence of prices current among 
 dealers in those commodities which are the subject of frequent 
 sales by them would also be proper to show value. This evi- 
 dence is unlike that of offers to purchase real estate, and affords 
 no ground for the admissibility of the latter. 
 
 A reference to the authorities shows them to be almost 
 unanimous against receiving evidence of this kind. Counsel have 
 cited many cases on this subject and they are contained in the 
 margin. Fowler v. Middlesex County, 6 Allen, 92, 96 ; Wood v. 
 Firemen's F. Ins. Co. 126 Mass. 316, 319; Thompson v. Boston, 
 148 Mass. 387; Anthony v. New York, P. & B. R. Co. 162 Mass. 
 60, Cochrane v. Com. 175 Mass. 299 ; Hine v. Manhattan R. Co. 
 132 N. Y. 477,; Keller v. Paine, 34 Hun, 167; Lawrence v. 
 Metropolitan Elev. R. Co. 14 Daly, 502; Young v. Ttwood, 5 
 Hun, 234; Parke v. Seattle, 8 Wash. 78; Santa Ana v. Harlin, 
 99 Cal. 538; St. Joseph & D. C. R. Co. v. Orr, 8 Kan. 419;
 
 tj60 EVIDENCE. 
 
 Minnesota Belt Line R. & Transfer Co. v. Gluek, 45 Minn. 463; 
 Louisville, N. O. & T. R. Co. v. Ryan, 64 Miss. 399. Most of them 
 are clearly against the admissibility of the evidence, v^^hile some, 
 which at tirst sight might be regarded as exceptional, will be 
 found upon closer examination to recognize the general rule as 
 already stated. 
 
 The next four assignments of error relate to the proper items 
 of damage to be included in the award. 
 
 The owTier offered to prove the probable use the government 
 would make of the land for military purposes for which it was 
 taken; also, that the use of the land for such military purposes 
 would damage and depreciate the remaining and adjoining 
 land ; also, that if the land to be taken was used by the govern- 
 ment for military purposes it would endanger the adjoining 
 land of the owner for a long distance and make the removal of 
 his buildings necessary. These offers were rejected, and the 
 court held that the jury should not take into account prospective 
 damages to the remaining and adjoining land of the owner, aris- 
 ing from the future use of the land sought to be taken from him 
 for military purposes, although at the same time the court 
 charged, if the evidence showed that by reason of the severance 
 of the farms those which remained were made so small that it 
 would be unprofitable to work them, whatever damage resulted 
 therefrom should be given the owner. * * * 
 
 "We are of opinion that the court was not bound to receive evi- 
 dence upon any subject which it held to be not a proper item to 
 make up the award to the owner. * * * 
 
 The important question is as to the admissibility of evidence 
 of damages to the remaining lands of the owner which would 
 probably flow from any particular and probable use by the gov- 
 ernment of the land to be taken. It is said by the plaintiff in 
 error that just compensation consists not only in an award of 
 the value of the lands which are taken, but also of any damage 
 that may result to the portion of the tract which remains, on 
 account of such taking and on account of the uses to which the 
 land taken may, or probably will, be put, and he cites many 
 eases to show the correctness of the rule which he asserts. * * * 
 
 Upon the facts which we have detailed, we think the plaintiff 
 in error was not entitled to recover damages to the land not
 
 EVIDENCE. Gbl 
 
 taken because of the probable use to which the government 
 would put the land it proposed to take. * * * 
 
 In Currie v. Waverly & N. Y. Bay R. Co. 52 N. J. L. 392, cited 
 by counsel for plaintiff in error, for the proposition that where 
 a part of the tract is taken for condemnation, damages to the 
 remaining land shall be given, the court also says: "It is an 
 established rule in law, in proceedings for condemnation of land, 
 that the just compensation which the land owner is entitled to 
 receive for his lands, and damages thereto, must be limited to 
 the tract, a portion of which is actually taken. The propriety 
 of this rule is quite apparent. It is solely by virtue of his own- 
 ership of the tract invaded that the owner is entitled to inciden- 
 tal damages. His OA\Tiership of other lands is without legal 
 significance." It is enough to say that, in our opinion, the two 
 other farms or tracts of land owned by plaintiff in error con- 
 stituted such separate and independent parcels, as regards the 
 land in question, that they cannot properly be spoken of as the 
 residue of a tract of land from which the land in question was 
 taken. * * * 
 
 Although denying the right to recover certain alleged dam- 
 ages to the land remaining, the court was not illiberal in the 
 rules it adopted for ascertaining the compensation due for the 
 taking of the land. It permitted the jury to consider not only 
 the purposes to which the land taken had been put, but also, as 
 bearing upon its value, the jury was directed to consider evi- 
 dence as to the adaptability of the land for other than merely 
 agricultural purposes; that while no merely speculative value 
 was to be placed on the land, this possible adaptability was to be 
 considered, and if, in the judgment of the jury, it was probable 
 that the improvements which had been spoken of in the testi- 
 mony would, within some reasonable time, be made, that was an 
 element which might enter into their calculation in forming 
 their estimate of the value of the land. 
 
 Therefore the jury was permitted to take into consideration 
 the future possil)le building of a railroad in the neighborhood 
 which would pass within a mile or so of Fort Mott, although 
 no steps had yet been taken to build it; still, as there had been 
 some talk of building it, and the railroad might thereafter be 
 built, the jury were instructed that if they thought from the 
 evidence it would be built within a reasonable time, and that if 
 built it would enhance the valu'^ of the property, they might
 
 662 EVIDENCE. 
 
 take that fact into consideration as giving the then present 
 actual value beyoud that of an ordinary farm. 
 
 The same instructions were given in relation to a trolley 
 road which it was supposed might be built to run near this 
 land. 
 
 The jury was also permitted to consider the adaptability of 
 the land for a hotel or cottage sites, and in addition, as already 
 stated, the court charged that if the evidence shov/ed that by 
 reason of the severance of these farms they were made so small 
 that it would be unprofitable to work them, the jury ought to 
 give the damages arising therefrom. * * * 
 
 Upon a consideration of the whole record, we think there was 
 no error committed upon the trial of the case before the jury, 
 and the judgment of the Circuit Court of Appeals for the third 
 circuit, affirming the judgment of the District Court for the dis- 
 trict of New Jersey, is, therefore, affirmed. 
 
 POEHLMANN v. KERTZ. 
 
 Illinois, 1903. 204 111. 418. 
 
 Wilkin, J. This is an action for breach of promise of mar- 
 riage, begun by Barbara Kertz, the appellee, against John W, 
 Poehlmann, the appellant, in the superior court of Cook county. 
 In accordance with the verdict of the jury, a judgment was en- 
 tered for the plaintiff for $2,500. From an affirmance of that 
 judgment in the Appellate Court for the First District, the ap- 
 pellant prosecutes this further appeal. 
 
 The appellant was a florist in Chicago, and was a widower, 
 with two small children. In 1894 he became acquainted with 
 Barbara Kertz, who was employed at his brother's home as a 
 domestic. Four years later their acquaintance became more in- 
 timate, and they talked of marriage, and she testified that there 
 was a positive agreement to become husband and wife. She 
 then 7Tiade a visit to her father's home, at Port Washington, 
 Wis., and while there received from appellant several letters, 
 the language of which plainly indicates that a promise of mar- 
 riage had been made. Appellant visited her there, and presented 
 her with a ring. After his return to Chicago, she heard nothing 
 ^■irther from him. Some time thereafter she came to Chicago,
 
 EVIDENCE. 663 
 
 and called to ascertain why the correspondence had ceased, and 
 was then informed he had changed his mind; he giving her to 
 understand that their marriage would never take place, but as- 
 signing no reason for his conduct. 
 
 Upon the hearing, after plaintiff had made her proof, show- 
 ing the facts substantially as herein set forth, the defendant, 
 while testifying that no marriage contract had even been en- 
 tered into between himself and the complainant, undertook to 
 justify his refusal to marry her upon the ground that he learned 
 she was a woman of unchaste character, having had sexual inter- 
 course with one Weirich who appears as a witness for the de- 
 fendant, and testified that he had on two or more occasions had 
 illicit intercourse with her. She, in rebuttal, denied the state- 
 ment made by Weirich, and was then asked by her counsel. 
 Did you ever have sexual intercourse with any man ? " And she 
 answered, "Mr. Poehlmann." Counsel for defendant objected, 
 and asked that the answer be stricken out on the ground that 
 the declaration contained no allegation of seduction. The court 
 refused to strike out the answer, saying: "If you had objected 
 to the question, I would have sustained the objection; but, hav- 
 ing waited until the answer came, it is too late." Counsel for 
 the defendant then, upon cross-examination, drew out the fact 
 that she had yielded to the defendant only after his promise of 
 marriage. 
 
 It is first contended that the court erred in permitting the 
 testimony as to seduction, because the declaration contained no 
 charge of that kind. Having waited too long before objecting 
 to the question, as well as pursuing the witness with other ques- 
 tions on that subject, counsel for the defendant cannot now, as 
 a matter of practice, complain of the evidence. But aside from 
 this consideration, it was competent, under the pleadings, to 
 prove the seduction, if it occurred in consequence of the 
 promise. It is permitted, in such a case, to be shown in ag- 
 gravation of the damages. Tubbs v. Van Kleek, 12 III. 446; 
 Fidler v. :\reKinley, 21 111. 308. As is said in the case last cited 
 Cpage 313) : "In a case of a breach of promise, accompanied 
 with a seduction, the injury is infinitely greater than where 
 there is only a breach of promise. When there is a soduction 
 there is a total loss of character, and all hopes of future hap- 
 piness and usefulness are blighted, and certain degradation and 
 future misery, if not crime, are its consequences. Anrl when thi;.
 
 664 EVIDENCE. 
 
 is produced by a breach of promise, and the fraud perpetrated 
 upon the woman by the man entering into the engagement only 
 to accomplish her seduction, the injury resulting therefrom is 
 the immediate result and consequence of the breach of promise. 
 If he were in good faith to perform his engagement and keep 
 his promise, such consequences would not result; but, when he 
 fails to do so, every consideration of justice requires him to re- 
 pair the injury, as far as it may be done, by adequate dam- 
 ages." Counsel argues that seduction is not the natural result of 
 a promise of marriage. Certainly not ; but, when seduction fol- 
 lows in consequence of the promise degradation, loss of character 
 and happiness are the direct result of a breach of that promise. 
 In other words, the injury results from the breach, not the making 
 of the contract. While there is a conflict of authority on the ques- 
 tion as to whether evidence of seduction is admissible without an 
 allegation in the declaration, this court is fully committed to the 
 rule here announced. The foregoing decisions of Tubbs v. 
 Van Kleek and Fidler v. McKinley, supra, were referred to with 
 approval in Judy v. Sterrett, 153 111. 94. * * * 
 The judgment of the Appellate Court will be affirmed. 
 
 Judgment affirmed. 
 
 BRIGGS V. N. Y. C. & H. R. R. R. Co. 
 
 New York, 1903. 177 N. Y. 59. 
 
 O'Brien, J. On February 2, 1902, the plaintiff was injured 
 in a collision on the defendant's belt line in Buffalo. It was a 
 cold, stormy night, and a great deal of snow had fallen and 
 drifted. Objects could not be seen very far through the snow, 
 and it continued to storm after the plaintiff left the train. The 
 car in which the plaintiff was seated had the seats arranged so 
 that for a third of the length from either end of the car they 
 were continuous along each side, and in the middle third of the 
 ear the seats were crosswise. The plaintiff and her aunt sat in 
 the seats crosswise of the car, and after the train had stopped 
 at one of the regular stopping places, and had just got started 
 forward, an engine following in the rear collided with the train 
 by running into the rear end of it. As soon as the headlight was 
 seen approaching, the plaintiff and her aunt got up out of their
 
 EVIDENCE. 665 
 
 seats and went forward to the head end of their car. The plain- 
 tiff stood there, without supporting herself, imtil the collision oc- 
 curred, which caused her to sit down involuntarily upon one of 
 the iron arm rests, or divisions, between the individual seats along 
 the side of the car. The collision appears to have been a slight 
 one; nothing was broken about the car except the glass in the 
 front door, and the train started up again and ran on to the 
 next stop in the usual way. The plaintiff and her aunt having 
 reached their destination, got out and walked for some 10 min- 
 utes through the storm and snow to the home of the aunt. It 
 was Sunday evening, and plaintiff stayed there that night and 
 the next day and night, and on Tuesday went home. The 
 plaintiff then went with her mother to a physician at his office. 
 The testimony tended to show that she went there every day for 
 a week, and then every other day for two weeks, and then less 
 frequently. It was claimed that the tip end of the spine was in- 
 jured, resulting in serious consequences. The physician stated 
 that when he first examined her he found a discoloration, not 
 very much discolored, about two inches above the tip of the spine. 
 He did not remember giving any local treatment, but gave her 
 nerve sedatives. The jury rendered a verdict for the plaintiff 
 of $6,000, which has been unanimously affirmed. 
 
 The extent of the injury and the damages were sought to be 
 established by the plaintiff largely upon the testimony of medical 
 experts. These experts were conducted by the learned counsel 
 for the plaintiff, in his examination, through a very wide field 
 of speculative inquiry. Much of this testimony appears in the 
 record without exception, though it was constantly objected to 
 by defendant's counsel. The testimony was not at all confined to 
 the condition of the plaintiff at the time of the trial, which took 
 place about eight months after the accident, but the experts were 
 permitted to speculate upon the consequences of the alleged injury 
 which might affect the plaintiff in the future. It was suggested 
 that the injury might affect the bladder, the kidneys, and other 
 organs of the body, and in the end become permanent. The fol- 
 lowing is a specimen of the testimony given by one of the plain- 
 tiff's experts, who had seen the plaintiff but once, and then long 
 after the accident: "The bladder is a very bad master and a 
 Tery good servant. If you humor it, or it gets into bad habits, 
 it is almost impossible to correct them. I make this statement 
 more than ordinarily positive, because I have seen a great many
 
 666 EVIDENCE. 
 
 of them. Because of this, irritability in this ohild is either 
 from her general nervousness, or if it is from some central 
 trouble — the result of the blow and the shock she has received — 
 tiie outcome of it is, in my judgment, permanent. * * * 
 The effects on this child, of this bladder, are of a general effect 
 and local. The general effect of frequent urinating is harassing, 
 inasmuch as it interferes with a person's going about. It is a 
 pitiable thing sometimes. * * * The coats become thick- 
 ened, just as much as a blacksmith's arm becomes larger, the 
 bladder grows so that by and by it don't hold as much water, 
 so that even if it was not sensitive the person could not re- 
 tain it and would have to empty it, because it wouldn't retain 
 it any- longer. After it has lasted, it subjects the person to a 
 long train of evils. A bladder which is enlarged and irritable 
 is liable to have infection and inflammation set in, and when 
 you add inflammation to irritability you have a condition 
 of affairs that is most serious." The counsel for the defend- 
 ant here interposed and said: "I object to this kind of tes- 
 timony. It is of the most general character possible. I have 
 objected to the question, and I want to object now to its be- 
 ing allowed to continue." The plaintiff's counsel thereupon 
 replied: "If there is any part of the evidence that is not re- 
 sponsive, the counsel can move to strike it out, of course. ' ' The 
 court thereupon stated. "I will let it stand," and thereupon 
 the defendant's counsel excepted. In response to another ques- 
 tion the witness, continuing, stated: "If the condition of the 
 bladder — ^lYhen that condition of the bladder sets in which I 
 have described, it is only a step further for it to ascend to the 
 kidneys. That always does not take place; but, as long as the 
 lower urinary organs are in that state, there is no question 
 about the jeopardy of the upper urinary organs." 
 
