\ D ^^^-^K'KfH ^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY i-^ Y p\y\av'Ki^i UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ^ i^ CASES ON THE MEASURE OF DAMAGES, To accompany this volume ELEMENTS OF THE LAW OF DAMAGES. Second Edition. By Arthur G. Sedgwick COLLECTION OF CASES ON THE MEASURE OF DAMAGES BY JOSEPH HENRY BEALE CABTER PROFESSOR OF GENERAL JURISPRUDENCE IN HARVARD ONIVERSITT SECOND EDITION > ' •• 3 J BOSTON LITTLE, BROWN, AND COMPANY 1909 T Copyright, 1895, By Joseph Henry Beale, Jb. Copyright, 1909, By Joseph Henby Beale. • « * c > * THE rNrVERSITT PBEB8, CAMBRIDGE, U.S.A. 5 ^"3 X^ PREFACE TO THE FIRST EDITION. The importance of the law of Damages as a subject for study in the schools is now becoming recognized; and this collection of cases is offered primarily for the use of students, though it is believed that it will be found useful by the practising lawyer. It may be studied alone ; it is however especially designed for use in connection with Mr. Arthur G. Sedgwick's treatise on the law of Damages published in the same series. It is impracticable to include in such a collection cases involving every principle of the law of Damages ; nor if it could be done would it be advisable, since many of the cases would have little or no educational value. It has been attempted to cover most fundamental con- ceptions peculiar to the law of Damages, difficult or controverted principles, and questions of novelty or of special present importance. For such parts of the sub- ject as are not here treated, the student is advised to consult Mr. Sedgwick's treatise. It was found impossi- ble to follow the same division and order of presenta- tion in the two works, because of their differing aim and scope. There will be no difficulty, however, in finding in Mr. Sedgwick's treatise the discussion of a particular subject. In his Table of Cases, the name Viii PREFACE. of most cases contained in this book may be found ; and the student may thus consult Mr. Sedgwick's treatise in connection with each case herein, and familiarize himself with such principles as are not discussed in these cases. A consultation of Mr. Sedgwick's Index will solve such other difficulties as may be felt. In reprinting these cases, I have given only the opin- ion when it seemed sufficiently to state the facts ; and the omission of other parts of a case has not always been indicated. The omission of part of an opinion has always been noted ; and if the part of the opinion here reprinted is not consecutive in the original report, the omissions are indicated by points. The notes are the compiler's, unless otherwise marked. J. H. BEALE, Jb. Cambridge, October 1, 1895. TABLE OF CONTENTS. Page Preface v Preface to First Edition vii Table of Cases xi Chapter I. Functions of Court and Jury in Estimating Damages 1 II. Exemplary Damages 15 III. Liquidated Damages 37 IV. Nominal Damages 64 V. Direct and Consequential Damages ... 73 VI. Avoidable Consequences 170 VII. Counsel Fees 189 VIII. Certainty 205 IX. Compensation. Sec. 1. Entire Damages . . . 267 Sec. 2. Reduction ; Benefits 287 3. Damages to Owner of Limited Interest . 300 4. Higher Intermediate Value 313 5. Damages upon Severance from Realty . 329 X. Damages for Non-Pecuniary Injuries. Sec. 1. Pain and Inconvenience 352 2. Mental Suffering 358 3. Aggravation and Mitigation .... 386 XL Value 404 XII. Interest 436 XIII. Damages in certain Actions of Tort . . . 467 XIV. Damagas in certain Actions on Contracts . 476 XV. Damages for the Death of a Human Being 564 XVI. Damages in Eminent Domain 580 Index 615 TABLE OF CASES. Page Allison V. Chandler, 11 Mich. 542 215 Anon., 42 Lib. Assis. pi. 19 78 Armory v. Delamirie, 1 Str. 505 300 Ash V. Lady Ash, Comb. 357 5 Aurora v. West, 7 Wall. 82 464 Bain v. Fothergill, L, R. 7 H. L. 158 539 Baker v. Drake, 53 N. Y. 211 315 Ballou V. Famum, 11 All. 73 361 Baltimore & O. R. R. v. Carr, 71 Md. 135 ... 12 Baltimore & P. R. R. v. Fifth Baptist Church, 108 U.S. 317 357 Barker v. Dixie, 2 Str. 1051 6 Beale v. Boston, 166 Mass. 53 584 Beardmore v. Lord Hali- fax, Say. Dam. 228 . . 7 Bennett v. Lockwood, 20 Wend. 223 467 Bernstein v. Meech, 130 N. Y. 354 561 Bickford v. Rich, 105 Mass. 340 461 Blood V. Wilson, 141 Mass. 25 511 Boom Co. V. Patterson, 98 U. S. 403 407 Bradford v. Cunard Steam- ship Co., 147 Mass. 55 . 69 Page Bradley v. Hooker, 175 Mass. 142 426 Brannon v. Hursell, 112 Mass. 63 459 Brant v. Gallup, 111 111. 487 181 Brewster v. Warner, 136 Mass. 57 302 Brigham v. Carlisle, 78 Ala. 243 251 Brooks V. City of Wicliita, 114 Fed. 297 56 Brosnan v. Sweetser, 127 Ind. 1 298 Brown v. C. M. & S. P. Ry., 54 Wis. 342 145 Brown v. Cummings, 7 All. 507 82 Brown v. Muller, L. R. 7 Ex. 319 476 Browning v. Wabash West- ern Railway, 124 Mo. 55 13 Burgoon v. Johnson, 194 Pa. 61 55 Canning v. Williamstown, 1 Cush. 451 360 Cary v. Gruman, 4 Hill, 625 552 Case V. Stevens, 137 Mass. 551 120 Chadwick v. Butler, 28 Mich. 349 322 Chapman v. Kirby, 49 111. 211 222 Chicago V. Huenerbein, 85 111. 594 253 xu TABLE OF CASES. Page Cliicago V. Taylor, 125 U. S. 161 585 Chicago & A. R. R. v. Flagg, 43 111. 364 .. . 356 Claridge v. So. Staf. Tram- way, [1892] 1 Q. B. 422 301 Clark V. Marsiglia, 1 Denio, 317 185 Clydebank Engineering & Shipbuilding Co. v. Yz- quierdo y Castaneda, [1905] A. C. 6 .... 61 Comstock V. Conn. Ry. & Lighting Co., 77 Conn. 65 231 Cook V. Beal, 1 Ld. Raym. 176 5 Cory V. Thames Iron Wks., L. R. 3 Q. B. 181 .. . 95 Currier v. Swan, 63 Me. 323 395 Dana v. Fiedler, 12 N. Y. 40 444 Darley Main Coll. Co. v. Mitchell, 11 App. Cas. 127 269 Day V. Woodworth, 13 How. 363 191 Delves v. Wyer, 1 Brownl. 204 2 Demarest v. Little, 47 N. J. L. 28 475 Dennis v. Maxfield, 10 All. 138 . 219 Denny v. N. Y. C. R. R., 13 Gray, 481 127 Derby v. Johnson, 21 Vt. 17 476 Dodge V. Perkins, 9 Pick. 368 436 Doolittle V. McCullough, 12 Oh. St. 360 516 DuBost V. Beresford, 2 Camp. 511 430 Dubuque W. & C. Assoc. V. Dubuque, 30 la. 176 . 85 Duval V. Davey, 32 Oh. St. 604 398 Page Eaton V. Boissonnault, 67 Me. 540 459 Ehrgott V. Mayor of New York, 96 N. Y. 264 . . 88 Ellis V. Hilton, 78 Mich. 150 467 Elmer v. Fessenden, 154 Mass. 427 299 Fairfax v. N. Y. C. & H. R. R. R., 73 N. Y. 167 . . 428 Fetter v. Beal, 1 Ld. Raym. 339, 692 267 Forsyth v. Wells, 41 Pa. 291 329 Fowler v. Oilman, 13 Met. 267 309 Fox V. B. & M. R. R., 148 Mass. 220 131 Flureau v. Thomhill, 2 W. Bl. 1078 538 France v. Gaudet, L. R. 6 Q. B. 199 420 Frazer v. Bigelow Carpet Co., 141 Mass. 126 . . 448 Furnas V. Durgin, 119 Mass. 500 525 Galigher v. Jones, 129 U. S. 193 326 Glaspy V. Cabot, 135 Mass. 435 429 Goddard v. G. T. Ry., 57 Me. 202 17 Goodrich v. Hubbard, 51 Mich. 62 503 Goodyear Shoe Macliinery V. Lely, Schwab, & Co., 157 111. 186 52 Grable v. Margrave, 4 111. 372 -386 Grand Tower Co. v. Phil- lips, 23 Wall. 471 .. . 405 Grand Trunk Railway v. Jennings, 13 App. Cas. 800 564 Greene v. B. & L. R. R., 128 Mass. 221 428 Greene v. Goddard, 9 Met. 212 206 Griffin V. Colver, 16 N. Y. 489 208 Guille V. Swan, 19 Johns. 381 79 Hadley v. Baxendale, 9 Ex. 341 92 Haines v. Schultz, 50 N. J. L. 481 26 Hammond v. Bussey, 20 Q. B. Div. 79 107 Harris v. Panama R. R., 58 N. Y. 660 425 Hawkins v. Sciet, Palmer, 314 2 Hayward v. Leonard, 7 Pick. 181 512 n. Henry v. Flagg, 13 Met. 64 462 Hibbard v. W. U. T. Co., 33 Wis. 558 66 High V. Berret, 148 Pa. 261 475 n. Hobbs V. L. & S. W. Ry., L. R. lOQ. B. Ill ... 134 Hoffman v. Chamberlain, 40 N. J. Eq. 663 .. . 556 Hopkins v. Lee, 6 Wheat. 109 548 Hopple V. Higbee, 3 Zab. 342 287 Home V. Midland Ry., L. R. 7 C. P. 583 .. . 102 Horsf ordv. Wright, Kirby, 3 528 Hossler v. Trump, 62 Ohio St. 139 70 Howe Machine Co. v. Bry- eon, 44 la. 159 ... . 230 Huckle V. Money, 2 Wils. 205 15 Hunt V. J., Y. B. Ed. II. 375 1 Hutchinson v. Snider, 137 Pa. 1 559 TABLE OF CASES. Page Indianapolis, B. & W. Ry. V. Bimey, 71 111. 391 . . Ingram v. Rankin, 47 Wis. 406 XIU Page 174 323 Jackson v. Turrell, 39 N. J. L. 329 311 Jewett V. Whitney, 43 Me. 242 295 Johnson v. Stear, 15 C. B. N. 8. 330 304 Joseph Schlitz Brewing Co. V. Compton, 142 111. 511 280 I^dish V. Young, 108 III. 170 485 Keeble v. Keeble, 85 Ala. 552 39 Kemble v. Farren, 6 Bing. 141 37 Kenrig v. Eggleston, Aleyn, 93 73 Kent V. Kelway, Lane, 70 78 Kountz V. Kirkpatrick, 72 Pa. 376 412 Lake S. & M. S. Ry. v. Prentice, 147 U. S. 101 30 Larson v. Chase, 47 Minn. 307 382 Lawrence v. Hagerman, 56 111. 68 469 Le Blanche v. L. & N. W. Ry., 1 C. P. Div. 286 . 187 Leeds v. Metropolitan Gas- light Co., 90 N. Y. 26 . 67 Linsley v. Bushnell, 15 Conn. 225 189 Loker v. Damon, 17 Pick. 284 170 Louisville & N. R. R. v. Wallace, 91 Tenn. 35 . 452 Lynch v. Knight, 9 H. L. Cas. 577 360 n. XIV TABLE OF CASES. Page Lynn Gas & El. Co. v. Meriden F. I. Co., 158 Mass. 570 123 National Bk. of Commerce V. New Bedford, 155 Page 119 332 141 445 75 550 491 228 McHose V. Fulmer, 73 Pa. 365 McLean County Coal Co. V. Long, 81 111. 359 . . McMahon v. Field, 7 Q. B. D. 591 McMahon v. N. Y. & E. R. R., 20 N. Y. 463 . . Mahoney v. Belford, 132 Mass. 393 401 Mann Boudoir Car Co. v. Dupre, 54 Fed. 646 . . Margraf v. Muir, 57 N. Y. 155 Masterton v. Mayor of Brooklyn, 7 Hill, 62 . . Masterton v. Mount Ver- non, 58 N. Y. 391 . . . Mather v. Amer. Ex. Co., 138 Mass. 55 121 Maynard v. Pease, 99 Mass. 555 313 Mayo V. Springfield, 138 Mass. 70 296 Meagher v. DriscoU, 99 Mass. 281 365 Mellish V. Arnold, Bunb. 51 6 Merest v. Harvey, 5 Taunt. 442 Monmouth Park Assoc, v. Wallis Iron Works, 55 N. J. L. 132 Morse v. Hutchins, 102 Mass. 439 471 Murdock V. B. & A, R. R., 133 Mass. 15 143 Murdock v. N. Y. & Boston Despatch Express Co., 167 Mass. 549 .... Murphyv.Hobbs,7Col.541 Murphy V. United States Fidelity & Guaranty Co. 100 App. Div. 93 . . . 358 46 Mass. 313 410 O'Hanlan v. Great Western Ry., 6 B. & S. 484 ... 404 Old Colony R. R. v. Miller, 125 Mass. 1 457 Pabner v. Crook, 7 Gray, 418 393 Parker v. Russell, 133 Mass. 74 277 Peek V. Derry, 37 Ch. Div. 541 475n. Pennsylvania R. R. v. AUen, 53 Pa. 276 .. . Pennsylvania R. R. v. W, S. L. & P. Ry., 157 U. S. 225 Peoria, Bloomington, & Champaign Traction Co. V. Vance, 225 111. 270 . Peppercorn v. Black River Falls, 61 N. W. 79 . . 299 n Perrott v. Shearer, 17 Mich. 48 PhilUps V. L. & S. W. Ry., 5 Q. B. Div. 78 ... . Plummer v. Penobscot L. Ass., 67 Me. 363 . . . . Pond V. Harris, 113 Mass. 114 Postal Tel. C. Co. v. Lath- rop, 131 III. 575 ... Primrose v. W. U. T. Co., 154 U. S. 1 230 21 50 352 90 608 296 8 180 195 158 164 Radcliff V. Mayor of Brook- lyn, 4 N. Y. 195 ... Railroad v. Allen, 53 Pa. 276 V. Bimey, 71 111. 391 . V. Carr, 71 Md. 135 . 580 352 174 12 TABLE OF CASES. XT Page Railroad v. Elliott, 149 U. S. 266 . ... 265 V. Fif thBaptistChurch, 108 U. S. 317 . 357 V. Flagg, 43 lU. 364 . 356 V. Miller, 125 Mass. 1 457 V. Prentice, 147 U. S, 101 30 V. W. S. L. & P. Ry., 157U. S. 225 . . 90 V. Wallace, 91 Tenn. 35 452 Redmond v. Amer. Mfg. Co., 121 N. Y. 415 . . 431 Renihan v. Wright, 125 Ind. 536 384 Rice V. Rice, 62 N. W. Rep. 833 205 Richards v. Cit. Nat. Gas Co., 130 Pa. 37 ... . 449 Richmond & D. R. R. v. Elliott, 149 U. S. 266 . 265 Robinson v. Waupaca, 77 Wis. 544 10 Roehm v. Horst, 1 78 U . S. 1 490 Roper V. Johnson, L. R. 8 C. P. 167 478 Roth V. Taysen, 12 T. L. R. 211 482 Ryerson v. Chapman, 66 Me. 557 196 Salladay v. Dodgeville, 85 Wis. 318 183 Sayre v. Sayre, 1 Dutch. 235 389 Seneca Road v. A. & R. R. R., 5 Hill, 170 .. . 65 n. Serwe v. N. P. R. R., 48 Minn. 78 146n. Sharp V. United States, 191 U. S. 341 594 Simpson v. Keokuk, 34 la. 568 174 Single V. Schneider, 24 Wis. 299 337 Smith V. Bergengren, 153 Mass. 236 42 Page Smith V. BoUes, 132 U. S. 125 469 Smith V. Green, 1 C. P. D. 92 105 Smith V. Holcomb, 99 Mass. 552 394 South Park Comm'rs v. Dunlevy, 91 111. 49 . . 458 Squire v. W. U. T. Co., 98 Mass. 232 152 Staats V. Ten Eyck, 3 Caines, 111 529 Stickney v. Allen, 10 Gray, 352 424 StodghiU V. C. B. & Q. R. R., 53 la. 341 .. . 272 Storey v. Early, 86 111. 461 397 Stowe V. Buttrick, 125 Mass. 449 512 Sun Printing & Pub. Assoc. V. Moore, 183 U. S. 642 58 Sutherland v. Wyer, 67 Me. 64 177 Swft V. Dickerman, 31 Conn. 285 367 Tennessee Mfg. Co. v. James, 91 Tenn. 154 . . 43 Tice V. Munn, 94 N. Y. 621 74 Tilley v. Hudson River Railroad, 29 N. Y. 252 568 Torry v. Black, 58 N. Y. 185 293 Townsend, Lord,i'. Hughes, 2 Mod. 150 2 Tuttle V, White, 46 Mich. 485 349 United States v. Behan, 110 U. S. 338 505 Van Rensselaer v. Jewett, 2 Comst. 135 441 Village of St. Johnsville V. Smith, 184 N. Y. 341 600 XVI TABLE OF CASES. Page Vogel V. McAuliffe, 31 Atl. 1 366 Vosburg V. Putney, 80 Wis. 523 76 Wadsworth v. W. U. T. Co., 86 Tenn. 695 368 Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205 233 Welch V. Anderson, 61 L. J. N. s. Q. B. 167 .... 115 W. U. T. Co. V. Hall, 124 U. S. 444 256 W. U. T. Co. V. Hyer, 22 Fla. 637 156 W. U. T. Co. V. Rogers, 68 Miss. 748 375 Westfield v. Mayo, 122 Mass. 100 200 Page Weymouth v. C. & N. W. Ry., 15 Wis. 550 ... 340n. White V. Allen, 133 Mass. 423 311n. Wicker v. Hoppock, 6 Wall. 94 523 Wiest V. Electric Traction Co., 200 Pa. 148 ... 578 Winchester v. Craig, 33 Mich. 205 341 Wolcott V. Mount, 36 N. J. L. 262 225 Wolf V. Studebaker, 65 Pa. 459 171 Wood V. Waud, 3 Ex. 748 64 Worster v. Canal Bridge, 16 Pick. 541 9 Wright V. Mulvaney, 78 Wis. 89 263 CASES ON DAMAGES. CHAPTER I. FUNCTIONS OP COURT AND JURY IN ESTIMATING DAMAGES. HUNT V. J. Common Pleas, 1319. Maynard's Year Book, 375. Miles le Hunt of Stratford brought writ of debt against Simon de J., and demanded from him 30 quarters of wheat of the value of £20, and put forward a deed which witnesses the debt, &c. Simon says that he was within age at the time of the making of the deed, &c. The inquest says that he was of full age, &c. [The Court] Of what value was the wheat at the time he should have paid it? The Inquest. At the time he made the writing the quar- ter was worth only 3s., but when he should have paid it, it was worth 12s. Bereford, C.J. Speak of the damages from the detinue. The Inquest. To the damage of £10. And because the value of the wheat at the time he should have paid amounted to £18, scil. 12s. the quarter, it was sug- gested to the court that the damages were taxed too high, wherefore the court reduced the damages and awarded that he should receive £18 for the wheat and 40s. for the damages. And so note, that whereas he demanded wheat he recovered the value of the wheat at the time it should have been paid, and not the wheat. Likewise that although the defendant was held liable for the claim because he was found of full age, the plaintiff did not recover the price set in his writ, but the price taxed by the inquest, ut supra. Likewise note, that the justices measured the damages, as appears, &c. 1 2 CASES ON DAMAGES. DELVES V. WYER. Common Pleas, 1605. 1 Brownl. 204. The plaintiff brought an action of trespass for breaking his close, and for cropping 200 pear-trees and 100 apple- trees, and damage found to £40. And the court was moved by Jlichardsofi, for that the damages might be mitigated, because he produced an affidavit whereby it appeared that the party himself before the action brought would have took £5 ; but denied. For the court said that they could not diminish the damages in trespass which was local, and therefore could not appear to them, and the damages might well amount to £40 for cropping of an orchard : and so Judgment entered. HAWKINS V. SCIET. King's Bench, 1622. Palmer, 314. In action on the case for calling one a bankrupt, it was found on general issue for the plaintiff, and £150 damages given. And for this great damage the court, b}' reason of certain circumstances, reduced them to £50. But afterwards, upon great consideration, they revoked this, and would not change the course of law ; and resolved to leave such matters of fact to the finding of the jury, which better knows the quality of the persons and their estate, and the damage that the}' may sustain b}' such disgrace. Otherwise where the action is grounded on a cause which maj' appear in the sight of the court, so that the}' may judge of it, as in mayhem, &c. And so is Dyer, 105. And therefore they give judg- ment on the verdict for £150. LORD TOWNSEND v. HIJGHES. Common Pleas, 1677. 2 Mod. 150. The plaintiff brought an action of scandalum magnatum for these words spoken of him by the defendant, viz., "He LORD TOWNSEND v. HUGHES. 3 is an unworthy man, and acts against law and reason." Upon Not guilt}' pleaded, the case was tried, and the jury gave the plaintiff four thousand pounds damages.^ It was therefore moved for a new trial upon these reasons : Thirdly, and which was the principal reason, because the damages were excessive. The court delivered their opinions seriatim. And first, KoRTH, C.J., said: In cases of fines for criminal matters, a man is to be fined b}' Magna Charta with a salvo contene- mento suo ; and no fine is to be imposed greater than he is able to pay ; but in civil actions the plaintiff is to recover b}' way of compensation for the damages he hath sustained, and the jury are the proper judges thereof. This is a civil action brought by the plaintiff for words spoken of him, which if they are in their own nature actionable, the jury ought to consider the damage which the part}' ma}' sustain ; but if a particular averment of special damages make them actionable, then the jury are only to consider such damages as are already sustained, and not such as may happen in future, be- cause for such the plaintiff may have a new action. He said, that as a judge he could not tell what value to set upon the honor of the plaintiff; the jury have given four thousand pounds, and therefore he could neither lessen the sum or grant a new trial, especially since by the law the jury are judges of the damages ; and it would be very inconvenient to examine upon what account they gave their verdict ; they, having found the defendant guilty, did believe the witnesses, and he could not now make a doubt of their credibility. Wyndham, J., accorded in omnibus, Atkins, J., contra. That a new trial should be granted, for it is every day's practice ; and he remembered the case of Gouldston V. Wood, in the King's Bench, where the plaintiff in an action on the case for words for calling of him bank- rupt, recovered fifteen hundred pounds, and that court granted a new trial, because the damages were excessive. 1 Part of the case, not involving a question of damages, is omitted. 4 CASES ON DAMAGES. The jury in this case ought to have respect only to the dam- age which the plaintiff sustained, and not to do an unaccount- able thing that he might have an opportunity to show himself generous ; and as the court ought with one eye to look upon the verdict, so with the other they ought to take notice what is contained in the declaration, and then to consider whether the words and damages bear any proportion ; if not, then the court ought to lay their hands upon the verdict : it is true, they cannot lessen the damages, but if they are too great the court may grant a new trial. ScROGGS, J., accorded, with North and "Wyndham, that no new trial can be granted in this cause. He said, that he was of counsel with the plaintiff before he was called to the bench, and might therefore be supposed to give judgment in favor of his former client, being prepossessed in the cause, or else (to show himself more signally just) might without considering the matter give judgment against him ; but that now he had forgot all former relation thereunto ; and therefore delivered his opinion, that if he had been of the jury he should not have given such a verdict ; and if he had been plaintiff he would not take advantage of it ; but would overcome with forgiveness such follies and indiscretions of which the defend- ant had been guilty : but that he did not sit there to give ad- vice, but to do justice to the people. He did agree that where an unequal trial was (as such must be where there is any prac- tice with the jury), in such case it is good reason to grant a new trial ; but no such thing appearing to him in this case, a new trial could not be granted. Suppose the jury had given a scandalous verdict for the plaintiff, as a penny dam- ages, he could not have obtained a new trial in hopes to increase them, neither shall the defendant in hopes to lessen them. And therefore by the opinion of these three justices a new trial was not granted. COOK V. BEAL. O ASH V, LADY ASH. King's Bench, 1695. Comb. 357. Assault, battery, and false imprisonment. The Lady Ash pretended that her daughter the plaintiff was troubled in mind, and brought an apothecary to give her physic ; and they bound her, and would have compelled her to take phy- sic. She was confined but about two or three hours, and the jury gave her £2000 damages. /Sir Barth. Shoioer moved for a new trial for the exces- siveuess of the damages. Holt, C.J. The jury were very shy of giving a reason of their verdict, thinking they have an absolute despotic power, but I did rectify that mistake, for the jury are to try causes with the assistance of the judges, and ought to give reasons when required, that if they go upon any mistake they may be set right. And a new trial was granted. COOK V. BEAL. Common Pleas, 1696. 1 Ld. Raym. 176. Trespass, assault and battery. The plaintiff declares, that the defendant cum manu sua i2ysum Thomam Cook snper sinistrum oculum percussit et violavit ita quod the said Thomas Cook, viz., the plaintiff pe)dtas inhabilis devenit ad scribendutn vel legendum^ being an officer of the excise, &c. Not guilty pleaded. Verdict for the plaintiff. And Birch, Serjeant, moved, that the court would increase the damages, upon affidavit that the plaintiff had lost his eye. But the court ordered the plaintiff to appear in court in person, for other- wise they said, that they could not increase the damages ; upon which the plaintiff was brought into court. And after- wards the court after several motions resolved, 1. That if the word mayhemiavH is not in the declaration, yet if the declaration be particular, so that it appears, by the 6 CASES ON DAMAGES. description, that the wound was a maim, it is sufficient, and the court may increase damages. Rast. Ent. 46, a ; 8 Hen. 4. 21, h. 2. Resolved, that the court ma}- increase the damages if the wound be apparent, though it be not a maim. And so it was done in the case of Lord Foliot, Sty. 310 ; 1 Roll. Abr. 573, Z. 13 ; 7 Vin. 278, pi. 4 ; 2 Danv. 452, pi. 4. Therefore, in this case, because the wound is visible, though it be no maim (for it is not a maim because the eye is not wholK out, but the plaintiiif only declares, quod inhahilis ad legendum vel scribendum devenit by the wound), j^et damages may be increased. And Powell, J., said, that Holt, C.J., was of that opinion. So (per Powell, J.), though the loss of a nose is not a maim, to bring an action felonice for the loss of it, yet the court may in such case increase the damages. And he said, that the court might increase the damages upon a writ of inquiry-, because that was but a bare inquest of oflice, and a case between Swalley and Babington was cited, where in a general action of assault, battery, and wounding, upon view the damages were increased about four years ago, upon the motion of Serjeant Ziovell.^ MELLISH V. ARNOLD. Exchequer, 1719. Bunb. 51. In an action brought against an officer for a seizure absque probabili causa a new trial was granted, because the jury threw up cross or pile, whether they should give the plaintiff three hundred pounds or five hundred pounds damages, and the chance of five hundred pounds came up. BARKER V. DIXIE. King's Bench, 1737. 2 Strange, 1051. In case for a malicious prosecution of an indictment for felony, the jury found for the plaintiff, and gave 55, damages. ^ Thf*. tbiM resolution is omitted. BEARDMORE v. LORD HALIFAX. 7 And upon motion for a new trial on account of the smalluess of damages, the court held there could be no new trial on that account : for this was not a false verdict, as finding for the defendant would be, and would subject them to an attaint ; whereas they having found rightly for the plaintiff, no attaint would lie. And new trials came in the room only of attaints, as a more expeditious and easy remedy. BEARDMORE v. LORD HALIFAX. Common Pleas, 1763. Sayer on Damages, 228. In an action of trespass there was a verdict for the plain- tiff with fifteen hundred pounds damages. Upon a motion for a new trial on account of the excessiveness of the dam- ages, it appeared from the report of Pratt, C.J., before whom the cause was tried, that the defendant had granted an illegal warrant against the plaintiff in consequence of which the house of the plaintiff had been entered and his papers looked into; and that he had been carried from his house and confined six days. The Chief Justice concluded his report with saying that he did not think the damages exces- sive. A new trial was refused ; and by Pratt, C.J. If in an action founded upon a tort there be any rule by which the court may measure the damages, as in an action of trespass for destroying a field of corn, a new trial ought to be granted, if damages to a much larger amount than the value of the corn are assessed ; but the court ouglit never to grant a new trial in an action founded upon a per- sonal tort, unless the damages are such as do at tlie first blush appear to be quite outrageous. Because the damages, which do entirely depend upon the circumstances of the par- ticular case, must in every such action be ideal and specula- tive, and the jury are the persons in whom the power of ascertaining damages in all cases is by the constitution vested. 8 CASES ON DAMAGES. PHILLIPS V. LONDON & S. W. RAILWAY. Court of Appeal, 1879. 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 ap- plication was made on the ground of insufficiency of damages and misdirection.^ The jury gave the plaintiff £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 consideration some of the circum- stances which ought to have been taken into account. The defendants appealed. James, L.J. In this case we are of opinion that we can- not 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 dissenting from the verdict of a jury upon a matter which, generally 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 jur}' as to the amount of damages, merel3' because they take a differ- ent view, and think that if thej' 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 sa}', if in the judgment of the court the damages are unreasonably' large or unreasonablj' small, then 1 Only so much of the case as involves the question of damages is given. The plaintiff was a physician who had been making an income of between £6000 and £7000 a year ; by negligence of defendants he had suffered a personal injury, the result of which was that there was no hope that he would ever be able to resume his profession, or even recover so far as to have any enjoyment of life. WORSTER V. PROPRIETORS OF CANAL BRIDGE. 9 the court is bound to send the matter for reconsideration by another jurj-. The Queen's Bench Division came to the conclusion in this case that the amouut of the damasres 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 ai*e unreasonably small, to what extent of course we must not speculate, and have no business to sa}-. We are, therefore, of opinion that the Queen's Bench Division was right in directing a new trial. Brett and Cotton, L.J J., concurred. Appeal dismissed. WORSTER V. PROPRIETORS OF THE CANAL BRIDGE. Massachusetts, 1S35. 16 Pick. 541. This was case, to recover damages for injuries alleged to have been sustained by the plaintiff, in consequence of a defect in the bridge of the defendants. The trial was be- fore Wilde, J., on the general issue. The jury returned a verdict in favor of the plaintiff, for the sum of $600. The defendants thereupon filed a motion for a new trial, and assigned the following causes: 1. Because the damages were excessive.-^ Wilde, J., delivered the opinion of the court. In regard to the first reason assigned for a new trial, we are of opinion, that the damages assessed are not so excessive and unreason- able as to warrant the interference of the court in a matter which is peculiarly within the province of the jury to deter- mine. In all cases where there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury and not the opinion 1 Only so much of the case as refers to this point is giveo- 10 CASES ON DAMAGES. of the court is to govern, unless the damages are so exces« sive as to warrant the belief tliat the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. In the pres- ent case the plaintiff was exposed to the imminent peril of bis life, to great bodily and mental suffering, and we cannot say that the sum assessed b}' the jury exceeds a reasonable compensation. "We do not consider whether or not we should have assessed the same amount of damages if the case had been submitted to the court to decide ; for in a case like the present, men of sound judgment may differ not a little in estimating the compensation wliich the circumstances of the injury would justify ; and it is the judgment of the jurj', and not that of the court, which must govern. To justif3- the interposition of the court, the damages must be manifestly exorbitant ; and this we cannot say in the present case. EOBINSON 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 b^' a defective highway in the defendant town. The trial resulted in a ver- dict for the plaintiff, assessing her damages at S167. The plaintiff moved for a new trial, mainly on the ground that the damages so assessed are inadequate to compensate her for the injury she proved she sustained. The motion was denied, and judgment was thereupon entered for the plaintiff, pursu- ant to the verdict from which judgment she appeals to this court. Lyon, J. Were 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- ROBINSON V. TOWN OF WAUPACA. 11 ney v. Milwaukee, 65 Wis. 409. But, to justify the iuterfer- ence of the court with the verdict, it must appear from the testimony that the damages awarded are so grossly dispro- portionate to tlie 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 plaintiff 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 plaintifl" was so seri- ously injured that the damages 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 ver- dict was perverse, and that (quoting from the opinion deliv- ered 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 odium 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 tliat the plaintiff was to some extent an invalid before she was injured, and that the pain and disability she has suffered since the injury should, in part at least, be attributed to previous ill-health. Then the circumstances of the injur}' and her condition presently there- after tend to show that the injury was not so severe as claimed. There is considerable testimou}- of the above character, and we think it sufficient materially to mitigate her claim for damages. Under the testimony, therefore, there is a wide margin for the jur}' in assessing damages. Probably a verdict for a much larger sum could have 12 CASES ON DAMAGES. been held not excessive. Perhaps, if the plaintiff's testt mony 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 successfully 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 satis- fied had a somewhat greater sum been awarded, we arc not at liberty to disturb the verdict. Br THE CouBT. — The judgment of the Circuit Court is affirmed. BALTIMORE & OHIO RAILROAD v. CARR. Maryland, 1889. 71 Md. 135. Alvey, C.J.^ This is an action on the case brought by the appellee against the appellant for the wrongful refusal of admission of the former to the cars of the latter. The jur^- was instructed, that if they found for the plaintiff for the refusal to pass him through the gate, then he was entitled to such damages as they might find would, under all the circumstances, compensate him for such refusal. This left the whole ques- tion of damages at large, without definition by the couit, to the discretion of the jur}-, and without any criterion to guide them. What compensation would embrace — whether actual and necessar^^ expenses incurred by reason of the re- fusal, or the mere dela}', or disappointment in pleasure, or the possible loss in business transactions, however remote or indirect, or for wounded feelings — were matters thrown open to the jur}', and they were allowed to speculate upon them without restraint. This is not justified by any well-estab- lished rules of law. In the case of Knight v. Egerton, 7 Exch. 407, where, in effect, such an instruction was given, the Court of Exchequer held it to be wholl}- insufficient, " and that it was the duty of the judge to inform the jury what was the true measure of damages on the issue, whether the 1 Part of the opuiion is omitted. BROWNING V. WABASH WESTERN RAILWAY. 13 point was taken or not ; " and the court directed a new trial because of tlie indefinite instruction as to the true measure of damages. The rule by which damages are to be esti- mated is, as a general principle, a question of law to be de- cided by the court ; that is to say, the court must decide and instruct the jury in respect to what elements, and within what limits, damages may be estimated in the particular action. Harker v. Dement, 9 Gill, 7 ; Hadley v. Baxendale, 9 Exch. 341, 354. The simple question whether damages have been sustained by the breach of duty or the violation of right, and the extent of damages sustained as the direct consequences of such breach of duty or violation of right, are matters within the province of the jury. But beyond this juries, as a general rule, are not allowed to intrude, as by such intrusion all certainty and fixedness of legal rule would be overthrown and destroyed. New trial awarded' BROWNING V. WABASH WESTERN RAILWAY. Missouri, 1894. 124 Mo. 55. Barclay, J. This is an action to recover statutory dam- ages, on account of the death of plaintitT's husband, ascriba- ble as she charges, to the negligence of defendant.^ 4. Touching the measure of damages, the following expres- sion of opinion, prepared by my learned brother Gantt, is approved and adopted, namely : "The instruction on the measure of damages is also as- sailed as error. "The instruction was in these words: * If the jurj' find for the plaintiff the}- will assess her damages at such sum as in their judgment will be a fair and just compensation to her for the loss of her husband, not exceeding the sum of $5,000.' " The defendant asked no instruction on the measure of damages whatever. No attempt was made by it to point out 1 Part of the opinion is omitted. 14 CASES ON DAMAGES. the proper elements of damage in such cases or to modify the general language of the instruction. ' ' The instruction is not erroneous in its general scope ; and if, in the opinion of counsel for defendant, it was likely to be misunderstood by the jury, it was the duty of the coun- sel to ask the modifications and explanations, in an instruc- tion embodying its views. " The court is not required in a civil case to instruct on all questions, whether suggested or not, and as there is nothing in the amount of the verdict to indicate that the jury were actuated b}' any improper motive in their assessment, the general nature of the instruction is no ground for reversal." CHAPTER n. EXEMPLAKY DAMAGES. HUCKLE V. MONEY. Common Pleas, 1763. 2 Wils. 205. Pratt, L.C.J.^ In all motions for new trials, it is as ab- solutely necessary for the court to enter into tlie 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- ure of damages in actions of tort ; the measure is vague and uncertain, 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 injured, 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 courts of justice have most commonly set their faces against them ; and the courts interfering in these cases would be laj-ing 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 Halifax, Secretary of State, directed to four messengers, to apprehend and seize the printers and publishers of a paper called the North Briton, number 45, without any information 1 The opinion of the Lord Chief Justice alone is given, as it sufll- ciently states the case. 16 CASES ON DAMAGES. or charge laid before the Secretar}- of State, previous to the granting thereof, and without naming any person whatsoever in the warrant ; Carrington, the first of the messengers to whom the warrant was directed, from some private intelU- gence 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 journey-men), and took him into custody for about six hours, and during that time treated him well ; the personal injury done to him was very small, so that if the jurj' had been confined by their oath to consider the mere personal injury onl}', perhaps £20 dam- ages would have been thought damages sufficient ; but the small injury done to the plaintiff, or tlie inconsiderableness 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 libert}' of the subject appeai-ed to them at the trial ; the}- saw a magistrate over all the king's subjects exercising arbitrary power, violating Magna Charta, and attempting to destroy the libert}- of the kingdom, by insisting upon the legality of this general warrant before them ; thej' heard the king's counsel, and saw the Solicitor of the Treasury, endeavoring to support and maintain the legality of the warrant in a tyrannical and severe manner; Hhese are the ideas which struck the jury on the trial, and I think they have done right in giving exemplar}- 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 dar- ing public attack made upon the liberty- of the subject : I thought that the 29th chapter of Magna Charta, Nidlus liber 1 In Sayer on Damages, p. 220, the Lord Chief Justice is reported to have added : " Wherever an injury is done under the color of authority, as if an officer empowered to press exceed the authority given him by tlie press warrant ; or if a master of a ship abuse the power by law Tested in him over the sailors under his command ; or if, as in the present case, a person is arrested iipon a general warrant, the jury in assessing damages are not confined to the damages which have been actually sus- tained, but ought to assess exemplary damages." GODDARD V. GRAND TRUNK RAILWAY. 17 homo capiatur vel imprisonetur, &c., nee su2:)er eum ibimus^ &c., nisi per legale judicium parium suorum vel per legem terne) c&c, which is pointed against arbitrary power, was vio- lated. I cannot say what damages I should have given if I had been upon the jury ; but I directed and told them tliey 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 mankind at first blush must think so, to induce a court to grant a new trial for excessive damages. GODDARD V. GRAND TRUNK RAILWAY. Maine, 1869. 57 Me. 202. 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 ap- proached the plaintiff, and, in language coarse, profane, and grossl}' insulting, denied that he had eitlier 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 sit- ting, and, leaning over the plaintiff, brought his fist close down to his face, and, shaking it violently, told him not to yip, if he did he would spot him, that 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 ^ Part of the opinion only is given. 2 18 CASES ON DAMAGES. some fifteen or twenty minutes, and until the whistle sounded for the next station ; that there were several passengers pres- ent 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 any- thing 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 min- utes before, by whom it was afterwards produced and identi- fied ; 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 was still in the defendants' employ 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. . . . 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 exemplar}' damages for injuries wantonly, recklessl}', or maliciously 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. . . . 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 ouglit not to be applied to corporations for the torts of their servants, espe- cially 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 defend- ants' counsel, 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 GODDARD V. GRAND TRUNK RAILWAY. 19 mistaken duty ; and what these same courts would have done if a case of such gross and outrageous lusult 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 reasoning 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 in- struct the jury that if the acts and words of the defendants' servant were not directly nor impliedly authorized nor ratified by the defendant, 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 exemplar}' damages can be more beneficially applied 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 directl}' or impliedly commanded by the corporation to maltreat and insult a pas- senger, or to cases where such an act is directlj' 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 ser- vants ; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. 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 between the guilt of the servant and the guilt of the corpo- ration, or the malice of the servant and the malice of the corporation, or the punishment of the servant and the punish- ment 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 exist- ence, called a corporation. 