!■ Hi; ^llll f vRifffffrf* ■ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE LAW OF DAMAGES, EMBRACIXa A^^ ELEMENTARY EXPOSITION OF THE LAW, AND ALSO ITS APPLICATION TO PARTICULAR SUBJECTS OF CONTRACT AND TORT. J. G. SUTIIERLAlSrD, Author of a Treatise on " Statutes and Statutory Construction. SECOND EDITION, REVISED, SECTIONIZED AND ENLARGED, BY THE AUTHOR AND JOHN R. BERRYMAN, Author of a " Digest ok the Law of Insurance," etc. • YoL. IT. CHICAGO: CALLAGIIAN AND COAIPANY. 1S03. Copyright, 1893, BY CALLAGHAN AND COMPANY. T , STATE JOURNAL PRINTING COMPANY, PRINTBaiS AND StEREOTYPERS, MADISON, WIS. TABLE OF CONTENTS. PAET IL— APPLICATION OF THE LAW OF DAM- AGES TO YAKIOUS CONTKACTS AND WRONGS. CHAPTER XL -BONDS AND PENAL OBLIGATIONS. Section 1. — Penalties. References are to sections. Bonds and penalties .......«•. 470 Penalties in affirmative agreements 471 Statute of 8 and 9 William IIL 473 Statute of 4 and 5 Anne 473 American statutes and practice 474 Statutory bonds .......... 47o Impossible condition .......... 476 Penalty limit of recovery except as to interest .... 477, 478 Section 2. — Bonds op Official Depositaries of Money. Liability absolute for money received Adjustment of liability between sets of sureties . . Neglect of duty by other officers .... Section 3.— Other OFFiciAii Bonds. Scope of section ...... Eight of action against officers . . . Construction of bonds .... Mode of redress for official dereliction Wijat private injuries covered by official bonds Measure of damages against sureties . Measure of damages against officers for neglect of duty Section 4,— Probate Bonds. Bonds for administration of decedents' estates . . How such bonds made ; what recoveries may be had . Actions on bond as to sureties Guardian's bond . Mitigation of damages Liability as between sets of sureties .... . 479 480, 4S1 . 482 . 483 . 484 . 485 . 486 . 487 . 488 489-492 493 494 495 496 497 498 Section 5.— Replevin Bonds. Their original conditions The condition for return of property .... The condition required by modern statutes . Damages need not be assessed in replevin suit When sureties not liable for judgment in replevin suit Evidence of the value ...... Damages recoverable 499 500 501 502 503 504 505 755846 IV TABLE OF CONTENTS. References are to sections. Effect of the judgment in replevin suit ..... What may be shown in defense ....... Wlien plaintiff recovers as special owner ..... Bond by defendant to retain the property . . Section 6. — Attachment and Forthcoming Bonds. Attachment bonds . . Who ma}" sue . Damages recoverable . Exemplary damages . Wliat may be shown in defense ....... Costs and expenses ; attorneys' fees ...... Forthcoming bonds Measure of damages Conditions to pay the judgment .....•• 500 507 508 509 . 510 . 511 513, 513 . 514 . 515 . 510 . 517 . 518 . 519 Section 7. — Injunction Bonds. Scope of obligation Power of a court of equity Right of action, when it arises Mode of assessing damages . . . Costs and expenses ; attorneys* fees Damages from restraint on injunction .... What facts no defense . Wliat facts may be shown in defense ..... Section 8.— Appeal and Supersedeas Bonds. Their conditions SuperHedeas bonds in federal supreme court Liability if judgment is in part for money or in rem Instances of liability on more specific conditions Interest and damages awarded on appeal . CHAPTER XII.— NOTES AND BILLS. Promissory notes and bills of exchange Principal sum ... Want or failure of consideration Partial want of consideration Partial failui'e of consideration . Consideration fraudulent or illegal in part Defect of considei-ation shown by parol evidence Liability of drawer and indorser for principal sum Interest on notes and bills ..... Interest as damages to be paid by maker or acceptor Liability of drawer or indorser for interest as damages Notes and bills are bj'^ definition payable only in money Re-exchange and damages on bills dishonored When re-exchange on damages not recoverable By what law liabilities governed Stipulations for attorney fees and costs Value of notes and bills .... . 520 . 521 . 522 . 523 524, 525 526-53S . 529 . 530 . 531 . 533 533-535 536, 537 538, 539 . 540 . 541 . 543 . 543 544-548 549, 550 551-554 . 555 . 556 . 557 . 558 . 559 560, 561 . 562 . 563 . 564 . 565 CHAPTER XIII.— VENDOR AND PURCHASER Damages for breach of contracts for sale of realty . . , Section 1.— Vendor Against Purchaser. Seller entitled to purchase price and interest . . . , The legal remedy ......... Measure of damages ......,.< 566 . 567 . 568 569, 570 TABLE OF CONTENTS. References are to sections. Where notes are given for the price . Seller must convey perfect title . . . Recoupment for defect of title . Purchaser cannot assail validity of contract When contract does not fix price Conveyance in consideration of non-pecuniary covenants Interest on purchase-money Section 2.— Purchaser Against Vendor. Measure of damages in England .... Conflict of American decisions on measure of damages English rule, when not applied ..... Elements of damage under the milder rule Recovery on parol contract ..... Elements of damage where Flureau v. Thornhill does not apply Defaulting vendee's rights ...... Conflict of the cases in this country .... Adjustment of counter demands on rescission Adjustment of counter equities in specific performance Damages in suits for specific performance . 571 572 573 574 575 576 577 . 578 579, 580 . 581 . 582 . 583 . 584 . 585 . 586 . 587 588, 589 . 590' Sections. — Covenants for Title — Op Seizin and Good Right to- Convey. Their purport ; when broken ..... Damages for breach of these covenants . , Actual consideration may be proved .... When consideration does not measure damages . Effect of recovery on a total breach .... Only nominal damages recovered if actual loss not showri When covenant runs with land ..... How damages may be prevented or mitigated . 591,592' . 593 . 594 . 595 . 596 597-599 . 600 601, 602 Section 4. — Covenants of Warranty and for Quiet Enjoyment. Their scope ...... What is a breach ..... The rule of damages ..... Where property is the consideration . Rule of damages in England and Canada . Rule of damages in some of the older states Rule in case of partial breach Where covenantee has extinguished adverse title Mitigation of damages .... Where defect is a dower right . By and against whom recovery may be had Where covenantee sues remote covenantor Notice of suit to covenantor Interest as an item of damages . Expenses, costs and counsel fees as damages Section 5.— Covenants Against Incumbrances. 603: 604 605' . 606 . 607 . 608 . 609' . 610 . 611 . 612 , 613 . 614 . 615 . 616 617-619 What are incumbrances .... A covenant in presenti .... The rule of damages ..... The Canadian and English rule of damages In some states covenant runs with land Criticism of the rule of damages Damages where incumbrance permanent . Liability of remote covenantor . Where covenant is connected with that for quiet enjoyment Covenant to pay incumbrances . 620 . 621 622, 623 . 624 . 625 . 626 627, 628 . 629 . 630 . 631 VI TABI-E OF CONTENTS. Befereuoes are to sections. Section 6. — Defenses and Cross-claims Against Purchase-money. Diversity of decisions 633 The New York rule 633 Alabama rule 634 Mississippi rule ........... 635 Rule in Tennessee, Michigan, Arkansas, Virginia, Illinois, Florida, Maine, Massachusetts and Missouri 636 South Carolina rule 637 Texas and Kentucky rule 638 Pennsylvania rule 639 Defenses under the code 640 Defenses in equity 641 CHAPTER XIV.— VENDOR AND VENDEE — PERSONAL PROPERTY. Section 1,— Vendor Against Vendee. Recovery on executed sales Recovery for part of stipulated quantity Recovery for not accepting goods Notice by vendee of refusal to accept . Rule of damages where articles made to order Vendee's right to return property 648-644 645, 646 . 647 . 648 . 649 . 650 Section 2.— Vendee Against Vendor. Recovery for non-delivery of property contracted for Proof of value ....... Rule in favor of vendor when delivery impossible Rule where purchase price paid . Contracts for delivery of stocks . Sale of good-will ...... Contracts to pay in or deliver specific articles Same subject ; author's view Consequential damages on contracts of sale Same subject ; illustrations . . . Damages for delay ..... Warranties of quality and of title Damages on breach of warranty of title Damages for breach of warranty as to quantity or quality Defense to actions for purchase-money 651-653 . 654 . 655 . 656 . 657 . 658 659, 660 . 661 . 662 . 663 664-666 667, 668 . 669 670-675 . 676 CHAPTER XV.— CONTRACTS FOR SERVICESw Scope of subject ...... Recovery where wages fixed, and under statute On quantum mendt Proof of the value of services A statutory day's work Recovery for attorney's services Recovery for broker's services Various modes of compensating services Continuation of original contract Necessity of full performance of entire contract Dispensation in case of inability . Entire and apportionable contracts Wrongful dismissal of employee Liability of employee for violation of contract . 677 . 678 . 679 . 680 . 681 . 682 . 683 . 684 . 685 . 686 687-690 . 691 692-694 . 695 TABLE OF CONTENTS. Vll Beferences are to sections. CHAPTER XVL— CONTRACTS FOR PARTICULAR WORKS. Section 1.— Employer Against Contractoe. Nature of the contract Conipeusation for loss the measure of damages . Defects in work must be remedied .... LiabiUty exists though accident prevents performance Contractor not answerable for defects in plans . Works contracted for a particular purpose Damages for delay ....... Consequential damages for defective vi'ork Section 2. — Contractor Against Employee. Contract price ....... Demands for extra work ..... Recovery on part performance of severable contract Demands for part performance of entire contract Certificate of architect, engineer, etc. . Liability of employer for stopping work Section 3.— Salvage. Requisites of salvage service A specific amount may be fixed by agreement Nature of peril and duty of claimant Property must be saved Amount recoverable as salvage . Derelict property Forfeiture of compensation . 696 697, 698 . 699 . 700 . 701 . 702 703, 704 . 705 . 706 . 707 . 708 709-711 . 712 713, 714 715 716 717 718 719 720 721 CHAPTER XVIL — SURETYSHIP. Section 1.— Creditor Against Surety. The contract of suretyship 722 Measure of surety's liability 723 Interpretation of surety's contract ...,,,. 724 Contract not to be extended by construction 725 Illustrations of the rule 726, 727 Guaranties 728 Measure of liability 729 Indorsement of negotiable paper 730 Methods by which suretyship assumed for commercial paper . . 731 Measure of guarantors liability ........ 732 Guaranty of collectibility ; liability for costs ; diligence . . . 733 Guarantor's liability where collateral is given 734 Discharge or reduction of surety's responsibility by act of creditor . 735 Right of subrogation 736 Creditor's duty to realize on securities 737 Release limited to injury sustained ....... 738 Creditor's duty to acquire liens 739 Value of released securities 740 Surety's right to put creditor in motion ...... 741 Release of one or more of several parties 742 Surety's right to defend between principals ..... 743 Surety may set up right of recoupment 744 Section 2.— Surety's Remedies for Indemnity. Action against principal for money paid 745 Who is the principal .......... 746 When right of action accrues . 747 VUl TABLE OF CONTENTS. References are to sections. Measure of recovery Surety may compel debtor to pay Payment giving right to reimbursement Liability of principal for surety's costs Principal not liable for consequential damages Contribution between co-sureties Who are co-sureties , . . . . Basis of contribution . . . ' . Insolvency of co-surety .... Indemnification of surety by principal Accrual of right of action ; voluntary payment Conclusiveness of judgment Section 3.— Express iNDEMNiTiEa Damage the gist of the action What may be recovered ...... Contribution or indemnity between wrong-doers Contracts varying from indemnity but intended as such Effect of judgment . 748 . 749 750, 751 . 752 . 753 . 754 . 755 . 756 . 757 . 758 . 759 . 760 . 761 762, 763 . 764 765, 766 . 767 TABLE OF CASES. References are to sections. Aaron v. Moore, 686. Abbott V. Allen, 591, 593, 640, 641. V. Brown, 728. V. Draper, 684. V. Gill espy, 490. V. Hapejood, 663, 703. V. Hendricks, 551, 554 V. Wyse. 645. Abel V. McMurray, 556. Abeles v. Cohen, 761. Abercrombie v. Ovvings, 637. Aberdeen v. Blackmar, 761, 765, 767. Abernathy v. Black, 686. Abrahams v. Jones, 725. Abrams v. Pomeroy, 551. Acebal v. Levy, 643. Acers v. Curtis, 748, 756. Achison v. Miller, 755. Ackerman v. King, 763. Adah's V. Wright, 556. Adam v. Gomila, 516. Adams v. Addiugton, 564. V. Bowman, 668. V. Clark, 724. V, Conover, 593, 609. V. Filer, 644. V. Fitzpatrick, 685. V. McMillan, 570. V. Nichols, 700. V. Pugh, 693. V. Robertson, 556. V. Seaman, 564. V. Spaulding, 494. V. Stevens, 683. V. Sullivan, 652, 653. V. Thompson, 536. V. Wilson, 552. V. Wordley, 551, 553. V. Wyhe, 590. Adams Exp. Co. v. Egbert, 697, 704. Adams & French Harvester Co. v. Tomlinson, 739. Adams Mming Co. v. Senter, 644. Adamsou v. Jarvis. 755. Aday v. Echols, 590. Adlard v. Muldoon, 709, 710. Adler v. Newcomb, 486. A. D. Patchin, The, 716. Adsit V. Brady, 484. Adventure, The, 719. ^tna L. Ins. Co. v. Nexsen, 692. 694. ^tna Steel Works v. Kossuth Co.. 711. Agawam Bank v. Straver, 726. Agnevv v. Bell, 754. Agra V. Leighton, 541, 544. Agricultural Nat. Bank v. ShefBeld, 556. Ah Thaie v. Quan Wan, 516, 524. Aid, The, 719. Aiken v. Leathers, 524, 525. Aikin v. Peay. 754. ' Ainslie v. Wilson, 750. Aireton v. Davis. 492. Akerly v. Vilas. 597, 640, 641. Alabama Iron Works v. Hurley, 703. Albea v. Griffin. 583. Alber v. Froehlich, 537. Alberts v. Stearns, 692, 695. Albion Lincoln, The, 719. Alder v. Keighley, 651. Aldrich v. Aldrich, 759. V, Chubb, 733. V. Jackson, 668. v. Reynolds, 534, 525, 52a V. Stockwell, 542. Aldridge v. Johnson, 644. Alexander v. Byrd, 739, 741. V. Gardner, 644. V. Gish, 529. V. Jacoby, 512, 515, 516. V. Macauley, 656, 657, 659, 660. V. Worman, 679. Alfaro V. Davidson, 693, 694 Alfred v. Fitzjames, 679. Algeo V. Algeo, 693, 709. Algitha, The. 718. Allaire v. Hartshorne, 541, 543. V. Whitney, 676. Allaire Works v. Guioo, 695. Allamon v. Mayor, 713. Allan V. Kenning, 724. V. Lake, 667, 668. Alleghany Co. v. Van Campen, 475. Allen V. Anderson, 580. 584 608, 670. V. Atkinson, 581, 591. V. Brightmire, 728. V. Brown, 535. TABLE OF CASES. Heferences are to sections. Allen V. Ford, 644. V. Fox, 503. V. Furbish, 554. V. Grider, 478. V. Hammond, 542. V. Jarvis, 647. V. Kemble, 563. V. Kennedy, 592, 594 V, Kersey, 620. V. McKibbin, 688, 709, 710, 711. V. McNew, 709. V. O'Donald, 737, 740. V. Eamey, 487. V. Roundtree, 669. V. Rundle^ 733. V. Savings Bank, 724. V. Stnte. 476. 479. V. Thrall, 713, 714. T. Todd, 668. V. Truesdell, 671. V. Watson, 474. V. Woodard, 734. Allis V. McLean, 702, 703. V. Nininger, 610. Allison V. Montgomery, 580, 583. V. Rutledge, 727. Alma V. Hunt, 620. Alna V. Plummer, 568. Althouse V. Alvord, 642. Altman v. Fovvlei-, .564. V. Rittershofer, 564. Alvord V. United States, 480. American Bank v. Baker, 737, 738, 740. American Cannel Coal Co. v. Seitz, 602. American Ins. Co. v. Johnson, 720. American Manuf. Co. v. Klarquist, 644. Araerman v. Deane, 576. Ames V. Oilman, 682. Amherst Bank v. Root, 483. Amnions v. People, 496. Amor v. Fearon, 686. Amory v. Amory, 538. V. Merrvvveatliei', 542. Amos v. Cosby, 623. Amsden v. Dubuque, etc., R. Co., 703. Anderson v. Anderson, 540. V. DuHield. 670. V. Evving. 659. V. Falconer, 529. v. Frank, 647. V. Joliet, 488. V. Knox, 028. V. Lincoln, 635, 641. \. Maddox, 496. V. Rape) ye, 732. V. Talcott, 506. V. Th.^ Rdam. 719. V. Wallace, 53'). Anding v. Perkins, 669, 670. Andre v. Fitzhugh, 725. Andrew v. The Edam, 718. Andrews' Heirs, 496. Andrews v. Appel, 610. V. Brown, 590. V. Davison, 621, 622. V. Denison, 615. V. Eastman, 667. V. Glenville Woolen Co., 534, 535, 530. V. Hoxie, 557. V. Kneeland, 667. V. McCoy, 634, 641. V. Pond, 542, 556. V. Varrell, 744. V. Wheatou, 542, 549. V. Word, 572. Andrus v. Bealls, 735. V. Waring, 761. Angle V. Haiina, 686. Anna, The, 720. Anna Leland, The, 717. Annett v. Terry, 760, 767. Annie Henderson, Tlie, 719. Anonymous, 478, 539, 556. Ansley v. Jordan. 693. Ansly V, Mock. 478. Antelope, The, 717. Anthony v. Comstock, 518. V. Percifull, 750, 758, 761, 763. Antrobus v. Smith, 749. Apgar V. Hilei", 748, 752. Apothecaries Co. v. Burt, 478. Appleby v. Mevers, 476, 655, 700. V. State, 487, 488, 705. Appleton Bank v. McGilvray, 555. Archer v. Archer, 761. V. Bamford, 549. V. Dunn, 556. V. Noble, 487. Arden v. Goodacre. 489, 492. Ardesco Oil Co. v. North American O. & M. Co., 631. Arding v. Lomax, 686. Armitage v. Pulver, 755. Armstrong v. Brown, 561. V. Gilchrist, 747. V. Percy, 605, 617, 669. V. State, 474. Arnold v. Bailey, 499. V. Bryant. 730. V. Commonwealth, 474 V. Delano, 644. V. Suffolk Bank, 659. V. Wilts, 542. Arrington v. Gee, 556. Arrowsmith v. Rappelge, 538. Arthur v. Moss, 669. Artizans' Bank v. Park Bank, 563. Ashbrook v. Hite, 586. Ashby V. Johnston, 739. Ashcraftv. Allen, 7ia, TABLE OF CASES. XI References are to sections. Ashe V. De Rossett, 704. Ashley v. Harrison, 527. V. Peterson. 508. Atberton v. Williams, 750. Atkin V. Acton, 686. Atkins V. Bahrett, 572. V. Baily, 480. V. Barnstable, 711. V. Hosley, 669. V. Moore, 508. Atkinson v. Bell, 644. V. Manks, 563. V. Morse, 713. V. Smith, 645. V. Stewart, 759. Atkisson v. Steamboat C. G., 666. Atlantic & P. Tel. Co. v. Barnes, 482. Atlas Bank v. Brownell, 735. xVttacapas, The, 719. Attersol v. Stevens, 588. Atwell V. Towles, 478. Atwood V. Lucas. 644. V. Vincent. 641. Augustien v. Challis, 492. Auitman v. Case, 671, 673. V. Heflfner, 744. V. Mason. 545, 551, 676. V. Stout, 672. Austin V, Austin, 708, 709. V. Belknap, 737. V. Dorwin, 752. V. Imus, 557. V. Moore, 539. Averill v. United States, 681. Avoca, The, 718. Axford V. Perrett, 499. Axtell V. Chase, 597, 638. Ayer v. Tilden. 557. Ayers v. Hutchins, 542. Aymar v. Sheldon, 563. Babbitt v. Bumpus, 682. Babcock. In re. 749. Bach V. Levy, 667. 670. Bachelder v. Fiske, 754, 758. Bachman v. Fenstermacher, 490. Backhouse v. Hall, 725. Backus V. McCoy, 595, 593, 600, 616, 625. Bacon v. Cobb, 700. V, Cropsey, 491. Badders v. Davis, 707. Bado-er v. Phinney, 690. Badget v. Broughton. 670, 671. Bagby v. Chandler, 475. Baggett V. Beard, 524. Bagley v. Cleveland Rolling Mill Co., 670. V. Findlay, 644, 647. Bagueley v. Hawley, 668. Bailey v. Chapman, 683. V. Clay, 651. Bailey v. Cromwell, 571. V. Decrispigney, 655. V. Edwards. 737. V. Heald, 556. V. Larchar. 724. V. Scott. 610, 623. V. Smith, 644. V. Woods, 690, 707, 709. Bain v. Ackworth, 561. V. Fothergill. 578. V. Heath, 523. Bainbridge v. Wilcocks, 556. Baird v. Mathews, 667. v. Ratcliflfe, 682, 687, 700. Baker v. Arnold, 731. V. Briggs. 728, 735, 737, 73a v. Corbett, 584, 623. V. Cornwall. 477. V. Dewey. 594. V. Drake. 656. V, Frellson, 530. V. Garratt, 499. I V. Higgins. 650. V. Hunt, 591. V. Johnson, 651. V. Jordan, 559, 659. V. Kellogg, 741. V. Knickerbocker L. Ins. Co., 693. V. Mair, 659. V. Martin. 752. V. Morris, 478. V. Robinson. 730. Baker Salvage Co. v. The Excelsior, 719. Baldridge v. Cook, 571, 572. Baldwin v. Bennett, 713. V. Gordon, 743. V. Munn, 580. 623. Bales V. Wingfield, 492. Ballard v. Child. 591. Balleutine v. Robinson. 644, 649. Ballingalls v. Gloster, 555. Balme v. Wombough. 556. Balsbaugh v. Frazer, 678, 682. Balsley v. Hoflfman, 499, 501. Baltimore B. & L. Society v. Smith, 580. 582. 590. Baltimore Citv P. Ry. Co. v. Sewell, 656. 657. Baltimore & O. R. Co. v. Jackson, 726. V. Laflferty, 709. V. Polly, 712. Bancreft v. Dwinnell, 748. Banes v. Gordon, 570. Banfield v. Marks. 765. Bangor Bank y. Hook, 562, 564 Bank v. Fordyce, 737. V. Robinson, 743. V. Rogers, 739. V. Simpson, 743. Bank of Brighton v. Smith, 478, 50a Xll TABLE OF CASES. Heferences are to sections. Bank of British North America v, Elhs, 564. Bank of Clienango v. Os,s;oocl, 563. Bank of Commerce v. Union Bank, 555. Bank of IlHnois v. Brady, 556. 557. Bank of Ky. v. Wister, 559, 565. Bank of Missouri v. Wright, 563. Bank of Monroe v. Giflford, 737, 750. Bank of Montgomery v. Eeese, 657. 659. Bank of Montreal v. Eecknagel, 724. Bank of Peru v. Farnsworth, 559. Bank of Rome v. Curtis, 490. Bank of St. Albans v. Smith. 726. Bank of Toronto v. Hunter, 731. Bank of U. S. v. Bierne, 755. V. Magill, 478. V. Smith. 555. V. United States, 560, 561, 563. Bank of Washington v. Barrington, 725. Bankart v. Bowen, 645. Banks v. Brown, 537. Bann v. Dalzel, 557. Banner man v. White, 667. Bannister t. Reed, 709. Banon v. Frank, 592. Barger v. Northern Pacific R, Co., 654. Barber v. Backhouse, 543. V. Connecticut, etc., Ins. Co., 658. V. Gillson, 747. 750. V. Kilbourn, 573. V. Rose, 744. V. Willard. 645. Barbour v. Nichols, 579. Barclay v. Gooch, 750. V. Lucas, 725. Bardvvell v. Lvdall, 737. Barhydt v. Ellis, 738. Barkalow v. Pfeffer. 709. Barker v. Green, 492. V. Hodgson, 476. V. Knickerbocker L. Ins. Co., 693, 693. V. Mann, 652. V. Morton, 543. V. Prentiss, 553. V. Roberts, 643. V. Rutland & W. R. Co., 709, 710. V. Sterne, 556. V. Troy & R. R., 711. Barlow v. McKmley, 620, 627. Barman v. Carhartt, 734. Barmon v. lathauer, 565, 609. Barnard v. Kellogg, 667. Barned v. Hamilton, 657. Barnes v. Brookman, 530. V. Brown, 656, 657, 659. V. Seligman. 656, 657. V. Whitaker, 487, Barnett v. Higgins, 587, 588. V. Smith, 727. V. Terry, 650. Barney v. Clark, 739. V. Dewey, 669. V. Grover, 745. V. Newcomb, 556, 557. Barnhart v. Hughes, 620, 633. Barns v. Burrow, 727. V. Learned, 594. Barnstable Savings Bank v. Ballou, 551, 554. Barr v. Gibson, 543. V. Logan. 647. V. Van Duyn, 690. Barren, Ex parte, 585. Barrels of Oil, 720. Barrett v. Allen, 659. V. Goddard, 644. V. Hartley, 679. V. Monroe, 496. Barron v. Mullin, 644. Barrow v. Arnaud, 492, 651. V. Hill, 538. Barry v. Cavanagh, 653. V. Palmer, 644. V. Ransom, 755. Bartholomew v. Candee, 592. V. Jackson, 707. Bartlett v. Blanchard, 651. V. Hoppock, 667. V. Kidder, 507. V. Marshall, 557. V. Odd Fellows' Savings Bank, 682. V. Williams, 739. Barton v. Farmers' & Mechanics' Nat. Bank, 564 V. Fish, 537. V. Smith, 516. Basford v. Pearson, 575. Bassett v. Avery, 541. V. Bassett, 575. V. Sanborn, 709, 710, 711, 713. Basten v. Butter, 544, 744. Bastow V. Bennett, 724. Batohelder v. Sturgis, 623, 627, 628. Bates V. Butler. 543. V. Cherry Valley R Co., 659, 660. V. Hudson. 691. V. Terrell, 573, 574. Bateson v. Gosling, 743. Batterman v. Pierce, 544, 744. Battey v. Holbrook, 474. Battle V. Rochester City Bank, 585, 586. Batty V. Snook, 551. Bauskett v. Jones, 637. Baxter v. Bradbury, 601. V. Roberts, 700. V. Ryerss, 611, 614 V. Smack, 734, TABLE OF CASES. Xlll References are to sections. Baylies v. Fettyplace, 655. Bay of Naples, The, 719. B. C. Terry, The, 720. Beach v. Grain, 702. V. Miller, 620, 627. V. Mullin, 691. V. Packard, 594. V. Waddill, 641. Beal V. Alexander, 519. V. Thompson, 686. Beale v. Cochran, 743. V. Seiveley, 641. Beals V. Commonwealth, 487. V. Olmstead, 667, 668. V. Terry, 647, 651. Bean v. Arnold, 728. V. Mayo, 620, 621, 622. V. The Grace Brown, 717. Beard v. Kirk, 710. V. Roth, 498. V, Straw, 651. Bearse t. Pigs of Copper, 716, 719. Beaupland v. McKeen, 639. Beck V. Simmons, 641. V. West, 694. Becker v. Northway, 744 Beckford v. Hood, 484. Beckhead v. George, 725. Beckley v. Munson, 752. Beckwith v. Angell, 780. V. Baldwin, 694. Beddoe v. Wadsworth, 613. Beddone v. Hoi brook, 489. Bedwell v. Gephart, 738. Beebe v. Johnson, 686. V. Swartwout. 641. Beebee v. Robert, 650, 667. Beecher v. Baldwin, 608, 622, 623. V. Denniston. 654. Beed v. Blaudford, 586. Beeher v. Jones, 557. Beeman v. Banta. 671, 702. Beers v. Williams, 667. Begale v. McKinzie, 645. Behn v. Burness, 667. Behrens v. McKenzie, 524. Beirne v. Dord, 650, 667. Belden v. Seymour, 594. Bell V. Bartlett, 499, 503. V. Bnieii, 724. V. Dagg. 555, 668. V. Hewitt, 679. V. Jasper, 498. 755. T. Offutt, 647, 650. V. Reynolds, 663. V. The Aun, 720. Bellairs v. Ellsworth, 725. Bellinger v. Craigue, 686. Belmont Branch of State Bank v. Hoey, 743. Belloni v. Preeborn, 724, 765. Bellows V. Folsom, 552. Bellows V. Lovell, 739. Belohradsky v. Kuhn, 541. Belt V. Worthington. 507. Bement v. Smith, 569. 644, 649. Bemis v. Gannett, 522. Bender v. Fromberger, 581, 593, 612. Benedict v. Bray. 475. V. Olson, 739. Benjamin v. Hilliard, 672, 729. Bennett v. Bartlett, 668. V. Beidler, 551. V. Brown, 515, 516, 536. V. Buchan, 668. V. Buchanan, 751. V. Dowling, 752. V. Jenkins, 605, 617. V. Keehu, 620. V. Pardini, 522. V. Thompson, 588. V. Vingard. 488. Bensel v. Lynch, 489. Bent V. Hartshorn, 724. V. Lauve, 556. Bentley v. Harris, 755. Benton v. Fay, 665. V. Fletcher, 733. V. Martin, 553. Benton Co. v. Rutherford, 592. Benziger v. Miller, 693, 694 V. AVren, 725. Bergin v. Wemple, 679. Berkey & G. Furniture Co. v. Has- call. 663. Berlin v. Sober merhorn, 545. Berry v. Dwinel, 580, 651, 653, 654 656. Berryhill v. Byington, 571. Berryman v. Hewitt. 590. Bertrand v. Byrd, 709, 711. Bessinger v. Dickersou, 481. Best V. Johnson, 726. Bethel Street M. Co. v. Brown, 644 Bethune v. McCreary, 541. Betts V. Gallais, 590. V. Union Bank, 594 Bevans v. Ramsey, 488. Bever v. North, 615. Beverly v. Williams, 703. Beyer v. Marks, 572, 590. Beyerle v. Hain, 480. Beymer v. McBride, 693. Bezzell v. White, 759. Bianchi v. Maggini, 700. Bibb V. Freeman, 593. Bickford v. Page, 592, 593, 599, 613. Bicknall v. Waterman, 656, 659. V. Buck, 644 Bierer v. Fretz, 579, 581. Bigelow V. American F. P. Manuf. Co., 693. V. Bridge, 480. V. Hubbard, 620. XIV TABLE OF CASES. Beferences are to sections. Bigelow V. Jones, 608. V. Legg, 647. Bill V. Barker, 725, 727. Billingsly v. Cahoon, 556. Billmeyer v. Wagner, 664 Bing Gee v. Ah Jim, 517. Bingham v. Weiderwax, 594, 601. Bircher v. Watkins, 594. Birdie, The. 715, 719. Birdsall v. Carter, 670. Birdsall Co. v. Palmer, 670. Birdson v. Ellis, 693. Birney v. Haim, 613. V. Hann, 613, 614. Bisbee v. Torinus, 545. Bischof V. Lucas, 549. Bishop V. Alcott, 725. V. Church, 470. V. Felch, 551. V. Price, 709. Bissell V. Saxton, 480. V. Starr, 654. Bitner v. Brough, 580. Bixby V. Barklie, 737. Bizzell V. Brewer. 560. Black V. Black, 590. V. Caruthers, 474. V. De Camp, 651. V. Ward, 559. V. Woodrow, 713. Blacker v. Slown, 670. Blackie v. Hudson, 620. Blackmore v. Flemying, 477. Black River Bank v. Page^ 739. Black River Lumber Co. v. Warner, 649. Blagg V. The Bicknell, 717. Blain v. Taylor, 620. Blair v. Reading, 525. Blaireau, The, 717. Blake v. Burnham, 593, 616. v. Everett. 620. V. Traders' Nat. Bank, 736. Blakenian v. Sherwood, 493, 494. Blakeney v. Ferguson, 529. Blakesleev. Holt, 711. Blanchard v. Blanchard, 601, 620. v. Ellis, 596, 601. V. Ely, 664, 688, 703. V. Hoxie, 602. V. Wood, 728. Blasdale v. Babcock, 614, 669. Blecker v. Hyde, 727. Bledsoe v. Gonzales Co., 713. Blessing v. Beatty, 593. Blethen v. Lovering, 555. Bliss v. Brainard, 550. V. Heasty, 510. V. Smith, 634. Block V. Estes, 755. v. Myers, 526. Blodgett V. Brattleboro, 490. Blond heim v. Moore, 535. Blood v. Enos, 690. v. Wilkins, 609. Bloomer v. Bernstein, 645. Blossom V. Knox, 593. V. Van Court, 620. Blow V. Maynard. 748. Bloxham, Ex parte, 541. Blum V. Davis, 513. V. Gaines. 510, 512. Blumen, In re, 574. Blun v. Holitzer, 692, 693. Blydenburgh v. Bingham, 738. V. Welsh, 652. Blyer v. Monholland, 766. Blythe v. Speake, 668. Boardman v. Page, 757, 759. T'oard of Education v. Shaw, 712. Board of Justices v. Fennimore, 479. Boast V. Firth. 476, 689. Boatmen's Savings Bank v. Johnson, 741, 742. Boatwright v. Stewart, 510, 512. Bobo V. Vaideu, 498. Bocard v. State, 479. Bockenstedt v. Perkins, 496. Bodkin v. Merit, 749. Bodley v. McChoi d, 589. Boehmer v. Schuylkill, 487. Boehne v. Murphy, 724, 727. Boggs V. Lancaster Bank, 543, Boies V. Vincent, 651. Bolles V. Sachs. 692. Boiling V. Lersner, 588. V. Tate, 524, 525, 528. Bolton V. Johns, 594. V. Street, 556. Bonafus v. Rybot, 470. Bond V. Armstrong, 498. V. Clark, 6G8. V. Quattlebaum, 593, 605. V. Storrs, 730. V. The Cora, 717. 719. Bondies v. Slierwood, 716. Bone V. Torry. 750. Bonney v. Bonney, 737, 738. V. Seeley, 748, 750. Bonnon v. Urton, 594. Bonsall v. Taylor, 478. Bonta v. Miller, 593. Booker v. Bell, 609. V. Merri weather, 604 Bookstaver v. Jayne, 552. Bookwalter v. Clark. 649. Boom V. St. Paul F. & M. Co., 499, 506. Boon V. McHenry, 592, 597. Boorman v. Johnston 667. V. Nasli, 647, 648, 651, 688. Booth V. Day, 613. V. Hall, 474 V. Hodgson, 550. TABLE OF CASES. XV Beferences are to sections. Booth V, Spuvten Duyvil R M. Co., 655, 671. V. Starr, 614, 631. V. Tyson, 708. Boothby v. Scales, 667, 668. Booty V. Cooper, 556. Bordeaux v. Cave, 573, 687. Borden v. Gilbert, 733. Bordwell v. Collie, 669. Boring v. Williams, 481. Borradaile v. Brunton, 672. Borrekins V. Bevan. 667. Borries v. Hutchinson, 663, 666. Bosley v. Smith. 487. V. Taylor, 755. 756. 757. Bosnian v. Akeley, 733. Boston, The, 716, 720, 721. Boston V. Moore, 487. V. White, 494. V. Worthington, 615. Boston Waterpovver Co. v. Gray, 612. Boston & S. Glass Co. v. Moore, 725, Bostwick V. Bryant. 742. V. Williams, 603, 604 Bouchaud v. Dias, 759. Boughner v. Hall, 758. Bouldin v. Page, 563. Boultbee v. Stubbs, 742. Boulter v. Hamilton, 601. Boulware v. Robinson, 751. Bourne v. Ward, 542. Bowditch V. Green, 758. Bowen v. Bradley, 556. V. Groover, 737. V. Stoddard, 540, 561, 563. Bower v. Hoyt, 645. Bowers v. Cobb, 725, 750. Bowes V. Shand. 645. Bowie V. Hill, 564. Bowker v. Johnson, 551. Bowley v. Goddard, 716. V. Holway, 636. Bowling V. Varnum, 686. Bowman v. Clemmer, 667. Bowne v. Mount Holly Nat. Bank 742. Bowser v. Cessna, 570. Boyce v. Edwards, 556, 557, 558. v. Ewart, 724. V. Grundy, 538. Boyd V. Boyd, 478. V. Crawford, 667. V. Desmond, 488. V. Huffaker, 509. V. Lite, 645. V. McCann, 541. V. McDonough, 736, V. Meighan. 713. V. Myers, 752. V. Whitfield, 668, 669. V. Wilson, 667. Boyden v. United States, 479. Boylan v. Holt, 679, 682. Boyle V. Boyle, 762. V. Canal Co., 688. V. Edwards. 609, 618. V. Parker, 690. V. Reeder, 703, 704. Boynton v. Pierce, 730. V. Twitty, 761. Bozarth v. Dudley, 709, 710. Boze v. Davis, 583. Bozeman v. Rose, 656. Brackett v. McNair, 651. v. Morse, 711. V. Sears, 679, 682. Bradford v. Frederick, 506. V. Manly, 650, 667. Bradley v. Burwell, 754, V. Rea, 675. Bradshaw v. Crosby, 622, 623. Bradt v. Holden, 491. Brady v. Brady, 654. V. Holderman. 539. V. Spurck, 591, 592, 610, 622. Bragg V. Morrill, 667. Braiden v. Mercer, 495. Brainard v. Jones, 478. V. Reynolds, 734. Braitch v. Guelick, 550. Braman v. Bingham, 622. V. Dowse, 765. V. Hess, 555, 731, 732. V. Perry, 535. Branch v. Davis, 492. Brandamour v. Frant, 528. Brandenburg v. Flynn, 755. Brandt v. Bowlby, 651. V. Foster, 591, 592, 593, 623. V. Lawrence, 645. Brangwin v. Perrot, 478. Bransconibe v. Scarborough, 499.. Brantley v. Thomas, 650, 667. Brasher v. Davidson, 656, 659. Brasyear v. Maclean, 484, Bratt V. Ellis, 582. Braynard v. Marshall, 556, 557. Breckinridge v. Rolls, 659. V. Taylor, 755. Breed v. Hillliouse, 730. Brennan v. Clark, 725, 737. Brent v. Parker, 713. . V. Richards, 651. Brenton v. Davis, 667. Brewer v. Franklin Mills, 736. V. Norcross. 744. V. Tvson, 708. V. Watson. 484. Brewster v. Countryman, 669. V. Kitchell. 476. V. Wakefield. 556. Bridge v. Wain, 667, 671. Bridgeford v. Crocker, 644, 647. Bridges v. Hall, 682. XVI TABLE OF CASES. Beferences are to sections. Bridges v. Lanliam, 703. Brig Susan, The, 716. Briggs V. Boyd, 683. 756, 760. ' V. Hintou, 736. 755, 759. V. New York R Co., 666. Brigham v. Bussey, 484. V. Carlisle, 694. V. Evans, 575, 581. V. Hawley, 695. V. Potter, 550. • : Bright V. Boyd, 587. V. Judson, 556. 557. V. Lennon, 755. Brill V. Flagler, 654. Brinckerhoff v. Plielps, 581. Brinker v. Leinkauff, 763. Brinkley v. Swicegood, 693. Brisbane v. Pratt, 550. Briscoe v. Kenealy, 543. Brisendine v. Martin. 750, 759. Bristol V. Warner, 543. British Consul v. Smith, 719. Britton v. Fort Worth, 481. V. Turner, 690. Brizee v. Maybee, 508. Broad v. Thomas, 683. Broadwell v. Paradice, 508. Brobst V. Skillen, 488. Brockenbrough v. Blythe, 577. Brockway v. Petted. 488. Brodie v. Watkins. 683. Bromley's Case, 478. Bromley v. School District, 693. Brouson v. Coffin, 637, 638. Brooklyn v. Brooklyn R Co., 764. Brooks V. Baker, 734. V. Black, 614, 616, 618. V. Cotton, 681. V. Gibbs, 487. V. Governor, 488. V. Hoyt, 489. V. Hubbard, 659, 660. V. Moody, 633, 633, 761. v. St. John, 488. V. Tobin. 496. Broome v. United States, 480. Broquet v. Tripp, 675. Brotherton v. Thompson, 517. Broughton v. Duvall, 741. Brounty v. Daniels, 536. Brower v. Lewis, 667. Brown v. Ayer, 743. V. Bellows, 643. V. Bigelow, 668, 670. V, Board of Education, 692, V. Brodhead, 633. V. Burhans, 667. -«. Chambers, 739. V. Davies, 543. V. Dickerson, 581, 605, 613. V. Edgerton, 067. 763, 693. Brown v. Egington, 673. v. Foster, 699. 703. V. Gitchell, 474. V. Glascock, 494. V. Gracy, 556. V. Hancock, 537. V. Hare, 644. V. Haven, 734, 733. V. Jackson, 563. V. Jones, 534, 535, 537. v, Kennedy, 683. V. Kimball, 686. V, Lattimore, 485, 488, 725. V. Leavitt, 541. V. London. 476. V. Metz, 613. V. IMontgomery, 555. V. Moore, 654. V. Mosely, 487. V. Muller, 645, 646, 651. V. Murphee, 667. V. North, 549. V. Parker, 499, 501. V. Penn, 484, 493. V. Phipps, 487. V. Post, 679. V. Rathburu, 737. V, Saul, 559. V. Sayles, 667, 670, 672. V. Smith. 668, 669. V. Sneed, 485. V. St. Paul, etc., Ry. Co., 684. V. State, 479. 498. V. Turner, 543. V. Tyler, 536. V. Weber, 710. V. Weldon. 543, 670. V. Wood, 675. Browne v. Hallett, 474. Brownell v. Cliapman, 703. Browner v. Davis, 530. Browning v. Hamilton, 644. v. Porter, 534. Bruce v. Coleman, 518, 516. v. State. 488. V. United States, 480. Brumby v. Smith, 700. Brundridge v. Whitecomb, 744 Brunott v. McKee, 487. Bruns v. Schreiber, 594, 62a Brunston. The, 717. Brunswick v. Snow, 488. Bryan v. Johnson, 638. V. Philpot, 543. V. United States, 480. Bryant v. Booth, 581. V. Crosby, 668. V. Hambrick. 579. V. Isburgh, 668. V. Wilson, 591. Buchanan v. Alwell, 641. V. Clark, 736. TABLE OF OASES. xvu References are to sections. Buchanan v. State, 496. Buck V. Kent, 706. V. Renisen, 508. V. Rhodes, 499, 506. V. Rodgers, 702, 704. V. Sanders, 784. V. Worcester, 679. Buckles V. Cunningham, 542. Buckley v. Holmes, 651. Buckm'an v. Goddard, 668. Buckmaster v. Grundy, 477, 579. Buell V. Tate, 548, 573. BuflEalo Barb Wire Co. v. Phillips, 662, 668. Buffington v. Ulen, 644. Buford V. Gould, 670, 671. Bulkley v. Honold, 668. Bull V. Allen, 741. V. Bliss, 733. V. Schuberth, 692. V. Willard, 591. Bullard v. Briggs, 594. V. Harkness, 527. V. Stone, 651. Bullock V. Adams, 585. V. Camnbell, 747. V. Ferguson, 524, 525, 526. V. Taylor, 564. Bump V. Cooper, 670. Bumpus V. Platner, 641. Bunce v. Bunce, 598. Bunny v. Hopkins, 607. Bunscombe v. Scarborough, 478. Burbank v. Berry, 474. V. Gould, 594. V. Pillsbury, 620, 628. Burch V. De Rivera, 725. V. State, 494. Burchfield v. Haffey, 478. Burckhardt v. Burckhardt, 658. Burdett v. Lowe, 586. Burge V. Cedar Rapids, etc., R Co., 586. Burgen v. Sharer, 525. Burgess v. Doble, 534. V. Love, 728. Burgett V. Bissell, 588. V. Paxton, 530. Burk's Appeal, 590. Burk V. Clements, 609, 610. V. Hill, 620. V. Serrill, 581. Burke v. Beveridge, 594, 601. Burlington Ins. Co. v. Johnson, 726. Burnby v. Bollett, 667. Burnett v. Caldwell, 582. V. Harwell, 494. Burnham v. Allen, 542. v. Roberts, 651. Burnhisel v. Firman, 556. Burns v. Follansbee, 530. V. Parish, 746, 750. Burr V. Boyer, 739. V. Brown, 660. V. Gibson, 667. V. Todd, 575, 581, 584, 588. V. Williams, 642. Burrall v. Acker, 530. V. De Groot. 555. Burrell v. New York & S. S. Co., 713, 714. Burroughs v. Morse, 684, Burrows v. Bank of Tennessee, 741. Burt V. Dewey, 668, 669. Burtis V. Thouipson, 645. Burton v. Anderson, 556, 557. V. Brooks, 559. V. Hansford, 730. V. Reeds, 601, 605. v. Smith, 516. V. Young, 670. Burwell v. Jackson, 572, 581, 591. Busby V. Caraac, 556. V. Treadwell, 641. Bush V. Brooks, 707. V. Canfieid, 560, 653. V. Chapman, 714. V. Cole, 581. V. Haeussler, 763. V. Hibbard, 659. V. Holmes, 580, 651, 656. V, Marshall, 633. Bussier v. Chew, 727. Butcher v. Churchill, 748. V. Peterson, 605, 609. Butler V. Baker, 656, 659. V. Barnes, 619. V. Butler, 748. V. Gale, 627. V. Ladue, 748. V. Mehrling, 503. V. Meyer, 556. V. Moore, 674. V. Paine, 559. V. State, 488. V. Tufts, 668. V. Wigge, 475, 476. V. Winona Mill Co., 678. Butters v. Olds, 556, Byerlee v. Mendel, 690. Byers v. Bonsall, 650. v. McCIanahan, 755. Byrd v. Byrd, 690, 693. Byrne v. Byrne. 680. Byrnes v. Rich, 594, 595. Cabot Bank v. Morton, 668. Cade V. Brown. 581, 583. Cadman v. Markle, 679, 694 Cadmus v. Fagan, 620. Cady V. Scaniker, 538. v. Sheldon. 734. Caffrey v. Dudgeon, 475. xvm . TABLE OF CASES. ' Heferences are to sections. Cahall V. Citizens' Mut. Building Ass'n. 537. Cahen v. Piatt. 650, 651, 653, 654. Cahill V. Patterson, 686. Cain V. Bates. 739. Cairnes v. O'BIeness, 487. Calcutta Co. v. De Mattos, 644 Caldwell v. Dickson, 686. V. Sawyer, 676. V. Shepherd, 682. V. West, 503, 506. V. Wliite. 587. 588. Calhoun v. Hannan, 510. Calkins v. Bauniojardner, 704 Call V. Puffin, 496. Calla V. Patterson, 494. Callahan v. Shotwell, 687. Callaway v. Price, 739. V. Quattlebuni, 668. Callender I. & W. Co. v. Badger, 670. Callow V, Lawrence, 541. Calloway v. Snapp, 742. Calvit V. McFadden, 656. Camanche, The, 715, 716. Camden v. Doremus, 733. Camden Consolidated Oil Co. v. Schlens, 671. Cameron v. Boyle, 474. V. White, 713. Camp V. Bostwick, 754, 759. V. Hamlin. 647, 651. V. Pulver, 643. V. Watt. 486. Campbell v. Baker, 765. V. Butler, 728, 730. V, Campbell, 684. V. Chamberlain, 512. V. Commonwealth, 486. V. Hodgson, 554. V. Johnston, 593. V. Jones, 547, 751. V. Metcalf, 524 V. Nicliols, 556, 557. V. Wilcox, 538. Canada \. Canada, 709. Canal Bank v. Bank of Albany, 555, 668. Canfield v. McLaughlin, 518. Cannel v. Buckle, 470. V. McClean, 579, 584 Cannon v. Cooper, 494. V. Folsom, 656. Cannon Coal Co. v. Taggart, 695. Capel V. Butler, 739. Capen v. De Steiger Glass Co., 651, 653. Card V. Hope. 550. Cardell v. Bridge, 709. 711. Cardozo v. Hardy, 473. Cardwell v. Hicks, 541. Carew v. Denney, 728. Cargo ex Ulysses, 717. Cargo from Wreck of Bark Ed- wards, 720. Carkin v. Savory, 726. Carleton v. Woods, 550. Carley v. Wilkins, 668. Carlisle v. Orde, 624 Carlon v. Dixon, 478, 505, 763. Carlton v. Bailey, 550. V. Whitcher, 550. Carmack v. Commonwealth, 487. Carman v. Noble, 765. Carnahan v. Hughes, 644. Carothers v. Mctlhenny Co., 510. Carpenter v. Bowen, 759. V. Doody, 488. V. First Nat. Bank, 662. V. King. 737. V. Le Count, 694. V. McClure, 545. V. Minter, 748. 756. V. Phillips, 542. 545. V. Robinson, 654. V. Stevenson, 512. V. Warner, 488. Carr v. Dooley, 620. V. Howard, 741. V. Roberts, 624, 631, 765. Carroll v. Bowie, 738. V. Rice, 587. 590. v. Welch, 686, 690, 700, 708, 711. V. Weld. 730. Carroll Co. Savings Bank v. Strother, 743. Carson v. Baillie, 668. V. Kelley, 638. Carter v. Black, 668, 755. V. Carter, 478. 571, 578, 637. V. Deuman, 592, 604 620, 630. V. Duggan, 491. V. King, 556. V. McGehee, 728. V. McNeeley, 643. V. Peak, 623. V. Penn, 659. V. Thorn, 478. Cartin v. Hammond, 583. Cartwright v. Culver. 641. V. McCook, 656, 659. Carver v. Taylor, 581. Cary v. Gruman, 668, 670, 671, 674 Case v. Babbitt. 491. V. Erwiu, 620. V. Gerrish, 542. V. Hall, 668, 669. V. Hotchkiss, 679. 682. V. Wolcott, 584 587, 590. Casey v. Lucas, 641. Cash" V. Kennion, 556, 563. Cassidy v. Le Fevre, 703. Castigan v. Mohawk, etc., R Co., 685. Castle V. Candee, 730. V. Peirce, 597. TABLE OF CASES. XIX References are to sections. €astner v. Slater, 723. Caswell V. Coan, 669. V. Wendell, 593, 608. Cathcart v. Bowman, 605, 620, 625, 628. Catlett V. Brodie. 532. Catlin V. Birchard, 551. V. Tobias, 645. Caulkins v. Harris, 597. Cauthen v. Barnesviile Bank, 539. Caverly v. Nichols, 474. Cayenne, Tlie, 720. Cayuga Nat. Bank v. Dunklin, 730. C. & C. Brooks, The, 716. Cecconi v. Rodden, 608. Centurion, The, 710. Chace v. Hinmau, 631, 761, 765. Chadsev v. Green. 668. Chaffee v. Jones, 730, 757. V. Memphis. 730. Chaffin V. Campbell, 755. Chairman v. Moore, 494. Chamberlain v. Applegate, 536. V. Beller, 762, 763. V. Bi-ady, 582. V. Morgan, 693. V. Parker, 697. V. Preble, 615. Chambers v. Hodges, 539. V. Jaynes. 708, 709. V. King, 709. V. Waters, 501. Chamblee v. McKenzie, 644. Chambliss v. Robertson, 556. Chamness v. Cliamness. 654 Champion v. Griffith, 730. Champlin v. Dotson, 641. V. Rowley. 645. Champomier v. Worthington, 531. Chancellor v. Wiggins, 668. Chandler v. Brainard, 759. V. Grieves, 688. V. Higgins, 736. V. Westfall, 730. banter v. Hopkins, 667. hapel V. Bull. 593, 609, 623, 627, 628. haplain v. Briscoe, 635. hapman v. Commonwealth, 481. V. Cochran, 647. V. Dease, 643, 645. V. Eddy, 571. V. Holmes, 593. V. Ingram, 647. V. Larin, 647. V. Murch, 668. V. Robertson, 556, 557. V. Shaw, 751. V, Smith, 488. V. Speller. 668. V. Steinmetz, 562. V, Thornburgh, 490. Charles, Tlie, 717. Charles Averv, The, 717. Charles Henry and Cargo, The, 720. Charles v. Haskins, 487. Charles City P. & M. Co. v. Jones, 513, 514. Charles Lafitte & Co., In re, 570. Charlotte, etc., R. Co. v. Jesup, 672. Charlton v. Lav. 668. Chartier v. Marshall. 581, 584. Chase v. Dearborn, 537. V. Drew, 556. V. Heaney. 705. V. Monroe. 491. V. Ries, 537. V. Whitmore, 564. Chatham v. Jones, 664. V. McCrea, 725. Cheerful. The. 718. Chelmsford Co. v. Demerest, 480, 725. Cheney v. City Nat. Bank, 622. Cheny v, Higginbothara, 542. Cherry v. Mann. 477. Chesapeake & O. Canal v. Knapp, 678, 713. Chester v. Bank of Kingston, 737. Chicago V. Greer. 649. V. Sexton. 713. V. Tilley. 713. Chicago, etc., Ry. Co. v. Bartlett, 726. V. Vosburg. 707. Child v. Eureka Powder Works, 761. V. Pierce. 659. Childress v. Stuart. 559. Chilliner t. Chilliner. 470. Chilsons v. Downer, 762. Chilton V. Butler. 683. V. Chapman. 758. V. Whiffin. 555. Chinery v. Viall. 651. Chinn v. Wagoner, 631. Chipman v. Briggs, 590. V. Morrill. 755. V. Todd, 739. Chisni V. Woods, 668. Choate v. Arrington. 498. V. Thorndike, 495. Choteau v. Jones, 745. Christian, Ex parte, 482. Christian v. Ashlev Co., 482, 488. V. Scott, 573. Christian County v. Overholt, 713. Christman v. Commonwealth, 486. Christophers v. White, 679. Christy v. Douglass. 682. V. Ogle, 619, 628. V. Reynolds. 639. Chumasero v. Gilbert. 556. Churchill v. Hunt. 631, 761, 765. v. Moore. 761, 765. Cilley T. Colby. 742. Cincinnati v. Evans, 675. XX TABLE OF CASES. Beferences are to sections. Cincinnati, etc., R. Co. v. Lutes, 713. V. Pearce, 605. Cincinnati & S. Ry. Co. v. Carthage, 698. Citizens' N. Gas. Co. v. Shenango N. Gas Co., 6G2. City Bank v. Guttler, 540. V. Young, 739. City Nat. Bank v. Jeffries, 510, 514, 515 City of Chester, The. 719. Claflin V. Boston & L. R. Co., 644. Clagett V. Easterday, 590. Claggett V. Hall, 594. V. Richards, 501. Clammer v. State, 474. Clancy v. Overman, 655. Clanton v. Burgess, 641. Clapham v. Crabtree, 507. Clapp V. Herdman, 603. V. Hughes. 683. V. Rice. 730, 742. V. Tirrell, 594. Clare v. Maynard, 671. Clarion, The, 715. Clarion Bank v. Jones, 654. Clarita and Clara, The, 715, 717. Clark V. Barrett, 741. V. Burdett. 724. V. Burr, 605, 616. V. Bush. 477, 478. V. Con roe, 592, 604. V. Cort, 541. V. Daley, 651. V. Fairchild, 710. V. Fensky, 679. V. Foxcroft, 748. V. Franklin. 700, 713. V. Gilbert, 686. 687, 688. V. Goodwin, 474. V. Hargrove. 609, 641. V. Holmes, 700. V. McNulty, 604. V. Marsiglia, 569. V. Mayor, 569, 718, 714 V. Merriam, 730. V. Miller, 492. V. Moore, 645. V. Munford, 604, 618. V. Neufville, 670, 671. V. Norton, 501. V. Osborn, 741. V. Parr, 593. V. Perry, 622. V. Pinney. 651, 653, 656. V. Pope, 701. V. Ricker, 550. V. Russell, 710. 711. V. Sawyer, 727. V. Seyton, 478. V. Sickler, 733, 737, 739. V. Smith, 490, 709. Clark V. Snelling, 643. V. State, 474. V. Sullivan, 744. V. Swift. 592, 622, 635. V. Watson. 643. V. Wilkinson, 478, 498. V. Zeigler. 628. Clarke v. Abingdon, 477, 478. V. Sexton, 477. V. The Dodge Healey, 718. V. West. 498. Clary v. Rolland, 508. Clawson v. Munson, 564. Clay V. Huston, 659. V. Severance, 748. Claycoiub v. Munger, 610, 613, 614. Clayton v. Blake, 709, 711. Cleary v. Folger, 586. V. Sohier. 700. Clemants v. Beatty, 583. Clement v. Duffy, 503. Clement, etc., Manuf. Co. v. Meserole, 647, 648. Clements v. Hawkes Manuf. Co., 664 Clendinen v. Black, 545, 682, 687. Cleone, The. 717. Cleu v. McPherson, 667. Cleveland & P R. Co. v. Kelley, 656, 661. Click V. Green, 594. 605. Clifford V. Richardson, 699, 703. V. Watts. 476. Clifton V. Hooper, 492. V. Newsom, 647. Cliquot's Champagne, 654. Clopton V. Elkin, 542, 543, 549. V. Spratt, 739. Clough V. Baker. 545, 547. V. Patrick, 542. Clow V. Derby Coal Co., 737. Clute V. Robison, 571. C. M. Titus, The, 717. Coast Wrecking Co. v. Phoenix Ins. Co., 720. Coates V. Coates, 524. Cobb V. Haynes, 755, 757. V. Little, 728. V. Titus, 731. Coburn v. Haley, 549. V. Litchfield, 623. V. Odell, 550. V. Ware, 549. Cochran v. Gould, 620. V. Orr, 739, 741. V. Walker, 759. Cochrane v. Green, 541. Cockburn v. Ashland Lumber Co., 652, 653. Cocke V. Hoffman, 759. Cockrell v. Proctor, 592, 597, 599. Cockrill V. Kirkpatrick, 559. Coddiugton v Paleologo, 645. TABLE OF CASES. XXI Beferences are to sections. Codey v. Raynaud, 6SG. Coe V. Lindlev, 590. V. Eankiu, 761, 765. V. Smith, 688, 690. Coffin V. McLean, 744. V. Tlie Brig Akbar, 717. V. The John Shaw, 716. Coffmau V. Huck, 587. Coggeshall v. Ruggles. 748. Cogswell V. Hayden, 730. y. Lyon, 587, 616. Cohen v. Commissioners, 739. V. State, 503. Colt V. Schwartz, 650. Colburn v. Woodworth, 692, 693. Colby y. Meservey, 527. Colcock V. Goode, 668. Colcord y. Sylvester, 529. Coldren v. Miller, 657, 659. Cole V. Albers, 594. V. Champlain T. Co., 667. y. Cheoyeuda, 651. V. Justices, 634, 743, 744^ y. Ross, 661. y. Swanston, 645, 653. Coleman y. Ballard, 608. y. Riggs, 750. V. Simpson. 679. Colerain y. Bell, 481. Coles y. Ballard. 741. Colgroye y. Tallman, 741. Collamer y. Page, 502. Collard y. South Eastern Ry. Co., 666. Collier y. Cowger, 616, 623. V. Gamble, 591. 597, 598. V. Powell, 486. y. State, 490. Collingwood y. Irwin, 669. CoUins y. Baumgardner, 666, 699. V. Blantern, 550. V. Boyd, 745. V. Carey, 679. V. Carlisle, 551. y. Collins, 470. V. Delaporte, 648. V. Mitchell, 518. y. Sinclair, 526, 527. ( ullins Iron Co. v. Burkam, 543, 556. Collis y. Emett. 730. Collum V. Seward, 654. CoUyer v. Higgins, 488. V. Moulton, 713. Colman y. Post, 551. Colt y. Owens, 656. Colton y. Good, 699, 704, 710. CoWille y. Besly, 751. Columbia v. Amos, 657. Columbus Sewer Pipe Co. v. Ganser, ,724. Colvin V. Jones, 666. Combs y. Scott, 575, 590. V. Tarlton, 580, 587, 588. Comegys y. State Bank, 756, 759. Comings y. Little, 623. Commercial Bank y. Kortright, 656. Commercial Bank of South Austra- lia, In re, 558, 563. Commercial & R Bank v. Atherton, 545. Commissioners v. Greenwood, 480. y. Robinson's Executors, 743. V. Thompson, 590. Commonwealth y. Allen, 488. y, Bradley, 488. y. Cole, 487. V. Comly, 479. V. Drewry, 488. V. Fairfax, 480. V. Godshaw, 479. V. Harmer, 488. V. Holmes, 485. y. Kellogg, 484. V. Lamb, 475. V. Loyd, 498. V. Montgomery, 486. V. Overby, 476. V. Reitzei, 480. y. Sayres, 488. y. Stockton, 487. V. Straub. 486. y. Swope. 487. y. Tate. 482. y. Toms. 481. V. Vauderslice. 737. V. Williams, 487. y. Wolbert, 475. Comstock y. Hutchinson, 670. y. Son, 605. Condon y. Smith, 712. Conery v. Coons, 526. y. Noyes, 709. Confederate Note Case. 559. Conger y. Armstrong, 542. V. Babbet, 743. y. Fincher, 695. y. Weayer. 580, 587. Congregation of Children of Israel v. Peres. 686, 692, 693. Congregational Society y. Hubble, 711. Conkey y. Hopkins. 761, 765. Conley y. Palmer. 478. Connecticut, etc., Ins. Co. v. Bowler, 725. Connecticut Mut. L. Ins. Co. y. Scott, 725. Connell y. Boulton. 623, 624. V. McCleau, 651. Connemara, The. 715, 717, 719. Conner y. Bean. 761, 765. y. Clark, 551, 552, 554. y. Eddy, 669. y. Henderson, 668. y. Reeyes, 765, 767. XXll TABLE OF CASES. Beferences are to sections. Conners v. Holland, 556. Connor v. Dempsey, 670. Conover's Case, 498. Conover v. Hill, 754. Conrad v. Trustees Grand Grove, etc., 593. 597. 605. Conroy v. Flint, 507. V. Warner, 542. Consequa v. Fanning, 556, 561. V. Willings, 556. Converse v. Burrows, 670, 671. Conwell V. Pumphrey, 559, Cook V. Brandies, 647. V. Chapman, 524, 526. V. Clark. 540. 555, 731. V. Cockriil, 541. V. Curtis, 605, 606. V. Doggett, 583. V. Fiske, 683. V. Jackson. 638. V. King, 537. V. Lark in. 541. V. Litchfield, 563. V. McCabe, 700. V. McCormack, 531. V. Marsh, 534. V. Moffat, 556. V. State, 481. V. Tousey, 474. V. Welch, 683. Cook Co. V. Harms, 707, 712. Cooke V. Crawford, 557. V. Munstone, 645. Cooley V. Rankin, 641. Coolridge v. Brigham, 555, 668. V. Poor, 561. Coombs V. Newton, 761. V. Parker, 739. Coons V. People, 480. Cooper V. Hanies, 525. V. Hill's Adm'r, 510. V. Page, 728. V. Shuttleworth, 643. V. Singleton, 571, 597, 638. V. Waldegrave, 556. Coots V. Fa rns worth, 742. Cope V. Cope, 559. V. Smith, 741. V, Wheeler, 556. V. AVilliams, 574. Copeland v. Copeland, 609. V. Gorman, 597. Copelia, The, 717. Copper Co. v. Copper Mining Co., 656. Coppock V. Burkhart, 546. Corbitt V. Berryhill, 572. Corcoi'an v. Judson, 524. Cornell v. Barnes, 475. V. Dean, 054. V. Eagan, 725. V. Jackson, 593, 599, 601, 602. Cornell v. Vanartselden, 709. Cornish v. Stratton, 587, 588. Cornwall v. Gould, 750, 761. V. Haight, 645. Corwin v. Benham, 668. Cort V. Ambergate, etc., Ry. Co., 648, 649. Coster V. Monroe Manuf. Co., 641. Costigan v. Mohawk, etc., R. Co., 693. Cotton v. Reed, 659. V. Wallace, 538. Coulter V. Richmond, 730. County of Mahaska v. Ingalls, 480, 481. Courcier v. Graham, 590. Courtney v. Boswell, 670. Covey V. Campbell, 654. Cowdrey v. Coit, 610. Cowell V. The Brothers, 716, Coweta Falls IM. Co. v. Rogers, 703, 708, 709, 714. Cowger V. Gordon, 549. Cowley V. Davidson, 666. Cowqua v. Laudebrun, 556. Cox V. Henry, 581, 584, 605, 616. V. Joseph, 761. V. Livingston, 682. V. Long, 667. V. McLaughHn, 692, 713. V. Prentice, 643. V. Strode, 593. 605, 617, 618. V. Western P. R. Co., 708, 713. Coxe V. Skeen. 690. Coykendall v. Constable, 741. Crabb v. Mickle, 503. Crabbs v. Koontz, 499, 507. Crabtree v. Hagenbaugh, 708. V. Kile, 670. Crafts V. Mott, 755. Cragin v. Fowler, 542, 545, 551. Craig V. Ankeney, 755. V. Craig, 747. V. Derrett, 680. V. Donovan, 592. V. Park is. 733. V. Pride, 690. Cram v. Hendricks, 555, 731, 732. Cramer v. Eagle Manuf. Co., 563. Crane v. Andrews, 478, 537. V. Knubel, 709. Cranmer v. Graham, 691. V. McSwords, 752. Crapo V. Brown, 726. Crawford v. Andrews, 488, 489. V. Branch Bank, 560. V. Crawford, 037. V. Earl, 644. V. Gaulden, 739. V. Geiser Manuf. Co., 651, 652. V. McDaniel, 637. V. Meredith. 475. V. Penn, 498. TABLE OF CASES. XXlll Beferences are to sections. Crawford v. Smith, 644. T. Ward, 488. Craythorne v. Swinburn, 754. Creij2:er v. Cheesbrough, 683, Creigh v. Shatto. 573. Cremer v. Higginson, 724. Crenshaw v. Smith, 605, 641. Crescent Manuf. Co. v. Nelson Manuf. Co.. 649, 713. Creswell v. Nesbitt, 480. Criia V. Fleming, 735, 739, 743. Crippen v. Thompson, 761, 765. Cristield v. State, 736. V. Storr, 613, 614, 617, 618. Crist V. Armour, 653. V. Burlingame, 724. Crittenden v. Posey, 669. Crocker v. Fales, 487. Cromwell v. County of Sac, 541. Cronnse v. Fitch, 654. Crook V. Hudson, 498. Crooke v. Moore, 647. Crooker v. Jewell, 613. V. Melick, 490. Crosby v. Watkins. 651. V. Wyatt, 754. Cross V. Gabeau, 475. V. The Ballona. 719. Crossly v. Ham, 542. Crounse v. Syracuse, etc., R. Co., 524, 525. Crowder v. Evans, 492. Crowell V. Simpson, 669. Crozier v. Grayson. 748. Crump V. Picklin, 763. Ci'umpler v. Governor, 481. Crutcher v. Stamp, 604. Cuckson V. Stone, 688. Cuddy V. Major, 663. Culin V. Woodbury Glass Works, 652. Cullen V. Bimm, 647. V. Sears, 709, 711. CuUum V. Branch Bank, 572, 591, 634. V. Emanuel, 736, 737. Culver V. Green, 478. Cumberland Coal Co. v. Hoffman Coal Co., 529. V. Tilghman, 507. Cumberland, etc., R. Co. v. Slack, 693. Cuming V. Sibley, 478. Cumming v. Hackley, 751. Cummings v. Cummings, 497. V. Dudley, 659. V. Harrison. 613, 615. V. Little, 737, 740. Cummins v. Kennedy, 593, 605, 606. Cunningham v. Ashbrook, 643. V. Dorsey, 713. V. Hall, 667. V. Jones, 708. Cunningham v. Knight, 618. V. Morrell, 691. Curley v. Jenkins, 679. Curling v. Evans, 492. Curran v. Rogers, 573. Currie v. White, 645, 651, 660. Currier v. Baker, 757, 759. v. Fellows. 755, 758. Curry v. Ljles, 594. Curtis V. Banker, 756. V. Brooks, 555. v. Buckley, 540. V. Deering, 604, 610. V. Han nay, 669. V. Tyler. 759. Curtiss V. Bush, 633. Gushing v. Rice, 594. Cushman v. Bianchard, 608, 617, 618. V. Sim, 686. Cuthbert v. Street, 612. Cutler V. Ballou, 725. V. Close, 699. Cutter V. Emery, 755, 759. V. Powell, 547. 668, 686, 709. Cutting V. Grand Trunk Ry. Co., 666. Cyclone, The, 719. Dabovich v. Emeric. 668, 669. Daggett V. Pratt, 556. v. Reas, 623. Dailey v. Green, 644. Daily v. Maitland, 564. Dalby v. Campbell, 503, 505. Dale v. Lester, 590. v. Moulton, 474. V. Pope, 553. v. Shively, 592, 610. Dallas V. Chaloner, 486. V. Hollingsworth, 690. Dalton V. Bowker, 605, 614, 617. V. Irwin, 683. V. Miami Tribe No. 1, 475. Daly V. Litchfield, 537. Damon v. W^illiamson, 555. Damron v. Sweetzer, 516. Dana v. Boyd, 668. V. Couant, 733. V. Fiedler, 647, 651, 653. V. King, 645. Dance v. Girdler, 725. Dane v. Gilman, 487. Danforth v. Pratt. 491. V. Sniith. 611. V. Tennessee & C. R Co., 713. V. Walker, 647, 648. Daniel v. McRae, 755. Daniels v. Ballantine, 704. V. Cheshire R. Co., 575. V. Wilber, 678. V. Wilson, 541. Danley v. Williams, 713. Danolds v. State, 713. XXIV TABLE OF CASES. References are to sections. Danville Bridge Co. v. Pomroy, 708. Darbishire v. Butler, 478. Darling? v. Wooster, 557. Darnell v. Williams, 543. Darst V. Brock way, 668. Darty v. Robinson, 741. Davenport v. Wells, 656. Davidson v. Alfaro, 744. v. Brown, 474. V. Nichols, 675. V. Vorse, 564. Davies v. Humphries, 756, 759. V. Turton. 690. Davis V. Adams, 647. V. Alden, 535. V. Ayres, 693. V. Barrington, 690. V. Gary, 655. V. Coleman, 557. V. Crow. 505. V. Dickey, 676. V. Dycus, 572. V. Emerson, 756. V. Gosser. 668. V. Hall. 585. 594, 605. V. Harding,-, 507. V. Hill, 644. V. Humphreys, 747. V. Jackson, 549. V. Lewis, 581. V. Logan, 612, 628, 641. V. Lyman, 584, 592, 622. V. McVickers, 548, 571, 573. V. Maxwell, 686, 691. V. Murphy, 667. V. People, 485. V. Richardson, 651. V. Shields, 651, 653. V. Smith, 604, 605, 668. V. Strobridge, 589. V. Talcott. 703. . V. Wait, 545. V. Wells, 724, 728. V. Wilborne, 669. Davis Sewing M. Co. v. Mills, 728. Davison. Ex parte, 559. Davison v. Burgess, 475. v. Sealskins, 717. Dawes v. Howard. 497. Daws V. Shea, 494. Dawson v. Baum, 763. V. Collis, 668. V. Dawson, 493, 494 V. Holt, 536. V. Lee, 750. V. Morgan, 561, 564, 753. V. Petway, 755. V. State, 485. Day V. Martin, 739. V. Nix, 544. V. Pool, 668. V. Ramey, 737. Day V. Stick ney. 750, 761. V. Woodworth, 534. Dayton v. Dusenbury, 641. V. Gunnison. 765. V. Hooglund, 667, 676. V. Rowland, 644. Dayton, etc., T. Co. v. Coy, 570. Deal V. Dodge, 548. Dean v. Governor, 487. V. Roesler. 581. V. White, 699. Deas V. Harvie, 555. Deblois v. Earl, 727. De Boom v. Priestly, 709. De Camp v. Stevens. 686, 691. Deck V. Feld, 642. 654. Decker v. Gaylord, 727. V. Hassel, 698. V. Mathews, 766. V. Myers, 670. Deem v. Crume, 556. Deere v. Lewis, 651, 653. Deering v. Chapman. 549, 550. V. Earl of AVinchelsea, 754, 755. De Forrest v. Leet, 621. De France v. Austin, 690. De Graff v. Wickham, 697. Dehers v. Harriot. 562. Dehler v. Held, 507. De La Chaumette v. Bank of Eng- land. 556. Delafield v. De Grauw, 667. Delano v. Bartlett, 542. Delavergne v. Norris, 617, 631, 633, 623. Delaware Bank v. Jarvis, 555, 668. Delaware & H. Canal Co. v. Dubois, 709. Delaware, etc., Iron Co. v. Oxford Iron Co., 748. 749. Delong V. Peragio, 717. Delphos, The, 717. Demarett v. Bennett, 638. Deming v. Foster, 667, 668. V. Kemp, 645. Denio v. State, 485. Denmead v. Coburn, 709. Denison v. Gibson, 743. Dennis v. Rider, 740. Dennison v. Plumb, 487. V. Soper. 747. Denny v. New York C. R Co., 704. V. Reynolds, 507. V. Wickliffe, 641. Denston v. Henderson, 563, 563. Dent v. Davison, 474. V. King, 754, 755. v. McGrath, 669. Denton v. Wood's Adm'r, 536. Derberry v. Darnell, 559. Derby v. Johnson, 569, 709, 713. De Rliam v. Grove, 562. TABLE OF CASES. XXV References are to sections. l)er]eth v. Degraaf, fi59. Dermott v. Jones, 678. 686. 700, 709. Derocher v. Continental Mills, 690. Derry Bank v. Heath, 524. 528. De Sevvhanberg; v. Buchanan, 544, 549. Desha v. Robinson, 676. De Silver's Estate, 728. Desnoyer v. McDonald. 556. De Taste t, Ex parte, 541. De Tastet v. BariDp;. 560. Detroit v. Weber, 480, 482. Detroit & M. R. Co. v. Griggs, 641. Deutsch V. Pratt, 670. Devall V. Price, 478. Devin v. Himer, 575, 581. Devine v. Lewis, 616. De Visme v. De Visme, 588. Devol V. Mcintosh, 631. Devore v. Sunderland, 593, 600, 635. Dewey v. Bowman. 556. De Witt V. Morris, 507. Dexter v. Man ley, 594. V. Norton. 641. 655. 689. Day V. Dox, 651. 653, 656. V. Nason, 582. Dias V. Freeman, 499. Dick V. Crowder, 727. Dicken v. Morgan, 546. Dickerson v. Robinson. 494. Dickey v. Linscott, 655, 687, 689. V. Weston. 592, 599. Dickins v. Sheppard, 609. Dickinson v. Hall, 542, 573. V. Hoomes, 613. V. Talmage, 694. V. Tunstall, 556. Dickson, In re, 641. Dickson v. Burks, 542. V. Desire, 610. 614, 625, 638. V. Zizinia, 668. Diefendorff v. Gage, 543. Dikeman v. Arnold, 575, 581, 591. Dill V. Lawrence. 725. V. O'Ferrell. 667. Dillard v. Evans, 559. 659. V. Moore, 668. Dillingham v. Jenkins, 723. Dilworth v. McKelvey, 508. Dimmick v. Lockwood, 584, 609, 638. Diossy v. Morgan, 509. Disbrow v. Garcia, 524, 525. Divine v. McCormick, 667. Dixon V. Caskey, 488. V. Oliver, 570. V. Spencer, 725. V. United States, 475. V. Yates, 644. Doak V. Snapp, 651, 656, 657, 659. Doan V. Warren, 695. Dobbin v. Bradley, 724, 727. Dobbins v. Higgins, 690, 713. Dobbs v. Justices, 488. Dobson V. Hudson, 707. Dodd V. Jones, 662. V. Wilson. 748. V. Winn. 742, 757. Dodge V. McClintock, 547. V. Tileston, 695. V. Waterman, 644. Doe V. Pitcher, 550. V. Stanion. 572. 591. Doedwine v. Webster, 601. Doggett V. Black, 517. Doherty v. Dolan, 579, 580, 608. Dolcoath, The, 719. Doll V. Cooper, 511, 512, 514. Dolph V. Troy Laundry Machine Co., 649. Doman v. Dibden, 556. Don V. Lippmann, 556. Donald v. Hodgo, 651. Donaldson v. Fuller, 569. V. M. & M. R. Co., 601. Donely v. Rockefeller, 765. Donlon v. Evans, 575. Donnell v. Jones. 512. V. Thompson, 596, 620. Donner v. Redenbaugh, 581. Donohue v. Emery, 584, 609. Doolittle V. Dwight, 750. v. McCullough, 679, 713. V. Nash, 713. Door V. Fisher, 668. Doran v. Butler, 488. V. Davis, 743. Doremus v. Bond, 636. Doris v. Coleman, 556. Dorr v. Clark, 518, 519. V. Fisher, 668. V. Kershaw, 519. V. Streicheu. 640. Dorsey v. Dashiell, 631, 765. V. Gassaway, 503. V. Wayman, 739. Dos Hermanos. The, 719. Dotard v. Sheid, 510. Doty V. Case & W. Thresher Co., 737. V, Knox Co. Bank, 550. V. Miller, 683. Dougherty v. Dore, 522, 527. V. Duvall, 609, 613, 614. Doughty V. Hildt, 540. V. Savage, 549. Douglass V. Clark, 761, 765. v. Douglass, 509. V. Hovvland, 728, 742. V. Kessler. 498. V. Moody, 750, 761. V. Reynolds, 724. Dounce v. Dow. 667. Dover v. Plemraons, 690. V. Twomblv, 488, 725. Dow V. Humbert, 493. XXVI TABLE OF CASES. References are to sections. Dow V. Rowell, 563. V. Updike, 564. Downer v. Baxter, 753. V. Smitli, 602, 609. Downes v. Back, 657. Downey v. Burke, 690. Downing v. Major, 679. DratHn v. Boonville, 480. Drake v. Baker, 580, 581, 584. V. Markle, 559. V. Webb, 537. Draper v. Sweet, 668, 672. Dresser v. Ainsworth, 669. Drew V. Roe, 676. V. Towle, 542, 545, 605, 609, 617, 618. Dreyfus v. Peruvian Guano Co., 527. Dr. Harter Medicine Co. v. Hopkins, 676. Driggs V. Dwight, 581. Druminond,v. Prestman, 734. Drury v. Drury, 480. V. Shumway, 608, 609. Dry V. Davy, 737. Dubois' Appeal, 683. Dubois V. Delaware & H. Canal, 688, 707. V. Hermann, 752. Duchess of Kingston's Case, 596. Dufau V. Wright, 737. Dugan V. Tyson, 507. Duke V. Harper, 683. Duke of Manchester, The, 718. Dumars v. Miller, 583. Dumas v. Patterson, 488. Dumont v. Fry. 737. Dunbar v. Dunn, 499. V. Mardeu, 543. Duncan v. Blundell, 679. V. Breithaupt, 683. V. Charles, 571. V. Lane, 635. V. McMahon, 651. V. Post, 651. Dundas v. Bowler, 563. Dunford v. Weaver, 489. Dunlap V. Foster, 755. V. Haud, 095. V. Wilson S. M. Co., 725. Dunlop V. Gordon, 735. Dunn V. Daly, 691, 693. V. Davis, 534. V. Rodgers, 564. V. White, 634. Dunnica v. Sharp, 580. Dunning v. Humphrey, 515, 516. Dunphy v. Whi[)ple, 490. Duushane v. Benedict, 667, 673. Duushee v. Geohegan, 581. Dunton v. Brown, 690. Dupuy v. Gray, 474. Durand v. Bowen, 733. Durkee v. Gunn, 683. V. Mott, 713, 714. Durst V. Burton, 653, 654. Dustan v. McAndrew, 643, 644, 647, 649. Dustin V. Newcomer, 581, 584, 590. Dutton V. Gerrish, 667. V. Solomonson, 644. Duval V. Bibb, 594. V. Craig, 604. Dwiggins v. Clark. 644, 647. Dwight V. Cutler, 573. V. Williams, 733. Dye V. Dye, 739. V. Mann, 761, 765. Dyer v. Dorsey, 581. V. Hargrave, 588, 590. V. Homer, 545. v. Jones, 711. V. Libby, 644. V. Rich, 656, 659, 660. V. Sutherland, 683. Dzialgnoski v. Bank, 538. Eagle Tube Co. v. Edward Barr Co., 663, 705. Eagle & P. Manuf. Co. v. Browne, 654. Eaken v. Harrison, 686, 690. Earl of Bath v. Earl of Bedford, 641. Earl of Egmont v. Smith, 588. Earl of Falmouth v. Thomas, 684. Earle v. De Witt, 591. v. Middleton, 605. V. Spooner, 515. Eason v. Sutton, 486. Easter v. Boyd, 564. Eastern Counties Ry. Co. v. Hawkes, 569. Eastern R. Co. v. Benedict, 657, 659. Eastin v. Board of School Directors, 733. Easton v. Hyde, 559. V. New York, etc., R. Co., 523. v. Pratchett, 543. Eaton V. Benton, 679 V. Hasty, 736. V. Knowles, 668. V. Lambert. 748. V. Lyman, 593, 600, 617, 621, 632, 625. V. Melius, 654, 669. V. Tall mage, 633. Eberling v. Deutscher Verein, 587. Eckert v. Myers, 497. Edam, The, 719. Eddington v. Nix, 633, 641. Eddy V. Clement, 709, 711. Edgar v. Boise, 659, 661. Edgerly v. Emerson, 736. Edmunds v. Porter, 636. V. Sheahan, 748, 759. TABLE OF CASES. XiVU Befereuces are to sections. Edwards v. Bodine. 524 V. Collson, 670, 673. V. Dari^an, 739. V. Durgon. 497. V. Edwards, 527. V. Goldsmith, 678, 683. V. Jones, 541. V. Morris, 560, 641. V. Pope. 523, 528. V. Pyle, 548. V. Sauboru, 664, 703. V. White, 494. Eggleston v. Boardman, 688. Egypt, Tlie, 719. Ehle V. Cliittenango Bank, 559. Ehrman v. The Swiftsure, 719. Eichliolz V. Bannister, 668. Eilbert v. Finkbeimer, 730. Ekius V. East India Co., 556. Ela V. Card, 593. Elbinger Actien-Gesellschafft von Eisenbahn v. Armstrong, 663, 671. Elder v. Sabin, 524. V. True. 580, 608, 609. Eldridge v. Wadleigh, 669, Eleanor, Tlie, 720. Elizabeth and Jane, The, 720. Elkin V. Baker, 541. V. People, 488. Ellenwood v. Fiitts, 586. Ellet V. Paxson, 570. Eliot V. Davis, 478. V. Thompson. 605, 641. Elliott V. Black, 499. V. Caldwell, 709. V. Chilton, 559, 659. V. Hughes, 657. V. Pybus, 644. V. Wilkinson, 709, 711. Ellis V. Bibb, 723. V. Emmanuel, 737. V. Gosuey, 669. V. Grooms, 668. V. Hamlin, 707. V. Hill, 637. Ellison V. Dove, 647. Ellithorpe Air-Brake Co. v. Sire, 713. Ellster V. Brooks, 684. Ellmaker v. Franklin Ins. Co., 727. Ellwood Manuf. Co. v. Rankin, 524, 525. Ehvood vrOeifendorf, 748, 750. Elthaney v. Gilliland, 487. Elting V. Sturtevant, 680. Elton, Ex parte, 759. Elwell V. Crocker, 551. Ely V. Bibb, 733. V. Kiiborn, 552. V. Witherspoon, 556. Elysville Manuf. Co. v. Okisko Co., 594. O Emblem, The, 719. Emerson v. At water, 551. v. Bingham, 667, 668. V. Booth. 503. Emerton v. Mathews, 667. Emery v. Bait/., 728. V. Smith, 684. Emory v. Vinall, 752. Empire Gold Mining Co. v. Jones, 607, 624. Empire Mill Co. v. Lovell, 515. Emulus, The. 716. Ender v, Scott, 668. Euders v. Board of Public Works, 656, 657. Engel V. Fitch, 578, 581, 584 Eugleman v. Craig, 594. Eugler V. Ellis, 556. Eoglish V. Wilson. 709. Equitable Gas Light Co. v. Baltimore Coal Tar & Manuf. Co., 653. Erben v. Lorillard. 679. 683. Erie City Iron Works v. Barber, 672, 702. Erie & P. R Co. v. Douthet, 684 Ernst V. Hogue. 507. Erriugton v. Aynesley, 474 Erskine v. Johnson, 707. Ervin v. Epps. 679. Erwin v. Downs, 668. V. Saunders, 552. Escott V. White, 707, 709. Esdaile v. Stephenson, 588. Essex V. Daniel, 585. Essex County Bank v. Russell, 541. Estabrook v. Smith, 610. Estep V. Fenton, 709, 711. Estes V. Browning, 585. Esty V. Read, 667. E. T., Va. & Ga. R. Co. v. Staub, 693. Evans v. Bank, 488. V. Bennett 678, 686, 690. V. Brandon, 499. V. Clark, 556. V, Evans, 759. V. Gee. 555. v. Irwin, 556. V. Kymer, 542. V. Lewis. 604. V. Pearce, 497. V. Smith, 562. V. Whyle, 724, 726. Evansville Nat. Bank v. Kaufmann, 724, 725. Eveleigh v. Stitt. 608. Everly v. Rice, 737, 738. Everett v. State, 535. V. Vandryes, 556, 563. Everson v. Powers, 692, 693. Evrit V. Bancroft, 683. Ewin V. Lancaster, 737. Ewing V. Ingram, 686, 691. XXVlll TABLE OF OASES. References are to sections. Ewing V. Reilly, 761. Exall V. Partridge, 745. Exchange Bank v. Tuttle, 564. Exeter Bank v. Rogers, 725. Eyrich v. Capital State Bank, 564. Fabricotti v. Launitz, 695. Fagan v. Cadmus, 623. Falls V. Roberts, 530. Fahy v. North, 687, 688. Fail V. McRee, 698. Fairbank v. Humphreys, 684. Fairchild v. Lynch, 736. Fairfax v. Fairfax, 494. Fairfield T. Co. v. Thorp, 554 Fales V. Hemenvvay. 