 It is undoubtedly true that in an action to recover damages 
 for personal injuries the evidence of experts as to the future 
 consequences which are expected to follow the injury are com- 
 petent ; but to authorize such evidence, however, the apprehended 
 consequences must be such as, in the ordinary course of nature, 
 are reasonably certain to ensue. Consequences which are con- 
 tingent, speculative, or merely possible are not proper to be con- 
 sidered in estimating damages, and may not be proved. Strohm 
 V. N. Y., L. E. & AV. R. R. Co., 96 N. Y. 305; Tozer v. N. Y. 
 C. & H. R. R. R. Co., 105 N. Y. 617 ; Jewell v. N. Y. C. & H. R.
 
 EVIDENCE. 667 
 
 R. R. Co., 27 App. Div. 500 ; Kleiner v. Third Ave. R. R. Co., 
 162 N. Y. 193; Smith v. N. Y. C. & H. R. R. R. Co., 164 N. Y. 
 491. We think this rule of evidence was violated in this case, 
 since the learned trial judge permitted to stand, for the con- 
 sideration of the jury, evidence which was speculative and con- 
 jectural. Indeed, the medical experts in the case, upon the ex- 
 amination of the plaintiff's counsel, were permitted to state 
 numerous things which might result as a consequence of this 
 injury. This is apparent from the extracts which we have re- 
 ferred to, and much more evidence of like character which is to 
 be found in the record; therefore the learned trial judge, in 
 permitting the examination, and in allowing the testimony to 
 go into the record to be considered by the jury, gave the sanction 
 of the court to testimony which was highly speculative and con- 
 jectural, and so far prejudicial to the defendant as to require 
 a new trial. The objections made and exception taken were 
 sufficient to direct the attention of the court to the point. 
 
 The judgment should therefore be reversed, and a new trial 
 granted, costs to abide the event. 
 
 Parker, C. J., and Martin, Cullen, and AVerner, JJ.. concur. 
 Gray, J., not sitting. Haight, J., not voting. 
 
 Judgment reversed, etc. 
 
 HICKS V. MONARCH CYCLE MFG. CO. 
 
 New York, 1903. 176 N. Y. 111. 
 
 Werner, J. In this action the plaintiff seeks to recover from 
 the defendant $1,000 as damages for the failure of the defend- 
 ant to return a bicycle and two models delivered to it under the 
 following circumstances: The plaintiff was part owner of a 
 patent upon an improved bicycle gear. During the month of 
 February, 1898, he delivered to defendant's agents, at its sales- 
 room in New York City, a bicycle to which was attached the 
 patented device referred to, and also two models thereof, and 
 left them there for the purpose of having defendant's agents ex- 
 amine the same with a view to inducing the defendant to adopt 
 it upon the bicycles manufactured by it. 
 
 The plaintiff's testimony tended to show, and the jury had 
 the right to find, that certain authorized agents of the defend-
 
 66S EVIDENCE, 
 
 nut examined plaintiff's bicycle with its attachments and the 
 accompanying models, and expressed a desire to send it to de- 
 fendant's factory in Chicago for the purpose of having it there 
 examined by experts, and that this arrangement was agreed to, 
 with the proviso that said propert}^ should be received at defend- 
 ant's risk, at an agreed valuation of $1,000. The defendant 
 admits the receipt of the property, the shipment thereof to its 
 factory at Chicago, and its failure to return the same to the 
 plaintiff, but denies that any valuation was ever agreed upon. 
 
 As part of the plaintiff's case he introduced in evidence a re- 
 ceipt signed by one Strout, an agent of the defendant, which 
 was in the following form: "Reed, one bicycle from J, B. Ilieks 
 for examination and return. Value 1000.00." This receipt 
 was signed by Strout individually, but was written on the back 
 of a business card of the defendant, indicating that Strout was 
 the manager of defendant's New York sales department. De- 
 fendant 's witnesses gave evidence tending to show that the state- 
 ment as to value was not in the receipt when it was signed, and 
 that this statement had been written into the receipt after its 
 delivery to the plaintiff. 
 
 The case was submitted to a jury, and plaintiff had a verdict 
 for $1,000, The judgment entered upon that verdict was affirmed 
 by a divided court. As there was some evidence to support the 
 verdict, the present review must be confined to questions arising 
 upon the rulings of the trial court in the reception and exclusion 
 of evidence. We shall limit our discussion to a single exception, 
 which we think is fatal to the judgment appealed from. 
 
 Upon the question of damages defendant called an expert in 
 the manufacture of bicycles, and he was asked by defendant's 
 counsel if he could tell as an expert what it would cost to re- 
 produce by hand a model fashioned after the patent referred to. 
 He answered in the affirmative, and was then asked what it 
 would cost. This question was objected to by plaintiff's counsel 
 as immaterial and incompetent, "and also upon the ground 
 that it appears that the wheel was received and the models on 
 the valuation of $1,000.00 by the company." The objection was 
 sustained, and the defendant took an exception. 
 
 This evidence was clearly admissible. Whether the sum of 
 $1,000, which the plaintiff claimed had been agreed upon as the 
 value of the articles delivered by him to the defendant, was to 
 be regarded as liquidated damages, or merely as a penalty, was
 
 EVIDENCE. 669 
 
 a question of intent to be deduced from the circumstances. If 
 the sum named was an unreasonable price for the articles, evi- 
 dence tending to show that fact would have had a very mate- 
 rial bearing upon the question of damages. The rule is that 
 "when the stipulated sum is disproportionate to presumable or 
 probable damage, or to a readily ascertainable loss, the courts 
 will treat it as a penalty, and will rely on the principle that 
 the precise sum was not the essence of the agreement, but was 
 in the nature of security for performance." Ward v. Hudson 
 River Bldg. Co., 125 N. Y. 230 ; Curtis v. Van Bergh, 161 N. 
 Y. 47; 3 Parsons on Contracts (6th Ed.) 157. * * * Con- 
 sidering the nature of the case, the question of damages was ob- 
 viously an important one, and the erroneous ruling pointed out 
 must have injuriously affected defendant's rights. 
 
 For the reasons stated the judgment should be reversed, and 
 a new trial granted, with costs to abide the event. 
 
 Martin, Yann, and Cullen, JJ., concur. Parker. 0. J., 
 and Bartlett and Haight, JJ., dissent. 
 
 Judgment reversed, etc. 
 
 ROBINSON V. N. Y. ELEVATED R. R. Co. 
 New York, 1903. 175 N. Y. 221. 
 
 Bartlett, J. This is the usual elevated railroad case to re- 
 cover fee and rental damages, and under the imanimous decision 
 the defendant railway companies are confined to the argument 
 of legal errors duly raised by exceptions. 
 
 The comisel for the appellants insists that the learned trial 
 judge admitted, over objection and exception, evidence regard- 
 ing sales and rentals of specific pieces of property on Pearl street 
 other than the premises in suit, in violation of the rule laid doAvn 
 by this court in the case of Jamieson v. Kings County Elevated 
 Railway Co. (147 N. Y. 322, 325). Judge Finch there said: 
 "The plaintiff sought to prove the evil effect of the road in 
 diminishing values by the process of calling the o^^^lors of prop- 
 erty in the vicinity and proving, in each case, what the particular 
 premises owned by the witness rented for before the road was 
 built and what thereafter. There were objections and ex- 
 ceptions. Such a process is not permissible. Each piece of evi-
 
 670 EVIDENCE. 
 
 deiK'O raised a collateral issue (Gouge v. Roberts, 53 N. Y. 619), 
 aiul left the court to try a dozen issues over as many separate 
 parcels of ]iroperty. We have held such a mode of proof to 
 be inadmissible. (^Huntington v. Attrill, 118 N. Y. 3G5; Matter 
 of Thompson, 127 N. Y. 103.) The elevated railroad cases in 
 this court, to Avhich the plaintiff refers us, give no warrant for 
 such a mode of proof, but indicate that the general course and 
 current of values nuist be shown by persons competent to speak, 
 leaving to a cross-examination any inquiry into specific instances 
 if such be deemed essential. Almost all the evidence of depre- 
 ciation was of the erroneous character, and we cannot say that 
 it may not have worked harm to the defendant." 
 
 The rule thus laid down was followed in Witmark v. New 
 York Elevated R. R. Co. (149 N. Y. 393) and other cases. 
 
 The course of procedure under this rule may be thus briefly 
 stated: Plaintiff having called as a witness an expert, is per- 
 mitted to show the general course and current of values in the 
 immediate vicinity, leaving to a cross-examination any inquiry 
 into specific instances if such be deemed essential, the reason 
 for the rule being that to permit evidence of the rental or fee 
 value of other premises would rcise in each case a collateral 
 issue to be tried. 
 
 When the plaintiff's expert witness is cross-examined by the 
 defendant as to specific instances it is competent upon a redi- 
 rect examination for the plaintiff to make such full inquiry as 
 he may be advised, as to each one of the specific instances brought 
 out on cross-examination. 
 
 In the case at bar the plaintiffs swore their expert and con- 
 ducted the direct examination in compliance with the rule; on 
 cross-examination the defendants made inquiry as to about 
 twelve pieces of other property in the immediate neighborhood ; 
 on redirect examination the plaintiffs examined the witness, 
 over the objection and exception of the defendants, in regard 
 to the fee or rental value of some sixteen additional pieces of 
 property in the vicinity of the premises in suit. 
 
 We are of opinion that the introduction of evidence by the 
 plaintiffs in regard to these additional pieces of property in 
 the immediate neighborhood w^as in direct violation of the rule 
 we have discussed. 
 
 It was for the plaintiffs to prove the general course of values 
 and for the defendants to give evidence of specific instances.
 
 EVIDEXCE. 671 
 
 If it be true that such evidence on the part of the defend- 
 ants opened the door, as the respondents' counsel claims, for 
 the introduction of as many additional pieces of property as 
 they saw fit, it would result in raising numerous collateral 
 issues and lead to the utter subversion of the rule laid do%\Ti in 
 the Jamieson case. * * * 
 
 Judgment reversed. All concur. 
 
 BARTOW V. ERIE R. R. CO. 
 New Jersey, 1905. 44 X. J. L. 12, 
 
 Fort, J, There are a number of grounds for reversal assigned 
 in this case, but a careful examination of them leads us to con- 
 clude that there is but a single one that has substance. It is 
 clear, under the proof, that the plaintiff could not have been non- 
 suited, nor a verdict directed for the defendant, upon the 
 testimony. 
 
 There were no reversible errors in the rulings of the court 
 upon the admissions of testimony excepted to, nor in the charge 
 of the court, except in one respect, with relation to the allowance 
 of damages for loss of profits in the business of the plaintiff. 
 Exception is taken to the refusal of the court to charge the de- 
 fendant's second request. That was as follows: "As there is 
 no definite proof of the amount of the loss of profits sustained 
 by the plaintiff in his business, no damages can be allowed for 
 his loss of profits." And exception was also taken to what the 
 court did say upon the question of the right of recovery by 
 the plaintiff' for loss of profits, and the leaving to the jury of 
 the question whether, under the evidence, the plaintiff was mak- 
 ing any profits from his business. 
 
 "We til ink the second request should have been charged in this 
 ease in lieu of what the court did charge. There was no proof 
 in the cause which would justify the jury in assessing any dam- 
 ages to the plaintiff for loss of profits. The only testimony given 
 on the subject was that of the plaintiff himself, and that 
 amounted to nothing more than a mere statement that he took 
 in, in his business, from $1,000 to $1,100 per annimi. This was 
 proof only of the gross amount of his business. His books were 
 not produced, nor was there given by him nny estimate of the
 
 67 '2 EVIDENCE. 
 
 expenses incident to the conducting of his business, or of the pro- 
 portion of the expenses to the gross income. To justify a finding 
 of loss of prolils as a part of the verdict in a cause, the proof 
 must be such as will show the jury with reasonable certainty 
 what the prolits alleged to have been lost would have been, but 
 for the injury to the plaintiff. Profits n;ust be proved. They 
 cannot be estimated by the jury without data to justify their 
 finding. East Jersey Water Co. v. Bigelow, 60 N. J. Law, 201. 
 There being no proof of loss of profits in the business of the 
 plaintiff which the jury could, under the proof, arrive at with 
 reasonable certainty, it was error for the trial judge to submit 
 the question of this class of damages to the jury, and he should 
 have charged as requested. 
 
 For this error, and this alone, the judgment is reversed. 
 
 MARRIOTT V. WILLIAMS. 
 California, 1908. 152 Cal. 705. 
 
 Shaw, J. This is an action to recover damages for personal 
 injuries inflicted upon the plaintiff by defendants. The jury 
 rendered a verdict against the defendant Williams alone, and 
 judgment was entered accordingly. The appeal is by the defend- 
 ant Williams from an order denying his motion for a new trial. 
 
 The complaint alleges that the defendants entered plaintiff's 
 home and there assaulted, beat, and woimded him, shooting him 
 twice in the leg, breaking both bones below the knee, and pierc- 
 ing the fleshy part of the thigh, and bruising and cutting his head 
 and hand. The answer admits that Beale inflicted the cuts and 
 bruises on the head and hand, and that Williams shot plain- 
 tiff in the leg, but alleges that it was all done in necessary self- 
 defense. Upon the trial, there was practically no controversy 
 over the fact that Beale cut and bruised the plaintiff's head 
 and hand by beating him with a pistol, and that Williams shot 
 plaintiff in the thigh and below the knee, breaking the bones 
 as alleged. 
 
 The plaintiff was the publisher of a weekly paper called the 
 "News Letter." The defendants went to his house for the 
 avowed purpose of demanding and procuring from him a re- 
 traction of a statement published in the paper. Upon entering
 
 EVIDENCE. 673 
 
 the hallway of the house, the plaintiff asked them for their hats, 
 and took Beale's hat and started toward the rear of the hall to 
 hang it on the hat rack. Before, or immediately after, this was 
 done, Beale demanded of Marriott the retraction, and almost 
 immediately struck the blows on the hand and head, while the 
 two were engaged in a scuffle. Marriott broke away and started 
 to run up the stairway, which was on the left side of the hall- 
 way. There were 20 steps in the stairway and about the four- 
 teenth step from the bottom it made a quarter turn to the left 
 to reach the floor above. When he had gone perhaps a little 
 more than half way up, Williams shot at him three times, hitting 
 him twice, as alleged. Upon receiving the shot which broke his 
 leg, the plaintiff fell forward upon the upper steps and crawled 
 to the upper floor and into his bedroom. Almost immediately 
 his wife came into the room from the upper part of the stairway 
 where, as she testified, she witnessed a part of the shooting. 
 The defendants did not pursue Marriott, but stood on the lower 
 floor during the altercation and shooting and until Marriott had 
 disappeared, and then left the house. 
 