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 any- 20 CASES ON DAMAGES. where else. And since these ideal existences can neither be hung, imprisoned, whipped, or put in stocks, — since, in fact, no coiTective influence can be brought to bear upon them except that of pecuniary loss, — it does seem to us that the doctrine of exemplary damages is more beneQcial in its appli- cation to them than in its application to natural persons. If those who are in the habit of thinking that it is a terrible hardship to punish an innocent corporation for the wicked- ness 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 brakemeu can be had who will not assault and insult passen- gers ; 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 influence, 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 mone3'ed power that is concealed behind them ; and if that is reached they will wince. When it is thoroughl}' understood that it is not profitable to employ careless and indifferent agents, or reckless and insolent servants, better men will take their places, and not before. It is our judgment, therefore, that actions against corpo- rations, 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 exemplar}' damages. On the contrarj', 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. Motion and exceptions overruled. Tapley, J., dissented. MURPHY V. HOBBS. 21 MURPHY V. HOBBS. Colorado, 1884. 7 Col. 541. Helm, J. This is a civil action, brought to recover dam- ages for malicious prosecution and false imprisonment. Plaintiff procured a verdict, and judgment was dul}- entered thereon. Defendant prosecutes this appeal, and assigns in support thereof numerous errors. The most important of these assignments is one which relates to the measure of damages adopted in the court below. Upon this subject the following instruction was there given: "That the measure of damages in an action for malicious prosecution is not confined alone to actual pecuni- ary loss sustained by reason thereof; but if it is believed, from the evidence, that the arrest and imprisonment stated in the complaint were without probable cause, then the jury may award damages to plaintiff to indemnify him for the peril occasioned to him in regard to personal liberty, for in- jury to his person, liberty, feelings and reputation, and as a punishment to defendant in such further sum as they shall deem just." - B}' the assignment of error and argument challenging the correctness of this instruction, we are called upon to consider the following question, viz.: Can damages, as a punishment, be recovered in cases like this ? The rule allowing, under certain circumstances, in civil actions based upon torts, exemplar}', punitive, or vindictive damages, for the purpose of punishing the defendant, has taken deep root in the law. It has the sanction of learned courts and law writers, among the latter Mr. Sedgwick ; and its abrogation should be favored only upon the most weighty consideration. But we find denying its coi'rectness, Professor Greenleaf and several courts of the highest respectability. As we shall presently see, the question is not conclusively 22 CASES ON DAMAGES. res Judicata in Colorado. We therefore feel at liberty to inquire into the reasons urged against the doctrine. Were this subject now presented to the various courts of the country for the first time, we have little doubt as to what the verdict would be ; the propriety of adliering exclusively to the rule of compensation appears, upon careful investigation, with striking clearness. But many of the courts, like that of Wisconsin, while expressing strong disapprobation of the doc- trine " inherited," and declaring it "a sin against sound judicial principle," feel constrained to preserve it, on account of precedent in their respective States, and the " cun-ent of authorit}' elsewhere." Brown v. Swineford, 44 Wis. 282. Perhaps the most impressive objection to allowing damages as a punishment in cases like the one at bar is that which relates to dual prosecution for a single tort. Our State Con- stitution declares that no one shall be twice put in jeopardy for the same offence. A second criminal prosecution for the same act after acquittal, or conviction and punishment there- for, is something which no English or American law^-er would defend for a moment. But here is an instance where practically this wrong is inflicted. The fine awarded as a punishment in the civil action does not prevent indictment and prosecution in a criminal court. On the other hand, it has been held that evidence of punishment in a criminal suit is not admissible even in mitigation of exemplary damages in a civil action. Cook v. Ellis, 6 Hill, 466 ; Edwards v. Leavitt, 46 Vt. 126. Courts attempt to explain away the apparent conflict with the constitutional inhibition above mentioned ; they sa}' that the language there used refers exclusively to criminal procedure and cannot include civil actions. Brown v. Swine- ford, supra. But this position amounts to a complete sur- render of the evident spirit and intent of that instrument. When the convention framed, and when the people adopted the Constitution, both understood the purpose of this clause to be the prevention of double prosecutions for the same offence. Yet under the rule allowing exemplary damages. MURPHY V. IIOBBS. 23 not only may two prosecutions, but also two convictions and punishments, be had. What difference does it make to the accused, so far as this question is concerned, that one prosecution takes the form of a civil action, in which he is called defendant? He is practically harassed with two prosecutions and subjected to two convictions : while no hypothesis, however ingenious, can cloud in his mind the palpable fact that for the same tort he suffers two punishments. An effort has been made to mitigate tlie undeniable hard- ship and injustice by declaring that juries in the second prosecution, whether it be civil or criminal in form, may consider the punishment already inflicted. But both reason and authority conclusively show that this proposition is illu- sor}^ ; that the application of such a rule is impracticable ; and that the attempt to apply it, while producing confusion, would not effectively accomplish the purpose intended. A second weighty objection to tlie rule under discussion relates to procedure. It is doubtful if another instance can be found within the whole range of English or American jurisprudence, where the distinctions between civil and crim- inal procedure are so completely ignored. Plaintiff sues for damages arising from the injury done to himself. His com- plaint or declaration is framed with a view to compensation for a purely private wrong : it need not be under oath, and does not inform defendant that he is to be tried for a public offence. The summons makes no mention of punish- ment ; it simpl}^ commands defendant to appear and answer in damages for the private injur}- inflicted upon plaintiff. When the cause is called for trial, no issue upon a public criminal charge is fairly presented by the pleadings. A trial and conviction are had, and punishment bj' fine is inflicted, without indictment or sworn information. The rules of evidence peculiarly applicable in criminal prosecutions are rejected. The doctrine of reasonable doubt is replaced by the rule controlling in civil actions, and a mere preponderance in the 24 CASES ON DAMAGES. weight of testimony warrants conviction ; defendant is com- pelled to testify against himself, and such forced testimony may produce the verdict under which he is punished ; deposi- tions may be read against him, and thus the right of meeting adverse witnesses face to face be denied. The law fixes a maximum punishment for criminal offences, and in this State the presiding judge determines the extent thereof, where a discretion is given ; but under the rule we are considering, the jury are entirely free from control, except through the court's power — always unwillingly exercised — to set aside the verdict : they ma}', for an offence which is punishable under criminal statutes by $100 fine at most, award as a punishment man}' times that sum. And finally, when the defendant has been punished in the civil action, he is denied the privilege of pleading such expi- ation in bar of a criminal prosecution for the same ofllence. He can hope for no executive clemenc}' in the civil suit ; and if imprisoned upon the second conviction, under the authori- ties, habeas corpus does not lie to aid him. The incongruities of this proceeding are not confined to the criminal branch of the law. Civil actions are instituted for the purpose of redressing private wrongs ; it is the aim of civil jurisprudence to mete out as nearly exact justice as pos- sible, between contending litigants ; there ought to be no disposition to take from tlie defendant or give to the plaintiff more than equity and justice require. Yet under this rule of damages these principles are forgot- ten, and judicial machinery is used for the avowed purpose of giving plaintiff that to which he has no shadow of right. He recovers full compensation for the injury to his person or property ; for all direct and proximate losses occasioned by the tort ; for the physical pain, if any, inflicted ; for his men- tal agon}', lacerated feelings, wounded sensibilities ; and then, in addition to the foregoing, he is allowed damages, which are awarded as a punishment of defendant and example to others. Who will undertake to give a valid reason why plaintiff, after being fully paid for all the injury inflicted MURPHY V. HOBBS. 25 upon his property, body, reputation, and feelings, should still be compensated, above and beyond, for a wrong commit- ted against the public at large? The idea is inconsistent with sound legal principles, and should never have found a lodgment in the law. The reflecting lawyer is naturall}' curious to account for this " heresy " or " deformity," as it has been termed. Able and searching investigations, made by both jurist and writer, dis- close the following facts concerning it, viz. : That it was entirely unknown to the civil law ; that it never obtained a foothold in Scotland ; that it finds no real sanction in the writings of Blackstone, Hammond, Comyns, or Ruther- forth ; that it was not recognized in the earlier English cases ; that the Supreme Courts of New Hampshire, Massachusetts, Indiana, Iowa, Nebraska, Michigan, and Georgia have re- jected it in whole or in part ; that of late other States have falteringly retained it because " committed" so to do; that a few years ago it was correctly said, " At last accounts the Court of Queen's Bench was still sitting hopelesslj' involved in the meshes of what Mr. Justice Quain declared to be ' utterly inconsistent propositions.' " And that the rule is comparatively modern, resulting, in all probability, from a misconception of impassioned language and inaccurate ex- pressions used b}' judges in some of the earlier English cases. See Professor Greenleafs response to Mr. Sedgwick's criticism of the former's views on this subject, 2 Greenl. Ev. 235 et seq. ; also the opinion of the court, delivered by Mr. Justice Foster, in Fay v. Parker, 53 N. H. 342.^ It has been with no little reluctance that we have arrived at the foregoing conclusion as to the doctrine of punitive or exemplary damages. The persuasive reasons and strong array of authorities in support of the rule, the corresponding convictions of a large part of the bench and bar of the State, and the confusion that may exist for a time, have impelled us to the most careful and conservative deliberation. But we feel that the doctrine of compensation as explained is 1 Part of the opinion is omitted. 26 CASES ON DAMAGES. more in consonance with the reason, the logic, the science of the law ; that it is more in harmony with the dictates of equit}' and justice, and that the tendency of the courts and writers is favorable to its exclusive adoption, or, more cor- rectly' speaking, re-adoption. We deem it wiser to accept and declare the rule now than to resist for a time and ulti- mately be compelled to do so, when the confusion produced would be tenfold greater than at present is possible. The judgment is reversed, and the cause remanded for a new trial. Reversed. HAINES V. SCHULTZ. New Jersey Supreme Court, 1888. 50 N. J. L. 481. Garrison, J. The defendant below, who is the proprietor of the Morning Call, was sued in libel for uttering the fol- lowing language of and concerning the plaintiff : "HOUSE ROBBED. "a young lady boarder supposed to know something about it. " Last night, while Mr. and Mrs. Richard Krowley were at Little Coney Island, their house, No. 3 Hamburgh Avenue, was entered by some one who got awa}' with a considerable amount of clothing. Mr. Krowley is of the opinion that a young lad}' boarder named Mamie Schnltz knows something about the theft. The girl has been a boarder at the house for about seven weeks ; and according to Dick's statement Mamie had a number of admirers, and on several occasions she has stayed out late at nights, and no later than last Sunday night she climbed through the window of Mr. and Mrs. Krowley's sleeping apartments, and Dick is of the opinion that she gained an entrance through the same window last night. On entering the house Mrs. Krowley discovered a bureau drawer and a clothes closet open, and to her surprise found that the house had been ransacked and a large number of pieces of her underclothing, together with ribbons and other articles. HAINES V. SCIIULTZ. 27 were missing. Dick visited tlie police station and notified Captain Bimson wlio advised him to go before tlie recorder this morning and make a complaint." The testimon}' shows that this article was written b}' a reporter in the employ of the defendant, and that it was inserted in the paper without defendant's knowledge, his first intimation of it being the service upon him of the declaration in this cause. No special damages were shown. The plaintiff recovered a substantial verdict against de- fendant. Five exceptions taken by defendant at the trial are the subject of as many assignments of error. The first is upon the refusal of the court to order a non- suit at the close of plaintiffs case, for alleged failure of proof. This exception may be dismissed with the remark that the question as to whether the language published tended to dis- grace the plaintiff, was properly left to the jury. The other assignments are based upon exceptions to the charge of the court, and are addressed to that portion of the charge on which the law as to exemplary damages is stated. The fourth assignment is as follows : "But the defendant says, 'I personally had no hand in this.' That is true, but it appears that Mr. Keegan, his reporter, wrote it and had it inserted in the newspaper, and that from the time it was written up to the present day the defendant has never had a word of blame for Mr. Keegan, and Mr. Keegan still remains in his employ. So far as ap- pears, his conduct is approved b^- his employer. There is nothing in the case to show that it is disapproved. If yon believe, then, that Mr. Keegan's conduct is approved by his employer in this matter, you have a right to see what Mr. Keegan's conduct was upon this question of punishment." This language occurs in the charge of the court after the rules for the admeasurement of compensatory damages have been announced to the jury. The general subject of exemplary damages is introduced 28 CASES ON DAMAGES. with the following remark : "But when you have determined what sum you will award her for compensation, 3-ou ask your- self, ' Will that sum punish the defendant adequately for his conduct?' You turn then to his conduct and see what it is, ■whether it will call for any punishment beyond what the sum that may be awarded Mamie Schultz as compensation will in- flict." Then follows a series of instructions as to the allow- ance of punitive damages, one of which is the exception under consideration. It will be noticed that the proposition laid down by the court is not alone that the defendant may be visited with ex- emplary damages for language inserted in his paper, although without his knowledge or consent ; but that the imposition of punishment in damages will be controlled by the same con- siderations which fix his liability for the publication, unless the defendant adduces proof of his c?/sapproval of the libellous article. In other words, that the defendant may be mulcted in punitive damages upon the same proof which established his liability for compensatory damages, unless he shows or it appears that he disapproved of the act of his subordinate. The liability of the defendant to respond, both in compen- satory and exemplary damages, in a proper state of the evi- dence, is not questioned. It is the proposal to reheve the plaintiff of the burden of proof and to transfer it to the defendant that invites discussion. Proprietors of newspapers are unquestionably liable in law for whatever appears in their columns. Libellous publication is a wrongful act ; and when to a wrongful act we add testi- mony from which a wrongful motive can be inferred, punitive damages may be inflicted. But the maxim respondeat superior is a rule of limitation as well as of liability. If a principal must, on the one hand, answer for his agent's wrong-doing, on the other hand his liability is circumscribed by the scope of his agent's employ- ment, unless there be proof of a ratification by him. of hla agent's misconduct. No rule of law is better established than this. HAINES i;. SCHULTZ. 29 The same principle applies, and with equal force, to the doctrine of exemplary- damages. Without stopping- to review the history of this class of so-called damages, it is sufficient to saj- that the right to award them rests primarily upon the single ground — wrongful motive. The ingrafting of this notion on to personal suits has resulted in an anomalous rule, the doctrine of punitive damages being a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine. But, whether we regard it in the one light or the other, it is the wrongful personal intention to injure that calls forth the pen- alty. To this wrongful intent knowledge is an essential pre- requisite. But in legal contemplation previous intent is presumed from ratification, and e converso proof of ratifica- tion must be made where a previous intent is not presumed. The learned judge correctly apprehended this rule when he placed the defendant's liability to punishment in damages upon the ground of his implied approval of his employee's misconduct. And had there been any proof of such approval, any testimony of general instructions, of which this libel was the outgrowth, any evidence as to ratification, the jury might have been warranted in inferring a wrongful motive to fit the wrongful act. But absence of proof of his disapproval, absence of proof that defendant had reproached his employee, or that he had discharged him — in fine, absence of all proof bearing on the essential question, to wit, defendant's motive — cannot be permitted to take the place of evidence with- out leading to a most dangerous extension of the doctrine, respondeat superior. A plaintiff, whose claim to punitive damages rests upon a wrongful motive of defendant, not inherent in the offence which fixes his legal liabilit}', must present some proof from which such wrongful motive may be legally inferred. Inasmuch as the plaintiflT below failed to do this, the instruction of the court upon this point was misleading. The judgment of the Circuit Court should be reversed. 30 CASES ON DAMAGES LAKE SHORE & M. S. RAILWAY v. PRENTICE. Supreme Court of the Uuited States, 1893. 147 U. S. 101. Gray, J. The onl}' 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 or exemplary damages for the illegal, wanton, and oppres- sive 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 own negligence, or its liability bej'oud its own line, or its liability to one of its servants for the act of another person in its employment, — 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 own judgment, uncontrolled by the decisions 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 ; Myrick v. Railroad 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 Revolu- tion is to be found in the remarks of Chief Justice Pratt Cafterwards Lord Camden) in one of the actions against the king's messengers for trespass and imprisonment, under gen- eral 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 " exemplar}' damages," the Chief Justice instructed the jury as follows: "I have formerl}^ de- livered it as my opinion on another occasion, and I still con- tinue of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages LAKE SHORE & M. S. RAILWAY v. PRENTICE. 31 are designed, not only as a satisfaction to the injured person, but likewise as a punishment to the guilt}', to deter from anj' such proceeding for the future, and as a proof of the detesta- tion of the jury to the action itself." Willies 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 example 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 com- pensation for the plaintiff's injury, may award exemplary, punitive, or vindictive damages, sometimes called "smart mone}'," if the defendant has acted wantonl}-, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations ; but such guilt}' intention on the part of the defendant is required in order to charge him with exemplary or punitive damages. The Amiable Nancy, 3 Wheat. 546, 558, 559 ; Day v. AVoodworth, 13 How. 363, 371 ; Railroad Co. v. Quigley, 21 How. 202, 213, 214 ; Rail- way Co. V. Arms, 91 U. S. 489, 493, 495 ; Railway Co. v. Humes, 115 U. S. 512, 521; Barry v. Edmunds, 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 punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punish- ment 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 com- pensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or pu- nitive 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 Ami- able Nancy, 3 Wheat. 546. . . . The rule thus laid down is not peculiar to courts of admi- 32 CASES ON DAMAGES. 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 dam- ages, as well as damages b}- way of compensation or remunera- tion for expenses incurred, or injuries or losses sustained, by the misconduct of tlie 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 proper! 3' give what is called ' smart mone}'.' They are often warranted ia giving vindictive damages as a punishment inflicted for out- rageous conduct ; but this is onlj^ justifiable in an action against the wrongdoer, and not against persons who, on account of their relation to the offender, are onl}' 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, McAll. 104 ; Wardrobe v. Stage Co., 7 Cal. 118; Boulard u. Calhoun, 13 La. Ann. 445 ; Detroit Daily Post Co. v, McArthur, 16 Mich. 447 ; Grund v. Van Vleck, 69 111. 478, 481 ; Becker v. Dupree, 75 111. 167; Rosenkrans v. Barker, 115 111. 331; Kirksey 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, 140; Clissold v. Machell, 26 U. C. 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 crimi- nal intent, necessarj' to warrant the imposition of such dam- ages, is brought home to the corporation. Railroad Co. v. Quigley, Railway Co. v. Arms, and Railway Co. v. Harris, above cited ; Caldwell v. Steamboat Co., 47 N. Y. 282 ; Bell V. Railway Co., 10 C. B. (n. s.) 287, 4 Law T. (n. s.) 293. Independentlj' of this, in the case of a corporation, as of an individual, if anj- wantonness or mischief on the part of the agent, acting within the scope of his employment, causes additional injury to the plaintiff in body or mind, the principal LAKE SHORE & M. S. RAILWAY v. PRENTICE. 33 is, of course, liable to make compensation for the whole injury suflfered. Kennon v. Gilmer, 131 U. S. 22; Meagher v. Driscoll, 99 Mass. 281, 285; Smith v. Holcomb, Id. 552; Hawes v. Knowles, 114 Mass. 518; Campbell v. Car Co., 42 Fed. Rep. 484. . . . The president and general manager, or, in his absence, the vice-president in his place, actually wielding tlie whole exe- cutive power of the corporation, ma}' well be treated as so far representing the corporation and identified with it that any wanton, malicious, or oppressive intent of his, in doing wrongful acts in behalf of the corporation to the injury of others, may be treated as the intent of the corporation itself; but the conductor of a train, or other subordinate agent or servant of a railroad corporation, occupies a very different position, and is no more identified with his principal, so as to affect the latter with his own unlawful and criminal intent, than any agent or servant standing in a corresponding rela- tion to natural persons carrying on a manufactory, a mine, or a house of trade or commerce. The law applicable to this case has been found nowhere better 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 recov- ered a verdict, 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 tlie agent, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed." This instruction was held to be right, for the following reasons : " In cases where puni- tive or exemplary damages have been assessed, it has been done, upon evidence of such wilfulness, recklessness, or wickedness, 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 34 CASES ON DAMAGES. the offender such exemplary damages as will operate as pun- ishment, and teach the lesson of caution to prevent a repe- tition of criminalit}', 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 impli- cate the principal and malie 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 principal, and, however wicked the servant may have been, the principal neither expressly nor impliedly authorizes or ratifies the act, and the criminality' of it is as much pgainst Mm as against any other member of societj^, we think it is quite enough that he shall be liable in compensator^' damages for the injury sustained 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 b}' the Court of Appeals of New York in an action brought against a railroad corporation b}' 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 known to the agent of the company having the power to employ and discharge him and other subordi- nates, was competent to support a claim for exemplar}' dam- ages, but that a direction to the jur}' 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 in- juries 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. Such misconduct may be established LAKE SHORE & M. S. RAILWAY v. PRENTICE. 35 by showing that the act of the servant was authorized or rati- fied, 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 ordinary negligence is requisite ; it must be reckless, and of a criminal 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- gineer or switchman, or retains one after knowledge of his habits is clearly brought home to the company, or to a super- intending 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 damages 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." Cleghoru 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 corporation, have been made by the courts of New Jersej", Pennsylvania, Delaware, Michigan, Wisconsin, Cali- fornia, 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 simi- lar 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 Maine, 202, 228, and Railway Co. v. Dunn, 19 Ohio St. 162, 590, there w^ere strong dissenting opinions. In many, if not most, of the 36 CASES ON DAMAGES. other cases, either corporations were put upon different grounds in this respect from other principals, or else the dis- tinction between imputing to the corporation such wrongful act and intent as would render it liable to make compensation to the person injured, and imputing to the corporation the intent necessary to be established in order to subject it to exemplary damages by way of punishment, was overlooked or disregarded. Most of the cases on both sides of the question, not speci- fically cited above, are collected in 1 Sedg. Dam. (8th ed.) § 380. In the case at bar, the plaintiff does not appear to have contended at the trial, or to have introduced an}' evidence tending to show, that the conductor was known to the defend- ant 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 au}^ 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 corporation, 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 corporation for an intent in which it had no part, the judgment must be reversed, and the case remanded to the Circuit Court, with directions to set aside the verdict, and to order a new trial. CHAPTER IIL LIQUIDATED DAMAGES. KEMBLE V. FARREN. Common Pleas, 1829. 6 Bing. 141. TiNDAL, C.J.^ This is a rule which calls upon the de* fendant to show cause why the verdict, which has been entered for the plaintiff for £750, should not be increased to £1000. The action was brought upon an agreement made between the plaintiff and the defendant, where!)}- 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. Sd. every night on which the theatre should be open for theatrical performances, during the next four seasons, and that the defendant should be allowed one benefit night during each season, on certain terms therein specified. And the agree- ment contained a clause, that if eitlier of the parties should neglect or refuse to fulfil the said agreement, or any part thereof, or any stipulation therein contained, such party should pay to the other the sum 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 pai-ties to be liquidated and ascertained damages, and not a penalty or penal sura, or in the nature thereof. 1 The opinion only is given ; it sufficiently states the case. 1 38 CASES ON DAMAGES. The breach alleged in the declaration was, that the defendant refused to act during the second season, for which breacli, the jur}', upon the trial, assessed the damages at £750, which damages the plaintiff contends ought by the terms of the agreement to have been assessed at £1000. It is, undoubtedly, difficult to suppose any words more precise or explicit than those used in the agreement ; the same declaring not onl}- affirmative!}' that the sum of £1000 should be taken as liquidated damages, but negatively also that it should not be considered as a penalty, or in the nature thereof. And if the clause had been limited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascertaining the dam- ages upon any such breach at £1000. For we see nothing illegal or unreasonable in the parties, b}' their mutual agree- ment, settling the amount of damages, uncertain in their nature, at any sum upon which the}' ma}'^ agree. In many cases, such an agreement fixes that which is almost impossible to be accuratel}' ascertained ; and in all cases, it saves the ex- pense and difficult}^ of bringing witnesses to that point. But in the present case, the clause is not so confined ; it extends to the breach of au}^ stipulation b}' either party. If, therefore, on the one hand, the plain tiflT had neglected to make a single payment of £3 6s. 8d. per da}-, or on the other hand, the defendant had refused to conform to any usual regulation of the theatre, however minute or unimportant, it must have been contended that the clause in question, in either case, would have given the stipulated damages of £1000. But that a very large sum should become immediatel}' pa^'able, in consequence of the nonpa3'ment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terras ; the case being preciselv that in which courts of equit}' have always relieved, and against which courts of law have, in modern times, endeavored to relieve, by directing juries to assess the real damages sus- tained b}' the breach of the agreement. It has been argued at the bar, that the liquidated damages apply to tliose KEEBLE V. KEEBLE. 39 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, distniguish this case, in principle, from that of Astley v. Weldon, in which it was stipulated, that either of the parties neglecting to perform the agreement should pay to the other of them the full sum of £200, to be recovered in his Majesty's Courts at Westminster. Here there was a distinct agreement, that the sum stipulated should be liquidated and 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 l)e 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 subse- quent cases, which do not in any way break in upon it. The consequence is, we tliiiik the present verdict should stand, and the rule for increasing the damages be discharged. Hule discharged. KEEBLE V. KEEBLE. Alabama, 1888. 85 Ala. 552. SoMKRViLLE, J.^ 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 mercantile busi- ness, under the firm name of R. C. Keeble & Co. Although he was but an employe, having sold to R. C. Keeble his entire 1 Part of the opinion only is given. 40 CASES ON DAMAGES. interest in the partnership business, he remained ostensibly a partner. The terms of the employment, reduced to writing, imposed on the appellant, Henry Keeble, the obligation, among other duties, " to wholly abstain from the use of intoxicating liquors," and " to continue and remain sober," giving his diligent attention to the business of his employer, and promising, in the event he should become intoxicated, that he would pay, " as liquidated damages," the sum of 81000, which the testator, Richard Keeble, was authorized to retain out of a certain 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 t^ 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 construction 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 con- KEEBLE V. KEEBLE. 41 siderable sum. One may sell out the good-will of his busi- ness in a given localit}-, 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 practise 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 distance 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 agreement, and for tlie very reason that such damages are uncertain, fluctuating, and incapable of easy ascertainment. Williams V. Vance, 30 Amer. Rep. 29-31, note; Graham v. Bickham, 1 Amer. Dec. 336-338, note ; 1 Pom. Eq. Jur. § 442, note 1. It is clear that each of these various agreements may be violated by a substantial breach, and yet no damages might accrue except such as are nominal. The obligor may practise medicine, and possibly never interfere with the practice of the other contracting 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 investigation 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 conjecture, are liable naturally to follow, sometimes more and sometimes less, according to the aggravation of the act, the court will not stop to investigate the extent of the grievance com- plained 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 42 CASES ON DAMAGES. physiological relation between private and public drunken- ness, nor the causal 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 stipulating against the very source and beginning of the more aggravated evil sought to be avoided. The duty resting on the court, in all these cases, is to so apply the settled rules of construction 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 sura agreed to be paid the appellee's testator was liquidated damages, and not a penalty. Affirmed. SMITH V. BERGENGREN. Massachusetts, 1890. 153 Mass. 236. Holmes, J.^ The defendant covenanted never to practise 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 an}' time after five 3-ears, b}' paying the plaintiff two thousand dollars, " but not otherwise." Tliis sum of two thousand dollars was not liquidated daraacf^s, 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 had agreed not to do. It was a price fixed for what the contract permitted him to do if he paid. The defendant expressly covenanted 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 I Part of the opinion only is given. TENNESSEE MANUFACTURING CO. v. JAMES. 43 by simply returning to practice witliout paying, and could escape for a less sum if the jury thought the damage done the plaintiff by his competition was less tlian two thousand dol- lars. The express covenant imported 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 he gathered from the instrument. See Pearson v. Wil- liams, 24 Wend. 244, and 26 Wend. 630 ; Stevinson's Case, 1 Leon. 324; St. Albans v. Ellis, 16 East, 352; Deverill v. Burnell, L. R. 8 C. P. 475 ; National Provincial Bank of Enghmd v. Marshall, 40 Ch. D. 112. It the sum had been fixed as liquidated damages, the de- fendant would have been bound to pay it. Cusliing v. Drew, 97 Mass. 445 ; Lynde v. Thompson, 2 Allen, 456 ; Holhrook V. Tobey, 66 Maine, 410. But this case falls within the lan^uajie of Lord Mansfield in Lowe v. Peers, 4 Burr. 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 compensation ; it is the substance of the agree- ment." See, also. Ropes v. Upton, 125 Mass. 258, 260. Tlie ruling excepted to did the defendant no wrong. In the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled. TENNESSEE MANUFACTURING CO. v. JAMES. Tennessee, 1892. 91 Tenn. 154. Plaintiff 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 stipuhited 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 44 CASES ON DAMAGES. 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 Company at the time of my failure to comply with the terms of this contract, to compensate it for all damages, both actual and exemplary, and all loss, arising from my failure to carry out the terms of this agreement." Appellee gave notice of her intention to leave, and there- after worked ten days, but at the end of that time quit with- out 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 was invalid, the company owes her ten dollars ; if valid, then nothing is due her.^ LuRTON, J. We agree with the Circuit Judge in holding that this contract does not fall within the case of Schrimpf y. Manufacturing 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, regardless of amount due, and regardless as to whether the arrearages were the consequence of the default of the compan}'. It was a contract hard and unconscionable. It preserved no proportion 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 damages 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 Turney quoted and indorsed the language of Campbell, J., in Richardson v. Woehler, 26 Mich. 90, where he said: "We have no difficulty in holding that the injury caused by the sudden breaking off of a contract of ser- vice by either party involves such difficulties concerning the actual loss as to render a reasonable agreement for stipulated 1 This statement of facts is condensed from the opinion of Lubton, J, Fart of the opinion is omitted. TENNESSEE MANUFACTURING CO. v. JAMES. 45 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 objection to the stipulation, if botli parties are equally and justl}' protected." Applying these principles to the case for judgment, we have no difficulty 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 tendenc}' 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 tendenc}' and preference, however, does not exist when the actual damages cannot be ascertained b}' anj' standard. A stipulation to liquidate damages in such cases is considered favorably." 1 Suth. Dam. 490. This contract of employ- ment on its face affords no data by which the actual damages likely to result from its non-observance can with an}' certainty be ascertained. Such a circumstance has been regarded as justifying the courts in holding the sum stipulated as liqui- dated 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 de- partment still further advances its manufacture; and so on, through successive stages of progress. The evidence shows that each department 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 extent, affect the results throughout the mill. Yet the evidence shows that it would be impossible to calculate with any certaint}- the precise, actual loss due to an unexpected breach of an employe's engage- ment ; though it is shown that there are some departments of 46 CASES ON DAMAGES. work where the quitting of a small number of hands, without notice, would stop the entire mill, and throw other hundreds out of employment. In this da}' of great factories, and the consequent division of labor into separate departments, a degree of interdependence among emplo^'es 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 uphold the contract as one for liquidated damages, and not as providing for a penalty. The sum fixed is certain. It is proportioned 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 requiring two weeks' notice. If the operative leaves for good cause, the contract would not apply. If able to work, the pay continues 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 accrued, and, under the facts of this case, appel- lant 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. Dixon, J.^ The plaintiff urged that the $100 a day was a penalty ; and so the trial judge ruled, requiring that the de- 1 Only part of the opinion is given. The only part of the contract which is material to the point under discussion is as follows : " In case the MONMOUTH PARK ASSOC, v. WALLIS IRON WORKS. 47 fendant should prove the actual damages and be allowed only for what was proved. To this ruling the defendant excepted. In determining whether a sum, which contracting parties have declared payable on default in performance of their contract, is to be deemed a penalty or liquidated damages, the general 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 mone}^ or that they have provided for the same damages on the breach of an}' one of several stipulations, 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 sum designated is deemed a penalty. And if it be doubtful on the whole agreement whether the sum is intended as a penalt}' or as liquidated damages, it will be construed as a penalt}', because the law favors mere indemnity. But when damages are to be sustained by the breach of a single stipu- said party of the first part shall [fail] to fully and entirely, and in con- formity to the provisions and conditions 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 com- pletion, or within such further time as in accordance with the provisions of this agreement shall be fixed or allowed for such performance and com- pletion, 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 of the first part, shall be in default, which said sum of one hundred dollars per day is hereby agreed upon, fixed and de- termined 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 pen- alty. And the said party of the second part may and shall deduct and retain the same out of any moneys which may be due or become due to the party of the first part under this agreement." 