474. Fallon V. Manning, 508. Fancher v. Goodman, 586. Fant V. Miller, 551. Faris t. Lewis, 675. Farley v. Lavvson, 478. V. Moore, 491. Farmer v. Francis, 709. Farmers' T. Co. v. Coventry, 484. Farmers' Bank v. Glenn, 593. V. Reynolds. 739. Farmers' Nat. Bank v. Rassmussen, 564. Farmers' & Mechanics' Nat. Bank v. Lang, 726. Farnham v. Hotchkiss, 633. V. Mallory, 474. V. Moore, 508. Farnsworth v. Coots, 739. V. Garrard, 544, 679, 695. Farnum v. Peterson, 623. Farquhar v. Morris, 631. Farr v. Ward, 557. Farrant v. Barnes, 485. ' Farrar v. United States, 480, 481. Farrington v. Barr, 594. Farrow v. Mavs, 637. Farwell v. Kennett, 559, 656, 659. Easier v. Beard, 631. Fassler v. Love, 704. Faulkner v. Closter, 651, 652. V. State, 488, 489. Faure v. Martin, 590. Faurote v. State, 726. Fawcett v. Woods, 610. Faxon v. Davidson, 581. Fay V. Tower, 742. Feamster v. Withrow, 748. Feay v. Decamp, 586. Fee V. Orient Fertilizing Co., 693. Feehan v. Hallinan, 652, 663. Feemster v. May, 635. Fellows V. Gil man, 475. V. Prentiss, 724. Fells V. Vestvali, 678. Felter v. Weybright, 570. Felton V. Fuller, 644. Fenton v. Clark, 687. V. Perkins, 656, 659. Fereira v. Say res, 693. Fergus v. Gore, 641. Ferguson v. Baker, 505, 525. Fergusson v. Tyfife, 556. Fernandez v. Dunn, 616. Ferrell v. Alder, 614, 617. Ferrier v. Busiek, 590. Ferris v. Comstock, 673. V. Mosher, 611. Fessenden v. Summers, 730. Fessler v. Love, 651. Fetrow v. Wiseman, 739. Field V. Kinnear, 650. V. United States, 646. Fielding v. Waterhouse, 740, 758. Fieske V. Foster, 563. Figh V. United States, 714. Finckle v. Evan, 762. Findlay v. Hall, 556. V. Keim, 570. Findley v. Hutzell, 488. Fink V. Cox, 542. Finney v. Commonwealth. 737. First Nat. Bank v. Breese, 55^ 728. V. Crowley. 508. v. Indianapolis, 564 V. Jacobs, 564. V. Larsen, 564. V. Lock-stitch Fence Co., 730. V. Rogers, 536. First Nat. Bank of Baltimore v. Gerke, 725. First Nat. Bank of Charlotte v. Homesley, 739. Fischler v. Hofheimer, 724 Fish V. Dana, 765. Fisher v. Cutter, 729. V. Dow, 656. V. Fallows, 763. V. Goebel, 699, 703. V. Kay, 587, 590. V. Lei and, 542. V. New York C. & H. R R. Co., 478. V. Pollard, 668. V. Salmon, 542. 573. Fishill V. Wiuans, 651. Fisk V. Miller, 730. .V. Tank, 672. Fitch V. Carpenter, 667. V. Casey, 710. V. Redding, 542. Fitchburg R. Co. v. Freeman, 654. Fitzgerald v. Wellington, 537. Fitzhugh V. Crogan, 592. V. Runyon, 551. V. Wiraan. 507, 508. Fitzpatrick v. Branch Bank, 487. V. Flagg, 524. Flagg V. Tyler, 507, 508. TABLE OF OASES. XXIX Beferenoes are to sections. Flanagan v. Domarest, 645. V. Ward, 604. Flanders v. Chamberlain, 556. Fleniinj,' v. Bailey, 512, 537. V. I3eaver, 736. V. Beck, 704, 705. V. Harrison. 572. V. Toler, 474, 477. Fletcher v. Ciiapman, 488. V. Derrickson, 728. V. Gillespie, 707. v. Grover, 759. V. Jackson, 760. V. Tayleur, 664. 675, 703. Flinn v. The Leander, 721. Flint V. Steadman, 597. Florence Machine Co. v. Daggett, 704. Flournoy v. Lyon, 512, 516. Flower v. Strickland, 748. Flower City, The, 720. Flureau v. Thorn hill, 578, 581. Flynn v. Allen, 068. Foley V. McKeegan, 477, 580, 581, 584. Folsom V. Mussey, 551, 553. Fond du Lac Harrow Co. v. Bowles, 726. Foote Y. Burnett, 584, 592, 600, 622, 623, 625. V. Van Zaudt, 488. Forbes v. Rowe, 730. 733. V. Sheppard, 739. V. Smith, 739. Ford V. Keith, 747, 748. V. Loomis, 524. V. United States. 707. Forman v. Miller. 695. V. Wright, 543. Forrest v. Elwes, 657. Forsyth v. Dickson, 491. V. Hastings, 686, 690. Forsythe v. Ellis. 487. Fort V. Orndoff. 703. Fosdick V. Greene, 659. Foss V. Chicago, 737. V. Stick ney, 596. Foster, The, 716. Foster v. Deacon, 588. V. Epps, 536, 537. V. Foster. 620, 627. V. Gressett, 587, 589. V. Jack, 682. V. Jared, 546. V. Jolly, 552. 554. V. Maxey, 496. V. Napier, 505. V. Rodgers, 670, 671. V. Stafford Nat. Bank, 526. V. Thompson, 593, 605. V. Wise, 498. Touke V. Fleming, 5^6. Fountleroy v. Wilcox, 657. Fourth Nat. Bank v. Scott, 529. Foust V. Gregg, 541. Fowler v. Armour, 692, 693. V. Boiling, 641. V. Frisbie, 522. V. Payne, 695. V. Poling, 592, 603. V. Shearer, 542. V. Waller, 692, 693. Fox V. Everson, 674 V. Harding, 675, 703. V. Stockton Harvester, etc.. Works, 667, 672. Fragano v. Long, 644. Franchot v. Leach, 568. Francis v. Castleman, 557. V. Rucker, 561. V. Wilson. 477. Frankel v. Stern, 512. Franklin v. Long, 668. V. Miller, 586. V. Smith, 609. Franklin Co. Nat. Bank v. Kimball, 490. Eraser v. Little, 477, 478, 499. Frazer v. Supervisors, 591, 593, 597, 599. Frederick v. Lookup, 478. Freeholders v. Wilson, 479, 480. Freeland v. Edwards, 557. Freeman v. Baker. 668. V. Clute, 665, 668, 703. Freese v. Brownell, 563. Frei v. Voiiel, 508. Freligh v. Piatt, 571. French v. Bates, 727, 739. V. Gordon, 542, 551. V. Grindle, 731. V. Parish, 763. V. Shoemaker, 532. V. Snyder, 490. V. Vining, 667, 672. V. Wiliett, 490. Friedland v. McNeil, 703. Friedlander v. Pugh, 713. Friend & T. Lumber Co. v. Miller, 666. Frink v. Tatman, 651, 653. Frisbie v. Hoflfnagle. 633. Fritz V. Puse}% 604. 609, 620, 628. Froherich v. Gammon, 673. Frost V. Farr, 679. V. Frost, 585. V. Jordan, 516. V. Knight, 645. Fry V. Dudley. 559. Fuchs V. Koerner, 693. P\iller V. Bean, 644. V. Brown. 687, 690. V. Holmes, 486. V. Hubbard, 585. V. Reed, 579, 58a V. Scott, 730. XXX TABLE OF OASES. References are to sections. Fuller V. Sweet, 644. V. Tomlinson, 739. V. Wing, 496. Fullerton v. Miller, 536, 537. Fulton V. Mathews, 730. Fulweiler v. Bauglier, 604, 614 Funck V. McKeoun, 590. Funk V. Cresswell. 606, 622. V. Voneida, 617, 620, 622, 623. Furlong v. Pol leys, 580, 651, 653, 656. V. State, 487. Furman v. Elmore, 608, 637. V. Miller, 668. Furnas v. Durgin, 609, 728, 765. Furniss v. Ferguson, 668. V. Gilchrist, 551. V. Williams, 542, 591. Furstenbury v. Fawsett, 699. Gaar v. Lockridge, 573. V. Louisville Banking Co., 564. Gaflfney v. Hayden, 690. Gage V. Lewis, 728, 732, 765. V. Melton, 542. Gaillard v. Ball, 556. Gaines v. Bryant, 567, 587, 588. Gainsford v. Carroll, 653, 657. V. Griffith, 499. Gaither v. Brooks, 614. Gaitskill v. Greathead, 550. Galbraith v. O'Bannon, 474 V. Whyte, 668. Gale V. Dean, 579, 581, 584 Galigher v. Jones, 657. Gallagher v. Nichols, 709. V. Waring, 667. Gallarati v. Orser, 508. Galloway v. Finley, 573, Gallun V. Seymour, 646. Gallup V. Robinson, 490. Galveston, etc., Ry. Co. v. Ware, 524, 526. Gamble v. Grniies, 549. V. Hatton. 559. Gammel v. Paramore, 728. Gammell v. Gunby, 667. Gammon v. Plaisted, 550. Gans v. Renshaw, 572. Ganson v. Madigan, 647. Gantt V. Mackenzie, 557 Garber v. Commonwealth, 495. Garcie v. Sheldon, 523. Gard v. Stevens, 724. Gardiner v. McDermott, 499, 502. Garland v. Lane, 644. Gardner v. Barney, 536. V. Cleveland, 761. V. Lane, 644. V. Miles, 474. V. Niles, 631. V. Vidal, 494 V. Watson, 734 Garfield v. Williams, 591, 593. Garlock v. Closs, 613. Garner v. Board, 690. Garnett v. Yoe, 474. Garr v. Mairet. 682. Garrard v. Dollar, 568. Garrett v. Logan, 474 505, 525. V. Messenger, 478. V. Stuart, 594 Garretson v. Purdy, 564. Garrison v. Saudford, 593, 621, , 622. 623. Gartman v. Jones, 641. Garver v. Pontius, 564. Gary v. Cannon, 734. Gascoyne v. Smith, 543, 544 Gaskell v. King, 550. Gas Light Co. v. Colliday, 675. Gates V. Davenport, 692. v. McKee, 724, 725, 727. Gathv.-right v. Callaway, 475. Gavin v. Buckles, 594. Gay V. Botts. 678. Gaylord v. Johnson. 556, 557. v. Van Loan, 557. Gaylord Manuf. Co. v. Allen, 667, 672. Gazette Printing Co. v. Morss, 693. Gazley v. Price, 645. Gear v. Shaw, 524, 527. Gee v. Pack, 737. Geiger v. Cook, 542. Geiss v. Wyeth & H. Manuf. Co., 647, 654 General South American Co., In re, 561. Gennings v. Norton, 474 631, 761. George v. Bischoff, 533, 536. V. Cahawba, etc., R. Co., 713. V. Skivington, 675. v. Stockton, 573. V. The Arctic, 715. Georgia Refining Co. v. Augusta Oil Co., 644, 747. Georgian Bay L. Co. v. Thompson, 544. Georgiana, The, 720. Gerard v. Dill, 499. V. Gateau, 525. v. Prouty, 670. Gerault v. Anderson, 581, 587, 590. Gerber v. Ackley, 487. German v. Ritchie, 563. German American Bank v. Denmire, 741. German American Savings Bank r. Fritz, 736. German Union, etc., Ass'n v. Send- meyer. 659. Gholson v. Brown, 537, 565. Gibbons v. United States, 647. Gibbs V. Bartlett, 499, 500, 501, 503, 504 TABLE OF CASES. XXXI Beferences are to sections. Gibbs V. Bryant, 756. V. Champion, 581. V. Fremont, 556, 558, 563. V. Jamison, 581, 584. Gibert v. Peteler, 582, 587, 589, 593. Gibney v. Turner, 71-3. Gibson v. Carlin, 702. V. Governor. 488. V. Marquis, 590. V. Martin, 486. V. Richart, 591. V. Whip Pub. Co., 684 Giddings v. Canfield, 604. Gieselie v. Johnson, 748. Giflfert v. West, 668, 672. Gifford, Ex parte, 742, 759. Gifford V. Waters. 692. Gilbert v. Buckley, 592. V. Danforth, 659. V. Duncan. 541, 551. V. Isham, 487. V. Wimau, 631, 761, 765. Gilbreth v. Grewell, 586. Giles V. Dugro, 627. V. Morrison, 651, 653. V. Williams, 572. Gillespie, In re, 561, 563. Gillespie v. Battle, 574. V. Cresvvell, 478. V. Darwin, 739. V. Torrance, 744. Gillet V. Maynard, 585, 587. Gillingham v. Boardman, 733. Gillis V. Space, 693. Gilman v. Andrews, 656. V. Hall, 709. V. Haven, 604. V. Lewis, 733. Gilmer v. IMobile & M. Ry. Co., 576. Gilmore v. Wright, 539. Gilmour v. Supple, 644. Gilpin V. Consequa, 476, 651, 670. V. Hord, 537. Ginaca v. Atwood, 501. Gingles v. Caldwell, 671. Ginu V. Hancock, 620. Girard v. Taggart, 647. Given v. Charron, 692. Givhan v. Dailey, 686. Glacius V. Black, 710. Glascock V. Ashman, 488. V. Hamilton, 759, 760. Glaspie v. Glassow, 713. Glass v. Reed, 668. Glazebrook v. Woodrow, 568. Glazier v. Douglass, 739. Gleason v. Chester, 490. V. Clark, 545. 679. V. Smith, 709. Glenn v. Thistle, 635. V. Wallace, 498. V. Whipple, 641. Glenworth v. Luther. 683. Glidewell v. McGaughey, 486. Glover v. McGaffey, 526. Glvn v. Hertel, 724. 725. Goddard v. Barnard, 699. v. Binney, 644. V. Foster, 557. V. Hill, 554. Goddin v. Shipley. 556. V. Vaughn, 572. . Godwin v. Francis, 584 Goff v. Hawks, 580. Goldhawk v. Duane, 477. Goldrich v. Rvan, 667. Goldsboro v. Motfet, 698. Goldsmith v. Brown, 732. V. Hand, 707. 708, 709, 711. V. Picard, 512. Gompertz v. Bartlett, 555, 668. V. Denton, 668. Gonzales College v. McHugh, 700, 710, 711. Good V. Mvlin, 516. Goodall v.Skelton, 644 Goodbar v. Lindsley, 512, 513, 516. Goodison V. Nunn, 568. Goodkind v. Rogan, 663. Goodloe V. Clay, 758. Goodman v. Carroll, 475. V. Harvey, 542. V. Pocock, 692. Goodrich v. Foster, 536. V. Hubbard. 713. V. Starr, 489. Goodspeed v. Fuller, 594 Goodwin v, Lyon, 583. V. Nickerson, 546. Goodwine v. State, 481. Goodyear v. Watson, 736. Gookin v. Graham, 668. V. Hoyt, 494. Gordon v. Brewster, 693. V. Calvert, 728. V. Clapp. 494 V. Jenny, 503, 504 v. Moore, 743. V. Norris, 644 651. v. Parker, 659. v. Phelps. 556. V. State, 494. Goi'e V. Brazier, 608. Gorham v. Peyton, 554. Gorsuth V. Butterfield, 550. Goss V. Bowen, 564. V. Dysant, 669. V. Whitehead, 543, 549. Gossard v. Woods, 651. Gossler v. Eagle Sugar Refinery, 667. Gottsberger v. Smith, 495. Gould V. Fuller, 756. v. Murch, 655. V. United States, 716. XXXll TABLE OF CASES. References are to sections. Gould V. Wenner, 499. Gourdin v. Trenholm, 754, 759. Gouveineur v. Elmendorf, 641. Gove V. Island City M. & M. Co., 711. Governor v. Allen, 475. V. Barr, 481. •s. Cobb, 480. V. Evans, 488. V. Matlock, 475, 488. V. Pearce, 487. V. Perrine, 487. V. Bobbins, 488. V. Wiley, 474. Grace v. Scarborough, 628, 630. Graeter v. De Wolf, 537, 725. Graham v. Adams. 559. V. Baker, 592, 624. V. Brickham, 477. V. Chandler, 486. V. Graham, 679. V. Hack with, 581. V. Maitland, 654. V. Swigert. 531, 534. Granberry v. Hawpe, 669. Granding v. Reading, 679. Grand Rapids, etc., R. Co. v. Sanders, 541. V. Van I>usen, 713, 714. Grand Tower Co. v. Phillips, 653, 653, 654, 656. Grant v. Grant, 477, 478. V. Healey, 562. V. Ridsdale, 724. V. Smith, 725, 727. V. Tall man, 623. V. Townsend, 542. Graves v. Clark, 552. V. Dash, 562, 563, V. Lebanon Nat. Bank, 735. Gray v. Briscoe, 592, 598, 601, 624. V. Brown. 496. V. Case, 570. V. Gray, 583. V. Hall. 651. V. Handkinson, 590, 637. V. Hook, 550. V. McLeal, 518. V. Murray, 689. V. Seckham, 737. V. Veirs, 522. V. Wordeu, 559. Great Western Ins. Co. v. Rees, 543, 551, 552. Great Western Stock Co. v. Saas, 592. Greaves v. Ashlin, 644. V. Newport, 517. Grebert-Borgnis v. Nugent, 663. Green v. Biddle, 587. V. Brookins, 763. V. Campbell. 641. V. Clark, 508. Green v. Gilbert. 686. V. Green, 585. V. Haley, 709. V. Hulett, 686. V. Sizer, 659. V. Wyun, 742. Greenby v. Wilcocks, 592, 593. Greene v. Creighton, 627, 630. v. Linton, 686, 687. Greenfield v. Wilson, 487. Greenleaf v. Kellogg, 557. V. Queen, 641. Greenough v. Balch, 550. Greenwault v. Davis, 604, 614. Greenwood v. Bishop of London, 550. V. Colcock, 474. V. Hoyt, 575. V. Ligon, 572. Greer v. George, 542. V. People's Telephone & T. Co., 685. V. Sheldon, 523. Gregg V. Fitzhugh, 656, 661. V. Richardson, 617. Gregory v. McDowell, 651, 653, 658. V. Scott, 548. Gridley v. Capen, 728. V. Tucker, 605. Griffin v. Colver. 662, 665, 673, 70a V. Miner, 707. V. Reynolds. 609. V. Underwood, 488. Griffith V. Blake, 521. V. Reed, 555. V. Sitgreaves, 743. Griffiths V. Kellogg, 549. V. Parry, 549. V. Perry, 651, 653. Grigby v. Oakes, 559. Griggs V. D. & M. R. Co., 636. Grimes v. Ballard, 572. V. Butler, 475. Grinxshaw v. Bender, 560, 563. Grindol v. Ruby, 739. Grinnell v. Herbert, 555. Grisard v. Hinsou, 739. Grisson v. Sorrell, 581. Grist V. Hodges, 605. Griswold v. Sabin, 570. Groat V. Gillespie. 515, 516. Grocers' Bank v. Kingman, 738. Grose v. Hennessey, 669. Gross V. Davis, 756, 757, 759. V. Kierski, 668. Grosvenor v. Cook, 477. Grout V. Townsend, 543. Grover & B. S. M. Co. v. Bulkley, 685. Grow V. Garlock, 737. Gruman v. Smith. 656. Grundy v. McClure, 645. Grutacup v. WouUuise, 563. Guesdorf v. Gleason, 488. TABLE OF OASES. XZXUl Heferences are to sections. GucUner v, Kilpatrick, 536. Guerard v. Rivers, (508. Guice V. Crenshaw. 653. Guild V. Butlor, 737, 742. Guilford v. Cornell, 524. Guinotte v. Chouteau, 594. Guion V. Guion, 497. Gulf, etc., Ry. Co. v. Dunman, 576. Gulley V. Grubbs, 594. Gunter v. Beard, G05. 616. Gunther v. Atwell, 650. Gurney v. Atlantic, etc., Ry. Co., 667. V. Womersley, 555. Guthrie v. Pugsley, 592, 598, 601, 602. V. Russell, 623. Gutta Percha, etc., Co. v. Benedict, 728. Guynet v. Mantel, 572, 590. Gwin V. Barton, 486. Haas V. Hudmon, 653. Haase v. Nonnemacher, 650. Habenicht v. Lissak, 644. Hackeubury v. Shaw, 556. Hacker v. Blake. 593, 597. V. Johnson, 507. V. Storer, 591, 592, 593. Hackett v. Schad, 545. Hackettstown Bank v. Rea, 556. Hadley v. Baxendale. 526, 663, 672, 675. 699, 703, 704. Hagey v. Hill, 742. Haggart v. Morgan, 471. Hagood V. Blvthe, 486, 789. Hahn v. Doofittle, 668. Haigh V. Brooks. 724. Haight V. Vermont C. R. Ca, 713. Hain v. Kalbach, 554. Haines v. Tucker, 648. Halbert v. State, 479. Hale V. Gale, 640. V. Meegan, 526. V. Priest, 641. V. Smith. 668. V. Thomas, 470, 477. V. Trout, 647, 713. Haley v. Lane, 541. Hall V. Betty, 572. V. Brooks, 490. V. Clement, 550. V. Conder, 668. V. Creswell, 761. V. Cunningham, 59(X V. Gushing, 475. V. Dean, 621. 622, 633. V. Form an, 515. V. Gale, 592. V. Hall, 747. V. Kennedy, 539. V. Kimball, 556. V. May hew, 590. V. Nash, 748, 761, 765. Hall V. Nowromb, 730. V. O'llanlan. 647. V. Perkins, 516. V. Pierce, 647. V. Ripley, 709. V. Smith, 499, 502. V. Thompson, 742. V. Williamson, 536. V. Woodson, 556. V. York, 580. Halliman v. Carroll, 487. Hallock V. Belcher, 762. Halloway v. Lacy. 686. Hallum V. Todhunter, 594, 605. Halsey v. Reed. 766. Halstead L. Co. v. Sutton, 671. Ham V. Goodrich, 684. Hanibly v. Delaware, etc., R. Co., 713. Hambrick v. Wilkins, 671. Hambro v. Casey. 560. Hamden v. New Haven, etc., Co., 764 Hamerslough v. Kansas City B. & L, Ass'n. 524. Hamilton v. Cutts, 604, 614. V. Elliot, 597. V. Ganyard, 651, 656, 667. V. Jefferson, 536. V. Johnson, 755. V. Magill, 646, 662. V. Van Rensselaer, 725, 727. V. Wilson, 592. Hamilton Gin & Mill Co. v. Sinker, 564. Hamlin v. Race, 691. Hammar Paint Co. v. Glover, 668, 671. Hammatt v. Emerson, 545, 549. Hammer v. Schoeufelder, 662, Hammock v. Baker, 755. Hammond v. Bussey, 669. 671. V. Hannin. 580, 581, 584. V. Holiday, 683. V. Starr, 518. Hampton v. Eigleberger, 577. V. Eubank, 590. V. Levy, 739. V. Phipps, 758, 759. Hanauer v. Doane, 550. Hanby v. Heuritze, 255. Hancock v. Bryant, 741. v. Hazard, 479, 481. Hand v. The Elvira, 717, 719, 721. Hanks v. Pickett, 476. Hanna v. International Petroleum Co.. 507, 508. V. McKenzie, 529. V. Mills, 644. Hannah v. Henderson, 604 Hannover v. Doane, 542. Hanover AVater Co. v. Ashland Iron Co., 654 XXXIV TABLE OF CASES. References are to sections. Hannum v. Day, 498. Hanrick v. Andrew?, 556. V. Farmers' Bank, 561. Hansbrough v. Peck. 568, 708. Hanscombe v. Standing, 743. Hansel! v. Erickson, 686, 691. Hansford v. Perrin, 517. Hanson v. Buckner, 594, 605. V. Lawson, 653. V. Meyer, 644. Haralson v. Walker, 476, 517. Hard v. Palmer, 557. Harder v. Woodward, 590. Hardin v. Carico, 487. V. Olson, 564. Harding v. Larkin, 605, 614, 616, 617, 618, 619. v. Waters, 730. Hardy v. Bern, 473. V. Martin, 474. V. Nelson, 580, 608, 614 Hare v. Grant, 743. Hargee v. Wilson, 541. Hargous v. Ablon, 651, 671. V. Lahens, 562. V. Stone, 650, 667. Hargreave v. Smee, 724. Hariston v. Sale, 690. Harker v. Irick, 495. Harlev v. Four Hundred Sixty-seven Bars of R. Iron, 716. V. Gawley, 731. V. Stapleton, 743. Harloe v. Foster, 668. Harlow v. Boswell, 551, 552. V. Thomas, 594, 622, 628, 627. Harmer v. Cornelius, 686. Harmon v. Dedrick, 474. V. Sanderson, 676. Harmony v. Bingham, 476, 761. Harney v. Laurie, 725. V. Owen, 690. Harper v. Jeffries, 609. V. McVeigh, 750. V. Ray, 695. Harrick v. Carman, 727. Harrington v. Coxe, 473. V. Fall River Iron Works, 687, 690. • V. Gies, 693. V. Stratton, 545. V. Wells, 661, Harris v. Biooks, 737. V. Carniody, 743. V. Clap, 478. V. Ferguson, 755, 757. V. Hanson, 487. V. Harris, 553, 583. V. Murfree, 490. V. Newell, 597, 739, 741, 749. V. Osbourn, 691. V. Panama R. Co., 658. Harris v. Rodgers, 653. V. Warner, 755. Harrisburg Bank v. Meyer, 543. Harrison v. Brown, 486. V. Charlton. 651, 653, 656. V. Clark, 495. V. Glover, 654. V. Harrison, 657. V. Lake, 710. V. Lane, 755. V. Montstephen, 499. V. Rivers, 744. V. Rodgers, 651. V. Woodle, 499. Harrison Co. v. Byrne, 707. Harrison Wire Co. v. Hall & W. H. Co.. 653. Harrolson v. Stein, 651. Harrow Spring Co. v. Whipple Har- row Co., 662. Hart V. Guardians of the Poor, 480. V. Lanman, 659. V. Norton, 707. V. Porter, 639. V. Stribling, 498. V. Tyler, 644. V. United States, 483. V. Wright, 667. Hartford & Salisbury Ore Co. v. Mil- ler, 597. Hartland v. General Exchange Bank, 692. Hartley v. McAnaRy, 594. Hartman v. Rogers, 691, 695. Hartridge v. McDaniel, 539. Harts V. Wendell, 507. Hartwell v. Jewett, 690. V. Smith, 755. Hartz V. Commonwealth, 486. Hartzell v. Crumb, 579, 581, 584. Harvey v. Alexander, 594. V. Baldwin, 564. V. United States, 714. Harwood v. Tappan, 711. Hasbrouck v. Milwaukee, 707. Hascall v. Whitmore, 541. Hazeltine v. Guild, 551, 761. Haskell v. Hunter, 651, 653, 654. V. McHenrj% 647. Haskins v. Duperoy, 644. Hastie v. Couturier, 542. Hastings v. Lovering, 667. V. Wiswall, 557. Hatch V. Attleborough, 486. Hatcher v. Andrews, 572, 620, 641. Hatchett v. Pegram, 747. Hathaway v. Barrow, 582. v. Davis, 739. Hauser v. King, 497. Havemeyer v. Cunningham, 651. Haven v. Wakefield, 704. Haverstick v. Gas Co., 516. TABLE OF CASES. XXXV Heferences are to sections. Hawes v. Marchant, 743. Hawkins v. Berry, 668. V. Gilbert, 709. V. Kemp, 568. V. Minis, 739. V. Pemberton, 667, 668. V. Watkins, 559. Hawley v. Beklen, 699. V. Sloe, 556. V. Smith, 683. V. Warner, 499, 506. Hawthorne v. City Bank, 623. Hay V. Walker, 679. Haycock v. Rand, 545, 549. Hayden v. Anderson, 499, 506, 507. V. Cabot, 753, 762. V. Hill, 725, 763. V. Keith, 520. V. Madison, 708, 709. , V. Mentzer, 594. V. Thrasher, 749, 755. Hayes v. Cooper, 744. V. Greer, 479. V. Josephi, 737. V. Little. 739. V. Morrison, 755, 756. V. Porter, 484. V. Ward, 734, 739. 749. Hayman v. Hallam, 518. Haynes r. Hart, 585. V. Nice,' 550. V. Stevens, 617. Hays V. Wilstach, 537. Hayselden v. Staff, 679. Haysler v. Owen. 702, 704. Hayward v. Fullerton, 741. V. Leonard, 700, 709, 711. Haywood v. Haywood, 656, 660, 661. Hazard v. Griswold, 743. Hazelri^ v. Donaldson, 519. V. Hutson, 590. Hazelton Coal Co. v. Buck Mt. Coal Co., 653, 704. Hazen v. Burling, 494. Hazleton v. Valentine, 747, 750. H. B. Foster, The, 719. Head v. Green, 729. Heald v. Cooper, 643. Healey v. Gorman, 556. Heard v. Dubuque Co. Bank, 564. Hearne v. Keath, 748, 750. Heart v. Bryan, 736. Heast V. Sybert, 542. Heath v. Derry, 735. V. Lent, 512. V. Newman, 635. v. Whidden, 592. Heckman v. Pinkney, 710. Hecksher v. McCrea, 569, 693. Hedges v. Gray, 659. V. Kerr, 572. Heenan v. Evans, 492. Heffrod v. Alger, 478, 499. Hege V. Newsom, 667, 670. Heidt V. Minor, 488. Heinlen v. Beans, 537. Heise v. Bumpass, 730. Helbner v. Townsend, 536. Hellams v. Abercrombie, 750. Hellen v. Ardley, 478. Hellman v. Spielman, 490. Helveustein v. Higgasou, 634. Hemmenway v. Fisher, 538. Hencke v. Johnson, 597. Henckley v. Hendrickson, 642. Henderhen v. Cook, 686. Henderson v. Coover, 481. V. Henderson, 594, 620, 623. V. Montgomeiy, 539. V. Stiles, 686. Henderson Bridge Co. v. O'Connor, 713. Hendrick v. Walton, 487. Hendricks v. Banning, 728. V. Franklm, 562. 563. V. Shoemaker, 486. Hendrickson v. Anderson, 693. Hendrie v. Neelon, 653. Hennepin Co. v. Jones, 479. Hennessey v. Farrell, 686, 709, 712. Hennicker v. Turner, 613. Henning v. Yanhook, 676. V. Withers. 593. Henrie v. Buck, 535, 536. Henry v. Elliott, 641. V. Ferguson, 507. V. Ward, 488. Henry Ewbank, The, 720. Henry, The, 716. Henson v. King, 668. Henty v. Wray, 607. Hepburn v. Dunlap, 588. Heralson v. Mason, 733. Herbert v. Eastou, 659. V. Ford, 545, 636. - Herdic v. Young, 504. Hereth v. Merchants' Nat. Bank, 541. Hernandez v. Montgomery, 486. Herndon v. Harrison, 601. V. Venable, 580. Herrick v. Belknap, 707. V. Borst, 741. V. Moore, 622. V. Orange Co. Bank, 739. V. Whitney, 668. Herrin v. Mclntyre, 603, 614. Herring v. Pollard, 583, 587. V. Skaggs, 672. Herron v. De Bard, 638. Hersey v. Ins. Co., 710. V. Turbett, 639. Hertzog v. Hertzog, 580, 582, 58a Hesper, The, 719. 1 Hess' Estate, 759. XXXVl TABLE OF CASES. References are to sections. Hetten v. Lane, 480. Hewett V. State, 488. Hewitt, In re, 786. Hewitt V. Miller, 647. Hextar v. Knox, 703. Heyu V. Phillii)s, 713. Hiekam v. HoUinj^sworth, 741. Hickborn v. Fletcher, 754. Hickman v. Hayues, 652. V. McCurdy, 759. Hickock V. Hoyt, 647. Hickol. V. Farmers' Bank, 741. Hicks V. Bailey, 748. V. McBride, 506. Hickson v. Lingold, 684 _ Hiett V. Davis, 537. Hiflford V. Alger, 477. Higbee v. Hopkins, 565. Higdon V. Thomas, 594. Higgins V. Hopkins, 679. V, Mansfield, 516. T. Murray, 644. Hikes V. Crawford, 746. Hildrup V. Brentano, 530. Hile V. Davison, 641. Hill's Estate. 748. Hill V. Ball, 675. V. Blake, 645. V. Bourcier, 734. V. Canfield, 652. V. Chipman, 646 V. Elv, 554. V. Enders, 552. V. Featherstonhaugh, 683. V. George, 556. V. Golden, 612. V. Hill, 643. V. Hobart, 579, 580. V. Hooper, 684. V. Lowry, 488. V. Merl, 519. V. North, 668. V. Parsons, 703. V. Smith, 651, 652, 656. V. Thomas, 525. Hillman v. Wilcox, 668. Hillyard v. Crabtree, 700, 711. Hilton V. Burley, 550. Himrod v. Baugh, 744. Hinchliflfe v. Kooutz, 693. Hinckler v. County Court, 487. Hinckley v. Kersting, 667. V. Kreitz, 536. V. Pittsburgh Bessemer Steel Co., 649, 713. V. West, 474. Hinde v. Liddell, 651, 652, 663, 671. V. Wliitehouse, 644. Hindry v. The Priscilla, 720. Hinds V. Chamberlin, 550. Hinkle v. Holmes, 534. Hinson v. Hampton, 686. Hinton v. Scott, 545. Hirt V. Hann, 699. Hitchcock V. Humfrey, 724. V. Humphry, 724. V. Hunt, 672. Hixon V. Hixon, 559, 059. Hoadly v. House, 668. V. McLaine, 642. Hoagland v. Moore, 709. Hoare v. Graham, 551, 553. V. Rennie, 645. Hoback v. Kilgore, 590. Hobart v. Butier, 082. V. Drogan, 717, 719. V. Hilliard, 531. Hobbs V. Middleton, 494. Hobson V. Bass, 737. V. Thelluson, 492. V. Trevor, 470. Hodges V. Connor, 637. V. Earl of Litchfield, 582, 584 V. Holeman, 538. V. Suffelt, 472, 474 V. Thayer, 593, 594 595. Hodgins v. Hodgins, 607, 612, 618. Hodgkins v. Moulton, 545, 554 Hodgkinson v. Wyatt, 472. Hodgson V. Bell, 631, 765. v. Hodgson, 742. Hoe V. Sanborn, 667. 670, 676. Hoffman v. Bank of Milwaukee, 541, 54*^ V. Boscii, 605. Hogan V. Calvert, 631. V. Thorington, 671. V. Titlow, 686. Hoge V. Norton, 510, 513. Hohl V. Meyer, 539. Hoitt V. Moulton, 654 Holbrook v. Weatherbee, 609. Holcomb V. Rice, 525, 529. V. Wyekoff, 541. Holden v. Dakin, 667. Holdgate v. Clark, 763. Holdipp V. Otway, 477. Holeran v. School District, 481. Holland v. Hall, 550. V. Johnson, 737. Holler V. Coleson, 507. Holliday v. Atkinson, 543. V. Cohen, 512. HoUiusbee v. Ritchey, 747. HoUlnsead v. Mactier, 707. Hollis V. Chapman, 700. Hollister v. Davis, 744. Hollond v. Teed, 725, 737. Holloway v. Talbot, 693. Holman v. Hobson, 541. Holmes v. Blogg, 090. V. Bovdston, 672. v. Rhodes, 631, 761, 765. V. Sinnickson, 605, 617, 6ia TABLE OF CASES. XXXVU References are to sections. Holmes v. Stummel, 686. V. The Joseph C. Griggs, 720. V. Weed, 752. Holt V. Manier. 737. V. Penacook Savings Bank, 758. Holten V. Board, etc., 654. Holyoke v. Jackson, 581. Holzworth V. Koch, 552. Homan v. Thompson, 551. Home Savings Bank v. Trabue, 735. Homer v. Purser, 634. Hood V. Hay ward, 742. V. Math is, 727. V. Raines. 708. Hook V. Stovall, 670. Hooks V. Bank of Mobile, 739. Hoopes V. Sac Co. Bank. 598. Hoot V. Spade, 609. Hootman v. Shriner, 489. Hoover v. Calhoun, 587. V. Peters. 667. Hope V. The Dido, 717. Hopewell v. Cumberland Bank, 758, 759. Hopkins v. Grazebrook, 578, 584 v. Ken worthy, 563. V. Ladd, 503. 506. V. Lee, 579, 580, 581. V. Tauquerav, 668. V. Yovveil, 579, 584. Hopper V. Adee, 679. V. Richmond, 556. Hoppes V. Cheek, 641. Hopping V. Quinn. 683. Hoppins V. Miller, 556. Hopson V. Fountain, 559, 659. Horn V. Batchelder, 645, 709, 711. V. Bavard, 513. V. Nash, 556. V. Western Land Ass'n, 693. V. Whittier, 475. Home V. Bodwell, 737. V. Walton, 593. Horner v. Lyman, 536. Horsford v. "Wright, 597, 608. Horton v. Cope. 530. V. McMurtry, 686. V. Manning, 730. Hosford V. Nichols, 557. Hosmer v. Wilson, 649. Hotchkiss V. Hunt, 644. Houck V. Graham, 747, 755, 759. V. Muller, 645. Hough V. Hunt, 565. V. Rawson, 645. Houghton V. Carpenter, 667, 670. V. Page, 556. House V. Fort, 668. Houseman v. Girard B. & L. Ass'n, 484. Houser v. Pearce, 698, 699, 704. Houston v. Fellows, 750. Houston V. Gilbert, 668. Houston, etc., R. Co. v. Mitchell, 647, 711. v. Molloy, 699. Hover v. Barkhoof, 484. Hovey v. Coy, 501. V. Rubber Tip Co., 524, 525, 530. Howard v. Daly, 693, 694. V. Emerson. 667. V. Farley, 474. V. Hoey, 643, 667. V. Lovegrove, 763. V. Taylor, 658, V. Witham, 571. Howe V. Buffalo, etc., R Co., 750. V. Handley, 503, 504, 507. V, Huntington, 645. V. Potter, 541. V. Synge, 550. V. Taylor, 492. V. Ward, 754. Howe Machine Co. v. Bryson, 692, 694. Howell V. Coupland, 655. V. Miller, 529. V. Moores, 631. V. Richards, 591, 592, 624. Ho^venstein v. Barnes, 564. Howes V. Barker. 591. Howie V. Rea, 667. Howland V. Leach, 645. Hoxie V. Lincoln, 690. Hoy V. Taliaferro. 543, 635. Hoyt V. Tutliill, 754, 759. V. Wilkinson, 748. Hubbard v. Belden, 686, 687, 711. V. Davis, 741. V. Epworth, 570. V. Jackson, 541. V. Marsliall, 554. V. Norton, 603, 627. V. Shaler, 490. Hubbell V. Carpenter. 743. Hubbly V, Brown, 753. Huber v. Burke. 570. Huckaber v. Albritton, 676. Huddleston v. Francis, 737. Hudgins v. Perry, 668. Hudson V. Daily, 557. V. Reel, 586. V. Robinson, 743. V. Swift, 585. V. Young, 505. Huff V. Wagner, 541. Huggeford v. Ford, 504 Huggins V. Rider, 679. Hugh Andley's Case, 477. Hughes' Case, 647. Hughes V, Banks, 668. V. Brooks, 514. V. Cannon, 686. V. Hughes, 478. XXX VIU TABLE OF OASES. Beferenoes are to sections. Hughes V. Smith, 474. 480. V, Wamsutta Mills, 690. V. Wickliffe, 477. V. Wynne, 477, 478. Hulfish V. O'Brien, 641. Hull V. Harris,. 573, 584. V. Tommy, 439. Hulland v. Malkin, 761. Hullett v. Soullartl, 750. 752. Hulsliizer v. Lamoreux, 571. Humaston v. Telegraph Co., 659. Humphrey v. Hayes. 737. Humphreys v. Comline, 667, 668. Hundley v. Lyons, 590. Hungerford v. Redford, 504. Hunnemau v. Grafton, 644. Hunt V. Adams, 551, 787, 730. V. Amidon. 745. V, Crane, 693, 693. V. Devine. 559. V. Hall, 556, 557. V. Lowell Gas Light Co., 654. V. Marsh, 625, 641. V. Middlesvvorth, 613, 614. V. Orwig, 594. 609, 610, 618, 614. V. Otis Co., 690, 695. V. Purdy, 741. V. Raplee, 602. V. Roberts, 727. V. Round. 499. V. Silk, 586. V. Standart, 563. V. State, 479. V. Van Deusen, 670. V. White, 496. Hunter, In re, 572. Hunter v. Bradford, 571. V. Graham. 637. V. O Neil, 572. V. Waldron, 687, 695. V. Wetsell, 647. V. Wilson, 541. Huntingdon v. Claffin, 685. Huntingdon, etc., R. & C. Co. v. Eng- lish. 657. Huntington v. Hall, 668. V. Harvey, 730. V. Ogdeusburgh. etc., E. Co., 693. Huntress v. Patton, 74.3. Huntsman v. Hendricks, 601. Hupe V. Phelps, 679. Hurd V. Callahan, 727, 728. V. Dunsmore, 570. V. Hall, 610, 623. V. Spencer. 737. V. Trimble, 526. Hurdle v. Hanner, 746. Hurley v. Buchi, 674. Hurlock V. Rein hard t, 490. Hurn V. Soper, 594. Hurst V. Chambers, 555. Husband v. Davis, 473. Hussey v. Collins, 761, 765. V. Manufacturers' & M. Bank, 659. Huston V. Branch Bank, 736. Hutchins v. McCann, 555. V. Moody. 620, 630. V. Roundtree, 601, 616. Hutchinson v. Reed, 644. V. Ryan, 538. v. Wetmore, 686. V. Wood well, 725, 787. Hutton V. Campbell, 737. V. Lockridge, 537. V. Williams. 570. Huyck V. Andrews, 620, 629. Hyatt V. Bank of Kentucky, 556. V. Boyle, 667, 668. V. Grover & B. S. K Co., 480. Hyde v. Booraem. 709. V. Mechanical Refrigerating Co., 702. V. Tenwinkel, 554. Hyderabad, The, 719. Hydraulic Engineering Co. v. Mc- Haffie, 704. Hyer v. Little, 682. Hyland v. Sherman, 667. Hymes v. Esty, 609, 629. V. Patterson, 659. Hynson v. Dunn, 669, Hyslop v. Clarke, 550. Ida L. Howard, The, 717. Illinois Land & Loan Co. v. Bonner, 614. Ilsley V. Jones, 540. Imel v. Van Deren, 499, 501. Imeson, Ex parte, 559. Imler v. Imler, 564. Imperial Coal Co. v. Port Royal Coal Co., 662. Independence, The, 716. Independent School Dist. v. McDon- ald. 480. Ingalls V. Cooke, 620. V. Dennett, 748. V. Lee, 541, 555. Inge V. Bond, 668. Ingles V. SutliflF, 741. Ingersoll v. Van Bokkelin, 508. Ingledew v. Northern R. Co., 666. Inglehart v. State, 494. Inglish V. Watkins, 556. Ingram v. Drinkard, 556. V. McComb, 488. V. Morgan, 592, 641. Innes v. Af;;new, 592, 604 Insley v. Shepard, 714. Insurance Co. v. Conard, 516. Irion V. Hume, 476. Irvine v. Barrett. 556. Irwin v. Askew, 581. TABLE OF OASES. XXXIX References are to sections. Irwin V, Backus, 495. Isaacs V. Elkins, 554. Island City, The. 718. Ives V. Bank of Lansingburgh, 737. V. Bosley, 730. V. Hulce, 537. V. Humphrey, 675. V. Jones, 764. V. Merchants" Bank, 478, 531, 533. V. Niles. 639. 669. V. Van Epps, 744. Ivey V, Colquitt, 488. Jack V. Dougherty, 594 V. Nichols, 556. Jackson v. Allaway, 645. V. Bry, 507. V. Bunnell, 530. V. Covert, 647. V. Delancv. 594. V. Gr is wold. 743. V. Hanson, 499. V. Huey, 741. V. Jones, 711. V. Justices, 494. V. Ludeling, 589. V. McGinnis, 573. V. Mott, 670. V. Post, 765. V. Eundlet. 486. v. Sassaman. 620. _ V. Smith, 510, 514. V. Turner, 605. 616. V. Warwick, 543. Jacksonville, etc.. R Co. v. Peninsu- lar Land, etc., Co., 654. Jacobs, Ex parte. 742. Jacobs V. Daugherty, 504. Jacobson v. La Grange, 679. Jacobus V. Monongahela Nat Bank, 513 516 Jacoby v. s'tettler, 586. Jaffray v. Dennis, 556. V, King, 693. James v. Allen. 692. V. Bostwick. 746. V. Lawrenceburgh Ins. Co., 549. V. Long, 728. V. McKernan, 641. V. State, 474. V. Thomas, 473. January v. Henry. 659. Jaques v. AVithy, 550. Jarratt v. Martin, 744. Jarvis v, Buttrick, 620. V. Sewall, 761, 763, 765. Jeflfers v. Johnson, 480, 761, 765. Jefferson Co. Bank v. Eborn, 513, 514. Jeffrey v. Barnard, 499. V. Bigelow, 675. Jemison v. Governor, 743. Jemison v. Woodruff, 676. Jemmison v. Gray, 653, 654, 659. Jenkins v. Banning. 538. V. Biddulpli, 583. V. Hay, 534. V. Hopkins. 623, 633. V. Jones, 607. V. McNeese, 737. V. Richardson, 643. Jenks V. Quinn, 614. V. Ward. 625. Jennery v. Olmstead, 684 Jenness v. Parker, 636. v. Wendell, 644 Jennings v. Camp, 686. 709. Jennisou v. Stone, 542. Jerome v. McCarter, 533. Jeter v. Glenn, 613, 614 620, 635, 630, ; 637. Jeudwine v. Agate, 477, 478. Jevne v. Osgood, 524. Jewell v. Blandford, 569. v. Schroeppel. 709. V. Thompson, 686, 691. ' V, Wright, 556. Jevvett V. Crane, 743. V. Weston, 709. J. F. Farlan, The, 715. J. G. Paint, The, 716. J. L Case Threshing M. Co. v. Ha- ven, 670. Jobe V. O'Brien, 591. John V. Jones, 758. John E. Clayton, The, 730. John Gilpin, The, 718, 719. John Wurts, The. 718, 719, 730. John Hancock Mut. L. Ins. Co. v. Lowenberg, 735. Johnes v. Johnes, 478. Johns V. Nixon, 637. Johnson v. Allen, 645, 646. • V. Arnold, 694 V. Brown, 737. V. Collins, 633, 638. T. Crossland, 564. V. Davis, 630. V. De Peyster, 710. V. Gwathmey, 475. V. Hanson, 574 v. Harker, 485. V. Harvey, 754 V. Hessel, 537. V. Kennion, 541. V. Matthews, 663, 704 V. Moser, 537. V. Nvce, 612. V. Planters' Bank, 739. V. Purvis, 637. V. Shepard. 734 V. Simpson, 596. V. Stoddard, 644 V. Vaughan, 530. xl TABLE OF CASES. Beferences are to sections. Johnston v. Glancy, 590. Johnston Harvester Co. v. Clark, 564. Joliffe V. Collins, 543. V. Hite, 590. Jolly V. Walker, 659. Jones V. Blanton, 498. V. Bradford, 750, 759. V. Bright, 667. V. Broadhurst, 541. V. Brooke, 752. V. Childs, 761, 765. V. Dow, 730. V. Dyer, 695. V. Dyke, 582. V. Foster, 660. V. George, 667, 672, 675. V, Goodwin, 730. V. Hay, 684. V. Hays, 518. V. Hibbert, 541. V. Howard, 476. V. Jones, 544, 693. V. Joyner, 748. V. Judd, 665, 687, 688, 713, 714. V. Just. 667. V. Lightfoot, 610. V. Marsh, 645. V. Mial. 709. V. Miuld. 588. V. Murray, 667. V. National Printing Co., 663. V. Perry, 587. V. Radatz, 564 V. Richardson, 739. V. Ryde, 668. V. Smith, 507. V. Stanton, 641. V. Steinbergh, 733. V. Tatum, 590. V. United States, 480, 481, 483, 655. V. Waggoner, 641. V. Wjird, 594, 742. V. Woodbury, 707. Joplin Water Co. v. Bathe, 670. Jordan v. Adams, 748. V. Agawam W. Co., 536. V. Dobbins, 727. V. Jordan, 545. V. La Vine, 762. Joslin V. Coughlin, 667, 669. Josling V. Irvine. 651, 653. V. Kingsford, 667. Joslyn V. Eastman, 737. Josselyn v. Ames, 727, 730. Joy V. Bitzer, 675. Joyce v. Adams, 644, 651. Judah V. Harris, 559. Judd V. Seaver, 555, Judge v. Coulter. 494. V. Emery, 494. V. Looney, 494. Judge of Piobate v. Heydock, 478. v. Southard, 494. Judkins v. Walker. 690. Justices V. Ennis, 475. V. Willis, 496. V. Wynn, 475. Kaaterskill, The, 719. Kadish v. Young, 648. Kahl V. Love, 484. Kaigh V. Fuller, 727. Kane v. Casgrain, 523. V. Sanger, 613. V. Stone Co., 711, 713. Kannen v. McMullen, 679. Karch v. Commonwealth, 474, 488. Karthaus v. Owings, 531, 535. Kase V. John, 668. Kasson v. Smith, 543. Katz V. Moessinger, 736. Kauffman's Appeal, 570. Kaufman v. Loomis, 737. Kavanaugh v. Day, 556. Kavenaugh v. Saunders, 474, 475. Kealing v. Vansickle, 730. Kearney v. Doyle, 713. V. King, 559. Kearsley v. Cole, 742. Keas V. McMillan, 575. Keaton v. Campbell, 496. Keeler v. Wood, 608, 613, 618. Keen v. Tupper, 645. V. Whittington, 534. Keenan v. Dorflinger, 682. Keene Five Cents Sayings Bank v. Herrick, 758. Keep V. Brigham, 631. Keesling v. Frazier, 763. Keiser v. Beam, 758. Keith V. Day, 608. V. Forbes, 759. V. Goodwin, 755. V. Jones, 559. Kellar v. Carr, 505. V. Williams, 755. Keller v. Ashford, 758. Kellej' V. Richardson, 683. y. West, 570. Kellogg V. Ingersoll, 620. y. Krauser, 654. y. Malin, 620, 622, 637. y. Robinson, 620. Kellogg Bridge Co. v. Hamilton, 667. Kelly v. Allen, 641. V. Bradford, 711. v. Cunningham, 570. V. Herrick, 759, ■V. Kellogg, 725. v. Low, 610, 623. V. State, 480. Kemp V. Finden, 756. V. Knickerbocker Ice Co., 651. TABLE OF OASES. xU Ilefereiice3 are to sections. Kempner v. Cohn, 584. V. Heidenheimer, 570. Kendall v. Allshire, 488. Kendrick v. Forney, 748. Kenley v. Commonwealth, 505. Kennebec Bank v. Turner, 737. Kennedy v. Brown, 682. V. Davis, 605. V. Hammond, 528. V. Nims, 534. V. Richardson, 564. V. Solomon, 624. V. Whitwell, 508. Kennerly v. Nash, 556. Kennison v. Tavlor, 592, 617, 618. Kent V. Cantrail, 623. V. Carcaud. 590. V. Ginter, 656, 657. Kenworthy v. Sawyer, 742. Keokuk v. Love. 749. Keppele v. Carr, 562. Kerley v. Richardson, 573, 584. Keruochan v. Murray, 724. Kerr v. Brandon, 487. Kerrison v. Cole, 550. Ketcham v. Jauncey, 765. Ketchum v. Evertson, 583, 585. V. Stout, 590. v. Wells, 667. Kettle V. Harvey, 711. V. Lipe, 765. Keuter v. Thompson, 755. Kevton v. Brawford, 637. Kidd V. Belden, 650. V. McCormick. 698. Kidder v. Blake. 550. Kilbourne v. State Institution, 588. Kilgore v. Derapsey, 556. V. Sowers, 556. Killian v. Ashley, 730. Kilpatrick v. Dye, 635. 640. Kimball v. Bryant, 593, 597, 601. v. Cunningham, 668. V. Moir, 564. V. Newell, 743. Kimball Co. v. Baker, 724, 725. Kimball & A. Manuf. Co. v. Vroman, 667. Kimble v. Cummins, 747, 750. Kincaid v. Brittain, 592, 593. 596, 597, 599. Kindt's Appeal, 739. King v. Baldwin, 735, 739, 741, 749. V. Bardeau, 590. V. Brewer, 477. V. Brown. 575, 684. V. Gilson, 591, 601. V. Kerr, 603. 608, 609, 613, 616. v. King, 552. V. Nichols, 488. V. Norman, 727. V. Phillips, 521, 561, 752. King V. Pyle, 581. V. Ramsey, 506. V. Ryle, 609. V. Sturer, 693. V. Thompson, 589. Kingdon v. Nottle, 592. King Philip's Mills v. Slater, 645. Kingsbury v. Milner, 605. V. Smith, 617. V. Westfall. 725. Kingston v. Kelly, 679. Kingston M. Ins. Co. v. Clarke, 480. Kip V. Brigham, 765. Kipp V. Wiles, 651, 652. Kirby v. Commonwealth, 476. v. Studebaker, 723. V. Turner, 742. Kirk V. Hartman, 678. Kirkpatrick v. Alexandei', 650. V. Downing, 581, 584. V. Howk, 737. V. McCullough, 559. V. Muirhead, 545. Kirksey v. Friend, 765. Kirschmann v. Lediard, 654, 656, 659, 660. Kirtland v. Molton, 659. Kirwane v. Blake. 478. Kiser v. Lovett, 530. Kiskadden v. Allen, 730. Kist V. Atkinson, 695. Kitzinger v. Sanborn, 651, 656. Klauber v. Biggerstaff, 559. Knadler v. Sharp, 623, 625. Knapp V. Barnard, 512. V. Lee. 636. V. Marlboro, 604, 614. V. Wallace, 683. Kneeland v. Fuller, 575. Knepper v. Glenn, 495. V. Kurtz, 604. Knight V. Bean, 655. V. Charter, 739. V. Hughes. 756. V. Hunt, 542. V. McLean, 477. V. Turner, 634. Knoblauch v. Kronscbnabel, 650. Knopf V. Morel, 755, 760. Knowles v. Armstrong, 540, 563. V. Kennedy, 601. Knowlton v. Oliver, 649. Knox v. Kearns, 495, 498. Knutson v. Knapp. 690. Koch V. Godshaw, 651. Kock V. Emmerling, 679. Koeltz V. Bleckman, 712, Koenig v. Bramlett, 741. Koenigkraemer v. Missouri Glass Co., 693. Koestenbader v. Pierce, 606. Kohl V. Lindley, 644, 667. xlii TABLE OF CASES. References are to sections. Konitzky v. Meyer, 642, 743, 745. Koon V. Greenniati, 714. KorC V. Lull, 703. Kornegay v. White, 671. Koitiight V. Buffalo Commercial Bauk, 65G. Kost V. Bender, 541. Kountz V. Kirkpatrick, 653. Kountze v. Omaha Hotel Co., 475, 533. 534. Kraft V, Fancher, 748. Kramer's Appeal, 759. Kramer v. Carter, 623. Kribbs v. Jones, 656. Kronschnable v. Knoblauch, 654. Krouse v. Deblois, 686. Krulder v. Ellison. 644. Kuenzi v. Elvers, 563. Kugler V. Wiseman, 713, 714. Kutz V. McKune, 620. Kyle V. Fauntleroy, 616. Labrador, The, 719. Lacey v. Mai-nan, 581, 593, 594. Lacoste v. Spivalo. 498. Lacy V. Getman, 687, 689, 693. V. Holbrook, 559. V. Osbaldiston, 686. Ladd V. Lord, 672. T. Prentice, 501. Ladue v. Seymour, 709, 710. La Du-King Manuf, Co. v. La Du, 687. Lafargue v. Harrison, 724. Lafayette v. James, 725. Lafayette, etc., R. Co. v. Winslow, 654. Lafiin v. Pomeroy, 730. Lahaina, The, 719. Laing v. Barclay. 562. V. Fidgeon.'G67. V. Stone, 557. Laird v. Pim, 568, 569, 570. Lakemau v. Pollard, 689. Lake Shore, etc., Ry. Co. v. Richards, 713. Lakin v. State, 489. Lallv V. Wise, 530. Lamb v. Buker, 605. V. Danforth, 613. V. Shaw. 525. Lambert v. Estes, 604, 605, 616. V. Haskell, 525, 528, 530. Lambj' v. Gage, 686. Lamerson v. Marvin, 542, 633. Lamkin v. Crawford, 570, 644, 647. V. Reese, 573. Lamoreaux v. Rolfe, 699, 710. Lampon v. Corke. 594. Lampton v. Usher, 530. Lancashire Wagon Co. v. Fitzhugh, 492. Lancaster, The, 719. Landes v. Eichelberger, 514. Landsdovvne v. Landsdowne, 559. Lane v. Fury, 610, 617, 618, 619. V. Hitchcock, 528. V. Lantz, 670. V. Richardson, 620, 623. V. Sharp, 551, 552. Lang V. Brevard, 739. V. Pike, 537. Langsdale v. Nicklaus, 620. Lang worthy v. McKelvey, 524, 535. Lausdale v. Cox. 754. Lansing v. Lansing, 679. Lantry v. Parks, 686, 691. Lanusse v. Barker, 561. Lapice v. Smith, 556. Lara way v. Perkins, 575, 698. Large v. Steer. 522. Larkin v. Buck, 686, 691. V. Hecksher, 693. Larned v. Allen. 488. La Roche v. O'Hagan, 670. La Rose v. Logansport Nat. Bank, 727, 728, 735. Lash V, McCormick, 543, 554. Lasher v. Williamson, 744. Latham v. Brown, 565. V. Fagan, 488. Lathrop v. Atwood, 631, 765. V. Judson, 538. Lattin v. Davis, 651. V. Vail, 633. Laughlin v. Marshall, 559. Laughman v. Thompson, 635. Laurent v. Vaughn, 704. Law v. East India Co., 735, 737. Lawless v. Collier. 592, 593, 597, 598. Lawlor v. Alton, 534. Lawrence v. Chase, 580. V. Dougherty, 559. V. Griswold, 546. V. Hagerman, 512. V. McCalmont, 724 V. Montgomery, 593* V, Robertson, 614. V. Simons, 586, 709. V. Simonton, 571. V. Stonington Bank, 543 V. Tucker, 551. V. Wardwell, 713. Lawson v. Pulaski, 488. Lawton v. Chase, 654. v. Erwin, 486. V. Green. 520, 523, 525. V. Keil, 668. Lay V. Wissman. 541. Lea v. Deakin, 523. Leach v. Fornev, 590. V, Smith, 656, 659. Leake v. Covington, 760. 1 Leathers v. Sweeney, 699. TABLE OF CASES. xliii References are to sections. Leavenworth v. Brockway, 556. V. Packer, 645. Leavitt v. Palmer, 550. Lecatt V. Sallee, 682. Ledwich v. McKim, 668. Ledyard v. Joues, 490. Lee V. Biddis, 559. V. Carter, 679. V. Clark, 750, 767. V. Clements, 695. V. Dean. 590. V. Dick, 724. V. Hastings. 507. V. Homer, 517. V. Russell, 579. V. Selleck, 556. 557. V. Sickles Saddlery Co., 645, 667. V. The Alexander, 717. V. White, 573. V. Wilcocks, 573. Leeds v. Dunn, 725. V. Little, 710. Leers, Ex parte. 541. Leffingwell v. Elliott, 610, 617, 618, 623. Lefler v. Dermotte, 556. Legatee v. Marr, 531. Leggett V. Humphrys, 478. V. Jones, 562. V. ]\IcCartv, 642. V. McClelland, 758, Lehane v. Keyes, 538. Lehman v. McQuown, 528. Leiber v. Goodrich, 559. Leigh V. Patterson, 648. Leighton v. Brown. 503, 504, 506. V. Grant, 543. 554. Leipsic, The. 715. 716. Leisse v. Railroad Co., 525. Leland v. Stone, 593, 594. Lemeunier v. McClearley, 522, 525. Lemmon v. Brown, 587, 590. V. Strong, 733. Lemon v. Trull, 744. Lenheim v. Fay, 542. Lennig v. Ralston, 563. Leonard v. Beaudry, 698. V. Dyer. 091, 709. V. Fowler, 667. V. Peebles, 676. V. Speidel, 725. V. Whitney, 507. Leopold V. Van Kirk, 667. Le Sage v. Coussmaker, 679. Lesher v. Getman, 763. Le Tegre, The. 717. Lethbridge v. Mytton, 624, 631. Letson v. Dodge, 503. Levy V. Stein bach, 744. V. Taylor, 528. Lewis V. Armstrong, 738. V. Atlas Mut. Ins. Co., 692, 694. D Lewis V. Bibb, 571. V. Cosgrave, 543, 543, 545, 548, 549. V. Crockett, 761. V. Esther, 686. V. Greider, 647. V, Harris, 610. V. Lee, 570, 581. V. Lewis, 557. V. McMillen, 571, 573. V. Morland, 492, V. Morton, 641. V. Owen, 556. V. Palmer. 736. V. Peake, 669. V. Rountree, 667, V. Trickey, 679, 680. V, West, 636. V, White, 572. V. Yale, 590. Liber v. Parsons. 608. Libhart v. Wood. 686. Lichtenstadt v. Fleisher, 534 Lichty v. Havne, 682. Lidde'll v. Wiswell, 754, 757. Life Association of America v. Fer- rill, 694. V. Neville, 737. Lightburn v. Cooper, 668. Lighthall v. Caldwell, 711. Eighty V. Shorb. 639. Liiiengren Furniture Co. v. Mead, 662. 703. Lilley v. Elwin, 686. Lillie V. Lillie, 525, 530. Limpus V. State, 490. Lincoln v. Johnson, 642. V. Little Rock Granite Co., 697. V. Schwartz, 690. Lindsay v. Blood, 499. Lindsey v. Parker, 762, 767. Lines v. Mack. 556. V. Smith. 668. Lingham v. Eggleston, 644. Lining v. Giles, 494. Linningdale v. Livingston, 688. Linton v. Porter. 668. Linville v. Leininger, 479. Lister v. Batson, 579, 583. V. Windmuller, 669. Litcheustein v. Brooks, 693. Litchfield v. Allen, 545, 548. Little V. Dawson, 679. V. Derbj% 555, v. Little, 750, 761. V. Phoenix Bank, 559. V. Ragau, 761. V. Rilev. 556. Littlefield V. Biddeford, 50a Littlejohn v, Wilcox, 510. Littleton v, Frank, 516. V. Richardson, 615. xliv TABLE OF CASES. References are to sections. Liverpool Packet, The, 719. Livingston v. Exum, 524, 526. V. Treniper, 550. V. Van Rensselaer, 756. Lizardi v, Cohen, 556. Llansamlet Tin Plate Co., Ex parte, 646. Llewellyn v. Two Anchors and Chains, 719. Lloyd V. Jewell, 636. V. JIcGarr, 563. V. Quimby, 605, 609. Lloyds V. Harper, 724, 728. Loan Co. v. Association, 488. Lobdel V. Baker, 668, 781. Lobdell V. Stowell, 656. Lochrane v. Solomon, 739. Locke V. Furze, 607, 624. V. Homer, 631. 765. V. McVean, 724, 726. V. Williamson, 667. Lockwood V. SatTold, 529. V. Sturdevant, 598, 601. Loder v. Kekule, 670. Loescher v. Deisterberg, 652. Logan v. Moulder, 592, 593. Lombard v. Mayberry, 732. Lomme v. Sweeney, 499, 508. London Assurance Co. v. Bold, 725, 727. Long V. Allen, 636. v. Clapp, 675. V. Conklin, 652. v. Hickingbottom, 668. V. Isi'ael, 641. V. Long, 477, 478. V. Moler, 620. V. Robinson, 538. V. Sinclair, 609. Longley v. Griggs, 755. Longmeid v. Halliday, 675. Longworth v. Mitchell, 590. Lonsdale v. Church, 477, 478. Loomis v. Bedel, 610. V. Eagle Bank, 645. V. Fay, 738. Loouey v. Pinckston, 559. Loosemore v. Radford, 765. Lord v. Belknap, 645, 708, 709. V. Comstock, 699. V. Lancey, 475. V. Staples, 750. V. Wheeler, 700. Lord Arlington v. Merricke, 725. Lord Dunsany v. Plunkett, 477. Loring v. Bacon, 755. v. Baker, 498. V. Gurney, 644. V. Sumner, 543. Lorni v. Tucker, 549. Lot V. Parish, 613, 614, 617. V. Thomas, 592. Lothrop V. Otis, 667. V. Southworth, 529. Lott V. Mitchell, 761, 765. Loud V. Merrill, 540. , Loudy V. Clarke, 705. Lougee v. Washburn, 556. Louis Cook Manuf. Co. v. Randall, 653. Louisville M. Co. v. Welch, 729. Louisville & N. R. Co. v. Hollerback, 714. Louisville, etc., Ry. Co. v. Neafus, 576, 594. V. Sumner, 698, 699, 703. Love V. Gibson, 760. Lovejoy v. Murray, 763. Lovelaud v. Shepard, 733. Lovelock V. King, 707. Lovell V. Sherwin, 641. Low V. Archer, 763. V. Cobb. 488. Lowe V. McDonald, 613. V, Peers, 471. V. Rockwell, 536. V. Sinklear, 690. Lowell V. Parker, 488. Lowen v. Grossman, 695. Lowenstein v. Monroe, 513. Lower v. Buchanan Bank, 743. Lowrey v. Barney, 474. Lowry v. Hurd, 640. V. State, 498. Lowther v. Commonwealth, 605, Lucas V. Heaton. 647. Luckett V. Triplett, 641. Lucking v. Gegg, 748. Ludlow V, Dale, 678. V. Gilman, 640, 641. Luffburrow v. Henderson, 676, 695. Lufkin V. Mayall, 690. Lukens v. Nicholson, 604. Lull V. Stone. 548. Lumsden v. Leonard, 739. Luse V. Jones, 654. Lush V. Druse, 654. Lushington, The, 716. Lusk V. Ramsay, 737. Luske V. Hotchkiss, 681. Lutes V. Alpaugh,- 503, 509. Lutt V. Sterrett, 537. Lyman v. Con key, 481, 498. V. Lull, 761, 762, 763. Lynch v. Baxter, 571, 573. v. Commonwealth, 486. V. Hancock, 750. Lyndon v. Miller, 481. Lyon v. Bertram, 668. v. Clark, 478. V. Hersey, 524, V. Osgood. 495. Mack V. Bragg, 686. V. Patchin, 590. TABLE OF CASES. xlv References are to sections. Mack V. Sloteman, 699, 713. Mackay v. Dodge, 727. Mackeilar v. Farrell, 536. Mackev v. Harmon, 628. V. blssen, 583. Mackie v. Caines, 550. Mackworth v. Thomas, 477. Macomber v. Parkei', 644. Macrae v. Clark, 489. V. Goodman, 559. Madden v. Porterfield, 680, Madison Co. v. Johnston, 498. Madison, etc., R. Co. v. Briscoe, 539. Madox V. Jackson, 748. Maeder v. Carondelet, 604. Magee v. Hutchinson, 551, 552. Magruder v. Admire, 757. V. Melvin, 538. Maguire v. Riggin, 612. Mahan v. Sherman, 553, 554. V. Tydings, 530. Maher v. Carman, 538. V. Riley, 653, 656. Mahnke v. Damon, 510. Mahon v. Fawcett, 758. V. New York, etc., R. Co., 673. Mahurin v. Pearson, 741. Maigley v. Hauer, 594. Maine Mut. Ins. Co. v. Stockwell, 551. Major V. Donnovant, 609. Malaun v. Ammon, 582. Maiden v. Fyson, 582. Mallan v. Radloff, 667. Mallory v. Lord, 651. Malone v. McClain, 537. Manahan v. Smith, 631. Mendia v, McMahon, 713. Mandorff v. Singer, 739. Maner v. Washmgton, 641. Maney v. Porter, 591. Manhattan Gas Light Co. v. Ely, 727. Manhattan Ry. Co. v. Cornell, 762. Manhattan Stamping Works v. Koeh- ler, 705. Mann v. Brown, 725. V. Everston, 667. V. Everts, 494. V. Smvser, 552. V. Taylor, 656, 663. Manning v. Manning, 503. Mansell v. British Linen Co. Bank, 528. Manson v. Baillie, 679. Manuel v. Campbell, 713. Manufacturing Co. v. Barney, 535. Many v. Sizer, 531. Marble v. Moore, 644. IMarcum v. Burgess, 490. Marcus v. Smith, 570. Mare v. Kupfer, 559. Margraf v. Muir, 580. Marie Anne, The, 719. Marine Bank v. Chandler, 559. Marine F. Ins. Co. v. Tincher, 559. Markham v. Jaudon, 656. V. Middleton. 596. Markland v. Crump, 614. Markland. etc., Co. v. Kimmel, 725. Markle v. Hatfield, 668. Marlatt v. Clary, 669. Marney v. State, 488. Marquett, The, 716. Marqueze v. Sontheimer, 512, 513. Marquis v. Laretson, 713. Marr v. Prather, 659. Marriage v. Marriage, 473. Marsh v. Bennett, 542, 553. V. Dunckel, 741. V. Harrington, 756. V. Hayford, 746. V. McPheison, 666, 670, 672. V. Pike, 736, 749. V, Rulesson, 686. V. Thompson, 573. V. Webber, 675. Marshall v. Bailey, 518. V. I'erguson, 656, 660. V. Gantt, 670. V. Hann, 695. V. Livingston, 501, 504. V. McConuell, 605, 606. V. Peck, 667, 668. V, Piles, 647. V. Poole, 557. V. Winter, 478. V. Wood, 590, 670. 671. Marston v. Hobbs, 591, 592, 59a Martin v. Adams, 644. v. Atkinson, 584, 610. V. Bailey, 507. V. Baker, 592. V. Baldwin, 755. V. Barber, 630. V. Bolenbaiigh, 765, 767. V. Boyd, 730. V. Covvles, 615. V. Everett, 693. V. Foster, 497. V. Franklin F. Ins. Co., 766. V. Gilbert, 509. V. Good, 730. v. Gordon. 594. V. Long, 593. V. McGormick, 585. V. Martin, 556. V. Orr, 739, 741. V. Porter, 588. V. Wright, 581, 584, 679, 724 Martindale v. Brock, 748. V. Smith, 644. Marx V. Leinkautf, 512. Mary E. Dana, The, 719. Mary E. Long, The, 719. Maryland v. Way man, 478. xlvi TABLE OF CASES. Beferences are to sections. Maryland P'ertilizinp: & Manuf. Co. V. Newman, 564. Mason v. Chappell, 072. V. Cooksey, 597. V. Franklin, 555. V. Kellogg, 009, 615. V. Lawing, 587. V. Lord, 759. V. Nichols, 728. V. Pierron, 736, 754 V. Pritchard, 724. V. Eichards, 508. V. Sumner, 507. V. The Blaireau, 721. V. Wait, 542. Massie v. Sebastian, 530. Masterson v. Goodlett, 656. Masterton v. Mayor, 654, 663, 673, 675, 688, 713, 714. Masters v. Ibberson, 541. Mathews v. Aikin, 736. V. Davis, 583. V. Phelps, 724. Matteson v. Holt, 668. Matthews v. Hall, 748. V. Lee, 475. V. Matthews, 581. V. Montgomery, 487. V. Norman, 564. Mattoon v. Pearce, 503, 506, 507, 508. Mattox V. Craig, 661. Mauran v. Bullus, 724, 727. Maurice v. Partridge, 489. Maw V. Jones, 694. Maxfield v. Bierbauer, 641. Maxwell t. Connor, 735. V, Jameson, 750. Mav, In re, 682. May V. Ivie, 038. V. May, 752. Maybin v. Coulon, 550. Mayer v. Duke, 512, 515. V. Isaac, 724. Mayhew v. Crickett, 739. Maynard v. Briggs, 682. Mayor v. Dwinell, 668. V. Horn, 480. V. Kelly, 725. V. Second Avenue R. Co., 698. Mazuzan v. Mead, 732. McAllister v. Clement, 488. V. Reab, 676, 744. V. Smith, 556. McAlpme v. Woodruflf, 616, 620. McAndrews v. Santee, 643. McArthur v. Martin, 738. V. Seaforth, 657. McAuley v. Carter, 712. McBeth V. Mclntyre, 765. McBrayer v. Cohen, 570. McBride v. Farmers' Branch Bank, 512. McBroom v. Governor, 739. McCabe v. Moorehead, 499, 668. McCafferty v. Griswold, 580. McCandlish v. Newman, 643. McCarthy v. Howell, 551. McCarty'v. Leggett, 592, 601. v. Moorer. 586. V. Roots, 755. McClain v. Williams, 545. McClendon v. Wells, 512. McClintick v. Cummins, 556. McCloskey v. Wingfield, 742. McClowry v. Chrogan, 580, 583 McClung v. Kelley, 067. McClure v. Dunkin, 477, 478. V. Erwin, 761. V. Gamble, 605, 613. V. Lewis. 589. V. Pyatt, 690. V. Williams. 644, 647. McClurg V. Foyer, 733. McCluskey v. Cromwell, 726. McCollum V. Hiuklev, 737, 739. V. Seward, 654, 680. McConey v. Wallace, 703. McConnel v. Hall, 582. McConnell v. Downs, 615. V. Dunlap, 581. 587, 590. McCormick v. Basal, 644 V. Connolly, 707. V. Irwin, 736. V. Jensen, 652, 653. V. Moss, 488. V. Sarson, 045. V. Trotter, 559. V. Vanatta. 072. McCormick Harvesting M. Co. v. Col- liver, 510. McCoy V. Artcher, 668. V. Huffman, 690. V. Lord, 604. McCracken v. Hare, 695. V. McCracken, 583. McCrady v. Brisbane, 592, 625. McCrary v. Parks. 759. McCrea v. Longstreet, 667. V. Purmort, 594. McCroskey v. Riggs, 475, 486. McDaniel v. Austin, 749. v. Grace, 636. V. Parks, 693. V. State, 491. McDermott v. Isbell, 475. McDoal V. Yeomans, 733, McDonald v. Bauskett, 761, 7r:.. V. Green, 641. V. Hodge, 056, 661. V. James, 524, 525, 527. V. Magruder, 755, 756. V, Meadows, 496. V. Snelling. 075. V. Unaka Timber Co., 653. TABLE OF CASES. xlvil References are to sections. McDonnell v. Buffum, 488. McDowell V. Burwell, 488. V. Caldwell. 496. V. Keller, 559, V. Oyer, 580. McDugald V. McFadgin, 676. McEachron v. Randies, 647. McEntyre v. McEntyre, 676. McEwen v. Kerfoot. 679. McFadden v. Ross, 506, 507. V. Wetherbee, 650. McFarland v. Newman, 668. McGary v. Hastings, 604, 605, 610, 617, 623. McGaToch v. Wood, 675. McGavock v. Woodlief, 683. McGee v. Connor. 730. V. Metcalf, 739. McGeliee v. Jones, 641. V. Posey. 656. 659. McGiffin V. :6aird. 669. McGinnis v. Noble, 609, 610. V. The Pontiac, 719. McGlothlin v. Wvatt, 498. McGovern v. Lewis. 698, 704. McGovney v. State, 725. McGowan v. Myers, 620. McGraw v. Fletcher, 667. McGregor v. Balch, 535. V. Ball, 721. V. Penn, 668. McGrew v. Governor. 488. McGuffey v. Humes, 606, 616. McGuinness v. Whalen, 570. McGuire v. Justices, 486. V. Kearney, 667. McHardy v. Wads worth, 744. McHose V. Fulmer, 652, 653. Mclndoe v. Morman, 572. Mclnnis v. Lyman, 592, 593, 601. Mcintosh V. Likens, 723. McKay v. Lane, 671. V. Riley, 652. McKean v. Shannon, 486. McKee v. Bain, 610. V. Brandon, 579. V. Campbell, 752, V. Hamilton, 746. V, Jones, 675, McKellar v, Bowell, 742, McKelvev v, McLean. 507, McKenna v, George, 756, 757. McKenney v. Haines, 652, 657. McKeuzie v, Mathews, 527. McKiel V, Porter. 559, 659, McKim V, Bartlett, 498. McKinley v. Holliday, 587. McKinney v. School District, 678. V. Springer, 709, McKinnie v.^Harvie, 583. McKinnon v. Barrows, 607. McKinnan v. McEwan, 702. McKnight v. McLean, 477, 478. McLane v. Miller, 695. V, Tighe, 510, McLaughlin v. McGovern, 728. McLean v, Dunn. 647, McLemore v. Mabson, 634, 641, McMahon v. New York & E, R Co., 712, McMalkin v. Bates. 587, McMaster v. State, 713. McMicken v. Webb, 731. McMillan v. Dana. 519. V. Ritchie, 605, 606, V. Vanderlip. 645, 686, 691, 709, McMillon V. McMillon, 742, McMullan v. Free, 674. McMullen v. Hinkle. 737, v, Williams, 670, McNair v, Compton, 580, 581, 583. McNaught v, Dodson. 647, McNaughter v, Cassally, 647. McParlin v. Boy n ton, 643, McPeters v. Phillips, 565, McPherson v. Talbott. 756. McQueen v. Burns, 556, V, Chouteau, 590, McQuowu V. Law, 525, McRae v. Brown, 524. 525, McVicar v. Royce, 750. Mc Williams v.* Morgan, 535, 536. V, Norfieet, 498, Meade v, Degolj-er, 645. Means v. Brickell, 637. v. Means, 670, V, Milliken, 575, Mears v, Williamson, 644. Meason v. Kaine, 570, V, Phillips. 661. Meaux v. Pittman, 525, Mechanics' Bank v. Minthorne, 555. Mechanics' & T. Bank v. Farmers' & M. Nat. Bank, 656. Mecklem v, Blake, 592, 600, 625, Medbury v. New York & C, R Co,, 666, V, Watrous, 690. Medley v. Tandy, 741. Meek v. Bearden, 604. Mehurin v. Stone, 711. Meigs V, Keach, 499, Melick V, Knox, 727, 728. Mellersh v. Keen, 658, Mellisli V. Simeon. 555, 560, 561. Mellon's Appeal, 609, Melville v. De Wolf; 687, 709. V, Hayden, 724, Memmert v. McKeen, 620. Memphis, etc., R. Co. v. Walker, 565, 659. Menetone v. Athawes, 700. Mercer v. Clark, 543, V, Coovert, 725, xlviii TABLE OF CASES. References are to sections. Merchants' Bank v. Cordevoille, 739. Merchants' Nat. Bank v. Bangs, 644. V. Commercial Warehouse Co., 743. V. Sevier, 564. Mercur v. Vose, 680. Merle v. Wells, 734. Merlette v. North & East River S. Co.. 695. Merrells v. Plielps, 496. Merriam v. Field, 667. V. Pine City L. Co., 765, V. Wolcott, 668. Merrick v. Wiltse. 668, 670, 673. Merrill v. Aden, 545. V. Gore, 712. V. Ithaca, etc., R. Co., 709, 714 V. Nightingale. 668, 673. V. Parker, 644. v. Taylor, 545. Merrillan" Silver Plate Co. t. Flory, 741. Merrimack Slanuf. Co. v. Quintard, 664. Merritt v. Benton, 540. V. Hunt, 641. V. Lambert, 683. V. Morse, 617. V. Wittich, 653. Merrow v. Huntoon, 709. Merryfield v. Jones, 523. Merwiu a-. Austin, 744. Meserve v. Ammidon, 651. V. Clark, 586. Meshke v. Van Doren, 513. Messenger v. Pratt, 667. Messer v. Oestrich, 620. v. Woodman, 644. Messmore v. New York S. & L. Co., 662, 673. Mestaer v. Gillespie, 578, 590. Metcalf V. Stryker, 489. Metcalfe v. Fowler, 582. Methodist Church v. Barker, 539. Metrovich v. Jovovich, 517, 518. Mette v. Dow, 609, 614, 616. Mettler v. Moore, 647, 659. Meyer v, Fagan, 512. V. Hallock. 708. Meyers v. Block, 526. Meylert v. Gas Consumers' B. Co., 694. Meysenburg v. Schlieper, 538. Michigan C. R. Co. v. Burrows, 704. Micliigan Paving Co. v. Detroit, 710. Michigan State Bank v. Peck, 737. Middlekaufif v. Barrick, 641. Middleton v. Bryan, 504. V. Colwell, 480. \. Findley, 683. V. Magnay, 590. V. Thompson, 614, 669. Midgley v. Lovelace, 613. Milburn v. Belloni, 673. Miles V. Bacon, 748, 756. V. Edwards. 534. V. Linuell, 733. V. Miller, 651. Milford V. May, 555. Milk V. Waited 763. Milks V. Rich, 555. Millard v. Hewlett, 690. Miller v. Berkev, 739. V. Boot & Shoe Co., 693. V. Collyer, 570. V. County of Macoupin, 480, 481, 488. V. Downer, etc., Co., 675. V. Ferry, 512. V. Finley, 543. V. Foutz, 503. V. Garrett. 505, 525. V. Gill, 494. V. Goddard. 686. V. Halsey, 609. V. Hartford & S. Ore Co., 599, 601, 623. V. Henderson, 554. V. Kelly, 717. V. Kingsbury, 765. V. Lamar, 635. V. Long, 641. V. McCaffrey, 707. V. Marmers' Church, 693. V. Moore, 488, 667, 668. V, Nichols, 476. V. Race, 559. V. Rhoades, 764. V. Ridgeley, 730. V. Smith, 654. V. Stewart, 480, 725. V. Van Tassel, 668. V. Ward, 705. V. White, 554. Millett V. Hayford, 501. Milligan v. Cooke, 578. Milliken v. State, 480. Millott V. Lovett, 690. Milnes v. Gerj% 643. Mills V. Barney, 555. V. Bell, 608. V. Catlin, 598, 601, 628. V. Forbes, 530. V. Gleason, 501. V. Hackett, 505. V. Hyde, 757. V. Jones, 525. V. Saunders, 621, 622. Milton V. De Yam pert, 730. V. Rowland, 668. Milward v. Littlewood, 476. Milwaukee Co. v. Elilers, 481. Minis v. McDowell, 748, 750. Miner v, Paris Exchange Bank, 564. TABLE OF CASES. xlix References are to sections. Minneapolis H. Works v. Bonnallie, 668, 670, 671. Minor v. Clark, 669. V. Mead, 494. V. Mechanics' Bank, 482. Minter v. Branch Bank, 739. Mischke \. Baughn. 609. Misner v. Bullard, 524 Mississippi & R. B. Boom Co. v. Prince, 704. Missouri Furnace Co. v. Cochr&n, 646. Missouri, etc., Ry. Co. v. Fort Scott, 699. Mitchell V. De Witt, 755. V. Gile, 710. V. Hawlev. 524, 525. V. Hazen,' 593, 597, 62a V. Hewitt, 559. V. Laurens, 474, 486. V. Pillsbury, 620. V. Porter, 474. V. Stanley, 627. V. Sullivan, 522. V. Waring, 559. V. Warner, 592, 603, 604, 620. V. Williamson, 739. Mix V. Madison Ins. Co., 556. Mixer v. Coburn. 667. V. Howarth. 644. Moakley v. Riggs, 733. Mobile & M. Ry. Co. v. Gilmer, 576, 699. Mockbee v. Gardner, 668. Modawell v. Hudson, 498. Moeis V. Bird, 728. Moggridge v. Jones, 571. Moline W. P. & M. Co. v. Nichols, 679. Monahan v. Colgin, 594. V. Smith, 623. Mondel v. Steel, 548, 650. Monell V. Burns, 686. 691. Monk V. Beal, 723. Monte Alegro, The, 668. Montefiore v. Lloyd, 727. Montelius v. Atherton, 659. Montgomery v. The T. P. Leathers, 717, 718, 719. Montgomery, etc.. Society v. Har- wood, 658. Montr iou v. Jeflferys, 695. Montville v. Haughton, 475. • Moody V. Leverich, 694. V. State, 496, 498. Moon V, Story, 518. Moore, Ex parte. 561. Moore v. Bowmaker, 499, V. Cross, 551. V. Davidson, 556. V. Ellsworth, 573. V. Fenwick, 474. Moore v. Fleming, 656, 659. V. Folsom, 730. V. Frowd, 679. V. Gray, 739. V. Hallum, 528, 530. V. Harton, 524. V. Hudson R. Co., 660. V. King, 667. V. Lassiter, 536. V. Logan, 645. V. McKie, 594. V. Moberly, 759. V. Moore, 489, 755, 758. V. Morris, 559. V. Peterson, 741. V. Pye, 484. V. Ryder, 541. V. Schultz, 512. V. Taylor, 713. V. Topi iff. 749. V. United States, 713. Moorehead v. Davis, 669. V. Hyde, 656. Moores v. Wait, 588. Morange v. Edwards, 519. Morbeck v. State, 479. Moi'e V. Bonnet, 691. Morehouse v. Comstock, 667 Morelaud v. Metz, 605, 609. Morford v. Ambrose, 686, 709. Morgan v. Bell, 580, 582. V. Boyer, 724. V. Fallenstein. 552. V. Griffith, 499. V. Hannas, 679. V. Mason. 683. V. Negley, 527. V. Powell, 588. V. Richardson, 544. V. Smith, 547, 548, 620, 636, 743^ 759. V. Stearns, 581. Morgan Co. v. Selman, 536. Moriarty v. Gait, 525. Morley v. Metamora, 480. Mornyer v. Cooper, 541. Morrell v. Irving F. Ins. Co., 698. V. Long Island R. Co., 698. V. Sylvester, 475. Morrill, In re. 750. Morrill v. Aden, 542, V. Daniel, 505. V. Morrill, 759. V. Wallace, 668. Morris v. Barrett, 729. V. Buckley, 639. V. Cooper, 498. V. Harris, 609. V. Hunt, 682. V. Morris, 498. v. Owens, 593. V, Phelps, 597, 603. TAliLE OF CASES. References are to sections. MoiTis V. Price, 516. V, Redfield, 679. V. Rosvau, 605, 616, 617, 618. V. Stokes, 503. V. Tarin, 563. V. Terrell, 587. Morris Canal & B. Co. v. Van Vorst, 483. Morrison v. Beckwith, 641. V. Berkey, 751, 761. V. Bradley, 679. V. CurTimiugs. 711. V. Galloway, 684, 713. V. Jewell, 636. V. Lovejoy. 663, 713. V. Taylor, 758. V. Underwood, 593, 598, 599, 600, 601, 633. V. Yancey, 500. Morse v. Buffalo Ins. Co., 539. V. Hovey, 743. V. Huntington, 743. V. Hutch ins, 670. V. Potter, 711. V. Shattuck, 593, 594. V. Slierman. 644. Morss V. Elmendorf, 590. Mortland v. Smith, 491. Mortlock V. Buller, 578, 590. Morton v. Harrison, 710. V. Ridgway, 587. Moseley v. Hanford, 553, 554, V. Hunter, 633. Moses V. Banker, 645. V. Bierling, 683. V. Mead, 667. V. Stevens, 690. V. Wallace, 603. Mosher v. Hotchkiss, 783. Moss V. Pettengill, 737. Mostyn v. Mostyn, 683. Mt. Hope C. Ass'n v. Wendenman, 693. Mott V. Hicks, 753, 763. V. Palmer, 593. Moule V. Garret, 763. Moulton V. Richardson, 526. V. Trask, 687, 709. Mountain v. Fisher, 690. Mouys V. Leake, 550. Mower v. Kip, 477, 478. Moyer v. Cantieny, 683. Muenchow v. Roberts, 579, 581, 584. Muhlig V. Fiske, 681. Mulford V. Estudillo, 737. Mullen V. Gilkeuson, 686. V. Morris, 557. Muller V. Eno, 653, 654, 667, 668. V. Fern, 537. Mullett V. Challis, 493. V. Mason, 675. aMullin V. Morris, 556. Mulvany v. Rosenberger, 668. Muni ford v. McPherson, 668. Munford v. Rice, 480. Munn V. Commission Co., 555, 731. V. Eckford, 631. Munro v. Butt. 709. Munroe v. Allaire, 474. Muntz V. A Raft of Timber, 715, 718. Murdock v. Phillips' Academy, 686. V. Will. 499. Mueller v. Dobschuetz, 743. Mure, Ex parte, 739. Murphy v. Gay, 668. V. McGraw, 068, 673. V. Price, 593, 604. V, Richardson, 639. V. Somerville, 474. V. St. Louis, 645. V. Tlie Suliote, 715, 719. Murray v. Earl of Stair, 478. V. Farthing, 667. V. Judah, 668. V. McMackin, 565. Y. Meredith, 671. V. Mum ford, 538. V. Pate, 565. V. Smith, 667. V. Stanton, 654. Musgi'ave v. Beckendorff, 657. Muskegon Co. v. Keystone Manuf. Co., 649. Musselman's Appeal, 658. Mussen v. Price, 644. Muzzy V. Shattuck, 479. Myer v. Hart, 564. V. Wheeler. 653, 667, 668. Myers v. Appleton, 497. V. Baptist Society, 684. V. Drake, 651. V. Estell, 635. V. Munson, 637, 639. V. Parker, 536. V. Smith, 669. V. United States, 480, 481. V. York, etc., R. Co., 718. Myles V. Myles, 679. Nagle V. Newton, 590. Nailor v. Kearney, 474. Napier v. Sclineider, 561. Nash V. Ashton, 689. V. Brown, 541, 543. V. Hoxie, 713. Nason Manuf. Co. v. Stephens, 707. National Bank v. Bangs, 668. V. Bigler, 765. V. Green, 568. National Bank of Poughkeepsie v. Phelps, 735. National Exchange Bank v. Gay, 735. National Loan & Building Society v. Lichtenwalner, 733. TABLE OF CASES. li References are to sections. National Mech. Banking Ass'n v, Conklins:, 725. Naugle V. State, 498. Naynant v. Dodsou, 517. Neaffie v. Hart, 650. Neal V. Hanson, 7G6. V. Lea, 746. Neale v. Newland, 750. Needier v. Guest, 691. Neflf's Appeal, 738. Neff V. Clute, 565, 659. Negley v. Lindsay, 570. Negus, Ex parte. '631, 761, 765. Neil V. Clav, 656. Neiler v. Kelley. 659. Nelson v. Bostwick, 474. V, Bridges, 588. V. Carrington, 590. V. Dubois. 728, 730. V. Gray, 474. V. Masterton, 679. V. ]\Iatthews, 593, 608. V. Morse, 713. V. Munch, 737. V. Oregon Ry. & N. Co., 539. Neto, The, 719. Neville v. Williams, 499. Newark v. Stout, 739. Newark Savings Inst. v. Panhorst, 492. New Bedford Inst. v. Bank, 759. V, Hathaway, 736, 759. Newberry v. Bennett. 668, 673. V. Furuival, 650. Newburgh v. Galatian, 762, 763. Newcomb v. Hale, 741, 749. Newcomer v. State, 481. New England Mut. Ins. Co. v. Ran- dall, 737. New Hampshire Savings Bank v. Colcord, 737, 738. New Harbor Protection Co. v. The Charles P. Chouteau. 717, New Haven Bank v. Miles. 477. New Haven & N. Co. v. Hayden, 584. Newlan v. Dunham, 643. Newman v. Goza, 561. V. Kershaw. 555. V. McGregoi-, 659, 709, 711. V. Metcalf. 480. V. Washmgton. 