 The complaint alleged malice on the part of the defendants 
 and asked exemplary damages. It was therefore proper to allow 
 evidence of the defendants' wealth. Sloan v. Edwards, 61 Md. 
 100 ; Webb V. Oilman, 80 Me. 177 ; Draper v. Baker, 61 Wis. 
 450; Brown v. Evans (C. C.) 17 Fed. 912. Such evidence is ad- 
 mitted to enable the jury to determine what amount of punish- 
 ment would be inflicted upon the defendant by compelling him 
 to pay a given sum of money. Hence it is proper to show his 
 wealth at the time of the trial, as was done here, instead of at 
 the time of the injury. In mitigation of damages the defendants 
 pleaded the publication of the articles above referred to, which, 
 as they allege, were defamatory, and gave them just cause for 
 great indignation. The court instructed the jury that these mat- 
 ters could not be considered in reduction of the actual dam- 
 ages accruing from his pain, physical injuries, loss of time, and 
 moneys expended, or any other element of actual damages, but 
 only in reduction of, or set-off against, the exemplary damages. 
 That this was a correct exposition of the law is well settled. 
 Goldsmith v. Joy, 61 Vt. 488 ; Badostain v. Grazide, 115 Cal. 429 ; 
 Fenclon v. Butts, 53 Wis. 351 ; Corcoran v. Harran, 55 Wis. 
 122 ; Donnelly v. Harris, 41 111. 128. The assault and injury to 
 the plaintiff were admitted. The answer that they were inflicted
 
 674 EVIDENCE. 
 
 iu self-defense was an affirmative defense, which it was necessary 
 for the defendants to establisli by a preponderance of the evi- 
 dence, A person who sues for a personal injury at the hands 
 of another is not bound to prove, in the first instance, that he was 
 not the aggressor and that the defendant did not act in self-de- 
 fense. He must prove the assault and the injury, if they are 
 denied. In so doing, he may incidentally bring out facts ten- 
 ding to support a plea of self-defense, and if so the defendant 
 will be entitled to the benefit of such evidence. But the burden 
 of proof to establish the self-defense remains with the defend- 
 ant. There is no presumption that a bodily injury is justifiable, 
 and the justification must be proven by him who asserts it. The 
 instructions of the court embodying these propositions were 
 properly given. Sellman v. Wheeler, 95 Md. 751 ; Gizler v. 
 Witzel,*82 111. 326; Johnson v. Strong, 58 S. W. 430, 22 Ky. 
 Law Rep. 577; Phillips v. Mann. 44 S. AV. 379, 19 Ky. Law 
 Rep. 1705 ; Rhinehart v. Whitehead, 64 Wis. 42. 
 
 In actions against two or more persons for a single tort, there 
 cannot be two verdicts for different sums against different de- 
 fendants upon the same trial. There can be but one verdict for 
 a single sum against all who are found guilty of the tort. All 
 who are guilty at all are liable for the whole amount of the ac- 
 tual damages arising from the injury inflicted, irrespective of 
 the degree of culpability. Huddleson v. Borough, 111 Pa. 110 ; 
 McCool V. Mahoney, 54 Cal. 492; Nichols v. Dunphy, 58 Cal. 
 607 ; Everrord v. Gabbert, 83 Ind. 492 ; Carney v. Reed, 11 Ind. 
 417 ; Cooley on Torts, p. 136 ; 1 Suth. Dam. § 140. The court did 
 not err in instructing the jury to this effect. 
 
 There are some other objections to the charge to the jury, and 
 there are other rulings in the admission of evidence which 
 are questioned, but they are all either covered by what we have 
 said, or they are too trivial to require notice. 
 
 The order is affirmed. t 
 
 We concur: McFarland, J.; Lobigan, J.; Angellotti, J.; 
 Beatty, C. J. 
 
 GOMBERT V. N Y. C & H. R. R. R. CO. 
 
 N. Y. Court of Appeals, May, 1909. 
 
 Werner, J. — ^In the City of North Tonawanda there is a high- 
 way kno\vTi as Wheatfield street, which runs substantially east
 
 EVIDENCE. 675 
 
 and west and crosses at grade the tracks of the New York Central 
 and Hudson River Railroad Company, which run practically 
 north and south. The Lehigh Valley Railroad uses these tracks 
 in its traffic between Buffalo and Niagara Falls. On the 2d 
 day of October, 1905, the plaintiff was driving across these 
 tracks on Wheatfield street and collided with a southbound 
 Lehigh Valley train. The crossing was equipped with gates 
 operated by compressed air from a tower maintained by the New 
 York Central Railroad Company, which was in charge of a 
 gateman employed by that company. The plaintiff brought this 
 action to recover for the injuries sustained in that collision, 
 and both of the corporations above named were made parties 
 defendant upon the theory that the one had been negligent in 
 the operation of its gates and the supervision of its crossing, 
 while the other had been negligent in the operation of its train. 
 For the purposes of this appeal we may assume that the alleged 
 negligence of the defendants and the plaintiff's alleged freedom 
 from contributory negligence presented questions of fact for 
 the jury. * * * 
 
 There is another exception in the case, however, which presents 
 a much more serious questions. That is the exception taken to 
 the ruling under which the court admitted evidence of the in- 
 come, profit or earnings which the plaintiff had derived from 
 his business during the three years preceding the accident. In 
 the interrogatories of plaintiff's counsel the plaintiff's revenue 
 from this source was called ''earnings," but that is mere no- 
 menclature which cannot be permitted to determine the in- 
 quiry whether the plaintiff's income had in fact been of such a 
 character as to make it a proper element of the damages which 
 he claimed the right to recover. As bearing upon that branch 
 of the case it appeared that for a number of years prior to the 
 accident the plaintiff had been a "building carpenter con- 
 tractor." He gradually took entire contracts for certain 
 amounts, although sometimes he furnished only the labor, at 
 other times only the material, and again both material and labor. 
 The extent of his business was not disclosed, but it appeared that 
 he had a horse and wagon and employed men. From these 
 facts the inference was clearly permissible that he must have 
 had invested in his business some capital with which to carry 
 out his contracts. The circumstance that he occasionally did 
 some work with his own hands simply emphasizes the fact that
 
 676 EVIDENCE. 
 
 his principal occupation seems to have consisted in figuring on 
 eoutraets, overseeing the work of his employees, and making 
 such arrangemcuts for materials and labor as the nature of his 
 undertakings required. Upon these meagre facts we are to de- 
 termine whether the income of the plaintiff for the three years 
 preceding the accident falls within the category of personal 
 earnings, the loss of which it was permissible to prove as an 
 element of the damages suffered by him or whether it must be 
 classed, either wholly or substantially, as uncertain business 
 profits proceeding from invested capital which may not be con- 
 sidered in the process of ascertaining his loss. The rule of law 
 which governs this phase of actions of this character has long 
 been settled as an abstract legal proposition, but like many other 
 legal rules, it sometimes encounters serious difficulties in the 
 course of its application to particular facts. There are cases in 
 which the facts are so definite and unequivocal as to necessarily 
 relegate them to either one or the other of the two extremes of 
 the rule. Between these extremes we find every degree and 
 variety of fact and circumstance to which the rule must be ap- 
 plied, and occasionally these are so near the shadowy border 
 line as to present troublesome questions. A few citations will 
 serve as illustrations. In Masterton v. Village of Mt. Vernon 
 (58 N. Y., 391, 396) the plaintiff w^as permitted to testify to his 
 profits, year by year, in the business of buying and selling teas, 
 in which the plaintiff had attended to the buying, which re- 
 quired great skill. . The business had been extensive and had 
 fallen off considerably after the injury to the plaintiff. There it 
 was held to be error to have received evidence of the past profits 
 of the plaintiff, because they were necessarily uncertain and 
 fluctuating, and in stating that conclusion this court said: 
 "The plaintiff had the right to prove the business in which he 
 was engaged, its extent, and the particular part transacted by 
 him, and, if he could, the compensation usually paid to persons 
 doing such business for others. These are circumstances the 
 jury have a right to consider in fixing the value of his time. 
 But they ought not to be permitted to speculate as to the un- 
 certain profits of commercial ventures in which the plaintiff, 
 if uninjured, would have been engaged." This excerpt from the 
 opinion in that ease clearly discloses the reason of the rule. It 
 is simply an adaptation to a special class of cases of that general 
 rule of damages under which, at common law, the party injured
 
 EVIDENCE. 677 
 
 may recover for any loss that is definitely fixed or is capable of 
 ascertainment "vvith reasonable certainty. The later decisions 
 upon the subject were reviewed by this court in the compara- 
 tively recent case of Kronold v. City of N. Y. (186 N. Y., 40, 
 44). There the plaintiff was engaged in selling Swiss em- 
 broideries, for which he took orders from sample designs or 
 from drawings. He maintained an office, but its equipment and 
 the expense of keeping it were so insignificant as compared with 
 the amount which he earned as the result of personal canvassing 
 and solicitation that it was held to have been error to have ex- 
 cluded proof of his earnings previous to the personal injury 
 upon which he based his action. In that case some of the earlier 
 decisions were reviewed, and these clearly demonstrate that 
 when a claim for damages arising out of personal injuries is 
 based upon the destruction or impairment of one 's ability to per- 
 form labor or render service which is essentially and funda- 
 mentally personal in character, evidence may be given as to 
 the nature and extent of the loss. This rule has been applied 
 to lawyers, physicians, dentists, teachers, midwives, gangers, 
 pilots, book agents and other professional or semi-professional 
 occupations in which the element of personal earnings has been 
 held to predominate over a small and purely incidental in- 
 vestment of capital (Kronold v. City of N. Y., supra; Ehrgott 
 V. :\Iayor, &c., of N. Y., 96 N. Y., 264; Simonin v. N. Y, L. E. 
 & W. RR., 36 Hun, 214 ; Nash. v. Sharpe, 19 Hun, 364 ; Lynch 
 v. B'klyn City RR., 123 N. Y., 657; Waldie v. B'klyn Heights 
 RR., 78 App. Div., 557). 
 
 The latest case in which this court has had occasion to apply 
 this rule is that of Weir v. Union R'y (188 N. Y., 416). That 
 ease may be fairly said to be the antithesis of the Kronold case, 
 for it furnishes a very pointed illustration of the opposite ex- 
 treme of the rule. There the plaintiff had rented a small place 
 in which he established an oyster stand and lunch room. The 
 supplies purchased and sold by the plaintiff varied in amount to 
 such an extent that occasional changes had to be made in the 
 number of persons employed as waiters and assistants. Some- 
 times there were two or three, and at other times only one. 
 The plaintiff's income consisted of the difference between the 
 gross receipts and the running expenses of the establishment, 
 and it fluctuated from week to week. There the trial court 
 received evidence of the plaintiff's weekly profits, and the ruling
 
 678 EVIDENCE, 
 
 was approved by the Appellate Division. When the case reached 
 this court, however, the judgment was reversed upon tlu^ ground 
 that the evidence was incompetcuit. That case is strikingly ap- 
 posite to the discussion here, because it clearly shows that profits 
 are not earnings simply because a business is very small, any 
 more than earnings are necessarily to be considered as profits 
 because they happen to be large. In other words, it is the char- 
 acter of the business or occupation and of the income derived 
 therefrom that must determine the admissibility of such evi- 
 dence in this class of actions. If the asserted loss consists of 
 profits which are essentially the uncertain and fluctuating in- 
 crement of invested capital, proof thereof is inadmissible no 
 matter how small it may be ; and, conversely, if the loss is due to 
 the destruction or impairment of one's personal earning ca- 
 pacity the evidence thereof is not to be excluded simply be- 
 cause it may be large. 
 
 In the light of these distinctions the case at bar is easily classi- 
 fied. We think the evidence of the plaintiff's income from his 
 business for the three years preceding the accident in which he 
 suffered his injuries was incompetent because it related to profits 
 depending in considerable measure upon capital invested in 
 business, as distinguished from personal earnings. We have 
 said that the evidence upon this subject was somewhat meagre, 
 and so it was. That is, however, either the fault or the misfor- 
 tune of the plaintiff. If there was in existence any further evi- 
 dence in addition to that adduced which might have tended to 
 show that the plaintiff's occupation was such as to place his loss 
 of income in the category of personal earnings, it was in the 
 plaintiff's possession and he should have produced it. If there 
 was no such additional evidence he must abide by the usual 
 and necessary inference that a contractor, engaged in the busi- 
 ness of constructing buildings, in which he buys material, em- 
 ploys labor, oversees the work, and looks for his returns to the 
 difference between what he gets and what he expends in per- 
 forming his contracts, is not one who depends upon his per- 
 sonal earnings but upon the profits of his business. In either 
 event the defendants are entitled to a new trial. 
 
 The judgment should be reversed and a new trial granted, 
 with costs to abide the event. 
 
 Judgment reversed. All concur.
 
 EVIDENCE. 679 
 
 The true rule of damages in tort is that the wrongdoer is liable for 
 all injuries resulting directly from the wrongful act. It is error to 
 charge the jury that only such damages can be recovered as defendant 
 might reasonably be supposed to have contemplated as likely to result 
 from his act. A^osburg v. Putney, 80 Wis. 523. 
 
 In an action for personal injuries, plaintiff, if entitled to recover 
 compensatory damages, can get damages as follows: (1) for expenses 
 incurred for doctors and nurses; (2) value of time lost during disa- 
 bility; (3) an award for pain and anxiety. Kline v. Santa Barbara 
 Ry. Co., 150 Cal. 741. 
 
 In an action for personal injuries to a woman, evidence tending to 
 show a miscarriage and a still-birth is admissible. Chicago Unioa 
 & Traction Co. v. Ertrachter, 228 111. 114. 
 
 Proof of plaintiff's wages or earnings prior to the injury is admis- 
 sible. Barnes v. Danville St. Ry. Co., 235 111. 566. 
 
 Proof as to possible speculative profits of a mill whose idleness was 
 caused by a breakdown of machinery furnished by defendant, is inad- 
 missible as remote. Callahan & Co. v. Chickasha Co., 17 Oklahoma 544. 
 
 A boy of thirteen was permanently injured. Evidence that he was 
 obedient to his mother and economical in his habits can be admitted, 
 as bearing on his earning capacity. Mill & Elevator Co. v. Anderson, 
 98 Tex. 156.
 
 XVI. PROVINCE OF COURT AND JURY. , 
 
 PHILLIPS V. LONDON & S. W. RAILWAY. 
 Court of Appeal, 1S79. 5 Q. B. Div. 78. 
 
 This was an appeal by the defendants from a decision of the 
 Queen's Bench Division directing a new trial. The application 
 was made on the ground of insufficiency of damages and mis- 
 direction. The jury gave the plaintifl £7000. The plaintiff 
 moved- for a new trial, which was granted by the Queen 's Bench 
 Division on the ground that the amount of damages given by the 
 jury was so small as to show that they must have left out of con- 
 sideration some of the circumstances which ought to have been 
 taken into account. The defendants appealed. 
 
 James, L. J. In this case we are of opinion that we cannot 
 on any of the points differ from the judgment of the Queen's 
 Bench Division. 
 
 The first point, which is a very important one, relates to dis- 
 senting from the verdict of a jury upon a matter which, gener- 
 ally speaking, is considered to be within their exclusive province, 
 that is to say, the amount of damages. We agree that judges 
 have no right to overrule the verdict of a jury as to the amount 
 of damages, merely because they take a different view, and think 
 that if they had been the jury they would have given more or 
 would have given less; still the verdicts of juries as to the 
 amount of damages are subject, and must, for the sake of justice, 
 be subject, to the supervision of a court of first instance, and 
 if necessary of a court of appeal in this way, that is to say, if 
 in the judgment of the court the damages are unreasonably 
 large or unreasonably small, then the court is bound to send the 
 matter for reconsideration by another jury. The Queen's Bench 
 Division came to the conclusion in this case that the amount of 
 the damages was unreasonably small, and for the reasons which 
 were given by the Lord Chief Justice, pointing out certain 
 topics which the jury could not have taken into consideration. 
 I am of opinion, and I believe my colleagues are also of opinion, 
 for the same reasons and upon the same grounds, that the dam- 
 
 680
 
 PROVINCE OF COURT AND JURY. 681 
 
 ages are unreasonably small, to what extent of course we must 
 not speculate, and have no business to say. We are, therefore, 
 of opinion that the Queen's Bench Division was right in direct- 
 ing a new trial. * * * 
 
 Brett and Cotton, L. JJ., concurred. 
 