48 CASES ON DAMAGES. lation, and they are uncertain in amount and not readily sus- ceptible of proof under the rules of evidence, then, if the parties have agreed upon a sum as the measure of compen- sation for the breach, and that sum is not disproportionate to the presumable loss, it may be recovered as liquidated damages. These are the general principles laid down in the text-books and recognized in the judicial reports of this State. Cheddick's Executor v. Marsh, 1 Zab. 463 ; Whitefield v. Levy, 6 Vroom, 149 ; Hoagland v. Segur, 9 Id. 230 ; Lan- sing 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 stand maybe inferred from its cost — $133,000. 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 themselves the measure of compensation. The stipulations of parties for specified damages, on the breach of a contract to build within a limited time, have fre- quently been enforced by the courts. In Fletcher v. Dycke, 2 T. R. 32, £10 per week for delay in finishing the parish church; in Duckworth y. Alison, 1 Mees. & W. 412, £5 per week for delay in completing 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 Philadel- phia, 23 Atl. Rep. 628, $50 a day for delay in completing a MONMOUTH PARK ASSOC, v. WALLIS IRON WORKS. 49 municipal bridge, were all deemed liquidated damages. 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 as- certainable and the stipulated 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 liquidated damages. Their language seems indisputably to have this meaning. They expressly declare the sum to be agreed upon as the damages which the defendant will suffer ; they expressly deny that they mean it as a penalt}', and they provide for its deduction and retention by tlie 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 en- gineer of the defendant to make any alterations or additions that he might Gnd necessary during the progress of the struc- ture, and required the plaintiff to accede thereto, it is un- reasonable 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 whetlier tlie plaintiff became respon- sible for damages by reason of tlie non-completion of the grand stand on the day named, but whether, if it did be- come 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 irri'levant. 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 4 60 CASES ON DAMAGES. consequently there may have been ground for considering the defendant's damages. If there was, the amount of the dam- ages was adjusted by the contract at SlOO per day. We think the ruling at the Circuit, on this point, was erroneous. MURPHY V. UNITED STATES FIDELITY AND GUARANTY CO. New York Appellate Division, 1905. 100 App. Div. 93. The G. K. Perry Stone Co. contracted to furnish stone to the plaintiff for the erection of the Carnegie Library build- ing in Syracuse. The stone was to be delivered before August 1, 1902, and the agreement provided that if the Perry Company should fail to finish the work within the stipulated period it should pay as liquidated damages five dollars per day "for each and everj' day hereafter the said work shall remain incomplete." The defendants were guar- antors of the performance of the contract bj^ the Perry Com- pan}'. On August 1, 1902, only a small portion of the stone having been furnished, the Perrj' Company defaulted and immediately made an assignment for the benefit of creditors. A contract for supply of stone was made by the plaintiff with another party on August 18, the defendant having failed to undertake performance. Actual damages were recovered by the plaintiff in the Supreme Court.^ Spring, J. The defendant contends that the stipulation in the agreement with the Perry Company providing for an allowance of five dollars a day " b}' way of liquidated damages" is the limit of the plaintiffs recover}' and is a sub- stitute for compensation for any actual damages which he may have sustained. In order to construe a provision of this character it is necessary to understand the situation at 1 This short statement of facts is substituted for the statement of the Court. Part of the opinion is omitted. MURPHY V. U. S. FIDELITY AND GUARANTY CO. 51 the time of the execution of the agreement and what the parties had in mind by it. They inserted this provision in anticipation of the full performance of the agreement. If the Perry Company carried out its contract, except that it was not completed by August first, the damages for delay were to be limited to the stipulated sum. Neither party con- templated an absolute abandonment of the work by the Pcrr}'' Company. When that occurred the relations of the parties changed. There was an ending of the agreement and the bur- den was then placed upon the plaintiff to go elsewhere to secure the stone which was to be furnished by ihe Perry Company. His contractual relations with that corporation had ceased. On the other hand, had it performed the work although ex- tending beyond the prescribed date the contract would have been in force. By its terms delay in performance had been anticipated and provided for. No provision had been made to meet the unlooked-for contingency of total abandonment. The bed rock of the stipulated sum "by way 6f liquidated damages" was the ultimate fulfillment of the contract, so that the rights of the parlies could be gauged by that instru- ment with the work completed. The language employed is, " Should the contractor fail to finish the work at or before the time agreed upon " the per diem allowance is to be paid " for each and everyday hereafter the said work shall remain incomplete" unless "delayed," etc. The only reasonable interpretation which can be given to this provision is the one suggested, that the liability for the stipulated sum did not accrue until the contractor had fulfilled his agreement, and, consequently, it cannot be available to bar the plaintiff recov- ering the damages actually sustained by him on account of the renunciation of the agreement. The per diem allowance was not to be paid in lieu of performance, but upon perform- ance after the time fixed in the agreement. In each of the cases cited by the counsel for the appellant there had been a completion of the contract, or else the con- troversy turned on the question whether the stipulated sum •was intended as liquidated damages or a penalty (Curtis v. 52 CASES ON DAMAGES. Van Bergh, 161 N. Y. 47 ; Dunn v. Morgenthau, 73 App. Div. 147), or the actual damages were difficult of ascertain- ment, or the stipulated amount was vastly disproportionate to the loss. (Ward v. Hudson River Building Co., 125 N. Y. 230.) As was said in Phoenix Ins. Co. v. Continental Ins. Co. (87 N. Y. 400, 405) : " The rule, deduced from the au- thorities, is, that when there is a covenant to do, or not to do a particular act, under a penalty', the covenantor is bound to do, or refrain from doing, the ver^* thing, unless it appears from the particular language construed in the light of the surrounding circumstances, that it was the intention of the parties, that the paj-ment of the penalty should be the price of non-performance, and to be accepted by the covenantee in lieu of performance. . . . The question to be considered is, what was the primary intent of the agreement? If the pri- raar}' intent was that the covenant should be performed, the annexing of a penalty is regarded merely as security for the performance of the covenant, and not as a substitute for it." GOODYEAR SHOE MACHINERY COMPANY v. SELZ, SCHWAB & CO. Illinois, 1895. 1.57 111. 186. Wilkin, C. J.-^ Appellant leased to appellee certain ma- chines, upon which it held letters patent, for sewing boots and shoes. . . . The fifth paragraph [of the lease] is in the following language. " Fifth — The lessee agrees to pa}' unto the lessor, as rent for the machines hereby leased and as royalty for the use of the patents hereb}' licensed, the rent or royalt}- specified in the schedule forming part of the third section herein, on each pair of boots or shoes of the respective kinds mentioned or described in said schedule, made bj* the aid of said machines or an}- one of them, or by the use of the said patents or any of them, the rents and royalties for such boots and shoes 1 Part of the opinion is omitted. GOODYEAR SHOE MACH. CO. v. SELZ, SCHWAB & CO. 53 made, as aforesaid, during one calendar month to be due and payable on the first da}- of the calendar month next follow- ing, and to be paid within one month from that day ; but the lessor hereby agrees that if the rents and royalties due on the first day of any month shall be paid on or before the fifteenth day of that month, it will, in consideration thereof, grant a discount of fifty per cent from the rents and ro3'alties speci- fied in the schedule aforesaid ; and the lessee further agrees to pay, while it shall retain possession of the machines hereby leased, all taxes thereon, to whomsoever laid or assessed." . . . Appellant's construction of the instrument sued on, applied to the facts alleged in the declaration, is, that on the first day of October, 1891, the defendant owed and was liable to pay the plaintiff $1198.53 (the full schedule rates named in para- graph 3), payable on the first day of November, with the provision tliat if the defendant chose to pay in advance, any time between October 1 and 15, it should be allowed to dis- charge the debt by paying one-half of it. Appellee insists that the debt on October 1 was $599.27, — fifty per cent of the schedule rate, — the other fifty per cent being by way of damages if payment of the sum actually due was not made on or before October 15. The following propositions seem to be sustained b}- the authorities: "Where a large sum, which is not the actual debt, is agreed to be paid in case of a default in the payment of a lesser sum which is the actual debt, such larger sum is always a penalty. But the rule is otherwise where a less sum is to be taken for a greater if paid at a certain time." (5 Am. & P^ng. P^ncy. of Law, 26.) " Where the larger sum mentioned is the actual debt, and a smaller sum has been agreed upon as a release if paid under stated conditions, the failure to comply with the easier terms gives the creditor the right to enforce payment of the larger sum." In doubtful cases courts are inclined to treat the stipulation as a penalty. (Ibid. 27.) The controlling question in the case then is, what did the parties intend should be the actual rental for the machines — 64 CASES ON DAMAGES. which sura was to be the actual debt? Manifest!}', the drafts- man of the lease intended it to be susceptible of the construc- tion placed upon it b}' appellant, but it by no means follows that the parties who executed it so understood it or should be bound b}- that construction. "We cannot construe the fifth paragraph as providing for a discount for prepa3-ment of the debt. That a discount of fift}' per cent should be made on the debt for a prepa3'nient of about fifteen days is contrary to all business experience, and most unreasonable. The rent accruing for one month became due and payable on the first day of the calendar month following. Certainly the parties did not intend that there should be then clue and payable more than fifty per cent of the schedule rate. Only that amount was payable at an}' time between the first and fif- teenth of the month. It is to be presumed that it was the intention of the parties to secure to the lessor tlie payment of reasonable compensation for the use of its machines, and no more. Tliat compensation could not be one dollar if paid on the fifteenth, but double that amount if paid the next day. Therefore, to hold that it was intended, in a case like this, that the vent should be $599.27 one day and $1198.53 the next, except as an inducement to prompt payment of the lesser sum, is unreasonable. Our conclusion is, that the fifth clause of the instrument should be construed as requiring the payment of fifty per cent of the rent or royalty specified in the schedule for all boots and shoes made during one month, to be due and pay- able on the first day of the next, and if not paid on or before the fifteenth of that month, the whole amount of the schedule rates to become payable. In other words, by the terms of the contract, properly construed, the actual debt was the .$599. 27, and the agreement to pay double the amount is in the nature of a penalty to insure the prompt payment of the sum actually agreed to be paid. Longworth v. Askran, 15 Ohio St. 370, is an authority sustaining this construction of the lease. BURGOON V. JOHNSON. 55 BURGOON V. JOHNSON. Pennsylvania, 1899. 194 Pa. 61. Brown, J.^ Dr. Johnson, a physician who had been suf- fering from a sore on his face, called upon Dr. Burgoon of whom he said he had heard as a specialist in several diseases, for the purpose of being treated, and the only question before us is whether if Burgoon's version of the contract or agree- ment between them be true, he is entitled to recover the sum sued for. When Burgoon, professing to be a specialist, met Dr. Johnson who had sought his help, both agree that the latter insisted upon knowing what the charge would be for the treatment, and Burgoon testified that he said he would require in the event of a cure either a certificate from Johnson of his skill and proficiency as a specialist in the treatment of the trouble from which his patient had suffered, or $5,000, in cash. Assuming this to be true, did the court below properly instruct the jury that in its judgment the contract would make the $5,000 a penalty which could not be recovered? If this sum is to be considered as a penalty, the instruction was correct. . . . Johnson was himself a physician, seeking cure for his ail- ment at the hands of another. He was not the ordinary patient calling upon a specialist, but a member himself of the medical profession, knowing according to his own testimony what his trouble was, and presumed to know what would be a proper charge for the services to be rendered — what he himself might ask — and no matter what our judgment might be under different conditions, we cannot approve the view of the court below that the $5,000 was a penalty. If Burgoon is to be believed it was an alternative mode of payment, agreed upon by the parties capable of intelligently entering into such a contract, and the first assignment of error is sustained. 1 Part of the opinion is omitted. 56 CASES ON DAMAGES. BROOKS V. CITY OF WICHITA. Circuit Court of Appeals, 1902. 114 Fed. 297. The "Wichita Railway Light and Power Company contracted with the city of Wichita to furnish 150 arc lights and have them in operation by April 1, 1899. To secure the perform- ance of the agreement they deposited with the cit}- $10,000, to be treated as liquidated damages in case of faihire to fur- nish the lights, because the actual damages could not be accurately ascertained. The lights were not furnished. Plaintiff, alleging that he was the equitable owner of the money, prated for an accounting.^ Caldwell, Circ. J. Waiving any consideration of the question of equitable jurisdiction, concerning which there may be some doubt, owing to the equitable character of the plain- tiff's alleged claim to the fund, we will proceed to dispose of the case on its merits. By the express terms of the contract, if the 150 arc lights were not put up and in operation within the time limited, the company was to forfeit and pay to the citj', "as liquidated damages, and not as a penalt}-, the sum of ten thousand dol- lars now on deposit with the city treasurer of the city of Wichita." Cases of penal bonds between private persons, where the damages resulting from a breach are readily ascer- tainable, have no application to this case. A city is a public corporation designed for local government. It is an agency of the state to assist in the civil government of the territory and people of the state embraced within its limits. It has no private interests. It is a public agency, and acts for the public ; and when it contracts for the establishment and maintenance b\' a private corporation of waterworks, gas or electric lights, street railroads, and other like public utilities, it does so in the performance of its public functions, and for 1 The statement of facts has been abridged and part of the opinion omitted. BROOKS V. CITY OF WICHITA. 57 the purpose of promoting the convenience and preserving the health of its citizens, and protecting them in their persons and property. And when a private corporation which has engaged with the city to construct and maintain one of these public utilities — as in the case at bar, to light the public streets of the cit}' — fails to comply with its contract in that regard, the city in its corporate capacity does not suffer any loss or damage capable of judicial ascertainment. Nor is the inconvenience and loss suffered by the public, on whose behalf and for whose benefit and protection the contract was made, capable of ascertainment. The loss and damage sustained by the public, however great it may be, in the loss of health or life or the destruction of property, is too remote, conject- ural, and speculative to be made the basis of recovery in such cases. Clark v. Barnard, 108 U. S. 436, 459, 460, 2 Sup. Ct. 878, 27 L. Ed. 780. For this reason it is common for municipal corporations, in making contracts of this character, to stipulate for the payment of a fixed sum as liquidated damages in case the public utility is not constructed and put in operation within the time limited by the contract. Nilson V. Town of Jonesboro, 57 Ark. 108, 20 S. W. 1093. This is the only method by which the city can obtain anything like an adequate compensation for the loss and damage sustained by the public by the breach of such a contract. The sum forfeited as liquidated damages goes into the treasury, and inures to the benefit of the public. The contract in this case does not stop with declaring that the sum of $10,000 has been agreed upon between the parties as liquidated damages in case of its breach, but it contains the further and some- what unusual provision that they have agreed upon this sum " for the reason that the actual damages sustained by the said city in case of a breach of this contract cannot be defi- nitely or accurately ascertained or computed." This clause of the contract evinces a knowledge on the part of the contract- ing parties of the rules of law to which we have adverted, and which preclude a city from recovering substantial damages iu this class of cases unless they are liquidated by the agree- 58 CASES ON DAMAGES. ment of the parties. It was the knowledge of this fact that led the parties to this contract to agree on the damages for its breach, and this is conclusive evidence that they intended what they expressed in their contract, namely, that the sum agreed upon was " hquidated damages, and not a penalty." If this provision of the contract does not mean what it says, then it does not mean anything ; and, when the company failed to put up and operate the arc lights within the time limited by the contract, all that remained to be done was for the city to cancel the contract, and hand back to the company the $10,000 it had been at such pains to exact. Such an interpretation of the contract violates the clearly expressed and actual intention of the parties, is in the teeth of its plain provisions, and makes the deposit of the $10,000 a vain and useless act. . . . It is needless to say that a court of equity, no more than a court of law, can relieve a party from his obligation to pay liquidated damages. When it is once settled that the damages are liquidated, it is then settled that they are not a penalty. A court of equity can no more relieve from the obligation to pay liquidated damages than it can relieve from the obliga- tion to pay a promissory note executed upon sufficient consideration. SUN PRINTING AND PUBLISHING ASSOCIATION V. MOORE. Supreme Court of the United States, 1902. 183 U. S. 642. The yacht Kanapaha, propertj^ of the respondent Moore, was let on April 1, 1898, for the term of two months to the Sun Association for the purpose of gathering news in Cuban waters during the hostilities between the United States and Spain. The agreement provided that "for the purpose of this charter the value of the yacht shall be considered and taken at the sura of seventy-five thousand dollars," and that the hirer would surrender the yacht at the end of the term in SUN FEINTING & PUBLISHING ASSOCIATION v. MOORE. 59 as good condition as at the start, fair wear and tear excepted. The 3'acht was wrecked before return to the owner, and this libel in personam was filed to recover her value. The Cir- cuit Court of Appeals reversed a decree of the District Court and remanded the cause with instructions to enter a decree for $75,000, with interest and costs. The case was then brought to the Supreme Court by certiorari.^ White, J. Upon the trial, The Sun Association intro- duced some evidence tending to sliow that the value of the yacht was a less sum than $75,000, and it claimed that the recovery should be limited to such actual damage as might be shown by the proof. The trial judge, however, refused to hear further evidence offered on this subject, and in decid- ing the case disregarded it altogether. The rulings in this particular were made the subject of exception and error was assigned in relation thereto in the Circuit Court of Appeals. That court held that the value fixed in the contract was con- trolling, especially in view of the fact that a j'acht had no market value. . . . The decisions of this court on the doctrine of liquidated damages and penalties lend no support to the contention that parties ma}- not bond fide^ in a case where the damages are of an uncertain nature, estimate and agree upon the measure of damages which may be sustained from the breach of an agreement. On the contrar}', this court has consist- ently- maintained the principle that the intention of the par- ties is to be arrived at by a proper construction of the agreement made between them, and that whether a particular stipulation to pay a sum of money is to be treated as a pen- alty, or as an agreed ascertainment of damages, is to be determined by the contract, fairly construed, it being the duty of the court alwa3's, where the damages arc uncertain and have been liquidated by an agreement, to enforce the contract. . . . It may, we think, fairly be stated that when a claimed dis- 1 This short statement of facts is substituted for that of the Court. Part of the opinion is omitted. 60 CASES ON DAMAGES. proportion has been asserted in actions at law, it has usually been an excessive disproportion between the stipulated sum and the possible damages resulting from a trivial breach apparent on the face of the contract, and the question of disproportion has been simply an element entering into the consideration of the question of what was the intent of the parties, whether bona fide to fix the damages or to stipulate the payment of an arbitrary sum as a penalty, by way of security. In the case at bar, aside from the agreement of the parties, the damage which might be sustained by a breach of the covenant to surrender the vessel was uncertain, and the un- ambiguous intent of the parties was to ascertain and fix the amount of such damage. In effect, however, the effort of the petitioner on the trial was to nuUif)' the stipulation in question b}' mere proof, not that the parties did not intend to fix the value of the yacht for all purposes, but that it was improvident and unwise for its agent to make such an agree- ment. Substantially-, the petitioner claimed a greater right than it would have had if he had made application to a court of equity for relief, for it tendered in its answer no issue concerning a disproportion between the agreed and actual value, averred no fraud, surprise or mistake, and stated no facts claimed to warrant a reformation of the agreement. Its alleged right to have eliminated from the agreement the clause in question, for that is precisely- the logical result of the contention, was asserted for the first time at the trial by an off'er of evidence on the subject of damages. The law does not limit an owner of propert}', in his deal- ings with private individuals, respecting such property, from affixing his own estimate of its value upon a sale thereof, or on being solicited to place the property at hazard by deliver- ing it into the custody- of another for employment in a peril- ous adventure. If the would-be buyer or lessee is of the opinion that the value aflSxed to the property is exorbitant, he is at liberty to refuse to enter into a contract for its ac- quisition. But if he does contract and has induced the CLYDEBANK SHIP. CO. v. YZQUIERDO Y CASTANEDA. 61 owner to part with his property on the faith of stipulations as to value, the purchaser or hirer, in the absence of fraud, should not have the aid of a court of equity or of law to re- duce the agreed value to a sum which others may deem is the actual value. . . As the stipulation for value referred to was binding upon the parties, the trial court rightly refused to consider evidence tending to show that the admitted value was excessive, and the Circuit Court of Appeals properly gave effect to the expressed intention of the parties. The decree of the Circuit Court of Appeals was right, and it is therefore Affirmed, CLYDEBANK ENGINEERING AND SHIPBUILDING COMPANY V. YZQUIERDO Y CASTANEDA. House of Lords (Scotch Appeal), 190L 1905, A. C. 6. Appeal against a judgment of the Second Division of the Court of Session, Scotland. The Spanish government, represented by the respondents, sought to recover from the appellants the penalties alleged to have been incurred by the appellants under a contract for the construction of two torpedo-boat destroj-ers. The contract contained this clause: "The penalty for later delivery shall be at tlie rate of £500 per week for each vessel not delivered by the contractors in the contract time." The vessels were not delivered until several months later than the agreed time.^ Loud Robertson. M3' Lords, I agree that these judg- ments ought to be affirmed. This clause, souglit to be enforced, is not a general penalty clause, but a specific agreement that sums of money, gradu- ated according to time, shall be paid as penalties for delays in delivering. these vessels. Now the Court can only refuse to enforce performance of this pecuniary obligation if it appears 1 The statement of facts has been much condensed. Concurring opin- ions of Earl of Halsbury, L. C., and Lord Davey are omitted. 62 CASES ON DAMAGES. that the payments specified were — I am using the language of Lord Kyllach}- — "merely stipulated in terrorem, and could not possibly have formed " " a genuine pre-estimate of the creditor's probable or possible interest in the due per- formance of the principal obligation." Now, all such agreements, whether the thing be called penalty or be called liquidate damage, are in intention and effect what Professor Bell calls " instruments of restraint," and in that sense penal. But the clear presence of this ele- ment does not in the least degree invalidate the stipulation. The question remains. Had the respondents no interest to protect by that clause, or was that interest palpably incom- mensurate with the sums agreed on? It seems to me that to put this question, in the present instance, is to answer it- Unless injur}' to a State is as matter of law inexpressible in money, Spain was or might be deeply interested in the early delivery of these ships and deeply injured by delay. To m}' thinking, Lord Moncreiff has, in two sentences, admirably stated the case : " The subject-matter of the con- tracts, and the purposes for which the torpedo-boat destroy- ers were required, make it extremely improbable that the Spanish Government ever intended or would have agreed that there should be inquirj' into, and detailed proof of, damage resulting from delay in delivery. The loss sustained by a bel- ligerent, or an intending belligerent, owing to a contractor's failure to furnish timeously warships or munitions of war, does not admit of precise proof or calculation ; and it would be preposterous to expect that conflicting evidence of naval or militar}' experts should be taken as to the probable effect on the suppression of the rebellion in Cuba or on the war with America of the defenders' delay in completing and deliver- ing those torpedo-boat destroyers." The appellants' counsel frankly maintained that the delay merely saved the Spanish Government so much expense, as vessels of war do not earn freight — an argument which would be equally applicable to the case of the vessels never being delivered at all, so that a total breach of the contract CLYDEBANK SHIP. CO. y. YZQUIERDO Y CASTANEDA. 63 would be a positive good in Itself. But, in truth, the only apparent difficulty in the present ease arises from the magni- tude and complexit}' of the interests involved and of the vicissitudes affecting them, and as the question is whether this stipulation of 500/. a week is unconscionable or exorbi- tant, these considerations can hardly be considered a formi- dable difficulty in the way of the respondents. On the question of waiver I must sa}' I think the appel- lants' case completely fails ; and this matter is very ade- quately dealt with by the Lord ordinary. Ordered^ that the a'ppeal he dismissed with costs. CHAPTER TV. NOMINAL DAMAGES. WOOD V. WAUD. Exchequer, 1849. 3 Ex. 748. Pollock, C.B.' The fact, as found bj^ 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 oi the natural stream b}'' pouring in soap suds, wooleombers' suds, &c. ; but that pollution of the natural stream has done no actual damage to the plaintiffs, because it was already- so polluted by similar acts of millowners above the defendants' mills, and b}- dj-ers still further up the stream, and some sewers of the town of Bradford ; that the wrongful act of the defendants made no practical difference, that is, that the pollution by the defend- ants did not make it less applicable to useful purposes than such water was before. We think, notwithstanding, that the plaintiffs have received damage in point of law. The}' 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 landowners. This is a case, therefore, of an injur}' to a right. The defendants, b}' continuing the practice for twenty 3'ears, \ might establish the right to the easement of discharging into the stream the foul water from their works. If the dye- 1 Part of the opinion only is givep WOOD V. WAUD. 65 works and other manufactories, and other sources of pollu- tion above the plaintiffs, should be afterwards discontinued, the plaintiffs, who would otherwise have had, in that case, pure water, would be compellable to submit to this nuisance, which then would do serious damage to them. We think, therefore, that the verdict must be entered for the plaintiffs on every part of not guilty to the first count.^ 1 It IS said, however, de minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another's property. To warrant an action in such case, says a learned writer, " some temporal damage, be it more or less, must actually have resulted, or must be likely to ensue. The degree is wholly immaterial ; nor does the law, upon every occasion, require distinct proof that an inconvenience has been sustained. For example, if the hand of A. touch the person of B., who shall declare that pain has or has not ensued? The only mode to render B. secure is to infer that an inconvenience has actually resulted." ( Hamm. N. P. 39, Am. cd. of 1823.) "Where a new market is erected near an ancient one, the owuer of the ancient market may have an action ; and yet, perhaps, the cattle that would have come to the old market might not have been sold, and so no toll would have been gained, and consequently there would have been no real damage; but there is a possibility of damage." (2 Ld. Raym. 948.) In Ashby v. White, wherein Powell, J. laid down this rule as to the market, it was held finally by the House of Lords that to hinder a burgess from voting for a member of the House of Commons was a good ground of action. No one could say that he had been actually injured or would be ; 80 far from it, the hindrance might have benefited him. But his franchise had been violated. The owner of a horse might be benefited by a skilful rider taking the horse from the pasture and using him ; yet the law would give damages, and, under circumstances, very serious damages, for such an act. The owner of a franchise, as well as of other property, has a right to exclude all persons from doing anything by which it may possibly be injured. The rule is necessary 1^<- the general protection of property; and a greater evil could scarcely befall a country than the rule being frittered away or relaxed in the least, under the idea that though an ex- clusive right be violated, the injury is trifling, or indeed nothing at all. — Cowen, J., in Seneca Road v. Auburn and Rochester Railroad, 5 Hill, 170, 175. 66 CASES ON DAMAGES. HIBBARD V. WESTERN UNION TELEGRAPH CO. Wisconsin, 1873. 33 Wis. 558. Action to recover damages alleged to have accrued to plaintiffs by reason of defendant's failure to deliver a tele- graphic despatch. Trial by the court without a jury. The court held that defendant was guilty of negligence in failing to deliver such message, and became liable to plaintiffs for any damages sustained by them ; but that " no injury had been sustained by plaintiffs which the court could com- pute in damages," and judgment was accordingly entered for defendant. From this judgment the plaintiffs appealed. Cole, J.^ It is apparent that in this case there was a technical breach of contract on the part of the company, for which the plaintiffs were entitled to recover nominal damages. But this would be the extent of the recovery. A judgment for nominal damages would not have carried costs, because the action might have been brought in a justice's court. The despatch was to be paid for on delivery in Milwaukee ; but, as it was never delivered, the plaintiffs were at no expense for its transmission. And while the County Court was wrong in not rendering judgment for the plaintiffs for nominal damages, yet, in a case like the pi-esent, this constitutes no ground for a reversal of the judgment. This point was so ruled in Laubenheimer v. Mann, 19 Wis. 519; and the doctrine of that case was approved in Eaton v. Lyman, 30 Wis. 41, and in Jones v. King, 33 Wis. 422. According to the rule laid down and approved in these decisions, the judgment in the present case must be affirmed. By the Court. — It is so ordered. 1 Part of the opinion is omitted. LEEDS V. METROPOLITAN GAS-LIGHT CO. 67 LEEDS V. METROPOLITAN GAS-LIGHT CO. New York, 1882. 90 N. Y. 26. Finch, J. We think there was error in the mode of sub- mitting to the jury the question of damages. Whether there was an}' evidence of negligence on the part of the defendant company 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 different. If the evidence is insufficient now, it is possible that it ma}' be made sufficient then. The plaintifT 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 char- acter of his injuries was described by the evidence, and among other things it was proved that he was engaged in business at the time of 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 occupa- tion 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 recover compensation for the time lost in consequence of confinement to the house, 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 excep- tion, that there was no proof in the case of the value of such time. The answer made on behalf of the plaintifT is a criti- cism 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 68 CASES ON DAMAGES. court had charged, in a case where no value of lost time had been shown, and no facts on which an estimate of such vakie could be founded, that compensation for such lost time could be awarded b}' the jur}-. 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 determine 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 competent and material. (Grant v. City of Brooklyn, 41 Barb. 384 ; Mas- terton 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 injurj', and for such onlj- fait and just compensation must be given, and the jurj' have no arbitrary discretion, but must be governed by the weight of evidence. (Mclntyre v. N. Y. Central R. 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 jur}' can allow nominal damages onXy. (Sedgwick on Damages, chap. 2, p. 47 ; Brantingham v. Fay, 1 Johns. Cas. 264 ; N. Y. Dry Dock Co. t'. 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 compensa- tion for it upon an arbitrar}' standard of their own. This they were permitted to do. Without proof of the extent or BRADFORD v. CUNARD STEAMSHIP COMPANY. 69 character of the plahitiflTs 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 liad a doctor, but the length of his attendance was not given, the amount of his charges not shown, 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 suffer- ing, 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 pecuniar}' damages are sought, some evidence must be given showing their existence and extent. If that is not done, the jury cannot indulge in an arbitrar}' estimate of their own. The judgment should be reversed, a new trial granted, costs to abide the event. Judgment reversed. BRADFORD v. CUNARD STEAMSHIP COMPANY. Massachusetts, 1888. 147 Mass. 55. Contract to recover for damage to six cases of woolen dress goods while being carried in the defendant's steamship Samaria.^ Holmes, J. The goods were dress goods. It appears that all the contents of three cases, worth not less than six- teen hundred dollars, and varying proportions of them in three other cases, were damaged by salt water and soda ash. We cannot say that a jury would not be warranted in finding, as a matter of common experience, that damage of such a nature to such goods could not be less than five hundred dol- lars, or somewhat under a third of the value of those goods which were all soaked with the allvali. Judgment for the plaintiffs for Jive hundred dollars. 1 The statement of facts and part of the opinion are omitted. 70 CASES ON DAMAGES. HOSSLER V. TEUMP. Ohio, 1900. 62 Ohio St. 139. Action to recover value of plaintiffs services as nurse and domestic servant.^ Shauck, C. J. That the issues joined cast upon the plain- tiff below the burden of proof is not doubted by his counsel. The question presented and discussed is : Should the jury have been permitted to estimate the value of the services from their character and extent, unaided by the opinion of a witness touching such value? It was incumbent upon the plaintiff to present evidence tending to establish the facts from which the promise to pay for the services would prop- erly be implied as well as those which would show the char- acter and extent of the services on account of which a recovery was sought. With respect to such facts, distin- guishing them from matters of opinion, the jury cannot be permitted to make any finding favorable to the plaintiff, unless it was within the probative effect of evidence offered. So far at least we have departed from the jury of the vicin- age whose personal knowledge of the facts in issue was a substitute for the testimony of witnesses. The substance of the argument in support of the instruction given is that the rule recognized as applicable to facts of such character should extend to questions of value, which must remain matters of mere opinion, however numerous may be the witnesses who testify concerning them. The sound- ness of this position may be tested by supposing that the plaintiff, instead of alleging that these services were worth three dollars per day, had alleged that they were worth one hundred dollars a day, and had introduced a witness who, under oath, expressed the opinion that they were of that value. Would the jury, in the absence of other opinions from wit- nesses, have been required to return a verdict for that 1 The statement of facts is omitted. HOSSLER V. TRUMP. 