682. Newmarket Iron F. v. Harvey, 644, 650. New Nat. Turnpike Co. v. Dulaney, 525. New Providence v. McEachron, 479. Newton v. Devlin, 725, 727. V. Russell, 525. New York & C. Mining Co. v. Eraser, 671, 672. New York & H. R. Co. v. Story, 713. New York State Bank v. Fletcher, 736. Niblo V. Binsse, 700. Nicewanger v. Brevard, 549. Nichol V. Alexander, 601, 623. NichoUs V. Wilson, 691. Nichols V. Coolahan, 688. V. Dusenbury, 744. V. Freeman, 579. V. Hunton, 542, 552. V. Mor-se, 644. V. Walter, 593. Nicholson v. Paget, 724. V. Patchin, 685. V. Wadsworth, 583. Nickerson v. Babcock, 564* V. Chatterton. 508. V. Easton, 690. Niland v. Murphy, 570. Niles V. Sawtell, 614. Nilson V. Morse, 713. Nimocks V. Welles, 524, 529. Niven v. Jardine, 477. Nixon V. Hill, 488. V. Myers, 692. V. Nixon, 647. V. Phelps. 682. N. & K. Turnpike Co. v. Harris, 695. Noble V. Ames Manuf. Co., 694. V. Arnold, 524, 525. V. Cass, 613. V. Epperly, 508. V. Walker, 555. Noel V. Wheatley, 669. Nofsinger v. Hartnett. 536. Nolan v. Whitney, 710. 712. Noon V. Salisbury Mills, 686. Noonan v. Ilslev, 601, 657, 659. V. Lee, 604,^641. Nordhaus v. Peterson, 514. Norfolk V. American St. Gas Co., 752. Norma, The. 719. Norman v. Hope, 491. V. Winch, 593. 597. Norrington v. Wright, 645. Norris v. Pit more, 478. V. School District, 709. V. State, 488. North V. Musgrave, 478. v. Wingate. 478. Northampton Nat. Bank v. Wylie, 512, 516. Northern Ins. Co. v. W^right, 733. Northridge v. Moore, 580, 582. Northrup v. Cook. 651. V. Garrett, 516. Northwestern L. Ins. Co. v. Irish, 539. V. Starkweather, 539. Northwestern Nat. Bank v. Keen, 725. Norton v. Babcock. 608, 609, 620, 633. V. Coons, 755, 756. V. Hall, 747. V. Jackson, 604, 641. lii TABLE OF CASES. Beferences are to sections. Norton v. Mulligan, 486. V. Reid, 749. V. Wales, 651, 652. Norvell v. Hudgins, 543. Norway Plains Savings Bank v. Mooi-s, 699. Nosier v. Hunt. 596. Nowell V. Wi-iglit, 484. Novvland v. Martin, 750. 759. Noyes v. Phillips, 471, 477. V, Pugin, 679, 713. V. White, 540, 563. Nugent V. Teachout. 575. Nurre v. Chittenden, 755. Nutt V. Merrill, 763, 765. Nutting V. Dickinson, 643. V. Herbert, 593, 594, 601. Nye V. Iowa City Alcohol Works, 668, 670, 672. Oakes v. Buckley, 589. V, Moore, 643. Oakley v. Boorman, 730, 732. Oaks V. Scheiiferly, 761. Oberne v. Gaylord, 512. O'Blenis v. Karing, 759. O'Brien v. Auniston Pipe Works, 699, 706. V, Jones, 669. Ockenden v. Henly, 570, 585. O'Connell v. Main, etc.. Hotel Co., 713. O'Connor v. Smith, 704, 718. V. Such, 474, 494. Odell V. Boston & M. R, 644. Oelrichs v. Spain. 524. OflFord V. Da vies, 728. Ogburn v. Ogburn, 669. Ogden V. Ball, 601. Ogle V. Earl Vane, 652. O'Grady v. Koyes, 491. Ohio L. Ins. Co. v. Ledyard, 759. Ohio & M. R. Co. v. Irvin, 654. V. Taylor, 654, . Ohling V. Luitjens, 641. Old Colony R. Co. v. Evans, 570. Olds V. Cary, 525. Olean v. King, 485. Olipliint V. Mansfield, 524 Olive Branch, The, 717. Ollivant v. Bayley, 667. Olmstead v. Beale, 686, 691. Olyphant v. St. Louis Ore & Steel Co., 649. Onderdonk v. Evans, 537. O'Neal V. Bacon. 542, 668. Oneida Manuf. Co. v. Lawrence, 667. Opp V. Ten Eyck. 537. Orange & A. R. Co. v. Fulvey, 659. V. Placide. 713. Ordinary v. Bracey, 494. V. Cooley, 493." Ortnsbee v. Davis, 503, 506, 507. Ormsby v. Vermont Copper M. Co., 656. Orr V. Bigelow, 651, 763. Ortnian v. Green, 643. Orton v. Phelan, 667. Osborn v. Guy's Hospital, 679. V. Robbing, 743. Osborne v. C. N. Nelson Lumber Ca, 678. V. Cunningham, 755. v, Ehrhard, 671. V. Thompson, 733. Osgood V. Bander, 651. V. Lewis, 667, 668. V. Osgood, 622, 761. Otis V. Von Storch, 739. Otisfield V. Mayberry, 766. Ottawa, The, 717, 719. Ottawa Universitv v. Parkinson, 680. Otts v. Alderson, 668, 676. Outram v. Morewood, 596. Cutwater v. Dodge, 644. Overacre v. Garrett, 480. Overhiser v. McCollister, 593, 625. Overstreet v. Dobson, 620. Overton v. Woodson, 748. Ovington v. Smith, 530. Owen V. Homan, 742. V. McGehee, 758. V. Routh, 657. V. Thomas, 604. Owens V. Durham, 684. Owings V. McBride, 538, 539. V. Thompson, 542, 548. Oxendale v. Witherell, 645. Pacaud v. McEwan, 507. Pace V. Robertson, 748. Pacific Iron Works v. Newhall, 543, 668. Pacific Mail Steamship Co. v. Toel, 522. 526. Packard v Slack, 675. Paducah v. Cully, 481, 482. Page v. Carpenter, 644. V. McDonnell, 585. v. Marsh, 690. V. Page, 563. V. Pavey, 674. V. Warner, 562, v. Webster, 741. Pahlman v. Taylor, 730. Pain v. Packard. 741. Paine v. Miller, 588. V. Sherwood, 651, 652, 663. Painter v. Newby, 578, 590. Palm V. Ohio & "M. R. Co., 713. Palmer v. Bagg, 725, 727. V. Foley, 520, 522. V. Temple, 585. Paradyne v. Jayne, 686. TABLE OF CASES. liu Eeferenoes are to sections. Parana, The. G66. Pardee v. Robertson, 490. Parham Sewing M. Co. v. Brook, 72o, 727. Parish v. Stone, 543. V. Whitney, 620. Park V. Bates, 004, 608. V. Cheek, 592, 593, 594, 597. V. Independent School District, 693. V. McDaniels, 766. Park Bank v. Watson, 541. Parker v. Bond, 525. V Brown, 592, 596, 597. V. Ellis, 755, 757. V. Harvey, 641. V. Medsker, 498. V. Nations, 737. V. Peabody, 490. V. Pringle, 676. V. Rodman, 668. V. Simonds, 503, 504. V. Wise, 724. Parkhurst v. Van Courtlandt, 583. Parkin v. Dick, 550. Parkinson v. .Jacobson, 633. V. Lee, 667, 668. V. Sherman, 633. Parks V. Marshall, 659. V. Morris Ax & T. Co., 654, 667, 672. V. O'Connor, 662, 667, 675. Parmalee v. Wilkes, 704. Parris v. Hulett, 759. Parrott v. Scott, 499. Parsons v. Sexton. 668. V. Sutton, 656. Partridge v. Hatch. 602. Parvin v. Hoopes, 556. Passinger v. Thorburn, 671, 673. Pate V. Gray, 556. V. Spotts, 474. Patnote v. Stmders, 686, 690. Patrick v. Clay, 557. V. Marshall, 587, 590. V. Nelson, 537. V. Putnam, 686. V. Roach, 587, 589. V. Swinney, 669. Patridge v. Emson, 478. Patterson v. Arthurs, 620. V. Freehold, 480. V. Gage, 725. V. Kingslaud, 527. V. Parker, 474. V. Patterson, 679. V. Stewart, 612, 622, 623. V. Westervelt, 489. Patton V. England. 571, 634, V. Kennedy, 614. V. McFarlane, 604. V. Taylor, 641. Paul V. Good! lick, 499. V. Jones, 748. V, Witman, 613. Paulin V. Kaighn, 754, 758. Paulsen v. Dallett, 683. Pawley v. Turnbull, 712. Paw Paw V. Eggleston, 480. 481. Payne v. Commercial Bank of Natchez, 738. V. Cutler, 542, 545. V. Ellzey, 477. V. Graves, 590. V. Haine, 697. V. Joyner, 517. V. Ladue, 543. V. Rodden, 668. Peabody v. Rees, 541. V. Tarbell, 587, 590. Peacock v. Banks, 556. V. Monk, 594. Pearce v. Maguire, 517, 518. V. Wallace, 556. Pearl v. Garlock, 507. Pearl St. Cong. Society v. Imlay, 738. Pearsall v. Summersett, 725. Pearse v. Goddard, 539. Pearson v. Crallan, 540. V. Dailey, 496. V. Davis, 605. V. Gayle, 739. V. Parker, 750. Pease v. Sabin, 667, 673. Pecare v. Chouteau, 594. Peck V. Cohen, 733. V. Earring ton, 676. V. Hensley. 604, 638. V. Mayo. 556. Pecker v. Sawyer. 554. Peden v. Chicago, etc, Ry. Co., 576. V. Moore, 573, 634. Peel V. Tatlock, 728. Peelle v. State, 496. Peerce v. Athey, 530. Peet V. Chicago, etc., R. Co., 666. Pegram v. Riley, 759. Peirce v. Whittemore, 494. Peisch v. Ware, 719. Pelham v. Way, 491. Peltz V. Eichele. 658. Pence v. Duvall. 604, 605, 606. V. Huston, 636. Pender v. Eobes. 668. Pendergast v. Reed, 651. Pendleton v. Cline, 695. Penley v. Watts, 756. Penniman v. Hartshorn, 644. Pennock v. Freeman, 570. Pennsylvania National Gas Co. v. Cook, 762. Pennsylvania R Co. v. Titusville, etc., Co., 664. Penny v. Andrus, 671. liv TABLE OF CASES. Beferences are to sections. Penny v. Foy, 761. V. Holberj,', 523. Penoyer v. Watson, 737. People V. Alkenhead, 480. V. Backus, 725. V. Bartlett, 476. V. Birdsall, 486. V. Carbannes, 475. V. Chalmers, 725, 726, 735. V. Compiler, 474. V. Dunlap, 494. V. Foote, 483. V. Foster, 483, 487, 488. V. Gardner, 487. V. Holmes, 475, 486. V. Jansen, 483, 735. V. Jenkins. 483. V. Johr, 475. V. Laning, 488. V. Lee, 724. V. McHatton, 485. V. McHenry, 488. V. Manning, 689. V. Mathevvson, 486. V. Moon, 481. V. Pennock, 485, 735. V. Randolph, 494. T. Ring, 488. V. Russell, 483. V. Schuyler, 487. V. Summers, 494. V. Ten Eyck, 488. V. Toomey, 488. V. Vilas, 485. V. Walsen, 479. V. White, 739. People's Co-operative Ass'n v. Lloyd, 693. People's Savings Bank v. Hill, 591, 603. Pepjjin V. Cooper, 480. Perciful v. Hurd, 641. Perkins v. Catlin, 730. V. Cummings, 550. V. Fourniquet, 538. V. Giles, 488. T. Hart, 678, 691. V. Pitman, 490. Perley v. Balch, 543, 668, 676. V. County of Muskegon, 479. Perreau v. Bevan, 499, 531. Perrett v. Wallis, 478. Ptrrine v. Serrell, 608, 670, 671. Perrins v. Raghind. 755. Perry v. Denson, 477. V. Horn, 536. V. Simpson Waterproof Co., 693. Ferryman v. McCall, 724. Pershing v. Canfield. 641. Persse v. Watrous, 499, 501. Peterborougli v. Jaffray, 654. Peterborough Real Estate Invest- ment Co. V. Ireton, 743. Peters v. Barnhill, 750. V. Craig, 095. V. McKean, 580, 581, 583, 587. V. Myers, 620. V. Whitney, 694, 695. Peterson v. Ayre, 651, 653. Petres v. Harmon, 751. Petrie v. Folz, 614. V. Lane, 697. Pettes V. Tdden, 478. Pettit V. Mercer, 510, 512, 516. Pettygrove v. Hoyt, 501, 502. Pevey v. Schulenburg B. & L. Co., 713. Peyser v. Cole, 564. Peyton v. Harmon, 474. Pfeil V. Kemper, 680. Phantieshl v. Vanderhoof, 519. Phantom, The, 716. Phares v. Barbour, 737. Phelps V. Beebe, 711. v. Foster, 523. V. McGee, 653. V. Riley, 659. V. Vascher. 730. Phetteplace v. Steere, 543. Philadelphia R. Co. v. Howard, 569, 675, 713, 714. Philadelphia Whiting Co. v. Detroit White Lead Works, 650, 667, 671. Philbrick v. Shaw, 736. Philbrook v. Burgess, 474. Philbrooks v. McEwen, 739. Phillipi V. Capell, 476, 517. Phillips V. Davis, 496. V. Foxall, 482, 728, 735. V. Gallant, 710. V. Herndon, 581, 584. V. Meri-itt, 644. V. Price. 499. V. Reichart, 605. V. Silvester, 588. V. Thompson, 590. Phillips, etc.. Const. Co. v. Seymour, 709. Phillpots V. Evans, 648. Phipps V. Tarpley, 593. Phoenix Mut. L. Ins. Co. v. Holloway, 725, 728. Pickard v. McCormick, 668. Pickens v. Finney, 739. V. Miller, 755"". Pickering v. Bardell, 647. V. Staples, 592. Pickett V. Bates, 748. V. Ford, 669. V. McDonald, 641. Pierce v. Brew, 620. V. Gilson, 766. V. Johnson, 591, 592. V. Spader, 659. TABLE OF CASES. Iv Beferences are to sections. Piersou v. Dunlop, 541. V. Ells, 529. V. Spaulding, G61. V. Wallace. 560. Pigou V. French, 748. Pike V. Street. 552, 554. Pillsbury v. Mitchell, 621, 622, 625. Pinches v. Swedish Lutheran Church, 711. Pinckney v. Dambmann, 651, 652. Pine V. Smith. 550. Pinkerton v. Manchester, etc., R., 656, 657. Pinkham v. Wemple, 539. Pinkstaff v. People, 498. Pinkston v. Huie, 581. V. Talliaferro, 759. Pinney v. Andi-ews, 668, 675. V. Gleason, 661. V. McGregory. 748. Pintard v. Davis, 741. Piper's Estate, 495. Pitcher v. Livingston, 593, 617, 618, 622. Pitkin V. Frink, 509. V. Leavitt, 617, 618. Pitman v. Connor, 609. Pittman v. Barrett, 556. Pitts V. Congdon, 737. V. Tilden, 478. Pittsburg Coal Co. v. Foster, 699. 704. Pittsburgh Nat. Bank v. Hall, 499. Pittsburgh, etc., R. Co. v. Heck, 647, 651. V. Shaeffer, 728. Pixler V. Nichols, 690. Placer v. Dickerson, 480. Planche v. Colburn, 683. Planck v. Anderson, 492. Plant V, Condit, 676. Planters' & Miners' Bank v. Hudgins, 536. Piatt V. Gilchrist, 640, 641. V. Grand Trunk R. Co., 607. Platter v. Green, 734. Pleasant Bank v. Conway, 488. Pleasonton's Appeal, 728. Pledger v. Wade, 659. Plumb V. Woodmansee, 515, 516. Plummer v. Buckman, 583. V. Rigdon, 575, 581. 584. V. Siinonton. 581. Plymouth Rock. The. 715. 719. Point Street Iron Works v. Turner, 010, 018. Poland v. Miller, 067, 672. Polglass V. Oliver, 559. Polhemus v. Heiman, 645, 667. 676. Polk v. Daly, 093. Polkinghorne v. Hendricks, 730. Pollard V. Dwight. 592. V. Herries, 562. Pollen V. James. 551. V. Le Rov, 047. Pollock V. Gautt, 510, 51.3, 514. Pomeroy v. Ainswortli, 556. V. Burnett, 548, 622, V. Drury, 572. Pool V. Doster, 759. V. Williams, 758. Poole T. Cox, 481, 48a Pooley V. Harradine, 737. Poppenhusen v. Seeley, 536. Port V. Jackson, 761. V. Robbins, 737. Porter v. Biadley, 628. V. Burkett. 713. V. Dunn. 679. V. Hill. 590. V. Hopkins, 52.5. V. lugraham, 562. V. Knight, 512, 514, 516, V. Noyes, 620. V. Stanle}% 481. V. Travis, 570. V. Woods, 709. 711. Portman v. Middleton, 699, Posey v. Garth, 686. Post V. Campau, 604, 625. V. Doremus, 536, 537. V. Jackson, 631, 765, V. Jones, 710, 720. V. Losev, 725. Posthoff V. Bauendahl, 763. V. Schreibei-, 763. Postmaster v. Munger, 481, 488. V. Norvell. 480. V. Rice, 475. Potter V. Gronbeck, 742. V. Merchants' Bank, 659, V. Taylor, 592. V. Titcomb, 486. V. Webb. 478. Potts V. Nathans, 736. Poucher v. Norman, 679. Poulton V. Lattiniore. 668, Pounsett V. Fuller, 582, Powe V. Powe, 659. Powell T. Guy, 556. V. Horton, 668. V. Howard, 711. V. Monson Co., 620. V. Smith, 748, 753. V. Waters, 731, Power V. Barham, 668. V. Butcher. 751. V. North, 585. Powers V. Dennison, 593. V. Wilson, 090. Poyntell v. Spencer, 639. Praderv. Grim, 510, 524, 525. Prairie v. Worth, 485. Pratalongo v. Larco, 563, Pratt V. Bates, 631. Ivi TABLE OF CASES. Beferences are to sections. Pratt V. Law, 590. V. McJunkin, 497. V. Pliilbrook, C68. Pray v. Wat.lell. 535. Preble v. Bottom, 713. Prehn v. Roval Bank of England, 561. Prentice v. Dike, 070, 671. V. Pickerssill, 538. V. Zane. 541. Prentiss v. Ledyard, 692. 693. Prescott V. Trueman, 591, 617, 620, 621, 622. 625, 627. V. White, 620. President, etc., v. Pennsylvania Coal Co., 643, 712. Preslar v. Stallwortii, 745, 746, 753, 760. Presley v. Davis, 497. Presser v. Hildenbrand, 590. Preston v. American Linen Co., 686, 690. V. Campbell, 756. V. Preston, 755. Prettyman v. Sliort, 555. Prevost V. Gratz, 640. Price v. Deal, 592, 593, 603. V. Justrobe, 661. V. Page, 563. Prichard v. Evans, 641. Prickett v. Badger, 688. Pride v. Boyce, 749. Pridgen v. McLean. 556. Pi'ince V. Lamb, 556. Pringle v. Spauldmg, 581. Prinz Heinrich, Tlie, 716. Pritchard v. Fox, 670. V. Martin, 692. Probate Court v. Mei-riam, 495. V. 81ason. 496. Prosser v. Jones, 695, 704 V. Whitney, 537. Puckett v. McDonald, 635. Pugli V. Cameron, 743. V. White, 522, 529. Pulsifer v. Hotchkiss, 545. Pulteney v. Warren, 477. Pumpelly v. Phelps, 580, 581, 584. Purcell V. Hannibal, etc., R. Co., 620. Purdy V. Phillips, 557. Purviance v. Sutherland, 746. Purvis V. Payer, 572, Putnam v. Ritchie, 587. Quackenbush v. Ehle, 684. Quantity of Iron, A, 721. Quarles v. George, 651. Queen, The, 717. Queen Mab, The, 719. Queen of the Pacific, The, 719. Quesuel v. Woodlief, 590. Quin v. Keefe, 556. V, King, 472. Rach v. Levy, 654. Rader v. Year^in, 498, Radford v. Hull. 487. Rahm v. Deis:, 651, 663. Railway v. Crowell, 480. Raikes v. Todd, 737. Railroad Co. v. Smith, 695, 710. Railroad Cos. v. Schutte, 541. Raines v. Calloway, 009. Ralph V. Brown, 556. V. Eldredge, 733. Ralston v. Wood, 494. Ramey v. Holcombe, 693. Ramsay v. Davis, 538. Ramsey v. Lewis, 758. V. McAuley, 556. V. Sar.cent, 542. V. Tully, 662. V. Westmoreland Bank, 739. Ramskill v. Edwards, 754. Ranck v. Albright, 685. Rand v. Wliite Mts. R. Co., 647. Randall v. Burton, 472. V. Carpenter. 524. v. Newson. 672. V. Raper. 671, 675. V. Rich, 750. V. Thornton, 668. Randell v. Mallett, 623. Randon v. Barton, 651, 656. V. Toby, 669. Ranelaugh v. Hayes, 749. Raney v. Baron, 537. Ranger v. Great Western Ry. Co., 712. V. Hearne, 667. Rankin v. Bad2:ett, 542. V, Darnel],\569. V. Wilson, 759. Ransom v. Halcott, 490. Ranson v. Sherwood, 730. Rany v. Governor, 474, 480. Rapelye v. Anderson, 733. V. Bailey, 724. Raplee v. Morgan, 555. Rardm v. Walpole, 623. Raupman v. Evansville, 524» Raver v. Webster, 510. Rawson v. Clark, 700. V. Copland, 761, 766. V. Johnson, 645. V. Pratt, 658. Ray V. Brenner, 739. V. Haines, 690. V. Justices, 474. Rayburn v. Comstock, 713. Raymond v. Cooper, 624, 765. V. Green, 516. V. Holmes, 563. V. Raymond, 591. Rayner v. Jones, 576. Rea V. Minkler, 603. Reab v. McAllister, 676. TABLE OF OASES. Ivii References are to sections. Rpab V. IMoor, 091. Read v. Cumniings, 546, 548. V. Dunsmore, 086. V. R.ann, 645, 683. Readfield v. Shaver, 480, 481. Reagan v. Kitclien, 517. Recohs V. Yonnglove, 593, 595, 597, 599. 601. RedderbnrK'er v. McDaniel, 528. Redding v. Godwin, 657. V. Lamb. 636. Redfield v. Haight, 733. 752. Redvvine v. Brown. 614. Reece v. Nortliway, 525, 538. Reed, Ex parte, 487. Reed v. Fish, 724, 727. V. Goettie. 488. V. Lander, 537, 539. V. Norris, 748. V. Patterson, 590. V. Paul, 631. V. Pierce, 622, 628. V. Randall, 667. V. Wood, 668. Rees V. Si^ruance, 683. Reese v. Smith, 601. Reeves v. Andrews, 537. V. Kell}', 549. V. PulHam, 759. Refeld v. Woodfolk, 641, Reggio V. Braggiotti, 670, 671. Reid V. Furuival, 541. V. Hasldns, 648. Reidhar v. Berger, 511, 512, 515. Reinhart v. Johnson, 758. Reisterer v. Carpenter, 554, 564. Reitan v. Goebel, 536. Remsen v. Beckman, 741. V. Graves, 728. Renkert v. Elliott, 510, 511. Renter v. Sal a, 645. Rex V. Sheriflf of Essex, 493. V. Sudbrooke, 689. Rey V. Simpson, 730. Reynolds v. Johnson, 590. V. Magness, 748. V. Robinson, 654, 679, 680. V. Vance, 590. V. Ward, 730. Rhea v. Swain, 593, 601. Rhoades v. Selsey, 557. Rhoads v. Woods, 508. Rhodes v. Cleveland Rolling Mill Co. 646. V. Storr, 574. Rice's Appeal, 759. Rice V. Codman, 644. V. Cook, 522. V. Goddard, 542, 636. V. Manley, 653. V. Morton, 742, 744. V. Rice, 536, 736. R CO V. Soiithgate, 745. Rich V. Johnson, 616. V. Smith, 671. Richard v. Bent. 597, 633, 625, 636. V. Shaw. 645. Richards v. Connnon wealth, 739. V. Edick, 568. V. Globe Bank, 556. V. Iowa Homestead Co., 610, 611. V. Richards. 556. V. Simms, 755. V. Storer. 725. 737. Richardson v. Allen, 534, 537. V. Chaspn, 582. V. Chynoweth, 663. V. Comstock. 543. V. Dorr. 592, 622. V. Eagle Machine Works, 692. V. Grandy. 607. V. Kropf. 536. V. McFadden, 669. V. McKinson, 587. V. Mason, 670. V. Smith, 486. V. Woehler, 690. Richnian v. Rich man, 474. Richmond v. Dubuque, etc., R. Co., 590. Richmond Co. v. Wendel, 479. Ricker v. Fairbanks. 708. Rickert v. Snyder, 601, 604, 613, 617, 628. Rickets v. Dickens, 604. Ricketts v. Sisson, 679. Rickey v. Tenbroeck, 647. Ricks V. Dillahunty, 668. V, Yates. 690. Riddell V. Riddell. 613. Riddle v. Cheadle, 524. V. Gage, 545. V. School District, 480. Ridener v. Rogers. 486. Rider v. Kelly, 647. 656. Ridgway v. Hungerford Market Co., 686. Riech V. Bolch. 695. Riggan v. Crain, 529 Riggs V. Horde. 690 v. Lindsay, 561. Riley v. Rhea. 757. Rindge v. Judson, 734, Rindskopf v. Farmers' L. & T. Co., 603, 617. Rinehart v. Olwine, 644. Ringgenberg v. Hartman, 507. Rio Grande!" The, 719. Ripley v. Chipman. 686. V. McClure, 648. V. Moselev, 750, 763. Rising Sun. The. 721. Riss V. Messmore, 671. 673. Ritchie v. Atkinson, 691. Iviii TABLE OF CASES. Beferences are to sections. Ritchie v. Sharmon, 478. Rittenhouse v. Mayor, 714. Rizer v. Cullen, 750. Roach V. Thompson, 564. V. Waitl, 585. Roane's Achn'r v. Drummond, 478. Robards v. Netherland, 605. Robbins v. Long, 478. V. Maidstone, 541. Roberts v. Adams, 754 V. Benjamin, 652. V. Carter, 670. V. Cooper, 532. V. Crovvlej^ 693, 693. V. Durst, 523. V. Falls, 529. V. Fk-mino:, 670. 671. V. Havelock, 691, 700. V. Jeffries, 758, 759. V. Jenkins, 537. V. Levy, 620. V. McNeely, 556. V. Riddle, 765. V. Say re, 758. V. Snow. 564. V. Wilkinson, 710. Robertson v. County Com'rs, 490. V. Lemon, 605, 606, 617, 618. V. Morgan, 765. V. Skel'ton, 588. V. "Williams, 551. Robey v. Turner, 488. Robinson v. Bland, 556, 557. V. Bullock, 698, 710. V. Chamberlain, 484. V. Cromeliu, 551. V. Davidson, 655. V. Davison, 689. V. Fiske, 643. V, Garth, 570. V. Gould, 743. V. Green, 691. V. Harvev, 668. V. Heard", 549, 569, 580. V. Hindraau, 686. V. ]\Iace, 679. V. Masterson, 586. V. Noble, 659. V. Plimpton, 536. V. Ray nor, 679. V. R(^ynolds, 541. V. Rice, 668. V. Sanders, 690. V. Sherman, 748, 753. V. Starley, 538. V. Varnell, 647. Robinson M. Works v. Chandler, 667. Roby V. West, 550. Rochester v. Chester, 654. V. Randall, 480, 488. Rock v. Stinger, 479. Rock feller v.' Donnelly, 631, 765. Rockwell V. Lawrence, 590. V. Rockwell, 659. Rodemer v. Hazlehurst, 718. Rodes V. Commonwealth, 486. Rodgers v. McClure, 756. V. Phillips. 644. Rodman v. Hedden. 748, 750. V. Williams, 549. V. Wool man, 684. Roe V. Hayley, 613. Roff V. Wass, 717. Roffey V. Greenwell, 556. Rogers v. Ackerman, 668. V. Bemus, 703. V. Borchard, 591. V. Cody, 546. V. Coleman, 474. V. School Trustees, 735, 737, 743. V. Smith, 541. V. State. 480, 481. Rohan v. Hanson, 550. Rohde V. Thwaites, 644 Roles V. Rosewell, 472. Rollins V. State, 487. Rollman v. Baker, 556. Rollstone Nat. Bank v. Carleton, 735. Rolph V. Crouch, 607. Roman v. Stratton, 501. Romine v. Romine, 750, 751. Rooksby v. State, 489. Roper V. Johnson, 645, 646. V. Lane, 644. Rosa V. Butterfield, 743. Rose V. Beattie, 667. V. Bozeman, 653, 656. V. Mynatt, 682. V. Post, 524 52.5. V. Wallace, 549, 675. Rosenbaum v. Goodman, 755, V. Gunter, 743. Rosenthal v. Boaz, 537. Ross' Appeal, 639. Ross V. Hatch, 479. V. Pye, 631. Rotan V. Nichols, 676. Rothschild v. Grit, 730. V. Mack, 744. Roulain v. McDowall, 478. Rounds V. Baxter, 585, 686. Roundy v. Thatcher, 684 Routh V. Caron, 669, 675. Rouvert v. Patton, 540. Rowan v. Pope, 539. Rowe V. School Board for Londoo, 578. Rowland v. Isaacs, 494 V. Miller, 639. V. Shelton, 590, 669. V. Wood, 487. Rowley v. Gibbs, 508. V. Jevvett, 738. Rowntree v. Jacob, 594 TABLE OF CASES. lix References are to sections. Royal Bristol Permanent Building Society v. Bomash, 588. Royer v. Foster, 598. Rozenkrants v. Darling, 474. Rubber Co. v. Goodyear, 533. Rubelinan Hardware Co. v. Grave, 530. Rubon V. Stephan, 474, 528. " Rucker v. Donovan, 650. Ruflf V. Rinaldo, 703. Rugg V. Miuett, 055. Ruiz V. Norton, C45, 651. Rumsey v. Northeastern Ry. Co., 679. Rundell v. Lakev. 620. Runnells v. Webber, 620, 622, 625, 627. Ruuyon v. Nichols, 082. Rush forth, Ex parte, 748. Russ V. Steele, 604, 620. Russell V. Aunable, 739, 746. V. Butterfield, 507, 508. V. Carringtou. 644. V. Clark. 724. V. Copeland, 580. V. Failor, 754, 759. V. Farley, 520, 521, 523, 523. V. GibHn, 705. V. Lanstoffe, 730. V. Miner, 094. V. Perry, 620. V. Splater. 545. . V. Williams, 538. Rust V. Eckler, 668. V. Larue, 682. Rutan V. Hinchman, 656, 659. V. Ludlam, 670. Rutherford v. Brachman, 724. V. Mason, 537. Rutledge v. Smitli, 577. Rutter V. Blake, 668. Ryan v. Akerly, 507. V. Anderson, 524, 525. V. Dayton, 689. V. Massey, 472. Ryder v. Neitge, 667. Ryerson v. Chapman, 614, 617, 618. V. Minton, 474. V. Willis, 633. Ryland v. Brown, 542. Rynearson v. Turner, 757. Sabine, The, 719. Sac Co. Bank v. Foster, 593. Sadler v. Bean, 656. Safely v. Gihnore, 659. Saflford v. Miller, 530. Sage V. Wilcox, ^30. Sailly V. Elmore, 735. Sailor's Bride, The, 715. Saladin v. Mitchell. 647. Salisbury v. Van Hoesen, 496. Saluda Manuf. Co. v. Pennington, 704. Salyer v. State, 498. Salyers v. Ross, 498. Sample v. Cochran, 737. Samson v. Thornton, 728, 730. Samuel II. Crawford, The. 717. Samuel v. Zachery, 757. Sanborn v. Benedict, 647, 651. V. Chamberlin, 568, 569. Sandbank v. Thomas, 582. Sanders v. Hamilton, 614, 763. V. Kentish. 057. V. Rives, 475. V. Weelbiwg. 758. Sanderson v. Aston, 482, 728. 733. V. Stevens, 727. Sandringham, TJie, 719. Sands v. Taylor, 644. 647, 667. Sandwich v. Fish, 481. Sanford v. Cloud, 581, 584. v. Willetts. 510. Sangster v. Commonwealth, 486, 487. Sannes v. Ross, 510. Sapp V. Underwood, 750. Saratoga, The. 716. Sargeant v. Sargeant, 585. Sargent v. Currier, 668. V. Franklin Ins. Co., 657, 659. V. Salmoud, 745. Sartain v. Weir, 518. Sartor v. Strassheim, 523. Saseer v. Young, 741. Satchwell v. Williams, 695. Saulet V. Trepagines, 739. Saulters v. Victory. 492, 580. Saunders v. Anderson, 693. V. Clark. 654. V. Quigg, 489. V. Smftii, 489. V. Stevens, 725. Savage v. Drs. K. & K. Medical & S. Ass'n. 713. V. Fox, 723, 743. Savercool v. Farwell, 643, 654. Savory v. Underwood, 624. Sawdon v. Andrew, 663. Sawyear v. Dean, 647. Sawyer v. Chambers, 542, 554. V. Dean, 643. Saxon i a Mining & R Co. v. Cook, 692, 093. Sayre v. King, 751. Scanlaud v. Settle, 736. Scantlin v. Allison, 602. Scarborough v. Parkei-, 475. V. State, 494. V. Thornton, 474. Schaeffer v. Hodges, 731. Scheible v..Slagle, 592, 609. Schlesinger v. Arline, 564. Scliloss V. White, 487. Schmidt v. Coulter, 758. V. Limehouse, 557. Ix TABLE OF CASES. References are to sections. Rchmidt v. Sohmaelter, 730. Schmied v. Frank, 541. Schnntz v. Langhaar. 733. Schnpbly v. Sliirtcliff, 647. SchneiT v. Leinp, 686. Schofield V. Iowa Homestead Co., 592. 599, 600. School Directors v. Kimmel, 693. V. Trustees, 524. School District v. Dauchy, 700. V. Eogers, 971. School Trustees v. Bennett, 700. Schoonmaker v. Roosa, 542. Schrader v. Wolfin, 503. Schramm v. Boston Sugar Refining Co., 647. Schroeppell v. Shaw. 735, 737, 739. Schuchardt v. Aliens, 669. Schuchniann v. Knoebel, 548, 636. Schultz V. The Nancy, 716. Schuyler v. Sylvester, 516, 518. Schuyler Co. v. Donaldson, 522. Schwartz v. Burton, 514. V. Saunders, 700. Schweer v. Schwabacker, 499. Scobey v. Finton, 631. Scotten V. Sutter, 644 Scofield V. Churchill, 495, 498. V. Day, 556, 557, 563. Scott V. Bevan, 559, 562. V. Four Hundred Tons of Coal, 716. V. Gilraore, 550. V. Haniblin, 545. V. Henley, 492. V. Hfx. 668. V. Kittauing Coal Co., 649. V. Rayment, 590. V. Reikel, 581. V. Scott, 604, 668. V. State, 474. T. Twiss, 591. V. Tvler. 761, 763. Scranton v. Clark, 668. V. Mechanics' T. Co., 668, 670. V. Tilley, 670. Scribner v. Adams, 758. V. Holmes, 620. Scriver v. Myers, 592. Scudder v. Andrews, 545. V. Waddingham, 569. V. Worster, 644. Scully V. Kirk Patrick, 476. Sea V. Carpenter. 683. Seabury v. Hungerford, 730. Seaman v. Luce, 508. V. Vawdrey, 578, 590. Seamonds v. McGinnis, 590. Seamons v. White, 477, 478. Seamore v. Harlan, 580. Searcy v. Vance, 559. Searing v. Berry, 736, Sears v. Stiuson, 593. V. Van Dusen. 733, 787. Seat V. Cannon, 494. Seaton v. Scovill, 564. Seavey v. Shurick, 699. Seawell v. Buckley, 495. Seay v. Greenwood, 516. Second Nat. Bank of Oswego v. Boucher, 737. Sedalia, etc., Ry. Co. v. Smith, 726. Sedam v. Taylor, 488. Sedgwick v. Richardson, 478. Seeley v. Brown. 491. Seely v. Cram, 682. Segar v. Parrish. 683. Seibert v. True, 759. Seibles v. Blackwell, 670, 671. Seigworth v. Leffel, 667. Selby V. Hutchinson, 709. Selden v. James. 616. Sellar v. Clelland, 653. Selleck v. Tallman, 588. Seller v. Jones, 724. Selover v. Harpending, 761, 765. Semple v. Whorton, 593, 594, 603. Sessions v. Hartsook, 668. V. Pintard, 531, 532, 533. Sevey v. Blacklin, 499, 500. Seymour v. Davis, 645. V. Harvey, 489. V. Mickey, 730. V. Van Slyck. 481. Shaeflfer v. Clendenin, 758. V. Hodges, 5o5. Shaffer v. Lee, 474. Shamokin Bank v. Street, 559. Shanahan v. Perry, 631. Shankland v. Hamilton, 536. Shanks v. Griffin, 700. Shannon v. Comstock, 568, 569, 693. V. McMuUen, 737. V. Marselis, 641. Sharon v. Mosher, 670, 671, 675. Sharpe v. Johuson, 708. Shattuck v. Adams, 765. V. Green, 668, 669. V. Stoneham, etc., R, 654. Shaver v. Ehle, 668. Shaw V. Charitie, 686. v. Holland, 657. V. Loud, 747. V. Nudd, 651. V. Republic Ins. Co., 694 V. Shaw, 583. V. Smith. 676. V. Spooner, 550. V. Turnpike Co., 645, 686, 714 V. Wilkins, 579. Shawhan v. Long, 588. V. Van Nest, 649. Sheaf e v. O'Neil, 627. Sheard v. Welburn, 586, 589. TABLE OF CASES. Lxi References are to sections. Shearer v. Ranger, 630. Sheehan v. Taft, 738. Sheets v. Andrews, 593. V. Longlois. 614. Sheffey v. Gardiner, 604, 605. Sheldon v. Upham, 488. Shelton v. Farmer, 759. V. French, 659. V. Gill, 564. V. Hurd, 735. V. State, 479. Shepard v. Ashley, 680. V. Butterfield, 503. V. Milwaukee G. L. Co., 675. V. Phears, 733. V. Shepard, 748. Shepherd v. Kain, 668. V. Gilroy, 668. V. Hampton, 651. V. Johnson, 657. V. Temple, 542, 553. 554 Sheppard v. Pebbles, 495. V. State, 486. Sherlock v. Kimmell, 679. Sherman v. Johnson, 668. V. Mayor, 688, 713. V. Transportation Co., 686. Sherraden v. Parker, 739. Sherrell v. Goodrum. 488. Sherrod v. Laugdon, 675. V. Rhodes, 755. Sherry v. Oke, 583. Sherwin v. Shakespear, 588. Shields v. Pettie, 643. Shipsey v. Bowery Nat. Bank, 565. Short V. Coffeen, 555, 564, 731. V. Gallowa}% 753. V. Hubbard, 499. V. Kalloway, 617, 763. V. Matteson, 671. V. Millard, 683. V. Trabue, 563. Shorthill v. Ferguson, 594. Shouse v. Neiswaanger, 658, 663. Shreck v. Pierce, 573, 591. Shryer v. Morgan, 583. Shunick v. Thompson, 587. Shut V. Proctor, 478. Sibley v. McAllister, 739. V. Rider, 474. V. Tutt, 561. Sickels V. Pattison, 691, 708. Siegel V. Drumm, 564. Sigerson v. Kahmann, 644. Sigourney v. Williams, 743. Sikes V. Paine, 703. V. Wild, 578, 583. Sillivant v. Reardon, 478. Silver Spray's Boilers, The, 716. Simmonds v. Bradford, 491. V. Henchy, 488. Simmons v. Camp, 758. Simmons v. Cutreer, 676. V. Garrett, 478. V. Swift, 644. V. Walter. 668. Simonds v. Merritt, 541. Simons v. Burrows, 539. V. Ypsilanti Paper Co., 646, 653. Simonson v. Grant, 727, 761. Simpson v. Clarke, 541. V. Crippin, 645. V. Griffin, 564. V. Hawkins, 604. 640, 641, V. McDonald, 709. V. McFarland, 507. V. Moldeu, 559. Sims V. Harris, 474. V. Howell, 667. V. Marryat, 668. Simson v. Cooke, 725. 737. Sinclair v. Bowles, 691. V. Eldred, 582. V. Hathaway, 667. V. Redington, 759. V. Tallmage, 709. Singer Manuf. Co. v. Littler, 728. Single V. Schneider, 504. Singleton v. Wilson, 713. Sinker v. Diggins, 670, 671. V. Kidder, 673. Sinnott v. Mulliu, 700. Sinsheimer v. Tobias, 765. Sirlott V. Tandy. 505, 659. • Sisk V. Roseuberger, 741. V. Woodruff, 604. Sisson V. Cleveland, etc., R. Co., 66a Skaaraas v. Finnegau, 581, 584. Skilding v. Warren, 543. Skinner v. Phillips, 486, 487, 494. V. Valentine, 738. Slack V. Lowell, 557. V. McLagan, 636. Slade V. Halstead, 543, 554. Slagle V. Eutrekin. 495. Slater v. Rawson, 591, 593. Slatterly v. Police Jury, 739. Slauter v. Wallbaum, 653. Slifer V. State, 491. Slingerland v. Bennett, 753. Slocum V. Pomro}'. 563. V. Riley, 489. Sloman v. Walter. 474. Sluby V. Ciiamplin, 746. Slusser v. Burlington, 707. Slutter V. Kirkendall, 530. Small V. Hicks, 737. V. Reeves, 573, 640. Smallwood v. Norton, 501, 503. Smedes v. Hooghtaling, 477, 478. Smeed v. Foord. 663, 666, 699, 704. Smeltzer v. White, 555, Smiley v. Meir, 564. Smith V. Ackerman, 548, 633. Ixii TABLE OF OASES. Keferences are to sections. th V. Berry, 487, 580, 651, 656, 659. Smith V. Pettus, 641. V. Bing, 755. V. Rogers, 728. V. Bond, 473. V. Shaw, 562. V. Brady. 709, 710, 712. V. Sillvman, 590, 639. V. Britro^s, 712. V. Smith, 544, 556, 661, 704 V. Brooks, 542, 554. V. Snyder. 052. V. Buchanan, 556. V. Sprague, 620. V. Carney, 623. V. State, 492, 759. V. Clopton, 735. V. Steele, 758. V. Coninionwealth, 485. v. Stewart, 589. V. Conipton, 607, 763. V. Story, 514. V. Connell, 620. v. Strong. 591, 592, 593, 595. V. Corege, 555. v. Teer, 765. V. Cozart, 668, 670. V. The Stewart, 719. V. Crocker, 475. V. Thompson, 694. V. Crouse, 530. V. Velie, 073. V. Davis, 627, 679, 683. v. Wlieeler, 649. V. Day, 521, 524. 526. V. Whiting, 499. V. Dillingham, 502. V. Winter. 743. V. Dixon, 609, 623. ■ ' Smithurst v. Woolston, 657. V. Dunlap, 657, 659. Smock V. Ripley. 564. V. Eakin, 510, 514. V. Smock, 652. V. Erwin, 537. Smoot's Case, 645. V. Fagan, 494. Snaggs V. Stone, 480. V. First Cong. Meeting House, Snapp V. Commonwealth, 479. 711. Snell V. Iowa Homestead Co., 597. V. Flanders, 713. Snider v. Snider, 624. V. Foster, 645. Snodgrass v. Reynolds, 580, 581. V. Freyler. 739. V. Snodgrass, 496. V. Green, 675. Snook V. Fries, 708. V. Griffith, 653, 654. Snow V. Boston & M. R., 654. V. Gugerty, 709. V. Schomaker Manuf. Co., 670. V. Hicks, 756. V. Ware, 709, 711. V. High tower, 543. Snyder v. Blair, 748. V. Hill, 682, 687. V. Lane, 623. V, Hiscock, 541. v. Willey, 550. V. Holbrook. 576. Sollee V. Mengy, 727. V. Holmes, 705. Solomon v. Bank of England, 541. V. Howell, 765. V. Chesley, 524. V. Huesman, 536. V. Turner, 549. V. Hughes, 597, 599, 601, 620. Somers v. Johnson, 755. V. Jansen, 474. V. Wright. 651, 653. V. Jefts, 592, 622. Somersworth Savings Bank v. Wor- V. Keitli & P. Coal Co., 645, 647. cester, 739. V. Kendall. 563. Souter V. Drake, 572. V. Lewis, 648. Southall V. Parish, 748. V, Liscomb, 645. v. Rigg, 542. V. Lisher, 507. South Carolina Ins. Co. v. Smith, Y. McClosky, 570. 480. V. McGregor, 499. South Carolina Society v. Johnson, V. McKean, 737, 789. 480. V. McLeod, 736. South Covington, etc., Ry. Co. v. V. McNair, 668. Gest, 670. V. Montgomery, 737. Spain V. Arnott, 686. V. Mosby, 506. Spalding v. Millard, 474. V. Neale, 668. V. Cakes, 764. V. New Haven & N. R Co., 666. V. Rosa, 689. V. Newton, 499. V. Vandercook, 545, 695. V. O'Donnell, 713. Sparkes v. Martindale, 631. V. Parsons, 619. Sparrow v. Chisman, 542, 543. V. Paul's Ex'rs, 480. Spartali v. Benecke, 644. V. Peat, 697. Speck V. Commonwealth, 475. TABLE OF CASES. Ixiii Beferences are to sections. Spodtling V. Nevell, 584. Spence v. Barclay, 755. V. Hector, 705. Spencer's Case, 592. Spencer v. Dearth. 766. T. Halst(>a(l. 569. V. Perry, 477. V. Storrs, 679. V. Wilkinson, 494. Sparry v. Fanning, 703. V. Horr, 564. Spicers v. Harvey, 644 Spiers v. Halsted, 664. V, Houston, 727. Spies V. Gilniore. 730. Spiller V. Westlake. 571. Spillman v. Duff, 750. Sprague v. Barrels of Flour, 720. V. Morgan, 678, 693. 713. V. Sevmour, 474. 765. Spring v."'Chase, 584, 610, 616, 623. V. Haskell, 666. V. Lovett, 554. Springclale Cemetery Ass'n v. Smith, 707. Springer v. Berry, 647. V. Dwj-er. 744, V. Toothaker, 735. Springett v. Colerick. 490. Sprowle V. Legge, 559. Spruell V. Davenport, 579. Spurgeon v. Smitha, 737. Spurr V. Andrews, 594, 620. Squire v. Wrigiit, 693. St. Albans Steam B. Co, v, Wilkins, 686. St. Joseph V. Merlatt, 480. St. Louis V. Alexander, 528. V. Bisseil. 593. 632, 623, 628. V. St. Louis Gas Co., 520. St. Louis Perpetual Ins. Co. v. Homer. 552. (St. Louis, etc., R. Co. v. Beard, 714. V. Lurton, 703. St. Marv's College v. Meagher, 736, ■'737. St. Paul Foundry Co. v. Weymann, 723. Staats V. Herbert, 474, 761. V. Ten Eyck, 581, 593, 605, 617, 618. Stacey v. Kemp, 545. Stackpole v. Arnold, 551. Stacv V. Ross, 549. Stafford v. Anders, 539, V. Union Bank, 532. Stagg V. Linnenfelser, 730. Stalker v. McDonald, 541. Stallworth v. Preslar, 759. Stambaugh v. Smith, 593, 620, 633, 625. Stanard v. Eldridge, 617, 631, 622, 633. Stanberry v. Gibson, 683. Stanley v. Gaylord, 508. Stannard v. Eldridge, 761. Stanton v. Eager. 644. V. Embrey, 680, 683. V. Haskin, 682. V. Small, 651. Staples v. Dean, 595. V, Flint, 604. v. White, 528. Stapleton v. King, 656, Stai-k V. Parker. 680, 691. Starke v. Hill, 634. Starr t. Light, 659, 661. V. Torrey, 542. Startup V. Cortazzi, 657, 664, Star Wagon Co. v. Swezy, 789. State v. Atiierton, 480, 483. v. Atkinson, 488. V. Baden, 489. V. Beard, 686. V. Beldsmeier, 516. V. Bennett. 494. V. Berning. 496, 497, 498. V. Berry, 480. V. Bird, 480. v. Blake, 488. V. Bloxom, 494. V. Boon, 725. V. Bowman, 475. V, Brown, 487. V. Caldwell, 489. V. Campbell, 494 V. Carleton, 485. i V. Case, 491. V. Cassel, 559. V. Cayce, 487. V. Conover, 487. V. Corey, 481. V. Crooks, 480, 48a V. Cross, 474. V. Daly, 487. V. Davis, 485, 487. V. Dixon, 490. V. Falls. 489. V. Farmer, 487. V. Findley, 474 V. Finn, 488, 491. V. Ford. 474, 486. V. Gaillard. 590, 637. V. Glenn, 476. v. Griusley, 488. V. Hamilton, 489. V. Harper, 479. V. Harrington, 490. V. Hawkins, 678. V. Hinsdale-Doyle Granite C See Gleason v. Chester, 1 Day, 152 ; return an execution. Eobertson v. Hubbard v. Shaler, 2 id. 195. County Com'rs, 10 III. 559 ; Limpus § 491.] OTHEK OFFICIAL BONDS. 1055 inal damages."^ In the absence of bad faith or other ag- gravating circumstances the measure of liability for the fail- ure to attach property is the damage sustained,^ which is prima facie the amount of the judgment and costs, with in- terest on the former." The sufficiency of the levy made is to be determined by the restdt of the sale, not by an appraise- ment made subsequent to the attachment.* If by reason of the officer's neglect a subsequent writ is first levied and apart of the debtor's property is not covered by it, the damages against the officer may be mitigated to the exent of the value of that portion if the creditor might have levied upon it.'^ If the attachment plaintiff knows of the officer's neglect to serve the writ and the property remains in the same situation as before he cannot decline to have a second issued and after its attachment by another creditor recover the value of the prop- erty from the officer.^ But in Massachusetts a creditor whose lien is lost through an officer's neglect in levying an execu- tion is not bound to waive his rights against the latter and take out another writ unless on request or an offer of indem- nity ; the officer is liable for the value of the lien that would have been obtained but for his dereliction." § 491. Same subject. If property held under process is re- leased by the officer without the approval of the bond by the creditor and the sureties are insolvent, the officer must re- spond for the resulting loss.^ And if property in the officer's custody is lost by his negligence he is liable for its value,^ and is not entitled to have deducted therefrom the expense which might have been incurred in keeping it.^° If property law- fully attached and held is sold illegally and between the time of the attachment and sale it deteriorated in value, without fault on the officer's part, his liability in an action on the case is for its value at the time of the sale.^^ If mortgaged chat- tels are levied upon ana sold and possession thereof given 1 Clark V. Smith, 10 Conn. 1, 6. ett v. Brattleboro, 30 Vt 579 ; French 2 Ransom v. Halcott, 18 Barb. 56 ; v. Willett, 10 Bosw, 566, Perkins v. Pitman, 34 N. H. 261. ^ Franklin Co. Nat Bank v. Kim- 3 Springett v. Colerick, 67 Mich, ball, 152 Mass. 331. 362, 370. 8 Miner v. Coburn, 4 Allen, 136. 4 Ransom V. Halcott, 18 Barb. 56. » Tudor v. Lewis, 8 Met. (Ky.) 378. 5 Townsend v. Libbey, 70 Me. 163. w Lovejoy v. Hutchins, 23 Me. 272. e Clark v. Smith, 10 Conn. 1 ; Blodg- u Walker v. Wilmarth. 37 Vt 289. 1056 BONDS AND PENAL OBLIGATIONS. [§ 491. to the purchaser without requiring him to pay the debt or perform the contract which the mortgage was given to secure, the officer is liable on his bond and cannot avoid responsibility by showing that the purchaser is solvent ; but if the ])roperty is so situated that the mortgagee may subject it to his mort- gage, he is bound to do so, and can recover from the officer only such damages as he has actually sustained.^ By neglect- ing to tender a deed to the purchaser of land at an execution sale and conveying the land to another the sheriff releases such purchaser and becomes liable for the difference between the amount of his offer and the sum paid by the other person.^ And by making a sale under an execution on credit without authority from the creditors he assumes responsibility for the amount for which the property was sold, but not for interest on it ; ^ but if interest is received on the purchase-price of property so sold the officer must account for it to the execu- tion debtor if the creditors have been paid."* The measure of damages for taking an insufficient bail bond \^ prima facie ihQ amount of the judgment against the debtor, subject to reduction by proof that he was unable to pay.^ That fact will not mitigate the damages for refusing to de- liver such a bond,^ but the insolvency of the bail may be shown for that purpose.' If an insufficient replevin bond is negli- gently taken the sheriff is liable to the defendant who has obtained judgment for the return of the property for its value at the time it w^as taken and the costs of the replevin suit,^ and also of a futile suit on the bond.^ The amount recover- able by the plaintiff in the replevin suit is not the value of the property, but the amount of his loss.'" Where. the defend- ant in such suit brings an action against the officer the latter may show, the suit in replevin having been dismissed, that the property was owned and possessed by the plaintiff in that suit.ii 1 McDaniel v. State, 118 Ind. 239; ' Bradt v. Holden, 12 R. I. 335. Slifer V. State, 114 id. 291. SQ'Grady v. Keyes, 1 Allen, 284. 2 State V. Lines, 4 Ind. 351. 9 Norman v. Hope, 13 Ontario, 556 ; 3 Chase v. Monroe, 30 N. H. 427. 14 id. 287. 4 Farley v. Moore, 21 N. H. 146. lo Carter v. Duggan, 144 Mass. 32; 5 West V. Rice, 9 Met 564 ; Dan- Mortland v. Smith, 32 Mo. 225. forth V. Pratt, 9 Cush. 318. H Case v. Babbitt, 16 Gray, 278. 6 Simmonds v. Bradford, 15 Mass. 82 : Seeley v. Brown, 14 Pick. 177. § 492.] OTHER OFFICIAL BONDS, 1057 In the absence of proof of pecuniary loss resulting from a false return the officer's liability, independently of statute, is limited to nominal damages.' But if the amount an execu- tion calls for has been lost by reason of such a return the offi- cer cannot lessen his liability for it by showing that it was not due under the judgment ;2 but he may do so by proving that prior executions in his hands would have exhausted the property.^ If property is sold for taxes as the result of a false return of personal service, the officer is liable for its reasonable value with interest.^ For a false return of 7iulla hona he must respond for such value, as shown by a sale of the property under a subsequent execution in favor of an- other creditor.* § 492. Same subject. A judgment creditor can only re- cover, without proving more, nominal damages against officers- who refuse to place upon the tax-roll they make the amount necessary to pay a judgment held by him.^ But in a very ag- gravated case the officers were held liable for counsel fees." A more rigid rule prevails in New York. There an officer" who refused to compl}^ with a statute which made it his duty to present to the proper authorities the re-assessment of dam- ages found by a jury as compensation for laying out a high- way was held liable for the amount thereby awarded with in- terest on it ; although the plaintiff might have presented his claim to the authorities at a subsequent time, he was not obliged to do so." Under a statute which makes a town liable to a purchaser of property at a tax sale for all damages w^hich have accrued to him by reason of the tax collector's neglect of duty, the measure is the sum paid with interest, not the value of the property.^ A drainage commissioner w^ho fails to properly construct a drain is liable for the expense of fin- J Pelham v. Way, 15 Wall. 196. 6 Dow v. Humbert, 91 U. S. 29-1 ; 2 Bacon v. Cropsey, 7 N. Y. 195. Branch v. Davis, 29 Fed. Rep. 888. 3 Forsyth v. Dickson, 1 Grant's The first case is fully stated and the Cas. (Pa.) 26. grounds upon which it is ruled are Under the Missouri statute the lia- given in vol. 1, § 161. bility for a false return is absolute. " Newark Savings Inst v. Panhorst, State V. Case, 77 Mo. 247. 7 Biss. 99. < State V. Finn, 13 Mo. App. 285. 8 ciark v. Miller, 54 N. Y. 528. 5 Thayer v. Roberts, 44 Me. 247. s^Saulters v. Victory, 36 Vt 351. Vol. II — 67 1058 BONDS AND PENAL 0BLIGATI0N8. [§ 492. ishing it according to the plan he should have followed.^ A collector of customs refused to sign a bill of entry unless a sum which he erroneously claimed as duty was paid. After pay- ment under protest the property was delivered to the im- porter. The officer was liable for the sum collected and the loss arising from the detention of the property, including a de- cline in its price which occurred between the time of his re- fusal and its delivery.^ The purchaser of land, a defect in the title to which was not discovered because of an error on the part of an officer, may recover from him the price paid, the expense of the sale and of a suit to maintain his possession, the defense being made in good faith ; possibly, also, the sum expended in making repairs upon the property, if that cannot be recovered from the actual owner.' In the latest English edition of Mayne on Damages * the law concerning the liability of sheriffs for the breach of mis- cellaneous duties is thus stated : The principle that where the sheriff has been in fault the plaintiff is entitled to be placed in the same position by means of damages as if the defendant had done his duty is maintained in actions for delay in exe- cuting a writ of arrest ; ^ in selling under a fi. fa.; " in return- ing the writ; ^ for a false return;^ for not levying.^ In all these the damages are measured, nat by the amount of the debt, but by the amount which could or would have been re- covered if the breach of duty had not taken place.^" And if the sheriff return nulla hona to a writ of fi.fa.^ and the cred- itor knows of goods belonging to his debtor, he need not sue forth a second writ of fi.fa.^ but may, in an action for a false return, recover the value of the goods which the sheriff ought to have taken." 1 Smith V. State, 17 Ind. 167. SAugustien v. Challis, 1 Ex. 379; 2 Barrow v. Arnaud, 8 Q. B. 595. Mullett v. Challis, 16 Q. B. 239. 3 Brown v. Penn, 1 McGloin (La.), it> And all the probabilities of the 265. See Howe v. Taylor, 9 Ore. 288. case must be looked at; as, for ex- *4th ed. (1884), p. 437. ample, whether or not, if the execu- 5 Clifton V. Hooper, 6 Q. B. 468. tion had been levied, the plaintiff ^Aireton v. Davis, 9 Bing. 740; would have got any benefit from it. Bales V. Wingfield, 4 Q. B. 580, n. the other creditors of the execution 7 Rex V. Sheriff of Essex, 1 M. & debtor having been in a position to W. 720. make him bankrupt. Hobson v. Thel- 8 Crowder v. Long, 8 B. & C. 598 ; lusson, 8 B. & S. 476 ; L. R. 2 Q. B. 643. Heenan v. Evans, 3 M. & Gr. 398. n Per cur, Arden v. Goodacre, 11 C. § 492.] OTDER OFFICIAL BONDS. 1059 There is a difference to be observed in these actions, viz., that in those the whole gist of which is pecuniary damage some such damage must be proved or the action will fail. But in others there is an injury to a right, even indepenchmt of actual loss, and the fact of loss being negatived merely makes the damages nominal. Thus in an action for a false return,' for not arresting on mesne process,^ or for permitting a debtor arrested on mesne process to escape,' it has been held that proof of absence of loss entitled the defendant to a ver- dict.* In all these cases the truth of the return or the deten- tion of the debtor w^as only of importance to the plaintiff as contributing to some ulterior result. If no such result could have been produced, or has been effected by it, there was no ground of action. But the case of escape on final process was different. The creditor, it was said, when he was ascertained to be such by a judgment, and had charged the debtor, had a right to the body of his debtor every hour till the debt was ])aid.* This itself was the end, not the means. Consequently, a right of action for nominal damages arose on any escape, for however short a time, even though no pecuniary damage arose,** or on any delay in making the arrest.^ It would ap- pear in all cases in which damage is necessary to maintain the action that proof of the breach of duty will lay upon the de- fendant the 071US of showing that no damage ensued ; but to entitle plaintiff to substantial damage specific evidence of loss must be given.^ B., at p. 377 ; 20 L. J. (C. P.) 184. the sheriff for selling the reversion- Prima facie, the measure of damage aiy interest of the plaintiff in goods is the value of the goods which in the possession of an execution might have been and were not debtor. Tancred v. Allgood, 4 H. & levied. Hobson v, Thellnsson, supra. N. 438 ; 28 L. J. (Ex.) 362. See, also, iWylie V. Birch, 4 Q. B. 566; Levy Lancashire Wagon Co. v. Fitzhugh, V. Hall, 29 L. J. (C. P.) 127 : Stimson 6 H. & N. 502 ; 30 L. J. (Ex.) 231. V. Farnham, L. R. 7 Q. B. 175; 41 L. sPer Buller, J., Planck v. Ander- J. (Q. B.) 52. son, 5 T. R 40. 2 Curling v. Evans, 2 M. & G. 349. 6 Williams v. Mostyn, 4 M. & W. 3 Williams v. Mostyn, 4 M. & W. 153. 145 ; Lewis v. Morland, 2 B. & A. 56- i Clifton v. Hooper, 6 Q. B. 468. 64; Planck v. Anderson, 5 T. R. 37, 8 Bales v. Wingfield, 4 Q. B. 580, n. ; overruling Barker v. Green, 2 Bing. Wylie v. Birch, 4 Q. B. 566, 578; 317. Scolt V. Henley, 1 K & Rob. 227. 4 So where the action was against lOGO BONDS AND PENAL OBLIGATIONS [§ 493. Section 4. PROBATE BONDS. § 493. Bonds for administration of decedents' estates. The responsibility of the obligors in these bonds arises from their contract which is adapted to secure the performance of the principal's duties. These include making and returning a full and true inventory, care and fidelity in the preservation and administration of the estate, and in the end a faithful account- ino-. In the case of decedents' estates assets constitute a trust fund, first for creditors and secondly for legatees and distribu- tees.^ The ordinary administration bond has substantially the following conditions: (1) that the administrator will make and exhibit an inventory ; (2) that he will well and truly administer the estate ; (3) that he will make a true account of his admin- istration ; and (4) that he will deliver and pay over to the per- sons entitled the residue. Distributees have an interest in the performance of all these conditions; creditors only in the performance of the first two.- continually on the increase. They represented to the king that the souls of the intestates were inconveniently delayed in purgatory for the want of masses said for them, and that it was an unconscientious thing in liira to deprive the intestate by distribution tlius of his own property just when he most wanted it, and that the king ought to pass his prerogative in this regard to them so that they could ap- propriate it to that use, and thus the true owner get the value of his prop- erty. Partly by such persuasions and partly from fear of the pope the king finally passed these prerogatives to Roman bishops, who, by virtue thereof, stood in the king's shoes, and so legally entitled to the whole personal estate of intestates; and this is tlie origin of the ecclesiastical courts of England, and the preroga- tive and orphans' courts in this state. The Roman clergy, being thus umlor 1 Dawson v. Dawson, 25 Ohio St. 443. 2 Blakeman v. Sherwood, 33 Conn. 324. In Ordinary v. Cooley, 30 N. J. L. 271, Vredenburgh, J., gives an inter- esting sketch of the early practice and the successive statutes on the subject of administi'atiou of the per- sonal estates of deceased persons. He says : " In very early times the king, as parens patrici, was entitled to the personal property of intestates. He took possession of them, and, practi- callj', after paying debts, gave two- thirds to the widow and children and kept the balance himself. This pay- ment of debts and giving two-thirds to the widow and children was a matter of grace and not of legal right He had the legal riglit to keep the whole if he saw fit. But in those early times the influence of tlie Roman clergy was very great and § 494.] rilOUATE liOXDS. lOGl §494. How siicli bonds made; what recoveries may be had. Such bonds are usually executed to the state or to [30] some officer having probate jurisdiction. When sued for the benefit of the estate, as the practice is in some states, espe- no legal obligation to pay debts or to distribute any part of the estate to the next of kin, felt bound in con- science strictly to execute the trust The widow and children easily ac- quiesced in this arrangement, but the creditors were always somewhat re- luctant ; and accordingly wo find that the barons at Runny mode procured an insertion in Magna Charta that the bishops should pay the debts and dis- tribute. But the Roman clergy had influence enough to avoid its execu- tion. So that this provision of the great charter fell obsolete. Not only so, but afterwards, in the great char- ter of Henry the Third, they had in- fluence enough to cause the whole subject-matter to be ignored. Things remained in this condition, the bish- ^ ops having the legal right to all the personal property of intestates, and without either paying debts or ac- counting to the next of kin, until the thirteenth year of the reign of Ed- ward the First, when it was enacted that the ordinary should be bound to pay the debts of the intestates as far as his goods extended. But the ordi- nar}' yet gave no security whatever, and all the residuum, after the pay- ment of debts, still remained in his hands to be disposed of for pious uses. Thus it continued until the thirty- seventh year of the reign of Edward the Third, when parliament, in conse- quence of the flagrant abuses prac- ticed, enacted that,' in case where a deatli of an intestate occurs, the or- dmary shall depute of the next and most lawful friends of the dead per- son to administer his goods; which persons deputed shall have action to demand and recover as executors the debts of said intestate to admin- ister and dispense for the soul of the dead, and shall answer also in the king's courts to others to whom the said deceased was holden and bound.' It will be observed that tliis statute merely took from the ordinaries the power to administer, and compelled them to grant the administration to the next and most lawful friends of the intestate ; and all the administra- tor had to do was to pay the debts. He gave no bond of security ; and he retained all the residuum after the payment of debts as his own prop- erty. " There was yet no such thing as distribution amongst the next of kin, or security given by the administra- tor either to pa}' debts or to distrib- ute. As soon as the debts were paid the estate was administered, and there was nothing further to be done by the administrator. All the rest of the estate belonged to himself to dis- pense, in the language of the statute, for the soul of the dead. The ad- ministration by this statute, it will be observed, was granted to the next and most lawful friends of the in- testate. The language was after- wards altered by the statute of Henry Vin., and the ordinary compelled to grant the administration to tlie widovv or the next of kin of the in- testate ; and which is the same as our own statute now in force. It will be perceived that as yet no change is made in the rights of tlie administra- tor. There is yet no statute of dis- tribution ; the administrator takes all after the payment of debts. But this statute of 21 Henry VIII. in- troduces one great change. It re- 1062 BONDS AND PENAL OBLIGATIONS. [§ 494. [37] cially for the breach of the first condition, the recovery inures to the benefit of all parties interested in the same order as they would have been benefited by a due perform- ance of the administrator's duty. There can be no recovery quires, for the first time in the history of administrations, that the ordinary shall take surety from the adminis- trator, not to distribute, but only to pay debts. It could not have been, surely, that the administrator shall settle in the prerogative court, and pay the surplus after the payment of debts to the next of kin, for the sur- plus yet belonged to the administra- tor himself, to do with it as he pleased ; and, moreover, there was as yet no statute of distribution. But the only surety that could be required was that the administrator would make and exhibit an inventory, and pay the debts, or, as it was then tech- nically called, administer the estate. So that, by the statute of 21 Henry "VIIL, the bond given by the admin- istrator contained two conditions ; one was the exhibiting an inventory, the other was to pay the debts. These, it will be observed, are the two first conditions in the bond now re- quired by our statute. . . . But these two first conditions were pro- vided in the interest of creditors, and not in the interest of the next of kin ; because there were yet no next of kin that could take or had an inter- est in the estate. Things remained in this condition until the 22d of Charles II., over a hundred years, when the first English statute of dis- tributions was passed. This statute provided that the ordinary should call administrators to account, and order a just and equal distribution (after debts and funeral expenses were paid) among the wife and chil- dren and next of kin, substantially as our statute does now. And it pro- vided in the second place, that the ordinary should require of the ad- ministrator a bond with security, and with the same conditions as our statutes now provide, viz. : 1st, to file an inventory ; 2d, to well and truly administer the estate, or, in other words, to pay the debts; 3d, account in the prerogative court; and 4th, pay the surplus found upon such accounting to the next of kin. Hence it is manifest that these two last conditions in the bond were re- quired to compel the administrator to perform the two additional duties imposed upon him by the last statute of 22 Charles II., viz. : 1st, to account to the prerogative court ; 2d, to pay over the surplus found upon such accounting to the next of kin. This is further manifested fi-om another historical fact After the said statute of Edward III. took away from the Eoman bishops the power to admin- ister themselves, and forced them to grant administration to the next of kin, like other people, they were very prompt to force others to be honest, as soon as they had no temptation to be otherwise themselves, and they at- tempted to force the administrator to give security to distribute to tlie next of kin; but they were restrained by the courts of common law, by pro- hibitions, upon the ground that the statute of Edward III. meant to give to the administrator appointed by the ordinary the same rights of property that the ordinary himself had before that statute was passed, and that con- sequently the administrator was not obliged to account or distribute, and that his only duty was to pay the debts, and that he might do with tlie surplus what he pleased; and no 494.] PKOBATE BONDS. 1063 beyond nominal damages unless there is such misconduct [38] of the administrator as results in actual injury to some per- son for whose protection the bond is required.' The heir at law may prosecute a suit on the bond in the name of the obligee for neglect to return an inventory, although his precise interest as heir has not been definitely ascertained, either by settlement of the administration account, or by an order for distribution ; ^ but one who claims as next of kin, and is not entitled to a distributive share, cannot prosecute such an action.' In the former case the full value of the property with- held from the inventory may be recovered. The estate [39] is the loser to that precise extent; and the loss should be made good. If any equitable circumstances exist which would go to show that the loss is less, it devolves on the defendant to prove them.* The plaintiff acts as trustee for the persons beneficially interested in the estate.* And the money recov- bond ever was or ever could be re- quired of the administrator to ac- count or distribute until those addi- tional duties were expressly imposed upon him by tiie said statute of 23 Charles II. This statute was passed in the year 1661, and was among the very first of our colonial statutes, and has to this day remained unaltered upon our statute book. So that by this short historical resume, it ap- pears that originally the administra- tor neither paid debts nor distributed. After some hundreds of years, he was first made to pay debts; after some more hundreds of years, he was next made to give security to pay debts; after over a hundred years more, be was made to distrib- ute the surplus after paying debts, and to insert in his bond the atidi- tional condition that he should dis- tribute. So that it would appear tliat these conditions of our adminis- tration bonds of the present day were the growth of many centuries of English legislation, each additional n-irirlition being added as each addi- tional duty was imposed by statute upon the administrator. Thus we see how each stone was laid in the edifice, and came to have its peculiar form and coloi*. The very antique- ness of the language of these condi- tions gives evidence of their origin, and their natural import is in accord with their history." 1 Edwards v. White, 12 Conn. 28 ; Spencer v. Wilkinson, 11 id. 1 ; Adams v, Spaulding, 12 id. 350 ; Scar- borough V. State, 24 Ark. 20 ; State v. Bloxom, 1 Houst 446. The costs of proceedings taken to compel an administrator to account are chargeable to his sureties; but not the amount paid for counsel fees therein. Mann v. Everts, 64 AVis. 372. 2 Blakeman v. Sherwood, 82 Conn. 324. 3 Judge of Probate v. Southard, 62 N. H. 228. * Blakeman v. Sherwood, 32 Conn. 324, 329; Minor v. Mead, 3 Conn. 289; State v. Bennett. 24 Ind. 383; Boston V. White, 21 Pick. 58. See Dawson v. Dawson, 25 Ohio St 443. 5 Thomas v. Leach, 2 Mass. 152; 1064 BONDS AND PKNAL OBLIGATIONS. [§ 494. ered must be applied to the payment of all the debts of the in- testate in their order, giving preference to those that have a preference by law, and making a ratable distribution among all others.^ If the estate be insolvent, each creditor is en- titled to receive an average with others.- There is no lia- bility beyond the amount of assets which come to the hands of the administrator. But it is his duty to apply them to the payment of debts ; and a suit on his bond by a creditor hav- [40] ing a debt so liquidated that it is the administrator's duty presently to pay it is an action to recover for a breach of the bond. And it is no answer to such an action that the administrator has not wasted or misapplied the assets. His retention of the assets, and failure to apply them to such debt, is a breach of the bond.^ A creditor is in such cases en- titled to recover the amount of his debt on the bond if the as- sets are sufficient ; and if not, such ratable proportion thereof judge of the prerogative court. What then is to be done upon such a recov- ery? Is tlie judge of the preroga- tive court to divide the sum so re- covered among all the creditors, and so pay the assignee of the bond but a part of his debt [as would be the case if the assignee recovered only the damage to himself], and then put every other creditor to go through with the same course, and make a like division of what he might recover? And if it be an es- tate in which there is a surplus, shall he, after all, compel the next of kin to run tlie same race? This would, indeed, as Lord Ch. J. Holt says, be endless and infinite. But it is not so. No such breach can be assigned. The law runs itself into no such absurdity." 2 Warren v. Powers, 5 Conn. 873. 3 Cannon v. Cooper, 39 Miss. 784 ; State v. Nichols, 10 Gill & J. 27; Lining v. Giles, 3 Brev. 530 ; People Paine v. Ball. 3 Mass. 235 ; Skinner V. Phillips, 4 Mass. 874; Rowland v. Isaacs, 15 Conn. 115. 1 Dickerson v. Robinson, 6 N. J. L. 202. In tills case Kirkpatrick, C. J., said : " This is certainly the course of the ecclesiastical courts in Eng- land. ... To show the more clearly that the application of the money recovered in these actions must necessarily be to the payment of all debts, let us pursue the thing a little. Let us suppose the admin- istrator to have wasted the whole es- tate, and to be himself insolvent, and that tliere is nothing to respond to creditors but the administration bond ; shall he that can first get the assignment of it, and a verdict and judgment for his debt, even though it be a simple contract debt, swallow- up the whole penalty, take the whole money recovered to himself, and leave all other debts, even of a su- perior order, altogether unpaid? This, I think, would be hardly main- v. Dunlap, 13 Johns. 437; Hazen v. tained by anybody; and it is to Burling, 2 N. J. Eq. 133; Brown v. prevent this that the money recov- Glascock's Adm'r, 1 Rob. (Va) 461. ered must be distributed by the § 495.] PROBATE BONDS. 10G5 as it was the administrator's duty to pay.^ Suits by legatees and distributees may also be instituted for the amount of the legacy or distributive share, wben the administration has gone to such point that the immediate duty to pay it is im- posed and neglected.2 Service performed, or money expended, in aid of the defendant's administration cannot be shown in sup})ort of a suit on his bond, nor as a set-off against pay- ments by the administrator, but are a claim on the defendant individually.^ Where the breach is the non-payment of a dividend [41] struck in the probate court, on a plea of payment, receipts showing payment to the plaintiff by a former administrator are admissible in evidence, and their effect cannot be defeated b}'' showing waste by such former administrator.* § 495. Actions on bond as to sureties. In an action against the sureties on an administrator's or a guardian's bond for a breach by the principal, the proceedings taken in the probate court, in passing on the account rendered by the administra- tor or guardian, and a decree rendered therein directing him to pay over a sum found remaining in his hands, are admis- 1 Peirce v. Whittemore, 8 Mass. State v. Bennett, 24 Ind. 383 ; Jack- 283 ; Thomson v. Searcy, 6 Port, son t. Justices, 2 Bibb. 293 ; State v. 393 ; Fairfax v. Fairfax, 5 Cranch, Ruggles, 20 Mo. 99 ; Judge v. Looney, 19 ; Sturdivant v. Raines, 1 Leigh, 3 Stew. & Port. 70 ; Judge v. Emery. 481; Burnett v. Harwell, 3 id. 89; 6 N. H. 141; Judge v. Coulter, 3 Gardner v. Vidal, 6 Rand. 106 ; Miller Stew. & Port. 348. V. Gill, 4 Ala. 359 ; Seat v. Cannon, 1 Where the personal estate of an Humph. 