 Appeal dismissed. 
 
 GAMBRILL v. SCHOOLEY. 
 
 Maryland, 1901. 93 Md. 48. 
 
 Action of libel for dictation of defamatory matter to a confi- 
 dential stenographer. 
 
 Pearce, j * * * The defendant's 9th prayer was prop- 
 erly rejected, because it precluded the jury from including in 
 their verdict any allowance whatever for exemplary or punitive 
 damages. Whenever the words charged in an action for slander 
 or libel are actionable per se, as in this case, the damages are 
 exclusively within the sound discretion of the jury. 13 Am. 
 & Eng. Enc. Law, 432; Tripp v. Thomas, 3 Barn. & C. 427; 
 Marks v. Jacobs, 76 Ind. 216; Nolan v. Traber, 49 Md. 460; 
 Negley v. Farrow, 60 Md. 158. Whether exemplary damages 
 shall be given or not is in all cases for the jury. Jerome v. 
 Smith. 48 Vt. 230 ; Boardman v. Goldsmith, Id. 403. The assess- 
 ment of damages is peculiarly the province of a jury in an 
 action for libel. The damages in such an action are not limited 
 to the amount of pecuniary loss which the plaintiff is able to 
 prove. Davis v. Shepstone, 11 App. Gas. 191, per Lord Hers- 
 chell. The jury must not be restricted by a direction not 
 to give such damages. De Vaughn v. Heath, 37 Ala. 595. 
 The plaintiff's 5th prayer is in accord with these principles, 
 and was therefore properly granted. Wc cannot, however, 
 avoid the conclusion that there was error in the rejection of the 
 defendant's 15th prayer, which asked that the jury be instructed, 
 if the defendant honestly and in good faith believed the state- 
 monts contained in the letters to be true, and had grounds for 
 such belief sufficient to satisfy an ordinarily prudent and 
 cautious man that such statements were true, then the jury might 
 take into consideration all the circumstances of the case, and, 
 in the exercise of their discretion, award to the plaintiff nominal
 
 682 PROVINCE OF COURT AND JURY. 
 
 damages merely. This prayer is very carefully guarded by the 
 re<iuirement to find honest belief of the truth of the charges, 
 and of reasonable ground for such belief, and in its conclusion 
 is substantially the converse of the proposition contained in the 
 plaintiff's 5th prayer, which we have said was properly granted. 
 By the rejection of the defendant's 15th prayer the jury were 
 practically told they must give exemplary damages, and were 
 absolutely refused the discretion to withhold them. But in no 
 case has a plaintiff any legal right to exemplary damages. Such 
 damages depend upon the case and the evidence and finding of 
 the jury. Jerome v. Smith, supra. Where there is evidence of 
 circumstances sufficient to uphold a verdict for exemplary dam- 
 ages, the question whether they shall be given or not is one for 
 the jury. Boardman v. Goldsmith, 48 Vt. 403, And it is error 
 to instruct them they must give exemplary damages. Sedg. Dam. 
 333 ; Hawk v. Kidgway, 33 111. 473. The words used here being 
 actionable per se, although there was no proof of actual and sub- 
 stantial damages sustained by the publications to Miss Willis 
 of the two letters, the jury could not properly have been de- 
 prived of their discretion to give exemplary damages if they 
 found malice ; nor could they, on the other hand, either by the 
 granting of an erroneous instruction or the rejection of a proper 
 one, be deprived of their discretion to refuse to award exemplary 
 damages if they found no malice. For the error in the rejection 
 of the defendant's 15th prayer, it will be necessary to reverse 
 the judgment, that a new trial may be had. Judgment reversed, 
 with costs to appellant above and below, and new trial awarded. 
 
 TATHWELL v. CITY OF CEDAR RAPIDS. 
 
 Iowa, 1903. 122 Iowa, 50. 
 
 Action to recover damages resulting from personal injuries 
 received by plaintiff while driving in a street of a defendant 
 city by reason of his horse stepping into a hole in the highway 
 in or beside a culvert, the result being that plaintiff was thrown 
 to the ground. Judgment for plaintiff on a former trial was 
 reversed, and a new trial ordered. 114 Iowa, 180. On this trial 
 verdict was returned for the plaintiff for $100 damages, which, 
 on plaintiff's motion, was set aside as inadequate. From this 
 ruling defendant appeals.
 
 PROVINCE OF COURT AND JURY, 683 
 
 McClain, J. There was a conflict in the evidence as to 
 whether the street was defective at the place where plaintiff was 
 injured, but the verdict of the jury for the plaintiff establishes 
 the existence of a defect and the negligence of the city with 
 i-eference thereto, and we have for consideration only this ques- 
 tion : Did the trial judge err in setting aside the verdict on the 
 ground that the damages awarded to plaintiff for the injury were 
 inadequate? The right of jury trial, as imiformly recognized 
 under the common-law system, involves the determination by 
 the jury, rather than by the judge, of questions of fact, in- 
 cluding the amount of damage to be given where compensation 
 is for an unliquidated demand. Nevertheless, the trial courts 
 have exercised from early times in the history of the common law 
 the power to supervise the action of the jury, even as to the 
 measure of damages, and to award a new trial where the 
 verdict is not supported by the evidence and is manifestly 
 unjust and perverse. And while it is uniformly held that 
 the trial judge will interfere with the verdict of the jury as to 
 matters of fact with reluctance, and only where, on the very 
 face of the evidence, allowing every presumption in favor of the 
 correctness of the jury's action, it is apparent to a reasonable 
 mind that the verdict is clearly contrary to the evidence, yet 
 the power of the judge to interfere in extreme cases is unques- 
 tionable. It has sometimes been said that the judge should not 
 interfere where the verdict is supported by a scintilla of evi- 
 dence ; but the scintilla doctrine has been discarded in this state, 
 and is not now generally recognized elsewhere. Meyer v. Houek, 
 85 Iowa, 319. The general scope and extent of the judge's 
 supervisory power with reference to the jury's verdict as to 
 questions of fact is well illustrated by the very first reported case 
 in which the power appears to have been exercised — that of 
 Wood v. Gunston, decided in 1655 by the Court of King's Bench 
 (or, as it was called during the commonwealth. Upper Bench), 
 found in Style's Report, on page 466. The action was upon the 
 case for speaking scandalous words against the plaintiff, charg- 
 ing him, among other things, with being a traitor. The jury 
 gave plaintiff one thousand five hundred pounds damages, where- 
 upon the defendant moved for a new trial on the ground that 
 the damages were excessive, and that the jury had favored the 
 plaintiff. In opposition to this is was said in argument that 
 after a verdict the partiality of the jury ought not to be ques-
 
 684 ruoviNCE of court and jury. 
 
 tioned, nor was there any precedent for it ' ' iu our books of the 
 hiw, ' ' and that it would be of dangerous consequence if it should 
 be permitted, and the greatness of the damages cannot be a cause 
 for a new trial. But counsel for the other party said that the 
 verdict was a "packed business, " else there could not have been so 
 great damages, and that the court had power ' * in extraordinary 
 cases such as this is to grant a new trial." The chief justice 
 thereupon said: "It is in the discretion of the court in some 
 cases to grant a new trial, but this must be a judicial, and not 
 an arbitrary, discretion, and it is frequent in our books for the 
 court to take notice of miscarriages of juries, and to grant new 
 trials upon them. And it is for the people's benefit that it 
 should be so, for a jury may sometimes, by indirect dealings, 
 be moved to side with one party, and not to be indifferent be- 
 twixt them, but it cannot be so intended with the court ; where- 
 fore let there be a new trial the next term, and the defendant 
 shall pay full costs ; and judgment to be upon this verdict to stand 
 for security to pay what shall be recovered upon the next verdict. " 
 This case is especially interesting in connection with the present 
 discussion, because it is one in which the assessment of damages 
 was peculiarly within the province of the jury, and because the 
 nature of the supervisory power of the trial judge is explained 
 as being, in effect, to set aside a verdict for excessive damages in 
 such cases which seem to have been the result of passion and 
 prejudice, and not the deliberate exercise of judgment. That 
 the practice of granting new trials under such circumstances 
 has continued in all the courts administering the common law 
 from the time of the case just cited to the present time is a mat- 
 ter of common knowledge with the profession, and citation of 
 authorities would be superfluous. That the power is exercised 
 to prevent miscarriage of justice by reason of the rendition of 
 a verdict by the jury which is wholly unreasonable, in view of 
 the testimony which is given in the presence of the court, is 
 universally conceded. 
 
 But the question wnth which we are now more particularly 
 concerned is whether this power of the trial judge may be ex- 
 ercised where the injustice consists in rendering a verdict for 
 too small an amount. If the case is one in which the measure of 
 damages is a question of law, the court has, of course, the same 
 power to set aside a verdict for too small an amount as one which 
 is excessive ; and this is, in general, true without question where
 
 PROVINCE OF COURT xVND JURY. 685 
 
 the damages are capable of exact computation — that is, where 
 the facts established by the verdict of the jury show as matter 
 of law how much the recovery should be. In such cases the 
 court may grant a new trial, unless the defendant will consent 
 to a verdict for a larger amount, fixed by the court, than that 
 found by the jury; just as in case of excessive damages imder 
 similar circumstances the court may reduce the amount for 
 'which the verdict shall be allowed to stand, on penalty of set- 
 ting it aside if the successful party does not agree to the reduc- 
 tion. Carr v. Miner, -12 111. 179 ; James v. Morey, 44 111. 352. 
 It seems to have been thought by some courts that the general 
 supervisory power over verdicts, where the amount of damage 
 is not capable of computation, and rests in the sound discretion 
 of the jury, should not be exercised where the verdict is for too 
 small an amount ; at least not with the same freedom as in 
 eases where it is excessive. Barker v. Dixie, 2 Strange, 1051; 
 Pritchard v. Hewitt, 91 Mo. 547; Martin v. Atkinson, 7 Ga. 
 228. No such limitation on the supervisory power of the trial 
 judge has been definitely established, and by the great weight 
 of authority, both in England and America, the power to set 
 aside the verdict, when manifestly inconsistent with the evi- 
 dence, and the result of a misconception by the jury of their 
 powers and duties, is as fully recognized where the verdict is 
 inadequate as where it is excessive; and ample illustration of 
 the exercise of this power is found in actions to recover dam- 
 ages for personal injuries or injury to the reputation, although 
 in such cases the amount of damage is peculiarly within the 
 jury's discretion. Phillips v. London & S. W. E. Co., 5 Q. B. 
 D. 781 ; Robinson v. Town of Waupaca, 77 Wis. 544 ; Whitney 
 V. Milwaukee, 65 Wis. 409 ; Caldwell v. Vicksburg, S. & P. R. Co., 
 41 La. Ann. 624; Benton v. Collins, 125 N. C. 83; McNeil v. 
 Lyons, 20 R. I. 672; Lee v. Publishers, George Knapp & Co., 
 137 Mo. 385; McDonald v. Walter, 40 N. Y. 551; Carter v. 
 Wells, Fargo & Co. (C. C.) 64 Fed. 1007. * * * We do 
 not hold that the trial judge may substitute his judgment of the 
 credibility of the witness in place of the judgment Vrhich the 
 jury has exercised, but we do say that the trial judge may, if 
 he finds that the jury have failed to allow the amount of dam- 
 ages shoA\Ti by uncontradicted testimony, set aside the verdict 
 as in conflict with the evidence and award a new trial.
 
 6Si5 PROVINCE OF COURT AND JURY. 
 
 The ruling of the lower court was therefore correct, and it is 
 affirmed. 
 
 CHICAGO CITY RY. CO. v. GEI\IMILL. 
 
 Illinois, 1904. 209 111. 638. 
 
 Hand, C. J. This was an action on the case, commenced in the 
 circuit court of Cook county by Michael Sheehan against the ap- 
 pellant to recover damages for a personal injury alleged to 
 have been sustained by him through the negligence of the ap- 
 pellant. The declaration contained four counts. The plea of 
 not guilty was filed. A trial resulted in a verdict for the sum 
 of $12,500, and, a motion for a new trial having been interposed, 
 the trial court required the plaintiff to remit the sum of $6,500, 
 otherwise the motion for a new trial would be granted, where- 
 upon the plaintiff entered a remittitur for that amount, and 
 the motion for a new trial was overruled, and judgment ren- 
 dered on the verdict for $6,000. The appellant prosecuted an 
 appeal to the Appellate Court for the First District, where the 
 judgment was affirmed, and a further appeal has been prosecuted 
 to this court. 
 
 During the pendency of the appeal in the Appellate Court 
 Michael Sheehan died, and Howard S. Gemmill, his adminis- 
 trator, was substituted as appellee, and appears in that capacity 
 in this court. 
 