71 amount? No one would suppose that they should adopt an opinion so variant from common knowledge. By what proc- ess of reasoning could we be conducted to the conclusion that that is indispensable evidence which may be wholly dis- regarded when given? It cannot be supposed that a jury of twelve men would be required to perform the elementary operations in addition and division by which the average opinion of witnesses would be ascertained. The jury in such a case may reject the opinions of witnesses, if the}' deem them unreasonable, because the facts touching the character and extent of the services which the plaintiff is required to prove, and which in the case before us were proved, are themselves the subject of consideration by the jurors with a view to the exercise of their own knowledge and the forma- tion of their own opinions as to their value. The}- may be used to correct the opinions of witnesses as to value, because they are themselves evidence of value. In a case of this character the witness, if placed in possession of the facts correctly assumed in a question, is in no better position for forming an opinion than that occupied by the jurors. We are not without the aid of adjudications upon the question pre- sented. The case of Head v. Hargrave, 105 U. S. 45, was an action for the value of professional services rendered by an attorne3'-at-law, and upon this question Justice Field said : "It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone was to say to them that the issue should be determined by the opinions of the attorneys and not by the exercise of their own judgment of the facts on which those opinions were given. ... So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be 72 CASES ON DAMAGES. given to the opinions expressed and from which only in that ■way they could arrive at a just conclusion. While the}- can- not act in any case upon particular facts material to its dis- position resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of the inquiry. . . . Other persons besides professional men have knowledge of the value of professional services ; and, while great weight should always be given to the opinions of those familiar with the subject, they are not to be blindly received, but are to be intelligently examined by the jury in the light of their own general knowledge ; they should control only as they are found to be reasonable. The judgment of witnesses as matter of law is in no case to be substituted for that of the jurors." Since this view of the subject has been considerately taken where the services were of a professional character, it should of course prevail in a case where, as here, the services are of such a nature that an intelligent opinion touching their value may be formed from common knowledge. The same view has been applied in cases of the precise nature of this. Craig V. Durrett, 1 J. J. Marsh, 336 ; Baum v. Winston, 3 Met. Ky. 127. It derives support from other cases cited in the briefs of counsel for the defendant in error. The argument and citations in support of the instruction given fail to distinguish between facts in issue and opinions founded upon facts proved. The conclusion intimated will not make the verdict final, for the evidence as to the extent and character of the services rendered would come within the consideration of the trial judge on a motion for a new trial, and be presented to reviewing courts by a bill of exceptions. If the excellent opinion by Judge Laubie in Mclntyre's Executor v. Garlick, 4 Circ. Dec. 429, 8 C. C. 416, liad appeared in these volumes there would have been no occasion for this report. Judgment affirmed. CHAPTER V. DIRECT AND CONSEQUENTIAL DAMAGES. KENRIG V. EGGLESTON. King's Bench, 1648. Aleyn, 93. In an action upon tlie case against a country carrier for not deliTering a box with goods and money in it, the evidence was, that the plaintiff delivered the box to the carrier's porter, whom he appointed to receive goods for him, and told the porter that there was a book and tobacco in the box ; and in truth there was a hundred pounds in it besides. And it was agreed by the counsel, and given in charge to the jury, that if a box with money in it be delivered to a carrier, he is bound to answer for it if he be robbed, although it was not told him what was in it. And so it was ruled in one Barcroft's Case, as Rolle [C.J.] said, where a box of jewels was delivered to a ferryman, who knowing not what was in it, and being in a tempest, threw it overboard into the sea ; and resolved that he should answer for it. Rolle directed, that although the plaintiff did tell him of some things in the box onl}', and not of the money, yet he must answer for it ; for he need not tell the carrier all the particulars in the box ; but it must come on the carrier's part to make a special acceptance. But in respect of the intended cheat to the carrier he told the jury they might consider him in damages ; notwithstanding, the jury gave £97 against the carrier for the money only (the other things being of no con- siderable value), abating £3 only for carriage. Quod durum videbatur circumstantihus. 74 CASES ON DAMAGES. TICE V. MUNN. New York, 1883. 94 N. Y. 621. Finch, J. The defendant asked the court to charge in substance, that if the plaintiff was in an unhealthy and debili- tated condition, and the injuries were more serious and last- ing by reason of her bodil}" condition, then the defendant is only liable for such consequences of the injur}' as would have resulted if she had been in good bodily health. The court refused to charge as requested, but stated the rule to be, that if by reason of a delicate condition of health, the consequences \ of a negligent injury are more serious still, for those conse- / quences the defendant is liable, although they are aggravated by the imperfect bodily condition. To the refusal and the charge the defendant excepted. There was nothing in the case to call for the instruction sought. The proof utterly failed to show any weakened or imperfect bodilj- condition which aggravated the injury. What was suggested as a rheu- matic attack two 3'ears before, proved to have been not such, and of no practical importance, and the court was asked to charge upon an abstract proposition having no just bearing on the case. But the charge waa rigliL Taken in connection with the rule of damages several times repeated, it amounted to saying that the negligent party is responsible for the proxi- mate consequences of his act, even though those consequences are more severe and aggravated bj' reason of delicate health than the}' would have been if the sufferer had been sound and well. This does not allow damages for what the defendant did not proximate!}' cause, but holds him responsible for such consequences in the particular case. MANN BOUDOIR CAR CO. v. DUPRE. 75 MANN BOUDOIR CAR CO. v. DUPRE. U. S. Circuit Court of Appeals, Fiftli Circuit, 1893. 51 Fed. 646. Action by Florence C. Dupre against the Mann Boudoir Car Company to recover damages for illegal expulsion from the berth of a sleeping-car. The Circuit Court gave judg- ment for plaintiff. Defendant brings error. McCoRMiCK, Circ. J.^ The plaintiff in error's second prop- osition rests on the theory that, unless it was apparent to a casual observer that Mrs. Dupre was enceinte, or that fact was made known to the servants of the company, she could not recover damages for her subsequent miscarriage, though the jury might believe from the evidence the miscarriage was proximately caused by the unlawful conduct of the company's servants in expelling her from the train. This theory, and the requested charge embodying it, would require every preg- nant woman to refrain from travel ; to take all the risks of the negligence of public carriers ; or to proclaim her condition to the servants of the carriers. We are not willing to sanc- tion by our authority a rule that would so shock the delicacy, dignity, and sense of justice of our " honorable women not a few." The subject called for careful direction of the jury in order to exclude damages too remote ; that is, such as were suffered from the action of some intervening cause, or con- tributed to by the negligence of the plaintiff below. Where, however, the proof satisfactorily shows that the misconduct of the carrier's servant to her while she was a passenger in the carrier's car was the proximate cause of such an injury to a married woman, the carrier should not be held exempt from liability on account of the fact that her condition was unknown to the servants of the company. We therefore do not sus- tain the second proposition of the plaintiff in error. 1 Part of the opinion is omitted. 76 CASES ON DAMAGES. VOSBURG V. PUTNEY. Wisconsin, 1891. 80 Wis. 523. The plaintiff was about fourteen years of age, and the defendant about eleven years of age. On the 20th day of February, 1889, they were sitting opposite to each otlier across an aisle in the high school of the village of Wau- kesha. The defendant reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly. The next da}' he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr. Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to see him the next da}', on the 25th. There was a slight discoloration of the skin entirel}' over the inner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations, and gave him anodynes to quiet the pain. This treatment was continued, and the swelling so in- creased b}' the 5th day of March that counsel was called, and on the 8th of March an operation was performed on the limb by making an incision, and a moderate amount of pus escaped. A drainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another incision was made to the bone, and it was found that destruction was going on in the bone, and so it has continued exfoliating pieces of bone. He will never recover the use of his limb. There were black and blue spots on the shin bone, indicating that there had been a blow. On the first da}' of January before, the plaintiff received an injury just above the knee of the same leg by coasting, which appeared to be healing up and drying down at the time of the last injury. The theory of at VOSBURG V. PUTNEY. 77 least one of the medical witnesses was that the limb was in a diseased condition when this touch or kick was given, caused by microbes entering in tlirough the wound above the knee, and which were revivified b^' the touch, and that the touch was tlie exciting or remote cause of the destruction of the bone, or of the plaintiffs injury. It does not appear that there was any visible mark made or left by this touch or kick of the defendant's foot, or an^^ appearance of injury until tlie black and blue spots were discovered by the physician several days afterwards, and then there were more spots than one. There was no proof of any other hurt, and the medical testi- mony seems to have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff.^ Lyon, J. Certain questions were proposed on behalf of defendant to be submitted to the jur}-, founded upon the theor}' that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as liliely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. Railway Co., 54 Wis. 342, to be that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. The Chief Justice and tlie writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractile and not ex delicto, and hence that a different rule of damages — the rule here contended for — was applicable. We did not question that the rule in actions for tort was correctly stated. That case rules this on the question of damages. "D" 1 This statement of the case is taken from the opinion of Orton, J., on a former appeal in the same case, 78 Wis. 84. Part of tlie opinion of Lton, J., is omitted. 78 CASES ON DAMAGES. ANONYMOUS. Huntingdon Assizes, 1367. 42 Lib. Assis. pi. 19. Before Kirketon, Serg., and Fincheden, J., an appeal of robbery was sued in Huntingdon against one who came and was acquitted ; and lie prayed tliat they should be asked as to his damages, and as to abettors. And inquisition was made, and twenty shillings damages were found for the defendant. And because it was known to the court that the appellee was for a long time in prison he moved that the damages be in- creased by the court. And this matter was sent to Knivet, C.J., to get his opinion. He said that in such a case when the inquest had taxed the damages, the court could not alter it ; for it was the fault of the justices that they would not take inquest at the first day for such general deliveries, even though no panel was returned ; for they should compel the sheriff to make a panel on the spot, from the people, both strangers and inhabitants, there pi-esent, &c. KENT V. KELWAY. Exchequer Chamber, 1610. Lane, 70. In the case between Kent and Kelwaj', which was debated Pasch. 8 Jac, the judges pronounced in the Exchequer Chamber, that judgment ought to be affirmed, notwithstand- ing their opinion before to the contrary as it appeareth, and therefore I demanded of Mr. Moopioel, Clerk of the Errors, what was the reason of their opinions ; and he told me that the case was debated by them this term at Sergeants* Inn, and then they resolved to affirm the judgment ; and the reasons as he remembered were as foUoweth, and he also delivered unto me the case, as he had collected it out of the records, and delivered it to the judges, which was, that tha GUILLE V. SWAN. 79 plaintiff in the King's Bench declared that one Benjamin Shephard was indebted to him in £300, and that he sued out of the King's Bench an alias capias directed to the sheriff of N. to the intent to compel the said Benjamin Shephard upon his appearance to put in bail, according to the custom of that court, for the recovery of his debt, which writ was de- livered to John Shaw, sheriff of the said county, to be exe- cuted. The sheriff made his warrant to the bailiff of the libert}^ of the Wapentake of Newark, and the plaintiff him- self deUvered it to James Lawton, deputy of the Lord Burleigh, the King's chief bailiff of that liberty, to be exe- cuted, and the deputy bailiff by virtue of the said warrant arrested the said Benjamin Shephard, whereupon the defend- ant with others made an assault and rescued the said Benja- min Shephard out of the custody of the said deputy bailiff, whereby he lost all his debt, and damages were assessed at £172, and costs £10. And in this case the judges agreed, that notwithstanding the defendant had rescued the said Benjamin Shephard out of the hands of, &c., when the said Benjamin Shephard was arrested upon an alias capias out of the King's Bench, which writ is only in nature of a plea of trespass, yet the party who rescued him shall answer in this action, damages for the debt, because the plaintiff by this means had lost his debt. And yet it is not showed that the rescuer knew that the plaintiff would declare for his debt, but if in this case the sheriff or bailiff had suffered a negligent escape, they should be charged only with the damages in the same plea as the writ supposeth, and not for the debt ; and so a diversity.* GUILLE V. SWAN. !Tew York, 1822. 19 Johns. 381. In error, on certiorari, to the Justices' Court in the city of New York. Swan sued Guille in the Justices' Court, in an action of trespass, for entering his close, and treading 1 The remainder of the case is omitted. 80 CASES ON DAMAGES. down his roots and vegetables, &c., in a garden in the city of New York. The facts were, that Guille ascended in a balloon in the vicinity of Swan's garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan's field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan's garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about fifteen dollars, but the crowd did much more. The plaintiffs damages, in all, amounted to ninety dollars. It was contended before the Justice, that Guille was answerable only for the damage done b3' himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for 90 dollars, on which the judgment was given, and for costs. The cause was submitted to the court on the return, with the briefs of the counsel, stating the points and authorities. Spencer, C.J., delivered the opinion of the court. The counsel for the plaintiff in error supposes, that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was no union of intent ; and that, upon the same principle which would render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises. The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional GUILLE V. SWAN. 81 or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of ail the cases, in Percival v. Hickey, 18 Johns. Rep. 257. Where an immediate act is done by the co-operation or the joint act of several persons, they are all trespassers, and may be sued jointly or severally ; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of othei's, it must appear, either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturall}', produced the acts of the others. The case of Scott v. Shepherd, 2 Black. Rep. 892, is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injur}'. Shepherd threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled ; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing ; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes. It was decided, by the opinions of three judges against one, that Shepherd was answerable in an action of trespass, and assault and battery. De Grey, C.J., held, that throwing the squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author of tlie mischief. All that was done subsequent to the original throwing, was a continuation of the first force and first act. Any innocent person removing the danger from himself was justifiable ; the blame lights upon the first thrower ; the new direction and new force flow out of the first force. He laid it down as a principle, that every one who does an unlawful act, is considered as the doer of all that follows. A person breaking a horse in Lincolns-Tnn-Fields, hurt a man, and it was held that trespass would lie. In Leame v. Bra}', 3 East Rep. 595, Lord Ellenborougli said, If I put in motion a dan- gerous thing, as if I let loose a dangerous animal, and leave 82 CASES ON DAMAGES. to hazard what may happen, and mischief ensue, I am answerable in trespass ; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans. I will not say that ascending in a balloon is an unlawful act, for it is not so ; but it is certain that the aeronaut has no control over its motion horizontally ; he is at the sport of the winds, and is to descend when and how he can ; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiositj-, or for the purpose of rescuing him from a perilous situation, — all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help, or not, is imma- terial ; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosit}' which he had ex- cited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not. In that case, they would have been co-tres- passers, and we must consider the situation in which he placed himself, voluntaril}' and designedly', as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and ma}- have been heard by the crowd ; he is, therefore, undoubtedly, liable for all the injury sustained. Judgment affirmed. BROWN V. CUMMINGS. Massachusetts, 1863. 7 All. 507. Tort for an assault and batter}-, with an allegation that by reason thereof the plaintiff lost a position as surgeon's mate in the navy, to which he was about to be appointed. BROWN 1-. CUMMINGS. 83 At the trial in the Superior Court, before Ames, J., the plaintiff was permitted, against the defendant's objection, to testif}' that before the assault and battery complained of he had made an application for the position of surgeon's mate ; but that, being disabled by the assault and battery, for that reason he had soon afterwards withdrawn his application. He made no further attempt to show that he had lost the situation, and this evidence was not afterwards referred to by the counsel of either part}', or by the court. The evidence of the plaintiff tended to show that the assault was of an un- provoked and aggravated character ; and the defence pro- ceeded wholly on the ground that the evidence on wliich the plaintiff relied was untrue, and that the defendant had committed no assault and battery whatever. The jury returned a verdict for the plaintiff, with damages in the sura of $100 ; and the defendant alleged exceptions. i\r. 3Iorse, for the defendant. P. P. Todd, for the plaintiff. Chapman, J. The question presented hy the bill of excep- tions is, whether the evidence objected to ought to have been rejected. If the plaintiff had a right, under his declaration, to prove the loss of the office of surgeon's mate as conse- quential damages, then the evidence was properl}- admitted ; because it was pertinent evidence on that point, though it was obviously insufficient without proof of additional facts. The rule of law is, that where special damages are not alleged in the declaration, the plaintiff can prove only such damages as are the necessar}- as well as proximate result of the act complained of; but where the}' are alleged, they ma\' be proved so far as they are the proximate, though not the necessary result. 1 Chit. PI. (6th ed.) 441. 2 Greenl. Ev. § 256. Dickinson v. Boyle, 17 Pick. 78, As the declaration in this case alleges the loss of the office as special damage, the evidence was admissible, if the loss can be regnrdod as a proximate result of the assault and batter}'. So far as we have been able to find authorities on the point (for none were cited on behalf of the plaintiff), they tend to show that 84 CASES ON DAMAGES. It was not proximate, but remote. In Boyce v. Bayliffe, 1 Camp. 68, it is said to have been held that, in an action for false imprisonment, with an allegation that the plaintiff there- by lost a lieutenancy, he could not recover for the loss because it was remote. In 1 Chit. PI. 440, the same rule of law is stated. In Moore v. Adam, 2 Chit. R. 198, which was an action for assault and batter}-, with an allegation of special damage, the plaintiff offered to prove that, in consequence of the blows given to him by the defendant, he had been driven from Alicant, where he had before carried on trade as a merchant. This was held to be too remote. These authorities seem to us to be in conformity with the principle stated above. We do not see how the loss of an office can be proximately' connected with an assault and battery as its cause. There must be intervening events which make the connection more or less remote ; and it is difficult to see how the result can happen without the addi- tion of independent causes also. It is somewhat like the case of a merchant who sliould offer to prove that, in con- sequence of an assault and batterj', he was unable to go to his store, and thereby lost the opportunity to close a par- ticular bargain which would have been profitable ; or of a farmer who should offer to prove that in consequence of such an act he was unable to gather in his crop of grain, and thereby lost it. In the present case, one of the intervening causes of the loss of the office appears to have been a volun- tar}' act of the plaintiff^s own will, and there must also have been the concurrent voluntary acts of other men. The evidence ought therefore to have been excluded. Although this evidence was not noticed by counsel on either side in addressing the jury, or by the court in in- structing them, yet it is impossible to know that it had no effect upon their verdict. After it had been admitted, against the objection of the defendant's counsel, the jury had a right to regard it as legal and material, unless they were afterwards instructed to disregard it. Exceptions sv stained. DUBUQUE WOOD AND COAL ASSOC, v. DUBUQUE. 85 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 Dubuque over a slough of the Mississippi 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 became impassable ; that before the bridge became impassable, a large quantity of wood being deposited upon the levee, as was customar}', was purchased by plaintiff for the purpose of reselling to its customers in the cit}- of Dubuque ; that the levee was liable to be over- flowed by the river, and the street upon which the bridge in question was erected was the onl}' wa}' over which the wood could have been transported to plaintiff's customers. On account of the bridge becoming impassable, and of the negli- gence of defendants, in failing to rebuild it, plaintiff was unable to remove his wood. Subsequentlv, 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 demurrers were sustained and plaintiff appeals. Beck, J. It is not denied, by the appellees, that the injury complained of will support an action, unless the injury ap- pears to be public in its nature, and the damage claimed too remote, under the rules of the law, to become the basis of a 86 CASES ON DAMAGES. compensator}' judgment. The liabilit}- of the county and city for damage, the direct and certain result of negligence in failing to repair a highway-, when that duty is imposed upon them, is not questioned b}' the counsel 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 bj' plaintiff with the public generally, that recov- ery therefor is precluded? 2. Is the damage claimed so remote that compensation, under the rules of the law, will not be given? 3. If the action can be maintained, maj^ 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 decisive 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 prac- tical 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 dam- ages 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 dividing 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 conse- quence of the act complained of; that is, it must be the consequence that follows the act, and not the secondary re- DUBUQUE WOOD AND COAL ASSOC, v. DUBUQUE. 87 suit from the first consequence, either alone or in combination with other circumstances. An illustration will serve the purpose of more clearl}^ ex- 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 citj' which he attempts to cross, from defects therein falls, and his horses are killed. B^- the breaking of the bridge and the loss of his team, he is delayed in removing his prop- ert}'. 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 second- ary consequence, resulting from the first consequence, is the delay in removing the lumber, which, finallj', 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 con- clude that the losses for which recovery is sought were not the proximate 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 not 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' ne2:li- gence caused plaintiff to delay removing the wood ; the delay exposed the wood to the flood, whereb}- it was lost. Plaintiff's damage, then, was not the proximate consequence of the acts of defendant complained of, but resulting from a remote consequence joined with another circumstance, the flood. The case is not distinguishable from the supposed case above stated. In our opinion the demurrer was correctly sustained. The other points raised in the case need not be noticed. Affi)'med. 88 CASES ON DAMAGES. EHRGOTT V. MAYOR OF NEW YORK. New York, 1884. 96 N. Y. 264. Earl, J.^ This action was commenced to recover dam- ages sustained bj- the plaintiff from personal injuries received by him in consequence of a defect in a street in the city of New York. The accident occurred in the night time, while it was raining. When the plaintiff drove into the ditch in the street his horses jumped, the axle of his carriage was broken, and he was dragged partly over the dash-board. With the assistance of men who came to his help, his horses were taken from the carriage, and he procured another carriage and har- nessed his horses to that, and drove several miles to his home ■with his wife, sister, and son. To report the accident to the police station near b^-, to change carriages, and drive to his home, took several hours, and during that time he was ex- posed to the cold and rain, and his clothes became perfectly saturated with water. He was not that night aware that he had sustained any injury, and the next morning first became sensible of the pain in his back. Upon the trial the plaintiff gave evidence tending to show that the diseases from which he was suffering were results of the strain and shock, caused by his being dragged over the dash-board ; and the defendant gave evidence tending to show that the diseases were the result of the subsequent exposure to the cold and rain. . . . The defendant requested the judge to charge " that the spinal injuries from which the plaintiff now suffers, if they were occasioned by the exposure to the wet, following the accident, as the defendant contends they were, are not the natural and necessar}' result of the accident, and are not such as might reasonably be supposed to have been in the contem- plation of the parties as the probable outgrowth of the acci- dent, and, therefore, in the contemplation of the law, the 1 Part of the opinion is omitted. EHRGOTT V. MAYOR OF NEW YORK. 89 defendant is not liable therefor." The judge declined to charge this, except as he had already charged, and the de- fendant's counsel excepted. . . . It is sometimes said that a party charged with a tort, or •with breach of contract, is liable for such damages as may reasonably be supposed to have been in the contemplation of both parties at the time, or with such damage as may reason- ably be expected to result, under ordinary circumstances, from the misconduct, or with such damages as ought to have been foreseen or expected in the light of the attending cir- cumstances, or in the ordinar^^ course of things. These various modes of stating the rule are all apt to be misleading, and in most cases are ab&olutel}^ worthless as guides to the jury. (Leonard v. N. Y., &c., Tel. Co., 41 N. Y. 544.) Parties, when they make contracts, usually contemplate their performance and not their breach, and the consequences of a breach are not usually in their minds, and it is useless to adopt a fiction in any case that they were. "When a party commits a tort resulting in a personal injur}', he cannot foresee or contemplate the consequences of his tortious act. He ma}' knock a man down, and his stroke ma}', months after, end in paralysis or in death, — results which no one anticipated or could have foreseen. A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen, or the injuries which may be caused. Here, nothing short of Omniscience could have foreseen for a minute what the result and effect of driving into this ditch would be. Even for weeks and months after the accident the most expert physicians could not tell the extent of the injuries. The true rule, broadly stated, is that a wrong-doer is liable for the damages which he causes by his misconduct. But this rule must be practicable and reasonable, and hence it has its limitations. A rule to be of practicable value in the administration of the law, must be reasonably certain. It is impossible to trace any wrong to all its consequences. They may be connected together and involved in an infinite coo- 90 CASES ON DAMAGES. catenation of circumstances. As said by Lord Bacon, in one of his maxims (Bac. Max. Reg. 1) : "It were infinite for the law to judge the cause of causes, and their impulsion one of another ; therefore it contenteth itself with the immediate cause, and judgeth of acts bj- that, without looking to any further degree." The best statement of the rule is that a wrong-doer is responsible for the natural and proximate con- sequences of his misconduct ; and what are such consequences must generally be left for the determination of the jur3\ (Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469.) We are, therefore, of opinion that the judge did not err in refusing to charge the jury that the defendant was liable " onl}' for such damages as might reasonabl}* be supposed to have been in the contemplation of the plaintiff and defendant as the probable result of the accident." PENNSYLVANIA RAILROAD v. WABASH, ST. LOUIS & PACIFIC RAILWAY. United States Supreme Court, 1895. 157 U. S. 225. Harlan, J.^ On the 7th day of December, 1880, the Wabash, St. Louis & Pacific Railway Company, by its agent at Omaha, Neb., sold to one W. J. Council a railroad coupon ticket, purporting to be good to the holder for passage over certain railroads extending from Omaha to the cit}' of New York, one of which was the road belonging to the Penns3'l- vania Railroad Company, and extending from Philadelphia to New York. It is to be taken upon this record that the Wabash Com- pany had no authority to sell a ticket entitling the holder to passage over the appellant's road between Philadelphia and New York. Indeed, the Wabash Company had notice that the Pennsylvania Company would not recognize any tickets sold by it. In the course of his journey to the East, Connell took pas* ^ Part of the opinion is omitted. PENN. R. R. V. WABASH, ST. L. & PACIFIC RAILWAY, 91 sage at Philadelphia on one of the appellant's trains for New York. Being asked by the conductor for his ticket, he pre- sented the Philadelphia-New York coupon of the ticket purchased at Omaha. The conductor, in conformitj' with instructions from appellant, refused to accept that coupon in payment of fare. Connell refused to make payment otherwise than with the coupon so tendered by him, and, because of such refusal, was ejected by appellant's conductor from the train, and left at a wa}- station. Connell subsequently sued the Pennsylvania Railroad Com- pany in the superior court of Cook County to recover damages on account of his expulsion from the train of that company. In a suit in which all the property and assets of the Wabash Company in Illinois were in course of administration, and were in the possession of the court, the Pennsylvania Rail- road Company filed intervening petitions and asked an order directing the receivers to pay the sums reasonably expended by it in and about the defence of the action brought by Connell. . . . We are clearly of opinion that no such liability existed. The Pennsylvania Company had in its hands a simple remedy for the wrongful sale by the Wabash Company of a ticket over its road from Philadelphia to New York ; namel}', to refuse to recognize that ticket by whomsoever presented. It applied that remedy, for it declined to accept the coupon tendered by Connell, and stood upon its undoubted right to demand money for his fjire. As between the two railroad companies, this closed the matter in respect to the unauthor- ized sale by the Wabasli Company of a ticket for passage over the Pennsylvania road. The ejection of Connell by the Pennsylvania Company from the train — particularly if such ejection was accompanied by unnecessary' force — was upon its own responsibilitj-, and was not made legall}- necessary b}' anything done by the Wabash Company which the other com- pany was bound to recognize or respect. It had no direct connection with the wrong of the Wabash Company in selling a ticket over the road of the Pennsylvania Company. 92 CASES ON DAMAGES. HADLEY V. BAXENDALE. Exchequer, 1854. 9 Ex. 341. This was an~action by the plaintiffs, owners of a steam grist-mill, against the defendant, a carrier, for delay in de- livering two pieces of iron, being the broken shaft of the mill of the plaintiffs, by reason of which delay the engineer to whom they were to be delivered was unable to supply a new shaft, and the mill of the plaintiffs was stopped, and the plaintiffs lost certain profits by the delay of their business, which was laid in the declaration as special damage. The defendant paid £25 into court. At the trial, before Crompton, J., at the Summer Assizes for Gloucester, 1853, it appeared that the broken shaft was to be sent to the engineer as a model for a new one, and at the time of the contract for the carriage being made, the de- , fendant's clerk was informed that the milljKas_ stopped and' that the shaft must be sent immediately. It further appeared that its delivery at its destination was delayed for several days, and, consequentlj', the plaintiffs did not receive the new shaft back as they expected, and their mill was kept idle. The learned judge left the question of damages to the jury, although it was objected that the special damage was too remote, and the}' gave a verdict for the plaintiffs for £25 be3-ond the sum paid into court. A rule nisi for a new trial for misdirection was obtained in Michaelmas term, on the ground that the learned judge ought to have told the jury to throw out of their consideration the alleged special damage.^ Alderson, B. We think that there ought to be a new trial in this case ; but, in so doing, we deem it to be expe- dient and necessary to state explicitly the rule which the 1 This statement of the case is taken from the report in 23 L. J. (n.s.) Ex. 179. HADLEY V. BAXENDALE. 93 judge, at the next trial, ought, in our opinion, to direct the jury to be governed by when they estimate the damages. 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 occa- sions ; and, in Blake v. Midland Railway 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 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, 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 communK^atfid--by the plaintiffs to the defendants, and tlius known to both parties, the damages resulting from the breach of such a contract, which they would reasonabl}' contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communi- cated. 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 1 1 ^ /lu >- i X y^' 94 CASES ON DAMAGES. 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 advantage 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 of contract. It is said that other cases, such as breaches of contract 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 cognizant of that ■well-known rule, these cases ma}', we think, be more properly classed under the rule above enunciated as to cases under known special circumstances, because there both parties may reasonably be presumed 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 communi- cated by the plaintiffs to the defendants at the time the con- tract 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 reason- ably that the profits of the mill must be stopped by an un- reasonable delay in the delivery of the broken shaft by the carrier to the third person? Suppose the plaintiffs had an- other shaft in their possession put up or putting up at the time, and that they oul}' 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 unreason- able delay in the delivery would have no efiect 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 actu- ally 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 CORY V. THAMES IRONWORKS & SHIPBUILDING CO. 95 the mill, and that the loss of profits reall}' arose from not send- ing 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 car- rier under ordinary circumstances, such consequences would not, in all probability, have occurred ; and these special cir- cumstances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a conse- quence 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 flowed natu- rally from the breach of this contract in the great multi- tude of such cases occurring under ordinary 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 de- fendants. 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 esti- mating the damages. There must therefore be a new trial in this case. Bule absolute. CORY V. THAMES IRONWORKS & SHIPBUILD- ING COMPANY. Queen's Bench, 1808. L. R. 3 Q. B. 181. This was an issue du-ected 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 float- ing-boom derrick, 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. 96 CASES ON DAMAGES. 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 discharged the cargoes of coal from their ships, a new and expeditious mode of unloading the coals b}' means of iron buckets, which were worked by hydraulic pressure over pow- erful cranes, and the plaintiffs' trade having considerably in- creased, they were desirous of improving the accommodation offered in the discharge of their vessels by the above mode ; this the defendants were not aware of. The defendants agreed to sell the plaintiffs a floating-boom 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 ayd 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 tranship their coals from colliers into barges without the neces- sity for any intermediate landing, the derrick, for this purpose, being 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 plain- tiffs sought to appl}' it was entirely novel and exceptional. No hull or other vessel had ever been fitted either by coal mer- chants 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 purchased, and to which it was actuallj' 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 plaintiffs had not at that time any intention of applying CORY V. THAMES IRONWORKS & SHIPBUILDING CO. 97 the derrick to any other purpose than the special purpose to which she was in fact afterwards appUed. If the plaintiffs had been prevented from applying the derrick 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 emplo3"ed 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 anj- part of the business carried on hy the plaintiffs ; and the derrick being an entirely novel and excep- tional 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 em- ployed for that purpose, and had she 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. The defendants did not deliver the derrick to the plaintiffs until the 1st 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 sus- tained great loss owing to their not having possession of the hull to meet the great increase in their trade. The plaintiffs also lost £8 15s. for interest upon the portion of the purchase-mone}' 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.^ J. C. Brown, Q.C. (Watkin Williams with him) for the plaintiffs.* ^ This statement of facts has been somewhat abridged. * The argument for the plaintiffs is omitted. 7 98 CASES ON DAMAGES. 