471 ; Gordon v. State, 11 intestate consisted of slaves, it was Ark. 13; Calla v. Patterson, 18 B. held in an action upon the adminis- Mon. 201 ; Daws v. Shea, 15 Mass. 6 ; tration bond by a distributee that Inglehart v. State, 2 Gill & J. 235 ; the plaintiff could not recover both People V. Summers, 16. 111. 173 ; War- the appraised value of the slaves and ren v. Powers, 5 Conn. 373 ; Willey their increase and hire from the V. Paulk, 6 id. 74 ; People v. Ran- time of granting the letters, or the dolph, 24 111. 324 ; State v. Campbell, appraisement. He may claim their 10 Mo. 724; Strong v. White, 19 appraised value and interest thereon, Conn. 238 ; Hobbs v. Middleton, 1 J. or their increase and hire up to, and J. Marsh. 176; Smith v. Fagan, 2 real value at, the time of bringing Dev. 292; Chairman v. Moore, 2 the action, and the pleadings must Murph. 22; Ordinary v. Bracey, 3 disclose which course he elects to Bay, 542; People v. Dunlap, 13 take. Burch v. State, 4 Gill & J. Johns. 437 ; Gookin v. Hoyt, 3 N. H. 444. 392 : O'Connor v. Such, 9 Bosw. 318. 3 Gordon v. Clapp, 5 Vt. 129. ^Ralston v. Wood, 15 111. 159; ^Id. 1066 BONDS AND PENAL OBLIGATIONS. [§ 496. sible in evidence against the sureties, although they were not parties to the same. Such a decree is equally conclusive upon the principal and his sureties ; and upon the refusal of the former to obey the same the liability of the sureties attaches ; they cannot go behind the decree to inquire into the merits of the matter therein passed on unless they can show that it was obtained by fraud or collusion.^ As a general rule sure- ties upon official bonds are not concluded by a decree or judg- ment against their principal, unless they have had the V day in court or an opportunity to be heard in their defense but administration bonds form an exception to this rule.^ The principle that sureties are generally liable only for such assets as may have come to their principal's possession or which might have been reduced to possession by the exercise of due diligence does not obtain where he owes a debt in his individual capacity to the estate he represents. In such a case the right to demand and the obligation to pay co-exist in him, and the law presumes instantaneous payment and ex- tinguishment of the debt on the qualification of the represent- ative. The sureties in such a case are conclusively liable for the debt.' This rule rests wholly on technical grounds, and will not be extended so as to work injustice to sureties. Hence they will not be so liable beyond the ability of their principal to pay his debt to the estate. By signing the bond the sureties have aided him to get possession of assets from his indebtedness only to the extent of his ability to pay it. If in such a case the executor accounts to the probate court for his debt, and distribution is therein decreed accordingly, a court of equity will grant the sureties relief.* § 496. (xuardian's bond. A surety upon a bond given by a guardian for managing the whole estate of the ward is lia- 1 Irwin V. Backus, 25 Cal. 214; 3 Wright v. Lang, 66 Ala. 389; Slagle V. Entrekin, 44 Ohio St. 637 ; Seavvell v. Buckley's Distributees, 54 Braiden v. Mercer, id. 339 ; Shepard id, 592 ; Choate v. Thorndike, 138 V. Pebbles, 38 Wis. 373 ; Scofield v. Mass. 371 ; Probate Court v. Mer- Churchill, 72 N. Y. 565 ; Knox v. riam, 8 Vt. 234. •Kearns, 73 Iowa, 286 ; Kuepper v. * Lj-on v. Osgood, 58 Vt. 707 ; Gar- Glenn, id. 730 ; Stovall v. Banks, 10 ber v. Commonwealth, 7 Pa. St 265 ; Wall. 583; Harrison V.Clark, 87 N.Y. Piper's Estate, 15 id. 533; Gottsber- 572. ger v. Smith, 5 Duer, 566 ; Hurker v. 2 Id. Irick, 10 N. J. Eq. 269. § 496.] PROBATE BONDS. 10G7 ble for all money in the hands of the guardian belonging to the ward, whether received before or after the imdertakini:.^ It includes pro[)erty of the ward received by him in another state.- It is not limited to such as was owned by the ward at the time the bond was executed, but extends to that subse- quently acquired which came into the guardian's hands.^ An action at law, however, cannot be maintained before the ac- counts have been adjusted and a specific sum decreed to be paid over.* Nor can a guardian's sureties be made liable [42] for work done for him by the ward.^ In actions upon the bond the recovery is measured by the actual injury ; ^ and where th^re is merely a technical breach of the condition, but no loss, only nominal damages can be recovered.^ If the breach consists in the conversion of a chose in action the sum 1 McDowell V. Caldwell, 3 McCord Ch. 43 ; Merrells v. Phelps, 34 Conn. 109; AmmoQs v. People, 11 111. 6. In Bockenstedt v, Perkins, 73 Iowa, 23, the only evidence as to the possession of tiie money by the guardian when the bond was exe- cuted was that it had been received by him six days prior to that time. The court refused to set aside a judg- ment against the sureties on the ground tliat it was not sustained by the proof. 2 McDonald v. Meadows, 1 Met. (Ky.) 507. There is a tendency in some de- cisions to limit the liability of the sureties of personal representatives to assets within the state of their ap- pointment Keaton v. Campbell, 3 Humph. 234; Snodgrass v. Suod- grass, 1 Baxter, 157. The same rule was assumed to be applicable to a guardian's sureties Andrews* Heirs, 3 Humph. 593. It is said tliat there are grave difficulties in holding, as a general proposition, that the sureties of a guai'dian whose bond has been made with reference to the estate of the ward in one state may also be held liable for an equal amount of assets brought from another state, thus covering the entire penalty which the statute only requires to be in double the value of the estate. Pearson v. Dailey, 7 Lea (Teun.), 674. In the case last referred to the ward's estate consisted wholly of a fund in the hands of a guardian in another state, which the domestic guardian obtained possession of through the court which appointed him, and the receipt of which he acknowledged in his report. His sureties were held liable for it. See Brooks v. Tobin, 135 Mass. 69. 3 Gray v. Brown, 1 Eich. 351. 4 Anderson v. Maddox, 3 McCord, 337; State v. Strange, 1 Ind, 538; Hunt V. White, 1 Ind. 105; Barrett V. Monroe, 4 Dev. & Bat. L. 194 ; Stil- well V. Mills, 19 Johns. 304 ; Salisbury V. Van Hoesen, 3 Hill, 77; Probate Court V. Slason, 33 Vt. 306. Other- wise in Tennessee. Justices v. Willis, 3 Yerg. 461; Foster v. Maxey. 6 Yerg. 334. See Call v. Ruffiu, 1 Call (Va.), 383. s Phillips V. Davis, 3 Sneed, 530. 6 State V. Murray, 34 Md. 310. < Fuller V. Wing, 17 Me. 333 ; Bu- chanan V. State, 106 Ind. 25 L 10G8 BONDS AND PENAL OBLIGATIONS. [§ 437. apparently due upon it is prima facie the damages;' and if it consists in the failure to account on the ward's attaining his majority and it is not shown that the guardian received in- terest, the recovery, as against the sureties, is the sum due with simple interest; and in the discretion of the court, the penalty prescribed by statute ; exemplary damages cannot be awarded.^ If one bond is given to secure three wards the recovery thereon must be limited to the amounts proportion- ately due those who are plaintiff s." In Indiana the recovery in an action by one of the parties interested must be for the entire existing liability ; the amount collected is brought into court for distribution.* In no case can the damages exceed the penalty of the bond,-' except in jurisdictions where inter- est is allowed.^ § 497. Mitigation of damages. Where the father or mother of a ward is called to account as guardian the general rule is that the sureties upon the bond cannot claim an allowance out of the ward's estate for his support, if the parent was able to maintain him. The law imposes that duty upon parents.^ If the ward's estate is small and the father never made any charge for his support, the sureties on the bond cannot be granted an allowance on account of it.^ Neither will such an allowance be made in the absence of proof that the father was unable to support the ward, where he had the benefit of his labor.^ Courts, " however, will look with liberality to the circumstances of each particular case, and to the respective estates of father and children, and will authorize the income arising from the estates of infants to be applied to their sup- port whenever, under all the circumstances, it appears to be proper." '" But when the application is made on behalf of a 1 State V. Beruing, 74 Mo. 87. Presley v. Davis, 7 Rich. Eq. 195 ; Ed- 2Peellev. State, 118 Ind. 513. wards v. Durgeu, 19 Grant's Ch. 3 Knox V. Kearns, 73 Iowa, 286; (Up. Can.) 101; IMartin v. Foster, 38 Hooks V. Evans, 68 id. 52 ; Edmonds Ala. 688. V. Edmonds, 73 id. 427. 8 Waiting's Case, 35 N. J. Eq. 105 ; * Moody V. State, 84 Ind. 433. Pratt v. McJunkin, 4 Rich. 5 ; Myers 6 Woods V. Commonwealth, 8 B. v, Appleton, 45 Ind. 160. Mon. 112. 9 Wilson's Case, 38 N. J. Eq. 205. 6 See § 477. ^* Evans v. Pearce, 15 Gratt. 513 ; 7 Guion V. Guion, 16 Mo. 48; Cum- Dawes v. Howard, 4 Mass. 97. mings V. Cummings, 8 Watts, 360; § 498.] PROBATE BONDS. 10G9 parent who was guardian de facto it must be made before the guardianship terminated, otherwise it will not be granted without the clearest proof that justice requires it.^ If the per- son who is guardian is not charged by law with the duty of supporting his ward he cannot waive his right to charge therefor to the damage of the sureties on his bond.^ If an executor or administrator has been guilty of a flagrant breach of his trust, the commissions which would otherwise have been due him will not be allowed his sureties in mitigation of their liabilit3^' If a joint bond has been given by administra- tors for the faithful administration of the estate that may come ♦^o their hands, and all the personal property of the de- cedent has been possessed by them, and one of them has com- mitted waste after the other's death, the surety on their bond may have the estates of both exhausted before he can be made to answer for the wrong-doing of the survivor.^ § 498. Liability as between sets of sureties. As has been shown, the liabilities of sureties on official bonds are limited to the term for which their principal was elected or appointed.^ There is a marked distinction in this respect between such bonds and those given by executors, administrators and guard- ians. The distinction rests on the fact, aside from the differ- ence in the language of the instruments, that public officers hold for designated terms, while the principals in probate bonds exercise their functions from the commencement until the close of the administration; and in guardian's bonds until the w\ard reaches his majority; there are no terms. When a new bond is given there is no new commitment of the estate to their hands, nor is there any settlement or rest made in their accounts.^ When a guardian gives an additional bond as further security, pursuant to an order of the probate court, the sureties thereon are liable for the failure of their principal to account for money on hand at the time it was executed. Nothing appearing to the contrary, except the insolvency of the guardian, the presumption is that there had been no mis- appropriation of moneys previously received, and that they 1 Evans v. Pearce, 15 Gratt. 513. e g 430. 2 Hauser v. King, 76 Va. 731. 6 Scofield t. Churchill, 72 N. Y. 565 ; » State V. Beruing, 74 Mo. 87, 100. Beard v. Roth, 35 Fed. Rep. 397. 4 Eckert v. Myers, 45 Ohio St. 525. 1070 BONDS AND PENAL OBLIGATIONS. [§ 498. were in bis possession when such bond was given.^ If such a bond is conditioned for the faithful execution of the trust, " and also to obey all orders of the surrogate touching the estate committed," the sureties are liable for the failure of their principal to obey an order as to the payment of money which came to his possession before their obligation was assumed, although the money was previously lost or disposed of.^ Such a bond is cumulative without regard to the time it was executed.' The same liability attaches to the sureties of an executor under a new bond conditioned that he " shall ad- minister, according to law and the will of the testatrix, all her goods, chattels, etc., which shall at any time come to the possession of the executor." * The breach in such a case oc- curs during the life of the second bond, the gravameii of the action on which is the failure to pay over according to duty.' It is not necessary that the original bond be exhausted before resort is had to the second. The former is in force and is as oblio-atory upon its makers as if no other had been given. A creditor or other person interested in the estate may sue upon eitlier if the wrong complained of was a breach of both.^ In South Carolina and Tennessee the second bond is the primary security, and the first is at least suspended until the other is exhausted.'' This is the rule in South Carolina although only V 1 Clark V. Wilkinson, 69 Wis. 543 ; of the estate, with the same condi- Whitworth's Distributees v. Oliver, tions as the original bond." § 2499. 39 Ala. 286 ; Choate v. Arrington, 116 The sureties on a renewed guardian's Mass. 552. bond are liable before those on a sScofield V. Churchill, 72 N. Y. 565. former bond, although the guardian SLacoste v. Spivalo, 64 Cal. 35. misappropriated the ward's money * Foster v. Wise, 46 Ohio St. 20 ; prior to the execution of the last Brown v. State, 23 Kan. 235 ; Pink- bond. Crook v. Hudson, 4 Lea, 448. staff V. People, 59 111. 148. The same rule applies to new sure- spinkstaff v. People, 59 111. 148. ties given by way of substitution for 6 Ibid. former sureties released according to 7 Glenn v. Wallace, 4 Strobh. Eq, law. Crawford v. Penn, 1 Swan, 388. 150 ; Bobo v. Vaiden, 20 S. C. 271 ; And to new sureties given by way of Morris v. Morris, 9 Heisk. (Tenn.) 814, counter-security. Steele v, Reese, 1 822. Yerg. 263, If the new security is The Tennessee statute provides : given pursuant to an order of court " Every guardian, at the time of ex- requiring other or better security, hibiting his biennial list or statement the two sets of sureties are equally of his ward's estate, shall renew his liable. McGlothlin v. Wyatt, 1 Lea, bond in a penalty of double the value 717. § 498.] PKOBATE BONDS. 1071 one of the sureties on the first bond petitioned for relief from liability, and for a new bond, unless some act of such surety led the sureties on the second bond to believe that the sum in the administrator's hands was less than it in fact was, in which case the primary liability for the difference between the amount actually on hand and that which was represented will be on tlie original bond.' If the second bondsmen prove insufficient the first are responsible up to the date of their release; the former must account, first, for any default after their bond was given, and then for such as accrued prior thereto.- It is provided by statute in Missouri that when an additional bond is given and approved " it shall discharge the former securities from any liability arising from any miscon- duct of the principal after the filing of the same, and such former securities shall only be liable for such misconduct as happened prior to the giving of such new bond." Where the assets of the estate were pledged by the administrator for his own purposes, Avhile the original bond was the only security for his conduct, the fact that after another bond was given he failed to recover the pledged securities did not operate to shift the resulting loss wholly upon the sureties on the latter ; both sets were liable.' Under a statute which provides that the discharged surety "shall only be liable for such miscon- duct as happened prior to giving the new bond," one who has been discharged is not responsible for moneys found due the estate on a settlement made subsequent thereto unless it is shown that the wrong was done before the discharge.'* The demand upon the discharged surety need not be made before a new bond is given.* Independently of statute, new sureties on a guardian's bond are liable for so much money as he might have collected on a loan made before they became such.^ And so if a new bond is filed by order of the court, the guardian not being discharged or re-appointed nor the sureties on the first bond being released, and the evidence fails to show whether the money previously received had been misappro- 1 Bobo V. Vaiden. 20 S. C. 271. * Beard v. Roth, 35 Fed. Rep. 397. 2 Morris v. Morris, 9 Heisk. (Tenn.) 5 Conover's Case, 35 N. J. Eq. 108. 814,822. 6 Mc Williams v. Norfieet, 63 Miss. 3 State V. Berning, 74 Mo. 87 ; Wolff 183 ; Rader v. Yeargin, 85 Tenn. 486. V. Schaeffer, id. 154, 1072 BONDS AND PENAL OBLIGATION'S. [§ 498. priated or not, the new security will be cumulative for the whole terni.^ If the bond is conditioned that the guardian will pay all moneys which may come into his hands or pos- session and faithfully discharge the office and trust of guardian accordino^ to law, the sureties on an additional bond will be liable to pay the whole amount ordered to be paid though it had been wrongfully expended before their obligation was given.2 If an administrator resigns and afterwards succeeds himself and a balance is found due from him on the settle- ment of the first administration, the distributees may charge the sureties on either bond." If sureties have been discharged and a new bond has been accepted and there was a breach of the first bond before their discharge by the administrator's neglect to render his account, the original sureties are not subject to the statutory rule of damages which makes them liable for the full value of the property in his hands if the appropriation was not made before they were discharged; their liability is for nominal damages, or such as resulted from his neglect. If the property of the estate was lying idle and unproductive, interest during the period of such delay is the measure of damages.* In Indiana the liability of the sureties on a new bond is prospective only.^ But if it appears that money received while the first bond was in force was on hand when the second was given, the sureties on the latter are liable for it.^ A guardian who has resigned and been re- appointed in another county, where he gives a new bond and charges himself with the amount received under his first ap- pointment, does not thereby release his original sureties from liability for a defalcation committed while their bond was in force.'' An involuntary payment made on behalf of a guard- ian who committed a breach of trust under two bonds will be applied ])ro rata upon the liability under both, although the sureties upon one of them have become insolvent.^ 1 Douglass V. Kessler, 57 Iowa, 63 ; v. Page, 63 id. 209 ; Parker v. Meds- Loring v. Baker, 3 Cash. 465; Bell v. ker, 80 id. 155; State v. Homer, 121 Jasper, 2 Ired. Eq. 597 ; Jones v. Blan- id. 92. ton, 6 id. 115. 6 Parker v. Medsker, 80 Ind. 155. 2 Knox V. Kearus, 73 Iowa, 286. ^ Yost v. State, 80 Ind. 350 ; Naugle 3 Modawell v. Hudson, 80 Ala. 265. v. State, 101 id. 284. 4 McKim V. Bartlett, 129 ]\Iass. 226. 8 Bond v. Armstrong, 88 Ind. 65. SLowry v. State, 64 Ind. 421 ; State § 498.] PROBATE BONDS. 1073 There is ample authority and reason for saying that when the law provides for a special bond as security for the per- formance of a special duty imposed upon any officer the sure- tics upon his general bond are relieved from liability for the discharge of that duty unless it is clear from the law that such was not the intention.' It is provided in the statutes of many states that when the real estate of a ward is to be sold the guardian shall give an additional bond to secure the proper application of the proceeds. If such a statute is man- datory it may be said with the best of reasons that the sure- ties in the general bond did not contemplate that they were assuming responsibilit}'^ for money coming to their principal's hands from that source, and that whether such a bond was given or not they are not responsible for funds so received.^ In Florida the statutory requirement is that the county judge shall require such security from guardians as is necessary : he may authorize a sale of the real estate of minors and shall re- quire "such additional bond as in his discretion may seem to be necessary to protect the interests of the infant." A bond so given is subsidiary and auxiliary to the general bond and cannot be sued until the latter is exhausted.^ The same rule has been declared as to administrators in Indiana,* Alabama,'* Ohio" (under a discretionary statute), and in Pennsylvania under a mandatory one.^ If part of the funds with which a guardian is charged are the proceeds of real estate and one who had been his surety upon both his general and special bonds has been discharged from liability and a new bond has been executed by order of the court, the last covers liability for all money in the guardian's hands when it was executed.^ 1 g 481. 3 Hart v. Stribling, 21 Fla. 136. 2 Madison Co. v. Johnston, 51 Iowa, * Salyer v. State, 5 lud. 202 ; Salyers 152 ; Bunce v. Bunce, 65 id. 106 ; v. Ross, 15 id. 130. Morris v. Cooper, 35 Kan. 156; Ly- 5 Clarke v. West, 5 Ala. 117. man v. Conkey, 1 Met. 317 ; Williams « Wade v. Graham, 4 Ohio, 126. V. Morton, 38 Me. 47; Warwick v. "Commonwealth v. Loyd, 12 Phila. State, 5 Ind. 350; Lowry v. State, 221. 64 id. 421 ; Hannum v. Day, 105 Mass. 8 Moody v. State, 84 Ind. 433. 33, 38. Vol. II — 68 1074: BONDS AND PENAL OBLIGATIONS. [§ 499. Section 5. EEPLEVIN bonds. § 499. Tlieir original conditions. The English statute en- acted nearly six hundred years ago provided that sheriffs or bailiffs from henceforth shall not onl}^ receive of the plaintiff pledges for the pursuing of the suit before they make deliver- ance of the distress, but also for the return of the beasts if return be awarded.^ The statute of George 11. was intended rather as an improvement and modification of the old security than as the creation of a new one.^ This required a bond with two sureties in double the value of the goods distrained, and conditioned for prosecuting the suit with effect and without delay, and for duly returning goods and chattels distrained in case a return should be awarded.^ Though framed for exclu- sive application to replevin on distress for rent, as were some early American statutes, it was the foundation of the practice in other cases. These conditions have always been treated as independent, and if either was not complied with the bond [4:3] was forfeited.^ The condition to prosecute the suit to ef- fect and without delay has been uniforml}' interpreted to mean a continuous prosecution to a final judgment in favor of the plaintiff ; he must diligently pursue the case and suc- ceed.^ 1 West. 2, ch. 2; Edw. 1. Bank v. Hall, 107 Pa. St. 583; Elliott 2 Morris on Rep. 267. v. Black, 45 Mo. 372 ; Gardiner v. Mc- 3 11 Geo. 2, ch. 19, § 23. Dermott, 12 R I. 206. * Moore v. Bowmaker, 7 Taunt 97 ; In New Hampsliire and Ohio a Perreau v. Bevan, 5 B. & C. 284; judgment for return seems never to Balsley v. Hoffman, 13 Pa. St. 603 ; have been a feature of the practice Smith V. Newton, 38 111. 228 ; Lomme in replevin, and the bond contains no V. Sweeney, 1 Mont. 584; Morris on such condition. Bell v. Bartlett, 7 Rep. 250 ; Dunbar v. Dunn, 10 Price, N. H. 178 ; Smith v. McGregor, 10 542 ; Whitman v. Jones, 5 N. H. 362 ; Ohio St 461. Gibbs V. Bartlett 2 W. & S. 29 ; Ne- ^ Turner v. Turner, 2 Bred. & B. ville v. Williams, 7 Watts, 421 ; Short 107; Crabbs v. Koontz, 69 Md. 59; V. Hubbard, 2 Bing. 348 ; Thomas v. Boom v. St Paul F. & M Co., 33 Ix-win, 90 Ind. 557 ; Vinyard v. Minn. 253 : Meigs v. Keach, 1 Wash. Barnes, 124 111. 346 ; Parrott v. Scott Ty. 305 ; Perreau v. Bevan, 5 B. & 6 Mont 340 ; Boom v. St Paul F. & C. 284 ; Axford v. Perrett 4 Bing. M. Co., 33 Minn. 253 ; Imel v. Van 586 ; Harrison v. Woodle, 5 B. & Ad. Deren, 8 Colo. 90; Pittsburgh Nat 146; Harrison v. Montstephen, 2 j 499. REPLEVIN BONDS. 1075 It is not a condition the performance of which is in itself beneficial to the party for whose benefit the bond is made. But the recovery of a final judgment in favor of the plaintiflf makes it clear that, when the property was delivered to him at the commencement of the action, he received his own, and no wrong was done the defendant. His bond is a penal un- dertaking to establish at as early a day as practicable that lie had a right to possession when he obtained the writ. If he fails to do so, it appears clearly that the possession which the plaintiff acquired by process based on the bond was wrongful and injurious to the defendant to the extent of his interest in the property, and the costs to which he has been subjected in asserting that interest. On failure to fulfill the conditions the penalty of the bond is forfeited, and relief is granted against a demand of the wiiole only on the terms of making equi- table compensation according to the injury caused to the de- fendant by the process by which he was deprived of posses- sion. This compensation is only limited by the penalty of the bond ; within that limit the plaintiff is entitled to the value of the property and costs of the replevin suit.^ And the liability of the sheriff for taking insufficient bail, or for other official [44] neglect, resulting in a loss of the security of the replevin bond, is governed by the same standard and subject to the same limitations.'^ But if the party for whose benefit the bond is Dow. & Ey. 343; Balsley v. Hoffman, dismissal of the action pursuant to it 13 Pa. St 603 ; Morgan v. Griffith, 7 bars a suit on the bond. Gerard v. Mod. 380; Bias v. Freeman, 5 T. R Dill. 96 Ind. 101. 195 ; Brown v. Parker, 5 Blackf. 291 ; i Branscombe v. Scarborough, 6 Q. Gould V. Wenner, 3 Wend. 54; Jack- B. 13; Gainsford v. Griffith, 1 Will- son V. Hanson, 8 M. & W. 477 ; Phil- iams' Saund. 58, n. 1 ; Hunt v. Round, lips V. Price, 3 M. & S. 183 ; Persse v. 2 Dow. P. C. 558 ; Ward v. Henley, 1 Watrous, 30 Conn. 139 ; Lindsay v. Y. & J. 285 ; Hefford v. Alger, 1 Blood, 3 Mass. 518; Sevey v. Black- Taunt. 218; Gould v. Wenner, 3 lin, id. 543. Wend. 54 : Gibbs v. Bartlett, 2 W. & It is held, though by a divided S. 33; McCabe v. Morehead, 1 id. 513; court, the better reasons being given Arnold v. Bailey, 8 Mass. 145 ; Fraser by the dissenting judge, that the de- v. Little, 13 Mich. 195 ; Balsley v. fendant's remedy for a breach of the Hoffman, 13 Pa. St 603. bond in failing to prosecute the suit ^ Evans v. Brandon, 2 H. Bl. 548 ; is not waived by his consenting to a Baker v. Garratt, 3 Bing. 56 ; Jeffrey dismissal of the action merely. Hall v. Barnard, 4 A. & E. 823 ; Paul v. V. Smith, 10 Iowa, 45. But a settle- Goodluck, 2 Bing. N. C. 220 ; Mur- ment of the matter in dispute and a doch v. Will, 1 Dall. 341. 1070 BONDS AND PENAL OBLIGATIONS. [§ 500. made be entitled to only the possession of the property, the title being in the opposite party, such obligee is not entitled to recover the value of the property, but only of his possessory right.' § 500. The coiulition for return of property. As re- plevin is a form of action to enable a plaintiff to recover specific personal property, if he fails to maintain his right to the possession after it has been delivered to him, there is fair- ness and equality in allowing a defendant at least an election to have it restored. Accordingly, instead of leaving to him a mere claim of damages, assessable on the broken condition to prosecute to effect, the law has wisely provided for a judg- ment of return as well as a specific condition to the same effect in the bond. Such judgment imposes the dut}^ on the plaintiff to restore the property; and if not complied with the condition for such return, w^hen adjudged, is also violated. If the plaintiff does not voluntarily execute the judgment for return the defendant may, but is not obliged to avail himself of the writ of return to compel its execution. He may at once sue on the bond, unless a preliminary resort to the writ is required by statute.' This provision for return of the same goods and chattels is intended for the benefit of the defendant.^ Thus construed, according to the import of the transaction of which the bond is a part, it is an indirect undertaking by the plaintiff, in con- sideration of being able of his own motion to get possession of the property in dispute at once, to return it if return be adjudged, and to pay the defendant from whom he has wrested [45] it such sum as ought to be assessed for damages by rea- son of the premises, if he neglects to prosecute the suit, or it appears by an adverse judgment that he was not entitled to the property. Any such default is an event on the happen- ing of which he in form acknowledges himself bound to pay the penalty, but as the court will not allow the obligee to 1 Hawley v. Warner, 12 Iowa, 43. 2 Wright v. Quirk, 105 Mass. 44 ; See Buck v. Rhodes, 11 id. 348; Hay- Turner v. Turner, 3 Brod. & B. 107 ; den V. Anderson, 17 id. 158 ; Smith Sevey v. BlackHn, 3 Ma>s. 541. See V. Whiting, 100 Mass. 123 ; Schweer as to the practice in Missouri. Morri- V. Schvvabacher. 17 111. App. 78; son v. Yancey, 23 Mo. A pp. 670. Crabbs v. Koontz, 69 Md. 59. 3 Qibbs v. Bartlett, 2 W. & S. 33. § 501.] REPLEVIN BONDS. 1077 take more than in conscience lie ougFit, damages assessed for the breaches are made to embrace the full redress to which such defendant, secured by such bond, is entitled.^ The act of 11 George II. contained a clause that the court where such action shall be brought may by rule give such relief to the parties upon such bond as may be agreeable to justice and reason ; and such rule shall have the nature and effect of a defeasance of the bond.- § 501. The contlitioii required hy modern statutes. Mod- ern legislation on this subject has the merit of prescribing substantially equivalent conditions which are more precise and direct. In some, if not in most, of the states there are three conditions: first, to prosecute the suit to effect or to final judgment; second, to return the property if return be adjudged ; and third, to pay such sum as the defendant may recover judgment for in the replevin suit. The action for breach of the condition to prosecute to final judgment pro- ceeds in the absence of any determination of the merits of the replevin suit, and for failure to prosecute to judgment ; but the breach of the conditi6n to prosecute to effect, as we have seen, may consist not only of such neglect, but also of an ad- verse judgment on the merits.^ 1 Wright V. Quirk, 105 Mass. 44. failure to prosecute, he is entitled to 2 Turner v. Turner, 2 Brod. & B. 107. compensation in damages. A failure 3 The legal effect of the dismissal of to prosecute is a breach of the un- the suit is a judgment of restitution, dertakiug, and the legal and neces- If that cannot be had, the defendant sary result is that the sureties to the is entitled to a fieri facias for the undertaking are liable for whatever value of the property. He is not injury the defendant has sustained." forced to bring an action on the Persse v. Watrous, 30 Conn. 139; bond. Marshall v. Livingston, 77 Ladd v. Prentice, 14 Conn. 109. Ga. 21. Where there is a breach of the In Mills V. Gleason, 21 Cal. 274, condition to prosecute to effect and Cope, J., said: "A dismissal stands no judgment is entered for the re- on the same footing as a nonsuit, turn of the property, an officer who leaving the parties to settle in an ac- is defendant and has a special iuter- tion upon the undertaking those est in or title to the property is en- matters which, if the suit were pros- titled to retain the custody of it ; but ecuted, it would be necessary to de- in the absence of an order awarding termine in the first instance. Such him such custody, he must atBrraa- matters include, of course, the right tively show in an action on the bond of the defendant to a return of the that the demand upon which he ac- property ; and as the opportunity to quired possession of the property hag obtain a return is taken away by the not been satisfied, otherwise it can- 1078 BONDS AND PENAL OBLIGATIONS. [§ 502. [•46] The bond is intended to give the defendant in replevin complete indemnity for the property being taken out of his possession; and for the necessity imposed of active measures for the defense of his right to it. He is not entitled to indem- nity if he had no title or right of possession, and the possession is taken by one who has the right ; and he can recover noth- ing beyond costs and nominal damages, even if the plaintiff fails to prosecute. And where the suit is prosecuted to judg- ment, if the defendant recovers, and the plaintiff performs the judgment, the bond is satisfied.^ The purpose of indemnity is accomplished, if, when the defendant succeeds in the replevin suit, whether it is tried on the merits or not, the property is returned to him, the damages paid, whether they arise from deprivation of the use, deterioration, or decrease of market value, and the costs incident to making a defense. "Where these damages have not been, and could not be, determined in the replevin suit, they may be determined in the action on the bond if there is a breach of either of the conditions. There is no breach of the condition to prosecute to final judgment if the case is tried on the merits, though judgment be rendered for the defendant ; then, if the other conditions are fulfilled by performance or execution of the judgment, the bond is satis- fied. But the recovery of judgment by the defendant, whether on the merits or not, as well as the neglect of the plaintiff to prosecute the replevin suit with diligence, is a breach of the condition to prosecute to effect, and then the defendant may sue on the bond and rely on the breach, although in the former case the condition to return when adjudged may also be broken.- § 502. Damages need not be assessed in replevin snit. The obligee is entitled to recover the damages for the taking [47] and detention in the action on the bond. The omission not be determined how or to what 6 Minn. 412; Balsley v. Hoffman, 13 extent he has been damnified. Imel Pa. St. 603 ; Ginaca v. Atwood, 8 Cal. T. Van Deren, 8 Colo. 90. 446. 1 Chambers v. Waters, 7 Cal. 390 ; '^ Brown v. Parker, 5 Blackf. 291 ; Pettygrovev.Hoyt, llMe.66; Hovey Gibbs v. Bartlett, 2 W. «fe S. 33; V. Coy, 17 Me. 266 ; Smallwood v. Ptoman v. Stratton, 2 Bibb, 199. But Norton, 21 Me. 83; Millett v. Hay- compare Wall v. Humphries, 4 Dana, ford, 1 Wi^. 401 ; Clap;sett v. Rich- 209. ards, 45 N. H, 360 ; Clark v. Norton, 502.] REPLEVIN BONDS. 1079 of the defendant in the replevin suit to have the damages as- sessed in that action, he being at liberty to have them there assessed, is no renunciation of them if the judgment there rendered remains unsatisfied. And this nile has been applied when the only breach assigned was of the condition to return the property if adjudged. For it is said the statute contem- plates that the property will be returned when such is the judg- ment, and the damages are then assessed upon that expecta- tion. But where it is not returned, and there is a breach of the bond, the statute does not prescribe how the damages shall be assessed. The general rule of law would give in such a case as an indemnity the value of the property at the time it was taken, and interest from that time to the time of trial.' If the defendant's damages are assessed in the replevin suit, he may in a subsequent action on the bond recover such as re- sulted from the failure to return the property.' Where the 1 Manning v. Manning, 26 Kan. 98 ; Treman v. Morris, 9 111. App. 237 ; Yelton V. Slinkard, 85 Ind. 190; Smith V. Dillingham, 33 Me. 384; Thomas v. Spofford, 46 Me. 408; Tuck V. Moses, 58 Me. 461 ; Wasii- ington Ice Co. v. Webster, 62 Me. 341 ; Hall V. Smith, 10 Iowa, 45. Compare Swift V. Barnes, 16 Pick. 194. If the statutory damages are recov- ered the defendant cannot recover interest upon the value of the prop- erty. Treman v. Morris, sujva. 2 The statute of Maine provides that " if it appears that the defend- ant is entitled to a return of the goods he shall have judgment and a writ of return accordingly, with damages for the taking and costs." It was contended that the words " damages for the taking " mean all damages resulting from the taking and detention of the goods ; that if the defendant in replevin recovers judgment for a return, he may, at his election, have the damages which he has sustained by reason of tlie taking and detention of them to the time of such judgment assessed in the replevin suit, or he may x'ecover them in a suit on the bond, but can- not pursue both remedies: that if he elects, as he did in this case, to have the assessment made in the replevin suit, he cannot in a subsequent suit on the bond, founded on a failure to return the goods, recover any dam- ages which accrued prior to the judg- ment in the replevin action, and therefoi-e cannot recover for any de- preciation in the value of the goods which occurred between the time of the taking and the date of the judg- ment of return. In answer the court said: "This point seems to us, at best, to be altogether technical, and not to be founded on any sound prin- ciple. By the terms of the bond it was made enforceable against the principal and sureties if the principal should not pay such damages and costs as W. should recover against it and should not also return and re- store the goods replevied in like order and condition as when taken. Under the condition of the bond the sureties were liable to pay the damage recov- ered against the principal in case the 1080 BONDS AND PENAL OBLIGATIONS. [§ 503. plaintiff neglects to prosecute his action, there is a difference of oi)inion concerning the defendant's remedy. In Rhode Ishmd it is held that he is not required to make complaint and obtain judgment for the return of the ]iroperty before bringing a suit on the bond. The purpose of the bond is not merely to secure to the defendant the execution of the judg- ment which he may recover, but rather as an indemnity to him for taking the property out of his ])ossession.^ It is held b}'^ the federal supreme court that the defendants in a suit on the bond cannot avail themselves of the omission of the trial court to render the alternative judgment provided for by stat- ute, for the return of the property or its value.- In Maine and Vermont the rule is contrary to that which prevails in Rhode Island.^ § 503. When sureties not liable for judgment in replevin suit. If there be no condition to pay any judgment that may be recovered in the replevin suit, a judgment there obtained for such damages, it has been held in Illinois, is not evidence against the sureties in an action on the bond. The non-pay- ment of such a judgment would be no breach of the bond; nor would it measure the damages on any breach. The surety is not a party to an assessment in such a case, and as to him it is wholly inoperative. While, under the general breach assigned u])on the bond, evidence of damages suffered by the detention prior to the order of return is admissible, it must be evidence of what the damages in fact Avere, without reference to any former assessment."* In Maine the damages recovered by an attaching officer in replevin, being recovered in trust, are not conclusive upon the sureties in a suit on the bond." But in Pennsylvania it is held that the damages and costs for which the defendant in the replevin suit obtained judgment may be recovered on the bond.^ These damages principal had not paid them as he did. 2S\veeney v. Lomrae, 22 Wall. 208. By the judgment in the present suit sPettygrove v. Hoyt, 11 Me. 66; tliey are only made liable according Smallwood v. Norton, 20 id. 83 ; Col- t') their obligation, that their priuci- lamer v. Page, 35 Vt. 387. pal shall return and restore the goods ■» Shepard v. Butterfield, 41 III. 76. in like order and condition as when 5 Howe v. Handley, 28 Me. 241. t-iken." Washington Ice Co. V. Web- <> Miller v. Foutz, 2 Yeates, 418; ster, 125 U. S. 426, 437. Balsley v. Hoffman, 13 Pa. St 603. 1 Gardiner v. McDermott, 12 R. I. 206. § 503.] REPLEVIN BONDS. 1081 and interest, however, are not invariably the valno. As was said by ]\rr. Justice Eogers, "it would be anything but an act of justice to permit a j)erson who has wrong-fully deprived another of his goods, and retained thein in his possession [IS] until they were nearly destroyed by time and use, afterwards, when judgment was rendered against him for his wrongful act, to save a forfeiture of his bond by an offer to return tlie article in its depreciated condition. Nor can the sureties be placed in any better condition." ^ Interest will compensate for delay to return mere merchandise; but if, while the owner is deprived of possession, it deteriorates by use or lapse of time, or b}^ fall of the market, he is entitled to compensation for that loss.^ If the deterioration is assessed in the action of replevin and collected or paid, it cannot again be collected on the bond.^ And where the use of the ])roperty is valuable, the value of such use, rather than interest, is allowed as dam- ages.^ The plaintiff cannot claim damages for depreciation while he has possession, for he may always convert the prop- erty into money.^ And undoubtedly the same principle would be applied to a defendant having possession. Damages re- sulting to the good will of a business cannot be recovered.** 1 Gibbs V. Bartlett, 2 W. & S. 29, 34. 2Steveus v. Tuite, 104 Mass. 328; Howe V. Handley, 28 Me. 241 ; Par- ker V. Simouds, 8 Met. 211 ; Leip^hton V. Brown, 98 Mass. 515; Swift v. Barnes, 16 Pick. 194: Bank of Brighton v. Smith, 12 Allen. 243; Whitwell V. Wells, 24 Pick. 34 ; Crabb V. Mickle, 5 Ind. 145 ; Washington Ice Co. V, Webster, 62 Me. 341; Schrader v. Wolflin, 21 Ind. 238; Walls V. Johnson, 16 Ind. 374; Hop- kins V. Ladd, 35 111. 178; Story v. O'Dea, 23 Ind. 326 ; Lutes v. Alpaugh, 23 N. J. L. 165; Caldwell v. West, 21 N. J. L. 411 ; Cohen v. State, 34 Miss. 179 ; Ormsbee v. Davis, 18 Conn. 555 ; Emerson v. Booth, 51 Barb. 40; Mat- toon V. Pearce, 12 Mass. 406; Rowley V. Gibbs, 14 Johns. 385; Yelton v. Slinkard, 85 Ind. 190; Treman v. Morris, 9 111. App. 237; Dalby v. Campbell, 26 id. 502. 3 Rowley v. Gibbs, 14 Johns. 385. * Allen V. Fox, 51 N. Y. 502 ; Dorsey V. Gassaway, 2 H. & J. 402; Butler V. Mehrling, 15 111. 488. In Tibbies v. O'Connor, 28 Barb. 538. it was held that the sureties were responsible not only for the costs of the suit in the trial court, but also for costs of an appeal to the general term. And in Letson v. Dodge, 61 Barb. 121, it was held that parties in an undertaking in a justices court are responsible for the final result in the court of last resort. It is held in New Hampshire that the replevin bond prescribed bj' the statute does not extend to a judgment on a re- view of the action. Bell v. Bartlett, 7 N. H. 178. ^Gordon v. Jenny, 16 Slass. 405. « Dalby v. Campbell, 26 111. App. 502. 1082 BONDS AND PENAL OBLIGATIONS. [§ 504. It is the rule in Massachusetts that the party who is ad- judged to return the property in controversy should, on gen- eral principles, be charged, in case of default, with its value at the date when the duty to return it attaches. If it is of less value then than when taken, the difference should be com- pensated in damages, and they are recoverable on the bond as a breach of its conditions.^ In some courts the value of the property at the time it was taken and where it was situ- ated, for any lawful use to which it could be put, is the meas- ure of liability.^ In Iowa the value is to be determined as of the time of the trial.^ [49] § 504. Evidence of the value. The value of the prop- erty is sometimes established as against the plaintiff and his sureties by permitting the obligee to put in evidence the esti- mate of it stated in the bond, the obligors being bound by it. The plaintiff is held bound because it is his own valuation, and the sureties, by executing the bond, admit the same.* The other party, however, is not so bound; and if the value is greater at the time when judgment for return is pronounced he may show its actual value at that time.^ If the value has 1 Swift V. Barnes, 16 Pick. 194 ; and a writ of restitution issued, and Parker V. Simonds, 8 Met 211. a demand was made of the prop- - Washington Ice Co. v. Webster, erty, but it was not re-delivered. The 125 U. S. 426, 443 ; S. C, 68 Me. 449, question made by the parties was 462. whether the valuation in the bond * Clement v. DufTy, 54 Iowa, 632. should be the measure of damages, * Washington Ice Co. v. Webster, or whether judgment should be ren- 125 U. S. 426 ; Marshall v. Livingston, dered for the actual value of the oil 77 Ga, 21 ; Huggeford v. Ford, 11 at the time of the service of the writ Pick. 228; Middleton v. Bryan, 3 M. of replevin, or when the verdict was & S. 155; Swift v. Barnes, 16 Pick, given, or on the rendition of judg- 194; Howe v. Haudley, 28 Me. 241; ment, or at the date of the demand Parker v. Simonds, 8 Met. 211 ; Gor- upon the writ of restitution. The oil don V. Jenny, 16 Mass. 469; Tuck v. having risen in value after it was re- Moses, 58 Me. 461; Washington lee plevied, it was argued by tlie plaintiff Co. V. Webster, 62 Me. 341 ; Leighton that the value of the oil at tlie time V. Brown, 98 Mass. 515; Wright v. of the rendition of judgment, or at Quirk, 105 Mass. 44; Gibbs v. Bart- the time of the demand made on the lett, 2 W. & S. 33. writ, was the rule to bo adopted : '' Id. In Parker v. Simonds, supra, while it was contended by the de- Hiibbard, J., referring to Swift v. fendant that the value of the oil at Barnes, said : "In that case a quan- the time of the original taking should tity of sperm oil was replevied, and determine the amount of damages, there was judgment for a return, and that the circumstance that a § 504.] EEPLEVIN BONDS. 1083 increased in the possession of the obligor by an aclvance [50] in the market price since the time of default in complying with the judgment of return the obligee is entitled to the benefit of the enhanced value.^ But if the value has been in- creased by the labor bestowed upon it in good faith by the party who retained the possession it is otherwise.^ If the bond is insufficient as a statutory obligation, but good as a common-law bond, the sheriff's appraisement of the value of the property, as evidenced by his indorsement upon the writ, bond had been given should make no difference. The court, after a re- view of the authorities cited, was of opinion that the value of the prop- erty replevied, at the time it was de- manded on the writ of restitution, was the true measure of damages; and Mr. Justice Wilde, who gave the opinion, referred to the general rule of damages on all contracts to de- liver goods on demand, and expressed the opinion that there was no essen- tial difference between this contract and the common one to deliver goods. And the court further held that the party who made the bond and fixed the value might well be bound by it, as was decided in Gor- don V. Jenny, 16 Mass. 4(35 ; and that it did not follow that the other party, who had no agency in fixing the amount, should be concluded by it because the property had risen in value. But a leading feature in that decision is this, namely, that the party injured was entitled to an in- demnity, and could not receive it unless the actual value of the goods at the time of the demand made was adopted as the rule to fix the meas- ure of damages. But though the court state the rule by which the damages are to be ascertained in strong and general terms, yet it does not embrace every case arising under the process of replevin ; and the case at bar is one of those which are to be excepted from its operation. The goods replevied consisted of house- hold furniture, horses, cattle, wagons, etc., which had been more or less used. At the time of the demand some of them had been sold, and others were deteriorated and much depreciated in value by further use. They were not all of them goods, like oil or other articles of merclian- dise, of a current market price ; and some having been sold, and otliers tlius deteriorated, the value at the time of the demand could not be as- certained ; nor would that value be the measure of damages without a proper allowance for the deprecia- tion, which, under the circumstances of this case, could not be computed upon anj accurate data. The only mode, therefore, to give the plaintiff the indemnity to which he is entitled is to take the estimate of the value as set out in the replevin bond. To this is to be added six per cent on such value from the time of the judgment in the action of replevin. It not suffi- ciently appearing but tliat the plaint- iff might have had his writ of return immediatel}', or have i)ut his bond in suit, he is not entitled to the penal damages since that time." But see West V. Caldwell, 23 N. J. L. 736. 1 Tuck V. Moses, 58 Me. 461. ■^ Single V. Schneider, 30 Wis. 570 ; Hungerford v. Redford, 29 Wis. 345; Herdic v. Young, 55 Pa. St. 176. 1084 BONDS AND PENAL OBLIGATIONS. [§ 505. is incompetent as against the sureties. Tiieir liability must be established by evidence known to the common law.^ § 505. Damai^es recoverable. Exclusive of the value of the goods, in default of or in place of a return, the damages secured by the bond ordinarily consist of interest upon the money value of the goods, if fixed at the time of the taking, computed up to the time of the verdict, and in addition any special damage shown to result directly from the taking.^ The expenses actually incurred in procuring teams and appurte- nances for the purpose of removing the property, which were rendered useless by the wrongful suing out of the replevin, may be included in such damages.' The costs of the defendant in the replevin suit for which he is liable may be recovered,* but not those made by the other party .^ In Illinois there may be a recovery for attorneys' fees,^ and so in Alabama; ^ but it is otherwise in Indiana and Kentucky as to fees paid in [51] the suit on the bond and in the replevin action.^ There can be no recovery for time and money expended in procur- ing sureties or in attending the trial of the original action.^ The recovery cannot exceed the penalty of the bond,'" except in jurisdictions where interest may be recovered.'' If property which has been seized on an attachment against a third person is replevied the sureties' liability is not to be measured by the value of the interest of the attachment debtor for whose debt it was seized by the sheriff. The value of the property at the time it was replevied, limited by the debt still due on the attaching creditor's judgment and the penalty of the bond, i Jacobs V. Daugherty, 78 Texas, guson v. Briber, 24 id. 402 ; Hudson 682. V. Young, 25 id. 376; Garrett v. 2 Stevens v. Tuite, 104 Mass. 328; Logan, 19 id. 344; Foster v. Napier, Davis V. Crow, 7 Blackf. 129. 74 id. 393. 3 Washington Ice Co. v. Webster, « Davis v. Crow, 7 Blackf. 129 ; 62 Me. 341. Kenley v. Commonwealth, 6 B. Mon. •1 Kellar v. Carr, 119 Ind. 127 ; Mor- 583. rill V. Daniel, 47 Ark. 316 ; Mills v. » id. ; Foster v. Napier, 74 Ala. 393. Hackett, 65 Texas, 580; Carlon v. lo Kellar v, Carr, 119 Ind. 127; Dalby Dixon, 14 Ore. 293. v. Campbell, 20 111. App. 502. See 5 Kellar v. Carr, 119 Ind. 127. ch. 9, vol. 1. ^Dalby v. Campbell, 26 111. App. n Carlon v. Dixon, 14 Ore. 293; 502. g§ 477, 478. - Miller v. Garrett, 35 Ala. 96 ; Fer- § 506.] EEPLEVIN BONDS. 10S5 are the elements to determine the damages in the suit on tho bond.^ § 506. Effect of the jiidjjnient in roploviii suit. As has been stated, in many states the bond or undertaking is condi- tioned for the payment of any judgment which the defendant may recover against the plaintiff in the action of replevin. The obligors in such a bond contract specially in reference to a judgment in that action, and nothing short of full satisfac- tion of the judgment against the principal will satisfy it.- If there is an assessment of damages in the replevin suit, it con- stitutes, with the costs adjudged therein, a substantive item to be recovered in the action on the bond, and interest thereon will be computed from the date of that judgment.' Under a bond conditioned to abide by the judgment of the court the sureties are bound by a jiulgment confessed by their principal without their kncvvledge, no fraud or collusion being shown, and nothing; being; confessed outside the indebtedness involved in the replevin suit.* "When the right of property is put in issue, and determined by final judgment, it is res judicata, and cannot, on general principles, be again inquired into be- tween the same parties. And the sureties in the bond are also concluded by it when their obligation is to return the property if it is so adjudged, and to pay any judgment recov- ered. If, however, the right has not been tried, nor the value adjudged to the defendant, the extent of his interest and the amount he is entitled to recover on account of it are, of course, open questions in an action on the bond.'^ The sureties are 1 Sweeney v. Lomme, 23 Wall. 208. St. Paul F. & M. Co., 33 Minn. 253 ; 2 Hicks V. McBiide, 3 Phila. (Pa.) Woods v. Kessler, 93 Ind. 356 ; Wal- 377. lace v. Clark, 7 Blackf. 298. 3 Swift V. Barnes, 16 Pick. 194; In Warner v. Matthews, 18 111. 83, Hopkins v. Ladd, 35 111. 178; Cald- Skinner, J., thus discusses the effect well V. West, 21 N. J. L. 411 ; Wash- of judgment for tlie defendant in re- ington Ice Co. v. Webster, 62 Me. plevin, rendered on the trial of an 341; S. C, 125 U. S. 426; Leighton issue denying the plaintiff's title: V. Brown, 98 Mass. 515; Mattoon v. "The judgment in the action of re- Pearce, 12 Mass. 406; Ormsbee v. plevin necessarily determined that Davis, 18 Conn. 555. the plaintiff in that (the defendant * Bradford v. Fi-ederick, 101 Pa. St. in this action) was not entitled to tho 445. possession of the property, and that 5 Smith V. Mosby, 98 Ind. 445 ; ^Mc- the defendant in that action (the Fadden v. Ross, 108 id. 512 ; Boom v. plaintiff in this action) was entitled 1086 BONDS AND PENAL OBLIGATIONS. L§ 507. represented in the replevin suit by the plaintiff therein. If the question of the value of the property was essential to the verdict they are bound by the finding, although no formal [52] issue was made concerning it.' A judgment for return, even upon a nonsuit not complied with, will sustain an action on the bond for at least nominal damages; for to that extent it is imperative and conclusive.^ § 507. What may be shown in defense. And where a judgment for the value in lieu of a return, by the election of the defendant, is regularly taken; or in the alternative in case return cannot be had, it is absolute, whether rendered on the merits or not.' But a mere judgment for return without the trial of an issue of such scope as to embrace a determination of the extent or value of the defendant's interest will not pre- clude inquiry upon that subject in an action on the bond. In the suit thereon the obligors may avail themselves of any fact which the plaintiff in replevin is not estopped by the judg- ment therein from setting up, in order to limit the sum for which recovery shall be had.* The fact that the replevin suit to a return thereof; and to that ex- tent, and no further, are the rights of the parties concerning the prop- erty, and the ownership thereof, con- clusively adjudged and determined. Whatever was in issue in that action, and essential to be found to author- ize the judgment, and was in fact determined as between the parties, is res judicata and conclusive upon them. The defendant in that action was entitled to judgment upon either of the issues asserting property in himself, and denying the plaintiff's right ; and to prove these issues on the part of the defendant it was only necessary to show that the plaintiff had not tlie right of posses- sion, or that the defendant had a special interest in the property en- titling him to the present possession. The general ownership of the prop- erty was not therefore necessarily determined. Anderson v. Talcott, 6 111. 365; King v, Ramsey, 13 111. 619; 1 Greenlf. Ev., § 333." Hawley v. Warner, 13 Iowa, 43. 1 Washington Ice Co. v. Webster, 125 U. S. 436. 2 Buck V. Rhodes, 11 Iowa, 348; Hayden v. Anderson, 17 id. 158. 3 Id. ; Davis v. Harding. 3 Allen, 303 ; Williams v. Vail, 9 Mich. 163 ; Ryan v, Akeley, 48 id. 316 ; Pearl v. Garlock, 61 id. 419. * Leonard v. Whitney, 109 Mass. 865 ; Denny v. Reynolds, 34 Ind. 348 ; Wallace v. Clark, 7 Blackf. 298 ; Mc- Kelvey v. McLean, 34 Up. Can. C. P. 685 ; Walter v. Warfield, 3 Gill. 316 ; Mason v. Sumner, 83 Md. 318 ; Orras- bee V. Davis, 18 Conn. 555 ; Pacaud V. McEwan, 31 Up. Can. Q. B. 328; Stockwell V. Byrne, 38 Ind. 6; Belt V. Worthington, 3 Gill & J. 853; Dugan V. Tyson, 6 id. 458; Cumber- land Coal Co. V. Tilghman, 13 Md. 74. 507.] EEPLEVIN BONDS. 1087 was defeated because prematurely brought;^ tliat tlie plaintiff is mere trustee, representing claims not sufficient to absorb the entire value ;^ that he lias been fully compensated for the value of the property;^ that since the taking under the writ plaintiff's interest in the property has been extinguished in whole or in part;^ that it has been delivered and accepted pending the suit; ^ that a substantial portion of the property has been tendered in the same condition in which it was when the writ issued;** that the sureties hold a mortgage upon it;^ that the defendant has the title to the property, when the de- cision of that question was not involved in the replevin suit,^ or any other fact which would show that the replevin was de- feated on some technical ground, or that the defendant had but a temporary or partial right, may be shown, and the [53] amount recoverable for the value will be limited accordingly.^ 1 Davis V. Harding, 3 Allen, 302 ; Martin v, Bailey, 1 id. 381. 2 Howe V. Handley, 28 Me. 241. 3 Vintou V. Mansfield, 48 Conn. 474. 4 Tuck V. Moses, 58 Me. 462. Under the Illinois statute the prin- cipal in the bond can only prove property in himself in mitigation of the damages. Holler v. Coleson, 23 111. App. 324. -' Conroy v. Flint, 5 Cat 327. 6 Harts T. Wendell, 26 111. App. 274. "^ Ringgenberg v. Hartman, 124 Ind. 186; McFadden v. Ross, 108 id. 512; Henry v. Ferguson, 55 Mich. 399. 8 Jones V. Smith, 79 Me. 452; Crabbs v. Koontz, 69 Md. 59 ; Pearl V. Garlock, 61 Mich. 419; Ernst v. Hogue, 86 Ala. 502, 9 Simpson v, McFarland, 18 Pick. 427; Wheeler v. Train, 4 id. 168; Flagg V. Tyler, 6 Mass. 33 ; Mattoon v. Pearce, 12 id. 406; Bartlett v. Kid- der, 14 Gray, 449 ; Ware River R v. Vibbard, 114 Mass. 458; Leonard v. Whitney, 109 id. 265 : Witham v. Wit- ham, 57 Me. 447 ; Walter v. Warfield, 2 Gill, 216; Hacker v. Johnson, 66 Me. 21 ; Hayden v. Anderson, 17 Iowa, 158; Fitzhugh v. Wiman, 9 N. Y. 559; Russell v. Butterfield, 21 Wend. 30; De Witt v. Morris, 13 id. 496 ; Wallace v. Clark, 7 Blackf. 298 ; Jackson v. Bry, 3 III. App. 586; Dehler v. Held, 50 111. 491. In Mason v. Sumner, 22 Md. 312, Bowie, C. J., said: "The first and second exceptions raise the question of how far the judgment in the ac- tion of replevin concludes the obli- gors in the bond. The appellant contends that wherever the title to property is in issue, or might have been in issue, in the original pro- ceedings, that question becomes res adjtidicata, and cannot afterwards, in any subsequent proceedings, be inquired into ; lie assimilates this to a case of set. fa., -where any defense which might have been pleaded to the original action cannot be set up against the sci. fa. In the case of Belt v. Worthington, 3 Gill & J. 252. Archer, J., declared that ' the object of the law in prescribing that a re- plevin bond shall be entered into by a plaintiff before he sliould have the benefit of the writ was only to give indemnity to the defendant. If, in truth, he had no right to the prop- loss BOXDS AND PENAL OBLIGATIONS. [§ 507. In some jurisdictions the sureties may take advantage of the neglect of the court to render the alternative judgment re- quired by the statutes for a return of the property or its value erty at the time of the institution of the suit, the rejection of the evi- dence, by putting it in his power to recover the vahie of the goods, would enable him to overreach a just measure of indemnity, and inflict a penalty which the law never con- templated.' Repudiating the analo- gies sought to be established in that case to judgments by default in ac- tions on appeal bonds and money contracts, he said the action of re- plevin was 'sui generis, — the recov- ery on the replevm bond ought to be moulded in such manner as will best subserve the principles of justice. . . . The question (of the admissi- bility of evidence) must always be regulated by reference to the rights decided in the action and the nature and character of the bond.' In this case the obligors in the replevin were permitted, after nonsuit in re- plevin and judgment by default on the bond, to show, in mitigation of damages, that they had title to the articles replevied. The same general principle is announced by Stephen, J., in the case of Dugan V. Tyson, 6 G. & J. 458. This prin- ciple is exemplified most strongly in the case of Walter, for use of Walter, v. Warheld et al., 2 Gill, 216, where, after judgment upon verdict rendered on pleas of non cepit, and property in the defendant, and judg- ment for return of the px'operty in the action of replevin, upon an ac- tion on the replevin bond against the obligors, the plaintiffs in the action of replevin, as defendants in the ac- tion on the bond, were permitted to show in mitigation of damages that the property was not in the defend- ant in the first action and plaintiff in the second. This case was argued before Archer, Dorsey, Chambers and Spence, JJ., and affirmed without dissent. In the more recent case of the Cumberland Coal Co. v. Tilgh- man, 13 Md. 74, the same doctrine is forcibly expressed. The theory of the action of replevin is thus defined by the learned judge, who, delivering the opinion of the court in this case, says : ' In this state the action is most generally resorted to for tlie purpose of trying the right of possession at the time of issuing the writ, and not to determine necessarily the absolute title to the property for all time. And this being so, it follows that if the plaintiff at the time of bringing the suit has the right to the posses- sion, he must succeed ; or, if he have it not, that his action must be de- feated. Whoever is entitled to the possession, whatever may be his title in other respects, may maintain or defeat the action of replevin. His right to success in the action of re- plevin depending entirely on his right of possession, in reason it follows that his title to damages must be confined to the extent of interference with that possession. If the right to pos- session covers all time, or is limited to a determinate period, the damages will be accordingly graduated, as the case may be. In the case now before this court, the effort on the part of the defendants was to show, as al- leged by them, in mitigation of dam- ages, title in the Cumberland Coal & Iron Co. Now, this they could not do because that question was decided in the replevin suit. It was, how- ever, competent to them to show that, although the defendant in the replevin suit had title to the posses- 507.] KEPLEVIN BONDS. 1089 if a return cannot be liad.^ There can be no recovery for a failure to return witliout proof of a judgment awarding it;- not withstanding the attorneys of the parties stipulate that the property cannot be returned, the sureties may show the contrary.' The rule established by the supreme court of the United States precludes the sureties from taking advantage of the omission of the trial court to render an alternative sion of the boat at the time of the judgment rendered in his favor, yet that title was of but short duration, and terminated by contract in a short time after that judgment. No such evidence was offered to the court be- low.' It is obvious from the theory and illustration given in the above extract that the judgment in re- plevin does not conclude the obligors in the bond from proving by the pro- ceedings in the cause, or aliunde, the character of the possessory right upon which the plamtiffs in the ac- tion on the bond recovered in the re- plevin suit. If from these it appears that the relation between the parties to the action in rejjlevin was that of landlord and tenant, cultivating or renting on shares, and that the sub- ject of replevin was the crop then growing upon the farm of the land- lord, such evidence shows a qualified l)roperty, or joint right of possession, which would defeat the action of re- plevin by the tenant, and at the same time diminish the claim of damages on the part of the landlord founded on his prima facie right to the value of the appraisement, showing that he was entitled to but a moiety of the same. Such evidence was proper to rebut the 'prima facie' case of the plaintiff on the bond. His right to damages must be confined to the extent of his ownership over the property replevied. If as joint owner of the property he was enti- tled to such possession as precluded his tenant from replevying, and se- VOL. 11 — 69 cured him a judgment of retorno habendo, yet his title was not so ab- solute and entire as to entitle him to recover of the principal and surety the full value of the property, or more than the value of his share of the crops. If we are correct in these premises, it necessarily follows that the prayer offered on the part of the appellant was not proper, since it re- quired the court to instruct the jury that the appraisement was the meas- ure of damages ; this, we have seen, was but prima facie evidence, sub- ject to be rebutted by such testi- mony as was offered on the part of the appellee." In Smith v. Lisher, 23 Ind. 500, the proceedings in the action of replevin were put in evidence, and in that ac- tion the court found " the property mentioned in said complaint and writ of replevin in said defendant, and that he have possession thereof ; " and it was held that the finding and judgment was conclusive between the parties to the suit on the bond as to the right of property, and pre- cluded any proof of title thereto in a stranger in mitigation ; but in Stock- well V. Byrne, 23 Ind. 6, it was held that, if the title was not tried in the replevin suit, title in a stranger may be shown to reduce the i-ecovery to nominal damages. 