 At the close of the plaintiff's evidence, and again at the close 
 of all the evidence, the defendant moved the court to peremp- 
 torily instruct the jury to return a verdict in favor of the de- 
 fendant, whi(^ the court declined to do, and the action of the 
 court in that regard has been assigned as error. It appeared 
 from the uncontradicted evidence that Michael Sheehan, who 
 was at the time of the injury in the employ of the Chicago House- 
 wrecking Company as a teamster, was driving a horse hitched 
 to a loaded wagon upon Thirty-Fifth street, which runs east 
 and west, in the city of Chicago; that the wrecking company's 
 place of business and yards are located on the southwest corner 
 of Iron and Thirty-Fifth streets, the entrance thereto being on 
 Thirty-Fifth street, about 225 feet west of Iron street; that the 
 appellant operated a double-track electric street railway on 
 Thirty-Fifth street, its west-bound cars running upon the north
 
 PROVINCE OP COURT AND JURY. 687, 
 
 track and its east-bound cars running upon the south track; 
 that as Sheehan approached the entrance to the yards of the 
 wrecking company from the east, it being after 6 o'clock, he dis- 
 covered the gate was closed. He stopped the horse on the north 
 side of the street, immediately in front of the entrance, got 
 down from the wagon, went across the street to the gate, and 
 notified the watchman to open it, which the watchman did. He 
 then went back, got upon the wagon, and started to drive across 
 the street into the wrecking company's yard. A car of ap- 
 pellant was approaching from the west upon the south track. 
 As Sheehan drove upon that track the car struck the wagon, and 
 knocked the horse down, and threw Sheehan off upon the 
 ground, from which fall his hip was crushed and he was other- 
 wise injured. At the time of the injury it was daylight; the 
 track was dry; and the view up and down Thirty-Fifth street, 
 at the place of the injury, for a considerable distance was un- 
 obstructed. The evidence was conflicting as to the rate of speed 
 at which the car was running and its distance west of the en- 
 trance to the wrecking company's yards when Sheehan started 
 to cross the tracks ; also as to whether the gong was sounded by 
 the motorman, or Sheehan looked in the direction of the ap- 
 proaching car. Sheehan testified the car was 300 feet or more 
 west of the entrance to the yards of the wrecking company when 
 he started to drive across the tracks; that from the position he 
 was in on the load he could not judge accurately as to the rate 
 of speed at which the car approached the wagon ; that when he 
 drove upon the tracks the car was 150 feet or more west of hiip, 
 and that it struck the rear part of the wagon. Other witnesses 
 testified the car was running at a high rate of speed, that the 
 wagon was badly broken, and that some of the windows in the 
 car were knocked out at the time of the collision. * * * 
 
 It is assigned as error that the court improperly gave to the 
 jury the following instruction: "The jury are instructed that 
 if you find for the plaintiff in this case you will be required to 
 determine the amount of his damages, and in determining the 
 amount of damages the plaintiff is entitled to recover in this 
 case, if any, the jury have a right to, and they should take into 
 consideration all the facts and circumstances in evidence before 
 them, and the nature and extent of plaintiff's physical injuries, 
 if any, testified about in this case, so far as shown by the evi- 
 dence ; his suffering in body and in mind, if any, resulting from
 
 6S8 PROVINCE OF COURT AND JURY. 
 
 such injuries; and such future suffering and loss of health, if 
 any, as the jury may believe, from the evidence before them in 
 this case, he will sustain by reason of such injuries." The 
 criticism made upon the instruction is that it informs the jury 
 that in determining the amount of damages that the plaintiff is 
 entitled to recover, if any, they have a right to and should take 
 into consideration all the facts and circumstances in evidence 
 tefore them. While the instruction would have been more ac- 
 curate had it limited the jury to the consideration of the facts 
 and circumstances attending the injury, as was done in the 
 case of Gartside Coal Co. v. Turk, 147 111. 120, we are of the 
 opinion the jury were not misled by the instruction. An in- 
 struction in substantially the above form was approved by this 
 court in Hannibal & St. Joseph Railroad Co. v. Martin, 111 
 111. 219; West Chicago Street Railroad Co. v. Carr, 170 111. 
 478, West Chicago Street Railroad Co. v. Jolinson, 180 111. 285 ; 
 Cicero & Proviso Street Railway Co. v. Brown, 193 111. 274 ; and 
 Chicago Terminal Transfer Railroad Co. v. Gruss, 200 111. 195. 
 The giving of the instruction was not prejudicial error. * * * 
 
 It is further assigned as error that the court erred in enter- 
 ing judgment on the verdict for $6,000, the amount remaining 
 after the remittitur was entered. In Loewenthal v. Streng, 90 
 111. 74, which was an action on the case for malicious prosecution, 
 a verdict was rendered for $10,000. A remittitur of $4,000 
 was entered, and a judgment was then rendered on the verdict 
 for $6,000. It was there said that where a verdict is so fla- 
 grantly excessive as to be only accounted for on the ground of 
 prejudice, passion or misconception, a remittitur will not cure 
 the verdict. When that case was decided, this court in that class 
 of cases reviewed questions of fact as well as of law, which is 
 not the case since the organization of the Appellate Courts. In 
 the case of North Chicago Street Railroad Co. v. Wrixon, 150 
 111. 532, after an exhaustive review of the authorities in this 
 state, it was said (page 535, 150 111.) : "We are committed to the 
 practice of allowing remittiturs in actions ex delicto, both in the 
 trial and appellate courts, to such sum as shall to the court 
 seem not excessive, and affirming as to the balance of the judg- 
 ment;" and the practice therein referred to is now too well es- 
 tablished to be questioned. West Chicago Street Railroad Co. 
 V. Musa, 180 111. 130; Chicago & Alton Railroad Co. v. Lewan- 
 dowski, 190 111. 301. In the Musa Case it was held it was the
 
 PROVINCE OF COURT AND JURY. 689 
 
 province of the Appellate Court to determine whether, in view 
 of all the facts of the ease, the damages were excessive, and if, 
 in the view of that court, they were, the error might be cured by 
 a remittitur in that court ; and that the judgment of the Appel- 
 late Court in that regard, being upon a question of fact, v\"ould 
 be binding upon this court. 
 
 Finding no reversible error in this record, the judgment of 
 the Appellate Court will be affirmed. 
 
 Judgment affirmed. 
 
 SOUTHERN PACIFIC CO. v. FITCHETT. 
 
 Arizona, 1905. 9 Ariz. 128. 
 
 Action by railroad passenger for damages. 
 The jury returned the following verdict against the appellant : 
 "We, the jury duly impaneled and sworn in the above-en- 
 titled action, upon our oaths do find for the plaintiff, and as- 
 sess his damages at : 
 
 $48 20, railroad ticket. 
 22 00, expenses in Tucson. 
 1,000 00, injured feelings. 
 
 $1,070 20 
 
 ''C. M. Zander, Foreman." 
 
 It was the expressed view of the trial court that the award 
 by the jury of $1,000 for the injury to the feelings of the ap- 
 pellee was clearly in excess of what was just and proper as a 
 money compensation therefor. It must also have appeared to 
 the court, as it conclusively does to us, that this verdict, so dis- 
 proportionate to the injury proved, was not the result of cool 
 and dispassionate consideration of the jury. Under these cir- 
 cumstances, did the court have the power, against the objection 
 of either part}'', to render judgment for the balance of the ver- 
 dict, after remitting therefrom the part which it deemed exces- 
 sive? Upon this question there is an apparent conflict in the 
 authorities, attributable in some measure to the varying pro- 
 visions of the local Codes. There are actions, the subject of 
 which has a contract, commercial, or other established standard 
 of valuation, where the amount of the verdict, when the facts 
 
 44
 
 690 PROVINCE OF COURT AND JURY. 
 
 are shown, becomes generally mere matter of computation. It 
 seems to be well settled that in this class of actions any excess 
 in the verdict above what the evidence satisfactorily establishes 
 may, with the assent of the party in whose favor it is rendered, 
 be eliminated by remittitur, and judgment entered for the 
 residue. "The exercise of such power," it has been said, "is 
 sanctioned on the theory that the excess arises from misappre- 
 hension of the law or the facts, or error in computation, not 
 necessarily permeating and vitiating the entire verdict, and 
 which it is competent to correct, with the assent of the party 
 whom alone the correction could prejudice, by striking there- 
 from any distinct item, or excess in the computation of its 
 value, appearing to be unsupported by the evidence. ' ' The rule 
 is a salutary one, and, when employed with discretion, ter- 
 minates litigation while promoting justice. But in that class 
 of actions in which the opinion of the jury, unaided by any 
 known standard of valuation, determines the magnitude of the 
 recovery, the power of the court over an excessive verdict is 
 considered by many authorities to be quite different. Although 
 the verdict, if purged of any supposed excess, might, in the 
 opinion of the court, be well sustained as to the residue by the 
 facts disclosed, yet the manifest presence and influence of pas- 
 sion, prejudice, or partiality in producing the excess vitiates 
 the verdict in toto, and, according to these authorities, excludes 
 the power of the court to validate or save any part of it against 
 the consent of either party. It was a theory of the common 
 law that the money value of personal wrongs which could have 
 no certain standard of measurement should not be committed 
 to the arbitrament of a single mind, but should be measured 
 by the average of impartial opinion, of which the concurrence of 
 12 minds, uninfluenced by passion, resentment, or corruption, 
 would be a fair expression. "It is the peculiar province of the 
 jury," observes a noted law writer, "to decide such cases under 
 appropriate instructions from the court, and the law does not 
 recognize in the latter the power to substitute its own judgment 
 for that of the jury. Although the verdict may be considerably 
 more or less than, in the judgment of the court, it ought to have 
 been, still it will decline to interfere, unless the amount is so 
 great or small as to indicate that the jury must have found it 
 while under the influence of passion, prejudice, or gross mistake, 
 or, in other words, that it is the result of accident or perverted
 
 PROVINCE OF COURT AND JURY. 691 
 
 judgment, and not of cool and impartial deliberation. When 
 the verdict is thus excessive or deficient, the trial court, in its 
 discretion, will interpose and set it aside." 2 Suth. Dam. (3d 
 Ed.) §459. But when a verdict is tainted by the presence of 
 any such infirmities, is it safe to permit any portion of it to 
 stand as the basis of a judgment? If recklessness has con- 
 trolled in measuring the extent, may it not be probable that it 
 also controlled in determining the right of recovery ? In South- 
 ern Pac. Co. V. Tomlinson, 4 Ariz. 126, 33 Pac. 710, this court, 
 speaking through Mr. Justice Sloan, said: "A trial court has 
 the power, where excessive damages have been allowed by the 
 jury, and where the motion to set aside the verdict is based upon 
 this ground, to make a remission a condition precedent to over- 
 ruling the motion. * * * Of course, if it is apparent to the 
 trial court that the verdict was the result of passion or prejudice, 
 a remittitur should not be allowed, but the verdict should be set 
 aside. In passing upon this question the court should not look 
 alone to the amount of the damages awarded, but to the whole 
 case." The case which evoked the foregoing expression was an 
 action based upon injuries resulting in death. It is therefore 
 readily distinguishable from the case as bar, in the point that 
 the damages therein were susceptible of accurate computation 
 from the evidence. The Supreme Court of Georgia holds that, 
 in suits to recover for personal injuries, it is not competent for 
 the trial court to say that the verdict shall stand for any definite 
 sum less than it designates, as a condition for refusing a new 
 trial. Railway Co. v. Harper, 70 Ga. 119. The rule in that 
 state is that, where general damages have been recovered for a 
 personal tort, if they be so excessive as to lead the court to sus- 
 pect bias or prejudice, the judge has no power to require a por- 
 tion of the damages written off, and thereupon refuse a new 
 trial ; but it is otherwise where the damages claimed are special, 
 and from the testimony can with accuracy be computed in dol- 
 lars and cents, as in cases of tortious homicides. Railway Co. ' 
 V. Godkin, 104 Ga. 655. In Kentucky the trial court cannot, in 
 an action to recover for personal injuries, require the plaintiff, 
 in order to avoid a new trial, to accept a judgment for less than 
 the verdict awards ; and, if such judgment is aeepted under pro- 
 test, it will be reversed either upon the defendant's appeal or 
 upon cross-appeal. Railway Co. v. PJarl's Adm'r, 94 Ky. 368. 
 The Texas courts denied the power to require a remittitur in ac-
 
 692 PROVINCE OF COURT AND JURY. 
 
 tions to recover damages for torts, but the rule has been changed 
 by statute. Railway Co. v. Syfan, 91 Tex. 562. The same view 
 of the main question seems to be favored in West Virginia. 
 Vinal V. Core, 18 W. Va. 1 ; Unfried v. Railroad Co., 34 W. Va. 
 260. It is also indorsed in Arkansas, Railway Co. v. Hall, 53 
 Ark. 7. This is also the view in Missouri as to the Supreme 
 Court, but not as to the trial courts. In Gurley v. Railway Co., 
 104 ]\Io. 211, it was said by the former court: "Whenever the 
 verdict does not, upon its face, appear to be the result of passion 
 or prejudice, it is wholly within the province of the jury; but, 
 when it does so appear, then it ought to be set aside. We have 
 no scales by which we can determine what portion is just, and 
 the result of reason, based upon the evidence, and what part 
 is poisoned with prejudice and passion. We do not think it 
 within our province to assess the damages. When we set aside 
 any part of the verdict, we destroy its integrity, and we have 
 no right to set ourselves up as triers of facts, and render another 
 and a different verdict. We think the only logical course in 
 such cases is to let the verdict stand or set it aside as an entirety." 
 The Supreme Court of Colorado had this subject under discus- 
 sion in a recent and w^ell-considered case, in which the authori- 
 ties were reviewed, and an attempt made to distinguish and har- 
 monize them. The conclusion there reached was that in an 
 action for personal injuries, where the verdict was excessive, 
 and apparently the result of passion, or prejudice, the trial court 
 could not order a remittitur of the excessive part and give judg- 
 ment for the residue, but must grant a new trial, Davis Iron- 
 works Co. V. White (Colo. Sup.) 71 Pac. 384. The Supreme 
 Court of the United States, speaking through Mr. Justice White, 
 in Hansen v. Boyd, 161 U. S. 397, said: "The rule has been 
 adopted by this court that it is proper either for the trial court 
 upon an application for a new trial, or for an appellate court in 
 reviewing a judgment, to permit the party in whose favor a 
 verdict or judgment has been returned or entered to avoid the 
 granting of a new trial on account of error affecting only a part 
 thereof, by entering a remittitur as to such erroneous part, when 
 the court can clearly distinguish and separate the same." The 
 practice of ordering a remittitur within the limits of the last- 
 mentioned rule involves no departure from sound principle, and 
 is expressly sanctioned by our Code. Paragraphs 1450, 1455, 
 Rev. St. 1901. Authorities are also to be found which will sup-
 
 PROVINCE OF COURT AND JURY. 693 
 
 port the practice in both appellate and trial courts of reducing 
 judgments and verdicts, even in those cases where no standard 
 of measurement exists, and although it be apparent that the 
 jury's excessive finding must have been influenced by passion, 
 prejudice, or a perverse disregard of justice, but we are dis- 
 posed to question their soundness in principle. 
 
 In the case at bar the trial court was of the opinion that more 
 than half of the damages awarded for the appellee's "injured 
 feelings" were excessive. It was impossible to tell how the jury 
 made up their verdict, but it was evidently not the result of cool 
 and dispassionate consideration. Under these circumstances, 
 we think it was not the province of the court to substitute its 
 own estimate of the damages for that which it had rejected, but 
 that the question of the proper sum to be awarded, was one of 
 fact, which should have been submitted to the determination of 
 another jury. We are the more readily led to this view when 
 we consider that the language of our Code is that "in all cases, 
 both at law and in equity, either party shall have the right to 
 submit all issues of fact to a jury. ' ' Paragraph 1398, Id. What- 
 ever may be the effect of this provision as to equity cases, it 
 was the manifest intention of the Legislature to enact as strongly 
 as words could express its will in favor of the right to have ques- 
 tions of fact left to the determination of the jury. 
 
 Other errors are assigned by the appellant, but, as the case 
 will have to be reversed because of the action of the court with 
 respect to the remittitur, and the other questions presented may 
 not arise upon another trial, we deem it unnecessary to discuss 
 them. 
 
 The judgment and order appealed from will be reversed, and 
 the cause remanded to the district court for a new trial. 
 
 SlOxVN and Doan, JJ., concur. 
 
 The judfre should charjre the jury as to the true measure of damages. 
 "The rule by which damages are to be established is a question of law 
 to be decided by the court. The extent of damages sustained as the 
 consequence of defendant's act is within the province of the jury." 
 B. & O. R. R. V. Carr. 71 Md. 135. 
 
 Where the court deems excessive a verdict for damages which are 
 in their nature incapable of exact ascertainment, as for injured feelings, 
 and is satisfied that the verdict was due to passion and prejudice, it 
 is not for the court to substitute its own estimate of the damages for 
 that which it had rejected by ordering a remittitur. The Southern 
 Pacific Co. V. Fitchett, 9 Ariz. 12.5.
 
 tiO-i PROVINCE OP COURT AND JURY. 
 
 In an action of libel the amount of daniaKe is peculiarly within 
 the province of the jury. When in their judgment the defendant was 
 Incited by actual malice or acted wantonly or recklessly, they may 
 give exemplary dumases. Holmes v. Jones, 147 N. Y. .50. 
 