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. This sum is the damages resulting from a special purpose, within the principle of Pladlcy v. Baxendale. The rule laid down in Hadley v. Baxendale is that the plaintiff can only recover such damages as are the natural result of the breach of contract in ordinary circumstances, or, — which would appear to be an- other mode of expressing 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 arising from a special purpose the buyer must have communi- cated the special purpose to the seller ; but there is one thinglL, i>\ which must alwaj's 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 common contemplation the application of this vessel to anj' one specific purpose. The plaintiffs intended to apply it in their trade, but to the special purpose of transhipping coals ; the defendants believed that the plaintiffs would apply it to the purpose of their trade, but as a coal store. I cannot, however, assent to the proposition that, because the seller does not know the purpose to which the bu3-er 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-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 ma}' be obtained 1 Part of the argument for the defendants ia omitted. O^ I i COEY V. THAMES IRONWORKS & SHIPBUILDING CO. 99 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 3'ou can onl^- take as the measure of damages the profit 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 under- stand it, finds that the hull was capable of being api)lic'(l profit- ably 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 purpose as a coal store. And this kind of damage is a dam- age which the plaintiffs never suffered, and which they never contemplated sufferuig. [Mellor, J. It was the most obvious purpose to which such a vessel could be applied in the plaintiffs' trade. CocKBDRN, 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 pre- vented b}^ 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 plaintifl^s, the buyers, would be losers by their non-delivery of the vessel according to contract, so far it is just and right that the de- fendants should be responsible in damages.] That, no doubt, would be a just rule ; but it is not the rule laid down in Pladley v. Baxendale. [Blackburn, J. That argument seems to assume that the principle laid down in Hadley v. Baxendale is that the dam- ages can only be what both parties contemplated, at the time of making 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, 1. e. according to the 100 CASES ON DAMAGES. usual course of things, from such breach of contract itself," — that is one alternative, — "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, 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 bj- 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. Coleridge 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 at- tended 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 buj'er intended to appl}' the thing bought, but thought it was for some other purpose, he would be relieved entirely from making any com- pensation to the bu3-er, in case the thing was not delivered in time, and so loss was sustained b}' the buyer ; and it would be entirely in the power of the seller to break his contract with impunity. That would necessarily follow, if Mr. Coleridge's interpretation of Hadley v. Baxendale was the true interpreta- tion. M}^ brother Blackburn has pointed out that that is not the true construction of the language which the court used in delivering judgment in that case. As I said in the course of the argument, the true principle is this, that although the buyer may have sustained a loss from the non-deliver}^ of an article which he intended to applj* 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 applied to the purpose from which such larger profit might result ; and CORY V. THAMES IRONWORKS & SHIPBUILDING C6. 101 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 exteut to which the seller contemplated that, in the event of his not fulfilling his contract by the delivery of the article, the profit which would be realized if the article had been deliv- ered would be lost to the other party, to that extent he ought to pay. The ba3er has lost the larger amount, and there can be no hardship or injustice in making the seller liable to com- pensate him in damages so far as the seller understood and believed that the article would be applied to the ordinary purposes to which it was capable of being applied. I think, therefore, that ouglit to be the measure of damages, and I do not see that there is anything in Hadlc}' v. Baxendale which at all conflicts with this. Blackburn, J. I am entirelj- of the same opinion. I think it all comes round to this : The measure of damages when a party has not fulfilled his contract is what might be reason- ably expected in the ordinary course of things to flow from the non-fulfilment of the contract, not more than that, but what might be reasonablv expected to flow from the non- fulfilment of the contract in the ordinary state of things, and to be the natural consequences of it. The reason wh}' the damages are confined to that is, I think, pretty obvious, viz. that if the damage were exceptional and unnatural damage, to be made liable for that would be hard upon the seller, be- cause 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-fullihnent of his contract. On the other hand, if the party has knowledge of circumstances which would make the damages more exten- sive than the}' would be in an ordinar}' case, he would be liable to the special consequences, because he has knowledge of the circumstances which would make the natural conse- quences greater than in the other case. But Mr. Coleridge's argument would come to this, that the damages could never 5 102 CASES ON DAMAGES. be anything but what both parties contemplated ; and where the buyer intended 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 consequence 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 agreeing to furnish the derrick was that it was to be employed in the most obvious manner to earn mone}', which the arbitrator assesses at £420 during the six months' delay ; and as I believe the natural consequence of not de- livering the derrick was that that sum was lost, I think the plaintilTs should recover to that extent. Mellor, J. I am entirely of the same opinion. The ques- tion is, wliat 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 rea- sonably be in contemplation of the parties as likely' to flow, from the breach of such contract. It is not because the par- ties are not precisely ad idem as to the use of the article m question that the defendants are not to pay any damages. Both parties contemplated a profitable use of the derrick ; and when one finds that the defendants contemplated a par- ticular 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 plabitiffs accordingly. HORNE V. MIDLAND RAILWAY. Common Pleas, 1872. L. R. 7 C. P. 583. "WiixEs, 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 HORNE V. MIDLAND RAILWAY. 103 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 tlie trouble to which the consignor would be put in disposing of them to another cus- tomer, and the difference between the value of the goods on the 3rd and the amount realized 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 consequences 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 subject to much fluc- tuation in price. In the present case, taking 2s. 9c?. 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 in the value between those da3-s. The plaintiffs' claim, therefore, in that respect would be covered by the £20 paid into court. But they claim to be entitled to £267 3s. 9(7. over and above that sum, on the ground that these shoes had been sold b}' them at 4.s. a pair to a consignee who required them for a contract with a French house for supph' to the French arm}', which price he would have been bound to pay if the shoes had been delivered on the 3rd of February. The special price which the consignee had agreed to pa}' was the conse- quence of the extraordinar}' demand arising from the wants of the French army ; and the refusal of the consignee to accept the goods on the 4th was caused b}- the cessation of the demand for shoes of that character b}' reason of the war having come to an end. The market-price, therefore, we 104 CASES ON DAMAGES. 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 were 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 the}' would have been entitled to ia the ordinar}' course of trade. It must be remembered that we are dealing with the case of a common carrier, who is bound to accept the goods. It would be hard indeed if the law were to fix him with the further lial)ility which is here sought to be imposed upon him, because he has received a notice which does not disclose the special and exceptional consequences which will or may result from a delayed deliv- er}-. I think the law in this respect has gone quite as far as good sense warrants. The cases as to the measure of dam- ages for a tort do not appl}' 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 are to be limited to those that are the natural and ordinary consequences which may be supposed to have been in the contemplation of the parties at the time of mak- ins: the contract. I go furthei*. 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 circum- stances that he must know that the person he contracts with SMITH V. GREEN. 105 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 partic- ular damages now claimed? In the ordinary' course of things, the value of the shoes was 2s. dd. 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 45. a pair. The defendants had no notice of the penalty, so to speak, which a delay in the delivery would impose upon the plain- tiffs. 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 con- signors 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.* SMITH V. GREEN. Common Pleas Division, 1875. 1 C. P. D. 92. Lord Coleridge, C.J. I am of opinion that there should be no rule in this case. The action is brought for the breach of a warranty upon the sale of a cow, tliat she was free from foot and mouth disease ; and it appeared that the cow was, at the time of the sale, affected with that disease, and that the buyer, who was a farmer, having placed her along with other 1 Keating, J., concurred. Afl5rmed in the Excliequer Cliamber, L. B> 6 C. P. 131. 106 CASES ON DAMAGES. COWS, the disease was communicated to them, and that she and some of them died. Besides a count upon the warranty, the declaration contained a count charging the defendant with a false and fraudulent representation that the cow in question was free from the complaint; but the jury negatived the alleged fraud. We are asked to grant a new trial on the ground that my brother Archibald misdirected the jury in telling them that, in estimating the damages to which the plaintiff was entitled for the breach of warranty, they might take into their consideration the fact that the buyer was a farmer, and that the seller knew, or must be taken to have known, that the diseased cow would be placed with other cows ; and that, if they found that the defendant knew that fact, and that in the ordinary course of his business the plain- tiff would so place her, then the loss of the other cows might fairly be considered to be the natural and necessary conse- quence of the defendant's breach of warranty, and they might assess the damages accordingly. I am of opinion that that direction was perfectly correct, and that the jury were quite right in taking that circumstance into account. The facts seem to me to bring the case clearly within the rule laid down by the Court of Exchequer in Hadley v. Baxendale. It is not necessarj" to consider whether the representation as to the state of the cow which was the subject of sale was fraudulent or not, because the rule is, that, where a party to a bargain makes an untrue statement as to the subject of sale, and damage results therefrom to the other part}', the seller is answerable for such damage. Randall v. Raper, E.B. & E. 84 ; 27 L. J., Q. B., 266, proceeds upon that footing. There was no fraud there ; but the defendant sold seed which turned out to be of a kind different from that which he warranted it to be, and the plaintiff having sown it, and a wrong crop having come up, he was held entitled to recover the difference in value of the crop as it was and as it ought to have been. In giving judgment, Lord Campbell says (E. B. & E. at p. 88) : " It was a probable, a natural, and a necessary consequence of this seed not being chevalier barley that it did not produce the HAMMOND V. BUSSEY. 107 expected quantit}' of grain. That is a conseqiieuce not de- pending upon tlie quality of the soil, but one necessarily resulting from the breach of contract as to the quality of the seed." And Erie, J., said (E. B. & E.at p. 89) : " The war- ranty is, that the barley sold should be chevalier barle}'. The natural consequence of the breach of such a warranty is, that the barley which has been delivered having been sown, and not being chevalier barley, an inferior crop has been pro- duced. This damage naturally results from the breach of the warranty, and the ordinary measure of it would be the differ- ence in value between the inferior crop produced and that which would have been produced from chevalier barlej' : that is not inconsistent with Hadley v. Baxendale." There are many other cases (some of which have been cited) to the same effect. It seems to me that my brother Archibald cor- rectly laid down the law in accordance with those authorities ; and, it being fairly admitted that there was evidence on both sides, and the learned judge not being dissatisfied, I see no reason to doubt that the jury came to a right conclusion.^ HAMMOND V. BUSSEY. Court of Appeal, 1887. 20 Q. B. Div. 79. Lord Esheii, 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 1 Bkett and Grove, JJ., delivered concurring opinions. 108 CASES ON DAMAGES. to be used for the purposes of steam-coal on board steamers. He did not know, it is true, with what specific 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 sa}-, 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 onlj- be found out when it came to be used, which was not by the plaintiflTs, but by their sub-vendees. Such a breach of such a contract with regard to such a subject- matter necessarily made the plaintiffs Uable 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 tliat they had had no opportunity, at the time when they entered into the sub-contract, or when the}' 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 the}' should take the mere word of the persons making a claim upon them that the coal was, not merely bad, but so bad that it could not reasonably be considered fit for use as steam-coal oa steamships? Was it reasonable that the}^ 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 an}' 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 word of the sub-vendees. Under those circumstances it would not have been reasonable, either on their own account or on that of the defendant, for the plaintiffs to submit to judgment at once without 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 HAMMOND V. BUSSEY. 109 win or lose would depend on the extent to which the evidence went 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 defendant. In order to make themselves as safe as possible in this respect, the plaintiffs gave notice of the claim against tliem to the present defendant, and thereupon the defendant insisted that the coal he had supplied was according to contract. The value of that fact is to show the plaintiffs' position, and to make it still more reasonable that they should defend the action by their sub- vendees against them. They accordingly defended the action, and of course would become liable to costs in that action if, by reason of any breach of contract by the defendant, the defence was unsuccessful. That defence appears to have turned entirely on the question of breach of warranty. There is nothing to show that it depended on anything else, or that any damages were given except for the breach of warranty. The defendant has admitted that the damages given in that action were merely the damages natu- rally resulting from the breach of warrant}-, for he has paid the amount of them into court in this action. Furthermore, it is not suggested that the costs which the plaintiffs incurred were extravagantly or recklessl}^ incurred, or that the}' 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. Baxendalc. It ma}- be that the rule so laid down was not necessary for the purpose of deciding that case, 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 therefore treat the present case on the footing that the question is as to the true application of that rule to the measure of damages for such a breach of such a 110 CASES ON DAMAGES. contract under such circumstances as we have to deal with here. "We have not got to determine how that rule would apply to other breaches of other contracts under other circum- stances than those we have now to consider. 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 fairl}- and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself." That is the enunciation of the rule with regard to damages for a breach of contract where no special circumstances arise, and would appl}* 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 reason- ably 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." It has been argued that these words are not an enlargement 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 contem[)lation of the parties at the time they made the con- tract," which would have raised a question of fact for the jury, but " such as may reasonably be supposed to have been in the contemplation of the parties," not as the inevitable, but as "the probable result of the breach." The next sen- tence 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 tlie plaintiffs to the defendants, and thus known to both parties, the damages HAMMOND V. BUSSEY. Ill resulting from the breach of such a contract, uhich they would reasonabl}- contemplate, would be the amount of injur}- which would ordinarily follow from a breach of contract under 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 actually 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 defendant 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 subsale by the vendees with a similar warranty ; and to see whether, under these circumstances, the bringing of an action 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 sup- posed 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 question is one upon which those who have to determine it must exercise their minds according to the cir- cumstances of the particular case. It is impossible for us to lay down a rule as to what would be reasonably to be sup- posed to have been in the contemplation of the parties in the cases of other contracts made with regard to other subject- matters under other circumstances. "We can onh- apply the rule laid down as above stated to the circumstances of the case before us. We must say, using our knowledge of busi- ness 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 112 CASES ON DAMAGES. think that the question is one for a jur}-, though I think that possibl}', under certain circumstances, with regard to some subject-matters, it would be competent to a judge to ask par- ticular 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 being, according to the ordinary course of things under the circumstances, not onlj^ the prob- able 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 bj' the vendees might be that they should not at once submit to the claim, but that, unless they could get information from the vendor that there was really no defence, they should defend the action. It would not, of course, be the inevitable result that the vendees should lose the action ; that would depend on the question whether there was a breach of the warrant}', 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 circum- stances come within the second branch of the rule in Hadley V. Baxendale. It has been argued that, upon the true construction of the rule in that case, such costs cannot be recoverable as the result of a breach of contract, unless there has been a con- tract of " indemnit}'." The meaning of that term has been much discussed during the argument. I may in previous cases, in which the question 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 HAMMOND V. BUSSEY. 113 necessary to put the case on that footing, inasmuch as the way in which I have put it, b}' applying the rule in Hadley v. Baxendale, viz., that the question is whether the damages claimed may reasonably be supposed to have been witliin the contemplation of the parties at the time when they made the contract, seems to be another and perhaps a better wa}' of expressing it. For the purpose of substantiating the argu- ment that there must be a contract to indemnify, 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 b}' 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 connec- tion 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 case, and I used that language in expressing what I conceived to be the particular circum- stances of that case, which made the rule in Hadlej- v. Baxen- dale 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. Baxendale as applicable to a case like the present. The case of Birmingham, «S;c. , Land Co. V. London and North-Western Railway Co., 34 Ch. D. 2G1, was referred to for the same purpose. It is only necessary to say with regard to that case that the court was not there constru- ing the rule as to damages laid down in Hadley v. Baxendale, but the provisions of Order xvi., rule 48, with regard to the question whether the third party procedure was applicable. It does not seem to me that such a case has any bearing 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 Hadley v. Baxendale. Lewis i>. Peake, 7 Taunt. 153,- is such a case, but I do not think such decisions are now of any use. It seems to me 114 CASES ON DAMAGES. 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 contract, and that the plaintiffs, actins: as reasonable men, would defend that action, and how- ever reasonable the incurring of the costs might be, yet those costs could not be recovered as damages, 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 argument to the language of the judgments in that case. I must confess 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 tliat 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 recovered, but it is not, as it seems to me, a decision that, where the costs were under all the circumstances reasonably incurred, the}' 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 appreciate what was decided and what was not in the case of Baxendale v. London, Chatham, and Dover Ry. Co., stipra. 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 decision ] and WELCH V. ANDERSON. 115 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 unnecessary, 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 o. Baxendale, or which prevents our applying 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 reason- able business view of the reasonably probable course of busi- ness, the parties may be supposed to have contemplated, at the time when the contract 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 sub- vendees, 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 plaintiffs 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. Baxendale. I therefore think that the plaintiffs were entitled to recover over from the defendant in respect of their costs, and that the decision of the learned judge below was right, and should be aflirmed. WELCH V. ANDERSON. Court of Appeal, 1891. 61 L. J. (x. s.) Q. B. 167. The defendants, shipping brokers, agreed with tlie plaintiffs to load for them on board the Hinemoa, a vessel of which the defendants were the charterers, then lying at a berth in the London docks, 100 tons of tiles, which were to arrive alongside the vessel in the Great Western Railway Company's trucks from Bridgwater. The tiles were to be at the docks ready to be loaded on or before the 16th of December, 1890. The plaintiffs thereupon caused the tiles to be brought from 116 CASES ON DAMAGES. Bridgwater to Poplar, the nearest station to the docks on the Great Western Railway Company's line, and entered into a special agreement with the dock company for haulage of the trucks into the docks, and placing the goods alongside the Hinemoa read^' to be loaded, at a rate of Ss. per ton. The trucks were accordingly hauled into the docks, and the goods were ready to be delivered by the time specified by the de- fendants, namely, the 16th of December. The defendants, however, were only able to load a small number of truck-loads of the goods on board the Hinemoa, and the remainder of the goods had to be loaded upon another vessel of the defendants. In consequence of the delay in loading the goods the railwa}' trucks were detained for a considerable time at the docks, and the plaintiffs were obliged to pay the railway company £42 for demurrage. It appeared from the table of rates of the London docks that the rate for " wharfage and porterage " of " tiles " coming by rail was Ss. 9d. per ton, and from the memorandum prefixed to the table, that this included also warehouse rent for three weeks, but there did not appear to be any instance of a shipment of tiles in accordance with this rate. The whole of the goods were loaded on the second vessel within three weeks from the 16th of December. The plaintiffs claimed, amongst other items of damage, to recover from the defendants the £42 (which was admitted to be a reasonable amount) paid to the railwa3' company. At the trial Lord Coleridge, C.J., left it to the jury to say whether the demurrage was the reasonable and normal consequence of the defendants' breach of contract. The jury found a verdict for the plaintiffs, and judgment was given according]}'. The defendants appealed. Lord Esher, M.R. I am of opinion that this appeal must be dismissed, and that the judgment entered for the plaintiffs must stand. The argument put forward on behalf of the defendants is, as it seems to, me, an attempt to invent a doc- trine which is not the doctrine laid down in Hadle}' v. Baxen- dale ; or, rather, is an attempt to invert the application of the rule there laid down. In the present case the contract WELCH V. ANDERSON. 117 entered into by the defendants was to have their ship ready to load b}' the 16th of December, on which day the plaintiffs were to have their goods alongside read}- to put on board. That contract the defendants broke ; the ship was at the l)erth, but was not ready to load, whereas it was the duty of the defend- ants to have their ship in such a condition that, if the tiles were brought alongside, the loading might proceed. That being so, the only question to be determined is, what is the proper rule as to the measure of damages? It seems to me that here the demurrage of the trucks by which the tiles were brought along- side the ship was the natural, reasonable, and ordinary conse- quence of the defendants' breach of contract. A shipowner must know that such goods as tiles cannot reasonably and in ordinary business be brought alongside his ship to be loaded except in vehicles, b}- which I mean, in barges, or in railway trucks, or carts. Physicall}', of course, they might be brought on men's shoulders, but that is not the ordinary business wa}'. Now if, instead of being brought alongside b}' land, the tiles had in the present case been brought in barges, and the ship had not been ready to take them on board, the shipowner must have known that demurrage would have to be paid on the barges. If the goods had been brought in carts, it seems to me that it would equally' be the ordinar}- and natural result of the ship not being ready to load them that the goods would have to be kept in the carts. Why should they be taken out of the carts and placed on the quay? The natural result would be that the carts would be detained. It would, of course, be exactly the same if the goods came b}- railwa3\ It seems to me, therefore, in this case that the ordinary and natural re- sult of a breach of the contract entered into by the defendants would be that the trucks in which the goods to be loaded were brought alongside would be detained, and that the shippers would have to pay. If that would be the natural and ordi- nary result of the defendants' breach of contract, we have nothing to do with the second part of the rule in Iladley v. Baxendale, which applies only where the damages are not the natural and ordinary result, in which case they arc, according 118 CASES ON DAMAGES. to Hadley v. Baxendale, not recoverable unless the party seeking to recover them can show that the}- may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made as the probable result of the breach of it — that part of the rule is, as I have said, not brought into \>\a,y if the damages sought to be recovered are damages which are the natural and ordinary result of the breach of contract, and therefore does not apply to the pres- ent case, where those are the onl}- damages which the plain- tiffs are claiming. The natural result of the defendants' breach of their contract was that the plaintiffs had to pay demurrage, and that is the damages the}' now ask for. But the defendants contend that in the present case there is a peculiar state of things which alters the ordinary rule. " If," say they, "you, the plaintiffs, had paid the usual rate charged by the dock company, you could have put the goods in sheds and kept them there for three weeks free of charge, and if that had been done you would have had no demurrage to pay, and would have suffered no damage ; if you had fol- lowed the ordinary course of business, you would have paid that rate, and though we do not say that j'ou were bound, to follow that course, still, if j'ou intended to go out of that ordinary course of business, yon ought to have given us notice of the fact." That contention appears to me to be an attempt to apply, not as against a plaintiff who is claiming damages greater than those which would be the natural result of a breach of contract, but as against a plaintiff who is claiming onh' such damages as are the natural result of the defendants' breach of contract, a kind of rule like the second part of the rule in Hadley v. Baxendale. I meet the contention at once by saying that the defendants had no right to suppose that the plaintiffs would carry on their business in any particular way. The plaintiffs had a right to have their goods carried alongside the ship and kept there in any reasonable wa}- they might think fit, and the defendants had no right to expect that the}' would do so in any particular way ; and, therefore, have no right to say that if the plaintiffs did not arrange to McHOSE V. FULMER, 119 have their goods brought alongside in the accustomed way, the}' were bound to inform the defendants. In mj- opinion, tlie Lord Chief Justice might have ruled that this was an undefended action, and that the onlj- question for the jury was as to the amount of the damages. The defendants certain!}' cannot complain because, instead of doing that, he left the whole matter to the jur}'. For the reasons I have given, I think that the judgment must stand, and that the appeal must be dismissed. [McHOSE V. FULMER. Pennsylvania, 1873. 73 Pa. 365. Sharswood, J.^ When a vendor fails to comply with his contract, the general rule for the measure of damages un- doubtedly 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 mar- ket and obtain the article contracted for at that price. But when the circumstances of the case are such that the vendee cannot thus supply himself, the rule does not apply, for the reason of it ceases : Bank of Montgomery v. Reese, 2 Casey, 143. " 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 procured in the market, its market price cannot be ascertained, and we are without the necessary data for the application of the general rule. This is a con- 1 In this case tlie defendant was sued on a note given in payment for iron: he set up a defence (by way of recoupment) that part of the iron called for by his contract with plaintiff had not been delivered, and that "bj' the neglect and refusal of plaintiffs to furnish said iron, defendants were obliged to get an inferior quahty of iron than that which plain- tiffs were to furnish, in order to carry on the business of said mill, and being inferior they lost the contract with the parties witli whom they had contracted for the sale and delivery of iron." 120 CASES ON DAMAGES. tingency 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 having to use au inferior article or not receiving the advance on his contract price upon any contracts which he had himself made in reli- ance upon the fulfilment of the contract by the vendor. We do not mean to say, that if he undertakes to fill his own con- tracts 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 extraordinary loss incurred b}' his attempting what was clearlj' an unwarrantable experiment. His legitimate loss is the difference between the contract price he was to pay to his vendor and the price he was to receive. This is a loss which springs directly from the non-fulfilment of the contract. The affidavits of defence are not as full and precise upon this point as tlie}' might and ought to have been, but they state that the defendants below had entered into such contracts, and that they were unable to get the same quality of iron which the plaintiff had agreed to deliver, and this, we think, was enough to have carried the case to a jury. Judgment reversed, and a procedendo awarded. CASE V. STEVENS. Massachusetts, 1884. 137 Mass. 551. W. Allen, J. This is an action of tort for a breach of a warranty that a horse sold by the defendants to the plaintiff was kind. It is alleged that the defendants knew that the warranty was false. The onl}- damage alleged is for the breaking of the plaintiff's wagon and harness in consequence of the unkindness of the horse ; and the plaintiff claimed no other damages in the court below. The court ruled that such damages could not be recovered upon the facts alleged ; and the only question is upon the correctness of that ruling. MATHER V. AMERICAN EXPRESS CO. 121 The ruling was correct. The warranty related only to the value of the horse, and there is nothing in the declaration to show that it was given or received in view of anything else. The only damage in consequence of the breach of it, which is brought within the contemplation of the parties, is the diminu- tion in value of the property warranted. The declaration contains no allegations which bring it within the principle of Allen y. Truesdell, 135 Mass. 75, and other cases of false representations or warranties of fitness for particular uses contemplated by the parties. Exceptions overruled. MATHER V. AMERICAN EXPRESS CO. Massachusetts, 18S4. 138 Mass. 55. Contract for the loss of a package containing a part of a set of plans for a house, delivered by the plaintiff to the defendant for transportation from Northampton to Boston.^ Field, J. It is not denied that the defendant is liable in damages for the reasonable cost of the new plans, and for other expenses, if there were any reasonabh' incurred in procuring the new plans ; but it is denied that the defendant is liable in damages for the delay in construct- ing the house occasioned by the loss of the plans. It is assumed that the plans had no market value, and were onl}' useful to the plaintiff. The rule of damages, then, is their value to the plaintiff. As new plans could not be bought in the market ready made, some time necessaril}' must be con- sumed in making them, and the plaintiff contends that the value of the plans for immediate use, or for use at the time he would have received them from Boston, if the defendant had duly performed its contract, is their value to him, and that this value is made up of the cost of procuring the new plans and the damages occasioned by the deUu'. Whatever he calls 1 The statement of facts is omitted. 122 CASES ON DAMAGES. it, it is damages for the dela}- in constructing the house caused b}- the loss of the original plans that he seeks to recover. It does not appear that the defendant had notice of the contents of the package at the time it was delivered for transportation, or any notice or knowledge that the plain- tiff needed the plans for the construction of a house which he had begun to build. The damages caused by the dela}^ are not such as usuallj' and naturally' arise solel}' from a breach of the contract of the defendant to carr}' the package safely to its destination, nor were they within the reasonable contem- plation of both parties to this contract, as likely to arise from such a breach. The fact that the plans had a special value to the plaintiff, and could not be purchased, does not touch the question of including in the damages the injury to the plaintiff occasioned by reason of other contracts which he had made, and of work which he had undertaken in expectation of having the plans for use immediately', or after the usual delay involved in sending the plans to Boston, and in having them traced and returned to him. Damages for such injury' are not given unless the circumstances are such as to show that the defendant ought fairly to be held to have assumed a lia- bilit}' therefor when it made the contract. We think that Hadle}' v. Baxendale, 9 Exch. 341, which has been cited with approval bj' this court, governs this case. The case of Green v. Boston & Lowell Railroad, 128 Mass. 221, on which the plaintiff relies, was an action to recover the value of an " oil painting, the portrait of the plaintiff's father," The opinion attempts to laj' down a rule for deter- mining the value of such a painting, when the plaintiff had no other poilrait of his father, and when, so far as appears, it had no market value ; but the opinion does not discuss any question of damages not involved in determining the value of the portrait to the plaintiff. The plaintiff in that case made no claim for damages occasioned by a loss of a profitable use of the portrait. £Jxceptions sustained. LYNN GAS & ELECTRIC CO. v. MERIDEN F. INS. CO. 123 LYNN GAS AND ELECTRIC CO. v. MERIDEN FIRE INSURANCE CO. Massachusetts, 1893. 158 Mass. 570. Contract against several insurance companies upon con- current policies of the Massachusetts standard form, insuring the building and machinery of the plaintiff against loss or damage by fire.^ Knowlton, J. The only exception relied on by the defend- ants in these cases is that relating to the claim for damage to the machinery used in generating electricity and to the build- ing from a disruption of the machinery. This machinery was in a part of the building remote from the fire, and none of it was burned. In his charge to the jury the judge stated the theory of the plaintiff as follows: "The plaintiff says the position of the lightning arresters in the vicinity of the fire was such that by reason of the fire in the tower a connection was made between them called a short circuit ; that the short circuit resulted in keeping back or in bringing into the dynamo below an increase of electric current that made it more difficult for this armature to revolve than before, and caused a higher power to be exerted upon it, or at least caused greater resist- ance to the machinery ; that this resistance was transmitted to the pulley by which this armature was run, through the belt ; that that shock destroyed that pulley ; that by the destruction of that pulley the main shaft was disturbed, and the succeeding pulleys up to the jack-pulley were ruptured ; that by reason of pieces fl3ing from the jack-pulle^', or from some other cause, the fly-wheel of the engine was destroyed, the governor broken, and everything crushed ; — in a word, that the short circuit in the tower by reason of the fire caused an extra strain upon the belt through the action of electricit}-, and that caused the damage." The plaintiff contended that 1 The statement of facts is omitted. 124 CASES ON DAMAGES. the short circuit was produced by the fire, either by means of heat on the horns of the lightning arresters, or b}' a flame acting as a conductor between tlie two horns, or in some other way. The jurj- found that the plaintiffs theory of the cause of the damage was correct, and the question is whether the judge was right in ruling that an injury to the machinery caused in this way was a " loss or damage bj' fire," within the meaning of the policy. The subject matter of the insurance was the building, ma- chiner}', dynamos, and other electrical fixtures, besides tools, furniture, and supplies used in the business of furnishing elec- tricity for electric lighting. The defendants, when they made their contracts, understood that the building contained a large quantity of electrical machinery, and that electricity would be transmitted from the dynamos, and would be a powerful force in and about the building. The}' must be presumed to have contemplated such effects as fire might naturall}- produce in connection with machinery used in generating and transmitting strong currents of electricit3% The subject involves a consideration of the causes to which an effect should be ascribed when several conditions, agencies, or authors contribute to produce an effect. The defendants contend that the application of the principle which is ex- pressed by the maxim, Injure non reniota causa sed proxima spectatur, relieves them from liability in these cases. It has often been necessary to determine, in trials in court, what is to be deemed the responsible cause which furnishes a founda- tion for a claim when several agencies and conditions have a share in causing damage, and the best rule that can be formu- lated is often difficult of application. When it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause or agency which is nearest in time or place to the result is necessarily to be chosen. Freeman v. Mercantile Accident Association, 156 Mass. 351. The active eflScient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively' from a new and independent source LYNN GAS & ELECTRIC CO. v. MERIDEN F. INS. CO. 125 is the direct and proximate cause referred to in tlie cases. McDonald v. Snelling, l-i Allen, 290. Perle}' v Eastern Railroad, 98 Mass. 414, 419. Gibne}- v. State, 137 N. Y. 529. In Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469, 474, Mr. Justice Strong, who also wrote the opinions in Insurance Co. v. Transportation Co., 12 Wall. 194, and in Western Massachusetts Ins. Co. v. Transportation Co., 12 Wall. 201, which are much relied on by the defend- ants, used the following language in the opinion of the court : "The primary cause may be the proximate cause of a disaster, though it maj' operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft cited case of the squib thrown in the market-plac.e. 2 Bl. Rep. 