1 Lee V. Hastings, 13 Neb. 508. - Vinyard v. Barnes, 124 111. 346 ; Thomas v. Irwin, 90 Ind. 557. 3 Lee V. Hastings, 13 Neb. 508. 1090 BOXDS AND PENAL OBLIGATIONS. [§ 508. judgment.^ They are not bound for any liability of their prin- cipal not involved in the replevin suit ; ^ nor for the damages sustained by one who has been substituted as defendant in his stead.' If such suit is dismissed as to one of the defend- ants and proceeds to judgment against the other the sureties are released.^ In an action for the equitable reduction of damages on a replevin bond given by one partner who has taken from his copartner some of the firm property, the rule is full indem- nity for the obligee, and the obligor must establish not merely the apparent interest of the other in the property replevied upon a numerical division of it among the members of the firm, but go further and show that as between the obligee and himself the former will have had more of the property and funds of the firm than himself if full damages are given, or that the obligee is indebted to the firm, and his equitable interest in the property does not equal the value of that re- plevied and not returned.* [54] § 508. When plaintiif recovers as special owner. The cases in which a defendant in replevin will be limited to the value of his special interest are those in which the other party is the general owner or represents him, or has made [55] reparation to him.^ In replevin brought by a mere stranger to the title, who never had possession until he ob- tained it by the writ, on a judgment for return, or in an ac- tion on his bond for breach of the condition to return the property, recovery may be had for its full value, although the party so recovering, as between him and the general owner, has but a possessory right.'' Where a bond in accord- 1 Sweeney v. Lomme, 23 Wall. 208. Epperly. 6 Ind. 468 ; Fitzhugh v. 2 Lee V. Hastings, 13 Neb. 508. Wiman, 9 N. Y. 559 ; Weaver v. 3 Vinton v. Mansfield, 48 Conn. 474. Darby, 42 Barb. 441 ; Buck v. Eem- But see Hanna v. International Pe- sen, 34 N. Y. 383. troleum Co., 23 Ohio St 622, stated ^ Russell v. Butterfield, 21 Wend. in note 1, next section. 30 ; First Nat. Bank v. Crowley, 24 * Tyler v. Davis, 63 Miss. 345. Mich. 492 ; Woodman v. Nottingham, 5 Clapham v. Crabtree, 72 Me. 473. 49 N. H. 387 ; Littlefield v. Bidde- 6 Atkins V. Moore, 82 IlL 240 ; ford, 29 Me. 310 ; Fallon v. Manning, Broad well v. Paradice, 81 id. 474; 35 Mo. 271 ; Frei v. Vogel, 40 Mo. 149 ; Dilworth v. McKelvey, 30 Mo. 149 ; White v. Webb, 15 Conn. 302 ; Inger- Rhoades v. Woods, 41 Barb. 471 ; Sea- soil v. Van Bokkelin, 7 Cow. 670 ; man v. Luce, 23 Barb. 240; Noble v. Green v. Clark, 12 N. Y. 343; Brizee § 508.] REPLEVIN BONDS. 1091 ance with the practice prescribed by statute is conditioned to return the property if adjudged, and to pay any judgment that the defendant may recover against the plaintiff in tlie re- plevin suit, it obviously extends and will be limited to such judgment as the statute then in force provides for. Then, [5G] if tlie statute gives a defendant who recovers judgment by nonsuit or discontinuance an absolute right to a return, or in lieu thereof, at his election, a judgment for the value, in ad- dition to damages for detention, the bond will cover any judgment recovered for the value, and especially if the statute provides that in a suit on the bond the amount for which judg- ment is recovered in replevin shall be the measure of damages, these cannot be reduced or increased by proof of any facts antecedent to the judgment.^ But if, under the code prac- tice, a judgment for return is rendered, and there is no ad- judication of the value to be paid or collected in case delivery of the property cannot be had, the obligee is, nevertheless, entitled to recover the value on the undertahino- or bond.- V. Maybee, 21 Wend. 144; Kennedy V. Whitwell, 4 Pick. 466 ; Van Baalen V. Dean, 3'7 Mich. 104; Stanley v, Gaylord, 1 Cush. 536; Farnham v. Moor, 21 Me. 508 ; Mattoon v. Pearce, 13 Mass. 406 ; Flagg v. Tyler, 6 id. 33. In Hanna v. International Petro- leum Co., 23 Ohio St. 622, it was held in replevin brought against a party having possession of the property as agent, that the principal might be substituted in his place without re- leasing the sureties in the replevin bond — that they stand bound for the indemnity of the new party equally as though he had been the original and only defendant — it is no preju- dice to the plaintiff in the replevin suit. Compare Walter v. Warfield, 2 Gill, 216; Vinton v. Mansfield, 48 Conn. 474 ; Tyler v. Davis, 68 Miss. 345, stated in last section. 1 Williams v. Vail, 9 Mich. 162. 2 Whitney v. Lehmer, 26 Ind. 503, In this case Frazer, J., said : "It is clearly not a void judgment; and the question is, what are the liabili- ties of the obligors in the replevin bond, who undertook that the plaint- iff in that suit would return the property if such a return should be adjudged, as it has been. Is the de- fendant in that suit precluded from recovering the actual damages which resulted to him merely because the jury in that case failed to find the value of the property? ... In the absence of any direct authority, the case must find its solution in such general rules of the law as seem to be applicable to it It will be no- ticed that the statute under exami- nation contains no negative words, nor does it purport to prescribe a mode by which a remedy may be ob- tained upon the bond, or the tribunal where that remedy shall be sought It does not even regulate the prac- tice in a suit upon the bond ; it is the practice in the replevin suit only which it prescribes. We have, then, a valid bond ; its conditions broken ; 1092 BONDS AND PENAL OBLIGATIONS. [§ 509. The condition is absolute to return the property, if adjudged, [57] and damages may be assessed on it unless it is satisfied by performance of other conditions. Where, however, a judgment regulated by the code is rendered absolutely for the value and not as an alternative, if delivery of the prop erty cannot be had the liability of the sureties for that judg- ment is not so clear.^ § 509. Bond hy defendant to retain the property. The defendant is permitted in many jurisdictions to prevent the delivery of replevied property to the plaintiff, by giving a bond substantially like that required of the latter, except the condition to prosecute the suit. The measure of damages, of what is the measure of damages for breach of the condition to return the property? The answer furnished in all the cases ever decided, when no statute interfered, is the value of the property at least ; this value to be shown as in ordinary cases involving an inquiry as to value. The case is not one where the statute creates a new right, giving a particular rem- edy therefor. In such a case the statutory remedy is the only one. But this is a right of action arising by the common law out of a breach of the contract; and if the statute gives a remedy without negative words, the common-law remedy still remams, and may be pursued at the plaintiff's option. An assessment of the value of the property in the re- plevin suit, and a judgment in the alternative for its return or its value, would, as evidence, undoubtedly have bound the parties upon the question of value, for the reason that it would have been a judicial de- termination of that question by a tribunal having that authority, put- ting it at rest forever. But it does not follow that the absence of such assessment and judgment shall have the practical effect of a finding and judgment that the property was of no value, or that no other tribunal shall examine the question. Com- mon justice, as well as reason, would be shocked by the announce- ment of such a doctrine. The stat- ute does not so declare, either in terms or by any implication which the recognized rules of construction will warrant. Grant that the plaint- iffs had the right to have the verdict of the jury which tried the replevin suit upon the question of the value of the property. They should have asserted the right, and failing to do so then, when they should have acted, shall they do so now when it is impossible for their adversary to obtain that verdict? Nor can the surety ... be deemed to be in any better position than his princi- pals. His liability is co-extensive with theirs. Nothing has been done to work his discharge, if it be con- ceded that his principals are yet bound." Yelton v. Slinkard, 85 Ind. 190; Sweeney v. Lorn me, 22 Wall. 208. 1 Gallarati v. Orser, 27 N. Y. 324 ; Ashley v. Peterson, 25 Wis. 621; Nickerson v. Cliatterton, 7 Cal. 568 ; Clary v. Rolland, 24 Cal. 147 ; Mason v. Richards, 12 Iowa, 74 ; Lomme v. Sweeney, 1 Mont. 584; Sweeney v. Lomme, 22 Wall 208. § 510.] ATTACHMENT AND FORTnCOMING BONDS. 1093 course, will be the same for breach of like conditions.^ The costs of the action of replevin cannot be recovered on this bond; 2 nor the damages to the property while in the defend- ant's possession, if accepted by the officer on the writ of re- turn, unless the bond is conditioned to pay any judgment recovered against the defendant, and a judgment is recovered for such damages.' If the defendant's undertakino: admits that the plaintiff has taken the property described in his affi- davit and requisition from his possession he cannot afterward deny that he had possession of such property or any part of it at the commencement of the action, or show that it was different or other property from that described.* The defend- ant cannot set up in defense of an action on his bond any issue which he could with reasonable diligence have set up or interposed in the replevin suit. It is a defense pro tanto if the property has been sold by a receiver and after the trial of such suit the plaintiff therein applied to the court for and received a portion of the proceeds of the sale, the remainder being held to abide the result of the action in which the re- ceiver was appointed,'* Section 6. attachment and forthcoming bonds. § 510. Attachment bonds. Attachment bonds and [58] undertakings are statutory obligations, differing somewhat in form in the several states, but not substantiallv in leg-al effect. They are generally conditioned that the obligors wiU pay all damages which the defendant in the suit may sustain by reason of the attachment, if the plaintiff shall fail to recover judgment, or because of the wrongful suing out of the writ. By " wrongful," as used in the statutes and in obligations made under them, is meant unjustly, injuriously, tortiously, in 1 In Tibbal v. Cahoon, 10 Watts, was held that the plaintiflC's sureties 232, the plaintiff gave bond with were liable for costs in the replevin surety to prosecute the suit to effect suit. and without delay, and to return the 2 Lutes v. Alpaugh, 23 N. J. L. 165. property if adjudged ; the defendant ^ Douglass v. Douglass, 21 Wall. 98. gave a counter bond, and retained ^ Martin v. Gilbert, 119 N. Y. 298; the property. Afterwards, arbitra- Diossy v. Morgan, 74 id. 11. tion awarded no cause of action. It * Boyd v. Huffaker, 39 Kan. 525. 1094 BONDS AND PENAL OBLIGATIONS. [§ 510. violation of right.^ The condition of the bond is violated if the causes alleged for attachment do not exist, although the party suing it out may have believed in their existence ; ^ but not if the alleged ground is true in fact, though the party who made the allegation had no knowledge of its truth." The principal and his sureties are liable for the wrongful suing out of an attachment by an agent, though it was done without directions.* If an attachment is dissolved after notice and hearing because the allegations in the affidavit were false and the case is not one in which the writ might issue, this is con- clusive in an action upon the bond that it was wrongfully ob- tained, the ruling not being reversed.^ If a suit is abandoned under circumstances which show that it was not instituted in good faith, the plaintiff is liable. " Suitors who try experi- ments without hope of success must take, the consequences. They cannot be considered in good faith." ^ If the issue in the attachment is disposed of without determining whether it was wrongfully obtained that question may be adjudicated in the suit on the bond.' A judgment in the original suit, fixing the damages, is not a condition precedent to an action against the sureties.^ It is held in Kentucky that mere failure to suc- ceed in the attachment suit will not forfeit the attachment bond, but it must be shown that it was wrongfully obtained ; that is, without just cause; and in case of a nonsuit or an abandonment of the suit this would not necessarily appear.® iRaver v. Webster, 3 Iowa, 503; Colliver, 75 Iowa, 559; Calhoun v. Smith V. Eakin, 3 Sneed (Tenn.), 456, Hannan, 87 Ala. 377. 463; Carothers v. Mcllhenny Co., 63 < Jackson v. Smith, 75 Ala. 97. Texas, 138; Woods v. Huffman, 64 SHoge v. Norton, 33 Kan. 374; id. 98. Trentman v. Wiley, 85 Ind. 33 ; There must be a debt due or to be- Sannes v. Ross, 105 id. 558 ; State v. come due, and the existence of one McKeon, 35 Mo. App. 667. of the statutory grounds for suing *'Littlejohn v. Wilcox, 3 La. Ann. out the writ. McLane v. Tighe, 89 630 ; Blum v. Gaines, 57 Texas, 135. Ala. 411 ; Bliss v. Heasty, 61 111. 338; ' Renkert v. Elliott, 11 Lea (Tenn.), Steen v. Ross, 33 Fla. 480 335. 2 Pollock V. Gantt, 69 Ala. 373; ^Boatwright v. Stewart, 37 Ark. City Nat Bank v. Jeffries, 73 id. 183 ; 614. Jackson V. Smith, 75 id. 97 ; Pettitv. sPettit v. Mercer, 8 B. Mon. 51; Mercer, 8 B. Mon. 51. But seeMahnke Cooper v. Hill's Adm'r, 3 Bush, 319. V. Damon, 3 Iowa, 107. See Young v. Broadbent. 33 Iowa, 539. 3 McCormick Harvesting M. Co. v. If plaintiff has a good cause of §§ 511, 512.] ATTACHMENT AND FOETHOOMING BONDS. 1095 §511. Who may sue. Under the federal statutes' the right of action in a hankrupt for the wrongful attachment of his chattels passes to his assignee so far as compensation is claimed for injuring, detaining or converting the property. The right to compensation for injury to the bankrupt's busi- ness, reputation and credit and to vindictive damages for ma- liciously suing out the attachment or abusively using the process remains in him. Hence separate actions may be main- tained ; the liability of the sureties being limited to the pen- alty of the bond.- A bond payable to a named defendant " et aV inures to the benefit of each and all of several defendants. If one alone is aggrieved he may sue in his own name or in the names of all for his use. The obligors are liable to each defendant severally if each has a several interest, and the sureties for each of their principals severally as well as jointly.' § 512. Damages recoverable. In the absence of statutes authorizing the recovery of exemplary damages the obligor and his sureties are not liable for anything beyond such actual damages as are the direct result of the attachment. The ques- tion of malice is not an issue. If an attachment has been ob- tained without just cause, the terms of the bond secure to the defendant all costs and damages that he has sustained in con- sequence thereof. The condition is satisfied and its terms substantially complied with, by awarding him damages ade- quate to the injury to the property attached and the loss aris- ing from the deprivation of its use, together with the [59] costs and actual expenses incurred. It is considered that the legislature did not intend to impose on the sureties in the bond a more extensive liability. The plaintiff is not bound to show malice, nor can the defendant rely for defense on prob- able cause.^ The actual damages have generally been stated to be the injury to the plaintiff by being deprived of the use of his property, or its loss, destruction or deterioration, to- action on which an attachment 2 Doll v. Cooper, 9 Lea (Tenn.), 576. might issue, a dissolution of the at- ^Renkert v. Elliott, 11 Lea, 235. tachment for some irregularity is See Watts v. Rice, 75 Ala. 289, stated not ground for recovering on the in § 513. bond under a statute which imposes * Goodbar v. Lindsley, 51 Ark. 380 ; liability for "improperly " suing out Marqueze v. Sontheimer, 59 Miss. the writ. Steen v. Ross, 23 Fla. 480. 430 ; McClendon v. Wells, 20 S. C. i§ 5046, R S. 514; Pettit v. Mercer, 8 B. Mon. 51. 1096 BONDS AND PENAL OBLIGATIONS. [§ 512. gether with the costs and expenses incurred by him in the defense of the suit.^ If property has been taken the owner is entitled to its fair cash value at the time it was taken with in- terest at the statutory rate ;-^ he is not bound by the price for which it was sold under an order of the court.^ Interest is not recoverable upon sucli value or upon the expenses incurred in the suit until the propert}'^ has been seized and liability for the expenses has attached/ If a fund deposited in bank is levied upon its owner is entitled to recover such sum as repre- sents the excess of interest which he could have obtained for it over the amount allowed by the bank holding the fund.^ If shares of stock are attached interest is recoverable on them, and also on dividends thereon subsequently declared, these being bound by the attachment.*^ The expense which the owner of horses incurs by hiring others to do the work of those taken from him in order that he may perform a contract previously entered into may be recovered ; and the recovery may be for such sum as the use of the property was worth to him though that is in excess of the market value.' If by rea- son of the attachment the owner of property is unable to dis- .pose of it, a depreciation of its value by reason of a change in the market is as much a ground of damage as though it re- sulted from any other cause.^ But it has been ruled in New York on an appeal from an order denying defendant's appli- cation for an increase in the amount of the undertaking, that where an attachment has been made upon stocks the fact that 1 Reidhar v. Berger, 8 B. Mon. 160 ; cupy it ; his removal to another home Pettit V. Mercer, id. 51 ; Campbell v. and the inconvenience resulting are Chamberlain, 10 Iowa, 337 ; Frankel the natural and proximate results of V. Stern, 44 Cal. 168 ; Bruce v. Cole- its seizure and elements of actual man, 1 Handy (Ohio), 515 ; Alexander damage. Blum v. Gaines, 57 Texas, V. Jacoby, 23 Ohio St. 358 ; Boatwright 135. V. Stewart, 37 Ark. 614 ; Lowenstein » Trentman v. Wiley, 85 Ind. 33. V. Monroe, 55 Iowa, 82; Sanford v. '•Id. Willetts, 29 Kan. 647; Marqueze v. 5 Northampton Nat. Bank v. Wylie, Sontheimer, 59 Miss. 430 ; Porter v. 52 Hun, 146. Knight, 63 Iowa, 365. 6 jacobus v. Monongahela Nat. 2 Porter v. Knight, 63 Iowa, 365. Bank, 35 Fed. Rep. 395. The damages for wrongfully se- ' State v. McKeon, 25 Mo. App. 667. questering a homestead are not con- « Fleming v. Bailey, 44 Miss. 132; fined to the value of the rent during Horn v. Bayard, 11 Rob. (La.) 259. the time its owner was unable to oc- 512.] ATTACHMENT AND FORTnCOMING BONDS. 1097 during the continuance of the suit the shares have depreciated in price does not render the sureties upon the undertaking liable for the loss.^ AVhere a stock of goods is attached dam- ages for interruption of the owner's business may be recovered, as well as reasonable costs and expenses incurred in procuring the discharge of the attachment and restoration of the prop- erty; but injury to the reputation of goods, caused by the levy of an attachment thereon, are too vague and uncertain to be capable of legitimate proof.^ But the Mississippi court has no doubt that it is proper to allow the damages proved to have arisen from a loss of business with respect to the goods seized, in so far as their seizure suspended business and caused a loss as to those goods.' Injury to the credit and re[)utation of [60] the party proceeded against by attachment has generally been held too remote and speculative ; * though it is otherwise in Nebraska and in Alabama, if the writ is sued out on alleirations of fraud.^ "Where malice is properly charged, however, such damao^es have been allowed.^ To enhance the damages it is 1 Miller v. Ferry, 50 Hun, 256. This case is based upon McBride v. Farm- ers' Branch Bank, .7 Abb. Pr. 347, in which an attachment was levied on money on deposit. The defendant made an unsuccessful defense, but did not pi'ocure a dissolution of the at- ,tachment by giving security, neither did he apply for an order directing the sheriff to collect the money. While the litigation was pending the holder of the fund failed. The attachment plaintiff was not liable for the loss. 2 0berne v. Gaylord, 13 111. App. 30, approving the text; Alexander v. Jacoby, 23 Ohio St. 358; Moore v. Schultz, 31 Md. 418. 3 Marqueze v. Sontheinier, 59 Miss. 430, 443. 4 Campbell v. Chamberlain, 10 Iowa, 337 ; Pettit v. Mercer, 8 B. Mon. 51 ; Heath v. Lent, 1 Cal. 410; Lowen- stein V. Monroe, 55 Iowa, 82 ; Oberue V. Gaylord, 13 111. App. 30 ; State v. Thomas, 19 Mo. 613; Holliday v. Cohen, 34 Ark. 707. In case of the stoppage of business the damages must be limited to the probable profits during the time it is suspended. Injury to credit and loss of prospective profits is too remote and speculative. Holliday v. Cohen, siipi-a. See Lawrence v. Hagerman, 56 111. 08. 5 Marx V. Leinkauff, 93 Ala. 453, 4G0 ; Meyer v. Fagan (Neb.), 51 N. W. Rep. 753. 6 Mayer v. Duke, 72 Texas, 445; Gfoldsmith v. Picard, 27 Ala. 142; Flouruoy v. Lyon, 70 id. 308 (although there was no levy) ; Donnell v. Jones, 11 id. 689. In Tennessee the recovery is to be had on the same principles as in the common-law action for malicious suits, modified by the nature of the case. The modification would be, in the case of a merchant, injury to his reputation and credit as a business man, and the wrong done by the wreck of his business caused by his being thrown into bankruptcy on a false 109S BONDS AND PENAL OBLIGATIONS. [§ 513. admissible to show that the property attached was designed for a special use which, being thwarted by the attachment, has been materially lessened in value.' Depreciation of the attached property while in the officer's hands is a legitimate subject of inquiry with a view to damages therefor j^ but only where it is personal. There can be no recovery for a depreci- ation of real estate while subject to the attachment.* This proposition is based upon the ground of remoteness of dam- age. It is very doubtful if it rests upon a tenable basis. § 513. Same sul)ject. As we have seen, there are cases which deny the riglit to recover damages on account of the loss of profits because they are too remote. On this theory it has been held that a plaintiff in a suit on the bond cannot prove that by reason of the attachment and the interruption of his business he lost advances which he had made and the opportunity to dispose of property which came to him as the result of the advances made to others.^ In a Kansas case^ a herd of cattle was attached and talvcn from the range where they had been kept and placed on another range. The jury found that by reason of the inferiority of the latter the cattle did not increase in weight as they should have done ; that they did not depreciate in value, but that they did not grow as they would if they had not been removed. Brewer, J., said : " It is a case of gain prevented rather than of loss sustained, and the questions are whether such gain prevented is proxi- mate and certain — directly the result of the removal and in- ferior care — and the amount thereof susceptible of reason- ably certain measurement. Both these questions the jury, by their verdict, answered in the affirmative, and we cannot say that the testimony did not fully warrant the answers. Of course, absolute certainty is not attainable, as in casting up the figures of an account; but nevertheless there are certain laws of feeding and growth, well understood among cattle men, and whose results work out with sufficient certainty for and unfounded claim, with perhaps ^frankel v. Stern, 44 Cal. 168; other elements, such as the costs of Meshke v. Van Doren, 16 Wis. 319 ; the wrongful suits. Doll v. Cooper, Fleming v. Bailey, 44 Miss. 132. 9 Lea, 576, 586. 3 Heath v. Lent, 1 Cal. 410. iKnapp V. Barnard, 78 Iowa, 347; * Pollock v. Gantt, 69 Ala. 373. Carpenter v. Stevenson, 6 Bush, 259. 5 Hoge v. Norton, 22 Kan. 374. § 514.] ATTACHMENT AND FORTHCOMINO BONDS. 1099 business calculations and judicial investigations. The raising of cattle for market has been an extensive and ofttimes prof- itable business in this state, and it would be strange if one could wrongfully take from the owner a herd of cattle, re- move them to a poorer range, feed them on inferior food, and so treat them that during the growing season they do not grow at all, and then at it^ end return them, saying, as did the unfaithful servant in the parable who returned the single talent without increase, ' Lo ! there thou hast that is thine,' and still be under no liability to respond in damages to such owner. We do not think the law is so deficient. It seems clear that the owner is damaged, that the damage may be de- termined to a reasonable certainty, and that the wrong-doer is bound to made orood the damao-es." The rule that consecutive wrongs done independently by different persons cannot be joined to increase the responsibil- ity of one wrong-doer a]>plies to an action on an attachment bond. Hence the defendant is not liable for injury resulting from the sale of the attachment defendant's property under executions levied by his creditors simultaneously with the former's attachment, although they were issued sooner than they would have been if the attachment had not been levied.^ The attachment defendant cannot recover damages which w^ould not have been sustained but for his own voluntary act.'^ Sureties are not bound beyond the letter of their contract ; hence if a bond is paj^able to a partnership in the firm name and conditioned to pay all such damages as they may sustain, there is no liability to one of the members of the firm for dam- ages resulting to him b}^ reason of the wrongful levy of the attachment on his individual property.' The usual bond does not hold the sureties responsible for the act of their principal in intervening after the levy and inducing the officer to sell the goods in unreasonabh' large quantities, thereby diminish- ing the sum realized.* § 514. Exemplary damages. The code of Alabama per- mits the recovery of vindictive damages on attachment bonds 1 Goodbar v. Lindsley, 51 Ark. 380 ; 3 Watts v. Rice, 75 Ala. 289. !Marqueze v. Sontheimer, 59 Miss. * Jefferson Co. Bank v. Eborn, 84 430 ; Blum v. Davis, 56 Texas, 423. Ala. 529. 2 Charles City P. & M. Co. v. Jones, 71 Iowa, 234. 1100 BONDS AND PENAL OBLIGATIQNS. [§ 514. where the attachments have been maliciously and wrongfully sued out. A case is within the statute if there is no reason- able foundation for believing that a statutory ground for the attachment exists, or if the process be sued out wantonly or recklessly without probable cause; or if it be resorted to in a mere race of diligence to obtain a first lien when no ground exists in fact, or is reasonably believed to exist.' But if one of the grounds for issuing an attachment exists exemplary damages cannot be recovered on account of the motive which prompted the plaintiff to issue it.^ If the elements of wrong and malice exist the attachment defendant may recover for injury to his feelings.^ Corporations are liable for the acts of their agents in maliciously obtaining attachments.* In lowa^ exemplary damages are recoverable if the attach- ment was sued out maliciously. To bring a case within this provision it must be shown that the writ was procured with- out reasonable ground to believe the truth of the matters stated in the affidavit, and with the intention, design or set purpose of injuring the defendant.^ Such damages are awarded in Tennessee. It is settled there " that all such dam- ages as might be recovered in an action on the case at com - mon law, as well as vindictive damages, in case the wrongful suing out the attachment was also malicious, are recoverable in the action on the bond." ^ Texas is, apparently, an excep- tion to the rule that vindictive damages are not recoverable unless authorized by statute. There, such damages are al- lowed to the extent of attorneys' fees and injury to credit.^ A principal is not responsible for the mahce of his agent in suing out an attachment unless he was the cause of or par- ticipated in it,^ or ratified his act with knowledge of facts showing the agent's state of mind.'** This question is discussed 1 City Nat. Bank v. Jeffries, 73 Ala. » Hughes v. Brooks, 36 Texas, 379 183. Wallace v. Finberg, 46 id. 47; 2 Id. Landes v. Eicbelberger, 2 Tex. Civ. 3 Id. Cas, 127 ; Schwartz v. Burton, 1 id. 698 ; * Jefferson Co. Bank v. Eborn, 84 Tj^nburg v. Cohen, 67 Texas, 220. Ala. 529. 9 Pollock v. Gautt, 69 Ala. 373 ; City 5 2 McClain^s Ann. Code, § 2961. Nat. Bank v. Jeffries, 73 id. 183 ; 6 Nordhaus v. Peterson, 54 Iowa, 68. Jackson v. Smith, 75 id. 97. 'Smith V. Story, 4 Humph. 172; lo Tynburg v. Cohen, 67 Texas, 220. Smith V. Eakin, 2 Sneed. 461 ; Doll V. Cooper, 9 Lea, 576, 585. § 515.] ATTACHMENT AND FOKTHCOMING BONDS. 1101 in the chapter on exemjjlary damages, as is also the advice of counsel as evidence to rebut the charge of malice.^ It is suffi- cient to add here that such advice must be given after a full and fair statement of the facts.- It is held in Iowa that the advice of an attorney not in actual practice, although he was a stockholder in the corporation which was plaintiff in the at- tachment proceedings, may be proven for what it is worth.' § 515. What may be shown in defense. If the attachment defendant has recovered against the plaintiff the general dam- ages arising from loss of credit, impaired reputation and in- jured feelings, he cannot subsequently sue on the bond to recover for the expense and loss of time in defending the at- tachment and the loss of or injury to the attached property.^ If the latter is taken out of the hands of the attachment de- fendant, and an action on the bond accrues, the obligors are jprima facie liable for its value.'^ The return of it, however, or its subsequent lawful seizure by the same officer on execu- tion or other authority against the owner, and its appropria- tion to pay his debt for which the officer was empowered to make seizure, will go in mitigation.^ Where the possession of the attachment defendant has not been disturbed, he is still entitled to recover on the bond for any intermeddling with it.'' Damages for being deprived of the use of property do not embrace consequential and secondary losses. Thus, where a lot of merchandise was levied on, but, on the failure of the case, restored, it was held in an action on the bond that a loss to the plaintiff resulting from the attachment on his license to vend goods, and the services of himself and wife during the pendency of the suit, should have been excluded from the con- sideration of the jury ; that the inquiry in regard to the in- jury which the part}^ sustained by being deprived of the [61] 1 Vol. 1, ch. 9. Jeffries, 73 Ala. 183 ; Boatwright v. 2 Porter v. Knight, 63 Iowa, 305. Stewart, 37 Ark. 614 ; Trentniau v. 3 Charles City P. & M. Co. v. Jones, Wiley, 85 Ind. 33 ; Empire Mill Co. 71 Iowa, 234. v. Lovell, 77 Iowa, 100 ; Mayer v. 4 Hall V. Forman. 82 Ky. 505. Duke, 72 Texas, 445. See Wanamaker 5 Dunning v. Humphrey, 24 Wend. v. Bowers, 36 Md. 42. 31. ^Dunning v. Humphrey, 24 Wend. 6Earle v. Spooner, 3 Denio, 246; 31. Compare Groat v. Gillespie, 25 Bennett v. Brown, 31 Barb. 158; Wend. 383. S. C, 20 N. Y. 99 ; City Nat. Bank v. 1102 BONDS AND PENAL OBLIGATIONS. [§ 51G. use of his property should be limited to the actual value of the use ; as, for example, the rent of the real estate, the hire or services of slaves, or the value of the use of any other species of property in itself productive. If not of that char- acter, the injur}^ from being deprived of the use should be re- stricted to interest upon the value.^ And where an attach- ment was levied upon a house Avhich was being taken to pieces for removal to and erection upon other premises, damages were not permitted to be recovered on the bond for injury to furniture by exposure in consequence of the plaintiff being prevented or delayed from rebuilding the house ; nor for the additional expense of reconstructing it. The value of the use, it was said, must be predicated upon the condition of the property when it was attached, and not upon what its condi- tion was before or what it was intended to be in the future.^ A very restricted rule of liability was here announced and ap- plied ; and it is certain that unless considerably expanded it would often prevent the recovery of reasonable and fair com- pensation. Suppose an important part of a mill to be de- tached for some temporary purpose, necessitating its stoppage and the work of all the laborers and all the other depend- encies ; and when it is about to be put in place again it is taken under an attachment ; is the value of its use to be es- timated according to its condition when attached, without regard to what it had been, or what it was intended to be in the future? §516. Costs and expenses; attorneys' fees. The costs and expenses of defending against the attachment, procuring its discharge, and the restoration of the property, may be re- covered as part of the damages on such a bond.' Such dam- iReidharv. Berger, 8 B. Mon. 160. Nortlirup v. Garrett, 17 Hun, 497; See Alexander v. Jacoby, 23 Ohio St. Raymond v. Green, 12 Neb. 215 ; 358. State v. Shobe, 23 Mo. App. 474 2 Plumb V. Woodmansee, 84 Iowa, (plaintiff's traveling expenses in at- 116. tending the attachment suit were 3 Dunning v. Humphrey, 24 Wend, allowed) ; State v. McHale, 16 id. 31 ; Groat v. Gillespie, 25 id. 383 ; 478 (cash paid for the examination Pettit V. Mercer, 8 B. Mon. 51 ; Bur- of defendant's books and for a tran- ton V. Smith, 49 Ala. 293 ; Alexander script of the record was allowed for ; V. Jacoby, 23 Ohio St. 358; Schuyler compensation for a stenographer's V. Sylvester, 28 N. J. L. 487 ; Bruce services was refused) ; Damron v. V. Coleman, 1 Handy (Ohio), 515 ; Sweetzer, 16 111. App. 339 ; Flournoy § 516.] ATTACHMENT AND FORTHCOMING BONDS. 1103 ages also include costs upon a certiorari on which a judgment for the plaintiff in the attachment was reversed.' The [62] right to recover for reasonable attorney fees paid or incurred in obtaining a discharge of the attachment rests upon the same principle as the other costs and expenses incurred for the same purpose.- In some jurisdictions, however, they are denied.^ As a rule the fees and other expenses incident to the defense of the principal suit on the merits are not recover- able.^ In Indiana if the action and the attachment have both V. Lyon, 70 Ala. 308 (if there was an actual levy) ; Dothard v. Sheid, 69 id. 135 (while such damages are the proximate, they are not the neces- sary, result of suing out the attach- ment, and therefore must be specially claimed). 1 Bennett v. Brown, 20 N. Y. 99 ; S. C, 31 Barb. 158. 2 Barton v. Smith, 49 Ala. 293 Northrup v. Garrett, 17 Hun, 497 Seay v. Greenwood, 21 Ala, 491 Swift V. Plessner, 39 Mich. 178 Ah Thaie v. Quan Wan, 3 Cal. 216 Prader v. Grim, 13 Cal. 585 ; Tyler v, Saflford, 31 Kan. 608; Higgins v, Mansfield, 63 Ala. 267. In this case it was held the reasonable amount paid or promised to be paid to attor- neys for defending the attachment suit, and the value of time lost, and expenses incurred in attending court for the trial, may be recovered in an action on the bond for the wrongful and vexatious suing out of the at- tachment. And also that damage resulting from the demoralization of the plaintiff's workmen while he was absent from his farm and procuring attorneys to defend the suit ; or from his being compelled to stop a double plow while he was absent, are too re- mote, and should not be estimated in fixing the value of the plainiff's serv- ices. Morris v. Price, 2 Blackf. 457 ; Plumb V. Woodmansee, 34 Iowa, 116. In Iowa attorneys' fees are expressly allowed by statute, where there was no reasonable cause to believe the ground upon which the writ was issued to be true. Behrens v. Mc- Kenzie, 23 Iowa, 333. They are lim- ited, however, to the services ren- dered in the auxiliary proceeding. Porter v. Knight, 63 id. 365. 3 Goodbar v. Lindsley, 51 Ark. 380 ; Littleton v. Frank, 2 Lea (Tenn.), 300. The federal courts usually deny such fees unless the law is settled otherwise by statute or the appellate court of the state in which they are held. Jacobus v. Monongahela Nat. Bank, 35 Fed. Rep. 395 ; Insurance Co. V. Conard, Baldwin, 138. In Pennsylvania the policy con- cerning such fees in other actions is so firmly established that it is rea- sonably certain they cannot be re- covered. Good V. My] in, 8 Pa. St. 51 ; Haverstick v. Gas Co., 29 id. 254 ; Stopp v. Smith, 71 id. 285. In Texas they are not recoverable when compensatory damages only are claimed ; they are allowed when exemplary damages are recovered, and are regarded as an element thereof. See cases cited in note 8, §514. *Adam v. Gomila, 37 La. Ann. 479 ; Damron v. Sweetzer, 16 111. App. 339; Northampton Nat. Bank v. Wylie, 52 Hun, 146; Flournoy v. Lyon, 70 Ala. 308 ; Frost v. Jordan, 1104 BONDS AND PENAL OBLIGATIONS. [§ 517. been defeated the reasonable attorneys' fees of the defendant in both may be recovered.^ And in Missouri if the attach- ment is not dissolved until final judgment upon the merits, and a contest upon them was necessary to procure its dissolu- tion, there may be a recovery of the whole costs and expenses.'^ Under a bond conditioned as the statute requires " to pay all costs that may be awarded to the defendant, and all damages that he may sustain by reason of the attachment," the sure- ties are liable for all costs awarded to the defendant in the action, and not merely such as resulted from the attachment.' § 517. Fortlicomin^ bouds. These are usually conditioned for the delivery of the property to the officer to satisfy the judgment or execution which the plaintiff in an attachment may obtain in the cause, or when and where the court may direct. Sometimes the alternative is embraced of the delivery of the property or the satisfaction of the judgment recovered.* The right of action is complete on the failure to deliver at the stipulated time,^ unless the property attached is in the hands of a third person and the bond is conditioned for its delivery " when and where the court shall direct ; " in which case an action cannot be begun until an order is made for its delivery." If the condition to return is unqualified the bond is not satis- fied by a tender of other property of the same kind and value, though that attached was perishable in its nature.^ The whole property released must be returned.^ If the condition is to deliver or pay the appraised value performance is not ex- cused by the accidental destruction of the property by fire originating through human agency, without the obligor's fault ;" but it is otherwise if delivery is prevented by an act of God.^" 37 Minn. 544 (although jurisdiction rison, 61 Miss. 67 (including attor- was obtained by attaching the prop- neys' fees). erty). * Drake on Attach., § 327. 1 Wilson V. Root, 43 Ind. 486. 5 Naynant v. Dodson, 12 Iowa, 22. '^ State V. McHale, 16 Mo. App. 478 ; 6 Brotherton v. Thomson, 11 Mo. 94. State V. Thomas, 19 Mo. 613 ; State v. ^ Pearce v, Maguire, 20 Atl. Rep. 98 Beldsraeier, 56 id. 226 ; State v. Stark, (R. I.). 75 id. 566. »> Metrovich v. Jovovich, 58 Cal. 3 Greaves v. Newport, 41 Minn. 341. 240 ; Lee v. Homer, 37 Hun, 634 ; *» Doggett v. Black, 40 Fed. Rep. Bing Gee v. Ah Jim, 7 Fed. Rep. 811 ; 439. S. C, 7 Sawyer, 117 ; Stauflfer v. Gar- lo Phillipi v. Capell, 38 Ala. 575 ; Haralson v. Walker, 23 Ark. 415. §§ 518, 510.] ATTACHMENT AXD FOIiTIICOMINO BONDS. 1105 A surety may exonerate himself by deliverinf,^ the property to the olKcer at an}'- time before judgment is rendered against him on the bond.' § 518. Measure of d amazes. The measure of damngos is the value of the property stipuhited to be forthcoming, with in- terest from the time delivery became due, not exceeding the amount of the judgment in the attachment suit.'* But this value should be computed subject to any paramount lien.^ [63] Where a seizure was made under an attachment of property upon which the party having it in possession had alien, and he procured a release of it by giving a forthcoming bond, it was held his lien was not thereby divested, and he was responsible on the bond only tor the balance that remained in his bands after paying himself.* If the value be stated in the bond it will be conclusive on the obligors; otherwise it must be proved.^ It is no defense that the property was not the de- fendant's.® The condition of the bond requires the property to be returned in such a state that it may be taken and dis- posed of in satisfaction of the judgment. A mere ])hysical return of it is not sullicient if it be incumbered after the exe- cution of the bond." § 519. Conditions to pay the judgmeut. A bond to satisfy the judgment is not discharged by a surrender of the property attached;^ nor by pointing out property of the judgment debtor from which the judgment could be collected, even though money to pay the expenses and charges of the proceed- ings is tendered.* It is no defense to show that the property attached did not then belong to the defendant ; '" or that it 1 Reagan v. Kitchen, 3 Martin, 418 ; * Canfield v. McLaughlin, supra. Hansford v. Perrin, 6 B. Mon. 595. 5 Moon v. Story, 2 B. Mon. 354; See Payne v. Joyner, 7 Ark. 463. Weed v. Dills, 34 Mo. 483. 2 Hammond v. Starr, 79 Cal. 556; egartin v. Weir, 3 Stew. & P. 421; Collins V. Mitchell, 3 Fla. 4 ; Moon v. Waterman v. Fiank, 21 Mo. 108 ; Story, 2 B. Mon. 354 ; Weed v. Dills, Gray v. McLeal, 17 111. 404 ; Dorr v. 34 Mo. 483; Jones v. Hays, 27 Tex. 1 ; Clark. 7 Mich. 310. Marshall v. Bailey, 27 Tex. 686 ; 7 Schuyler v. Sylvester, 28 N. J. L. Pearce v. Maguire, 20 Atl. Rep. 98 487. (R I.). See Anthony v. Comstock, ^ Dorr v. Kershaw, 18 La. 57. 1 R L 454. 9 Hill v. Merl. 10 La. 108. 3Hayman v. Hallam, 79 Ky. 389; lo Dorr v. Clark, 7 Mich. 310; Beal Canfield V. McLaughlin, 10 Martin, 48; v. Alexander, 1 Roh. (La.) 277; Ha- Metrovich v. Jovovich. 58 Cal. 341. zelrigg v. Donaldson, 2 Met (Ky.) 445. Vol. 11 — 70 1106 BONDS AND PENAL OBLIGATIONS. [§§ 520, 521. was not subject to attachment;* or was worth less than the judgment.^ The judgment is the measure of damages irre- spective of the value or the ownership of the property .^j Section 7. injunction bonds. [64] § 520. Scope of olbligatioii. These are statutory obli- gations, and though various in their phraseology have a gen- eral similarity of purpose and effect, binding the obligors to pay all such damages, or costs and damages, as the party enjoined shall sustain in consequence of the injunction if it shall be dis- solved, or if the court shall finally decide that the plaintiff was not entitled to it. "When an act'on accrues there is a right to damages, first, for costs and expenses incurred in de- fending against the Avrit and in procuring its dissolution; and second, for losses or injuries from its operation in respect to the subject to which it refers. Subject to an exception pres- ently to be noticed, the defendant's only remedy for damages resulting from the wrongful suing out of an injunction, unless the plaintiff obtained the writ mahciously or without prob- able cause, is an action upon the bond.* § 531. Power of a court of equity. After an injunction has been granted without requiring a bond or other undertak- ing, a court of equity has no power to award damages to the party injured thereby, except so far as it may do so by a de- cree awarding costs. Before the writ is granted a federal cir- cuit court, in the absence of any statutory or other authority except such as is inherent in a court of equity, may impose terms, and may relieve therefrom as the equities make it proper to do so. Whenever the question of the right to dam- ages arises under the order of the court, its action in passing upon it approaches so nearly to the exercise of discretion that it will not be reversed unless a clear showing is made.* The 1 McMillan v. Dana. 18 Cal. 339. Hayden v. Keith, 32 Minn. 277; St. 2 Phanstieshl v. Vandeihoof, 22 Louis v. St. Louis Gas Light Co., 82 Mich. 293. Mo. 349; Sturgis v. Knapp. 33 Vt. » Id. ; Morange v. Edwards, 1 E. D. 486 : Russell v. Farley, 105 U. S. 433 ; Smitli, 414. Palmer v. Foley, 71 N. Y. 100. * Law ton v. Green, 64 N. Y. 826 ; « Russell v. Farley, 105 U. S. 433. § 522.] INJUNCTION BONDS. 1107 obligation entered into under snch an order is not in the nat- ure of a contract with tlie oi)i)osite party, but between the obligor and the court.^ The right to damages does not de- pend at all upon the motive, suppression or default of the plaintiff, but solely on the fact that he was not entitled to the injunction.^ § 522. Right of action, when it arises. If the bond is Qonditioned to pay damages if it shall finally be decided that the injunction ought not to have been granted, an action on it is prematurely brought if there has not been a final determi- nation of the suit in w^hich the injunction was obtained,^ A dismissal of the petition for want of prosecution is a deter- mination to that effect.* If the injunction is dissolved after a hearing upon the pleadings and upon affidavits, and the action is subsequently dismissed for want of prosecution, the right to damages is perfected.^ And so where the dismissal is made at plaintiff's request, although without prejudice to a future action ;** and where the injunction has been dissolved and a demurrer to the complaint sustained on the ground that the latter did not state facts sufficient to constitute a cause of action ; ' and where an order is entered, by plaintiff's consent, vacating the injunction, and subsequently another order, pur- suant to his ex parte motion, is made discontinuing the action.^ But it is otherwise where the discontinuance of the suit is by agreement.^ The dissolution of the writ is prima facie evi- dence that the defendant has sustained damages, and is res judicata as to the issues raised.^" If it is wrongfully issued as to any part of the plaintiff's demand, and is partially dis- solved, to that extent the party enjoined will be entitled to 1 Smith V. Day, 31 Ch. Div, 431. 6 Mitchell v. Sullivan, 30 Kan. 331. 2 Griffith V. Blake, 27 Ch. Div. 474. 'Bennett v. Pardini, 03 Cal. 154; Jessel, M. R., expressed a contrarj' Fowler v. Frisbie, 37 id. 34. opinion in Smith v. Day, 21 id. 421; * Pacific Mail Steamship Co. v. Toel, Cotton, L. J., differed with him. 9 Daly, 301 ; S. C, 85 N. Y. 646. 3 Dougherty v. Dore, 63 Cal. 170 ; 9 Large v. Steer, 121 Pa. St 30 ; Gray v. Veirs, 33 Md. 159 ; Penny v. Palmer v. Foley, 71 N. Y. 106. Holberg, 53 Miss. 567 ; Bemis v. Gan- lo Lemeunier v. McClearley, 41 La. nett, 8 Neb. 336. Ann. 411 ; Schuyler Co. v. Donaldson, 4 Pugh's Adm'r v. White, 78 Ky. 9 Mo. App. 385 ; Rice v. Cook, 92 Cal. 210. 144 ; Fowler v. Frisbie, 37 id. 34 5 Kane v. Casgrain, 69 Wis. 430. IIOS BONDS AND PENAL OBLIGATIONS. [§§ 523, 524^. such damage?, within the limit of the penalty of the bond, as he has sustained.^ § 523. Mode of assessing damages. In so far as the mode of assessing damages upon injunction bonds is regulated by statutes or b}^ local rules of practice, the subject cannot be considered here. Mr. High gives a summary of the cases in several states in the last edition of his standard treatise on in- junctions.2 That author says there has been much conflict of authority whether, in the absence of express legislation, a court of general equity powers might, upon dissolving an in- junction, ascertain by reference or otherwise the amount of damages sustained by the injunction, and decree payment of such amount without a new suit for that purpose. But, while courts of much respectability hav^e insisted upon the exercise of such a jurisdiction, treating it as a cumulative remedy, en- tirely independent of and distinct from any action which might be brought upon the bond,^ the undoubted weight of authority and principle is against the exercise of such a juiis- diction.^ § 521. Costs and expenses ; attorneys' fees. In caces where the bond or undertaking embraces the payment of "costs," if the injunction be not sustained, taxable costs are meant, and they are necessarily a part of the damages by the very terms of the contract.^ They are also a part thereof when costs eo nomine are not provided for.^ And when the stipula- 1 Rice V. Cook, 92 Cal. 144 ; White Farley, 105 U. S. 433. And see, to V. Clay's Ex'rs, 7 Leigh, 68; Walker the same effect, Lea v. Deakin, 11 V. Pritchard, 135 111, 103. Compare Biss. 40. Eussell V. Farley, 105 U. S. 103. » Corcoran v. Judson, 24 N. Y. 106 ; 2 Vol. 2 (3d ed.), § 1657. Derry Bank v. Heath, 45 N. H. 524 ; sSturgis V. Knapp, 33 Vt 486; Ed- Troxell v. Haynes, 49 How. Pr. 517; wards v. Pope, 4 111. 465. See Rob- S. C, 16 Abb. Pr. (N. S.) 1 ; Moore v. erts V. Durst, 4 Ohio St. 502. Harton, 1 Port. 15. 4 Phelps V. Foster, 18 111. 309; Mer- « Id. ; Edwards v. Bodine, 11 Paige, ryfield v. Jones, 2 Curt. C. C. 306; 223: Coates v. Coates, 1 Duer, (J64; Garcie v. Sheldon. 3 Barb. 232 ; Law- Aldrich v. Reynolds, 1 Barb. Ch. 613 ; ton V. Green, 64 N. Y. 326; Bain v. Andrews v. Glenville Woolen Co., 50 Heath, 12 How. 168; Easton v. New N. Y. 282; Hovey v. Rubber Tip Carty enjoined recovered also the expenses of an unsuccessful motion to dissolve; and on this point Ra- pallo, J., said : " It (that motion) was not denied on the merits, nor for any irregularity in making the motion, but because the court in its discretion thought it more advisaljle to defer the inquiry into the merits until the final hearing. It Avas proper that the defendant should move at the earliest [69] opportunity to dissolve the injunction. His motion did not fail through any fault on his part, or any defect in tlie merits of his case. The court simply deferred its decision upon the merits until the trial. The result, which, for the purposes of this application, may be assumed to be correct, shows that if the decision had not been thus deferred the motion should have been granted when made." Those expenses w^ere allowed under these exceptional circumstances; for, as Church, C. J., remarked in a subsequent case,' " a motion had been made to dissolve the injunction, which w^as denied upon the ground that, as the motion involved the whole merits of the action which was brought to secure a permanent injunction, it was more appropriate that it should be determined upon a trial. The defendant was therefore compelled to go to trial to secure a decision that the party was not entitled to the injunction in order to recover the damages wliich he had sustained in endeavoring to procure a dissolution.'- ^ Generally the costs and expenses of an unsuccessful application to dissolve will not be allowed though the motion is regular, and the court in its discretion continues the injunction to the final hearing, and then dissolves it on the merits.* This is the rule where a gross sum was paid as counsel fees, no separate charge be- ing made for a futile attempt to procure a dissolution.^ Not only are the costs and expenses incurred directly to obtain dissolution of the injunction allowed as damages, but also those which are incident to executing the references that courts of equity in many jurisdictions direct under local stat- lAndrews v. Glenville Woolen Co., in Troxell v. Haynes, 16 Abb. (N. S.) 50 N. Y, 282. 1 ; Langworthy v. McKelvey, 25 -' Hovey v. Rubber Tip P. Co., 50 Iowa, 48. N. Y. 335. ■* Allen v. Brown, 5 Lans. 511. 3 See comments on the same case ^ Mitchell v. Hawley, 79 Cal. 301. 1114 BONDS AND PENAL OBLIGATIONS. [§ 526. utes or rules of practice to ascertain the damages sustained by the enjoined party in consequence of the injunction.' § S'^G. Damages from restraint of injunction. The dam- ages whicli the enjoined party may be entitled to for losses and injuries sustained by the operation of the writ are as various as the subjects which may be affected by its restraint. These damages, however, are ascertained and measured by the principle of giving just and adequate compensation for actual [70] loss, which is the natural and proximate result of the in- junction.- The damages contemphited b}^ the law in requir- ing a bond are such as are real; merely nominal damages cannot be recovered.* The sum designated is the limit of lia- bilit}'',* except where interest is allowed from the time of the breach.^ Bonds are not to be extended in their operation by liberal construction. If, however, their terms are clear they will be given effect to, though by so doing the obligors are made liable for damages sustained before they executed their obligation." The liabilitv of the sureties is confined to re- sponsibility for the direct effects of the injunction. Illustra- tions of this have been given in stating the rule concerning attorneys' fees. The importance of the question merits further consideration. If two persons are enjoined one of them cannot recover on the bond because of the inabilit}'' of the other to fulfill a pre-existing contract between them, though but for the injunction there might have been no de- fault.*^ The defendant cannot recover damages caused by a lessee refusing to abide by the terms of his lease because of consequences following an injunction. In a recent case the 1 Holcomb V. Rice, 119 N. Y. 598; stances. Conery v. Coons, 33 La Lawton v. Green, 64 id. 326 ; Aldrich Ann. 373. V. Reynolds, 1 Barb. Ch. 613: Rose v. 3 Foster v. Stafford Nat. Bnnk, 58 Post, 56 N. Y. 603; Ryan v. Ander- Vt. 658; Smith v. Day, 21 Cli. Div. son, 24 111. 652. 421. 2 Bullock V. Ferguson. 30 Ala. 227 ; * Pacific Mail Steamship Co. v. Collins V. Sinclair, 51 111. 328 ; Hale Toel, 9 Daly. 34)1 ; Glover v. McGaf- V. Meegan, 39 Mo. 273 ; Brown v. fey. 56 Vt. 294. Tyler, 34 Tex. 168; Moulton v. Rich- 5 Perry v. Horn, 23 W. Va. 381. ardsou, 49 N. H. 75 ; Hurd v. Trim- See vol. 1, g 331 ; vol. 2. §g 477, 478. ble, 1 Litt. 413; Galveston, etc. Ry. 6 Meyers v. Block, 120 U. S. 206; Co. V. Ware, 74 Texas, 47. Block v. Myers, 35 La. Ann. 220 ; In Louisiana punitive damages Goodrich v, Foster, 131 Mass. 217. are recoverable under some circum- ? Livingston v. Exum, 19 S. C. 223. § 526.] INJUNCTION BONOa. 1115 erection of a birkling was restrained. The owner sought to recover damages on the ground that he thereby lost a tenant. The court thought that no binding lease had been entered into; but nevertheless considered the case as if it were other- wise. Jessel, M. R, was of the opinion that the damage was the difference between the rent agreed to be paid by the lessee and the value of the expectation of rent to be received from some other tenant. "Is that a kind of damage as to which the court should direct an inquiry? It seems to me that it is not." Brett, L. J., said : " If damages are granted at all, I think the court would never go beyond what would be given if there were an analogous contract with or duty to the opposite party. The rides as to damages are shown in Iladley v. Baxendale.' If the injunction had been obtained fraudulently or maliciously, the court, I think, would act by analogy to the rule in case of fraudulent or malicious breach of contract, and not confine itself to proximate damages, Ijut give exemplary damages. In the present case there is no ground for allet>-ing fraud or malice. The case then is to be governed by analogy to the ordinary breach of contract or duty, and in such a case the damages to be allowed are tlie proximate and natural damages arising from such a breach, unless, as in Iladley v. Baxendale, notice had been given to the opposite party of there being some particular contract which would be affected by the breach. This doctrine of notice has introduced some difficulty into these cases, and it is not set- tled what sort of notice is sufficient. Here an alleo:ed ao-ree- ment for a lease is relied on. In the first place I do not think the existence of such agreement proved. If it did exist, the next question is, whether the injunction so interfered with the erection of the buiklings as to entitle the tenant to throw up the agreement. I am not satisfied that it did. But as- sume that it did, and that the agreement was broken in conse- quenco of the injunction, still I agree with the vice-chancellor in thinking that the breach is not by reason of the injunc- tion, but is a consequence too remote to be regarded. If any one obtains an injunction preventing another from proceeding with a building, he must be taken to have notice of every- thing in the building contract, and all liabilities which the 1 9 Exch. 341. 1116 BONDS AND PENAL OBLIGATIONS. [§ 527. person stopped incurs to his contractor by reason of the stop- page are a natural and immediate consequence of tlae injunc- tion. But the fact that the injunction prevents the carrying out of an entirely independent agreement as to the property is too remote." Cotton, L. J., was of tiie same opinion.' There can be no recovery for the mental strain and anxiety resulting from an injunction,^ § 527. Same subject. If the restraint keeps the ownei of property out of possession or deprives him of its use, compen- sation is given upon the same principle as in other cases of wrongful deprivation,^ Where a party was prevented from enjoying the benefit of his real estate by an injunction ob- tained without cause, the value of the use and occupation was given as damages.* In a recent case the court announced that in awarding damages for depriving the person entitled thereto of the use of his land equitable principles would control. The award made included damages for the loss of the crop,^ There may also be a recovery for waste committed while the owner is kept out of possession," But an injunction interfering with the collection of rents due does not change the legal relation of landlord and tenant so as to entitle the former to recover for use and occupation ; the true basis of recovery is the losses from the insolvency of the tenants during the pendency of the injunction. In a case where a landlord was restrained from interfering with the possession of real estate occupied by ten- ants, it was held that the inquiry of damages should be, what rent has the defendant lost by reason of the injunction? If the tenants were and are still responsible, then their covenant can be enforced and the rent recovered, and there would be no actual loss. If, however, they have become irresponsible or have abandoned the premises pending the injunction, or the premises, or any part of them, were unoccupied and might have been rented, there may be a claim for the loss of rent. In short, ' Smith V. Day, 21 Cli, Div, 421. damages were assessed and distrib- -Cook V. Chapman, 41 N. J. Eq. uted upon pecuUar facts ; also John- 102, son V, Moser, 72 Iowa, 654. 3 See Dreyfus v. Peruvian Guano ^Rice v. Cook, 92 Cal. 144; Ed- Co., 42 Ch. Div, 66. wards v, Edwards, 31 III, 474 ; Rich- * Rutherford v. Mason, 24 Ind, 311 ; ardson v, Allen, 74 Ga. 719. Fleming v. Bailey, 44 Miss, 132, See « Richardson v. Allen, 74 Ga. 719. Sturges V. Knapp, 36 Vt 439, where § 527.] INJUNCTION BONDS. 1117 the loss must be ascertained in view of the responsibility of the parties and their several remedies; and also in view of the condition of the premises and the landlord's ability to have leased them or collected rent while the injunction continued, which he is unable now to do by reason of the irresponsibility of the tenants or by reason of the premises being unoccupied ; for such items the defendants should recover as tlie legitimate damages sustained by reason of the injunction. If the ])laint- iff, pending the action, collected any rent of the tenants, the amount will form part of the damages.^ Where the injunction prevented the owner from clearing away certain timber [71] upon agricultural lands, the damages for the delay were held too remote and consequential.- A party so prevented from working on a lead mine, and thereby kept out of employment, was treated as having a just demand for damages on the basis of a loss of time to be comjiensated at the usual rate of wages.^ But in Nevada it was held that where an injunction was ob- tained to restrain a party from cutting and drawing wood, neither the loss occasioned by reason of his cattle or wagon being thrown out of employment, the expense of making a road which became useless, nor the injury to his credit could be taken into consideration.* Damages which result from a forced suspension of work and from the inability, as a result of the injunction, to take steps to protect the result of labor performed from injury by the elements are recoverable.* 1 Rosenthal v. Boaz, 27 111. App, which the mineral might have been 430 ; McDonald v. James, 47 How. sold was worth more than the legal Pr. 474. rate of interest should be rejected 2 McKenzie v. Mathews, 59 Mo. 99. as ideal and speculative ; and so, too, See Bullard v. Harkness (Iowa), 49 the proof of such subsequent discov- N. W. Rep. 855; Colby v. Meservey ery for the purpose of showing what (Iowa), 52 id. 499. the enjoined [)arties in the absence ^Muller V. Fern, 35 Iowa, 420. of theinjunction might have realized. 4 Brown V. Jones, 5 Nev. 374. Where the building of a private In Gear v. Shaw, 1 Pin. (Wis.) 608, road was enjoined, and after dissolu- an injunction was granted to restrain tion the work was prosecuted, it was parties from mining on a certain lot ; held that, had the road been finished some time after its dissolution a new after the removal of the injunction mineral discovery was made on the at an increased cost, such additional lot and a large quantity of ore was expense would have been a proper raised. In assessing da,mages on the subject of damages. Morgan v. Neg- injunction bond it was held that ley, 53 Pa. St. 153. proof for the purpose of enhancing * Dougherty v. Dore, 63 Cal. 170. damages that the use of the money for 1118 BONDS AND PEXAL OBLIGATIONS. [§ 527. If an owner is thus deprived of his personal property, he is jprhna facie entitled to recover its value; and this measure of redress has been allowed where the party obtaining the writ, daring its pendency, took possession of the property, destroyed its identity, and converted it to his own use.^ It may admit of some doubt whether the loss of the property in sucli a case proceeds from the injunction. The writ stayed the defendant, but it vested no possession or right of control in the plaintiff.^ [72] His seizure of the property was an independent tort, and not the natural and proximate consequence of the injunction except as the restraint prevented the owner from protecting it.' But it must be confessed that the ground of liability on the bond is stated with force and plausibility by Denio, C. J. : * " This seems to me a very plain case. The plaintiff claiming to be the owner of personal property lying on the defendants' land sued the defendants, who also claimed to own that per- sonal property, to establish his title, and he procured a pre- liminary injunction forbidding the defendants from asserting their alleged ownership, by suit in court or in any other way, pending the principal suit; but he was finally beaten, the court determining that the property belonged to the defend- ants and not to the plaintiff. In the meantime, while the de- fendants' hands were tied, the plaintiff carried off the property, destroyed its identity, and disposed of and converted its pro- ceeds to his own use ; and the question is, what damages the defendants have suffered in consequence of this proceeding of the plaintiff. The object and the effect of the judgment manifestly was to allow the plaintiff to carry off and dispose of the property while the defendants, who were, as the event has shown, its owners, were precluded from doing anything 1 Barton v. Fish, 30 N. Y. 166. further removal. The building was 2 la Patterson v. Kingsland, 8 subsequently blown down by the Blatchf. 