 It is within the province of the jury, in a case of personal injuries, 
 to award such damages as they think proper, considering the perma- 
 nent injury, the resulting disability, the time lost and mental suffering 
 endured. Atoka C. & M. Co. v. Miller, 7 Ind. Ter. Kep. 106.
 
 INDEX. 
 
 [The references are to the pages.] 
 
 ABUSIVE TREATMENT OF PASSENGER, 403. 
 ACTION, when to begin, 312. 
 
 when it survives, 433. 
 ACT OF GOD, 416, 417, 418, 419. 
 ACTUAL VALUE, 291, 476. 
 damages, 121, 575. 
 loss, 359. 
 ADAPTABILITY OF LAND, 660. 
 ADVERTISING, contract for, 85, 357, 381. 
 AFFRAY, 631. 
 
 AGE, an element of damage, 425. 
 AGGRAVATION OF DAMAGES— 
 
 where agent has Improper motive, 140. 
 in case of seduction, 549. 
 in breach of promise of marriage, 560. 
 where breach is aggravated by seduction, 561. 
 where unchastity is charged, 663. 
 in case of mental anguish, 121. 
 AGGRAVATION OF DISEASE, 120. 
 AGREEMENT, to devise, 230. 
 
 to sell, 258. 
 ALTERNATIVE TO DO OR PAY, 181. 
 ANIMALS, ferocious dog, 42. 
 damage done by, 462. 
 right to be in highway, 463. 
 ANNOYANCE, 388. 
 ANNUITY, cost of, 100. 
 
 ANTENUPTIAL AGREEMENT TO DEVISE, 230. 
 ANTICIPATED PROFITS, 236. 
 ANTICIPATORY BREACH. 272. .308. 321. 
 APPRENTICESHIP, indentures of, 39. 
 ARCHITECT, plans of, 2.^1. 
 ASSAULT AND BATTERY— 
 
 where plaintiff's skull is broken, .506. 
 
 where brought on by insulting words, .50. 
 
 where plaintiff is ejected from dance hall, 1.33. 
 
 when exemplary damages may be recovered, 95. 
 
 when damages are inadequate, 140. 
 
 where gun is pointed in a threatening manner, 507. 
 
 695
 
 696 INDEX. 
 
 [The references are to the pages.) 
 ASSAULT AND BATTERY— Continued. 
 
 when "smart monej-" is allowed, 510. 
 
 death hastened by assault, G32. 
 
 with immoral solicitation, 512. 
 
 where made in heat of passion, 512. 
 
 with verbal provocation, 512, 032. 
 
 no recovery for fright, 512. 
 
 invading bed-room to present bill, 512. 
 ASSESSMENT OF DAMAGES, 53, 240, 477. 
 ATTACHMENT, wrongful, 205, 482. 
 ATTORNEY AT LAW, value of services, 221, 389. 
 
 average earnings, 390. 
 
 negligence of, 41(3. 
 AUTOMOBILE, negligent driving, 51. 
 
 sale of, 297. 
 
 collision, 414. 
 
 conversion, 491. 
 AVOIDABLE DAMAGES— 
 
 plaintiff should seek new employment, 29. 
 
 vendor on breach should resell, 307. 
 
 on countermand plaintiff to stop work, 27, 338. 
 
 plaintiff must keep lijfbility small, 255. 
 
 plaintiff must mitigate defendant's loss, 642. 
 
 plaintiff must minimize his losses, 33, 642. 
 BAD TITLE, 245. 
 BAILMENT, 253, 353. 
 BENEFICIAL IMPROVEMENTS, 247. 
 BOARD AND LODGING, contract for, 404. 
 BONDS, non-delivery, 360. 
 BREACH OF COVENANT, 38. 
 
 BREACH OF PROMISE OF MARRIAGE, .5-56, 559, 561, 662. 
 BREACH OF WARRANTY, 243, 292, 277, 359. 
 
 by vendor of horse, 280. 
 BRIDGE, defective, 101. 
 
 neglect to repair, 203. 
 BUILDING CONTRACT, 355. 
 CANCELLATION OF CONTRACT, 358. 
 CAPITAL AND EARNINGS, 413. 
 CARLISLE TABLES, 37, 80, .585. 
 CAVEAT EMPTOR. 278. .5.38. 
 CERTAINTY— See Speculative Damages, 34, 228. 
 CHARACTER, general bad, 515. 
 CHASTITY. .566. 
 CIPHER MESSAGE, .568. 
 CIVIL DAMAGE ACT, 582, 586, .589. 
 CIVIL LAW, 648.
 
 INDEX. 697 
 
 [The references are to the pages.] 
 
 COAL, contract to supply steam, 284. 
 
 mixed and carried away by mistake, 465. 
 COLLATERAL ISSUE, 670. 
 COMMISSIONS OF SALESMAN, 81. 
 COMMON CARRIER— 
 
 liability for delay, 165, 256, 389. 
 
 breach of contract to transport passenger, 381, 387, 59, 148, 529, 534. 
 
 insulting language, 148, 391. 
 
 breach of contract to transport personalty, 300. 
 
 COMPENSATION — principle upon which damages are assessed, 194, 120. 
 
 in excess of injury, 467. 
 
 expense an element, 90. 
 
 mitigation an element, 358. 
 
 good-will, when element, 293. 
 
 shortening of life, 408. 
 COMPENSATORY DAMAGES— 
 
 in case of conversion, 34. 
 
 contract to support one for life, 37. 
 
 nuisance from noise of locomotive, 40. 
 
 subsidence of ground through mining, 41. 
 
 damages defined and distinguished, 135. 
 
 where insulting language was used, 400. ^ 
 
 where horses are seized in attachment, 484. 
 
 where conductor used vile language, 149. 
 
 where lawyer detained by railroad, 389. 
 
 where libel is published negligently, 521. 
 
 where customer of department store is arrested, 529. 
 CONDEMNATION OF LAND, 455. 
 CONDITIONAL SALE OF GOODS, 259. 
 CONSEQUENCES, remote, 217. 
 CONSIDERATION, failure of, 295. 
 CONSORTIUM, loss of, 512, 555. 
 CONSPIRACY OF TRADE UNION, 62. 
 
 to raise price, 602. 
 CONSTRUCTIVE SERVICE, 377, 367, 369. 
 CONTINGENT DAMAGES, 70, 81. 77, 221, 228, 666. 
 CONTINUING TRESPASS, 187, 498, 499. 
 CONTRACT. BREACH OF— 
 
 to furnish opera house, 91. 
 
 to cut logs, 29. • 
 
 for admission to dance, 133. 
 
 to furnish public school, 176. 
 
 to build store, 160. 
 
 to build warships, 166. 
 
 for work, labor and services, 360, 150, 174, 154, 164, 376, 353, 355, 364. 
 
 to pay wages. 377. 
 
 by vendee of goods, 84, 310.
 
 698 INDEX. 
 
 (The references are to the pages.] 
 CONTRACT— BREACH OF— Continued. 
 
 by vendor of goods, 20S, 202, 271, 20(5, 3G0. 
 
 by common carrier, 210, 25(5. 
 
 by common carrier to transport shaft, 202. 
 
 to sell real estate, 229, 23!S. 
 
 to devise land, 230, 233. 
 
 executory contract, 241, 309, 474. 
 
 by vendee of manikin, 251. 
 
 to publish advertisement, 85, 357. 
 
 to pay actor, 374. 
 
 to make a loan, 616. 
 
 anticipatory, 275, 321. 
 
 to build grandstand, 156. 
 CONTRACT BY WILL, 231, 233. 
 CONTRACT PRICE— 
 
 when vendor fails to perform, 71, 276. 
 
 on tender of brick made to order, 311. 
 
 on refusal of vendee to accept, 312, 339, 344. 
 
 defect in vendor's title, 241. 
 
 where purchaser repudiates, 314. 
 CON\^ERSION— 
 
 where business is broken up, 34. 
 
 by inadvertent trespasser, 480. 
 
 where value fluctuates, 625. 
 
 duty of warehouseman, 221. 
 
 in case of coal mined innocently, 465, 488. 
 
 where title to growing wool passes, 468. 
 
 where family pictures have peculiar value, 475. 
 
 where household furniture has sentimental value, 477. 
 
 where horses are attached on train, 482. 
 
 in case of fluctuating stock, 475. 
 
 the highest intermediate value, 488, 628. 
 
 where stock converted fluctuates, 475, 488. 
 
 where business is destroyed through receivership, 488. 
 CORNER IN MARKET, 608. 
 CORPORATION, liability of, 130. 
 COST OF PRODUCTION, 348. 
 
 of performance, 322. 
 
 to replace, 478. 
 
 of transportation, 265. 
 
 of repairs, 219. 
 
 of removal of nuisance, 506. 
 COSTS OF COURT, 250, 650, 653. 
 
 of eviction, 244. 
 COULTAS CASE, doctrine of, 102. 
 COUNSEL FEES, 250, 648, 6.54.
 
 INDEX. 699 
 
 [The references are to the pages.] 
 
 COUNTERMAND, effect of, 28, 338. 
 COURT, prbvince of, 549, 561, 685, 689, 693. 
 COVENANT, breach of, 38. 
 
 in lease, 182. 
 
 against incumbrances, 238. 
 
 of title, 243. 
 
 of seizin. 250. 
 CREDIT, impairment of, 296, 206. 
 CRIMINAL CONVERSATION, 548, 550, 553, 555. 
 CROPS, injury to, 655. 
 CUTTING LOGS, 29. 
 DAMNUM ABSQUE INJURIA, 2, 11, 18. 
 DEAD BODY, dissection of, 103. 
 DEATH BY NEGLIGENCE— 
 
 where girl was killed at railway crossing, 423. 
 
 pecuniary advantage of next of kin, 429. 
 
 pecuniary loss of relations, 442. 
 
 mere loss of life alone, 444. 
 
 monetary value of services, 449. 
 
 photograph of deceased as evidence, 449. 
 
 recovery of collateral kinsman, 450. 
 
 where plaintiff has been married second time, 450. 
 
 support received from female child, 451. 
 
 death of a small boy, 451. 
 
 where plaintiff must support crippled child, 451. 
 
 feelings of widow and her poverty not considered, 450. 
 
 no award for mere loss of society, 451. 
 
 cost of maintaining wife to be deducted, 450. 
 
 damages to be unaffected by sentiment, 451. 
 
 age and wealth of decedent to be considered, 450. 
 DECEIT, fraud and, 537, 544. 
 DECLARATION OF SHIPMENT, 273. 
 DEFENCE OF LAWSUIT, 290. 
 DELAY, payment for, 157, 166. 
 
 in delivery, 256, 416. 
 
 of common carrier, 196. 
 DELIVERY, time and place of, 283. 
 DEMAND, extraordinary, 251. 
 
 DEPOSIT OP MONEY, ISO, 170, 182, 229, 245, 206, 591. 
 DEPRECIATION. 164, 410, 492. 
 DESTINATION, value at point of, 483. 
 DETINUE, 481. 
 
 DEVIATION FROM CONTRACT, 355. 
 DEVISE, agreement to, 230. 
 DISCHARGE, unlawful, 360, 376, 364. 
 
 by threat, 01. 
 DISEASE, cure of, 90. 
 DICTATION TO STENOGRAPHER, 681.
 
 700 INDEX. 
 
 [The references are to the pages.] 
 
 DIRECT AND CONSEQUENTIAL DAMAGES, 207. 
 
 in case of wrongful levy, 205. 
 
 when city neglects to repair bridge, 203. 
 
 where vendor fails to deliver, 20S. 
 
 in an action of tort, 209. 
 
 where passenger is put off at wrong Btation, 209, 384. 
 
 throwing a squib, 211. 
 
 whei'e a woman is struck by a locomotive, 215. 
 
 where a carrier delays delivery of a broken shaft, 191, 
 
 where cattle stray through open gate, 219. 
 
 where engine is not finished in due time, 73. 
 
 in case of act of God, 420. 
 
 where delivery of telegram is delayed, 574. 
 
 in case of miscarriage, 218. 
 
 where business is broken up, 218. 
 
 where a city improves a public street, 218. 
 
 W'here a dynamite bomb explodes, 218. 
 
 where balloon descends in garden, 218. 
 
 in case of boycott by orthodox Jews, 218. 
 DISPOSSESS PROCEEDINGS, 185. 
 DISSECTION OF DEAD BODY, 103. 
 DIVERSION OF WATER, 1, 6, 7, 8, 10, 187, 453. 
 DRAM SHOP ACT, 586. 
 DUTY TO INVESTIGATE, 518. 
 EARNING POWER, loss of, 54, 98, 121, 412, 413. 
 EARNINGS, not profits, 100, 87, 411. 
 EASEMENT, 47. 
 
 of light, air and access, 591. 
 EJECTION FROM DANCE-HALL, 133. 
 
 ELECTION OF REMEDIES, 373, 299, 303. 304. 317, 346, 359, 465, 466, 540. 
 ELECTRIC ILLUMINATING PLANT, 502. 506. 
 ELEMENTS OF COMPENSATION, 403, 407, 425. 
 ELEMENTS OF DAMAGES, 415. 
 EMINENT DOMAIN. 120, 590, 594, 596, .597, 600, 001. 
 EMPLOYMENT, duty to seek, 364, 365, 376. 
 ENGINE, failure to furnish, 73. .839. 
 ENGINEER, appointment as, 54. 
 ENHANCEMENT OF DAMAGES, 560. 
 ENTIRE DAMAGES, 456. 
 ENTRY, wrongful, 118. 
 EVIDENCE— 
 
 in case of breach of promise, 663. 
 
 in aggravation of damages, 664. 
 
 where the spine was injured, 66.5. 
 
 where medical experts testify, 667. 
 
 in case of personal injuries. 667. 
 
 where bicycle experts testify, 668. 
 
 as to light, air and access, 669.
 
 INDEX. 701 
 
 [The references are to the pages.] 
 
 EVIDENCE— Continued. 
 
 as to collateral issues, 670. 
 as to the general course of values, 670. 
 proof as to loss of profits, 671. 
 as to defendant's wealth, 673. 
 as to income and earnings, 675. 
 photograph of decedent in testimony, 449. 
 offer as proof of value, 658. 
 in case of miscarriage and still birth, 679. 
 as to profits of a mill, 679. 
 as to plaintiff's earnings prior to injury, 679. 
 as to obedience and economy of a boy of 13, 679. 
 EVICTION UNDER COVENANT, 238. 
 costs of, 244. 
 value at time of, 248. 
 EXCEPTIONAL AND UNNATURAL DAMAGES, 270, 390. 
 EXCESSIVE DAMAGES— 
 
 when new trial to be granted, 142. 
 verdict the result of passion and prejudice, 144. 
 where deceased had accumulated large wealth, 429. 
 power of jury in case of tort, 510. 
 where unchastity is imputed, 512, 513. 
 where engagement to marry was broken, 556. 
 where man of wealth breaks contract to marry, 563. 
 power of court to reduce, 145. 
 where unverified libel was published, 145. 
 where mother and babe are ejected from train, 145. 
 where bright active woman of 40 becomes insane, 145. 
 where waiter upsets tray on lady's gown, 145. 
 where unmarried female clerk lost an eye, 145. 
 where plaintiff lost three fingers, 145. 
 in case of traumatic neurosis, 145. 
 where one eye is lost, 145. 
 where laborer is incapacitated for a year, 146. 
 where young man was burned but mental faculties unimpaired, 146. 
 for false imprisonment but no violence, 146. 
 for ejection from train, 146. 
 
 where thigh bone of street-sweeper was broken, 146. 
 for precipitation into creek by derailment of car, 146. 
 EXECUTORY CONTRACT, 241, 259, 309, 322. 
 
 offer to perform, 331. 
 EXEMPLARY DAMAGES. 127. 
 in actions of trespass, 123. 
 threatening language, 124. 
 in cases of terror and fright, 115. 
 
 where passenger is assaulted and insulted by brakeman, 124. 
 for exclusion from dance hall. 133.
 