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" If this were an action against one w-ho negligently set the fire in the tower, and thus caused the injury to the machiner}', it is clear, on the theory of the plaintiff that the negligent act of setting the fire would be deemed the active efficient cause of the disruption of the machinery' and the consequent injur}' to the building. It remains to inquire whether there is a different rule in an action on a policv of fire insurance. Under our statute creating a liability for damages received from defects in highways, it is held that the genenil rule is so far modified that there can be no recover}^ unless the defect is the sole cause of the accident ; but this doctrine rests on the construction of the statute. Tisdale i\ Norton, 8 Met. 388. Marble v. Worcester, 4 Gra}', 395. Jenks v. Wilbrahara, 11 Gray, 142. McDonald v. Snelling, 14 Allen, 290. Babson v. Rockport, 101 IMass. 93. In suits brought on policies of fire insurance, it is held that the intention of the defendants must have been to insure 126 CASES ON DAMAGES. against losses where the cause insured against was a means or agenc}^ in causing the loss, even though it was entirely due to some other active, efficient cause which made use of it, or set it in motion, if the original eflticient cause was not itself made a subject of separate insurance in the contract between the parties. For instance, where the negligent act of the insured, or of anybody else, causes a fire, and so causes damage, although the negligent act is the direct, proximate cause of the damage, through the fire, which was the passive agencj', the insurer is held liable for a loss caused by the fire. Johnson v. Berkshire Ins. Co., 4 Allen, 388. Walker v. Maitland, 5 B. & Aid. 171. Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213. Peters v. Warren Ins. Co., 14 Pet. 99. General Ins. Co. v. Sherwood, 14 How. 351. Insurance Co. V. Tweed, 7 Wall. 44. This is the only particular in which the rule in regard to remote and proximate causes is applied differently in actions on fire insurance poHcies from the applica- tion of it in other actions. A failure sometimes to recognize this rule as standing on independent grounds, and established to carry out the intention of the parties to contracts of insur- ance, has led to confusion of statement in some of the cases. The difficulty in applying the general rule in complicated cases has made the interpretation of some of the decisions doubtful ; but on principle, and by the weight of authority in many well- considered cases, we think it clear that, apart from the single exception above stated, the question, What is a cause which creates a liability ? is to be determined in the same way in actions on policies of fire insurance as in other actions. Scripture v. Lowell Ins. Co., 10 Cush. 356. New York & Boston Despatch Express Co. v. Traders & Mechanics' Ins. Co., 132 Mass. 377. St. John v. American Ins. Co., 1 Ker- nan, 516. General Ins. Co. v. Sherwood, 14 How. 351. Insurance Co. v. Tweed, 7 Wall. 44. Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 225. Livie v. Janson, 12 East, 648. lonides v. Universal Ins. Co., 14 C. B. (n. s.) 259. Transatlantic Ins. Co. v. Dorsey, 56 Md. 70. United Ins. Co. V. Foote, 22 Ohio St. 340. DENNY V. NEW YORK CENTRAL RAILROAD. 127 In the present case, the electricity was one of the forces of nature, — a passive agent working under natural laws, — whose existence was known when the insurance policies were issued. Upon the theory adopted by the jury, the fire worked through agencies in the building, the atmosphere, the metallic machinery, electricity, and other things ; and working precisely as the defendants would have expected it to work if they had thoroughly understood the situation and the laws applicable to the existing conditions, it put a great strain on the machinery and did great damage. No new cause acting from an independent source intervened. The fire was the direct and proximate cause of the damage according to the meaning of the words "direct and proximate cause," as interpreted by the best authorities. The instructions to the jury were full, clear, and correct, and the defendants' requests for instructions were rightly refused. Exceptions overruled. DENNY V. NEW YORK CENTRAL RAILROAD. Massachusetts, 1859. 13 Gray, 481. Merrick, J. This action is brought to recover compensa- tion 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 Syra- cuse, and consequently arrived at Alban}' so many days later than it should regularl}^ have been there. Whilst it was lying in the defendant's freight depot in that city, it 128 CASES ON DAMAGES. was submerged by a sudden and violent flood in the Hudson River. This rise of tlie water caused the alleged injury to the wool. Upon the evidence adduced by the parties at the trial, three 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 scrutin}' of the statements in the report, it appears that the jurj', 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 thereby 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 considered 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 DENNY V. NEW YORK CENTRAL RAILROAD. 129 negligence in the prompt and seasonable transportation of the wool, responsible for the injury which it sustained after it was safely deposited in their depot at Albany. And we think it is ver}^ plain that, upon the well-settled principles of law applicable to the subject, 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 responsible only for the proximate and not for the remote consequences of his actions. 2 Parsons on Con. 456. The rule is not limited to cases in which special damages arise ; but is applicable to every case in which damage results from a contract violated or an injurious act committed. 2 Greenl. Ev. § 256. 2 Parsons on Con. 457. And the liabilities of common carriers, like persons in other occupations and pur- suits, are regulated and governed by it. Story on Bailments, 586. Angell on Carriers, 201. Morrison v. Davis, 20 Penn. State R 171. In the last-named case, it is said that there is nothing in the policy of the law relating to common carriers, that calls for any different rule, as to consequential damages, to be applied to them. In that case ma}' be found not onl}' a clear and satisfactory statement 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 defend- ants, as common carriers upon the Pennsylvania Canal. It appeared that their canal boat, in which the plaintiff's goods were carried, was wrecked below Piper's Dam, b}' reason of an extraordinary flood ; that the boat started on its voyage with a lame horse, and b}- reason thereof great delay was occasioned in the transportation of the goods ; aiid 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 arrived in time and safet}" at its destination. The plaintiff insisted that, inasmuch as the negligence of the defendants in using a lame horse for the voyage occa- sioned the loss, they were therefore liable for it. But the court, assuming that the flood was the proximate cause of 9 130 CASES ON DAMAGES. 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 onl}^, in connection with other incidents, a cause of the final, direct, and proxi- mate cause by which the damages sought to be recovered were immediately' occasioned. 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 suflScient number of efficient working engines to transport the plaintiffs wool with the usual ordinary and reasonable speed. The con- sequence of this failure on their part 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 transportation 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 delivery 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. Connecticut River Railroad, 1 Gray, 502. The rise of waters in the Hudson, which did the mischief to the wool, occurred at a FOX V. BOSTON AND MAINE RAILROAD. 131 period subsequent to this, and consequently was the direct and proximate cause to which that mischief is to be attrib- uted. 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 bej'ond Syra- cuse, and cannot therefore subject them to responsibilit}' for an injury to the plaintiffs propert}', resulting from a subse- quent inevitable accident which was the proximate cause by which it was produced. It is to the latter only to which the loss sustained b}' 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 guilt}-. New trial ordered. FOX V. BOSTON & MAINE RAILROAD. Massachusetts, 1889. 148 Mass. 220. Contract to recover damages for the loss of a car-load of apples, with a count in tort alleged to be for the same cause of action. At the trial in the Superior Court, before Blodgett, J., a verdict was returned for the defendant, and the plaintiff alleged exceptions to a ruling of the presiding judge, which ruling, together with the material facts, appears in the opinion. Morton, C.J. The plaintiff offered to prove that on February 22, 1881, he made a special contract with the defendant, by the terms of which it was to transport a car- load of apples from Haverhill to Portland, and deliver it to the Maine Central Railroad, a connecting railroad, in time to be transported by the latter corporation to Bangor by a freight train which left Portland early in the morning of February 23 ; that the weather was mild on the 22d and 23d days of February, and that " the agreement with the defendant was made with reference to the mildness of the 132 CASES ON DAMAGES. weather, and the importance of having the apples delivered to the Maine Central Railroad at the agreed time ; " that the defendant negligently delayed to deliver the apples at the time agreed, and by reason of this negligence the}- " were caught in cold weather in course of transportation from Port- land to Bangor, arriving at the latter place in a frozen con- dition." The presiding judge ruled that, " if the market value of the apples when the}' reached Portland was only diminished in the respect that a liability of being frozen during the course of the transportation by the Maine Central Railroad was incurred or increased by reason of the negligent delay of the defendant in the transportation from Haverhill to Portland, the plaintiff cannot recover in this action for that diminution in market value." If we understand this ruling, its effect was to restrict the plaintiffs right to recover to the diminution in the market value of the apples at Portland caused by the delay, and to prevent his recovering anything for the damage to the apples b}' freezing in the transportation from Portland to Bangor. The general rule is, that where goods are delivered in the usual way to a carrier for transportation, and there is a negligent dela}' in delivering them, the measure of damage is the diminution in the market value of the goods between the time when they ought to have been delivered and the time when the}' were in fact delivered. Ingledew v. Northern Railroad, 7 Gray, 86. Cutting v. Grand Trunk Railway, 13 Allen, 381. Scott v. Boston & New Orleans Steamship Co., lOG Mass. 468. Harvey v. Connecticut & Passumpsic Rivers Railroad, 124 Mass. 421. These cases are put upon the ground that the duty of the carrier is the measure of his liability ; that his duty is to carry the goods to the end of his line, and that any future risks to which the goods may be exposed are not within the contemplation of the parties or the scope of their contract. But we think a different rule prevails where the par- ties make a special contract, which provides for certain risks to which the goods are exposed on the connecting line. Thus, in the case before us, the parties made a special FOX V. BOSTON AND MAINE RAILROAD. 133 contract, by which the defendant agreed to deliver the apples to the Maine Central Railroad by a fixed time, so that they would arrive in Bangor in the afternoon of February 23. Both parties knew that the apples were not to be sold in Portland, but were to be forwarded to Bangor, and the special contract was made for the purpose of avoiding the danger of the apples freezing on the connecting line. This risk was anticipated, and contemplated b}- the parties, and if the danger which it was intended to provide against was incurred by reason of the negligent failure of the defendant to perform its contract, it ought to be responsible in damages. The damages are not too remote. If the freezing had occurred on the defendant's line, it cannot be doubted that the law would regard the delay as the proximate cause of the damage ; it is none the less so, because it happened on a connecting line. The damage was not caused by any extraordinary event subsequently occurring, but was caused by an event which was, according to the common experience, naturally and reasonably to be expected, a change of temperature. The case is thus distinguished from the cases of Denny V. New York Central Railroad, 13 Gray, 481, and Hoadley V. Northern Transportation Co., 115 Mass. 304. In each of these cases, the loss to the plaintiff was caused by an extraor- dinary event, a fire and a freshet ; and the court held that the defendants, although guilty of negligent delay, were not re- sponsible, because the event was not one which would reason- ably be anticipated. In the case at bar, the event which caused the loss was contemplated by the parties when they made their contract as a probable consequence of the breach of it. The case before us is distinguishable from Ingledew v. Northern Railroad, 7 Gray, 86. In that case the opinion is based upon the ground, that it did not appear that " the defendants assumed any duty in relation to the delivery of the boxes to another carrier," or that they " were charged with any duty in forwarding the ink to Keene, or that the oflBcers of the defendant corporation knew of its destination beyond their own line." The facts of the two cases are 134 CASES ON DAMAGES. different, and for the reasons above stated we are of opinion that different rules of damages are to be applied in them, and that in the case at bar, upon the facts which he offered to prove, the plaintiff is entitled to recover the damage which he sustained by reason of the freezing of the apples between Portland and Bangor. Exceptions sustamed. HOBBS V. LONDON & SOUTHWESTERN RAILWAY Queen's Bench, 1875. L. R. 10 Q. B. 111. CoCKBURN, C.J. We are of opinion that this rule should be made absolute as regards the £20 damages given in respect of the consequences of the wife having caught cold in this walk from Esher to Hampton ; but that it should be dis- charged as regards the £8 in respect to the personal incon- venience suffered b}' 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 plaintiffs were taken on to Esher Sta- tion, which increased the distance which the}' 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 inconvenience that the husband and wife, with their two children, sustained by having to go this distance, the night happening 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 cold and being ill in health, the consequence of which was that some expense was incurred in medical attendance upon her. We think these two heads of damage must be kept distinct, and I propose to deal with them as distinct subjects. With regard to the first, there can be no doubt whatever upon the facts that the plaintiffs were put to personal incon- HOBBS V. LONDON & SOUTHWESTERN RAILWAY. 135 venience : the}- had to walk late at night, after twelve o'clock, a considerable 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 cVid their best to diminish the inconvenience to themselves hy 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 ; the}' were informed none was to be had ; and the}- had no alternative 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 conse- quence of the breach of the defendants' contract to convey them to Hampton Court. Now inasniuch as there was mani- fest 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 authorit}-, that this was a kind of damage which could not be supported ; and attempts were also made to satisf}' us that this supposed inconvenience was more or less imaginary, and would depend upon the strength and constitution of the parties, and various otlier circum- stances ; 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 inconvenience from ; and tliat there may be circum- stances under which a walk of several miles, so far from bcinor matter of inconvenience, would be just the contrary. All that depends on the actual facts of each individual case; and if the jury are satisfied tliat in the [)articular instance personal inconvenience or suffering has been occasioned, and tliat it has been occasioned as the immediate effect of the breach of the contract, I can see no 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 136 CASES ON DAMAGES. authoritj' 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, b}' not being able to get to a place which he would otherwise have arrived at in time to meet per- sons with whom he had appointments, had sustained pecuniary loss, that is too remote to be made the subject of damages ia 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 30U could assess that loss. And, after all, if the true principle be laid down 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, I think the verdict ought to stand. With regard to the second head of damage, the case assumes a very different aspect. I see very great difficulty indeed in coming to any other conclusion than that the £20 is not re- coverable ; and when we are asked to lay down 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 cases ; but I think that the nearest approach to HOBBS V. LONDON & SOUTHWESTERN RAILWAY. 137 anything like a fixed rule is this : Tliat to entitle a person to damages by reason of a breach of contract, the injury for which compensation is asked should be one that may be fairly taken to have been contemplated by the parties as the possible result of the breach of contract. Therefore you must have something immediatel}' flowing out of the breach of contract complained of, something immediately connected with it, and not merely connected with it through a series of causes inter- vening between the immediate consequence of the breach of contract and the damage or injury complained of. To illus- trate that I cannot take a better case than the one now before us : Suppose that a passenger is put out at a wrong station 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 under- stood the law, would say that the loss so occasioned is so con- nected with the breach of contract as that the carrier breaking the contract could be held liable. Here, I think, it cannot be said the catching 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 be reasonably within the contemplation of the parties ; because, if a carrier engages 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 down at the wrong place must get to the place of his destination somehow or other. If there are means of conveyance for getting there, he may take those means and make the compan}' responsible for the ex- pense ; 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 138 CASES ON DAMAGES. damage resulting must be admitted to be fair subject-matter of damages. But in this case the wife's cold and its conse- quences cannot stand upon the same footing as the personal ! inconvenience arising 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 pri- mar}' but the secondary consequence of it : and if in such a case the party recovered damages b}- reason of the cold caught incidentallj' on that foot journe}-, it would be necessary, on the principle so applied, to hold that in the 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 plaintiflf 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 speaking, 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 consequence 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 destina- tion, where by your contract you engaged 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 cases 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 improper place, and h.«iving to walk home, that he sliould sustain either personal injury or catch a cold. That cannot be said to be within the contem- HOBBS V. LONDON & SOUTHWESTERN RAILWAY. 139 plation 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 damages 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 sliould be made absolute to reduce the damages to £8 beyond the £2 paid into court, but should not be made abso- lute any further. The action is in realit}- upon a contract ; it is commonly said to be founded upon a dut}', but it is a duty arising out of a contract. It is a contract by which the rail- way company had undertaken to carry four persons to Hamp- ton Court, and in fact that contract was broken wlien they landed the passengers at Esher, instead of Hampton Court. The contract 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 liave to pay for, 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. . . . On the first head of damages in this case, 1 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 the}' are not, because they are too remote. On the principle of what is too remote, 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 remote- ness, it has been left in very great vagueness as to what con- stitutes the limitation ; and therefore I agree with what my Lord has said to-day, thatj-ou make it a little more definite by saying such damages are recoverable as a man when making 1 Part of this opinion, and the concurring opinions of Mellor and AsCHiBALD, JJ., are omitted. 140 CASES ON DAMAGES. the contract would contemplate would flow from a breach of it. For m}' 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 can- not 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 con- tract 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 contract ; 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 plain- tiff to his destination, but left him at Esher. To illustrate this, — Suppose you expand the declaration, and say: You, the. defendants, contracted to carry me safely to Hampton Court, you negligently upset the carriage and dashed me on the ground, whereby I became ill and sick. That is a clear and immediate consequence. The other case is : You con- tracted 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 breaking 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 McMAHON V. FIELD. 141 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 sa}- 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 higldy dangerous if it was to be left generally to the jury to say whether the damage was too remote or not. I tliink, therefore, the rule ought to be made absolute to reduce the damages to the £8 beyond the £2. Jiule accordingly. McMAHON V. FIELD. Court of Appeal, 1881. 7 Q. B. Div. 591. Brett, L.J. The question as to the remoteness of damage has become a difficult one since, according to the case of Hadley v. Baxendale, 9 Ex. 341 ; 23 L. J. (Ex.) 179, it is for the j20urt and not the Jury to determine whether the case comes within any of the following rules, namely, first, whether the damage is the necessary consequence of the breach ; secondl3', whether it is the probable consequence ; and thirdly, whether it was in the contemplation of the parties when the contract was made. Those two last are rather questions of fact for a jury, than of law for the court, to determine. Now, the question in this case is whether the fact of some of these horses taking cold is within any of those three rules. It was not the neces- sary consequence of the breach of contract, but I have no doubt that it was the probable consequence, and if so, it follows that it was in the contemplation of the parties within the meaning of the third rule. It is necessary to consider the facts of this case. The jury have found that the cold which the horses took was the result of the breach of con- tract, and we are asked to say that such a finding was unreasonable, and that the question was one whicli ought never to have been left to them. The plaintiff had to l)ring 142 CASES ON DAMAGES. a number of horses from Ireland to the Rugeley fair, and he had engaged of the defendant stabling for twelve horses. It was the defendant who had afterwards let to some one else the stables which the plaintiff had taken, and who when the plaintiff's horses arrived turned out the horses of that other person and put the plaintiff's horses in. The result of that was what might have been expected; when the oUier person returned and found his horses had been removed, lie caused the plaintiff's horses, nine in number, to be turned out, and in effecting this he had the assistance of one of the defendant's servants. It was then the fair time, and it was next to impossible to find at once stabling elsewhere for nine horses, so that these horses which had just arrived from a railway journey, and were therefore probably feverish, and had been put long enough into stables to have had their clothes removed, were thus put out and exposed to the weather. That is a thing which nobody would do to horses who understood anything about them, as the probability is that they would catch cold. If such a question could be left to a jury, they would find, as this jury did, that it was the probable consequence of such an act as this. Then it is said that the case is governed by that of Hobbs v. London and South Western Ry. Co., Law Rep. 10 Q. B. IIL Now, I must confess that if I acquiesce in that case I cannot quite agree with it. What were the facts there ? A man with his wife and children took a ticket by the train to Hampton Court, his residence being between two and three miles from Hampton Court. The train did not go to Hampton Court, but took them to Esher Station, where they were turned out at about 12 o'clock on a wet night, and, being unable to get any con- veyance or accommodation at an inn, were obliged to walk about six miles to their home. The wife in consequence of the exposure caught a cold, and it was said that such dam- age was too remote to be recovered. Whj^ was it too remote ? There was no accommodation or conveyance to be obtained at Esher at that time of night, so that it was not only reasonable that they should walk, but they were obliged MURDOCK V. BOSTON AND ALBANY RAILROAD. 143 to do so. Why was it that which happened was not the natural consequence of the breach of contract ? Suppose a man let lodgings to a woman, and then turned her out in the middle of the night with only her nightclothes on, would it not be a natural consequence that she would take a cold? Had Esher Station been a large one, and there had been flj-s which might have been had, or accommodation at an inn, and the passengers had refused such and elected to walk home, I should have thought then that what happened arose from their own fault, but that was not so ; yet, nevertheless, the judges who decided Hobbs v. London and South Western Ry. Co. decided, as a matter of fact, that the cold was so improbable a consequence that it was not to be left to the jury whether it was occasioned by the breach of contract. It is not, however, necessary for me to say more than that I am not contented with it, for there is a difference between such a case and the present one. People do get out of a train and walk home at night without catching cold, and it is not nearly so inevitable a consequence that a person getting out of a train under such circumstances as in Hobbs v. London and South Western Ry. Co. should catch cold, as that horses turned out, as these were in this case, should suffer. There is, therefore, a difference, though I own I do not see much, between this case and that of Hobbs v. London and South Western Ry. Co. This appeal ought, I think, to be allowed, and it must be considered that in so deciding we are not deciding contrary to the opinion of Mr. Justice Fry, who thought that the plaintiff ought to be allowed to recover this damage. Appeal allowed} MURDOCK V. BOSTON AND ALBANY RAILROAD. Massachusetts, 1882. 133 Mass. 15. Morton, C.J. This is an action of contract to recover damages for a breach of the defendant's contract to carry the 1 Bbamwell and Cotton, L.JJ., delivered concurring opinions. 144 CASES ON DAMAGES. plaintiff as a passenger on its railroad from Springfield to North Adams. It appeared at the trial that the plaintiff bought a ticket at Springfield, which entitled him to be carried to North Adams ; that the defendant's conductor refused to receive the ticket, and, when the train arrived at Pittsfield, the conductor, who was a railroad police officer, arrested the plaintiff for evading his fare, and delivered him into the custody of two police officers of Pittsfield, who detained him during the night in the place of detention provided for arrested persons. The learned justice who presided in the Superior Court ruled that the plaintiff was entitled to recover damages for this arrest and imprisonment, for indignities which the plaintiff contended that he suffered at the hands of the Pittsfield police officers, for his mental suffering, and for sickness produced by a cold caught while confined. The distinction between the rules of damages applicable in actions of contract and of tort appears to have been over- looked at the trial. Without inquiring whether all the ele- ments of damage admitted by the court would be competent, if this had been an action of tort for an assault and false imprisonment, we are of opinion that too broad a rule was adopted in this case. Damages for a breach of a contract are limited to such as are the natural and pi-oximate conse- quences of the breach, such as may fairly be supposed to enter into the contemplation of the parties when they made the contract, and such as might naturally be expected to result from its violation. The detention of the plaintiff during the night, his discomforts in the place of detention, the cold which he took by reason of the dampness of tlie cell, and the indignities he suffered from the police officers of Pittsfield, were not the immediate consequences of the breach of the defendant's contract to carry the plaintiff to North Adams. They were the results of intervening causes, not the primary, but the secondary, effects of the breach of contract ; and are too remote to come within the rule of damages applicable in an action of contract. Hobbs v. BKOWN V, CHICAGO, MILWAUKEE & ST. P. RAILWAY. 145 London & Southwestern Railway, L. R. 10 Q. B. 111. The plaintiff's remedy for these wrongs, if proved, is by an action of tort. The defendant was not required to be ready to meet and contest these questions under a declaration alleging a breach of a contract to carry the plaintiff to North Adams. JSxceptions siistainecC. B. M. Morse, Jr., for the plaintiff, was first called upon. G. S. Hale & C. F. Walcott, for the defendant, were not called upon. BROWN V. CHICAGO, MILWAUKEE, AND ST. PAUL RAILWAY. 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 carelessly directing the plaintiffs to leave the cars before they reached their destination.^ % 1 Part of the opinion is omitted. 2 Counsel for defendant lias discussed at some length the question whether this is an action ex contractu or an action ex delicto. Inasmuch as the conductor did nothing but what he would have had a right to do had plaintiff had no right to ride on the ticket, it is evident that plaintiff could not have maintained the action at all without pleading and proving his contract with the defendant, and its breach eitlier by malfeasance or non-feasance. In other words, an action could not have been maintained for a tort simply without reference to the contract between the parties. In that sense it is an action arising on a contract. But it is not an action on the contract, properly so called. The gist or gravamen of it is a tor- tious act, which constituted a breach of the contract. It is what is some- times called " an action for tort founded on contract " or " an action ex quasi contractu." In considering the measure of damages and the ele- ments of damage proper to be considered, the courts in this country have almost universally treated such actions as sounding in tort, and have held that the passenger who was wrongfully ejected from the train could 10 146 CASES ON DAMAGES. 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 Mauston, being told at the time tliat it was Maustou, 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 standing 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. The}' 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 thej- were at a place two miles east, where the train sometimes stopped, but where there was no station-house. The}' 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. Thej' went on to Mauston, and arrived there late at night, Mrs. Brown recover all damages sustained by him, as the direct and natural conse- quence of the wrongful act, such as the indignity of being ejected and injury to the healtli through exposure to the weather. This is the rule recognized and adopted by this court in Carsten i\ Railroad Co , 44 Minn. 454, 47 N. W. Rep. 49, and Hoffman v. Same, 45 Minn. 53, 47 N. W. Rep. 312. The leading case in England on the subject is tlie Hobbs Case, L. R. 10 Q. B. Ill, which, however, was disapproved in McMahon V. Field. 7 Q. B. Div. 5P1. While the authority of that case has been generally acknowledged, at least nominally, in this country, yet, as Mr. Sedgwick in his work on Damages (section 868) remarks, the practical effect of it has been virtually neutralized in most jurisdictions by hold- ing, as already stated, that actions like the present sound in tort. But it seems to us that very often a great deal of time and learning has been unnecessarily expended in discussing the exact nature of such an action. The important question, after all, is whether the injury was the direct and proximate, or only the remote, consequence of the wrongful expul- sion. — Mitchell, J., in Serwe v. Northern Pacific Railroad, 48 Minn. 78, 81 (1892). BROWN V. CHICAGO, MILWAUKEE & ST. P. RAILWAY. 147 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 flowing. The pains and flowing continued until some time in December, when a miscarriage took place, after which inflam- mation set in, and for some time she was so sick that she was in imminent danger of dying. The plaintiffs claim that the miscarriage and subsequent sickness were all caused by the walk Mrs. Brown was compelled to take to get from the place where the}' were left by the train to Mauston. The important question in the case is, whether the appellant is liable for the injury to Mrs. Brown, admitting that it was caused by her walk to Mauston. 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 certainl}- some evidence to sustain this finding of the jur}', and their finding is therefore conclusive upon this point. Admitting that the walk caused the miscarriage and sickness of the plaintiff Mrs. Brown, it is insisted by the learned counsel for the appellant, that the ap- pellant is not liable for such injur}' ; that it is too remote to be the subject of an action ; that the negligence and carelessness of the defendant's employees in putting the plaintiffs off the cars at the place they did, was not the proximate cause of the miscarriage and sickness, and for that reason the appel- lant compan}' is not liable therefor. . . . The rules which limit the damages in actions of tort, so far as any general rules can be established, are in man}- 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. . . . One who commits a trespass or other wrong is liable for all the damage which legitimately flows directly from such trespass or wrong, whether such damages might have been foreseen by the wrong-doer or not. 148 CASES ON DAMAGES. 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 juiy might not properly find it obviously probable that injury in some form would be caused to those who were at work on the fender by the act of the defendants in running against it. This constitutes negligence, and it is not neces- sarj' that the injur}', 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, 2 Sawy. 21, Judge Hoffman, speaking of the rule in relation to damages on a breach of contract, as contrasted with the rule in case of wrongs, 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 conse- quential upon a breach made under those circumstances will be deemed to have been contemplated by the parties, and may be recovered by the defendant. But this rule, as Mr. Sedg- wick remarks, has no application to torts. He who commits a trespass must be held to contemplate all the damage which may legitimately flow from his illegal act, whether he may have foreseen them or not ; and so far as it is plainly trace- able, 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 part}- 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 injur}', and deal a blow which in ninety-nine cases in a hundred would result in a trifling in- jury, and yet by accident produce a very grave one to the person receiving 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 pro- BROWN V. CHICAGO, MILWAUKEE & ST. P. RAILWAY. 149 duce the injury complained 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 unlawful, the defendant was liable to answer for the conse- quences, be the injury mediate or immediate ; " and in this view of the case all the judges agreed, although they differed upon the question as to the form of the action. In the case at bar, the question to be determined is, whether, the negligent act of the defendant's 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 cause for which no action lies. We must, in considering: this case, take it for granted that the walk fi-om the place where they left the cars to Mauston was the immediate cause of the injury complained of. We think the question 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 part. They found themselves placed by the wrongful act of the defendant whore it became necessary for their protection to make the journe}^ 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 could not see it, and the jury have found that under the cir- cumstances the}' were not guilt}' of negligence in not finding it. Tlie defendant must therefore be held to have caused the plaintiffs 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 conse- quences of the journey. Had the defendant wrongfully placed the plaintiffs off the train in the open country, where there was 160 CASES ON DAMAGES. no shelter, in a cold and storm}- night, and, on account of the state of health of the parties, in their attempts to find shelter the}' 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. Brown, and is equall}' responsible for •the consequences of the walk as though its employees had full knowledge of that fact. This court expressly so held in the case of Stewart v. Ripon, 38 Wis. 591, and substantially iu 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 a 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 the}' 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 defendant's wrongful 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 injury 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 injury, 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 im- mediate result of a wrongful act, or results from the act of the party in endeavoring to escape from the immediate clanger. BROWN V. CHICAGO, MILWAUKEE & ST. P. RAILWAY. 151 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 hav- ing acted negligently, it was held that he could recover ; it being shown that the coach was driven negligently at the time, which negligence produced the appearance of danger. Jones V. Boyce, 1 Stark. 493. The ground of the decision is very aptly and briefly stated by Lord EUenborough 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 defendant, 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 directly to the defendant's negligence as its cause ; and it is its proximate cause, within the rules of law upon that subject. The true meaning of the maxim, causa proxima non remota spectatur, is probably as well defined by the late Chief Justice Dixon in the case of Kellogg 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 j^ considered the true cause, unless some other cause not inci- dent to it, but independent of it, is shown to have intervened between it and the result." . . . There is, I think, but one case cited by the learned counsel 152 CASES ON DAMAGES. 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. Town of La Valle, supra. This decision is, it seems to me, supported by the principles of neither law nor humanity. It in etfect sa3's that, if an individual unlawfully compels a sick and enfeebled per- son to expose himself to the cold and storm to escape worse consequences from his wrongful act, he cannot recover dam- ages from the wrong-doer, because it was his sick and enfeebled condition which rendered his exposure injurious. Certainly such a doctrine does not commend itself to those kinder feel- ings which are common to humanity, and I know of no other- case which sustains its conclusions. Judgment affirmed. Cole, C.J., and Lyon, J., dissent. SQUIRE V. WESTERN UNION TELEGRAPH CO. Massachusetts, 1867. 