278, P., a mortgagee of real wind. It was held that P. did not, estate, sued K. to recover damages by obtaining such injunction, take for the removal from the mortgaged control of the building so that he premises of a building which K had could be charged with its value erected thereon under an agreement where it then stood, nor was the ob- with the owner, and had removed ligation imposed on him to assume therefrom after the execution of the possession and replace it on the land, mortgage. When K had removed 3 See Ashley v. Harrison, 1 Esp. 48; the building to some distance, P. ob- Vickers v. Wilcocks, 8 East, 1. tained an injunction restraining its * Barton v. Fisii, 30 N. Y. 166. § 528.] INJUNCTION BONDS. 1119 whatever, in court or out of court, to protect themselves in its ])ossession. Prima facie, the vahie of tlie property wliich the defendants liave lost was the measure of the defendants' damages. If the property had remained specifically the same durins: the litiii^ation, and at its conclusion had been Avithin the defendants' reach, the damages probably would have been such as resulted from their being deprived of its use pendente lite and from any depreciation in value. But under the ex- isting facts, it is the same thing as though it had been de- stroyed while the owners were prevented from extending their hands for its preservation. The plaintiff's argument is that the loss was not occasioned by the injunction but by the tortious act of the plaintiff and his assistant unconnected with that process. Tliis is too narrow a view of the question. [73] If it had been carried off and converted by a stranger while the owners were prohibited from doing anything to protect it, the person v/ho restrained thom ought to make recom- pense for the loss. A fortiori, he should make the compen- sation when he himself carried it off and converted it durinor the restraint which he had procured to be imposed. The efficient cause of the loss was the inability of the defendants, caused by the injunction, to take care of and preserve that which was their own." It was said in another case in New York, where a lessor had been enjoined from collecting rents, that if the plaintiff, pending the action, collected rent of the tenants, the amount so collected would form part of the dam- ages.^ And damages were given in an Illinois case on the same principle.^ A lessee of farming lands sued out an in- junction against a prior lessee to prevent him from harvesting a crop of rye which he had sown while in possession under a lease requiring him to give one-third of the crop as rent ; the plaintiff harvested the rye himself, and the court, at the hear- ing, having found that two-thirds of the rye belonged to the defendant, dissolved the injunction and assessed as damages the value of the two-thirds, after deducting the expense of harvesting the whole crop.* § 528. Same subject. Where the writ does not operate to change the possession and does not result in a loss of the 1 McDonald v. James, 47 How. Pr. 2 Collins v. Sinclair, 51 III 328. 474. 3 Id. 1120 BONDS AND PENAL OBLIGATIONS. [§ 528. chattels, but suspends the owner's control, the amount properly recoverable on the bond is the loss in the value during the operation of the injunction, not exceeding the penalty, with interest from the institution of the suit.' This damage is the difference between the value of the property at the time when the bond was given and its value at the time the injunction was dissolved, together with interest.^ Profits which would have been made if an established business had not been interferf^d with may be recovered.'' An injunction may prejudice a cred- of the motion for 1 Levy V. Taylor, 21 Md. 282 ; Mey- senburg v. Schlieper, 48 Mo. 426-440. If the owner is deprived of the use of property he maj' recover the rental vahie of it and the amount paid to an employee who was in charge of it under a subsisting con- tract, and for the expense of taking care of it while it was idle. Wood v. State, 60 Md. 01. If the sale of real estate has been prevented the damages may be proved by showing the depreciation in its value; but a recovery cannot be had unless there is proof of a bona fide application to buy. and that the injunction prevented the sale. Sturges V. Hart, 45 111. 103; Reece v. Northway, 58 Iowa, 187. 2Brandaraour v. Trant, 45 III. 372; Rubon V. Stephan, 25 Miss. 253 ; Levy V. Taylor, 24 Md. 282; Mansell v. British Linen Co. Bank [1892], 3 Cli. 159. In the last case an injunction was issued restraining the sale of shares of stock. Prior to the dissolu- tion of the injunction the holder asked that the shares might be sold and the proceeds paid into court. The plaintiff successfully resisted that application. His liability was measured not by the difference be- tween the value of the shares when the action was dismissed and the highest market price between that time and the issuance of the writ, but by the difference in their value between the time of the restraint and the denial their sale. 3 Lambert v. Haskell, 80 Cal. 611. In Lehman v. McQuown, 31 Fed. Rep. 138 (Brewer, J.), personal prop- erty sold at a sheriff's sale was bought by the debtor's wife for less than its value. A creditor obtained the appointment of a receiver and an injunction to restrain interfer- ence, on the ground that the sale was not bona fide. The contrary was established; the receiver settled his accounts and turned over the prop- erty unsold to the purchaser, who sought to recover damages upon the creditor's injunction bond for the in- terruption of her possession. The property in question was a stock of wall-paper, and possession of it was taken in April and not surrendered until July. The claim for damages embraced, among other items, these : depreciation in value of the stock; injury to credit ; loss of custom ; the sale by the receiver of portions of a single pattern of the paper so as to leave broken and fragmentary pieces. As to the decline in value of the stock, the court said the claim must have been made " upon the assump- tion that the property, at the time it was taken possession of, could in- stantly be converted into money, and the illustration which was vi'ry forcibly put by counsel was of wheat It is taken possession of to-day, when its market value is so much; it is held § 528.] INJUNCTION rONDS. 1121 itor by hindering and delaying the prosecution of a suit until the debtor becomes insolvent, and by the loss or depreciation of property on which his debt is secured by delaying the sale of it, and also by increasing costs and expenses. Such [74] losses are covered by the injunction bond.' In one case the for four months ; its market value goes down. Certainly that diminution in value is vsometlung of which the party has a right to complain. But it was admitted on the hearing last fall, in reference to the taxation of costs, that the receiver had acted prudently. He had a stock of goods which he had done the best he could to dispose of, and if he had not fnlly succeeded then it was because it was property which could not be thrown at once on the market and converted into money at anything like its value. As shown by the very result of the sheriff's sale, it was not property for which one could go out on the street and find a purchaser in the open market, and if the receiver has dis- posed of that property, or so much as he did, in the best manner he could, and in a manner which was commended by both parties, and for cash, it would not be fair to hold that, because he did not succeed in disposing of all the property, the complainant is to be charged with the difference between the value in April and in July of that undisposed of." The testimony concerning the loss of profits was not clear enough to warrant an allowance therefor. The claim on account of the manner in which the receiver made his sales was rejected on the ground that his accounts had been approved and he discharged. A recovery was had of $250 and costs for damages for the interruption of possession. I Boiling V. Tate, 65 Ala. 417. A partner who has been enjoined from collecting firm assets may re- VOL. II — 71 cover his share of those which were solvent at the time the injunction is- sued and subsequently became in- solvent or barred by the statute while the restraint continued. Ter- rell V. IngersoU, 10 Lea (Tenn.), 77. If the enforcement of a decree is enjoined and the debt, the collection of which is thereby stayed, is not the complainant's, damages are not to be measured by the amount named in the decree, but are limited to such as resulted from the delay in its exe- cution. Moore v. Hallum, 1 Lea,- 511 ; Staples v. Whit?". 88 Tenn. 30. In Aldrich v. Reynolds, 1 Barb. Ch. 613, a mortgage foreclosure by advertisement was enjoined ; and on a dissolution of tlie injunction there was a reference to ascertain the amount of damages sustained by the defendant by reason of the injunc- tion. He held a bond and mortgage upon a farm in the possession of the complainant, and advertised a sale to take place on the 5th of June. 1845. It appeared on the reference that on the 5th of June the crops and grass upon the premises, and which were afterwards taken off by the complainant during the continu- ance of the injunction, were worth $90.30, exclusive of the labor and ex- pense of protectmg, gathering and securing them. There was a defi- ciency of flOO' when the sale took place soon after the dissolution of the injunction. The ' master allowed as part of the damages $90.30, the value of the crop and grass taken by the complainant during the time the sale was stayed. He also allowed 1122 BONDS AND PENAL OBLIGATIONS. [§ 528. principal defendant had filed his bill in equit}'^ and obtained a temporary injunction to stay the plaintiff's action at law against him. He failed to maintain his bill, and thereby be- came liable on his bond. The reasonable damages which the party enjoined was entitled to recover were the legal taxable costs both in the suit at law and on the bill in equity during the time he was delayed by the injunction, provided he had not or could not realize the same on the original proceedings against such principal defendant; also, his reasonable counsel fees which he was liable to pay in both of the original cases for the same time. He could not recover as damages under his bond the interest accruing on the original note in the suit at law unless it appeared that the debtor had become insolv- ent since the injunction, or tjiat the creditor had suffered damage equal to such interest without fault.^ the interest upon the amount due from the 5th of June until the in- junction was dissolved, and the ex- tra expense of continuing the notice of sale during the time the sale was suspended by the injunction ; and the taxable costs of the defendant in ob- taining a dissolution of the injunc- tion, and upon the reference, as well as $25 which had been paid by the defendant as an extra counsel fee in obtaining such dissolution. The chan- cellor held that the crops growing upon the premises would have gone to the purchaser if a sale had been made on the 5th of June, and there- fore a sale at that time would have brought $90.30 more than after they had been removed, and hence would have produced just about the amount of the mortgage, with the interest and costs of foreclosure. " The de- fendant, therefore, lost not only the difference between what the lot would have brought in June, and that for which it was actually sold after the injunction had enabled the n\ortgagor to strip it of its crops and grass, but also the interest on the amount which he would have been entitled to receive if the sale had taken place on the 5th of June." The report of the referee was af- firmed. 1 Derry Bank v. Heath, 45 N. H. 524; Redderburger v. McDaniel, 38 Mo. 138 ; Tryon v. Robinson, 10 Rich. L. 160 ; Willet v. Scovill, 4 Abb. 405 ; Edwards v. Pope, 4 111. 465. In Kennedy v. Hammond, 16 Mo. 341, A. conveyed to B. a mill and leasehold to secure C. the payment of two notes. After the first and before the second note matured the property was advertised and sold pursuant to the deed of trust ; D. be- came the purchaser. After the sale D. tendered to B. the amount of the note which had matured, and pro- duced the receipt of the assignees of the grantor for the balance of his bid and demanded a deed. B. re- fused to deliver a deed, and when the second note became due again ad vertised the property for sale. D. applied for and obtained an injunc- tion. When it was dissolved the lease had been declared forfeited and the mill had burned down, so that the mortgaged interest would not § 529.] INJUNCTION BONDS. 1123 § 529. Whiit facts no defense. "Want of jurisdiction [77] in the court over the subject-matter of the action does not deprive the defendant of the right to damages on the under- have sold for enough to defray the expenses of a sale. Held, upon the dissolution of the injunction, the damages were properly assessed at the whole amount of the notes with interest, etc., even though their mak- ers were solvent. A statute of Missouri required an injunction bond " to secure the amount, or other matter to be en- joined, and all damages that may be occasioned by such injunction, con- ditioned that the complainant shall abide the decision whicli shall be made thereon, and pay all sums of money, damages and costs that shall be adjudged against him if the in- junction shall be dissolved." An- otlier provision was that " if money shall be enjoined, the damages there- on shall not exceed ten per cent, on the amount released by the dissolu- tion, exclusive of legal interest and costs." The rule of ten per cent, held not to apply. Ryland, J., said : " Here the complainant did not seek to enjoin and restrain the defendants from the collection of a judgment or of a sum of money, but to prevent them from proceeding to sell prop- erty, the trust fund ; and by that act, on the part of the complainant, seri- ous injury may have been commit- ted ; no less than the destruction, in a greater or less degree, of the value of the entire fund ; and can it be said that ten per cent, is to be the amount of damages to be awarded, on the dissolution of the injunction in such cases? Ten per cent on what? The original debt, for the payment of which the trust was made? That will not do. Nor can the defendants be compelled to re- sort to the bond on which that in- junction was originally allowed. The condition of the bond is, 'pay all sums of money, damages and costs that shall be adjudged against him, if the injunction shall be dissolved.' Now, before suing on this bond, after dissolution, the damages must be ad judged, and the non-payment of the amount adjudged forms the breach of the bond so far as damages are concerned. ... At the maturity of the second note steps were taken to sell the trust property ; then the complainant steps in and by his bill prevents the sale by injunction. Upon the dissolution of this injunc- tion, the trust property being de- stroyed paitly by fire, and the lease forfeited to the original lessor; the trust property, I may say, lost to tlie cestui que trust; the damages, in consequence, were assessed at the amount of the debt secured and in- terest, and I think very properl\\ Let us look at the facts in this case. Hall, Allen & Cliilds were the proprietors of the lease from Cham- bers of the steam saw-mill. They gave their deed of trust on the prop- erty to secure two notes. After- wards Hall sold all his interest in the premises to Childs & Emerson, expressly subject to the debt men- tioned in the trust deed. Then Allen sells his interest in the property to Childs & Emerson, in like manner subject to the payment of the debt Tlien Childs transfers the property to Emerson subject to the payment of the debt. Lastly, Emerson trans- fers the property to John Maguire, in the same manner subject to the debt; so that Maguire becomes the owner of the property, and, in respect to the prior parties, is the principal 112J: BONDS AND PENAL OBLIGATIONS. [§ ^29. taking.^ Nor will disobeying the writ defeat an action on the bond.- If a bond is conditioned to satisfy an execution the collection of which is enjoined, it is immaterial so far as the lia- debtor, and they merely his securi- ties to the holder of the trust deed. Maguire procures Kennedy to bid off the property at the trustee's sale, and prosecutes the present suit for his own beuelit, using Kennedy's name. Maguire has all along been in possession, receiving a large rent, $2,000 per year, until the mill was burned down in 1849. Tiie deed of trust contained a stipulation that the premises should be insured, and that the insurance should stand as secu- rity to the creditor. Maguire col- lects the insurance for his own bene- fit. This, too, pending the injunc- tion. So, too, pending the injunction, the landlord enters into the premises for a forfeiture, and Maguire suffers him to keep possession, and to make leases to other parties. Maguire, after making the trust debt his own, appropriates the security for the debt to his own use, and insists that the original Orris Hall shall look to the makers of the notes individually and not to the trust fund. "The notes are still due; the trust property was sold; Maguire gets pos- session through Kennedy's purchase, pays no part of the debt for which the property was sold, rents out this very trust property for $2,000 a year, and indemnifies Kennedy to prose- cute this proceeding, in which the injunction was obtained. Had the second sale proceeded, the debt in all probability might have long ago been made out of the trust property. Pending this proceeding that prop- erty has become lost to the cestui que trust; and because the original makers of the notes are supposed to be worth $3,000, Maguire contends that the cestui que trust has not been damaged, and that he must look to the notes." Yates v. Joyce, 11 Johns. 13G, was held in the foregoing case not to have any or but slight application to any principle involved in the case under consideration. That was a suit by a judgment creditor whose judgment was a lien on land against a party who pulled down erections which were thereon. The court sustained the action on the principle that, "where the fraudulent misconduct of a party occasions an injury to the private rights of another, he shall be responsible in damages for the same." In Lane V. Hitchcock, 14 Johns. 213, the court say : " This case is sup- posed to be within the principles of Yates V. Joyce, 11 Johns. 136. In the case now before us, proof was offered on the trial that the mortgagor was insolvent, and had no other property than the mortgaged premises out Of which the debt of the plaintiff n)ight be satisfied ; but there was no aver- ment in the declaration to warrant such proof. These were material and indispensable facts in order to give the plaintiff a right of action ; and to allow this proof without the averment would take the defendant by surprise." In St. Louis V. Alexander, 23 Mo. 1 Alexander v. Gish, 88 Ky. 13; Cumberland Coal Co. v. Hoffman Coal Co., 15 Abb. 78 ; Hanna v. Mc- Kenzie, 5 B. Mon. 314 But see § 475, ante. 2 Van Hoover v. Van Hoovei', 18 Mo. App. 19; Colcord V. Sylvester, 66 111. 540. § 529.] INJUNCTION BONDS. 112.5 bility of the sureties is concerned whether the property re- leased was subject to execution or not, or whether the debt 484, an injunction was obtaniod by stockholders to restrain the sale un- der a trust deed of property, fran- chise, etc., belonging to the corpora- tion. A statute provided that upon dissolution of an injunction in whole or in part, damages should be assessed byajury, or, if neither party require a jury, by the court; but if money shall have been enjoined, the dam- ages thereon shall not exceed ten per centum on the amount released by the dissolution, exclusive of legal in- terest and costs. The court say : "The injunction to stop the proceed- ings of a trustee to sell property un- der a deed of trust to pay a debt has not been considered such an injunc- tion upon monej' as to authorize the assessment by the rule of per cent, laid down in that act alone. In the case of Kennedy's Ex'r v. Hammond, 16 Mo. 341, the court held that the damages in such a case were not limited to ten per cent, on the debt, but might extend to the full amount of the debt, if the loss to the creditor by the injunction extended so far. The meaning of the words, * if money shall have been enjoined,' has been generally supposed to embrace in- junctions upon the executions of judgments originated by the debtor therein against his creditor, and not such as restrain other acts whereby monej'^ may in consequence thereof be deferred in payment by the in- terposition of third parties. Upon an execution against a debtor's es- tate, the payment of which can be enforced out of all his property, and the justice of which has been settled by the law through the intervention of its officers and tribunals; if there be an interference by injunction, and it turn out to be without proper cause, and is therefore removed, then damages not exceeding ten per cent, upon the amount released from the injunction may be a just penalty for improperly interfering; and a just ri conipense for the delay which such interference produced to the cred- itors. But such is not the case when a sale of trust property has been en- joined. Here the debt has been rec- ognized by the parties only ; the law has not adjudicated upon it. Then, when a sale is enjoined by a third party, and the court after a hearing dissolves the injunction, it becomes proper to ascertain the dam- ages, not by the rule of per cent., but from the injury the creditor has sus- tained from the improper act of the party stepping in between the cred- itor and the debtor, and hindering and delaying the execution of the means provided to enforce payment Suppose, in this case, that the trust property was not worth half the debt intended to be secured ; would the delay in the sale of it, caused bj^ injunction, authorize the court to give ten per cent, damages for the detention and non-payment of the whole debt? What injury has the creditor sustained by enjoining the sale of property not worth one-tenth of his debt? Again, suppose the in- junction had caused the loss of the entire fund in trust ; would ten per cent on the debt be a proper amount of damages — the only amount which the law would recognize, although there be proof amply to show that the fund was in value equal to the debt? No. In all such cases tlie court or jury should determine the amount of injury by evidence be- fore it or them as to the damages sustained : the probable amount that 1126 BONDS AND PENAL OBLIGATIONS. [§ 520. has been lost by reason of the injunction.^ The legal effect of an injunction bond is not lessened by a statute which con- tinues a levy in force after an execution has been issued.^ The sureties on an undertaking in an action to set aside a bond and mortgage cannot include as a payment the sum bid by them for the property on its sale under a foreclosure.* A defense is not made by showing that after the writ was dis- solved another injunction was obtained.* If the defendant is restrained from doing several acts, and the bond is conditioned to pay such damages as he may sustain by reason of the in- junction, the sureties are liable, though the restraint is con- tinued as to one act, for all damages except such as were caused by his inability to perform in that particular.^ Grant- ing an extra allowance to the defendant upon giving leave to discontinue a suit in which an injunction had been obtained does not bar a recovery of damages upon the bond unless the allowance v/as so conditioned by the court which gave it.^ Where all damages covered by the bond or recoverable must be ascertained in the injunction suit,^ and, a fortiori^ if the bond is conditioned to pay such damages as shall be so ascertained, the sureties are bound by the action of the court in the ascertainment of the damages, and can raise no ques- tion as to its correctness in an action on the bond.^ If that instrument is in terms for the benefit of persons who are not, but who ought to have been, parties, the sureties cannot deny their liability to thera.^ If several persons are interested in a suit, and the only defendant employs an attorney, the obligors on the bond will not be heard to allege that the attorney did not represent all such parties.^" In England the undertaking- extends to all the defendants, although one or more of them would have been realized ; the value 277; Tioxell v. Haynes, 5 id. 390; of money at the time, and other cir- S. C, 16 Abb. (N. S.) 1. cumstances tending to show the ^ Roberts v. Fahs, 36 111. 268 ; Meth- damages sustained by the creditor in odist Church v. Bai'ker, 18 N. Y. 463; consequence of the injunction." Blakeney v. Ferguson, 18 Ark. 347. 1 Riggan v. Grain, 86 Ky. 249. 8 Lothrop v. Southworth, 5 Mich. 2 Pugh's Adm'r v. White, 78 Ky. 436 ; Anderson v. Falconei-, 30 Miss. 260. 145 ; Lockwood v. SalTold, 1 Ga. 72. 3 Holcouib V. Rice, 119 N. Y. 598. 9 Alexander v. Gish, 88 Ky. 13. Moore v. Hallum, 1 Lea, 511. from taking off the crops, it was held sgiutter v. Kirkendall, 100 Pa. St. that such parties could not maintain 307 ; Burrall v. Acker, 23 Wend. 606 ; a joint action for damages on the in- Johnson v. Vaughan, 9 B. Mon. 217 ; junction bond, where the damages Barnes v. Brookman, 107 111. 317 ; were not joint. See Lally v. Wise, State v. Purcell, 31 W. Va. 44 ; Rubel- 28 Cal. 539; Browner v. Davis, 15 id. man Hardware Co, v. Greve, 18 Mo. 9 ; Summers v. Farish, 10 id. 347. App. 6. § 532.] APPEAL AND TiUPEUSEDEAS BONDS. 1120 lars there is extensively a substantial agreement. Under the practice which preceded the code, and in the federal courts, bonds on appeals and writs of error, which operate as a super- t>edeas, contain generally the conditions to prosecute the ap- peal or writ of error to effect, and if the judgment be aflirmed in whole or in part, or the plaintiff in error or a})pellant fail to make his plea good, he shall answer all damages and costs.' A supersedeas bond with such a condition is strikingly anal- ogous to the bond given by the plaintiff in replevin. In that action the plaintiff obtains possession of the property in cpies- tion by giving a bond conditioned to prosecute the suit to effect ; and when he fails in the performance of the condition he and his sureties are liable for the value of the property and interest thereon unless it is returned. So, by executing a supersedeas bond, a party against whom a money judgment or decree has been rendered, and who appeals or takes a writ of error, retains possession and enjoyment of the money in ques- tion subject to the same condition. On the breach of that con- dition there is a forfeiture of the bond, and the obligee is entitled to compensation, within the penalty, to the amount of the moneys so withheld and interest. In other words, the surety undertakes to pay the judgment if the condition of the bond is not fullilled.- § 532. Supersedeas bonds in federal supreme court. By the twenty-second section of the judiciary act of 1789 [80] the judge signing the citation is required to take good and sufficient security that the plaintiff in error shall prosecute his writ to effect and answer all damages and costs if he fail to make his plea good.* And since 1803, when provision for ap- peals in equity and admiralty cases was made, supersedeas 1 The agreement to prosecute with Texas, 249. Contra, Hobart v. Hill- efifect means to do so with success, iard, 11 Pick. 143. The performance Legatee v. Marr, 8 Blackf. 404 : Per- of one condition is no defense to an reau v. Bevan, 5 B. & C. 291 ; Kart- action for tlie breach of another, haus V. Owings, 6 H. & J. 134 ; Cham- Trent v. Rhomberg, snjjra. pomier v. Washington, 2 La. Ann. 2 Graham v. Swigert, 12 B. Mon. 1013. The condition is not satisfied 523; Ives t. Merchants' Bank, 12 How. if the appeal is dismissed for want of (U. S.) 159 ; Sessions v, Pintard, 18 id. prosecution, though the judgment is 106; Talbot v. Morton, 5 Litt. 326; not changed. Cook v. McCormack, Many v. Sizer, 6 Gray, 141. 69 Iowa, 539 ; Trent v. Rhomberg, 06 ^ r. s., § 1000. 1130 BONDS AND PENAL OBLIGATIONS. [§ 532. bonds in such cases have been subject to the same conditions. And the twenty-ninth rule of the supreme court of the United States, adopted in 1867, in accordance witli the prior adjudi- cations of the court, provided that supersedeas bonds in the circuit courts "must be taken with good and sufficient secu- rity'' that the plaintiff in error or appellant shall prosecute his appeal or writ to effect, and answer all damages and costs if he fail to make his plea good." And this rule declared that " such indemnity, where the judgment or decree is for the re- covery of money not otherwise secured, must be for the whole amount of the judgment or decree, including 'just damages for delay,' and costs and interest on the appeal." Under this rule the penalty of the bond would be ample for as large a re- covery against the surety by action on the bond as the rem- edy by execution against the principal.^ It is said in one case that " it is not required that the secu- rity shall be in any fixed proportion to the decree. What is necessary is that it be sufficient." ^ In that case the de- cree below^ was for over $300,000, and a bond had been re- quired for double that amount. On a motion to reduce it, the appellate court, after making the remark which has been quoted, said : " "We are satisfied that a bond in a much less amount will be entirely sufficient ; and inasmuch as it appears that security in part for the amount they might be decreed to pay had been given by the present appellants, before the bond on appeal was required, by a deposit of bonds of the United States, and other private bonds, amounting in all to a sum not less than $200,000, we will order that the appellants have leave to withdraw the appeal bond now on file, on filing a [81] bond in lieu thereof in the sum of $225,000, with good and sufficient sureties." It will be observed that though the judgment was a money judgment, and rendered against the defendants personally, the court fixed the penalty at a less sum in consideration of there being other security. Hence there could not, for that reason, be a recovery against the sureties for the full sum of the judgment. It was not deemed iSee Catlett v. Brodie, 9 Wheat. French v. Shoemaker, 13 id. 86; 553; Stafford v. Union Bank, 16 George v. Bischoff. 68 III. 2:^6: Rob- How. (U. S.) 135; S. C, 17 id. 175; erts v. Cooper, 19 How. (U. S.) 373. Rubber Co. v. Goodyear, 6 Wall. 153 ; 2 Rubber Co. v. Goodyear, siqn-a. § 533.] APPEAL AND SUPERSEDEAS BONDS. 1131 necessary; but on affirmance of the jutlgmcnt the bond would be available to the extent of the penalty unless the judgment had been so far otherwise satisfied that a sum less than that would conijiletely discharge it. In an earlier case not unlike it in the fact of a personal judgment and collateral security, the court say : " The condition of the bond was ' for the prose- cution of said appeal to effect, and to answer all damages and costs if ' there should be a failure to make the plea good in the supreme court. There was a failure to do this, and the penalty of the bond was incurred. Whatever hardship there may be in this case is common to all sureties who incur re- sponsibility and have money to pay. Beyond that of a faith- ful application of the proceeds of the land in payment of the decree, the appellants have no equity. They cannot place themselves in the relation of two creditors having claims on a common fund, which may be distributed j^ro ixda between them." The appellee " has a claim on both funds; first on the proceeds of the land, and second, on the judgment entered on the appeal bond for the satisfaction of the original decree." ' § 533. Liability if jiidgmeut is in part for money or in rem. It is undoubtedly true that the supei'sedeas bond secures the amount of the judgment or decree rendered against the appellant or plaintiff in error personally to the extent of the penalty, even though there be other security. This is a]> parent from the authorities cited in the preceding notes. The sureties may be resorted to in the first instance, because [82] an action accrues against them on the forfeiture of the bond, and the value of the other security is no more to be consid- ered in reduction of the amount to be recovered than the re- sponsibility of a solvent principal.- Rule 29 of the supreme court, which has been referred to, formulates the law as gen- erally held in other cases : " In all suits where the propcrt \' in controversy necessarily follows the event of the suit, as in real actions, replevin and in suits on mortgages; or whei-e J Sessions v. Pintard, 18 How. (U. less due than the amount of the S.) 106. The judgment was rendered judgment on the bond. The latter on the bond for the full amount of was reduced accordingly by a re- the penalty before sale of the land ceipt. and direction to collect on the which was security. The proceeds execution only the balance, were applied to the original decree, '-Sessions v. Pintard, 18 How. (U. S.) and after such application there was 106. 1132 BONDS AND TENAL OBLIGATIONS. [§ 533. the property is in the custody of the marshal, under admiralty process, as in a case of capture or seizure; or where the pro- ceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only re- quired in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal." In a case decided prior to the adoption of this rule a bond Had been given in a penalty of $25,000 upon ap^^jcal from a decree in admiralty rendered for |22,221:; the decree had been affirmed with six per cent, damages, as well as costs. On return of the mandate, judgment had been entered for the original amount, and also for $0,078.20 damages arising by reason of the appeal, and for $529.98 costs. An amount about equal to eighty per cent, of the total sura for which execu- tion was issued had been realized by sale of property at- tached when the proceeding was commenced, and on which a lien continued until sold. The deficiency exceeded the pen- alty of the suj^ersedeas bond ; and it was contended in behalf of the sureties that the proceeds of the sale should be applied ratably to every part of the demand, and thus reduce the damages and costs to about $1,200. This view, however, was rejected. It u^as held that the surefy was bound to pay such damages as might be awarded by the supreme court, and costs, and he could have been sued and judgment had against him had no execution issued. He was positively bound to the amount of his bond, and could not be heard to allege an ex- tinguishment of it in part because of a payment made by his [83] principals, leaving an amount due equal to the bond. Mr. Justice Catron said : " This is the plain equity of the case. If the appeal had not been taken, and the pi'operty attached had been sold in due time after the first decree for $25,000, no damages would have been sustained by the plaintiffs below ; and as the surety was instrumental in delaying satisfaction, it is equitable that he should respond to such damage as his act occasioned and which enlarged the amount."^ The bond required by the rule on an appeal from a decree 1 Ives V. Merchants' Bank, 13 How. (.U. S.) 159; Sessions v. Pintard, 18 id. lOG. § 534.] APPEAL AND SUPERSEDEAS BONDS. 1133 for the foreclosure of a uiortfi'as'e is not intended as secui-itv for either the amount of tiie decree or the interest accruin*,^ on the debt pendinf^ the appeal, but only for such damages as may arise from tiie delay incident to obtaining the judg- ment of the appellate court. ^ There is an intimation that the damages may be affected by the use and detention of the mortgaged property; but, as is said in a subsequent case, that was not the point in judgment.- The bond sued upon in a recent case contained the statutory words, " that the appel- lant shall prosecute his appeal to effect, and if he fail to make his plea good shall answer all damages." It also contained an extra-statutory condition : And shall " pay for the use and detention of the property covered by the mortgage in con- troversy during the pendency of the appeal." It was not competent for the parties to add to their rights or liabilities by virtue of this condition, and it was rejected. The rulings in Jerome v. McCarter and Supervisors v. Kennicott were approved ; and it was held that the bond did not cover the balance due after applying the proceeds of the sale of the mortgaged property, nor the rents and profits thereof, nor the value of its use and detention pending the appeal. The liability was limited to the costs of the appeal and the dete- rioration or waste of property. It might extend to burdens resting upon it as the result of the non-payment of taxes and loss by fire, if it was not properly insured ; but as to these last elements there was no occasion for their consideration. It is also suggested that there was doubt concerning liability for depreciation in the value of the property.' The supreme court of Massachusetts has ruled that an appeal bond in an equity suit in a federal court does not include damages for the rents and profits, or for the use and detention of land pending the appeal, unless there is a recovery therefor in the suit.* § 534. Same subject. The judgment in the appellate court for damages necessarily ascertains the sum that respondent is entitled to when he realizes the entire amount recovered, 1 Jerome v. McCarter, 21 Wall. 17; - Kountze v. Omaha Hotel Co., 107 Supervisors v. Kenuicott, 103 U. S. U. S. 378. 554. 3 Id. < Burgess v. Doble, 149 Mass. 256. 1134: BONDS AND PENAL OBLIGATIONS. [§ 531. If by reason of the appeal the original judgment is wholly or partially lost, that is an additional damage covered by the supersedeas bond, if the penalty is large enough. The bond is not for the damages awarded by the appellate court simply, but "all damages;" and hence when a judgment or decree is for the recovery of money not otherwise secured, the bond is required to be made an indemnity for the whole amount of the judgment, including just damages for the delay, and costs and interest on the appeal. Where an intruder, ousted by judgment in quo warranto from an office having a fixed salary and of personal confi- dence, as distinguished from one merely ministerial, takes a writ of error, and by a supersedeas bond keeps himself in the office and in the enjoyment of the salary pending the writ, which he fails to prosecute successfully, in an action on the bond by the party who has the judgment of ouster the meas- ure of damages is the salary received by the intruding party during the pendency of the w^rit of error, and the consequent operation of the supersedeas} In a Kentucky case action was brought on a supersedeas bond given to stay execution pending a writ of error from the [84] supreme court of the United States, under the twenty- fifth section of the judiciary act, the decree being otherwise secured. The condition of the bond was to prosecute the writ to effect, or on faikire to pay the amount of the original decree, with thq damages and costs, and all damages, interest and costs that might be awarded in the appellate court. The condition, in terms, was broad enough to secure the payment of the amount of the decree, but the legal effect was discussed with reference to the condition which the law prescribed, and that was the same, substantially, as required by the laws of that state in case of appeals from judgments and decrees. 1 United States v. Addison, 6 Wall, the damap:e he is entitled to recover 291. It was also held in this case is the difference between the amount that the rule which measures dam- stipulated and the amount actually ages upon breach of a contract for received, has no application to public wages, or for freight, or for the loss offices of personal trust and confi- of the rent of buildings, where the dence, the duties of which are not party aggrieved must seek other em- purely ministerial or clerical. See ployment, or other articles for car- I^awlor v. Alton, 8 Irish L. 160. riage, or other tenants, and where § 534.] APPEAL AND SUPERSEDEAS BONDS, 1135 Mr. Cliief Justice Simpson, in delivering the opinion, said: " If it were substantially a decree against the defendants for money, then there can be no question that the law required them, in case they appealed, or suspended its execution by the supersedeas, to secure to the plaintiff the payment of the amount, and the bond imposes a liability to that extent upon the obligors." The court found the decree to be such, and the plaintiff entitled to full recovery against the sureties.^ 1 Graham v. Swigert, 13 B. Mon. 523. Some further observations of the chief justice will not be without value. He said: "The condition of the bond required by the act of con- gress is substantially the same as is required by the laws of this state in the case of appeals from judgments and decrees. It is, therefore, con- tended that the decisions of the court upon the effect of such bonds must determine the extent of the obliga- tion of the surety in this case ; and that, according to the principles of these decisions, he is not liable for the amount of the decree. . . . The cases referred to for the purpose of sustaining this proposition are Talbot V, Morton, 5 Litt. Eep. 326, and Sum- rail V. Eeid, 3 Dana, 65. In both of these cases an appeal was taken from a decree to foreclose a mort- gage on real property, and subject it to sale for the payment of judgments at law. In the first it was held that the bond was sufficient, although it cree and costs ; and it was decided that tiiere was nothing recovered by the decree, and it only subjected the real estate in tlie mortgage to the paymentof a judgment at law; there was no liability on the surety for the debt. The principle attempted to be deduced from these cases is, that [851 the law prescribes one uniform con- dition to such bonds, but discrim- inates between the liability imposed by a breach of the condition in the different classes of cases. In appeals from a judgment or decree in per- sonam tlie liability extends so far as to secure the judgment or decree; but in appeals from a decree in rem the demand asserted in the suit, and to obtain the payment of which the proceeding is instituted, is not secured by the bond. These cases have not settled the doctrine in the manner and to the extent contended for. They only decide that in cases where there is a mere decree of foreclosure, made for the purpose of subjecting did not secure the payment of the real estate to the payment of judg- judgment at law, as the decree was rendered against the mortgaged es- tate, and there was no decree for money. And the coiu't in that case said it cannot be contemplated by law that the bond should secure the real estate or its value, or that acci- dents of fire and destruction of the estate are to be provided for in the bond. In the case of Sumrall v. Reid the appeal bond was conditioned to pay the amount recovered by the de- ments at law, and an appeal is taken, the bond required by law does not secure the amount of the demand for the payment of which the land is de- creed to be sold. This, according to the reasoning of the court in the first case, results in some measure from the nature of the pi-operty which is looked to for the security of the debt It is permanent and not subject to loss, removal or destruction, and, consequently, a stipulation in the 1130 BONDS AND PENAL OBLIGATIONS. [§ 534. [87] In Maryland, where the appeal has not been prosecuted to effect the rule of damages and the extent of recovery will depend on the loss and injury sustained by reason of the stay bond for its security is unnecessary, and not contemplated by law. If, however, it be conceded that the same doctrine ought to apply to all decrees merely for the sale of mort- gaged property, whether personal or real, it by no means follows that it ought to be extended to that class of cases where personal property is at- tached by a proceeding in cli^ncery instituted for the purpose of obtain- ing payment of the complainant's demand, where the debtor has a right to retain the property by executing a bond, especially when the appeal is taken by the debtor himself, having the property in his possession at the time. The effect of the appeal may be to diminish very materiall}^ if not to destroy, the security of the com- plainant's demand by postponing the execution of the decree until the sureties in the bond executed by the debtor become insolvent, and the property itself be consumed or dis- posed of, and placed beyond the reach of the creditor. " In the case of Worth v. Smith, 5 B. Mon. 504, it appeared that a num- ber of creditors were proceeding at the same time to subject by attach- ments the steamer John Mills to the payment of tlieir several debts ; that the steamer had been sold, and the proceeds of the sale were under the control of the court. In that state of case a contest arose among the cred- itors about the disposition of the fund ; and part of the creditors being dissatisfied with the decree of the chancellor upon the subject appealed to this court, and the decree was af- firmed. A suit was then brought by the preferred creditors against the surety in the appeal bond, and it was held that he was only liable for the costs and damages awarded by this court, and not for the sums decreed to the creditors out of the fund for distRibution. The ground of the decis- ion was, that the appeal did not affect the security of the fund ; that, not- withstanding the appeal, it remained under tlie control of the chancellor, who was not thereby restricted from takmg any step which he might deem proper to secure it. This case does not, however, settle the principle that an appeal taken by the debtor from a decree to sell personal property which had been attached and remained in his possession would not impose [86] any liability upon the obligors in the appeal bond for the amount of the decree. It seems rather to authorize an opposite inference, inasmuch as in the case last mentioned the appeal would have the effect to suspend the action of the chancellor altogether, and deprive him of all control over the property, and of all power to pro- vide for its security. But let this question be disposed of as it may when it arises, the decree in this case, in our opinion, partakes of the nature of a personal decree, and was virtu- ally, and in effect, a decree against the parties for whom the defendant became surety in the bond, and, con- sequently, is not within the opera- tion of the principle applicable to the cases where the proceedings are ex- clusively in revi. The statutes under which the proceeding was instituted in the chancery court made the de- fendants liable to the action of the party aggrieved, either at law or in chancery (1 Statute Law, 260), so that the chancellor had the power to ren- der a personal decree against them 534.] APPEAL AND SUPERSEDEAS BONDS. ii; of execution on tlie judgment appealed from.' In an action on the appeal bond the measure of damages is the actual in- jury sutTered by the appellee from the delay in whatever for the sum adjudged to the com- plainant. The boat or vessel in which the slaves were removed out of the limits of the commonwealth is also made liable, and may be con- demned and sold to pay and satisfy the damage sustamed by the com- plainant and the costs of suit. But the proceeding against the boat is merely ancillary to the main object of the suit, and intended to aid in its accomplishment, by furnishing means to be applied to the satisfac- tion of the decree. The proceeding was not exclusively in rem, but was both in rem and hi personam. " The damages sustained by the complainant had been ascertained, and a decree rendered for the amount. The defendants had been required to produce the attached property, and had failed to complj^ with the requisition. Tiie chancel- lor could have ordered an execution to issue against them immediately for the sum decreed and costs of the suit, or could have enforced the payment of the amount by proceed- ing against the parties in the bond executed for the fortlicomiug of the property. In this attitude of the case the parties agreed that the de- cree pronounced should be treated as a final decree, and the defendants obtained an appeal. The effect of the appeal was to suspend the exe- cution of the decree and prevent the chancellor from ordering an ex- ecution to issue against the defend- ants, or to enfoi-ce the bond. The decree, as it was rendered, would not have authorized an execution to issue against the defendants without an additional order; but still the de- cree was personal, and imposed upon the defendants the duty to pay the money to which the complainant was entitled, and the enforcement of this duty was prevented by the appeal. There is a clear distinction between this case and the cases that have been referred to. In those cases the defendants were not per- sonally liable, and the chancellor had no power to order an execution to issue upon the decree. In the case of Worth V. Smith the ap])eal was not taken by the debtor, but by part of the creditoi's whose claims had been postponed, and who, of course, were in no manner responsible for the fund in contest, and against whom no decree had been rendered for the payment of money. And in that case the court said that as the surety might have executed the bond alone without his principal, if he were to be made liable for the fund in contest, which had been de- creed to the preferred creditors, his liability would exceed that of his principal, against whom no decree for the payment of the fund or any part of it had been rendered. That reasoning, however, does not apply to this case. Here a decree had been pronounced against the principals of the surety. They were personally liable for the sums decreed. The ap- peal was evidently taken to prevent the enforcement of that liability. The nature of the proceeding had undergone a radical change. It had become, by the failure to deliver the propert}' attached, exclusively per- sonal. It was no longer in rem, for 1 Keen v. Whittiugton, 40 Md. 480. Vol. II — 73 1138 BONDS AND PENAL OBLIGATIONS. [§ 535. manner it arises.^ If the fund pledged was unequal to the payment of the debt at the time of the decree, the intermedi- ate accruing interest is a clear loss to the plaintiff, occasioned by the delay, and should be made the standard in the absence of other injury.^ By such a bond in a foreclosure case, which is in rem, the obligors are not bound on affirmance of the decree to pay the mortgage debt, nor to make good to that extent any deficiency in the proceeds of the sale of the land,^ nor did they stipulate that the land should sell for enough to pay even the principal of this debt; but if the deficiency was increased by accumulation of interest by the delay of the ap- peal, or by the intermediate depreciation of the mortgaged property, such increased deficiency would be an item of dam- age covered by the bond.* § 535. Same subject. Where the operation of an injunc- tion was suspended by an appeal — and it was held that such was the effect of an appeal from an order allowing it — on the affirmance of the order, if the thing on which it was intended [88] to operate should exist in specie in the defendant's pos- session, then the injunction is restored to its original vigor ; but if the thing is consumed or disposed of the complainant must proceed on the bond which was given to indemnify him from all loss and injury which he may sustain by reason of the appeal. And the measure of damages is the value of the property or thing so disposed of and lost to him.^ "Where a judgment in replevin for the return of the goods is affirmed, their value (if they have not been restored) and the costs of suit would seem to be the true standard by which the damages of the appellee should be measured on a suit there was no property for the chan- 2 Jd. ; Jenkins v. Hay, 28 Md. 547. cellor to act upon. He could have ' Kennedy v. Nims, 52 Mich. 153. proceeded against the surety in the * Hinkle v. Holmes, 85 Ind. 405 ; bond, but his liability was personal. Jenkins v. Hay, 28 Md. 547 ; Cook v. The remedy, however, was not con- Marsh, 44 111. 178 ; Utica Bank v. fined to the liability of the surety, Finch, 3 Barb. Ch. 293. but extended to the defendants, who There is an intimation that depre- were personally liable for the amount ciation in the market value of prop- of the decree by the express pro- erty is not an element of damage, visions of the statute, which author- See Kouutze v. Omaha Hotel Co., izes the party aggrieved in such a 107 U. S. 378. case to sue in chancery." 5 Blondheim v. Moore, 11 Md. 365 ; 1 Wood V. Fulton, 2 Har. & Gill, 71. Everett v. State, 28 Md. 190. § 535.] APPEAL AND 8UPEKSEDEAS BONDS. 1130 brought on the appeal bond.' In Vermont, where the condi- tions of the bond are that the appellant will prosecute his appeal to effect, or pay all intervening damages occasioned thereby, in estimating such damages the property which the appellant had at the time of the appeal, and all that he ac- quired during its pendency, is to be taken into account. The plaintiff is entitled to recover the value of his chance of col- lecting his debt during the time of the suspension of his exe- cution.2 A lessee in possession of premises subject to a right of dower is not liable to heirs not in possession for rents and profits pending an appeal from an order appointing commis- sioners to make partition.^ ISTor is one who appeals from the allowance of a will liable on such a bond, in case of affii-mance, for extra expenses of the executors in prosecuting the suit subsequent to the appeal beyond the taxable costs; but where such appeal necessitates the appointment of a special admin- istrator, the extra expenses of special administration, beyond the amount that would have been necessary if the estate had been settled by the executors without the intervention of the appeal, constitutes intervening damages recoverable on the bond.^ The legislature intended only to provide for the secu- rity and recovery of intervening damages whenever the [89] appellee should have judgment therefor, and not to create any new liability. The appellant is to give security for such dam- ages, provided the other party should be found entitled to re- cover any."* And where interest is recoverable as intervening ^Karthaus v. Owings, 6 H. & J. A bond was given on appeal from 134. a decree dissolving an injunction 2 McGregor v. Balch, 17 Vt. 562. which restrained the use of land, 3Stockwell v. Sargent, 37 Vt. 16. conditioned to prosecute the appeal * Sargeant v. Sargeant, 20 Vt. 297. and pay the amount of the judg- By statute passed in Illinois in ment, costs, interest and damages 1865, it was provided that appeals rendered and to be rendered in case shall be allowed to the supreme court the decree should be affirmed. No from all decrees, judgments and or- judgment was rendered in either ders of inferior courts from which court that the appellee recover the writs of error might be lawfully rental value of the real estate; it prosecuted ; and in granting appeals was therefore held that the obligors inferior courts shall direct the con- were not bound for it McWilliaras dition of appeal bonds, with refer- v. Morgan, 70 111. 62. ence to the character of the decree, ^ Steai-ns v. Brown, 1 Pick. 530. judgment or order appealed from. 1140 BONDS AND PENAL OBLIGATIONS. [§ 535. damages it should be moved for and allowed on the hearino- of the appeal.^ If the appellee is entitled only to costs, a bond to pay all intervening costs and damages will secure no more than costs.- So in a bond given on appeal, the condition of which was to pay all such costs as the obligee might recover, the costs which accrued before the bond was made, as well as afterwards, are properl}' included.^ A statute of Massachusetts regulating appeals in actions b}' landlords against tenants provided that if the complainant ap- peal he shall recognize to pay all intervening damages and costs, and to prosecute his appeal with effect; that if the defendant appeal he shall recognize to pay all rent due and in arrears, and all intervening rent, damages and costs; and that the court of common pleas shall, whenever any appellant thereto shall fail to prosecute his appeal, affirm the former judgment upon the appellee's complaint, and award such additional dam- ages and costs as have arisen in consequence of the appeal. Under these provisions it was contended that it was compe- tent for that court to render judgment in favor of the landlord, when appellee, after defaulting the appellant, for the inter- vening rent and damages; that " additional damages" include such rent, because he is damaged by being kept out of posses- sion, and include likewise damages for the timber and wood removed, and any injury to the buildings. The court suggest [90] that the case might be likened to that of interest accru- ing subsequently to the commencement of the action; but reply, that interest is merely incidental, and therefore is brought up to the time of the judgment; that, with the excep- tion of interest, no damages could be recovered except what had accrued before the action was commenced; that the phrase " intervening damages" seems to have been used without any definite meaning; it is the usual language in regard to ap- l)eals, and is employed in respect to appeals by the plaintiff where there can be no intervening damages. The court say: " If the tenant keeps out the owner wrongfully, and there 1 Stearns v. Brown, 1 Pick. 530. lieu of an insufficient one will not 2 Swan V. Picquet, 4 Pick. 465. operate retroactively unless it is so 3 Manufacturing Co. v. Barney, 45 expressed. Henrie v. Buck, 39 Kan. N. H. 40. 381. A second undertaking given in §536.] APPEAL AND SUPERSEDEAS BONDS. 1141 were no otlicr remedy, the statute might perhaps be so con- strued as to give this remedy, though it would he an awk- ward construction. There can, however, be no doubt that an action of debt will lie on the recognizance, and a previous judgment of the common pleas for intervening damages is not necessary to sustain the action. This view is confirmed by the clause in the recognizance to pay rent in arrear. That is not intervening rent, and a remedy for it would necessarily be upon the recognizance." ^ Under a bond conditioned to pay all "rent due or to become due," there may be a recovery of rent under a new as well as under the original lease." § 536. Instances of liability on more specific conditions. The obligations required by later legislation to stay execution pending appeal are generally more precise, specifying the liability with greater particularity. They are usually re- quired, in terms, to secure the payment of money judgments and decrees with the damages and costs which may be awarded on the appeal ; and in other cases, likewise, such pe- culiar damages as result from the appeal according to the nature of the case. AVhat damages and costs may be [91] awarded on appeal will be considered under the next head. The obligation as to the judgment or decree appealed from, as well as to the damages and costs on the appeal, is simply to pay them, or that appellant shall do so, or such part of the judgment or decree below as shall be affirmed. If the bond is general in terms as to the affirmance of the judgment, it will hold the sureties liable for the costs, expenses and losses resulting from an affirmance by the court of last resort.^ This 1 Bi-amau v. Perry, 12 Pick. 118. and in ordinary cases, to payment at In Davis v. Alden, 2 Gray, 309, it is the rate reserved in the lease until held that a lessee, who, on appealing the recovery of possession by the les- from the judgment of a justice of sor, although the buildings on the the peace or police court in an action premises be meanwhile destroyed by on R S., ch. 104, recognizes, pursu- fire ; and is responsible for all waste, ant to statutes of 1818, ch. 142, to pay actual and permissive, and for all all intervening rent, and all damages losses, including the destruction of and loss which the lessor may sus- the building, if not proved to have tain by reason of the withholding of been caused by inevitable accident, the possession of the demanded - Pray v. Wasdell, 146 Mass. 324. premises, and by reason of any injury » Mackellar v. Farrell, 57 N. Y. done to the premises during such Super. Ct. 398; Robinson v. Plimp- withholding, is liable prima facie, ton, 25 N. Y. 484 ; Bennett v. Brown, 1142 BONDS AND PENAL OBLIGATIONS. [§ 53C. rule has been applied where a new court of final resort was provided for after the bond was executed,^ "When the condi- tion is to pay on the affirmance of the judgment by a desig- nated court, there is no liability for the costs of an appeal from its judgment of affirmance.'- If, however, the appeal in the first instance is to an intermediate court and the judg- ment is there reversed, and on an appeal to the court of last resort the judgment of reversal is reversed and the original judgment is affirmed, the sureties will be liable for the costs of the final appeal if the mandate of the appellate court is sent to the intermediate court with directions to enter judg- ment there in accordance with it ; but it is otherwise if such mandate is sent directly to the court of original jurisdiction.' If a second appeal removing the case to a higher court, with another set of sureties, results in a second affirmance, the liability of the first sureties is not thereby increased; they are not liable for the costs and damages on the second appeal ; nor are the two sets of sureties co-sureties.^ The undertaking- was 20 id. 99; Gardner v. Barney, 24 How. Pr. 467; Smith v. Grouse, 24 Barb. 433. 1 Horner v. Lyman, 2 Abb. App. Dec. 399 ; S. C, 4 Keyes, 237. 2 Winston v. Rives, 4 Stew. & Port. 269 ; Morgan Go. v. Selman, 6 Ga. 440; Nofsinger v. Hartnett, 84 Mo. 549 ; Hinckley v. Kreitz, 58 N. Y. 583. 3 Nofsinger v. Hartnett, 84 Mo. 459 ; Robinson v. Plimpton, 25 N. Y. 484; Richardson v. Kropf, 47 How. Pr. 286 ; affirmed, 60 N. Y. 634 ; Gard- ner V. Barney, 24 How. Pr. 467. * Moore v. Lassiter, 16 Lea (Tenn.), 630 ; Hinckley v. Kreitz, 58 N. Y. 583. See Post V. Doremus, 60 id. 371 ; Bur- dett V. Lowe, 85 id. 241 ; Shankland V. Hamilton, 1 Thomp. & C. 239; Smith V. Grouse, 24 Barb. 433 ; Helb- ner v. Townsend, 8 Abb. 234. A defendant in a federal circuit court gave bond with a surety con- ditioned to keep and perform the final decree in the cause and pay all sums which might therein and thereby be decreed to be paid by him. The circuit court rendered a iinal de- cree against him for damages and costs, from which he appealed to the supreme court of the United States, and gave bond, with a different surety, to pay all such costs as the court should decree to be paid to the plaintiff upon affirmance of the de- cree of the circuit court. The su- preme court affirmed that decree, with costs and interest ; and, pursu- ant to its mandate, the circuit court decreed that its own former tlecree be affirmed, with costs and interest, and that execution issue for the sum found due by that decree, with inter- est from its date, and for the further amount of costs decreed by the su- preme court, and the costs taxed in the circuit court upon the return of the mandate. Held, that this was the final decree in the cause within the meaning of the first bond. Jor- dan V. Agawam W. Co., 106 Mass. 571. § 536.] APPEAL AND SUPERSEDEAS BONDS. 1143 for the payment of any deficiency which should remain after- a sale of the mortgaged premises. On appeal to the general term of the sujDreme court the judgment was affirmed. An appeal was then taken to the court of appeals, and proceed- ings were stayed upon an undertaking. It was held that the sureties on the first undertaking had no such right to have the real estate sold under the judgment of foreclosui-e and their precise liability determined immediately after the affirmance of the judgment as to be released from their obligation by the second undertaking. The order providing for the latter and for the stay of proceedings was not such a novation and substitution of the new undertaking in the place of the orig- inal as to release the sureties on the latter from liability for a larger deficiency than would have existed but for the second appeal.^ The recovery for which the sureties are liable must be in the identical case in which the bond was given. The opposite party cannot make a judgment in his favor obtained in another court, or in another suit, though on the same debt or demand, the measure of their liability.