 702 INDEX. 
 
 [The refei'ences are to the pages.] 
 EXEMPLARY DAJNIAGES— Coutiuued. 
 
 in an action of libel, 137. 
 
 for injury by runaway horse, 140. 
 
 for insult to passenger, l4s. 
 
 where eye is injured by assault, 96, 639. 
 
 in an action of replevin, 4SS. 
 
 for unprovoked and malicious assault, 507. 
 
 for libel charging elopement, 520. 
 
 for gross negligence in case of libel, 521. 
 
 false imprisonment by employe, 529, 534. 
 
 in case of seduction, 548. 
 
 in an action of erim. con., 549. 
 
 in actions under "Civil Damage Act," 586. 
 
 evidence of defendant's wealth, 673. 
 
 dictation of libel to stenographer, 681. 
 
 wanton destruction of shade trees, 142, 506. 
 
 the theory attacked as wrong, 142. 
 EXPENSE OF LITIGATION, 647, 648, 652, 135, 290. 
 EXPENSES— 
 
 for cure of horse by veterinarian, 89, 644. 
 
 for rent of opera house, 91. 
 
 of litigation. 648. 
 
 costs of court, 290, 648. 
 
 freight charges, 297. 
 
 rent of mill, 78. 
 
 for transportation of reaping machines, 298. 
 
 counsel fees, 647, 651. 
 
 costs and extra costs, 650. 
 EXPERTS, testimony of, 659, 665, 668. 
 EXPLOSION OF GAS, 48. 
 EXPULSION FROM CAR, 105, 130. 
 FAILURE OF CONSIDERATION. 295. 
 
 of grantor to make title, 229. 
 
 to perform, 355. 
 FALSE IMPRISONMENT. 527, 529, 534. 
 FALSE REPRESENTATIONS, 539, 543, 545, 546. 
 FEELINGS, injury to, 121. 
 FEES, of counsel, 250. 
 
 loss of, 121. 
 FEMALE PASSENGER, duty to, 398. 
 FINANCIAL CONDITION, 97. 
 FIRE, destruction by, 221, 614. 
 
 insurance, 612, 645, 646. 
 FISHING, business of, 51, 82. 
 FLOOD, injury to bridge, 205. 
 FLUCTUATIONS IN VALUE, 207, 619, 628, 605. 
 FORFEIT OF DEPOSIT, 173.
 
 INDEX, 703 
 
 [The references are to the pages.] 
 
 FRAUD AND DECEIT, 537, 538, 543, 546, 545. 
 FRIGHT, 101, 102, 118, 122. 
 
 causing miscarriage, 107, 110, 415. 
 wrongful entry, 118. 
 FUTURE EARNINGS, 3G2. 
 FUTURE PROFITS, 20, 227, 236. 
 GAINS PREVENTED, 66, 29, 193, 325. 
 GAS, explosions of, 48. 
 GENERAL REPUTATION, 515. 
 GOODWILL, 151, 293. 
 GRANDSTAND AT RACETRACK, 158, 
 HADLEY V. BAXENDALE, rule in, 191. 
 HEMP, contract to ship, 273. 
 HIGHEST INTERMEDIATE VALUE, 474. 
 HORSE, bailment of, 253. 
 
 injury to, 89. 
 
 warranty of soundness, 280. 
 HOWARD V. DALY, doctrine of, 366. 
 HOUSEHOLD GOODS. 614. 
 HUMILIATION, 120. 394, 400. 
 ILLEGAL ARREST. 529. 
 ILLEGAL BUSINESS. 225. 
 ILLNESS OF WIFE. 386. 
 IMPAIRMENT OF CREDIT, 206. 
 IMPROVEMENTS, beneficial, 247. 
 
 INADEQUATE DAMAGES. 149, 148, 146, 150, 528, 583, 597, 689. 
 INADVERTENT TRESPASSER, 480, 493. 
 INCOME FROM BUSINESS. 675. 
 INCONVENIENCE, 40, 384, 388. 
 INCREASED VALUE OF LAND, 248. 
 INCUMBRANCES, covenant against, 238, 251. 
 INDENTURE OF APPRENTICESHIP, 39. 
 INDIGNITY. 108. 401. 
 INJURIA SINE DAMNO, 1, 
 INJURY TO CREDIT, 296, 
 INJURIES, personal, 146, 
 
 to health, 52.3. 
 INSPECTION, opportunity for, 301. 
 INSI'LT TO PASSENGER. 396, 400. 
 
 INSULTING LANGTTAGE. 50, 124, 134, 148, 391, 395, 400. 
 INSI^RANCE. contract of, 452. 
 
 benefits, 149. 
 INTEREST— 
 
 when ascertainable by computation, 32, 
 
 on deposit as security, 182. 
 
 in contract to pay money. 84. 
 
 upon purchase money of land, 247. 
 
 in action of trover, 474.
 
 704 INDEX. 
 
 [The references are to the pages.] 
 
 INTERE ST— Continued. 
 
 where a horse was injured and killed, 644. 
 in actions of tort, 647. 
 negligent destruction of property, G47. 
 on bonds and coupons, 647. 
 in case of eminent domain, 647. 
 in action for rent, 647. 
 in case of personal injuries, 647. 
 INTOXICATION OF SERVANT, 131. 
 INTOXICATING LIQUORS, abstinence from, 150. 
 INVALID, 147. 
 JOINT TORT FEASOR, 555. 
 JOKE, practical, 111. 
 
 JURY, province of, 125, 510, 511, 533, 549, 555, 683, 690, 694. 
 LAND— 
 
 increased value, 248. 
 lateral support, 12. 
 lease of, 364. 
 LANDLORD AND TENANT, 182, 234, 237, 545. 
 LANGUAGE, indecent and insulting, 391, 395, 400, 
 LATE DELIVERY, 256. 
 LATERAL SUPPORT OF LAND, 12. 
 LAWSUITS, costs of, 288. 
 LAWYER'S TIME, 389. 
 
 LEASE OF REAL ESTATE, 182, 184, 229, 364, 503. 
 LEGAL EXPENSES, 135. 
 LEGAL PROCESS, abuse of, 143. 
 LIBEL— 
 
 where physician was called blockhead and fool, 137. 
 where verdict result of passion or prejudice, 144. 
 where elopement was charged, 515, 518. 
 where publisher did not investigate, 518. 
 where publication was in good faith, 520, 521, 522. 
 where woman sharpshooter was charged with crime, 522. 
 libel dictated to confidential stenographer, 681. 
 where plaintiff's character is bad, 514. 
 where an actress had a lawyer arrested, 514. 
 where reputation for chastity and virtue is bad, 514. 
 where defendant refuses to retract, 514, 527. 
 where no pains are taken to get correct story, 514, 527. 
 LIENS ON REAL ESTATE, 21. 
 LIFE, expectation of, 408, 585. 
 
 tables, 37, 80, 585. 
 LIGHT, air and access, 669. 
 LIQUIDATED DAMAGES, 164. 170. 
 
 abstinence from intoxicating liquors, 150. 
 contract in restraint of trade, 153.
 
 INDEX. 705 
 
 [The references are to the pages.] 
 
 LIQUIDATED DAMAGES— Continued. 
 
 for delay in completing building, 159. 
 on deposit in security for rent, 182. 
 construction of war ships, 186. 
 on notice to quit by employe, 154. 
 on contract to manufacture bicycle, 668. 
 when enforceable, 186. 
 on a replevin bond, 186. 
 language used immaterial, 186. 
 
 when breaches are uncertain in nature and amount, 52. 
 LORD CAMPBELL'S ACT, 445. See Death by Negligence. 
 LOSS OF BENEFITS, 542. 
 
 of earning power, 98, 134, 447. 
 of employment, 63. 
 of life, 442, 446. 
 
 of profits, 64, 163, 195, 197, 269, 350, 325. 220, 85, 545. 
 special, 476. 
 
 of services, 546, 548, 550. 
 of time, 48, 50, 51. 52. 225. 
 of wages, 59, 61, 94, 380. 
 MACHINERY, use of, 76. 
 MAGNA CHARTA, 143. 
 MALICE, implied, 138. 
 
 express, 138, 520. 
 MALICIOUS PROSECUTION, 534. 
 MANIKIN, contract to deliver, 251. 
 
 MANUFACTURE, contract to, 58, 347, 350, 323. 325. 330, 334. 339, 341, 359. 
 MARKET, second hand. 257, 262, 276, 284, 477. 
 MARKET PRICE— 
 
 boots supplied to French army in 1871. 257. 
 bullets furnished to Ohio in 1861, 262. 
 hemp exported from Manila in 1898, 273. 
 contract in N. Y. for glass delivered in Antwerp, 284. 
 tender of 400.000 brick. 310. 
 on anticipatory breach of contract, 312. 
 fire works used in 4th of .Tuly celebration, 313. 
 where chickens are lost in a freezer. 323. 
 where an ice-house is destroyed by fire, 409. 
 stimulated. 602. 
 
 at nearest available market, .360. 
 MARKET VALUE. 67. 71. 260. 319. 348. 477, 481. 
 MASTER AND SERVANT. 1.31, .370. .529. 
 MEDICAL EXPENSES. .31, .50. 190, 188, 416. 
 MENTAL ANGI'ISII— 
 
 in case of miscarriage through fright, 102. 
 falling from defective bridge, 101. 
 mutilation of dead body. 103. 
 
 ' 7
 
 706 INDEX. 
 
 [The references are to the pages.] 
 MENTAL ANGUISH— Continued. 
 
 ejection from railroad train, 105. 
 
 fright from team of liorses, 100. 
 
 from practical joke. 111. 
 
 unlawful seizure of goods, 114. 
 
 unlawful entry on land, 110. 
 
 friglit from threatened assault, 119. 
 
 ejection from dance hall, 134. 
 
 insult to passengers, 307. 
 
 humiliation of married woman, 121. 
 
 loss of an eye and disfigurement, 120. 
 
 exclusion from public school, 120. 
 
 trespass on land, 121. 
 
 for discomfort from theatened force, 121. 
 
 for non-delivery of telegram, 121, 581. 
 
 where a lady must use a crutch, 121. 
 
 where marriage must be postponed, 121. 
 
 where worry results, 121. 
 
 where a leg is lost, 121. 
 
 where there is fright only, 121. 
 MILL OWNER, rights of, 7. 
 MISCARRIAGE, 61. 102, 109. 
 MISCHIEF, spirit of, 139. 
 MITIGATION— 
 
 in trover and conversion, 480. 
 
 where a servant is wrongfully discharged, 32, 366. 368, 371, 374. 
 
 on breach l)y vendee of contract of sale. 304, 306. 
 
 on countermand of order, 338. 
 
 in an action for crim. con.. 550, 551, 552. 555. 
 
 in case of public affray, 631. 
 
 in an action for assault and battery, 633, 634. 
 
 provocation by libel, 673. 
 
 in action of trespass, 643. 
 
 bad character of plaintiff. 643. 
 
 general reputation for chastity. 643. 
 
 sick benefits from lodge or society, 643. 
 
 on contract of sale, 644. 
 MONEY, always in market, 24. 
 
 deposit of, 180. 170. 245. 
 MONETARY, value of services, 449. 
 MORTIFICATION, 121. 
 NATURAL CONSEQUENCES. 201. 219. 
 NEGLIGENCE. 116, 359, 415. 
 
 causing miscarriage, 109. 
 
 collision with automobile, 51, 414. 
 
 by common carrier, 210, 217, 387, 416. 419. 
 
 death by. 423. 427. 4.31. 441, 449.
 
 INDEX. 707 
 
 [The references are to the pages.] 
 
 NEGLIGENCE— Continued. 
 
 explosion of gas, 407. 
 expulsion from car, 131, 105. 
 failure to repair, 33. 
 fright to pregnant woman, 102. 
 
 to horse, 89. 
 by municipality, 203. 
 to shade trees, 409. 
 services of son lost, ISS. 
 by telegraph company, 567, 573. 
 NERVOUS SHOCK, 106, 116, 118. 
 by practical joke. 111. 
 from negligence, 116, 118. 
 NEW BUILDING, contract for, 160, 
 NEXT OF KIN, rights of, 429, 438. 
 NOLLE PROSEQUI, 193. 
 NOMINAL DAMAGES— 
 injuria sine damno, 1. 
 where a stream is polluted, 19. 
 where a mill is repaired by joint owner, 20. 
 on a sale of goods, 21. 
 on contract to pay liens, 9, 21. 
 where architects plans are involved, 25. 
 on sale of "beautifiers for women." 85. 
 arrest of insane woman by police. 527. 
 where railroad abandons right of way, 27. 
 where right of way is obstructed. 27. 
 where services are without value, 27. 
 on sale of land, 27. 
 in case of nuisance, 27. 
 where bank dishonors check, 27. 
 where no market price is shown, 360. 
 NON DELIVERY, 272. 
 NON PERFORMANCE, 271. 325. 
 NOTICE TO CARRIER. 258. 
 NUISANCE, 493. 499, 500, 503. 
 
 continuing, 187, 454, 493, 494, 506. 
 NT'RSING, element of damage, 188, 98, 416. 
 OBSTRTCTION IN STREET, 89. 
 OFFER AS PROOF OF VALUE, 657, 658. 
 OPERA HOUSE, contract to furnish, 91. 
 OPPORTUNITY TO INSPECT, .301. 
 OYSTER GROWTXG. 40. 47. 
 OYSTER-HOUSE, profits of, 87. 
 PAIN AND ST'PFERING, 147. 08, .52. 209. 122. 
 PARTICEPS CRIMINIS, .536. 
 PARTNERSHIP, interest in. 315.
 
 70S INDEX. 
 
 [The references are to the pages.] 
 
 PASSENGER, ejectiou of. 127, 105, 201). 
 
 fright to, 109. 
 
 injury to, 8t>. 
 
 iusiilt to, 124, 391, 392. 
 PASSION AND PREJUDICE, 145, 514, 555. 
 PECULIAR VALUE, 470, 477. 
 PECUNIARY ADVANTAGE. 428, 439, 550. 
 PECUNIARY LOSS, 49, 442. 
 