98 Mass. 232. Tort for neglect to deliver a telegraphic message seasonably. At the trial in the Superior Court these facts appeared : The defendants were a corporation established under the laws of New York, having a line of electric telegraph to Buffalo from Albany, where it connected witli a line of the American Tele- graph Company (a distinct corporation), which ran from Albany to Boston. The plaintiffs were pork dealers at Bos- ton. On March 19, 1866, the firm of Metcalf & Cushing, pork dealers at Buffalo, having on hand two hundred and fifty dressed hogs, wrote to the plaintiffs by mail, offering to sell the lot, and asking them to reply by telegraph how much they would give for it. The plaintiffs replied by telegraph on Saturday, March 24, naming a price which they would pay SQUIRE V. WESTERN UNION TELEGRAPH CO. 153 for the lot delivered at Boston. Metcalf & Gushing answered bj telegraph, declining to sell for that, but nauiing another price which they would accept for the lot delivered in the cars at Buffalo. Upon receiving this offer, the plaintiffs prepared a reply as follows : " Will take your hogs at your offer ; our man will be there Tuesday morning." . . . This reply, addressed to " Metcalf & Gushing, Buffalo, N.Y.," and dated "Boston, March 24, 1866," the plaintiffs delivered at the office of the American Telegraph Gompany in Boston, about half past six o'clock on Saturday evening, for transmission as an unre- peated message not specially insured ; and at the same time they paid to the American Telegraph Gompany the price for sending it the whole way to Buffalo. That company immedi- ately transmitted the body of the message (not including the printed terms) to the defendants' office in Albany ; and the defendants sent it from Albany to their office in Buffalo, ■where it arrived about nine o'clock Saturday evening. The defendants' ofl!ice hours at Buffalo, for receiving and deliver- ing messages, were from eight o'clock in the morning till ten o'clock in the evening. The residences and place of business of the members of the firm of Metcalf & Gushing were all within ten minutes' walk from that office ; and the defendants' agent at Buffalo was acquainted with them. But, througli his negligence, the message was not delivered on the evening of its arrival, and was kept in the office during Sunday and until Monday morning, when it was delivered to Metcalf & Gush- ing at twenty minutes past eleven o'clock. Until eleven o'clock Metcalf & Gushing had been willing and able to close the bargain with the plaintiffs ; but at that hour, not having received from the plaintiffs any reply, they sold and delivered the hogs to another party.^ BiGELOW, G.J. A party who has failed to fulfil a contract cannot be held liable for remote, contingent, and uncertain consequences, or for speculative or possible results which may have ensued on his breach of duty, although they may be traceable to that cause. The reason is, tliat damages of such 1 Part of the statement of facts and of the opinion are omitted- 154 CASES ON DAMAGES. a nature are not the natural or necessary incidents of a con- tract, and cannot be deemed to have been within the contem- plation of parties when they agreed together. A rule of damages which should embrace within its scope all the conse- quences which might be shown to have resulted from a failure or omission to perform a stipulated dut}' or service would be a serious hindrance to the operations of commerce and to the transaction of the common business of life. The effect would often be to impose a liability wholly disproportionate to the nature of the act or service which a party had bound himself to perform and to the compensation paid and received therefor. The practical rule, founded on a wise policy, and at the same time consistent with good sense and sound equity, is that a party can be held liable for breach of a contract only for such damages as are the natural or necessary, and the immediate and direct results of the breach, — such as might properly be deemed to have been in contemplation of the parties when the contract was entered into, — and that all remote, speculative, and uncertain results, as well as possible profits and advantages and other like consequences which might have arisen from the fulfilment of the contract must be excluded, as forming no just or legitimate basis on which to determine the extent of the injury actually caused by a breach. Fox V. Harding, 7 Cush. 516. Cutting v. Grand Trunk Rail- way Co., 13 Allen, 381-384, and cases cited. In the latter case it was held that a carrier who had negligently delayed to transport and deliver goods intrusted to him, was liable in damages for the difference in their value at the time when and place where they ought to have been delivered, and their market value at the same place on the day when they were delivered. This was held to be the measure of damages, be- cause such a change in value was the direct result of the delay in performing the contract, and might well be supposed to have been in contemplation of the parties when the con- tract was made. We can see no reason why an analogous rule is not applicable to the case before us. The defendants as a contracting party are liable for the injury actually caused SQUIRE V. WESTERN UNION TELEGRAPH CO. 155 by their breach of dut}'. There is nothing in the nature of the business, which the}' undertake to carrj' on, that should exempt them from making compensation for an^- neglect or default on their part. Ellis v. American Telegraph Co., 13 Allen, 226. The only question then is as to the effect of the application of the general rule of damages already stated to the contract between the parties. This necessarily depends on the subject-matter. The defendants undertook to trans- mit a message which on its face purported to be an acceptance of an offer for the sale of merchandise. The agreement was to transmit and deliver it with reasonable diligence and de- spatch, having reference to the ordinary mode of performing similar service by persons engaged in the same business. The natural consequence of a failure to fulfil the contract was that the party to whom the message was addressed, not receiving a reply to his offer to sell the merchandise in due season, would dispose of it to another person ; that the plain- tiff might be unable to procure an article of like kind and qualit}' at the same price, and in order to obtain it would be obliged to paj' a higher price for it in the market than he would have paid if the prior contract for its purchase had been completed by the seasonable delivery of his message b}^ the defendants. The sum therefore which would compensate the plaintiffs for the loss and injur}' sustained by them would be the difference, if an}', in the price which they agreed to pay for the merchandise by the message which the defendants undertook to transmit, if it had been duly and seasonably delivered in fulfilment of their contract, and the sum which the plaintiffs would have been compelled to pay at the same place in order by the use of due diligence to have purchased the like quantity and quality of the same species of merchan- dise. The case must be tried anew, and if it is found that the defendants did not fulfil their contract, the damages must be assessed according to the rule above stated. Exceptions sustained. 156 CASES ON DAMAGES. WESTERN UNION TELEGRAPH CO. v. HYER. Florida, 1886. 22 Fla. 637. The appellees, ship-brokers, residing in Pensacola, having been engaged by a customer to charter a vessel to cany a cargo of lumber from Pensacola to the United Kingdom, sent a telegram to their correspondent in Barbadoes, making an offer for the charter of a vessel. The offer was accepted, and a telegram sent appellees, which was received at the defend- ant company's office in Pensacola the next day, but which was never delivered to appellees. Their correspondent in Barbadoes, as their agent, signed the usual charter-party for appellees. Not receiving an answer to their despatch, they told their customer that they had failed to charter the vessel, whereupon he chartered another. Two weeks after- wards the vessel came to Pensacola, as per the charter-party signed by their agent in Barbadoes. The}' were compelled to recharter it at a loss. All the despatches were in cipher.* McWhorter, C.J.^ The courts in New York, Minnesota, Maryland, Wisconsin, Massachusetts, Nevada, and Maine, following the case of Hadley v. Baxendale, hold that only nominal damages can be recovered from the company under- taking to send the telegram, unless the sender should inform the operator of the special circumstances which constituted its importance, and the need of its correct and prompt transmis- sion. . . . The decision in Hadlej' v. Baxendale was proper and suited to the facts before the court, but an attempt to extend it to such cases as this would be productive of great in- justice. The telegraphic invention has made the system the means of communication between all civilized countries on the globe for a large part of the transactions and communica- tion that prior to its invention were conducted by writing or 1 This statement of facts, excepting the last clause, is taken from the gyllabus prepared by the court. ■"* Part of the opinion is omitted. WESTERN UNION TELEGRAPH CO. v. HYER. 157 by special messenger. No man can enumerate the vast num* ber of subjects of treaty and intercourse tliat tlie complicated relations of mankind require its agency to accomplisli. It can safely be said, however, that the larger part of all messages sent are of a commercial or business nature which suo;y;est value. The requirements of friendship or pleasure can await other means of less celerity and less expense. If this be true, why should the law assume that as a rule all messages sent over it are unimportant, and that an important one is an ex- ception, of which the operator is to be informed? Whatever may be the rules of this particular defendant company, if they have any, there are none set forth in the record. AVhether, therefore, its rules are reasonable, or whether it can limit its liability by proper rules, when shown to have been known to its patrons, is in no sense involved in this opinion. The common carrier charges different rates of freight for different articles, according to their bulk and value, and their respective risks of transportation, and provides different metliods for the transportation of each. It is not shown here that the defendant company had any scale of prices which were higher or lower as the importance of the despatch was great or small. It cannot be said, then, that for this reason the operator should be informed of its importance, when it made no difference in the charge of transmission. It is not shown that if its importance had been disclosed to the operator, that he was required, by the rules of the company-, to send the message out of the order in which it came to the office, with reference to other messages awaiting transmis- sion ; that he was to use any extra degree of skill, and differ- ent method or agency, for sending it, from tlie time, the skill used, the agencies employed, or the compensation de- manded for sending an unimportant despatch ; or that it would aid the operator in its transmission. For what reason, then, could he demand information that was in no wa}" whatever to affect his manner of action, or impose on him any additional obligation? It could only operate on him persuasively to per- form a duty for which he had been paid the price he de- 158 CASES ON DAMAGES. manded, which in consideration thereof he had agreed to perform, and which the law, in consideration of his promise, and the reception of the consideration therefor, had already enjoined on him. . . . It is of no consequence whether the despatch is in plain English or in cipher, provided such cipher is written in the letters of the English alphabet. Raney, J., dissented. Judgment affirmed} POSTAL TELEGRAPH CABLE CO. v. LATHROP. Illinois, 1890. 131 111. 575. WiLKix, J. It is earnest!}' contended by counsel for ap- pellant, that the messages, " Please . buy, in addition to thousand August, one thousand cheapest month," and "Put stop order on five thousand December, at seventeen cents," were, unexplained, meaningless and unintelligible to the operator of appellant who transmitted them, and therefore, as in case of cipher despatches, no special or consequential damages could have been reasonably contemplated by the parties when thej' were sent, and hence none can be re- covered in this suit. This position is based on the rule of damages announced in Hadle}' v. Baxendale, and followed generally in this country, as well as England. In any view of that rule, as applied to this case, the instruc- tion is too narrow. The evidence shows that at the time of sending these despatches, appellees were, and had for some time prior thereto been, engaged in the business of jobbers in coffee, tea, and sugar in the cit}' of Chicago ; that Cross- man & Bro. were commission merchants in New York, buying and selling coffee, rubber, and hides, on commission ; that appellant had a branch office near the place of business of appellees, from which the messages in question were sent, and had frequently sent others pertaining to their business. 1 This case was overruled (Mabry, J., dissenting) by W. U. T. Co, w. Wilson, 32 Fla. 527. POSTAL TELEGRAPH CABLE CO. v. LATHROP. 159 It also tends to show, that from business transactions In New York between appellant and the firm of Grossman & Bro., appellant knew the business in which the latter firm was engaged. It is in proof, that during the month of June, 1887, and prior to the first mistake complained of, a number of despatches were sent b}' appellees to Grossman & Bro. from appellant's Ghicago office. One on the 13th read: " Please wire us to-day whether you do or do not execute our order for five thousand bags, as we must place it else- where if you decline." Another of the same date refers to " five thousand bags," It must at least be conceded that there is evidence tending to show, that from their previous dealings appellant knew, or might by reasonable diligence have understood, the purport of these messages. Therefore, in determining whether or not the messages were sufficient to inform the operator of their meaning, and of the possible risk of loss to appellees b}' a mistake in transmitting them, the jury should have been left free to consider all the facta and circumstances proved in the case, bearing on that ques- tion, whereas the instruction limits the inquiry to that which i. appears in the despatches themselves, and to such facts as may have been disclosed by the plaintiffs to the defendant or its agent at the time they were sent. See 2 Thompson on Negligence, p. 857. ; On the question as to how far mere indefiniteness in the language of a message will defeat a recovery for consequen- tial damages against a telegraph company, the decisions can- not be said to be harmonious. Gounsel for appellant con- tends that the better line of authorities sustains the rule announced in this instruction, viz., that the operator who transmits a message must be able to understand its meaning as to quantit}', quality, price, etc., as the sender and party to whom it is sent themselves understood it, otherwise it is said he cannot reasonably be supposed to have contemplated damages as the probable consequence of a failure to cor- rectly transmit it. While some of the cases cited go to that extent, especially where the message is in cipher, another 160 CASES ox DAMAGES. line of decisions, and, we think, founded on the better reasons, hold that where enough appears in the message to show that it relates to a commercial business trans- action between the correspondents, it is sufficient to charge the company with damages resulting from its negligent transmission. In United States Telegraph Co. v. Wenger, 55 Pa. St. 262, a message read, " Buy fifty (50) Northwestern, fifty (50) Prairie du Chien, limit forty-five (45)." There was a delay by the telegraph company in its delivery, resulting in a loss to the sender on account of the advance in price of Chicago and Northwestern Railway Company stock, and the Mil- waukee and Prairie du Chien Railway Company stock, which the message was intended to order purchased. The Supreme Court of Pennsylvania sustained a recovery, say- ing: "The despatch was such as to disclose the nature of the business to which it related, and that loss might be very likely to occur if there was a want of promptitude in transmitting it, containing the order." In Tyler v. Western Union Telegraph Co., 60 111. 421, the message was, " Sell one hundred (100) Western Union ; answer price." The message as delivered read: " Sell one thousand (1000)," instead of "one hundred (100)." The message was intended as an order to sell one hundred shares of stock in Western Union Telegraph Company. The agent, obeying the order as delivered, sold one thousand shares of said stock, and to fill the order was compelled to buy nine hundred (900) shares. We held that the plaintiff was enti- tled to recover the difference between tlie price for which the shares of stock were sold and that which he was compelled to pa}- for those purchased. On the question as to the sufficiency of the despatch to inform the agent of the transaction to which it referred, so as to charge the telegraph company with result- ing damages, the rule announced in United States Telegraph Co. V. Wenger, siq^ra, was approved, and it was held that the despatch disclosed the nature of the business as fully as the case demanded. On a second appeal, — 74 111. 168, — by general language the decision is re-affirmed. POSTAL TELEGRAPH CABLE CO. v. LATHROP. 161 In Telegraph Co. v. Griswold, 37 Ohio St. 302, a despatch read, " Will j-ou give one fifty for twenty-five huncked at London ; answer at once, as I have only till to-night." As delivered, it read " one five," instead of " one fifty." As written, it was an inquiry whether the sendee would pay $1.50 in gold for 2500 bushels of flax seed at London, Ontario, the parties having previously corresponded on the subject. The sendee replied to the despatch as received, ordering the purchase, and he recovered from the telegraph company the difference in price. On appeal to the Supreme Court, it was contended, as it is here, that the message was indefinite, and therefore the recovery below unauthorized. But the court said: "It appeared upon its face that it related to a business transaction, — a transaction involving the purchase and sale of property. The company was there- fore apprised of the fact that a pecuniary loss might result from an incorrect transmission of the message. "Where this appears, there is no such obscurity as relieves the company from liability for negligently failing to transmit and deliver a message in the language in which it was received." In Marr v. Western Union Telegraph Co., 85 Tenn. 530, a message was delivered to the company reading, " Buy one hundred shares Memphis and Charlestown." As delivered, it read, "Buy one thousand shares Memphis and Charles- town." The recover}' for consequential damages was sus- tained, the Supreme Court of that State saying: "This message was so written that the slightest reflection would enable the operator who undertook its transmission, to see its commercial importance, and put him on his guard against error." In Western Union Telegraph Co. v. Blanchard, 68 Ga. 299, the message sent read, " Cover two hundred September, one hundred August." B}' an error in its transmission, as re- ceived it read "two hundred August," instead of "one hundred." As sent, it was an order to sell one hundred bales of cotton for August delivery, and two hundred for September deliverv. The agent sold two hundred bales for 11 162 CASES ON DAMAGES. August, and plaintiff was compelled to buy one hundred at a loss in order to meet the sale. A recovery for this loss was sustained by the Supreme Court of that State in the following language : " As to the fifth ground in the request to charge, we do not see but what the message sought to be transmitted was, according to the proof, an ordinary commercial message, intelligible to those engaged in cotton dealing, and we can see no special purpose intended by the sender which was unknown to the company', so as to vary the rule of liability. There was at least enough known to show it was a com- mercial message of value, and that is sufficient." See, also, Squire v. Union Telegraph Co., 98 Mass. 232; Pepper v. Western Union Telegraph Co., 4 Tenn. 660 ; Sutherland on Damages. All the cases which hold that a telegraph company' is not liable for consequential damages for a failure to transmit a despatch as received, on the ground of indefiniteness or obscurity in the language of the message, do so upon the ground that unless the agent of the compan}' may reasonably know from the message itself, or is informed by other means, that it relates to a matter of business importance, he cannot be supposed to have contemplated damages as a result from his failure to send it as written, as in the case of cipher despatches. The Supreme Court of Wisconsin, in Condee V. Western Union Telegraph Co., 34 Wis. 472, say: " The operator, who represents the company, and may for this purpose be said to be the other part}' to the contract, cannot be supposed to look upon such a message as one pertaining to transactions of pecuniary value and importance, and in respect to which pecuniary loss or damage will naturally arise in case of his failure or omission to send it. It may be a mere item of news, or some other communication of a trifling and unimportant character." It is clear enough, that, applying the rule in Hadley v. Baxendale, a recovery cannot be had for a failure to cor- rectly transmit a mere cipher despatch, unexplained, for the reason that to one unacquainted with the meaning of the POSTAL TELEGRAPH CABLE CO. v. LATHROP. 163 ciphers it is wholly uninteUigible and nonsensical. An operator would, therefore, be justifiable in saying it can contain no information of value as pertaining to a business transaction, and a failure to send it, or a mistake in its transmission, can reasonably result in no pecuniary loss. The messages in this case, however, are not cipher de- spatches. Their language is plain and intelligible to every one who can read, so far as they purport to disclose the business to which they relate. Thej- are abbreviations, and clearly indicate that they relate to business transactions between the sender and sendee. The first message, " Please buy, in addition to thousand August, one thousand cheapest month," was notice to the agent at Chicago that appellees were ordering their agents in New York to purchase merchandise for them. We do not agree with counsel in saying that it might as well be construed to be an order " for a thousand toothpicks or a thousand papers of pins, as anything else." Every one of intelligence knows that such articles are not purchased in that waj-. Suppose, however, that the agent was not informed as to the quantity, quality, and value of the merchandise to be purchased, by the mes- sage, would that justify him in contemplating, within the rule in the Hadley case, no damages as a result of his negligence or omission of duty in promptly- and correctly sending it forward? It certainly cannot be contended that the agent must be informed of all the facts and circumstances pertaining to a transaction referred to in a telegram, which are known by the parties themselves, to make his company liable for more than nominal damages. If it should be so held, the telegraph would cease to be of practical utility in the commercial world. It is not easy to state a case in which it can be said the parties contemplated, at the time of contracting, all the damages which would probably result from a failure to per- form the contract. We think the reasonable rule, and one well sustained by authority, is, that where a message, as written, read in the light of well-known usage in commercial 164 CASES ON DAMAGES. correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction so far as is necessary to accomplish the purpose for which it is sent, the company should be held liable for all the direct damages resulting from a negligent failure to transmit it as written, within a reasonable time, unless such negligence is in some way excused. Under this rule, both despatches, as presented to appellant's operator, were suffi- ciently explicit to charge it with the loss sustained by appellees, resulting from what has been found by the jury inexcusable mistakes. Judgmerd affirmed. 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 recover 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 mes- sage 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. Under any contract to transmit a message by telegraph, as under any other contract, the damages for a breach must be limited to those which may be fairly con- sidered as arising according to the usual course of things from the breach of the very contract in question, or which both parties must reasonably have understood and contera- 1 The statement of facts and part of the opinion are omitted. PRIMROSE V. WESTERN UNION TELEGRAPH CO. 165 plated, when making the contract, as likely to result from its breach. This was directl}- adjudged in Western Union Tel. Co. V. Hall, 124 U. S. 444. . . . In Sanders v. Stuart, which was an action b}' commission merchants against a person whose business it was to collect and transmit telegraph messages, for neglect to transmit a message in words b}' themselves wholly unintelligible, but which could be understood by the plaintiffs' correspondent in New York as giving a large order for goods, whereby the plaintiffs lost profits, which they would otherwise have made bv the transaction, 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. Baxendale applies, and that the dam- ages recoverable are nominal onl^'. 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 language utterly unin- telligible, had been convej'ed in plain and intelligible words. It was conve3-ed in terms which, as far as the defendant was concerned, were simple nonsense. For this reason, the sec- ond portion of Baron Alderson's rule clearly applies. No such damages as above mentioned could be ' reasonably 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 ; ' 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 igno- rance known to, and, indeed, intentionally procured by the plaintiffs), the first portion of the rule applies also ; for there are no damages more than nominal which can * fairl}' and reasonabl}' be considered as arising natui'ally, i. e., according to the usual course of things, from the breach' of such a con- tract as this." 1 C. P. D. 326, 328 ; 45 Law Journal (n. s.) C. P. 682, 684. In United States Telegraph Company v. Gildersleve, 166 CASES ON DAMAGES. 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 understood among brokers to mean fifty thousand dollars of gold, it was not shown, nor was it put to the jury to find, that the appellant'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 de- pends upon a knowledge of the special circumstances of the case, 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 observed the precautions necessary to guard itself against the risk. But without referrence to the fact as to whether the appellant had knowledge of the true meaning and character of the despatch, and was thus enabled to con- template 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 jur}', 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 deliv- ering 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 deliver}' of it, or upon an}^ answer that might be received. For all the purposes for which the plaintiffs desired the information, the message might as well have been in a cipher, or in an unknown tongue. It indi- PRIMROSE V. WESTERN UNION TELEGRAPH CO. 167 cated 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. Whenever special or extraordlnar}' damages, such as would not naturall}' or ordi- narily follow a breach, have been awarded for the Hon-per- formance 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 known 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 fol- low the non-performance." " The despatch not indicating any purpose, other than that of obtaining such information as an owner of propert}' might desire to have at all times and without reference to a sale, or even a stranger might ask for purposes entirel}' 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 contemplated either a loss of a sale, or a sale at an under value, or any other dis- position of or dealing with the well or any other property, as the probable or possible result of a breach of its conti-act. The loss which would, naturally and necessarily, result from the failure to deliver the message, would be the money paid for its transmission, and no other damages can be claimed upon the evidence as resulting from the alleged broach of duty by the defendant." 4.5 N. Y. 744, 749, 750, 752. See also Hart v. Direct CaV)le Co., H6 N. Y. 633. The Supreme Court of Illinois, in Tyler v. Western Union Tel. Co., took notice of the fact that in that case " the despatch disclosed the nature of the business as fully as the case demanded " 60 Illinois, 434. And in the recent case of Postal Tel. Co. ?•, Lathrop, the san)e court said: "It is clear enough that, applying the rule in Hadley V. Baxendale, supra, a recovery cannot be had for a failure to correctly transmit a more ci[)lier despatch unexplained, for the reason that to one unacquainted with the meaning of the 168 CASES ON DAMAGES. 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 transmission, 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 mes- sage, in one of the Wisconsin cases cited by the plaintiff, and in manj' cases in other courts. Candee v. Western Union Tel. Co., 34 Wisconsin, 471, 479-481 ; Beaupre v. Pacific & Atlantic Tel. Co., 21 Minnesota, 155 ; Mackay v. Western Union Tel. Co., 16 Nevada, 222; Daniel v. West- ern Union Tel. Co., 61 Texas, 452 ; Cannon v. Western Union Tel. Co., 100 No. Car. 300; Western Union Tel. Co. V. Wilson, 32 Florida, 527 ; Behm v. Western Union Tel. Co., 8 Bissell, 131 ; Western Union Tel. Co. v. Martin, 9 Bradwell, 587 ; Abeles v. We.stern Union Tel. Co., 37 Missouri App. 554; Kinghorne v. Montreal Tel. Co., 18 Upper Canada Q. B. 60, 69. In the present case, the message was, and was evidently intended to be, wholly unintelligible to the telegraph com- pany or its agents. They were not informed, b}' the mes- sage or otherwise, of the nature, importance, or extent of the transaction to which it related, or of the position which the plaintiff would probably- occup}' if the message were correctly transmitted. Mere knowledge that the plaintiff was a wool merchant, and that Toland was in his employ, had no ten- denc}' to show what the message was about. According to any understanding which the telegraph company and its agents had, or which the plaintiff could possibl}^ have sup- posed that they had, of the contract between these parties, the damages which the plaintiff seeks to recover in this action, for losses upon wool purchased b}' Toland, were not such as could reasonably be considered, either as arising, according to the usual course of things, from the supposed breach of the contract itself, or as having been in the con- PRIMROSE V. WESTERN UNION TELEGRAPH CO. 1G9 templation of both parties, when they made the contract, as a probable result of a breach of it. In any view of the case, 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. Fuller, C.J., and Harlan, J., dissented. CHAPTER VI. AVOIDABLE CONSEQUENCES. LOKER V, DAMON. Massachusetts, 1835. 17 Pick. 284. Trespass quare clausum. The declaration set forth, that the defendants destro3ed and carried away ten rods of the plaintifTs fences, in consequence of which certain cattle escaped through the breach and destro3'ed the plaintiff's grass, and that he thereby- lost the profits of his close from September, 1832, to July, 1833.^ Shaw, C. J. The court are of opinion, that the direction re- specting damages was right. In assessing damages, the direct and immediate consequences of the injurious act are to be re- garded, and not remote, speculative, and contingent conse- quences, 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 destro}' the crop, the tres- passer is responsible. But if the owner sees the gate open and passes it frequentl}', and wilfuU}' and obstinatelv 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 repairing 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. * The statement of facts and part of the opinion are omitted. . WOLF V. STUDEBAKER. 171 We think the jury were rightly instructed, that as the tres- pass consisted in removing a few rods of fence, the proper measure of damage was the costs of repairing it, and not the loss of a subsequent year's crop, arising from tlie want of such fence. I do not mean to say, that other damages may not be given for injury in breaking the plaintiff's close, but I mean only to sa}', that in the actual circumstances of this case, the cost of replacing the fence, and not the loss of an ensuing j'ear's crop, is to be taken as the rule of damages, for that part of the injury which consisted in removing the fence and leaving the close exposed. Judgment on the default, for the sum of $1.50 damages. WOLF V. STUDEBAKER. Pennsylvania, 1870. 65 Pa. 459. Thompson, C.J.^ We have no question before us involving the fact of an agreement between the plaintiff and defendant, hy 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 dam- ages 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 reasonabl}' have made out of it, for his damages. In Hoy v. Gronol)le, 10 Case}', 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 cannot sa}', therefore, that the jury were misled in this case b}^ being told that the damages of the plaintiff should be measured by what he ^ Part of the opinion is omitted. 172 CASES ON DAMAGES. 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 con- tinued 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 prop- erty consists of a house and stable, and about a quarter of an acre of land ; I was at Wolfs 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 be that because he was an industrious man, he was not within the same rule of com- pensation that one not so would be. There are undoubtedly cases in which such facts do mitigate damages. Such com- monly occur in cases of the employment of clerks, agents, laborers, or domestic servants, for a year or a shorter deter- minate 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 business 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 illegitimate one. In 2 Greenlf Ev. § 261 a, the distinction is marked between " contracts for specific work and con- tracts for the hire of clerks, agents, laborers, and domestic servants for a year or shorter determinate periods." In that WOLF V. STUDEBAKER. 173 case the learned author shows that the defendant maj' prove, on a breach of the contract, " either that the plaintiff was actually engaged in other profitable 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 part}- 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 em[)loyment, 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 dis- appointed contractor for the performance of a specified 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 matter how various the items done by the plaintifl? during the period of the contract might be, and how much he made in the mean time. It happened in this case, that a wit- ness 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 disclose. But this single case 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 contract like that we are considering should be something resulting from the acts of the party occasioning the injury, 174 CASES ON DAMAGES. or from the contract itself. The damages may be said to be fixed bj' the law of the contract the moment it is broken, and I cannot see how that is to be altered by collateral circum- stances, independent of, and totally disconnected from it, and from the party occasioning it. Judgment reversed SIMPSON V. KEOKUK. Iowa, 1872. 34 la. 568. Action to recover damages suffered by the plaintiffs, for the alleged careless and negligent manner in which the de- fendant had constructed the gutters and drains in the streets and alleys on which plaintiffs' property abutted. Cole, J.* The plaintiffs' lots were lower than the grade of the streets and alleys ; by doing some filling in the lots near the alle^', and making a drain, much, if not all, of plain- tiffs' damage might have been avoided. If the plaintiffs, by the use of ordinary' diligence and efforts, and at a moderate expense, might have prevented the damage, it seems neces- sarily to follow, that their negligence contributed to the in- jury ; and this, upon a well-settled rule, would defeat the plaintiffs' recovery. We do not intimate that it would have been the duty of plaintiffs to interfere with the streets or gutters, so as to change the construction of them. Heversed. INDIANAPOLIS, BLOOMINGTON, AND WESTERN RAILWAY V. BIRNEY. Illinois, 1874. 71 111. 391. Walker, .J.^ We perceive nothing in this case to take it out of the general rule, that a party suing for an injury re- ceived can only recover such damages as flow from and are the immediate result of that injury. Damages produced by 1 Part of the opinion is omitted. INDIANAPOLIS, B., & W. RAILWAY v. BIRNEY. 175 other agencies than those causing the injur}'^, or even by agencies remotely connected with those causing the injury, cannot be awarded as proximate or proper compensation, but only where the injury flows from the wrongful act as its natural concomitant, or as the direct result thereof. "Where speculation or conjecture has to be resorted to, for the pur- pose of determining whether the injury results from the wrong- ful act or from some other cause, then the rule of law excludes the allowance of damages for such injur}'. Did the sickness and loss of time proved in this case natu- rally result from the failure of the train to stop for appellee? That is the only wrongful act charged to appellant. The walk by appellee to the next station was not a natural sequence to the failure of the agents of the company to stop the train for him to get aboard. That he should be delayed in reaching that point was a natural consequence, as there was no other known means by which the space could be overcome in so short a time as by a train of cars ; but that appellee should walk through the extreme cold to that point, and thus injure his health, was by no means a necessary result. He had his option to remain five or six hours, and take the next train, or procure a horse, or a horse and carriage, and thus have arrived much sooner, and all persons of even small pru- dence and judgment know, with less exposure to his health ; and, being a physician, he must have known that he was in- curring increased hazard to his health when he determined to walk instead of riding, and that he was incurrincr a lar)le opinion bj Judge Duer, in Suj'dam V. Jenkins, 3 Sandford, N. Y. 614, The liardship which arose from estimating the damages by the highest price up to the time of trial, which might be jears after the transac- tion occurred, was often so great, that the Court of Appeals of New York was constrained to introduce a material modifi- cation in the form of the rule, and to hold the true and just measure of damages in these cases to be, the highest inter- mediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. This modification of the rule was ver}' 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 was subsequently followed in the same case in 66 N. Y. 518, and in Gruman v. Smith, 81 N. Y. 25 ; Colt v. Owens, 90 N. Y. 3G8 ; and Wright v. Bank of MetropoMs, 110 N. Y. 237. It would be a herculean task to review all the various and conflicting 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. Section 5. — Damages upon Severance from Realty. FORSYTH V. WELLS. Pennsylvania, 1861. 41 Pa. 291. 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 plaintifl insists that, because the action is allowed for the coal as per- 330 CARES ON DAMAGES. sonal property-, that is, after it had been mined or severed from the realt}', 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 appar- ent that this view would transfer to the plaintiff all the de- fendant'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 remed}'. 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. Prin- ciples can never be realized without forms, and they are often inevitably embarrassed 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 prin- ciple 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 circumstances. In its original purpose, and in strict form, it is an action for the value of personal property lost b\' one and found bj' another, and converted to his own use. But it is not thus restricted in practice ; for it is con- tinuall}' applied to every form of wrongful conversion, and of wrongful taking and conversion, and it affords compensa- tion not onl}' 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 pur- pose for the sake of completeness of remedy. Even the action of replevin adapts itself thus. 1 Jones, 381. And so does trespass. 7 Case}-, 456. In ver^' 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 rORSYTH V. WELLS. 331 outrage or violence in tlie act of taking. 