^ ji surety on an appeal bond is only liable, like other sureties, on the express terras of his contract.' Where the under- [92] taking is to pay the amount of the judgment and all damages which shall be awarded on the appeal if the judgment be af- firmed, and the order of affirmance is interlocutory and con- ditional, providing for a new trial in a certain event, the un- dertaking does not extend to the judgment on such new trial. The final judgment thus obtained is not an afiirmance of the first judgment. The sureties were only bound for the first judgment when affirmed."* A statute imposing liability for any judgment which may be entered upon the appeal for costs means only such costs as are incurred after the appeal is taken.'^ A bond conditioned to prosecute the appeal with 1 Mackellar v. Farrell, 57 N. Y. 562 ; Foster v. Epps, 27 III. App. 235 ; Super. Ct. 398. Henrie v. Buck, 39 Kan. 381 ; Nof- 2 Planters' & Miners' Bank V. Hud- singer v. Hartnett, 84 Mo. 549. gins, 84 Ga. 108. * Poppenhusen v. Seeley, 3 Keyes, 3 Smith V. Huesman, 30 Ohio St 150 ; Wilson v. Churchtoan, 6 La, G62 ; Lang v. Pike, 27 id. 498 ; Hall v. Ann. 468 ; Smith v. Huesman, 30 Williamson, 9 id. 28 ; Myers v. Ohio St. 662. Parker, 6 id. 501 ; Hamilton v. Jef- ^ Robinson v. Masterson, 139 Mass. ferson, 13 Ohio, 421; FuUerton v. 560. Miller, 22 Md. 1 ; Rice v.Rice, 13 Ind. ll-ii BONDS AND PENAL OBLIGATIONS. [§ 5S6. , effect or to pay^ satisfy and abide by the judgment that may be rendered does not impose liability for costs of the trial court,' The bond given on an appeal from an order denying a new trial does not cover the judgment subsequently rendered on the verdict unless the benefit of it was lost in consequence of the appeal.^ The code has adapted the security on appeal for consequen- tial damages, where a stay of execution is desired, to the spe- cial exigence of particular cases. An appeal of itself does not operate to stay proceedings. In an action for specific per- [03] formance brought by a vendor against the vendee, a judg- ment was recovered establishing the amount due on the con- tract, adjudging that the defendant should be barred and foreclosed of all right, claim, etc., to the land, and directing a sale thereof by the sheriff and payment out of the proceeds of the amount adjudged -to be due, and in which there was no provision for the payment of any deficiency. The defendant appealed and gave an undertaking according to section 335 of the Ne^v York code instead of section 338 ; it recited that a judgment had been recovered against the defendants. The judgment was affirmed, but no damages were awarded upon the appeal, and the costs were paid. An action w^as brought on the undertaking, and it was held that though it was not in the proper form, yet as it secured the end for wdiich it was given and stayed all proceedings on the judgment, it was valid as against the defendants who subscribed it ; that as no amount was directed to be paid by the judgment, the defend- ants were onl}^ liable for the difference between the amount bid for the land at the time of the sale and the amount which would have been bid at the time at which the judgment di- rected it to be sold, with interest on such amount to the time of the actual sale; but as no difference was proved none could be presumed, and the plaintiff was only entitled to nom- inal damages.^ It may be doubted that the damages held to be recoverable, [94] if they had been proven, were within the contract.* But there being a recital of a judgment against the appellant, were 1 Denton v. Wood's Adm'r, 11 Lea 3 Chamberlain v. Applegate, 2 Hun, (Tenu.), 505; Dawson v. Holt, 13 id. 510. 27. ■* See McWilliams v. Morgan, 70 111. 2 Eeltan v. Goebel, 35 Mmn. 384. 63. § 537.] APPEAL AND SUPERSEDEAS BONDS. 1145 not the sureties estopped from denying it? The case is briefly- reported, and does not disclose whether the recital stated the amount. In a case in Illinois the action was brought on an appeal bond conditioned to prosecute the appeal to effect, and pay the amount of the judgment, costs, interest and damages rendered and to be rendered against the appellant in case the decree should be affirmed. Scott, C. J., remarking upon a similar point, observed: "It is urged by the defendants that the decree was in rem^ and was not to be performed by Bischoff ; and as the master in chancery has executed the de- cree by selling the property as directed, he and his surety are discharged from all liability created by the condition of the appeal bond. This is not, in our opinion, the true construc- tion. The bond as set out in the declaration distinctly states a decree had been rendered against Bischoff, from which he had prayed an appeal. The object he had in view was to have the execution of the decree suspended until the cause could be reviewed in the supreme court, and the bond is expressly con- ditioned for the payment of the judgment in the event the decree should be affirmed. The defendants are estopped by the recitals in the bond to deny what they solemnly admitted to be true, viz.: the existence of a decree against Bischoff; and the legal effect of the engagement is to pay it in case it shall be affirmed on appeal, or be liable for the penalty of the bond." 1 § 537. Same subject. A statute of Indiana provides that " when any appeal is taken to the supreme court from a judg- ment in waste, or for the recovery of land, or the possession thereof, the condition of the appeal bond, in addition to the matters hereinbefore prescribed, shall further provide that the appellam shall also pay and satisfy all damages which may be sustained by the appellee for the mesne profits of the premises recovered, or for any waste committed thereon as well before as during the pendency of such appeal." ^ It was first held that a bond w^hich did not contain a provision in substance [95] 1 George v. Bischoff, 68 111. 236 ; ment was rendered in the trial court Meserve v. Clark, 115 id. 580 ; Gudt- the bond is a nullity. Brounty v. uer V. Kilpatrick, 14 Neb. 317 ; Love Daniels, 23 Neb. 162. See First Nat. V. Rockwell, 1 Wis. 382 ; Adams v. Bank v. Rogers, 13 Minn. 407. Thompson, 18 Neb. 541. If no judg- -'R S. 1843, p. G33. 1146 BONDS AND PENAL OBLIGATIONS. [§ 537. like the statute, although it was conditioned for the prosecu- tion of the appeal, and there had been a breach of that con- dition, did not render the sureties liable for the rents and profits.^ But the late cases hold that such liability exists by virtue of tlie statute, although the bond is silent.^ In an ac- tion for unlawful detainer a judgment was rendered for the plaintiff below, and the bond on appeal was conditioned " to pay all costs of such appeal, and abide by the order the court may make therein, and pay all rent and other damages justly accruing to the plaintiff during the pendency of the appeal." The plaintiff sought to recover on the bond treble damages for which the defendant was liable, but it was held that the responsibility was limited by the terms of the bond, and the treble damages claimed were not covered by the phrase "other damages justly accruing," but only actual damages ; * which are the value of the use and occupation or the reasonable rental value of the premises.'' The rental value of the premises during the pendency of a writ of error in an action of eject- ment, the money judgment being merely nominal, cannot be recovered upon a bond conditioned for the prosecution of the writ to effect and the payment of the debt, damages and costs adjudged or accrued upon such judgment, and all other dam- ages or costs that may be awarded.'^ The sureties upon an appeal and siq^ersedeas bond from a decree enforcing judgment liens on land are not responsible after the affirmance of the decree for any portion of the rents and profits of the land while the cause was pending on appeal, or for any loss sus- tained by the appellees on account of the debtor's receipt thereof. "^ In Alabama an appeal bond which stays the execu- tion of a judgment for the recovery of land or its possession, if conditioned for the payment of " all costs and such damages 1 Malone v. McCIain, 3 Ind. 533. Post v. Doremus, 60 N. Y. 371. See 2 Opp V. Ten Eyck, 99 Ind. 345 : Reed v. Lander, 5 Bush, 598 ; White- Hays V. Wilstach, 101 id. 100. head v. Boorom, 7 id. 399 ; Wade v. 3 Chase v. Dearborn, 23 Wis. 143. First Nat Bank, 11 id. 697. The . case of Post v. Doremus, 1 * Shunick v. Thompson, 25 111. App. Hun, 531, has some curious features, 619. and is an example of liberal construe- ^ Johnson v. Hessel, 134 Pa. St. 315. tion of the contract of the sureties to ^ Hutton v. Lockridge, 27 W. Va. effectuate their obvious intention. It 428. was substantially modified on appeal. § 53Y.] APPEAL AND SUPERSEDEAS BONDS. 1147 as the plaintiff may sustain by reason of this appeal," covers the loss of the possession and the value of the use.' If an ap- peal is taken from a decree distributing a fund in court, pro- ceedings being stayed, interest may be recovered on so much of it as was detained therein, and also a reasonable attorney's fee for services in the appellate court.^ The condition of a bond was to prosecute the appeal [90] with effect and satisfy and pay, in case of affirmance, the dam- ages, charges and costs decreed below, and also all costs and damages that should be awarded by the appellate court. The appeal was from an order dissolving an injunction, thereby continuing it in force, restraining the collection or negotiation of certain drafts. In an action on this bond, after affirm- [97] ance of the order, the plaintiff sought to recover the value of those drafts which were lost by reason of the delay caused by the appeal, notwithstanding such damages were not decreed in the case in which the appeal was taken. But the court held that the liability of a surety could not be extended by implication beyond the terms of his contract ; and that the damages proposed to be recovered were not within the bond.^ The bond does not impose liability upon the sureties for the act or neglect of any person who is not restrained by it.* A bond to secure costs is limited to plaintiff's costs.^ Where the appeal bond is for costs and damages only, the sureties are not liable for the debt.^ Damages within the prescribed terms of 1 Cahall V. Citizens' Mut. Building it was left in order to ascertain by Ass'n, 74 Ala. 539. calculation the amount fixed by law 2 Drake v. Webb, 63 Ala. 596. for the suspensive appeal, and the 3 Fullerton v. Miller, 22 Md. 1. party signing the bond will be bound 4 Roberts v. Jenkins, 80 Ky. 666. for that amount. 5 Hiett V, Davis, 88 Ind. 372. Ward v. Bell, 18 Ind. 104 : If the sSmith v. Erwin, 5 Yerg. 296; instrument given specifies no amount Banks v. Brown, 4 id. 198 ; Gholson or contains no penalty the law will V. Brown, id. 496 ; Ouderdonk v. Em- hold the obligors in it liable to the mons, 9 Abb. 187. extent required by the statute, upon Stille v. Beauchamp, 13 La. Ann. an appeal and supei'sedeas in such 474 : Where the appeal bond recites cases, on the ground of the intention the judgment and sets forth the fact of the parties executing the instru- that the appellant has taken a sus- ment to become liable to that extent pensive appeal from such judgment. But sureties may expressly limit the and a blank is left for the amount to amount of their liability by the terms be filled up, it will be presumed that of the obligation ; and if they do, and 114S BONDS AND PENAL OBLIGATIONS. [§ 537. [98] an appeal bond or undertaking may be disallowed when they exceed the rights of the party claiming, and the legal lia- bility imposed on the other; as where a general form of under- taking is required for a class of cases usually similar, but distin- guishable by individual differences, and the liability contended for does not exist in the particular case. Thus, in an action the officer is satisfied with it and ac- cepts it, they will not be bound be- yond the amount named, but if the bond proves insufficient the officer may be liable for the deficiency. Reeves v, Andrews, 7 Ind. 207 : A. sued B. before a justice ; B. pleaded a set-off and i-ecovered a judgment. A. appealed and executed a bond after the statute, but in the court above dismissed the action. B. there- upon sued him and his surety upon the appeal bond. Held, that he had a right to dismiss ; that the dismissal operated to avoid the proceedings before the justice ; that the obligors were estopped at this stage to deny that the appeal had been taken, and that the dismissal was a breach of the condition of the bond, but that the obligor was entitled to only nom- inal damages, unless special damages were alleged and proved. Raney v. Baron, 1 Fla. 327 : An ap- peal bond was conditioned that A. should pay said damages so recovered by said B. against him, and costs, in case the judgment of the said court should be confirmed. Held, that the surety in the bond was not liable for the ten per cent, damages awarded by the appellate court against the ap- pellant, but only for the judgment and costs in the court below. A bond which operates as a super- sedeas, and conditioned " to pay all ccsts in case the decree or order of the circuit court in chancery shall be affirmed," covers as well the costs de- creed and taxed to the appellee in the court below as to those in the ap- pellate court. Daly v. Litchfield, 11 Mich. 497 ; Prosser v. Whitney, 46 id. 407. By the Tennessee code, section 3162, in actions founded upon liqui- dated accounts signed by the party to be charged therewith, bonds, bills single, etc., upon an appeal in the nature of a writ of error, the bond shall be taken and the securities bound for the payment of the whole debt, damages and costs, and for the satisfaction of the judgment of the superior court where the cause may be finally tried. Patrick v. Nelson, 2 Head, 507. Under a statute which provides that if any appeal shall be dismissed the surety shall be liable for the whole amount of the debt, costs and damages recovered against the appel- pellant, the debt and damages meant are such as were recovered in the trial court, no judgment therefor being rendered in the appellate court. Fitzgerald v. "Wellington, 37 Kan. 460. If the bond is for the payment of the judgment and interest it is a mere security for the payment of the former, and whatever discharges the judginent releases the obligors. Hence, if the appeal is dismissed without an assessment of damages and the costs thereof paid and the judgment reversed in another pro- ceeding, there is no liability for any- thing beyond nominal damages, al- though an action on the bond was begun befoi'e such reversal. Cook v. King, 7 111. App. 549. § 537.] APPEAL AND SUPERSEDEAS BONDS. 1149 upon an undertaking executed by the defendant in a foreclos- ure case upon appeal, pursuant to the California practice act,' it was considered Jby the court that the legishiture could not have intended by that section to increase the liability of the principal debtor. It was therefore held that the provision in regard to use and occupation should be understood as re- ferring to those cases in which the creditor is entitled to the value of the use; and that an undertaking to pay what tlio creditor has no lethal right to is not bindinji: on the sureties; that as this section includes orders as well as judgments, the provision in question applies more particularly to judgments and orders directing a delivery of possession.^ If all of sev- eral plaintiffs or defendants appeal and execute a joint bond, as they ought, each is answerable for the entire amount. If one alone execute, he is bound for the whole.' If a bond is given on an appeal from a joint judgment against all the appellants and on behalf of all of them, the sureties are liable on its reversal as to all but one of their principals, it being affirmed as to him.* A judgment is affirmed within the mean- ing of an appeal bond though a finding be eliminated from the record.^ But in a California case, the decision beino- in- fluenced somewhat by the provisions of the code, it was held that the affirmance must be in toto to make the sureties liable.® iThe section referred to corre- the jiulgmeut was rendered, and sponds with section 338 of tlie New whicli shall be specified in tlie under- York code : " If the judgment ap- taking. Wlien the judgment is for pealed from directs the sale or de- the sale of mortgaged premises, and livery of possession of real property the payment of a deficiency arising the execution of the same shall not be upon the sale, the undertaking shall stayed unless a written undertaking also provide for the payment of such be executed on the part of the appel- deficiency." lant, with two sureties, to the effect ^ Whitney v. Allen, 21 Cal. 233. that during the possession of such 3 Young v. Young, 2 J. J. Marsh, property by the appellant he will not 72; Brown v. Hancock, 18 Tex. 21.* commit, nor sufl:er to be committed, ^ Gilpin v. Hord, 85 Ky. 213; Ives any waste thereon ; and that if the v. Hulce, 17 111. App. 35 ; Alber v. judgment be affirmed he will pay Froehlich, 39 Ohio St. 245, overrul- the value of the use and occupation ing Lang v. Pike, 27 id. 498 ; Lutt of the property from the time of the v. Sterrett, 26 Kan. 561. appeal until the delivery of the pos- 5 Foster v, Epps, 27 111. App. 235. session thereof pursuant to the judg- ^ Heinlen v. Beans, 71 Cal. 295. See ment, not exceeding a sum to be fixed Chase v. Ries, 10 id. 517. by the judge of the court by which 1150 BONDS AND PENAL OBLIGATIONS. [§ 538. The designated amount is the limit of the liability of the sure- ties,^ except where interest is allowed as damages for delay in paying.^ § 538. Interest and damages awarded on appeal. By sec- tion 23 of the judiciary act it is provided that where the su- preme court shall affirm the judgment or decree they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs, at their discretion. There [99] are similar statutes in the states, but there is generally a limitation to a certain per cent. In the federal courts the rate and limit were fixed by rule in 1803 and 1807 at ten per cent, per annum on the amount of the judgment to the date of affirmance where the suit was for mere delay, and six per cent, where there was a real controversy. In both cases the interest was computed as part of the damages, and had to be specially allowed. If, upon the affirmance, no allowance of interest or damages was made, it was equivalent to a denial thereof, and the circuit court in carrying into effect the de- cree of affirmance could not enlarge the amount thereby de- creed, but was limited to the mere execution of the decree in the terms in which it was expressed.^ There was no interest or damages after the date of affirmance, unless so allowed, until 1842, when it was provided by act of congress, "that on all judgments in civil cases hereafter recovered in the cir- cuit or district courts of the United States interest shall be allowed and may be levied by the marshal, under process of execution issued thereon, in all cases where by the law of the state in which such circuit or district court shall be held, interest may be levied under process of execution on judg- ments recovered in the courts of such state, to be calculated from the date of the judgment, and at such rate per annum y.s is allowed by law on judgments recovered in the courts of such state." * In 1852 the supreme court, by rule 62, still further extended the provision for interest, and both interest and damages are now regulated by rule 23, which declares: 1. The interest is iGraeter v. De Wolf, 113 Ind. 1; » Boyce v. Grundy, 9 Pet. 275; Zeigler v. Heury, 77 Mich. 480. Perkins v. Fourniquet, 14 How. 313. 2 Crane v. Andrews, 10 Colo. 365 ; * 5 Stats, at Large, 508. §§ 477, 478, ante. § 538.] APPEAL AND SUPERSEDEAS BONDS. 1151 to be calculated and levied from the date of the judgment below until the same is paid, at the same rate as interest on judgments in the state courts. 2. That where a writ of error delays the proceedings on a judgment, and appears to be sued out for delay, ten per cent, in addition to the interest is to be allowed upon the amount of the judgment. 3. The same rule is to be applied to the decrees for the payment of money in cases in chancery, unless otherwise ordered by the court. This third clause is intended doubtless to adopt for chancery cases the " same rule " as to interest only. The second clause [100] can only be applied by an affirmative finding that the pro- ceeding has been taken for delay, and hence is not a rule which could take efl'ect unless otherwise ordered. The court, however, under section 23 of the judiciary act, has authority to award just damages and single or double costs, at its dis- cretion, as well in equity as in law cases. In admiralty a dif- ferent rule as to interest or damages prevails. In such cases there is a discretionary power to add to the damages allowed in the court below further damages by way of interest. But this allowance of interest is not an incident of affirmance affixed to it by law or by rule of court. If given by the court, it must be in the exercise of its discretionary power, und, pro tanto, is a new judgment.^ Ko damages will be al- lowed on appeals and writs of error except on money judg- ments or decrees.^ They are allowed for delaying the plaintiff where delay is the object and there is no ground or expecta- tion of reversal in whole or in part.^ 1 Hemmenway v. Fisher, 20 How. man, 38 id. 25 ; Winfleld v. Potter, (U. S.) 255; Phillips' Practice, 191. id. 67; Murray v. Mumford, 2 Cow. 2 Arrowsmith v. Rappelge, 19 La. 400 ; Lehane v. Keyes, 2 Nev. 361 ; Ann. 327; Long v. Robinson, 13 id. Ramsay v. Davis, 20 Wis. 31 ; Russell 465 ; Hodges v. Holeman, 5 Dana, v. Williams, 2 Cal. 158 ; Magruder v. 136. Melviu, 12 Cal. 559 ; Cady v. Scan- 3 Cotton V. Wallace, 3 Dall. 302; iker, 1 Idaho, 198; Whittlesey v. Barrow v. Hill, 13 How. (U. S.) 54 ; Sullivan, 33 Mo. 405 ; Owings v. Mc- Lathrop v. Judson, 19 id. 66 ; Kil- Bride, 32 id. 221 ; Robinson v. Star- bourne V. State Institution, 22 id. ley, 29 Ind. 298 ; Hutchinson v. Ryan, 503; Sutton v. Bancroft, id. 320; 11 Cal. 142; Wright v. Sanders, 3 Jenkins v. Banning, id. 455 ; Prentice Keyes, 323 ; Amory v. Amory, 91 V. Pickersgill, 6 Wall. 511 ; Campbell U. S. 356; Dzialgnski v. Bank, 23 V. Wilcox, 10 id. 421 ; Warner v. Pla, 346. Lessler, 33 N. Y. 296 ; Maher v. Car- 1152 BO]S^DS AND PENAL OBLIGATIONS. [§ 539. § 539. Same subject. The court will not award damages unless the ])roceeding is in this sense taken in bad faith. ^ They have been allowed for the reason that all the questions raised have been previously settled by the court of last resort, or are decided by reference to plain elementary principles; ^ and also where there is no bill of exceptions or statement of [101] facts, and no error is suggested or apparent in the record;^ and in some states for default in filing transcript;* in not taking other necessary steps ;^ or on abandonment of the appeal." But in Georgia the mere fact that the appellant did not submit evidence to support his defense, or failed to prosecute his appeal, does not show that it was frivolous so as to subject him to damages.' The same appears to be the rule in Yermont.^ And if there is error in the judgment the court will not award damages, even though the error is so small that they refuse to disturb the judgment." Kor will they allow damages where the appeal proves unsuccessful by a change in the law, as by the emancipation of slaves.'" Where the court below erroneously excluded evidence necessary for the recovery of double damages and the verdict and judgment were given for single damages," where the appellants are not themselves indebted to the appellees, and no decree for money has been rendered against them ; '^ or where the decision in- volves questions of fact and the evidence is conflicting,'^ dam- ages for a frivolous appeal will not be allowed. Nor will they 1 Story V, Bird, 8 Midi. 316; Hart- The advice of counsel will not re- ridge V. McDaniel, 20 Ga. 898 ; North- lieve the appellant from damages if western L. Ins. Co. v. Starkweather, there is no semblance of merit in the 38 Wis. 361 ; Morse v. Buffalo Ins. appeal. Cauthen v. Barnesville Bank, Co., 30 Wis. 534 ; Tobiu v. Missouri 68 Ga, 287. P. Ey. Co. (Mo.), 18 S. W. Rep. 996. spearse v. Goddard, 1 Tyler, 373. 2Piukham v. Wemple, 12 Cal. 449. 9 Simons v. Burrows, 6 La. Ann. 3 Chambers v. Hodges, 3 Tex. 517; 35S. Whittlesey V. Sulhvan, 33 Mo. 405; lo Henderson v, Montgomery, 18 La. O wings V, McBride, 32 Mo. 221. Ann. 211. * Anonymous, 11 111, 87. u Waddell v. Chicago, etc. R. Co., 5 Stafford v. Anders, 10 Fla. 211; 20 Iowa, 9. Hall V. Kennedy, Sneed (Ky.), 124. 12 Rowan v. Pope, 14 B. Mon. 102. 6 Hohl V, Meyer, 7 La. Ann. 18. See Northwestern L. Ins. Co. v. Irish, 'Gilmore v. Wright, 20 Ga 198; 38 Wis. 361. Hull V. Tommy, 30 Ga. 762. See I3 Austin v. Moore, 16 La. Ann. 218. Madison, etc. R. Co. v. Briscoe, 18 B, Mon. 570, § 539.] APPEAL AND SUPERSEDEAS BONDS. 1153 be awarded to a respondent upon affirmance of a judgment fully paid and satisfied before the taking of the apjoeal. This rule was applied to a case where the plaintiff in a foreclosure decree purchased the property at the sale for the full amount of the debt, including costs and interest, and the sale had been confirmed before the appeal. It was considered that the statute providing for damages on affirmance did not reach such a case, or, at least, was quite inoperative, for there could be no delay of payment to complain of arising from the [102j appeal.' And part payment of the judgment below will re- lieve from damages pro tantor So, where a supersedeas bond is executed, but a supersedeas^ though necessary to stay pro- ceedings, is not actually issued, no damages will be allowed.' In Oregon damages are not allowed except where there has been an abandonment of the appeal.* 1 Northw-estera L. Ins. Co. v. Irish, Whitehead t. Boorom, 7 id. 399 ; 38 Wis. 361. Wade v. First Nat. Bank, 11 id. fi97. 2 Brady v. Holderman, 19 Ohio, 26. * Nelson v. Oregon Ry. & N. Co., 13 3 Reed v. Lander, 5 Burih, 598 ; Ore. 141. Vol II — 73 1154: NOTES AND BILLS. [§ 540. CHAPTEE XII. NOTES AND BILLS. § 540. Promissory notes and bills of exchange. 541. Principal sum. 543. Want or failure of consideration. 543. Partial want of consideration. 544-548. Partial failure of consideration. 549, 550. Consideration fraudulent or illegal in part. 551-554. Defect of consideration shown by parol evidence. 555. Liability of drawer and iudorser for principal sum. 556. Interest on notes and bills. 557. Interest as damages to be paid by maker or acceptor. 558. Liability of drawer or indorser for interest as damages. 559. Notes and bills are by definition payable only in money. 5G0, 561. Re-exchange and damages on bills dishonored. 502. When re-exchange on damages not recoverable. 563. By what law liabilities governed. 564. Stipulations for attorney fees and costs. 565. Value of notes and bills. [103] § 540. Promissory notes and bills of ex cliange. The liability of parties to these instruments varies according to their relations to them. There is an essential difference in their contracts, and these are subject to different laws. Each party must pay such damages as result naturally and proxi- mately from a breach of his particular contract as interpreted by laAV. The maker of a note enters into an express agreement absolutely to pay a sum certain, either presently or at a speci- fied time in the future, to a person named, or to his order, or the bearer. When notes are drawn according to the usual forms their requirements are plain to the common understand- ing. These forms are, however, sometimes departed from, and not being precise in language, the short and indeterminate expressions used require interpretation. The liability of an acceptor of a 1)111 of exchange is similar to that of the maker of a note. His agreement is to comply with the request con- tained in the bill. An absolute acceptance is an engagement to pay according to the tenor of the bill, and a conditional or partial one obliges him to pay according to the tenor of the § 541.] NOTES AND BILLS. 1155 acceptance.^ He is primarily and originally liable to pay the bill, but this liability originates in the acceptance, and he is under such obligation only as attaches thereby.'^ The measure of damages for non-performance of an [104] agreement to accept for the drawer's accommodation a draft which is still in his hands is the loss and inconvenience thereby occasioned to him, and not the amount of the draft.' One who draws without authority cannot recover as damages the sum he is compelled to pa}^ in consequence of the draft being re- turned protested.^ A contract results from an acceptance as absolute and certain as from making a note. The amount payable at maturity by the acceptor or maker is ascertained from the face of the paper by similar rules.^ After default the sum recoverable by the holder is also determinable against both by like rules; but the acceptor stands in a peculiar rela- tion to the cbawer, and the drawer to indorsers, as do also the indorsers of a bill to each other, in respect to re-exchange, or damages in lieu thereof. These peculiarities will receive attention in the proper connection. The sum recoverable from the several parties includes principal and interest, to- gether Avith the notarial fees where a protest is necessary or authorized to fix the liability of secondary parties," and some- times exchange and re-exchange, § 541. Principal sum. A note or bill is by definition made for a sum certain payable in money. Hence, if it is valid, and subject to be enforced according to its terms, that precise sum as principal is to be recovered. Where the party sued is liable for the full amount the person having the legal title may recover it, though some other person is entitled to the 1 Thomas v. Thomas, 7 Wis. 476; Buckley, 14 Kan. 449 ; Woolley v. Van Chittyon Bills, 303; Story on Bills, Volkeuburgh, 16 Kan. 20; Loud t. § 238 ; 1 Par. on Cont. 281. Merrill, 47 Me. 351 ; Weldon v. Buck, 2Chitty on Bills. 804; Anderson v. 4 Johns. 144; Bowen v. Stoddard, 10 Anderson, 4 Dana, 353. Met. 375 ; Cook v. Clark, 4 E. D. 3 Ilsley V. Jones, 13 Gray, 260. Smith, 213; Merritt v. Benton, 10 4 Rouvert v. Patton, 13 S. & R 253. Wend. 116. 5 Story on Prom. Notes, § 114. If it is necessary or more conven- s Doughty V. Hildt, 1 McLean, 334 ; ient for the indorsee to send notice City Bank v. Cutter, 3 Pick. 414 ; to the indorser by special messenger, Noyes v. White, 9 Kan. 640 ; Knowles he may do so and recover the ex- V. Armstrong, 15 Kan. 371 ; Ticknor pense. Pearson v. Crallan, 2 Smith, V. Branch Bank, 3 Ala. 135 ; Curtis v. 404 (1805). 1156 NOTES AND BILLS, [§ 5^1. proceeds; if the suit be brought with his consent and for his benefit, as where the plaintiff is an agent for collection, al- though the beneficial interest of such plaintiff extends only to a part of the amount due. The surplus would in such case be [105] held by him as trustee for any other party entitled to receive it. Thus, if a bill be drawn in the regular course of business, as for money really due from the drawee to the drawer, in order to avoid several actions, an indorsee, though he has not given the full value of it, may recover the whole sum payable, and will hold the overplus as trustee for the in- [106] dorser.^ And if the holder receive part payment of the 1 Chitty on Bills, *677. Tlie interest of the acceptor is not liable to be affected by the state of accounts, or equities, between the other parties connected with the bill ; and the only question in which he has any interest is, whether the party seeking to enforce payment by him is the legal owner of the bill, and whether recovery by and payment to such party will be a satisfaction and absolute discharge of his liability upon the bill. Jones v. Broadhurst, 9 M., G. & S. 173 (67 Eng. C. L.), per Cresswell. But Wilde, C. J., said: "Suppose the drawer of an accom- modation bill pays the amount to the holder : what is the i*easonable in- tendment of the payment? If he does not make the payment in satis- faction and discharge of the holder's claim against every party on the bill, what good does he get by changing the plaintiff against him? The drawer of an accommodation bill is, in truth, the only party ultimately liable upon the bill. A person standing in that ])Osition, when he pays the bill, must be understood to make the payment in satisfaction of all claims against any one upon the bill." This case was very thoroughly ar- gued and carefully considered upon principle and authoi'ity. And it was held that a bill accepted for value may be collected by the holder in an action against the acceptor, notwith- standing it has been paid to such holder by the drawer ; it not appear- ing that such payment was made in behalf of the acceptor. It affirms the right of the holder to recover for the use of the party paying him, citing Callow v. Lawrence, 3 M. & S. 95 ; Hubbard v. Jackson, 1 M. & P. 11 (17 Eng. C. L.) ; S. C, 4 Bing. 390 ; 3 C. & P. 134 ; Reid v. Furnival, 1 Cr. & M. 533 ; Ex parte De Tastet, 1 Rose, 10. But if the acceptor has a defense which would be good against the bill in the hands of the party who has paid it to the plaintiff, he may use that as an equitable defense to the extent that the action is prose- cuted for the use of that party. Thornton v. Maynard, L. R. 10 C. P. G95. To a declaration by the holder against the acceptor of several bills of exchange, the defendant pleaded by way of equitable defense that the drawers became bankrupt, and that the plaintiff received 425/. as a divi- dend from their estate on account of the bills, and as to that sum was suing only as trustee for the drawers ; and the plea claimed to set oft" a debt due to the defendant from the draw- ers. Held, a good equitable defense pro tanto. Agra v. Leighton, h. R. 2 Exch. 56; Cochrane v. Green, 9 § 5^1-] NOTES AND BILLS. 1157 first indorser he may, nevertheless, recover the whole af^ainst the drawer and acceptor; though if the latter pay a part then only the residue can be recovered against the former.^ The rule permitting tlie holder of a bill or note to recover more than is due to himself is limited to cases where there is some other person entitled to receive from the defendant the overplus of what is due the plaintiff; and, if there be no such person, the plaintifT will be permitted only to recover what is due himself.' But in case of bankruptcy, though the holder may prove the whole amount under a commission against a remote party, and receive a dividend until his debt is satisfied, he cannot prove for more than the sum actually due on the balance of account against his immediate indorser.' In cases where there is a defense to a note or bill, in whole or in part, it is unavailable, and the sum payable according to its face is recoverable if the paper has passed into or througli the hands of a homi fide holder by successive transfers. The title of an indorsee is the title of all the prior parties.* As soon as it conies into the hands of a holder, as to whom it is C. B. (N. S.) 448; Elkiu v. Baker, 11 id. 5'26; Clark v. Cort, Cr. & Ph. 154. Lord Coleridge, C. J., said : " These cases . . . appear to establish the soundness of these two propositions : 1. That the holder, having been paid a part of the bill by the drawer's trustees, sues as regards that sum as trustee for the benefit of the drawer's trustee; and 3. That where the plaint- iff is suing merely as trustee, and the defendant has a claim against the cestui que trust, wliich but for the intervention of the trust could have been a set-off at law, such claim can be set off in equity. If, then, these two propositions are sound — and we think they are, — it follows that the plea is good, unless the bankruptcy makes a difference. We think it does not." Belohradsky v. Kulm, 69 111. 547 ; Wiffen v. Roberts, 1 Esp. 361 ; Jones v, Hibbert, 3 Stark. 304. 1 Chitty on Bills, *677 ; Walwyn v. St. Quintin, 1 B. & P. 658 ; Johnson v. Reunion, 2 Wils. 263; Ex parte De Tastet, 1 Rose, 10. -Chitty on Bills, *677 ; Pierson v. Dunlop, 2 Cowp. 571 ; Steel v. Brad- field. 4 Taunt. 237 ; Jones v. Hibbert. 2 Stark. 304. A note for a definite sum, given as securitj' for advances, can only be enforced as between the original parties, to the extent of the advances made. Vogan v. Caminetti, 65 Cal. 438 ; Rogers v. Smith, 47 N. Y. 334. 3 Ex parte Bloxham, 6 Ves. 448, 600; Ex parte Leers, id. 644; Chitty on Bills, *678. •« Edwards v. Jones. 2 ]\I. & W. 414: Hunter v. AVilson. 4 Exch. 489; Thiedemann v. Goldsclnnidt, 1 De Gex, F. & J, 10; Robinson v. Rey- nolds, 2 Q. B. 202, 210; Hoffman v. Bank of Milwaukee. 13 Wall. 181; United States v. Bank of Metropolis, 15 Pet. 393. 1158 NOTES AND BILLS. [§ 541. not subject to defenses and equities good between antecedent parties, its character as a negotiable security is established, and he can transfer it with that immunity.' But if the h£)lder [107] has paid less than full value for the paj^er, his privi- lege as hona fide holder to exclude defenses attaches, accord- ing to some authorities, only in respect to the amount he has paid. As to the remainder there is no privilege; it is open to defenses.^ Mr. Daniel says that " where some legal con- 1 Hascall v. Whitmore, 19 Me. 103 ; Thomas v. Newton, 2 C. & P. 606 ; Smith V. Hiscock, 14 Me. 449 ; Solo- mon V. Bank of England, 13 East, 135, note b ; Haley v. Lane, 2 Atk. 182 ; Woodman v. Churchill, 52 Me. 58 ; Woodworth v. Huntoon. 40 111. 131 ; Bassett v. Avery, 15 Ohio St. 299; Watson v. Flanagan, 14 Tex. 354 ; Masters v. Ibberson, 8 C. B. 100 ; Prentice v. Zane, 2 Gratt. 262 ; Hereth V. Merchants' Nat. Bank, 34 Ind. 380 ; Simonds v. Merritt, 33 Iowa, 537; Peabody v. Rees, 18 id. 571 ; Morn- yer v. Cooper, 35 id. 257 ; Boyd v. McCann, 10 Md. 118; Cook v. Larkin, 19 La. Ann. 507. See Kost v. Bender, 25 Mich. 515. 2 Huff V. Wagner, 63 Barb. 215; Hargee v. Wilson, id. 237. In Huff V. Wagner Talcott, J., discusses this point: "The special term granted a new trial upon the exception to the ruling as to the ad- mission of the evidence, and upon the principle that a bona fide holder of commercial paper, to which, as between maker and jiayee, there is a good defense, is entitled to be pro- tected only to the extent of the value he has paid. This, I think, is correct. The protection of the holder in such cases, as in other cases where the law protects bona fide purchasers against latent claims, is founded upon the idea of protecting such bona yide purchaser for value against any possible loss. And this is the precise reason why a bona fide holder of such paper, which has been trans- ferred to him to secure an antece- dent debt, cannot recover against the party who has been defrauded ; namely, that he has lest nothing by his reliance upon the face of the paper. These principles are dis- cussed and laid down in a very elab- orate opinion of the late chancellor, delivered in the court of errors in the leading case of Stalker v. Mc- Donald, 6 Hill, 93, in which he ex- pressly holds that if the holder of such paper has paid but a part of the consideration or value of the prop- erty, he is only entitled to be consid- ered as a bona fide purchaser pro tanto; and refers with approbation to the case of Edwards v. Jones, 7 C. & P. 633, in which, in an action on a note for £100, the consideration of which was impeached by a plea, the plaintiff replied that it was indorsed to him for the consideration of £49. And he was only permitted to re- cover the £49 advance. The propo- sition sought to be maintained by tiie counsel for the appellant iu this case, namely, that whatever may have been the consideration of the transfer of a negotiable note, if it was a valuable one, the holder, with- out notice of the invalidity of the note, may recover the entire face thereof, without reference to the amount paid by him for it, would produce most unjust and startling results. It would enable the holder of a stolen note for $1,000 to recover 541.] NOTES AND BILLS. 1159 sideration exists in the inception of the paper, it seems that in New York the hona Jide holder may recover the full the entire amount thereof from the maker, from whom it had been stolen, although the holder had pur- chased the same witliout notice for only $100 — a result revolting to common sense, and going far beyond affording that protection which pub- lic polic}' requires should be extended to the parties who purchase negoti- able paper for value. I see no rea- son for any distinction between the case of a purchaser for money, and [108] one where the note is ex- changed for property. If such a dis- tinction could be made the maker of the note would have no protection. Such notes would then be used in the purchase of property, as in this case, mstead of sold for money. The purchaser is fully protected against loss by being enabled to recover the full value of the property parted with on the purchase. " The doctrine laid down in Stalker V. McDonald was also expressly held in Williams v. Smith, 2 Hill, 301, and in Youngs v. Lee, 18 Barb. 187, in which Mr. Justice Welles, delivering the opinion of the court, said: 'It follows that the plaintiffs are hona fide purchasers and holders of the note upon which the action is brought, and entitled to recover from the indorsers the amount they paid for it and no move.' The case of Youngs v. Lee was affirmed on appeal. 13 N. Y. 551. The same principle was asserted in Cardwell T. Hicks, 37 Barb. 458. The truth is, that in such cases the holder, except so far as he has parted with value, has no equity superior to that of the party defrauded. There is a remark- able silence on this precise point in most of the elementary works I have examined. It is, however, explicitly laid down in Story on Bills, § 188, that where a bill has been obtained by fraud a bona fide holder can only recover the amount he has advanced. The English cases, where a question of this character appears to have been presented, appear, generally, to have been between the bona fide holder and the accommodation maker or indorser ; and in such cases it has always been ruled that the holder only recovers the amoimt of his advances. See Chitty on Bills, 81 ; Nash V. Bnnvn, id. 81, note 1 ; Wif- fen V. Roberts, 1 Esp. 261 ; Jones v. Hibbert, 3 Stark. 304; Simpson v. Clarke, 2 Cr., M. & R. 343. I do not perceive any reason why a bona fide holder for value may not recover the full face of the note without regard to the amount he has advanced, as well where he sues a mere accommo- dation maker as where he sues one from whom the note was obtained by fraud. In either case the amount of the recovery is limited to the amount advanced by the holder, be- cause there was no sufficient valid and valuable consideration for the making of the note; and the right to recover at all grows out of the ad- vance which has been made by the holder, which gives it validity in his hands to that extent I think the discussions and opinions in the Eng- lish cases show that this point has not been considered debatable where the note was obtained by false and fraudulent representations. Indeed, I think that until quite recently it has been assumed at nisi prins in this state that a holder of such paper for value and without notice was en- titled to be protected to the extent of his advances, and no more. Tiie point has been expressly decided in 1160 NOTES AND BILLS. [§ 541. amount, no matter what amount he may give for it.^ This seems to us the true distinction in such cases. If the paper is issued in fraud without consideration, the hona fide pur- chaser should be limited in recov^ery to the amount paid with Holman v. Hobson, 8 Humph. (Tenn.) 127, and in Bethune v. McCreary, 8 Ga. 114. " It is claimed by the counsel for the respondent that tlie case of The Essex County Bank v, Russell, 29 N. Y. 673, countenances the doctrine maintained by him. There a bank had discounted or piircliased a note which was diverted, and gave as the proceeds of the discount a part in cash and the balance in a note held by it, made by one Brewster, and in- dorsed by other parties, which was past due and under protest. The bank was allowed to recover the whole amount of the diverted note, on the ground that it was a hona fide holder for value, and upon the express ground that the Brewster note which constituted a part of the consideration on the purchase, al- though under protest, was worth its nominal amount, and was good and collectible. And the principle laid down in Stalker v. McDonald, on this point, seems to have been ex- pressly recognized as law. Mr. Jus- tice Hogeboom says, speaking of the plaintiffs (the bank): 'They were, therefore, on discounting this note, hona fide Jiolders of it for value, at least to the extent of the sum ad- vanced in cash, on the discount; and to that extent, at all events, they ivould he entitled to recover in this action. ... It becomes neces- sary to determine whether the plaint- iffs are bona fide holders of the note in suit, in such a sense as to exclude the defense of its misapplication, so far as respects the part of the dis- count which was appropriated to the purchase of the Brewster paper. There was no want of consideration on the part of the plaintiff to the full amount of the note in suit in the transaction in question. The Bretv- ster note ivas, though overdue, good and collectible paper. It was tvnrih its nominal amount, and ivas col- lectible for tivo years afterwards. It was a chose in action which the plaintiff had a right to sell and trans- fer to Comstock. To the full extent of its value it was a valuable consid- eration.' The case of The Park Bank V. Watson, 42 N. Y. 490, is claimed by tlie counsel for the appellant to have overruled the former cases on the subject and to have established the doctrine for which he contends. In that case the Park Bank had sur- rendered notes held as collateral se- curity for a debt due it, on receiving the notes in suit, which proved [109] to have been diverted. One of the notes surrendered was the note of Thomas Parks, shown on the trial to be irresponsible. The defendant's counsel had requested the court to charge 'that the plaintiff cannot re- cover for any amount beyond that which remained after deducting the Parks note.' The request being re- fused, an exception was taken. The only opinion in the case is that of Judge Lott, who says : ' The surren- der of those notes, under the decision in Brown v. Leavitt, 31 N. Y. 113, 1 1 Neg. Inst. (4th ed.), § 758, refer- amount reserved by the holder, but ring to Howe v. Potter, 61 Barb. 357. it appears to have been a full recov- '•In this case nothing is said as to the ery upon the draft." § ^^11-] NOTES AND BILLS. 1161 interest.^ But if there was an original valid consideration, or the paper was issued fairly and intentirnally without consid- eration, then he is entitled to recover tiie wliole amount re- gardless of the amount he pays."^ The doctrine of the text is not sustained by some courts. Thus it is said in Iowa: " The defense that a note has been obtained fraudulent!}', or without consideration, does not avail against a hona fide holder. If, however, the recovery of such holder may be lim- ited to the amount paid, it is apparent that the defense does ant in that case was that the judge and tlie cases there cited, made the bank a holder for value, and entitled it to recover the full amount claimed in those actions, without deducting the amount of the note of Parks.' "The question iu Brown v. Leavitt was simply whether the surrender and delivery up to the debtor of an existing note, and receiving another in payment of it, constituted a valu- able consideration within the mean- ing of the rulev/hieh protects a hona fide purchaser for value against de- fenses existing between prior parties ; and neither in that case, nor in any one of the cases there cited, was any question presented like that in the case at bar ; unless it be iu the cases of Stalker v. McDonald and Youngs V. Lee, in which cases the doctrine laid down was, as we have seen, di- rectly contrary to the position of the appellant here. I have looked into the original points and case on the argument iu the court of appeals of The Park Bank v. Watson, and find that it was claimed there by the plaintiff that, notwitlistanding tiie ev- idence touching the irresponsibility of Parks, the maker of one of the notes surrendered, his note was nev- ertheless of value, and would prob- ably liave been paid. It cannot be affirmed that a particular note of a party, shown to be of the character and in the position sncli as that of Parks, is wholly valueless. Now the request of the counsel for the defend- charge that the entire amount of the Parks note must be deducted from any recovery. Upon well settled practice this request was too broad, as the note of Parks had some value, and an exception to the refusal to charge as requested was therefore un- available; and the remark of Justice Lott, which has been quoted, so far as it is supposed to countenance the idea that the holder of negotiable paper, in good faith, for value, to which there is a defense as against the party from whom the holder re- ceived it, may recover the full face of the paper without regard to the amount he has paid for it, if not in- advertent, was at least unnecessary to the decision, and wholly unsup- ported by the authorities on which it was supposed to have been placed." Gilbert v. Duncan, 29 K J. L. 133; Holcomb V. Wyckoff. 35 id. 35: Moore v. Ryder, 65 N. Y. 438 ; Todd V. Shelbourne, 8 Hun. 510; Ingalls v. Lee, 9 Barb. 647 ; Allaire v. Harts- horne, 21 N. J. L. 665: Robbins v. Maidstone. 4 Q. B. 811; Williams v. Smith, 2 Hill, 301 ; Valette v. Mason, Smith (Ind.), 89; Cook v. Cockrill. 1 Stew. 475, See Grand Rapids, etc. R. Co. V. Sanders, 17 Hun, 552. 1 Holcomb V. Wyckotr, 35 N. J. L. 38. '- See Daniels v. AYibon, 21 Minn. 530. 1162 NOTES AND BILLS. [§ 542. avail, for without such defense he would recover the amount evidenced by the note." ' And in ]\Iichigan that "the maker of a note has no concern with the amount paid for it by a hona fide purchaser," ^ This is the doctrine of the federal su- preme court where the purchaser of a negotiable security is not individually chargeable with fraud.* If the maker of a non-negotiable note is not responsible for the value of it as it is ex])ressed on its face an assignee cannot collect such value from his assignor if the latter shows that the price paid him for it w^as less than its face. Prima facie that is its value; but it is not conclusively so. The assignor's liability is the amount received with interest.* [110] § 542. Want or failure of consuleratioii. It is es- sential to the validity of every contract that it be based on a sufficient consideration. Notes and bills are not exceptions; some consideration there must be;^ but they import a con- sideration; that is, in the absence of any express admission a consideration is presumed by law to exist, not only between the original parties, as maker and payee of the note, or drawer and acceptor of a bill, but also between other and subsequent parties. In suing upon these contracts no special averment or proof of consideration is necessary;^ the aver- 1 Lay V. Wissman, 36 Iowa, 305. the words " value received," they are ^ Vinton v. Peck, 14 Mich. 287, 296. ip^'ima facie evidence of considera- 3 Cromwell v. County of Sac, 96 tion. See Holliday v. Atkinson, 5 U. S. 60; Railroad Cos. v. Schutte, B. & C. 501; Bristol v. Warner, 19 103 id. 118. Conn. 7. In Richardson v. Conistock, •» Foust V. Gregg, 68 lud. 399 ; 21 Ark. 69, it is held that a note in the Schmied v. Frank, 86 Ind. 250. hands of the payee is prima facie 5 Fowler v. Shearer, 7 Mass. 14, 22 ; evidence of consideration, the words Jennison v. Stone, 33 Midi. 99. " value received " being in it. Tlie ^ In Bourne v. Ward, 51 Me. 191, opinion says, " the note upon its face it was held that negotiable notes, furnishing prima facie evidence of when they have passed into the consideration, as held by a series of hands of indorsees in the usual adjudications of this court." Gage v. course of trade, enjoy the privilege Melton, 1 Ark. 228; Rankin v. Bad- of having a consideration presumed, gett. 5 Ark. 346 ; Greer v. George, 8 But notes not negotiable, and uego- Ark. 133; Cheny v. Higginhotliam, tiable notes while in the hands of the 10 id. 273; Dickson v. Burks, 11 id. payee, en joy no such pi-ivilege. . Bris- 307. The cases in 8 and 10 Ark. tol V. Warner, 19 Conn. 7 ; Delano v. were upon promissory notes — but Bartlett, 6 Cush. 364 ; Burnham v. the notes are not set out — and Allen, 1 Gray, 496. If they contain whether the words " value received" § 512.] NOTES AND BILLS. 1103 ment and proof of a contract of such nature includes [111] this essential element. But the presumption of consideration is not conclusive between the immediate parties, nor, indeed, between remote parties, except in favor of a honafide holder for value.^ It is not within the object of the writer to discuss in detail the law which defines a honafide holder for value; but i-ather what deductions are authorized where the paper is open to defenses. If there is a total ivant or a total failure of con- sideration, there can be no recovery ; the essential basis of a bindino- contract is then shown to be wanting'.'-' Fraud vitiates a contract; and, at the election of the defrauded party, it may be avoided ; but, if not avoided by him, it is only available are in them or not does not appear. The decisions seem to proceed on the ground that, as promissory notes, they import a consideration. Story on Prom. Notes, § 181 ; Chitty on Bills, pp. 78, 85. Where one consid- eration of a note has been nega- tived by breach of warranty, there can be no presumption, in the ab- sence of evidence, that there was any other. In such a case tiie maker is not obliged to prove that there was no other considei-ation. Aid rich v. Stockwell, 9 Allen, 45. 1 Hoflfman v. Bank of Milwaukee, 13 Wall. 181; Lenheim v. Fay, 27 Mich. 70; Crossly v. Ham. 13 East, 49S; Goodman v. Harvey, 4 A. & E. 870; Hannover v. Doane, 12 Wall. 342; Andrews v. Pond, 13 Pet 65; Skilding v. Warren, 15 Johns. 270; Fisher v. Leland, 4 Cush. 456; Ry- land V. Brown, 2 Head, 270 ; Norvell V. Hudgius, 4 Munf. 496; Hnrrisburg Bank v. Meyer, 6 S. & R. 537 ; Thrall V. Horton, 44 Vt. 386 ; Lawrence v. Stoniugton Bank, 6 Conn. 521 ; Tay- lor V. Mather, 3 T. R. 83, note ; Brown V. Davies, id. 80 ; Avers v. Hutchins, 4 Mass. 370; TliompSon v. Hale. 6 Pick. 259; Boggs v. Lancaster Bank, 7 W. & S. 331 ; Tucker v. Smith, 4 Me. 415; Brown v. Turner, 7 T. R. 630; Conger v. Armstrong, 3 Johns. Cas. 5 ; Conroy v. Warner, id. 259 ; Amoiy v. Merry weather, 2 B. & C. 573; Evans v. Kymer, 1 B. & Ad. 528 ; Kasson v. Smith, 9 Wend. 437 ; Steers v. Lashley, 6 T. R 61 ; Walker V. Hagert}% 46 N. W. Rep. 221 ; 30 Neb. 120. 2 Warner v. Crouch. 14 Allen, 163; Starr v. Torrey, 22 N. J. L. 190; Buckles V. Cunningliam, 6 S. & M. 368; Clough v. Patrick. 37 Vt. 421; Grant v. Townsend, 2 Hill, 554 ; Saw- yer V. Chambers, 44 Barb. 42 ; Cragin V. Fowler. 34 Vt. 326 ; Payne v. Cut- ler, 13 Wend. 605: French v. Gor- don, 10 Kan. 37't ; O'Neal v. Bacon, 1 Houst. (Del.) 215; Morrill v. Aden. 19 Vt. 505 ; Case v. Gerrish, 15 Pick. 49; Rice v. Goddard, 14 id. 293; Dickinson v. Hall, id. 217; Jolitle v. Collins, 21 Mo. 338; Smith v. Brooks, 18 Ga. 440; Washburn v. Picot. 3 Dev. 390: Aldrich v. Stockwell. 9 Allen, 45; Tillotson v. Grapes. 4 N. H. 444; Dunbar v. Marden. 13 id. 311; Jackson v. Warwick, 7 T. R. 121. See Diefendorff v. Gage. 7 Barb. 18 ; Fitch v. Redding, 4 Sandf. 130. 1164 NOTES AND BILLS. [§ 542. [112] as ground for a cross-aotion or recoupment, which is of the same nature; or as a defense where the fraud has directly caused a want or failure of consideration.^ A total failure of consideration nullifies a contract equally as a total want of consideration prevents its inception. Accommodation ])ap£r is without consideration in the hands of the accommodated parties.^ Xor can a note be supported as a gift; for a gift is not consummate and ])erfect until a delivery of the thing- promised; and, until then, the party may revoke his promise.^ If a note or bill be given for property as purchased which has no existence, there is no consideration ; ^ and it is the same if property bought is wholly without value.^ A note or bill given for the price of a void or worthless patent right is with- out consideration.^ So a contract by note, bill or otherwise, to ])ay purchase-money of land conveyed by a void deed, as when made by a married woman;' or by a valid deed with covenants of warranty, by which no right or title passes.** And where property, either personal or real, is purchased with warranty of title or quality, and it turns out that there is no title in the vendor, or that the property is destitute of the warranted quality and is worthless, and no actual benefit JAndrevi-s v. Wheaton, 23 Coon. ^3 Kent's Com. *468; Hastie v. 112; Wriglit V. Iiwiu, 33 Mich. 32; Couturier, 9 Exch. 102; Barr v. Gib- Thornton V. Wyun, 12 Wlieat. 183 ; son, 3 M. & W. 390 ; Strickland v. Withers v. Greene, 9 How. (U. S.) Turner, 7 Exch. 208 ; Allen v. Ham- 213; Drew v. Towle, 27 N. H. 412; niond, 11 Pet. 63. Stone V. Peake, 16 Vt. 213; Clopton & Arnold v. Wilts, 86 Ind. 368 V. Elkin, 49 Miss. 95 ; Nichols v. Hun- Brown v. Weldon, 27 Mo. App. 251 ton, 45 N. H. 470 ; Southall v. Rigg, Shepherd v. Temple, 3 N. H. 455 4 Eng. L. & Eq. 3G6 ; S. C, 20 L. J. Ramsey v. Sargent, 21 id. 397 ; Perley (C. P.) 145; French v. Gordon, 10 v. Balch, 23 Pick. 283; O'Neal v. Kan. 370; Morrill v. Aden, 19 Vt. Bacon, 1 Houst. (Del.) 215. 505; Lewis V. Cosgrave, 2 Taunt. 2. ^gmitii v. High tower, 76 Ga. 630; See Carpenter v. Phillips, 2 Houst. Clough v. Patrick, 37 Vt. 421 ; Joliffe (Del.) 524. V. Collins, 21 Mo. 338; Dickinson v. 2 Jackson v. Warwick, 7 T. R. 121 ; Hall, 14 Pick. 217. But see Miller v. Knight V. Hunt, 5 Bing. 432 ; Spar- Fiuley, 26 Mich. 249. row V. Chisman, 9 B. & C. 241 ; ^ Warner v. Crouch, 14 Allen, 163 ; Thompson v. Clubley. 1 M. & W. 212. Grout v. Townsend, 2 Hill, 554. 3 Nash V. Brown, Chitty on Bills, 8 Rice v. Goddard, 14 Pick. 293 ; *74, note x ; Edw. on Bills & N. 307 ; Fisher v. Salmon, 1 Cal. 413. Fink V. Cox, 18 Johns. 145 ; Easton V. Pratchett, 1 Cr., M. & R 798. § 542.] NOTES AND HILLS. 1105 is transferred to the purcliaser, the warranties will not consti- tute a consideration.^ Where the maker and payee of a note were owners of [113] land, and the former took a conveyance of it to sell it on joint account, and gave the note as security for prompt pa^nnent of the purchase-money when the land should be sold, a de- fense to the note of a want of consideration was held good until the sale was raade.^ A want of consideration destroys the validity of a contract without regard to the hona fides of the transaction; as where the defendant promised as admin- istrator to pay a given sum for value received by one of the heirs of the intestate; or where a debtor pays part of his debt before it is due, and a note is given him instead of a re- ceipt to show that he is allowed interest on the sum paid; or where a note is given in renewal of another which was not founded on any consideration ; or is given to a widow for a debt due to her deceased husband's representatives; or where it is given to the mother of a child that has been beaten to stay a prosecution for the injury; or where it is given on a mere moral or honorary obligation, not on anytliing which the law esteems a valuable consideration.^ A total failure of consideration occurs where there was a consideration at the inception of the contract and it subsequently becomes wholly nugatory. This may be illustrated by a note or bill given for the purchase-money of goods to be subsequently delivered at a stated time, and a failure to deliver the same.* Where a note was given in consideration of the relation of apprentice- ship which the parties supposed was to be created between the maker's son and the payee, but which relation at the time of the trial it appeared never did exist between them, it was 1 Rice V. Goddard, 14 Pick. 293 ; 2 Marsh v, Bennett, 22 III. 313. Dickinson v. Hall, id. 217 ; Aldrich v. 3 Edwards on Bills, 327 ; Ten Eyck Stockwell, 9 Allen, 45; Shepherd v. v. Vanderpool, 8 Johns. 120; Schoon- Temple, 3 N. H. 455 ; Mason v. Wait, maker v. Roosa, 17 id. 300 ; Crofts v. 5 111. 127. See Owings v. Thompson, Beale, 5 Eng. L. & Eq. 408 ; S. C. 20 4 id. 502; Vincent v. Morrison, 1 id. L. J. (C. P.) 186; 15 Jur. 709; Slade 227 ; Lamerson v, Marvin, 8 Barb. 9 ; v. Halstead, 7 Cow. 322 ; Geiger v. Hoy V. Taliaferro, 8 Sm. & M. 727 ; Cook, 3 W. & S. 2G0 ; Bryan v. Phil- Furniss v. Williams, 11 111. 229 ; Clark pot, 3 Ired. L. 4G7 ; Heast v. Sybert, V. Snelling, 1 Ired. 382; Wilson v. Cheeves, 177. Jordan, 3 Stew. & P. 92. ■« Wells v. Hopkins, 5 M. & W. 7. 11G6 NOTES AND BILLS. [§ 543. held the consideration wholly failed. By the statute of Anne [114-] the duty was laid on the master in consideration of the premium received by him to have the same inserted in the indenture, and that instrument properly stamped. He having failed to perform that duty, and the time for it having ex- pired, the relation was not instituted.^ § 543. Partial want of consideration. Partial want of con- sideration avoids a note or bill pro tanto where the holder is subject to defenses relating to the consideration; as where a note is given on a settlement of account by mistake for more than is due; ^ and w^here a bill is drawn as to part for value, and as to the remainder for the accommodation of the plaint- iff, the recovery will be limited to the consideration of value ; ^ and it may be stated generall}'' that where a note or bill is given for several distinct considerations and one is not a con- sideration which the law deems valuable, so much of the promise as is founded upon that consideration is void, and there will bs a deduction from the amount of the paper of so much as was included for that element of the consideration which is invalid; * and this partial defense is available although the amounts of the several considerations are not liquidated and fixed by the parties. In such case if one of two independent considerations on which a note is founded is one which the law deems valid and sufficient to support a contract, and the other not, the note will be apportioned as between the orig- inal parties or such as have the same relative rights, and the holder will recover to the extent of the valid consideration and no further; and the question what amount was founded 1 Jackson v. Warwick, 7 T. R. 131. Backhouse, Peake, 61 ; Sparrow v, 2 Mercer v. Clark, 3 Bibb. 224; Clirisman, 9 B. & C. 241 ; Lewis v. Phetteplace v. Steere, 2 Johns. 442 ; Cosgrave, 2 Taunt. 2 ; Wintle v. Crow- Forman v. Wright, 11 C. B. 481. See ther, 1 Tyr. 213 : Gascoyne v. Smith, Briscoe v. Kenealy, 8 Mo. App. 76. McClel. & Y. 338 ; Stephens v. Wil- 3 Darnell v. Williams. 2 Stark. 166. kinson, 2 B. & Ad. 320 ; Barker v. 4 Bates V. Butler. 46 Me. 387; Par- Morton, 7 Up. Can. App. 114; Allaire ish V, Stone, 14 Pick. 198; Collins v. Hartshorue, 21 N. J. L. 665 ; Payne Iron Co. V. Burkam, 10 Mich. 283; v. Ladue, 1 Hill, 116. But see Lash v. Great Western Ins. Co. v. Rees, 29 111. McCormick, 17 Minn. 403 ; Walters v. 272; Clopton v. Elkin, 49 Miss. 95; Armstrong, 5 id. 448; Leighton v. Goss V. Whitehead, 33 id. 213 ; Wilson Grant, 20 id. 345 ; Whitacre v. Culver, V. Forder, 20 Ohio St 89 ; Barber v. 9 id. 295. § 544.] notp:s and bills. 1107 on one consi.lcration and what on the other will be set- [115] tied by the jury upon the evidence.