 PENALTY, See Liquidated Damages, 17(!, 174, 182, KiC, 354, 180, 668. 
 PERFORMANCE, impossible, 641. 
 PERISHABLE GOODS, 350. 
 PERSONAL EARNINGS, 413. 
 PERSONAL INJURY— 
 
 from defective highway, 146. 
 
 exclusion from dance hall, 133. 
 
 fall on sidewalk, 59. 
 
 resulting from negligence, 415. 
 
 nursing, medicine and doctor's bills, 410. 
 
 to leg of engineer, 54. 
 
 from defective bridge, 101. 
 
 from runaway horse, 140. 
 
 from fall of fare indicator, 86. 
 PERSONAL PROPERTY, conversion, 34. 
 PHOTOGRAPH AS EVIDENCE, 449. 
 PHYSICAL INJURY, 526. 
 PHYSICIAN, libel on, 137, 514. 
 PHYSICIAN'S FEES, 121, 212, 223, 93, 95, 96, 220, 522. , 
 
 an element of damage, though not paid, 122, 97. 
 
 must be usual and reasonable charge, 97. 
 
 income of physician, proof of, 221. 
 
 expense for procuring physicians and medicine, 522. 
 
 abandonment of profession through broken health, 523. 
 
 professional standing as proof of value of services, 618. 
 
 physician's bill must be proved, 122. 
 PLACE OF DELIVERY, 283. 
 PLANS OF ARCHITECT, 25. 
 PLOTTAGE, 599. 
 POLLUTION OF STREAM, 19. 
 PRACTICAL JOKE, IIL 
 PRICE, agreed upon, 333, 405. 
 
 contract, 71, 79. 
 
 market, 251. 
 
 measure of damages, 241, 291, 603. 
 
 proof of value, 291, 603. 
 
 special, 257. 
 PRINCIPAL AND AGENT, 170. 
 PROBABLE PROFITS, 78. 
 PROBABILITY OF ACCUMULATION, 429.
 
 INDEX. 709 
 
 [The references are to the pages.] 
 
 PROCESS, abuse of, 205. 
 PROFESSION OF ENGINEER, 57. 
 PROFESSIONAL SERVICES, 618. 
 PROFESSIONAL STANDING, 618. 
 PROFITS, anticipated, 66, 29, 46. 
 
 basis of recovery, 405. 
 
 earnings as, 100, 87, 675. 
 
 future, 46, 227. 
 loss of — 
 
 on contract to build City Hall in Brooklyn, 64. 
 
 on contract to manufacture 1,500,000 bricks, 84. 
 
 where mill is inactive on account of broken shaft, 191. 
 
 exclusive right to sell cigars, 224. 
 
 mere speculative profits not recoverable, 79. 
 
 where pound or pot set net injured, 82. 
 
 advertisement of toilet preparations, 85. 
 
 in business of oyster house, 86. 
 
 for failure to furnish engine, 73. 
 
 where perishable article is sold, 350. 
 
 profits from sale of liquor on Sunday, 234. 
 
 when they necessarily follow breach, 120. 
 
 must be reasonably certain, 121. 
 
 may be prospective, 121. 
 
 earnings of a boarding house keeper, 122. 
 
 of a traveling theatrical troupe, 122. 
 
 in case of an idle mill, 122. 
 
 must be direct and immediate, 122. 
 
 proof of, 672. 
 
 prospective, 82, 227. 
 
 on resale, 263, 579. 
 
 speculative, 51. 
 PROMISE OF MARRIAGE, see Breach of. 
 PROOF OF DOCTOR'S BILL, 96. 
 PROOF OF LOSS, 60. 
 PROOF OF VALUE, offer as, 657, 658. 
 PROSPECTIVE DAMAGES, 37. 187, 188, 227, 048 
 PROSPECTIVE EARNINGS, 56. 
 PROSPECTIVE PROFITS, 227, 83. 
 PROVINCE OF COURT AND JURY, 680, 
 PROVOCATION, 6.33. 
 PROXIMATE CAUSE, 210, 463. 
 PROXIMATE DAMAGES. 31, 110, 204, 417, 187. 
 PROXIMATE RESULTS, 105, 110, 79, 142, 393. 
 PTTBLIC SCHOOL, expulsion, 120. 
 PT'BLICATTON OP ADVERTISEMENT, 85, 357. 
 PURCHASE MONEY, when recoverable, 241. 
 QUANTT^M MERUIT, 853, 354, 334, .367, 618. 
 QUANTUM VALEBANT, 353, 354.
 
 710 INDEX. 
 
 [The rel'ereuces are to the pages.] 
 
 RACE TRACK, grauilslaud at, 150. 
 HAILKOAD TKAIX, exi)Ulsiou from, 105, 130. 
 REAL ESTATE, lease of, 220, 545. 
 
 lieus on, 21. 
 
 injury to, 1S7. 
 
 injury to crops, 655. 
 REASONABLE TIME, 199. 
 RELEASE, mutual, 556. 
 REMEDY FOR WRONGFUL DISCHARGE, 367, 371. 
 
 election of, 290, 303, 307, 312, 317, 148, 371. 
 REMITTITUR, 431, 685, 686, 688, 090, 691. 
 REMOTE CONSEQUENCES, 216. 
 REMOTE DAMAGES— 
 
 remote and contingent damages never allowed, 70. 
 
 nervous shock, result of practical joke, 112. 
 
 physical injuries result of fright, 118. 
 
 where a bridge was carried away by a flood, 204. 
 
 mill idle on account of a broken shaft, 194. 
 
 exclusive right to sell cigars, 224. 
 
 duty of warehouseman, 222. 
 
 where cattle escape through breach in fence, 219. 
 
 where passenger is i^ut out at wrong station, 381. 
 
 where train is delayed by break in road-bed, 387. 
 
 failure to furnish engine in time, 73. 
 
 where chickens fly in spokes of bicycle, 462. 
 
 libel of artist in Buffalo Bill's show, 526. 
 
 non-delivery of telegram, 570. 
 
 negligent delay in transmitting telegram, 571, 575. 
 
 in contract to saw defendant's logs, 228. 
 
 remote damages to reputation and feelings, 228. 
 RENT, 116. 184. 78, 545, 017. 
 
 action for, 159. 
 RENTAL VALUE, 35, 36, 505. 
 REPLEVIN, 48S, 489, 490, 493. 
 REPUDIATION OF CONTRACT, 277, 282. 
 RESALE, right of, 263. 285, 579. 
 RECISSION OF CONTRACT, 540. 279, 358, 367. 
 RESPONDEAT ST'PERIOR, 136, 127, 396, 529, 
 REVOCATION OF CONTRACT, 358. 
 ROMAN LAW, rule of eviction, 246. 
 
 breach of warranty, 248. 
 RUNAWAY HORSE, injury by, 140. 
 SALE OF GOODS— 
 
 nominal damages on, 21. 
 
 deposit on sale of motor cars, 170. 
 
 purchase of brick to be burned, 84. 
 
 profits on sale of cigars, 224. 
 
 as to pig iron to arrive, 258.
 
 INDEX. 711 
 
 [The references are to the pages.] 
 SALE OF GOODS— Continued. 
 
 bullets for government contract, 261. 
 
 anticipatory breach, 272. 
 
 export of Manila hemp, 273. 
 
 defective eye of ox, 277. 
 
 warranty of imported glass, 282. 
 
 warranty of steam coal, 284. 
 
 fraudulent sale of sulphuric acid, 293. 
 
 sale of fluctuating stocks, 619. 
 
 manufacturer's profits, 359. 
 
 remedy on breach of warranty, 359. 
 
 where there is no market price, 360. 
 
 where the seller refuses to deliver, 300. 
 
 in an action for non-delivery of bonds, 360. 
 vendee, breach of — 
 
 where manikin is sold on installments, 251. 
 
 reaping machine delivered on written order, 298. 
 
 sale of hops subject to inspection, 300. 
 
 tender of cattle purchased by agent, 304. 
 
 tender of 400,000 brick, 310. 
 
 anticipatory breach of contract to purchase Iron, 311, 
 
 fire works for 4th of July, 312. 
 
 sale of interest in partnership, 315. 
 
 contract to furnish silicate of soda, 347. 
 
 repudiation of contract, 321. 
 
 sulky made to order, 330. 
 
 an engine made to order, 334, 339. 
 
 carriage made to order, 341. 
 vendor, breach of — 
 
 warranty against incumbrances, 292. 
 
 where a horse is warranted sound, 2S0. 
 
 where a manikin is sold on installments, 251. 
 
 where rifle muskets were sold in 18G1, 261. 
 
 in case of sale to sub-purchaser, 271. 
 
 export of hemp from Philippine Islands. May 1, 1898, 273. 
 
 where glass was exported from Antwerp, 282. 
 
 breach of warranty on sale of furnace. 291. 
 
 breach of warranty on sale of sulphuric acid, 293. 
 
 sale of reaping machine, 298. 
 
 sale of floating-boom derrick, 265. 
 
 sale of hops, subject to inspection, 300. 
 
 to arrive, 259. 
 SALE OF GOODS ACT, 216, 294. 
 SALE OF OX, 277. 
 
 SALE OF PROFESSIONAL PRACTICE, 153. 
 SALE OF REAL ESTATE, 250. 
 
 breach of contract, 229.
 
 712 INDEX. 
 
 [The references are to the pages.] 
 SALE OF REAL ESTATE— Continued. 
 
 covenant against incumbrances, 23S. 
 
 breach of vendor, 241. 
 
 breach of covenant of title, 243. 
 SALESMAN, commissions, 81. 
 SALOON, loan on, 016. 
 SCINTILLA DOCTRINE, 683. 
 SECOND HAND MARKET, 477. 
 SEDUCTION, 546, 550. 560, 561, 664. 
 SERVICES, loss of, 18S, 415, 512, 513. 546, 547. 
 SEX, an element in damage, 425. 
 SHADE TREES, injury to, 409, 506.' 
 SHAFT, delay in delivery of, 192. 
 SIDEWALK, defective, 33, 410. 
 SLANDER, 113, 512, 513, 514. 
 SMART MONEY, 128, 146, 511, 649. 
 SPANISH FLEET, 166. 
 SPECIAL DAMAGES, 37, 295, 351. 501, 525, 569. 
 
 price, 257. 
 
 circumstances, 287, 327. 
 
 purpose, 266, 268. 
 
 loss, 476. 
 SPECIFIC PERFORMANCE, 72. 
 SPECULATIVE DAMAGES— 
 
 for fright, 118. 
 
 exclusive right to sell cigars, 224. 
 
 where cattle escape through broken fence, 219. 
 
 injury to spine, 665. 
 
 failure to receive promotion, 227. 
 
 on contract to saw logs, 228. 
 
 uncertain damage to health and reputation, 228. 
 
 contingent damages not allowed, 228. 
 
 earnings of book agent, 228. 
 
 probable increase in flock of sheep, 228. 
 
 production of caviar by sturgeon, 228. 
 SPECULATIVE PROFITS, 51, 80. 85, 86. 
 SPIRIT OF MISCHIEF, 139. 
 SQUIB CASE. 211. 
 STARE DECISIS, principle of, 624. 
 STEAM COAL, contract to supply, 284. 
 STIPULATED DAMAGES, 175. 
 STOCK JOBBING, contract, 608. 
 STOCK, sale of, 545, 546. 
 STREAM, pollution of, 19. 
 STREET, obstruction, 89. 
 SUBSALES, 327. 
 SUBSEQUENT DAMAGES, 494.
 
 INDEX. 713 
 
 [The references are to the pages.] 
 
 SUBSTANTIAL DAMAGES, 554. 
 
 SUNDAY, sales on, 235. 
 
 SUPPLY AXD DEMAND, 605. 
 
 SURVIVABILITY OF ACTIONS, 433. 
 
 SWELL FRONT, 499. 
 
 TELEGRAPH CO., actions against, 144, 567, 571, 574, 581. 
 
 TEXAS DOCTRINE. 45S. 
 
 THEATRICAL ENGAGEMENT, 174, 374. 
 
 THREATS. 61, 134. 
 
 TIMBER, severance of, 4S2. 
 
 TIME, loss of, 48, 51. 52. 121, 225, 339, 
 
 reasonable. 199. 
 
 value of. 88, 221. 
 
 and place of delivery, 283. 
 TITLE, rule of damages when bad, 229, 245. 
 
 covenant of, 243. 
 
 of goods, when it passes. 252. 
 TORT, not bound to sue in. 2H1. 
 TRADE UNION, 61. 
 
 TRANSPORTATION BY COMMON CARRIER, 256. 
 TRESPASS QUARE CLAUSUM, 218. 20. 123. 219, 481. 
 TRESPASSER, inadvertent, 480, 493. 
 TRIVIAL DAMAGE, 228, 507. 
 TROVER, see conversion. 
 
 UNCERTAIN DAMAGES. 47. 174. 221. 81. 228. 302. 
 UNCIIASTITY, imputation of, 113, 565. .566. 
 UNEARNED INCREMENT, 79, 248. 
 UNLAWFUL COMBINATIONS. 597. 
 UNLAWFUL DISCHARGE, see wrongful discharge. 
 I'NLAWFUL SEIZURE, 114. 
 VALUE— 
 
 purchase price as element. 291. 
 
 on sale of touring car, 297. 
 
 coal mined by innocent trespasser, 466, 467. 
 
 plottage as an element, .599. 
 
 cost to replace, an element, 613. 
 
 original cost, an element. 614. 
 
 where there is no market, 6.30. 
 
 for conversion of a ship, 630. 
 
 Carlisle tables as evidence, 630. 
 
 depreciation of land value through iiiiiiiiig, 0.30. 
 
 cutting timber on public lands. 6.30. 
 
 where health officer kills animal with liiherculusis, 630. 
 
 where shade trees have been destroyed, 630. 
 
 market, 67, 71, 481, 537, 590. 
 
 rental, 35, 36, 670. 
 
 proof of, 281. 
 
 at time of eviction, 292.
 
 714 INDEX. 
 
 [The references are to the pages.] 
 
 VALUE— Continued. 
 
 at time chattel is talcen, 249, 280, 494. 
 
 highest market. 475. 477. 
 
 of contract, 92. 
 
 of time. 88, 221. 389. 
 
 peculiar, 475, 477. 
 
 sentimental, 475, 477. 
 
 general course of, G70. 
 
 in fire insurance, 012. 
 
 of land. 590. 
 
 fluctuations, 207. 
 VARIATION FROM TERMS OF CONTRACT, 354. 
 VENDEE, breach by, see sale of goods. 
 
 remedy of, see sale of goods. 
 VENDOR, breach by, see sale of goods. 
 VENDOR'S RIGHT OF RESALE, 310, see sale of goods. 
 
 lien. 318. 
 VERDICT, result of passion and prejudice, 145. 
 VIOLATION OF LEGAL RIGHT, 103- 
 WAGES, constructive service. 377. 
 WAIVER, 333, 355, 400. 
 WALKING DELEGATE, 01. 
 
 WANTON AND MALICIOUS INJURY. 12.5, 12S. 
 WARRANTS, general, 143. 
 
 WARRANTY, breach of. 245. 292. 280, 277, 2S2, 284. 291. 295, 297, 323. 
 See sale of goods, breach of vendor. 
 
 implied, 277. 
 WATERCOURSE, diversion of, 1. 187, 453, 450. 
 
 pollution of, 19. 
 WEALTH OF DEFENDANT, 550. 
 WEARING APPAREL, 014. 
 WHALING VOYAGE, 300. 
 WILL, contract to make, 232. 
 WORDS, no justification for assault, 033. 
 WORK, labor, and services. ,300. 150. 175, 154. .355. 304, 370, 300, 374, 334, 
 
 380, 381. 
 WORRIMENT, an element of damage, .388. 121. 
 WRONGFUL DISCHARGE— 
 
 removal from whaler at Sandwich Islands. 300. 
 
 plaintiff bound to mitigate damages, .30. 
 
 doctrine of constructive service, 370, 381. 
 
 agreement to work farm on shares. 3(;4. 
 
 contract of theatrical artist, 300. 
 
 plaintiff need not accept reduction of pay, 374. 380. 
 
 plaintiff may sue at once, 380. 
 
 BO recovery for future installments, .381. 
 
 must seek other employment. 381.
 
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