3 Barr, 13. It is quite apparent, therefore, tliat this form of action is not so uniform and rigid in its administration as to force upon us an}'^ given or arbitrarj^ 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 con- tinued 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 conversion, may fail to prove the taking by the defendant. But when the law does allow this departure fi'om the strict form, it is not in order to enable the plaintiff', b}' 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 ourselves to this. The man}- conflicting opinions on the measure of damages in cases of wilful wrong, and especiall}^ the very learned and thoughtful opinions in the case of Sils- bury V. McCoon, 4 Denio, 332, and 3 Comst. 379, warn us to be careful how we express ourselves on that subject. We do find cases of trespass, where judges have adopted a mode of calculating damages for taking coal, that is sub- stantially equivalent to the rule laid down by the Common Pleas in this case, even where no wilful wrong was done, unless the taking of the coal out by the plaintiff's entry was regarded as such. But even then, we cannot avoid feeling that there is a taint of arbitrariness in such a mode of calcu- lation, because it does not truly mete out just compensation. 5 M. & W. 3.51 ; 9 Id. 672 ; 3 Queen's B. 283 ; and see 28 Eng. L, & E. 175. We prefer the rule in Wood v. More- wood, 3 Queen's B. 440, n., where Parke, B., decided, in a 332 CASES ON DAMAGES. case of trover for taking coals, that if the defendant acted fairly and honestly, in the full belief of his right, then the measure of damages is the fair value of the coals, as if the coal-field had been purchased from the plaintiffs. See also Bainbridge on Mines and Minerals, 510 ; 17 Pick. 1. Where the defendant's conduct, measured by the standard of ordinarj" moralit}' and care, which is the standard of the law, is not chargeable with fraud, violence, or wilful negli- gence or wrong, the value of the propertj* taken and con- verted is the measure of just compensation. If raw material l;as, after appropriation and without such wrong, been changed by manufacture into a new species of property', as grain into whiskey, grapes into wine, furs into hats, hides into leather, or trees into lumber, the law either refuses the action of trover for the new article, or limits the recover}' 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 injur}' 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 actions so as to secure a fair result. If the defendant in this case was guilt}' of no intentional wrong, he ought not to have been charged with the value of the coal after he had been at the expense of mining it ; but onl}' 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. McLEAN COUNTY COAL CO. v. LONG. Illinois, 1876. 81 111. 359. Breese, J. This was trover, in the McLean Circuit Court, bj John Long, plaintiff, and against the McLean County Coal McLean county coal co. v. long. 333 Corapan}^, defendants, to recover damages for the conversion of a quantity' of coals taken from the land of plaintiff. There is no controversy" about the fact of taking and con- verting the coals, the only question being as to the measure of damages. The leading facts are, that defendants had in the summer of 1872 sunk and worked a shaft on their own land, three hundred and thirty-three feet west of the west boundarj' of plaintiff's lots, to the depth of five hundred and forty-nine feet. At the session of the General Assembly held in 1872, an act was passed providing for the health and safety of per- sons employed in coal-mines, in force Jul}' 1, 1872, in which it was provided that an accurate map or plan of the workings of each coal-mine, showing, among other things, the general inclination of the strata, together with any material deflec- tions in the workings, should be made, and a copy thereof filed in the recorder's office of the proper county. R. S. 1874, eh. 93, p. 704. Upon making and filing a map of appellant's mine, appellee discovered for the first time, in 1S73, that appellants had worked out of bounds, and, in 1872, taken from his land coals which were found to amount to six hundred and ten tons, from a stratum about two feet thick. When appellee made this discovery, he went to the pioper officer of the company and demanded the coal, and on another occasion demanded pay for it. At the time of the demand not a pound of this coal was in possession of the company, it having been sold and disposed of months before. When this demand was made, appellants replied, the land did not belong to them, and that they were responsible to one Cox. The action was brought to the February term, 1874. The controversy was upon the measure of damages. Ap- pellants' theory was, the value of the coal when first it be- came a chattel; that of appellee, its value in the market; which latter theory the court accepted, and gave, of its own motion, the following instruction : — " The court instructs the jury that if they believe, from the 334 CASES ON DAMAGES. evidence, that the defendant wrongfull}' took and converted to its own use the coal of plaintiff, as alleged in plaintiff's declaration, the jury will find the defendant guilt}', and assess the plaintiff's damages at the fair market value of the coal at the time the same was sold and converted by defendant to its own use, and to this amount, so ascertained, the jury may, in their discretion, allow interest at the rate of six per cent per annum from the date of such conversion to the present time." The juiy found for the plaintiff, and assessed the damages at twelve hundred and eighty-one dollars, for which the court rendered judgment, overruling defendants' motion for a new trial, and the defendants appeal. When this coal was taken to the mouth of the shaft, it was worth at the shaft two dollars and ten cents per ton, and this the jury allowed, no deduction being made for the cost of get- ting it to the mouth of the shaft, — all evidence offered by appellants on this point being ruled out by the court. Is the rule given to the jury by which to measure the damages a correct rule, having its foundation in reason and authority ? Common observation and reason inform us that these coals, in their native bed, more than five hundred feet below the surface of the ground, were of no appreciable value ; they were made valuable by the labor and expense of appellants ; by these the}' obtained a market value. How are the authorities upon this question? Martin v. Porter, 5 Meeson and Welsby, 351, is cited by appellee. That was trespass for breaking and entering plaintiff's close, and breaking and entering a certain coal-mine under the close, and taking and carrying away the coal, and converting and disposing of it to the use of the defendant. The plaintiff claimed that he had a right to hold the de- fendant liable for the value of the coal when gotten and when first it existed as a chattel, without an}' deduction for the ex- pense of getting it. Parke, Baron, before whom the cause was tried, said that the plaintiff would have been entitled, in an action of trover, McLEAN COUNTY COAL CO. v. LONG. 335 to the value of the coal as a chattel, either at the pit's mouth or on the canal bank, if the plaintiff had demanded it at either place, and the defendant had converted it, without allowing anything for having worked and brought it there ; that not having made such a demand, and the action being trespass, he was entitled to the value of the coal as a chattel at the time when the defendant began to take it away ; that is, as soon as it existed as a chattel ; which value would be the sale price at the pit's mouth, after deducting the expense of carrying the coals from the place in the mine where they were got, to the pit's mouth. In the Exchequer, the rule, so given by Parke, Baron, was held by the whole court as the true rule. This rule was adhered to in Wild et al v. Holt, 9 Mees. and Wels. 671, and also in the Court of Queen's Bench, in Morgan v. Powell, 3 Adolphus and Ellis, 278, 43 Eng. C. L. 734. This question came before this court at the January terra, 1874, in Robertson v. Jones et al., 71 111. 405, and the same rule was announced. In California the same doctrine is held. Magi V. Tappan, 23 Cal. 306. See also. Moody v. Whitney, 38 Maine, 174. Other cases might be cited, but it is unne- cessary, as this court has recognized tlie rule as a correct one in Robertson v. Jones et al. But it is said these were actions of trespass, and while the rule maybe a just one in such an action, it is not so in trover. The ordinary principle is, that a party is entitled to recover compensation only for the damage he has actually sustained, no matter what may be the form of action. A different rule of damages does not prevail in trespass for breaking and entering a coal-mine and carrying away coals, and trover for the coals, except when circumstances of aggravation are relied on in trespass. The rule is the same in both forms of action. Mayne on Damages, 290. No matter what the form of action, unless it be an action in which vindictive damages, so called, are sought, the jury are restricted to compensation for the pecuniary loss sus- 336 CASES ON DAMAGES. tained by the plaintiff, and in this case, as these authorities hold, the estimate of loss depends on the value of the coal when severed from the soil ; that is, the price at which the plaintiff could have sold it. This, it is clear, was the value of the coal at the moment it was severed bj' the defendants and thrown into the run. It was at that moment, when defend- ants had made it a chattel, exercising control over it, that the conversion was complete. For the expense and trouble of separating it from its kindred la3'ers and making it a chattel, the defendants cannot claim to be reimbursed ; but the coal had no value as a salable article without being taken from the pit, and an}- person purchasing the coal in the pit would have deducted from the price the cost of bringing it to the pit's mouth. This is, substantially, said by Lord Ch. J. Denman, in de- livering the opinion in Morgan v. Powell, and meets our approval. It follows, from these authorities, the rule given to the jury by which to measure the damages, was not the correct rule. During the trial, and whilst the examination of the witnesses was progressing, the court made this statement : — " I can now state what I think the measure of damages is. I understand the measure of damages is, the value of the coal at the time of conversion. I think the measure of damages is, the value of the coal at the mouth of the shaft, less the expense of drawing it up." Had the court adhered to this rule, it would have conformed to the authorities, and especiallj' to the decision of this court in Robertson v. Jones et al. The doctrine announced in the cited cases has received the sanction of this court in Sturgis et al. v. Keith, 57 111. 451, though the subject in controversy was of a different nature. That was trover for certain railroad stocks which the plaintiff had deposited with defendant, who refused to deliver them on demand. The plaintiff claimed he could select an}' time at which the stocks were at the highest market value, and re- cover accordingly ; and such had been the ruling of several SINGLE V. SCHNEIDER. 337 reputable courts. This court held, as a principle governing this action, that the vakie of the stocks at the time of the conversion was the measure of damages ; and in that case the conversion was established by the refusal to deliver on de- mand. The principle is, when the chattel is converted, then the damages are to be estimated. In this case no demand was necessary, as the taking of the coals was tortious. Then, on tl)e principle of the above cited case, the damages must be computed from the time the coal first became a chattel, for the conversion was complete when defendants severed it and threw it into their run. The cases in trover, cited by appellee, are not decisive of this case. We think the authorities above referred to are very satisfactory, and this case is properly settled by them. On the authority of these cases, and they are in harmony with justice, the court should have told the jury the plaintiff could recover as damages the value of the coal at the mouth of the shaft, less the cost of 'conveying it from the place where it is dug to the mouth of the shaft. Tliis is, in effect, saying he can recover the value of the coal when it first became a chat- tel by being severed from the mass, and under their control. For the errors indicated the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion. Judgment reversed. SINGLE V. SCHNEIDER, Wisconsin, 1869. 24 Wis. 299. Paine, J. This action was brought to recover possession of certain lumber, wliich it was claimed had been manufac- tured from logs cut without autliorit}' upon the plaintiff's land. There was evidence tending to show that the de- fendants, who owned land adjoining the plaintiffs, got over the line b}' mistake. And there was also some evidence tending to show that the}' cut some on the plaintiff's land, 2:> 338 CASES ON DAMAGES. after tbe}' were notified of the mistake. There was also an offer of a tax deed in evidence, which was rejected ; and the plaintiff's affidavit shows that the defendants claimed title to the property under this tax deed. There was some talli be- tween the parties about the defendants settling with the plaintiff for what the^^ had cut ; but this does not seem to have been done. Nor did the plaintiff take any steps to recover the logs, but marked them and kept watch of them at the mills until they were sawed and rafted, and then brought this action to recover the lumber. The defendants gave an undertaking under the statute, and retained the property. The jury found for the plaintiff, and assessed the value of the property at the entire value of the lumber as it was proved to have been at the time of commencing this suit. The material and interesting question in the case is, whether, assuming the logs to have been cut on the plain- tiffs land, he ought to recover the entire value of the lumber, without any deduction for the labor of the defendants in cut- ting, hauling, and manufacturing the logs into the lumber. If the action had been for the trespass or conversion, he could onl}' have recovered the value of the timber at the time it was taken, at least if it was taken by mistake. We3-mouth V. The Ch. & N. W. R. R. Co., 17 Wis. 550. And, upon the evidence and the whole record, I think these defendants stand in as favorable a position as though it were conceded that the logs were taken by mistake. There is proof tending to show a mistake as to a part ; and it appears, also, from the plaintiff's affidavit, that they claimed title to the land. They are not to be regarded, therefore, as wilful trespassers. Upon these facts, it seems contrary to the dictates of natural justice, that the plaintiff should be allowed to wait quietly until the de- fendants had manufactured the logs into lumber, enhancing their value four or five fold, and then recover against tliera that entire value. True, it is generally recognized that a wrong-doer cannot, by changing the form of another's prop- erty, change the title. The owner may pursue it, and reclaim it specifically by whatever remedy the law gives him for that SINGLE V. SCHNEIDER. 339 purpose. If he gets it, it is his. But the apparent injustice of allowing one to thus avail himself of the labor and money of cuother, in eases similar to this, has led to a modification of this stringent rule of ownership, wherever the question is resolved into one of mere compensation in mone}' for what- ever injury the party may have suffered. This modification has thus far been developed almost entirel}- in actions of tres- pass or trover, like that of Weymouth v. Ch. & N. W. R. R. Co., and the cases therein referred to. But, in the recent case of Herdic v. Young, 55 Pa. St. 176, the Supreme Court of Pennsylvania applied the same rule in an action of replevin. They there held that, inasmuch as the law gave the defendant the power to retain the property by giving a bond, whenever he availed himself of tliat right, the question became then one of damages merely, and that the form of action ought not to produce a difference in the result. The damages to be recov- ered should be the same as though the action were trespass. This case seems to us so well adapted to the promotion of justice and the prevention of injustice, that we have con- cluded to follow it. To apply that rule here would have required the value of the property to have been assessed at the full value of the lumber, deducting the expense of all that the defendants had done upon it down to the time the suit was begun. As remarlved b}' the court in that case : " Such a standard of damages, growing out of tlie nature of the act and the form of the action, is reasonable, and does justice to both parties. It saves to the otherwise innocent defendant his labor and monc}', and gives to the owner the enhancement of the value of his property growing out of other circumstances, such as a rise in the market price, a diflference in price be- tween localities, and other adventitious causes." Our statute provides that the jury sliall assess the value of the oropert}'. But that is merely as the basis of recover}' in case a delivery cannot be had. The intent was, to fix the value that the plaintiff was entitled to recover. Thus, in case of a lien or other special interest, the value to be fixed would be the amount of that lien or interest. Booth v. Ableman, 20 Wis. 340 CASES ON DAMAGES. 21. And although, in strict law, the plaintiff is the general owner of the propert}', yet, when it is once settled that he ought not to recover the value it has received from the de- fendant's labor, the application of the rule would seem to place him upon substantially the same footing with the owner of a special interest, so far as ascertaining the value is con- cerned. Perhaps the best way in such a case would be, to direct the jury to find the actual entire value of the property, and to find specially the amount to which its value had been enhanced by the defendant's labor. And then, in case of judgment for the plaintiff, it would be in the alternative, for a delivery, or, if that could not be had, for the amount of the difference between the two sums thus found. It is quite probable that this question was not distinctly presented to the court below. But it seems to be fairly raised by the motion for a new trial, on the ground that the verdict was against the law and the evidence ; and that motion ought to have been granted. For this reason the judgment must be reversed, and the cause remanded for a new trial. By the Court. — Ordered accordingly.^ 1 " In my opinion, it is immaterial whether the property is taken by mistake or intentionally, unless in the latter case the taking is of such a character as to make the doctrine of exemplary damages applicable. It is not everv intentional trespass or conversion that makes a case for exemplary damages. If a man takes a tree from my land by mistake, I am damaged just as much as though he took it intention- ally ; and if in case of mistake I ought to recover only the value of the tree, although he may have manufactured it into costly furniture, for the reason that the value of the tree is all that I have lost, then the fact that he took it knowing it to be mine ought not to vary the rule of damages, for the plain reason that my loss is the same in one case as the other." Paine, J., in Weymouth v. C & N. W. Ry., 15 Wis. 550, 555 (1863). WINCHESTER v. CRAIG. 341 WINCHESTER v. CRAIG. Michigan, 1876. 33 Mich. 205. Marston, J.^ Winchester brought an action of trover to recover damages for the conversion bj' defendants of a quantity of pine saw-logs. The court charged the jur}' that if they found no wilful wrong on the part of the defendants, the}' might award as damages the value of the property- where it was taken, viz. : one dollar and fifty cents per thousand, together with the profits which might have been derived from its value in the ordinar}' market, or that they might take the market value at Toledo, deduct precisely the sum defendants expended in bringing it to that market and putting it in condition for sale, and award the difference between these two sums, with interest, in either case, from the time the conversion took place ; and refused to charge that the plaintiff could recover as damages the price for which the logs were sold in Toledo. The finding of the jurj^ as appears from the printed record, was as follows: "The defendants cut the timber on the land of Ward b}^ mistake ; the quantit}' cut was one million ninet3'-three thousand seven hundred and eightj'-six feet ; the value on the land after it was cut was two dollars per thousand feet ; the value at Toledo, and for which the defendants sold the timber, was twelve dollars per thousand ; the expenses of the defendants on the timber in cutting and removing the same to Toledo, nine dollars and thirty-seven cents per thousatid ; " and they assessed the plaintiff's dam- ages at the sum of three thousand six hundred and thirty-one dollars and forty cents. It will thus be seen that the only question raised by this record is, where parties by mistake cut timber upon the lands of another, and at their own expense transport it to market 1 Part of the opinion is omitted. 342 CASES ON DAMAGES. and sell it, whether the plaintiff in an action of trover can recover as damages the market value at the time and place where it was sold. An examination of the authorities bearing upon this ques- tion shows that they are not in harmony, and that the courts have not always agreed as to the proper measure of damages in this class of cases. Some courts have held, in cases like the present, that the plaintiff could recover as damages the value of the logs at an\- place to which they were taken and sold or converted, while others have held such a measure of damages applicable only in cases where there was fraud, vio- lence, or wilful negligence or wrong, and that where none of these elements appeared, but on the contrary the defendants had acted in entire good faith, and had by their labor and skill materiall}' enhanced the value of the propert}' converted, the plaintiff could not recover such enhanced value. In this last class of cases the decisions are not uniform as to whether the value of the property when first severed from the realt}', as in cases of timber or coal where this question has arisen, or the value in its original condition, with such other damage to the realty as the injury may have caused, would constitute the proper measure. It is apparent upon examination that there is no fixed, definite measure of damages applicable in all cases of con- version of property ; and while the general rule undoubtedly is, in ordinary cases, that the full value of the propertv at the time and place of its conversion, together with interest thereon, is the correct measure of damages in actions of trover, yet, as was said in Northrup v. McGill, 27 Mich. 238, '*this rule yields, when the facts require it, to the principle on which the rule itself rests, namely : that the recovery in trover ought to be commensurate, and only commensurate with the injur}', whether that injury be greater or less in extent than the full value of the property and interest." Indeed, the language here quoted is but an application to actions of trover of the general rule as repeatedl}' declared in this State, viz. : that except in those actions where punitory or exemplary WINCHESTER v. CRAIG. 343 damages ma}^ be given, and those whose principal object is the establishment of a right, and where nominal damages may be proper, the only just theory of an action for damages, and its primary object, are that the damages recovered shall compensate for the injury sustained. See Allison y. Chan- dler, 11 Mich. 542; Warren v. Cole, 11 Mich. 265; Daily Post Co. V. McArthur, 16 Mich. 447. It is somewhat difficult to conceive why, upon principle, this rule should not be applied in its fullest extent to cases like the present. The cases, it is believed, all agree that punitory or exemplary damages are never given or allowed in cases where the defendant has acted in entire good faith, under an honest belief that he had a legal right to do the act com- plained of, although, even in such cases, he would be conclu- sively held to have contemplated, and the plaintiff would be permitted to recover, all the damages which legitimately fol- lowed from his illegal act, whether in fact he actually contem- plated that such damages would follow or not. Such damages, however, would, in no just sense of the term, be held as puni- tory or exemplary ; they would be but the actual damages which the plaintiff had suffered from the wrongful act of the defendant. Such then being the general rules applicable in cases even of active, aggressive wrongs, what is there in this case to make it an exception ? It does not require any argument, and I shall attempt none, to prove that the pecuniary injury sustained by the plaintiff, from the trespass complained of, falls far short of the value of these logs at Toledo ; and that to award the value at the latter place as the measure of damages would be much more than compensation, and would, although under a different name, be but awarding exemplary damages, and that, too, in a case •where upon principle the defendants had been guilty of no act calling for such a punisliment. It is also clear beyond question that had the plaintiff com- menced any other form of action to recover damages for the injury which he sustained, he could not in such action recover the market value of the logs at Toledo. It is very evident, 344 CASES ON DAMAGES. therefore, that the right of the plaintiff to recover the vakie at Toledo depends entirelj' upon the particular form of action adopted in this case ; as, in any other, where the defendants had acted honesth', he could only recover the amount of the actual injury sustained. Passing for the present the adjudged cases, I can see no good reason or principle why the measure of damages in actions of trover should be different from that in other actions sounding in tort ; and to hold that there is such a distinction is to permit the form of the action, rather than the actual injury complained of, to fix the damages. This would be giving the form of action a prominence and controlling influence to which it is in no wa}' entitled, and would be permitting the plaintiff, b}' the adoption of a particular remedj', to increase the dam- ages at pleasure, and that to an extent which would far more than compensate him for the injury- which he sustained, and would also be a positive wrong to the defendants. Such a doctrine, if carried out to its logical conclusion, and applied to many cases which might arise, would be to allow the plaintiff damages so far in excess of the injury which he sustained as to cause us to doubt the wisdom of any rule which would thus sanction a greater wrong in an attempt to redress a lesser. Let us suppose, by way of illustration, one or two cases which might easily arise : a party acting in entire good faith enters upon the lands of another by mistake, cuts a quantity of oak standing thereon, and manufactures it into square timber ; this he ships to Quebec, where he sells it at a price which, as compared with the value of the standing timber, renders the latter insignificant. Or, suppose the owner, instead of selling such timber at Quebec, ships the same to some European port, and there sells it at a still greater advance. Or, suppose b}' mistake he cuts a quantity of long timber, suitable for masts, and forwards it to Tonawanda, or New York, and there sells it. Now, in either of these cases, would it be just to permit the owner of the standing timber, in an action of trover, to recover the value at which it was sold ? Would the price for which it sold be the amount WINCHESTER v. CRAIG- 345 of the actual damage which he sustained from the original cutting? The price which it brought in the market was almost wholly made up of the cost and expense of manufac- turing and getting it there, no part of which cost or expense was borne by the plaintiff. Wh}-, then, should the plaintiff recover this increased value, no part of which he contributed to in any way? Certainly not as compensation for the in- jury sustained by him, because he sustained no such injury. Neither could it be for the purpose of punishing the defend- ants, because they have committed no act calling for such a punishment. It can only be placed upon the arbitrary ground that in this form of action the plaintiff can recover the full value of his property at any place he may find it, or trace it to. Then, again, there is no uniformit}' in such a rule. One man cuts timber, but does not remove it ; another cuts and removes it a short distance, adding but little to its original value ; while another cuts and removes it a long distance, increasing its value thereby an hundred fold. Separate actions are brought against each, the plaintiff in each case claiming to recover the value at the place to which the timber was taken. Now, it is very evident that, although the value of the standing timber in each case was the same, and the actual injury to the plaintiff in each case the same, the verdict would be very different, and the party who had in good faith done the most, and spent the most mone}', in giving the timber any real value, would be punished the greatest. In fact, by in- creasing its value he would be but innocentl}- increasing to a corresponding amount what he would have to pay by way of damages. In other words, such a defendant, by his labor and the means which he expended in bringing the property to market, has given it nearly all the value it possesses ; and when he is sued and responds in damages to the amount of such increased value, he has then paid just twice the actual market value of the property in its improved condition, less the value of the original timber standing; once in giving it its value, and then paying for it in damages according to the very value which he gave it. 346 CASES ON DAMAGES. It may be said, however, that all these supposed cases are exceptional and extreme ; this may be true, but in testing a supposed rule of law, we have a right to apply it to extreme cases for the purpose of testing its soundness ; because by so doing, if we find that when carried out it would lead to gross injustice, and would not at the same time subserve any useful purpose, but would be in violation of other well-settled legal principles, we then have a right to discard it as being unsound, not based upon sound reason or justice, and therefore contrary to the doctrines of the common law. It might also be said, in answer to some of the cases sup- posed, that the plaintiff could not count upon a conversion ■which took place in some other State. This I am inclined to think would be correct ; but in this case the plaintiff does claim to recover for a conversion which took place beyond the limits of this State. I have therefore only carried the doctrine contended for a little farther. We need not, however, go be3'ond the boundaries of this State to imagine cases almost as glaringly unjust as those already supposed : indeed, the evidence in this case showed that while the value of the standing timber was one dollar and fifty cents per thousand, the value of the logs in Detroit was twelve dollars per thousand ; and cases may easily be supposed where the value would be much greater. There is another class of cases where the doctrine which plaintiff seeks to have applied would work gross injustice : a person honestly' and in good faith obtains possession of some 3'oung animal ; he ma}' have purchased it from some person supposed to have a good title to it, but who in fact did not ; or he ma}- have purchased it at a judicial sale where, on account of some technical defect, the title did not pass ; or it may be through a case of mistaken identity he has claimed to be the owner, whereas in truth and fact he was not. He retains possession, feeding and taking care of the animal, until in process of time it becomes full grown and immensely more valuable. This time may be longer or shorter, depend- ing very much upon the kind of animal. If a pig, but a short WINCHESTER v. CRAIG. 347 time would be required ; if a calf or colt, a longer. The origiual owner, Laving at length discovered his property-, demands possession, which being refused, he brings trover to recover the value. Now, most assuredl}", in an}- of these cases, the extent of the injury which the plaintiff sustained would not be the then value of the animal. He has not fed it, taken care of it, or run an}- of the risks incidental to the raising of stock ; all this has been done by another. Why, then, should he recover this increased value ? And why should the result of the labor, care, and expense of another thus be given to him? True it is, that the amount involved in these cases is not so large, but the principle is the same. It is sometimes said that the effect of tlie view which we have taken would be to compel a part}- to sell and dispose of property which he desired to retain as an investment, at what he might consider an inadequate price, and at a time when he would not have sold it. This may be true, yet it is no more than what happens daily, and that under circumstances much more aggravating. Take the case of a wilful trespasser : he cuts the timber of another into cord wood and burns it ; or he takes his grain and feeds it ; or cattle, which the owner prizes very highly, and butchers them. In all tliese cases the owner has lost his property, and the law cannot restore it ; the law can- not do complete justice ; it cannot fully and completely protect and guard the rights and feelings of others ; it can but ap- proximate to it ; and because the owner in this way may be compelled to part with his property, and thus a wrong be done him, it would not improve matters to inflict a much greater wrong upon another equally entitled to protection, in order that the first sufferer miglit be unduly recompensed thereby. The law rather aims, so far as possible, to protect the plaintiff, but at the same time it has a due regard to tlie rights of the defendants, and it will not inflict an undue or unjust punishment upon tliem, in cases where they are not deserving it, as a means of rigliting an injury, especially where it would much more than compensate the owner for the injury which he sustained. 348 CASES ON DAMAGES. In this case each has an interest in the logs ; the plaintiflf as assignee of the original owner ; the defendant b}', in good faith, largely increasing their value. Each should be pro- tected in his rights, and thus as nearly as possible substantial justice be done. To allow plaintiff to recover what he here seeks would be to break down all distinction between the wilful and involuntary trespasser, — a distinction which is based upon sound legal principles, and which is applied in all other forms of action. What we have here said must not be considered as having: an}- application in cases where the trespass or wrong com- plained of was wilful or negligent. We are not yet prepared to sa}- that the wilful trespasser can derive any advantage whatever from his own wrong. On the contrar^^, there is sound reason for holding that the owner in such cases may reclaim his property wherever and in whatever shape he may find it. The court under one branch of the charge instructed the jury to allow the market value at Detroit, or Toledo, less the sum of money which defendants expended in bringing it to market. This, we think, was as favorable as the plaintiflf had any right in this case to expect. This was allowing the plaintiflf more than the value of the timber when it was first severed from the realty. It did not permit the defendants to recover any profit upon what they had done, but protected them to the extent of the advances they had made ; and this, we think, was correct. There might, however, be cases where this rule would not apph', where the market value did not cover the cost of cut- ting and taking it to market, and cases where it was not sold. In such cases the plaintiff would be entitled to recover the value when the propertj' was first severed from the realty (Greeley v. Stilson, 27 Mich. 154), and was thus in a shape where it could be converted, together with any profits which might be derived from its value in the ordinary market, with interest thereon. If an}' special damage is claimed beyond this, either to the inheritance or otherwise, it must be sought in some other and more appropriate form of action. Judgment affirmed. TUTTLE V. WHITE. 349 TUTTLE V. WHITE. Michigan, 1881. 46 Mich. 485. Marston, C.J. The action in this case was trover. The defendants purchased the logs in question from Sheridan & Hamilton, who cut them upon plaintiff's lands, and who were unquestionably trespassers in so doing. The}', Sheri- dan & Hamilton, made no claim or pretence of having cut the logs under circumstances tending even to show good faith on their part. Sheridan & Hamilton sold the logs to defendants, afloat in Black Creek. It was claimed, and we shall so assume, that defendants in making the purchase acted in entire good faith ; they afterwards run the logs into Flat River and there sold them at an advanced price. The material question relates to the rule laid down as to the proper measure of damages. The court charged the jury in substance, that if the defendants in purchasing these logs acted in good faith, the rule would be either the value of the logs where they were cut on the ground, with the ad- dition of any profit there might be in handling them and bringing them to Flat River, or the value at Flat River deducting the cost of bringing them there. We are of opinion that the facts in this case did not war- rant the charge as thus given. These defendants purchased from trespassers, and if they acted in good faith in so doing, all they could ask would be protection in what they should expend in monej' or labor thereon thereafter. A person however in purchasing personal property runs his risk as to the title he is acquiring, and if he is unfortunate enough to ■purchase from a trespasser or one who has no title and can give none, he must sufler the loss or look to his vendor. To hold otherwise would be to give the trespassers the benefit of their own wrong, contrary to all the authorities. If these defendants had only made a partial payment for the 350 CASES ON DAMAGES. logs under their contract of purchase, and the plaintiff herein was limited in his recovery to the value of the logs when first severed from the land, then defendants would be the gainers ; they would have the benefit of the trespasser's labor, and yet the latter could not maintain an action to recover the amount thereof, or the balance of the contract price. The conversion by these defendants took place when they first took charge or control over these logs in Black Creek, and they should respond in damages according to the value at that time. The same reasons do not exist in this case to protect these defendants that did in Winchester v. Craig, 33 Mich. 210, and Wetherbee v. Green, 22 Mich. 311. There are very many cases where the value of the timber standing, or when first severed from the soil, would be but nominal, and to give wilful trespassers, or those to whom they may sell, the benefit of any increased value put upon it by the original wrong-doer, and confine the owner to the nominal value, would but encourage the commission of acts of trespass, and tend to make purchasers at least careless as to the title they were acquiring. It is easy for any one to clahn that he has purchased property in entire good faith, and very difficult in many cases to establish the contrary', and if one claiming to be such, is protected to the extent of the increased value he may have in good faith added to the property, this is all he can fairl}' claim under the law. This rule in effect was held in Isle Royale Mining Co. v. Hertin, 37 Mich. 332, and much that was there said is equally applicable in the present case. We have not over- looked the case reUed upon, among others cited, of Railwa}' • Co. V. Hutchins, 32 Ohio St. 584. We have heretofore had occasion to examine the many cases there cited, and they do not lead us to any conclusion other than the one here arrived at. We are of opinion that the judgment should be reversed with costs and a new trial ordered.^ 1 " It may be that if these owners had found their wood in the hands of the trespassers, it might have been retaken, or its value as cord wood TUTTLE V. WHITE. 351 recovered ; but if so, it would be upon the principle ' in odium spoliatoris ;* the thief could gaiu nothing by his own wrong, and therefore the re- sults of his labor go to the owner of the property. But this principle can- not apply where an innocent purchaser comes into the case, for the simple reason tliat he has done no wrong. " It is very true that the wilful trespasser or thief can convey no title to one to whom he sells, however innocent the purchaser may be. But the question right here is, what does ' title ' in this connection mean ■? The original owner has the ' title ' to his timber, and, as ar/ainst the thief, the title to the results of the thief's labor. The wrong-doer, as it were, being estopped from setting up any claim by virtue of the wrong he has done. Against the innocent purchaser from the thief, the original owner still has the ' title ' to his timber, but by virtue of what does he now have ' title ' to the thief's labor ? The estoppel, so to call it, being created by fraud or wrong, exists only against tlie one guilty of that fraud or wrong, whicli the purchaser is not, and while it is effectual against the wrong- doer, the reason of it does not exist as against the innocent man, as to whom it therefore fails. As Judge Cooley .'