^ § 544. Partial failure of consideration. A partial failure of consideration is a subject on which there has been much conflict of authority. On principle there should be no differ- ence between partial failure and partial want of considera- tion in respect to the mode of arriving at certainty of [110] 1 Parish v. Stone, 14 Pick. 198 ; Lor- ing V. Sumner, 23 Pick. 08. In Parish v. Stone, Shaw, C. J., said : " It seems very clear that want of consideration, either total or par- tial, may always be shown by way of d fense: and that it will bar the action, or reduce the damages from the amount expressed in the bill, as it is found to be total or partial re- spectively. It cannot, therefore, in such a case depend upon the state of the evidence whether the different parts of the bill were settled and liquidated by the parties or not. Where the note is intended in a great degree to be gratuitous, the parties would not be likely to enter into very particular stipulations as to what should be deemed payment of a debt and what a gratuity. The rule to be deduced from t!ie cases seems to be this: that where the note is not given upon any one consideration, which, whether good or not, whether it fail or not, goes to the whole note at the time it is made, but for two distinct and independent considerations, each going to a distinct portion of the note, and one is a consideration which the law deems valid and sufficient to support a contract, and the other not, there the contract shall be ap- portioned, and the holder shall re- cover to the extent of the valid con- sideration, and no further. In the application of this principle there seems to be no reason why it shall depend upon the state of the evidence shovv-ing that these different parts can be ascertained by computation ; in other words, whether the evidence shows them to be respectively liqui- dated or otherwise. If not, it would seem that the fact, wh.nt amount was upon one consideration and what upon the other, like every other questionable fact, should be settled by the jury upon the evidence. This can never operate hardly upon the holder of the note, as the presump- tion of law is in his favor as to the whole note ; and the burden is upon the defendant to show to what ex- tent the note is without considera- tion. Suppose a father proposes, upon his son going into business, to aid him by an advance of several thousand dollars, and for that pur- pose gratuitously offers him his note for that svmi ; but as his son had per- formed services to the value of a few dollars, for which no price was agreed, upon giving his note the father, intending to cancel and dis- charge that and all other claims, takes a general receipt for all serv- ices and other dues, and afterwards, the note not having been negotiated, a suit should be brought on it by the paj-ee against the maker, might not the defendant show the want of con- sideration by way of defense p7'o tanto? And yet the amount must be settled by a jury ; the evidence of the original agreement not distin- guishing between what was payment and what was gratuity." Pacific Iron Works v. Newhall, 34 Conn. 67. 116S NOTES AND BILLS. [§ 54:1. amount to be deducted on that account. Wherev^er the amount is provable for the ])urpose of a defense pro tanto on the ground of a partial want of consideration it ought to be prov- able for a like defense if the consideration has partially failed. In an English case, decided in 1824, it was declared that a partial failure of the consideration of a promissory note consti- tutes no ground of defense, if the qxtantum- to be deducted on that account is not of definite computation, but of unliquidated damages.^ It was a case in which, according to the report, the real ground of complaint was inadequacy, and not part failure of consideration. A note was given for 20^. for the plaintiffs' disclosing to the defendant an improvement in certain machin- ery, which turned out to be less henejickd than was anticipated by the parties. The improvement was not entirely useless ; and therefore the sum agreed to be paid for the disclosure, although disproportionate to the benefit received, was not without consideration. In the absence of any warranty, or undertaking of the promisee in respect to the extent to which the improvement should be beneficial, the promisor bought the disclosure for such benefit, more or less, as he could de- rive from it ; if small, he was obliged to be content ; no ele- ment he had contracted for and had a right to exact from the seller was wanting; if large, even beyond expectation, the seller was obliged to be content; he reserved no right to re- quire more to be paid.^ There is an important difference between a want or failure of consideration and its inadequacy. If the consideration is of value, it is sufficient, although it is not adequate in the sense of being equal. A consideration is not deficient merely be- cause the undertaking based upon it is of very much greater value. No defense of want or failure of consideration can be grounded on any such disparity. There is no want of consid- eration where the promisor has received all he bargained for, and it is of some value ; nor is there, under such conditions, a failure of consideration. It is enough that he gets all that he is entitled to exact from the other. A party entering into a contract is admonished by the law that it fixes no values ex- [117] cept of money ; that the amount which may be recovered 1 Day V. Nix, 9 Moore, 159. 2 gee Agra v. Leighton, L. R. 2 Exch. 56. § 544:.] NOTES AND BILLS. 1169 from him on his express promise is not the absohite value of what he receives, as evidence might establish it, but the sum which he agrees, on his own judgment, and with a view to his own purposes, to pay for it. A purchaser is subject to the rule of caveat emptor; and although he may suppose that the subject of purchase has qualities of which it is in fact destitute, and for that reason engages to pay a sum for it greatl}^ in ex- cess of the true value, he is entitled to no redress on that ac- count, and can ask for no abatement of the requirements of his contract in any such case which is unaffected by fraud or warranty. In modern times the necessity for bringing cross-actions has been abridged by the practice and legislation increasing the scope of defenses as to matters connected with the con- sideration, not only of commercial paper, but of all other contracts. By the common law, even in an action on a quan turn meruit for work done, there was, as late as the beginning of the present century, a hesitation in the English courts to allow the defendant to prove in reduction of damages that the work was done in an improper and insufficient manner; it was doubted whether a cross-action should not be brought.^ In an action of assumpsit for rebuilding the front of a house the defendant showed under a plea of non assumpsit that the work was badly done. There was a conference of the English judges in respect to allowing such defense. Its allowance was treated as a departure from the previous practice.- It was resolved that the correct rule was, that if there has been no beneficial service there should be no pay ; but if some ben- efit has been derived, though not to the extent expected,' this should go to the amount of the plaintiff's demand.^ Lord Ellenborough said : " Where a specific sum has been agreed to be paid by the defendant the plaintiff may have some ground to complain of surprise if evidence be admitted to show the work and materials provided were not worth so much as was contracted to be paid; because he may only come prepared to prove the agreement for the specified sum and the work done. But where the plaintiff comes into [118] 1 Basten v. Butter, 7 East, 479. 3 Ibid. 2Farnsworth v. Garrard, 1 Camp. 38. Vol. 11 — 74 1170 NOTES AND BILLS. [§ 545. court upon a quanUim meruit he must come prepared to show that the work done was worth so much, and therefore there can be no injustice in suffering the defense to be entered into even without notice." ^ And it was added by another mem- ber of the court, that " if even a specific sum had been agreed to be paid, and notice given, then the defendant should be let into the defense. For after all, considering the matter fairly, if the work stipulated for at a certain price were not properly executed the plaintiff would not have done that which he en- gaged to do, the doing of which would be the consideration of the defendant's promise to pay, and the foundation on which his claims to the price stipulated for would rest ; and, therefore, especially if he should have notice that the defend- ant resists payment on that ground, he ought to come prepared with proof that the work was executed properly." ^ Thus the practice came into vogue of making defenses, for defect of consideration, to actions for fixed or agreed sums. But this was not permitted in England where a note or bill had been given. It was held there pretty uniformly that a partial fail- ure of consideration was no defense in such cases.^ The giving of such paper was treated, in respect to such a defense, as the payment of so much cash.^ This distinction has not been recognized by the American courts. Where the action is between the original parties or others holding the paper subject to defenses, a partial failure of consideration can be set up as a partial defense ; in the latter case it is available to the same extent as though the action were brought by the original party and founded on the original contract or con- sideration.^ § 545. Same subject. Many American cases hold that a partial failure of consideration is not available ; that the defend- ant must resort to his cross-action." Occasionally a partial fail- [119] ure is allowed if the amount to be deducted on that 1 Basten v. Butter, 7 East, 479. But see De Sewhanberg v. Buchanan, 2 Id., per Lawrence, J. 5 C. & P. 343. s Morgan v. Eichardson, 1 Camp. * Warwick v. Nairn, 10 Exch. 762 ; 40 ; Tye v. Gwynne, 2 id. 346 ; Trickey Jones v. Jones, 6 M. & W. 84. V, Larne, 6 M. & W. 278 ; Sully v. 5 Wyckoff v. Runyan, 33 N. J. L. Frean, 10 Exch. 535; Georgian Bay 167; Batterman v. Pierce, 3 Hill, 171; L. Co. V. Thompson, 35 Up. Can. Q. B. Smith v. Smith, 30 Vt. 139. 64 ; Gascoyne v. Smith, McC. & Y. 338. « Washburn v. Picot, 3 Dev. L. 390 ; § 545.] NOTES AND BILLS. 1171 account is liquidated and may be ascertained by mere computa- tion. In a New Hampshire case a note was given for seventeen articles of machineiy, with no separate valuation ; five of the articles were at the time under a valid attachment against the vendor, and were afterwards sold under execution in the attachment suit. In an action on the note an abatement was claimed by the defendant for part failure of consideration be- cause of their loss. The court say : " To this extent the con- sideration has failed ; and had there been a specific value fixed to the articles when the defendant purchased them, the amount could now be deducted and allowed in this suit. But the value was not fixed. The whole seventeen articles were sold for $1,200, and whether these five were worth five-seven- teenths of that sum, or one-half, or one-third, or what they were worth, is a matter entirely unliquidated; and upon the authorities cited, the ruling of the court excluding the defense was correct." ^ This strict rule has been changed in that state and in several others by statute ; ^ and in many others it has been departed from upon general principles. In Maine an action was brought on a note given for the good will and prac- tice of a physician ; the defense was that after a certain period subsequent to the sale the vendor resumed practice in the same town. It was held that by such resumption the vendor deprived the defendant of a part of the consideration of the note, and although the injury was unliquidated it might be proved in mitigation of damages. "Wells, J., said : " If there be a sale of two chattels for a gross sum and a note given for the price, and one of the chattels is not the property of the vendor, and a partial want of consideration may be shown, why sliould not the same defense be allowed if both of the chattels were the property of the vendor, and the title passed to the vendee, but the vendor destroyed one of them before delivery ? In one case there is a want of consideration [120] Russell V. Splater, 47 Vt. 273 ; Berlin 230 ; Merrill v. Aden, 19 Vt. 505 ; V. Schermerhorn, 21 Vt. 189; Jordan Craigin v. Fowler, 34 Vt 326; Hack- V. Jordan, Dud. (Ga.) 181 ; Hinton v. ett v. Schad, 3 Bush, 353. Scott, id. 245; Scudder v. Andrews, i Riddle v. Gage, 37 N, H. 519; 3 McLean, 464 ; Stone v. Peake, 16 Vt. Drew v. Towle, 27 N. H. 412 ; Kirk- 213; Carpenter v. Phillips, 2 Houst. patrick v. Muirhead, 16 Pa. St 117. (Del.) 524 ; Thrall v. Horton, 44 Vt See Dyer v. Homer, 22 Pick. 253. 386 ; McClain v. Williams, 8 Yerg. 2 Clough v. Baker, 48 N. H. 254. 1172 NOTES AND BILLS. [§ 545. at the time when the contract is made to the extent of the value of one of the chattels ; in the other a failure of it to the same extent caused by the misconduct of the vendor. There does not appear to be any good reason why the maker of the note miMit not defend on one e:round as well as the other."' In Minnesota and Oregon it has been held that a partial fail- ure of consideration, though unliquidated, is available as a de- fense to the extent of the failure.^ A partial failure of consideration of a note given for the price of property sold, caused by breach of warranty, fraudu- lent misrepresentations or fraudulent overcharge, may be shown in mitigation of damages.^ A covinous note given to defraud creditors cannot be avoided by the maker for the fraud ; it may be enforced against him ; the statute declares the invalidity of the note only as to the party or parties [121] whose right, debt or duty is attempted to be avoided.* 1 Herbert v. Ford, 29 Me. 546. The learned judge continued : " Accord- ingly it was held in Dyer v. Homer, 22 Pick. 253, where there was a sale of chattels which was considered valid between the parties, but not so as to attaching creditors, and some of the chattels were taken and held by an attaching creditor, that the maker of the note given for them might prove the failure of the con- sideration in an action on the note. . . . If Clark, by resuming his practice, has prevented the defend- ant from enjoying the entire benefit of the contract, he ought not, through the plaintiff (the vendor's agent, to whom the note was pay- able), to be permitted to recover com- pensation for that which he has agreed the defendar^t shall enjoy, when by his own interference the defendant has been deprived of it. Clark is responsible in damages if there has been a breach of his con- tract; but it does not appear from the current of authorities that the defendant is limited to that remedy alone. The consideration of the con- tract was the good will of the prac- tice, and so far as that has been taken away by Clark there is mani- festly a failure of it The tendency of decisions in this country has been to allow a broader latitude of de- fense than was permitted by the rigid rules of the common law to bills of exchange and promissory notes, where the justice of the case required it, and a circuity of action could be avoided." A similar decision was made in Stacey v. Kemp. 97 Mass. 166, under the name of reducing the damages. See Hodgkins v. Moulton, 100 id. 309. 2 Bisbee v. Torinus, 26 Minn. 165 ; Davis V. Wait, 12 Ore. 425. SAultman v. Mason, 83 Ga, 212; Merrill v. Taylor, 72 Texas, 293 ; Bur- ton V. Stewart, 3 Wend. 236; Har- rington V. Stratton, 22 Pick. 510; Coburn v. Ware, 30 Me. 202 ; Ham- matt V. Emerson, 27 id. 308; Hay- cock V. Rand, 5 Cush. 26 ; Welch v. Hoyt, 24 111. 117; Lewis v. Cosgrave, 2 Taunt. 2. * Carpenter v. McClure, 39 Vt 9. 5 54G.] NOTES AND BILLS. 1173 So a partial failure may be given in evidence to reduce dam- ages where part of the articles for which the note was givtn were unskilfully manufactured, and not in compliance with the contract ; ' and to the extent of the depreciation, where a note is given for depreciated currency loaned at the nominal amount ; and where a note is payable to a bank, and its de- preciated bills have been duly tendered in payment.^ So a note given for prospective work which fails in part to be done by reason of the death of the payee is subject to a deduction proportioned to the amount of work left unperformed.' But it has been held that the consideration of a premium note to an insurance company cannot be impeached by showing that the company became insolvent during the period of the in- surance, for the rights of other persons were involved.* And in other cases the amount of the failure of consideration may be of so uncertain a nature as to be incapable of any estimate, even upon testimony ; and therefore the court will not make any inquiry concerning it.^ But where a purchaser of personal property transferred and indorsed a note of a third person in payment, amounting to more than the purchase price, and re- ceived the vendor's note for the excess, on which he brought suit, it was held that such vendor, to establish entire failure of consideration, might show that the maker of the indorsed note was insolvent so that a suit thereon would be unavail- ing; and he need not release any part of the plaintiff's re- sponsibility as indorser, for his liability would be limited to the amount received as consideration therefor.^ § 546. Same subject. A want or failure of consideration in a strict sense is a mere negation ; as a defense it rests on the idea and principle of there being no valid contract; that it was wholly or partially void from the beginning, [122] or afterwards wholly or partially ceased to be binding, be- cause lacking or losing this indispensable support. The dis- 1 Spalding v. Vandercook, 2 Wend, the performance of professional serv- 431. See Payne v. Cutler, 13 id. 605. ices may be given in evidence under 2 Commercial & R. Bank v. Ather- notice to reduce the amount. ton, 1 Sm. & M. 641 ; Scott v. Ham- ^ Sterling v. Mercantile Ins. Co., 82 blin, 3 id. 285. Pa. St. 75. 3 Clendinen v. Black, 2 Bailey, 488. & Pulsifer v. Hotchkiss, 12 Conn- See Gleason v. Clark, 9 Cow. 57, hold- 234. ing that evidence of negligence in ^ Litchfield v. Allen, 7 Ala. 779. 117-i NOTES AND BILLS. [§ 546. tinction is very obvious between a full or partial defense based on the theory that the plaintiffs demand in whole or in part never had any valid existence; and a defense which concedes the existence of such demand, and succeeds by canceling or reducing that demand by setting up a counter-claim. The latter mode of defense, under the name of recoupment^ has been considered.' To the extent that there is either a want or failure of con- sideration, as distinguished from mere inadequacy, the law in some form affords relief. If wanting as to a part of the con- tract, as we have seen, the contract is void pro tanto in its inception ; there can be no recovery for such part, whether it is apportionable by mere computation from data in the con- tract, or must be ascertained by a jury upon testimony, and whether the action is upon the original contract or upon a note or bill. So far the English and American authorities agree. A partial failure of consideration generally, if not in- variably, admits of another remedy by cross-action. Such failure may arise from accident, and afford ground for rescis- sion of the entire contract; as where some element or incident stipulated for in an executory purchase, and w^hich is the lead- ing inducement thereto, has ceased to exist before complete performance. A subsequent completion of the purchase w^ould be a waiver of the objection. But if the value of the subject- matter of a purchase be impaired before deliv^ery by the tor- tious act or the neglect of duty of the vendor recovery may be had therefor in a separate action, or it may be the ground of an abatement of the purchase price. A partial failure of consideration may also arise from the default of the plaintiff in performance of some concurrent or precedent agreement ; or may result from some act or default of the plaintiff, equiva- lent to a breach of some agreement subsequently to be per- formed, and which was the consideration of the promise sued on. In the case of mutual agreements, performance on one side is the consideration of the performance on the other, [123] where they are concurrent or dependent. If one party fails to perform his part he cannot require performance of the other. A declaration in an action upon such a contract which does not aver performance of precedent conditions, or 1 See vol. 1, § 168 et seq. § 546.] NOTES AND BILLS. 1175 a readiness to perform concurrent stipulations, fails to state a cause of action ; it does not show that the consideration of the defendant's promise has been kept good.^ If a note be sued on, the consideration of which was a contract of the payee to perform precedent or concurrent stipulations, and they have not been performed, and the plaintiff in respect to them is in default, these facts may be alleged as a defense. Such a defense is a failure of consideration, and may be total or partial.^ It does not rest on rescission of the contract, nor is it recoupment.^ In the case of independent stipulations the contract has a valid inception, and is sustained on the principle that one stipulation is a consideration for another. Where the con- tract provides for some act to be done on one side in return for some subsequent act to be done on the other, the doing of the first act is a condition precedent, and the agreement to perform it is independent, and the consideration is the prom- ise of the other party to perform the subsequent act. The consideration of the promise to perform such subsequent act is the performance, not the promise to perform the precedent condition. Where a promise is the consideration, if it is in binding form and made by a competent party, there is no want of consideration ; and if its obligation is not afterwards impaired, there is no failure thereof. By the strict common law a party bound by independent stipulations, those based on a promise as a consideration as distinguished from its per- formance, is bound to perform according to the tenor of his undertaking; that undertaking is enforced for all that it im- ports, without regard to the ability of the other party [124] subsequently to perform his promise which was the considera- tion.* 1 Hall V. Perkins, 5 111. 548 ; Buck- v. Griswold, 80 Mich. 410 ; Coppock master v. Grundy, 2 id. 310 ; Wash- v. Burkhart, 4 Blackf. 220 ; Rogers v. ington V. Ogden, 1 Black, 450 ; Law- Cody, 8 Cal. 324. But see Water- rence v. Griswold, 30 Mich. 410 ; Rog- house v. Kendall, 11 Cush. 128. ers V. Cody, 8 Cal. 324; Dicken v, 3 Thompson v. Richards, 14 Mich. Morgan, 54 Iowa, 684. 172. 2 Tyler v. Young, 3 111. 444; Good- * Foster v. Jared, 12 111. 451 ; Read •win V. Nickerson, 51 Cal. 166 ; Wells v. Cummings, 2 Me, 83. V. Hopkins, 5 M. & W. 7 ; Lawrence 1176 NOTES AND BILLS. [§ 547. § 547. Same subject. "Where A. sold his business as a dentist in a specified place to B., who gave his note for the agreed price, receiving from A. a bond conditioned t])at he would not practice as a dentist in that place, and a suit was brought on the note after a part had been paid, it was held that the defense of a part failure of consideration, by reason of A. failing to perforin the condition of the bond, was inadmis- sible. The court say : " A part of this consideration he received at the time ; all that could be received or enjoyed, and for what was to be done in the future, he received the contract, , . . as contained in and secured by said bond. This was evidently the consideration he received for which he agreed to pay the three thousand dollars, for which the note was given, and all this consideration he received ; he got all that he bar- gained for. But taking it as stated in the plea, that the bond was the consideration for the note, then there was no want of consideration, for the plea alleges that the bond was that consideration, and that it was received according to the agree- ment of the parties. There was then no want of considera- tion, either total or partial. Has there been any failure of this consideration? Has the bond Avhich was the sole consid- eration for this note failed in any way ? Is it not as valid a security now as at first? Has it proved to be of no binding force or effect? Has it become a void instrument since it was made? If it had been void from the bemnning-, then there might have been a want of consideration. If it has become Void since it was made, so as to be no longer of any force or effect as a security, then the consideration \i2i% failed. But it is not claimed that such is the fact. The bond, which is ad- mitted to have been the consideration for which the defend- ant . . . agreed to pay three thousand dollars, and which Avas received just according to agreement, and which was a good and sufficient consideration for such promise at the time, remains in full force and effect; just as valid and binding now as it was the day it was given. If it was a sufficient consid- [125] eration then, wherein has it failed to be so now? " ^ But iClough V. Baker, 48 N. H. 254. eration and such a failure to per- Sargent, J., further said : " The dis- form on one side as gives the other tinction between a faihire of consid- party an election to rescind the whole § 547.] NOTES AND BILLS. 1177 it was formerl}^ the peculiar function of equity to mitigate the severity of this rule of law where the real consideration, the thuig promised, failed.* The principles of equity on this subject have, however, been largely incorporated into the common law, although not to the same extent in all jurisdic- tions. Under various circumstances where parties have bound themselves to conditions precedent, or by independent stipu- lations, they have been permitted to avoid this contract at law, as they could in equity, by showing that the promise, which was the technical consideration, had ceased to be of any value, because, by some act or default of the ])romisor, he was un- able to perform his promise. This doctrine is pointedly stated by Richardson, C. J., in a case which arose in New Hamp- shire: "When a promise of the payee is the consideration of a note, and that promise fails altogether, so that the maker of the note loses all the advantage he might have expected to derive from it, and nothing is left to him but a mere right of action for the breach of that promise, we are of opinion that he may waive that right of action, and treat the whole agree- ment as a nullity, if he so choose, and thus avoid the note. In such a case the substantial inducement which led the [I'^G] maker of the note to enter into the contract having totally failed, justice requires that he should not be held to ])erform the contract on his part against his will. He may, if he please, contract, or to enforce it, has not al- should have leave to cut timber and ways been made or clearly stated, wood on his land, and B. agreed that and some confusion may be found in A. should have leave to flow his land the authorities. Tillotson v. Grapes, by means of a dam to a certain ex- 4 N. H. 444, is a case in which such a tent. They were treated as independ- failure to perform his contract on ent agreements, and it was consid- one side as would authorize the ered that either might not only have other side to rescind the whole con- his action for a breach of the con- tract is improperly spoken of as a tract in his favor, without regard to failure of consideration. 2 Smith's his performance of his contract to L. Cases, *9 and 10, in note to Cutler the other party, but that either in V. Powell, and cases cited ; Dodge v. such a case might revoke his license McClintock, 47 N. H. 383, and cases at his option, whether the other cited ; Wallace v. Antrim Shovel Co., party did or not, provided the license 44 N. H. 531 ; Campbell v. Jones, 6 is on other grounds revocable. Dodge T. R. 570." V. McClintock. 47 N. H. 383. By a written agreement between i Morgan v. Smith, 11 111. 194. A. and B. the former agreed that B. 1178 NOTES AND BILLS, [§ 54S. perform the contract on his part, and resort to an action for the breach of the contract on the other side ; but he is not compelled to do this. These principles we consider as well settled by authority."^ § o-tS. Same subject. In a case in Illinois a note was given for the purchase-money of land; it was payable a month earlier than the contract required the vendor to make a con- veyance. The action upon the note, however, was delayed until after the time appointed for conveyance. The vendor had no title to the land when the contract was made, and had none when the day arrived for performing it. Although pay- ment of the purchase-money was a condition precedent, yet, as the vendor had no power to convey, and had neglected to obtain title, the consideration of the note was deemed to have entirely failed. Scates, J., says : " I should by no means re- gard it as want or failure of consideration that the cove- nantor had no title at the time of making the covenant, or at the time of the performance of a condition precedent by the other party, for peradventure he may obtain the title by or before the day of conveyance. The difficulty is in the proof, and not in the applicability of the defense. The old doctrine, holding a promise to be a consideration of a promise, should only be applied where no other consideration can be found available to sustain the agreement of the parties. Here we find another, a better, and a surer one. We reach the same goal by a shorter route. If the parties are unable to sustain their contract by the performance of the consideration, we al- low them to rescind it at once, and without delay, and thus save the circuity of action and costs occasioned by allowing the plaintiff to recover the money on the note, and the de- fendant to recover it back upon the breach of covenant. By the delay in bringing this action the defendants are enabled to prove their defense by showing the inability of the obligors to assure the estate ; and it seems to me to savor more of [127] technicality, harshness, nay, injustice, than of reason or equity, to say to them, because you agreed to pay a month before you were entitled to a convej^ance, that you must now pay the money, and sue upon the covenant, although you are ready and able to show that the covenantors are not able to 1 Tillotson V. Grapes, 4 N. H. 444. § 548.] NOTES AND BILLS. 1170 convey the estate which tlicy agreed to convey." ' In another case in that state, a plea of failure of consideration of a note averred that the payee was to plant a hedge for the maker whicli should become a complete protection against stock in from three to five years; that the note in question was given for moneys payable for such hedge at the time of planting; that the plants set out were winter-killed and useless, never having grown ; and that it was then out of the power of the payee to make the hedge according to the agreement. Al- though the money for which the note was given was due at the time of planting the hedge, and the note made payable one day after date, and the hedge was not to be completed until from " three to five years," it was held that the consid- eration had failed, a demurrer to the plea being taken as an admission of the statement that it was then out of the [128] power of the payee to perform the agreement within the stipulated time.^ 1 Gregory v. Scott, 5 111. 393. See Lull V. Stone, 37 III. 224; Davis v. McVickers, 11 111. 327; Owings v. Thompson, 4 111. 502 ; Deal v. Dodge, 26 111. 458 ; Tyler v. Young, 3 111. 444. failed in part, the plaintiff shall re- cover according to the equity of the case."' Scales' Comp. Stats., ch. 73, p. 292. Under this statute it was held that in an action upon a promissory The statute referred to in the fore- note given for the purchase-money going cases does not define a failure of land, deeded with a covenant of consideration. It provides that: against incumbrances, money paid " In any action commenced, or which may hereafter be commenced, in any court of law in this state, upon any note, bond, bill, or other instrument in writing for the payment of money, or property, or the performance of covenants or conditions, by the obli- gee or payee thereof, if such note, bond, bill, or instrument in writing- was entered into without a good and valuable consideration ; or, if the con- sideration upon which said note, bond, bill, or instrument in writing was made or entered into, has wholly or in part failed, it shall be lawful for the defendant or defendants, etc.. to plead such want of consideration, or that the consideration has wholly or in part failed, etc. ; and if it shall appear that the consideration has to extinguish an incumbrance should be deducted. Breese, J., said : " A part of the consideration of the note sued on was that the land sold was free from incumbrance. ... To the extent, then, of this incumbrance, there was a failure of consideration. Morgan v. Smith. 11 111. 199; Whis- ler V. Hicks, 5 Blackf. 100 ; Smith v. Ackerman, id. 541 ; Buell v. Tate, 7 id. 55 ; Pomeroy v. Burnett, 8 id. 142." 2 Edwards v. Pyle, 23 111. 354 ; Mor- gan v. Smith, 11 111. 194; Schuch- maun v. Knoebel, 27 111. 175; Tillut- son V. Grapes, 4 N. 11. 444 ; Litchfield V. Allen, 7 Ala. 779 ; Stone v. Fowle, 22 Pick. 166. But see Eead v. Cum- mings, 2 Me. 82 ; Thompson v. War- ren, 5 Cold. 644 1180 NOTES AND BILLS. [§ 648. The defense of a failure of consideration in sucli cases rests on the principle of a rescission of the contract. The defend- ant who has relieved himself from the performance of a con- dition precedent or any independent stipulation on the ground that the promise which was its consideration has altogether failed cannot afterwards claim damages for such failure. He has not himself performed, but has been absolved from fur- nishing the consideration on his part. A sale fills the defini- tion of a valid contract, where there is delivered or sold at a given price a tangible property, or existing subject of any kind, with warranty, and which must possess value if the warranty be true. The contract for the purchase-money is a valid consideration on one side, and the undertaking wiiich the warranty imports is a consideration on the other. The warranty of title against defect, or of qualities, is a contract for the present existence of facts. The acceptance of the property so warranted is no admission of the truth of the warranty ; but w^here delivery and payment are to be simul- taneous acts the warranty is generally relied on as the consid- eration for the price agreed to be paid. The money is parted with on the faith of the warranties — that is, that they are true, not that the purchaser will have only his remedy for damages. Such title as the vendor has is at once vested in the purchaser, and the property is taken absolutely. If the warranties are not true, they are broken at the time of the sale, but the fact is then undecided; they are to be verified or shown to be false by some future test. The same may be said of a sale where a note is given for the price payable at a future day. Payment of the price is not a legal waiver of a warranty; though it may have some weight as an evidentiary fact to negative the breach thereof. If, however, before the price is paid upon an executed sale the fact can be established that the warranty was untrue, by the later and better au- [129] thorities it may be shown either as an unliquidated par- tial failure of consideration, or as a cross-claim, the damages upon which may be set off by recoupment. In England, where the action is brought on the original contract, fraud or breach of warranty in a sale, or failure of the plaintiff to per- form his part of the agreement, may also be proved in re- duction of damages. The sum to be recovered for the price § 549.] NOTES AND BILLS. IISI of the article may be reduced by so much as the article is di- minished in value by reason of the fraud or non-conipliauce with the warranty.^ § 549. Consideration fraudulent or illegal in part. Fraud is a private wrong, and any entire contract into which it en- ters may be avoided in toio by the party against whom it was practiced.^ If not avoided for the fraud, and tlie injury there- from only goes to part of the consideration, the note may be avoided pro tanto, as for partial failure of considei'ation.' If the maker would repudiate the contract entirely for the fraud he must return the consideration, unless it is wholly without value;'* but without doing this he may have a deduction to the extent that the subject-matter is diminished in value by reason of the fraud, wherever a part failure of consideration is allowed as a defense.^ But in England, where partial fail- ure of consideration is not allowed as a defense to a note, it was held no defense in an action by the indorser against the acceptor that the latter had been imposed on in respect to the contract by the drawer, on account of which the acceptance was given, and that the plaintiff was privy to such imposition, where the acceptor did not wholly repudiate the transaction on discovering the imposition, but still retained possession of the premises under such contract, as the consideration [130] had not altogether failed, so as to render the bill wholly void.^ Where a note is given for several distinct items or considerations, one of which is afterwards discovered by the 1 Lewis V. Cosgrave, 2 Taunt. 2; 3 Bischof v. Lucas, 6 Ind. 26; Ste- Street v. Blay, 2 B. & Ad. 456, as ex- vens v. Mclntire, 14 Me. 14. plained in Mondel v. Steel, 8 M. «&; < See Reeves v. Kelly, 30 Mich. 132. W. 858, 870. 5 Bischof v. Lucas, 6 Ind. 26 ; Co- ^ Coburn V. Haley, 57 Me. 346 ; Wy- burn v. Ware, 30 Me. 203 ; Hammatt man v. Heald, 17 Me. 329 ; Robinson v. Emerson, 27 Me. 308. See Stern- V. Heard, 15 Me. 29G ; Lewis v. Cos- burg v. Bowman, 103 Mass. 325. grave, 2 Taunt. 2 ; Solomon v. Turner, <> Archer v. Bamford, 3 Stark. 175 ; 1 Stark. 51 ; Nicewanger v. Bovard, 1 C. & P. 64. See Solomon v. Turner, 17 Ind. 621 ; Rose v. Wallace, 11 id. 1 Stark. 51. 112 ; Davis v. Jackson, 22 id. 233 ; But if the action were brought on Rodman v. Williams, 4 Blackf. 70; the original contract for the price Cowger v. Gordon, id. 110 ; James v. the rule laid down in De Sewhan- Lawrenceburgh Ins. Co., 6 id. 525; berg v. Buchanan, 5 C. & P. 343, Doughty v. Savage, 28 Conn. 146. would be applied. Lorni v. Tucker, 4 C. & P. 15. 1182 NOTES AND BILLS. [§ 550. maker to be fraudulent, or where one item not chargeable to him is stealthil}'- included therein without his knowledge, the note is not wholly void or voidable, but only to the extent of the fraudulent item.' In a case in Ohio 2 a member of a firm after dissolution, without authority from his copartners, renewed firm notes by giving a new note in the firm name. The new note, with- out any intent to defraud, was made to bear interest at ten per cent., and to include the individual note of one of the part- ners. The defendant, a member of the firm, supposing the new note was simply a renewal of the firm notes at six per cent., promised to pay it. It was held that such new note was binding on him for the amount of the firm note surrendered on the renewal, with simple interest from that time.* So in a Mississippi case it was stated in a plea to an action upon a note against a surety that he and another, before a sale by administrators, informed them that they would become the sureties of one K. for any amount of property he might buy at the sale. He purchased to the amount of $1,138.45. After- wards, and before the execution of the note in suit, K. became indebted to the administrators otherwise than for property bought at such sale in the further sum of $400. The admin- istrators included this sum also in the note and presented it, signed by K., to the defendant, and fraudulently and know- ingly held the same out to him as for that sole consideration. The defendant being misled, and supposing that the note era- braced only the amount of K.'s purchase at the sale, signed it. [131] It was held that the note was not voidable in toto^ but only to the amount of the excess.* "Where the fraud, how- ever, is committed in procuring the execution of the note, as by misreading it to an illiterate person, or substituting an- other for the one read, the note is wholly voidable.^ § 550. Same subject. Where part of the consideration of a note was illegal no apportionment can be made ; the whole 1 Griffiths V. Parry, 16 Wis. 218; 2 Wilson v. Forder, 20 Ohio St. 89. Haycock v. Rand, 5 Gush. 26 ; Deer- 3 See Gamble v. Grimes, 2 Ind. 392. ing V. Chapman, 22 Me. 48 ; Brown < Clopton v. Elkin, 49 Miss. 95 ; Goss V. North, 21 Mo. 528; Wade v. Scott, v. Whitehead, 33 id. 218. 7 id. 509 ; Andrews v, Wheaton, 28 » Stacy v. Ross, 27 Tex. 3 ; Griffiths Conn. 112. v. Kellogg, 39 Wis. 290. 550.] NOTES AND BILLS. 1183 note is void. The principle that no court shall aid men who found their cause of action upon illegal acts is not only well settled but is most salutary. It is fit and proper that those who make claims which rest upon violations of the law" should have no right to be assisted by a court of justice; that courts should refuse their aid to those who seek to obtain the fruits of an unlawful bargain. • Thus, if a note be given for the price of articles sold, and a sale of a part of them w^as unlawful, the note is not valid for any part.^ If part of the consideration of a note be an agreement to discontinue a criminal prosecu- tion, or to refrain from commencing one ; ' or to do an act which would be a violation of official duty;* or to indemnify against any unlawful act, as where a ])remium is to be given for insurance on a cargo, the exportation of a part of Avhich is prohibited b}" law,-^ the note is wholly void ; being an illegal contract, it is not divisible." 1 Roby V. West, 4 N. H. 285 ; Booth V. Hodgson, 6 T. R. 405; Card v. Hope, 3 B. & C. 661 ; Holland v. Hall, 1 B. & Aid. 53 ; Shaw v. Spooner, 9 N. H. 197 ; Clark v. Eicker, 14 N. H. 44 ; Brigham v. Potter, 14 Gray, 533 ; Sternburg v. Bowman, 103 Mass. 335. 2 Carlton v. Bailey, 37 N. H. 330 ; Kidder v. Blake, 45 N. H. 530 ; Carl- ton V. Whitcher, 5 N. H. 196 ; Coburn V. Odell, 30 N. H. 540; Deering v. Chapman, 33 Me. 488 ; Bliss v. Brain - ard, 41 N. H. 361; Greenough v. Balch, 7 Me. 461 ; Hanauer v. Doane, 18 Wall. 343; Gray v. Hook, 4 N. Y. 449 ; Gammon v. Plaisted, 51 N. H. 444 ; Roby v. West, 4 id. 285 ; Perkins V. Cummings, 3 Gray, 358 ; Braitch V. Guelick, 37 Iowa, 313 ; Gaitskill v. Greathead, 1 Dow. & Ry. 359 ; Scott V. Gilmore, 3 Taunt. 336 ; Snyder v. Willey, 33 Mich. 495 ; Trist v. Child, 31 Wall. 441. 3 Shaw V. Spooner, 9 N. H. 199; Hinds V. Chamberlin, 6 id. 335. * Waite V. Jones, 1 Bing. N. C. 656. 5 Parkin v. Dick, 11 East, 503. « Widoe V. Webb, 30 Ohio St. 431. Where, however, an entire stock of goods is sold at one and the same time, but each article for a separate and distinct agreed value, the contract is not to be regarded as entire and indivisible ; and if the sale of some of the articles be prohibited by law, the illegality will not render the sale of the other articles illegal also. Carleton v. Woods, 38 N. H. 290. The action was brought upon notes given for the whole purchase, and also for goods sold and delivered. The prom- ise embraced in the notes was held entire, and part of the consideration being illegal, the notes were void ; but it was held otherwise as to counts for goods sold and delivered. Woods, J.: "The various articles sold may well be regarded as sold separatelv, each article constituting the consid- eration for the promise to pay the price agreed for it. By the contract each article was separately valued. Its value was to be determined bj' its original cost and freight, and that price was to be paid for it. The bar- gain was in effect a contract to pay for each article a price to be deter- mined in the manner before stated. 1184 NOTES AND BILLS. [§ 550. [132] In a case in Ohio ^ Scott, C. J., said : " The concurrent doctrine of the text-books on the subject of contracts is, that if one of two considerations of a promise be void merely, the other will support the promise; but, that if one of two con- [133] siderations be unlawful^ the promise is void. "When, however, for a legal consideration, a party undertakes to do one Or more acts, and some of them are unlawful, the contract is good for so much as is lawful and void for the residue. "Whenever the unlawful part of the contract can be separated from the rest, it will be rejected and the remainder estab- lished. But this cannot be done when one of two or more considerations is unlawful, whether the promise be to do one lawful act, or two or more acts part of which are unlawful; The consideration for the promise to pay for the goods is not to be re- garded as one and indivisible. The sale and delivery of each article formed the consideration in this case for the promise to pay the price for it. The contract was divisible. The fact that the whole stock was sold at the same time can make no diif er- ence. The terms of the agi'eement are to be looked at in determining its character. It was not a case of a sale of an entire stock of goods for an entire price for the whole, with- out reference to the value of the sep- arate articles sold. Instead of that, there was in fact a particular sum agreed to be paid for each article sold. This, we think, was the legal effect of the contract. And while the separate values of the articles sold can be ascertained, as fixed by the parties, the principle is not readily seen which would defeat the right of recovery for the stipulated price of that portion the sale of which was legal. Under a count like the present, less may be recovered than is de- clared for. A recovery maj^ be had for a part although the claim may be defeated in part. . . . The con- tract for the goods sold in this case, then, not being entire, but divisible, and the prices of the several articles being agreed by the parties, and readily ascertainable, we are of opin- ion that the plaintiff is entitled to re- cover, under the count for goods sold and delivered, the agreed price of the goods sold, excepting the spirit- uous liquors. There is a distinction between a case in which one or an entire promise, as a note, is made upon a consideration, a part of which is illegal, and a case where for an entirely good consideration several distinct things are granted or con- tracted to be done, one of which is unlawful. In the former case, the promise is wholly void ; in the latter, the grant or promise, so far as legal, may be upheld. Doe v. Pitcher, 6 Taunt. 358 ; Kerrison v. Cole, 8 East, 231; Mouys v. Leake, 8 T. R. 411 Leavitt v. Palmer, 8 N. Y. 19, 37 Wigg V. Shuttleworth, 13 East, 87 Howe V. Synge, 15 id. 440 ; Gaskell V. King, 11 id. 165. See Greenwood V. Bishop of London, 5 Taunt. 737 United States v. Bradley, 10 Pet. 343 Hyslop V. Clarke, 14 Johns. 458 Mackie v. Caines, 5 Cow. 547." 1 Widoe v. Webb, 20 Ohio St. 431. § 550.] NOTES AND BILLS. 1185 because the whole consideration is the basis of tlie whole promise. The parts are inseparable.' Whilst a ])artial want OY failure of corsideration avoids a bill or woiaowXy pro tanto, illegality in respect to a part of the consideration avoids it in toto. The reason of this distinction is said to be founded, partly at least, on grounds of public policy." '•* It has also been held that Avhere a contract is void for illegality, the sub- sequent repeal of the law which rendered it illegal will not re- lieve it of the objection.^ Xor will a seal protect from inquir}'" into the legality of the consideration.* If partial payments are made upon a note of which an ascertainable portion of the consideration is illegal, and to a greater amount than that part of the consideration, the creditor, in the absence of a special appropriation of such payment by the debtor, is not at liberty to apply the same in satisfaction of the illegal part ot the debt.5 iMetcalf on Cont. 246; Addison on Cont. 456 ; Chitty on Cont. 730 ; 1 Parsons on Cont 456 ; 1 Parsons on Notes & Bills, 217; Story on Notes. § 190; Byles on Bills. Ill ; Chitty on Bills, 94. 2 And see comments in the same opinion on the case of Dotj' v. Knox Co. Bank, 16 Ohio St. 133. 3 Roby V. West, 4 N. H. 285 ; Jaques V. Withy, 1 H. Bl. 65 ; Gorsuth v. Butterfield, 2 Wis. 237. * Gray v. Hook, 4 N. Y, 449 ; Col- lins V. Blantern, 2 Wils. 847 ; Living- ston V. Tremper, 4 Johns. 416 ; Tax- bury V. Miller, 19 id. 311. 5 Gammon v. Plaisted, 51 N. H. 444 ; Caldwell v. Wentworth, 14 id. 431 ; Hall V. Clement, 41 id. 166 ; Hilton v. Burley, 2 id. 193 ; Warren v. Chap- man, 105 Mass. 87; Haynes v. Nice, 100 id. 27 ; Rohan v. Hanson, 1 1 Cush. 44. See Deering v. Chapman, 22 Me. 488 ; Maybin v. Coulon, 4 Dall. 298. In Greenough v. Balch, 7 Me. 461, there was an account between the parties of several transactions, a part of which were legal and a part ille- gal. After the last illegal transac- VOL. II — 75 tion a payment was made on the ac-- count, which was considerably more in amount than the sum of both legal- and illegal debits at that time ; this payment was credited, but the account remained open, and all the succeed- ing debit items were lawful. It was held that a note given for a balance subsequently accruing was not af- fected by the illegal items, for the new balance was deemed to arise from lawful charges ; that the ac- counts being kept in continuation did not alter the case ; the illegal items had been voluntarily paid, and such paj^ment oould not be recovered. In Brisbane v. Pratt. 4 Denio, 63, the action being in the name of an indorsee of a note, which note was received after it became due, in the absence of any proof that he paid value for it, held, that thei'e is a pre- sumption that the action is- brought' for the benefit of the former holder, and his declarations made while he held the note, and after it became payable, that it was given for an ille- gal consideration, are admissible for the defendant. 1186 NOTES AND BILLS. [§ 551. [134] § 551. Defect ot consideration shown by parol evi- dence. The question how far a different bargain from that stated in the bill or note may be proved by parol evidence to establish a defect of consideration has been much discussed, and has elicited considerable contrariety of opinion. It is an un- doubted rule of the common law that parol contemporaneous evidence shall not be received to vary or contradict a written contract.^ This rule, however, does not preclude proof be- tween proper parties to negative the presumption which the law raises that a note or bill is founded on a valuable consider- ation. Nor does it stand in the way of parol evidence to con- tradict an express and even specific admission in the paper of a consideration. It may be shown that there was no consider- ation, or a different one.^ Nor does it exclude proof that the note or bill was given for accommodation when it is sued on by the accommodated party ; ' or that it was given for indemnity with a view to limiting recovery to the amount of the loss in- [135] demnified against,^ or for future advances, and with a view to limiting recovery to the amount advanced.^ 11 Greenlf. Ev., § 375; Adams v. Wordlcy, 1 M. & W. 374 ; Barnstable Savings Bank v. Ballon, 119 Mas?. 487 ; Woodbridge v. Spooner, 3 B. & Aid. 233; Conner v. Clark, 12 Cal. 168; Stackpole v. Arnold, 11 Mass. 27 ; Hoare v. Grabam, 3 Camp. 57 ; Hunt V. Adams, 7 Mass. 518 ; Wells V. Baldwin, 18 Johns. 45; Fitzhugh V. Runyon, 8 id. 375 ; id. 189; Warren Academy v. Starrett, 15 Me. 443; Harlow v. Boswell, 15 111. 56; Lane V. Sharpe, 4 111. 566; McCarthy v. Howell, 2 111. 341 ; Abrams v. Pome- roy, 13 111. 133 ; Mager v. Hutchinson, 7 111. 269. 2 Pollen V. James, 45 Miss. 129; Folsom V. Musse3% 8 Me. 400 ; Abbott V. Hendricks, 1 M. & G. 791 ; Great Western Ins. Co. v. Rees, 29 111. 272 ; French v. Gordon, 10 Kan. 370; Cragin v. Fowler, 34 Vt. 326 ; Ault- man v. Mason, 83 Ga. 212, 218, quot- ing the text. SKing V. Phillips, 12 M. & W. 705; Thompson v. Clubley, 1 id. 213 Violett V. Patton, 5 Cranch, 143 Moore v. Cross, 17 How. Pr. 385 Fant V. Miller, 17 Gratt. 47 ; Robert- son V. Williams, 5 Munf. 381. ^Haseltine v. Guild, 11 N. H. 890; Gilbert v. Duncan, 29 N. J. L. 133 ; Colman v. Post, 10 Mich. 423 ; Bow- ker V, Johnson, 17 id. 43. See Homan V. Thompson, 6 C. & P. 717. 5 Lawrence v. Tucker, 33 How. (U. S.) 15; Collins v. Carlisle, 13 111. 254. In Bowker v. Johnson, 17 Mich. 42, Judge Campbell says: "When a mortgage accompanies a note or bond it is a mere incident to the principal security, and the note or bond is the substantial evidence of debt. Yet it has always been held that it might be shown that the whole transaction, appearing on its face to be unconditional, was a security for something else, and no enforcement has been allowed for any other pur- § 551.] NOTES AND 151 LLS. 1187 Accommodation paper is mad(3 in contemplation of a [ISO] consideration to be received by tlie accommodated party ; until that consideration accrues the paper has no validity; when it has arisen the paper is good within its nominal amount to the pose than the actual one. Tlie stat- ute of frauds does not prevent trusts in personalty from being evidenced by parol, ajid a trust is therefoi-e ad- mitted to be shown against all but bona fide holders, whether it be to create a special interest, a defeasance, or anj' otlier similar equity. See Cat- lin V. Birchard, 13 Mich. 110. This doctrine has been applied in various ways. It has been allowed to convert an absolute deed into a mortgage. Wadsworth v. Loranger, Harr. Ch. 113; Emerson v. Atwater, 7 Mich. 13. To turn a contract of sale into a mort- gage. Batty V. Snook, 5 Mich. 231 ; Swetland v. Swetland, 3 id. 483. To show that the original mortgagee had no interest in the securities. Bisliop V. Feich, 7 Mich. 371. To show that a negotiable note secured by mort- gage was really given for indemnity. Colman v. Post, 10 Mich. 432. To show that a bond and mortgage for a fixed sum was given in considera- tion of a promised loan and a prom- ised conveyance of property, and that there had not been a complete com- pliance w'ith the promises. Robinson V. Cromelien, 15 Mich. 316. In Ben- nett V. Beidler, 16 Mich, 150, a note was given for a sum of money, which was the price of the crops on certain lands purchased at auction at an esti- mated number of acres, with an agree- ment that the maker of the note might have a subsequent measure- ment made to ascertain the true amount of the purchase-money. The note having been paid by the maker to a bona fide holder, and the land falling short, he was held entitled to recover back the surplus paj'ment." The case under consideration was an action upon a promissory note for $1,000. Upon the trial it appeared in evidence that this note, with an- other of like amount, was given tmder the foliowingcircumslances : defend- ant bought out B.'s interest as part- ner in a brewery, and was to pay $3,000, one-third cash and the balance by these two notes; and was to as- sume and pay in full all of B.'s share in the debts of the firm, in which de- fendant succeeded him, and indem- nify him against all liability and damages. B. showed a schedule of debts and assets as a basis of this ar- rangement, and it was agreed that if defendant paid debts beyond what appeared on the schedule, he should be entitled to a corresponding deduc- tion on tlie notes, wliich were to be left in bank to stand for that purpose. The defendant gave an unqualified bond to pay and indemnify, and ex- ecuted the notes. One of the notes was indorsed by B. to a bona fide holder. Defendant paid claims in ex- cess of the schedule list, of which B.'s half amounted to $1,459.20. And re- ferring to the case in hand the learned judge continued : "We can perceive no difference in principle between these cases. J. undertook absolutely to pay the debts of B., wliatever migl\t be their amount, and did pay them. But the price payable by J. was fixed upon the basis that such debts should be taken at a specified sum, and, if exceeding that, should entitle him to a corresponding reduc- tion. So far as they were in excess they reduced the consideration for his notes ; and being capable of pe- cuniary calculation, and not in the nature of unliquidated damages, 1188 NOTES AND BILLS. [§ 552. extent that upon such consideration the accommodated party could incur a personal obligation. When commercial paper is 2:iven to cover a loss which is cortingently incurred on the faith of it, or to recover future advances which the receiver of the paper either binds himself or has an o]ition to make, the payee holds it upon a legal consideration from the beginning; but until the loss happens in the one case, or advances are made in the other, the promise of payment between the im- mediate parties is dormant. A note given for the premium of insurance on taking out an open marine policy is of this character; it becomes operative and valid only as fast as risks are assumed on the policy, and to the extent of the premiums thereby earned.^ Hence, the real consideration may be con- tingent, conditional or defeasible, and it may be shown by parol to be so ; that it had not arisen, or, if it potentially ex- isted at first, that it afterwards became nugatory so as not to support the promise to pay. § 552. Same subject. The consideration being open to in- quiry so far as the promise to pay depends upon its existence, [137] continuance or amount, such promise may be indirectly varied and controlled by parol evidence; not by showing that a different promise from the written one was made, but that it is different in legal effect as a consequence of a want, cessa- tion or shrinkage of the consideration; — by evidence that the consideration implied had no existence ; that it did not continue, or was, or has become, deficient in amount. The promise may thus be altogether undermined, postponed, or reduced. A different agreement cannot be shown from that expressed in the note. A parol agreement contemporane- ous with the making of a note by two that one of them shall be liable only in the event that it cannot be collected of the other; 2 that a note payable on demand shall not be de- Htancl on the same footing as if he no greater sum than was equitably- had given an accommodation note, due, and had he retained them both or a note for money, in excess of a they would have been enforcible for money price fixed at the time. The no more." debts were all in existence at the ' P^'urniss v. Gilchrist, 1 Sandf. 53 ; date of the transaction, and when as- Maine Mut. M. Ins. Co. v. Stockwell, certained and paid reduced to that 67 Me. 383 ; Elvvell v. Crocker, 4 extent the value received by J. of B. Bosw. 22. The agreement rendered it the duty - J.Iager v. Hutchinson, 7 III. 266, of B. to hold the notes as security for See Pike v. Street, M. & M. 226. § 552.] NOTES AND BILLS. 1189 mandcd until after tlio maker's death ; * that the note sliall bo void if a suit be compromised ; ^ or if a verdict be obtained in an action between other parties,' is not admissible. So a note given for the rigiit to vend a patented article in a partic- ular county, paj^able at a certain time, cannot be affected by parol evidence that when it was executed it was verbally agreed that it should not be due and {)ayable until sales to a specific amount had been raade.^ And an absolute note for purchase- money of land for which a quitclaim is to be executed is not subject to be defeated by proof of a contemporaneous parol aijreement that if the land should be redeemed the note should be void.^ Nor can a parol condition be proved in an action on such a note that it is to be void if other interests in the same laud cannot be purchased in a particular manner." The terms of a note or other written contract cannot be varied by evidence which goes simply to the fact that a different promise to pay was made by the defendant from that reduced to Avriting.' An instrument not under seal may be delivered upon [138] conditions the observance of which, as betv/een the parties, is essential to its validity; and the annexing thereof to the delivery is not an oral contradiction of the Avritten obliga- tion, though negotiable as between the parties to it or others having notice.^ While parol evidence is not admissible to vary the effect of an undertaking, or merely to show that it Avas to be renewed, yet where the note does not contain the whole contract in pursuance of which it was made, it is com- petent to show what that contract was and the purpose for which it was made.^ But this is only competent to show that 1 Graves v. Clark, 6 Blackf. 183; Bookstaver v. Jayne, 60 N. Y. 146; Woodbridge v. Spooner, 3 B. & Aid. Moseley v. Hanford, 10 B. & C. 720 ; 233. Woodbridge v. Spooner, 3 B. & Aid. 2 Dale V. Pope, 4 Litt 166. 233; Hoare v. Graham, 3 Camp. 57; 3 Foster v. Jolly, 1 Cr., M. & R 703. Adams v. Wordley, 1 M. & W. 374 ; < Harlow V. Boswell, 1'- III. 56. Conner v. Clark, 12 Cal. 168; Malum 5 Lane v. Sharpe, 4 III. 566. v. Sherman, 7 Blackf. 378 ; State v. 6 Ely V. Kilborn, 5 Denio, 514. Overturf, 16 lud. 261. V Erwin v. Saimders, 1 Cow. 249 ; 8 Benton v. Martin, 52 N. Y. 570. Underwood v. Simonds, 13 Met. 275 ; 9 Bookstaver v. Jayne, 60 N. Y. 146. Adams V. Wilson, id. 138; St. Louis The answer of defendant J., to an Perpetual Ins. Co. v. Ho ner, 9 id. 39 : action upon a promissory note, stated Holzworth V. Koch, 26 Ohio St. 33 ; that defendant G., who was a mer- 1190 NOTES AND BILLS. [§ 552. the note has been diverted from its original purpose, or to prove a defect of consideration.^ A plea to an action on a note payable one day after date stated that a certain specified part of the sum therein men- tioned was included in consideration that suit should not be brought on the note for sixty days ; and the suit being brought within that time, it was claimed that there was a partial fail- ure of consideration. On demurrer this plea was held good. Proof of such facts would vary the legal effect of the note, [139] but it does so consequentially by explaining the consid- eration.^ chant doing business, was indebted to the plaintiff in the sum of about $5,000 ; that an action had been com- menced to recover the same ; that, to induce defendant to become an in- dorser, plaintiffs promised that if J. would indorse G.'s note for $4,000, at three months, they would discon- tinue said action and give at least one renewal of the note ; that, rely- ing upon said agreement, defendant indorsed the note in suit ; that plaint- iffs did not perform their agreement, but, on the contrary, entered up judg- ment in said action, issued execution and levied upon said G.'s stock of goods, and thereby destroyed his credit and caused him to fail in busi- ness, and deprived said G. of the op- portunity of eventually paying the note and relieving defendant of lia- bility, and did not give a renewal of said note. The defendant claimed that thereby his indorsement became null and void. It was held that the plaintiffs utterly failed to carry out tlie agreement upon which the notes were indorsed by the defendant, and tlierefore had no right to enforce their collection. See Holzworth v. Koch, 26 Ohio St. 33; Adams v. Wordley, 1 M. & W. 374 ; Bellows v. Folsom, 3 Robt. 138. lid. 2 Hill V. Enders, 19 111. 1G3 ; Mor- gan V. Fallenstein, 27 id. 31. Caton, C. J., said in the case last cited : " It may be that, strictly speaking, the agreement to pay the money men- tioned in the note at the time there stated, and the agreement not to en- force the payment of that amount till after the 1st of June, 1861, all being made at the same time, consti- tuted but one agreement, only that part of it which is embodied in the note being reduced to writing, the rest being allowed to rest in parol, and that by the general rule of law this latter part, which was not em- braced in the writing, could not be shown by parol. If that rule is to be applied in this case, then it must in all similar cases ; and it would be impossible in any case to show a total or partial failure of consideration of a note by parol, for the considera- tion of a note must necessarily form part of the agreement in pursuance of which the note is given ; that part of the agreement which constitutes the consideration is never reduced to writing, and it must be shown by parol if it is ever shown. If I agree with you to deliver you my horse to- morrovv, and you give me your note for -flOO in consideration thereof, here only part of the agreement is reduced to writing by the execution and delivery of the note, and that §552.] NOTES AND BILLS. 1191 It may be sliown in defense to an action upon a note which expresses that it is given for a lease that a part of the consid- eration was the good will of an insurance business and an in- surance list, and that this part has been withheld.^ So where the maker and payee of a note were owners of certain lands, and the maker took a conveyance to sell them on joint ac- count, and as security to make prompt payment of the pur- chase-money, after the lands should be sold, made the note in question, these facts Avere deemed admissible; and it a))pear- ing that the lands remained unsold, there was held to be a want of consideration.^ It is to be observed that a note given under such circumstances and for such a purpose is not void for want of consideration. It is valid as a security for the fulfillraent of a trust. The transfer of the title to the maker was a consideration. Parol evidence being admissible even at law to show the fiduciary character of the transfer, it was ])ermitted to have effect to restrain accordingly the written promise to pay; for upon the real consideration there was no equitable duty to pay until a sale had been made. In view of the trust there was no consideration for payment until that event — and this defense was a legal one. Caton, C. J., said : portion which requires me to dehver has made no exception, and we can the horse to-morrow is left in parol, make none. A note or bond to pay Shall it be said that wlien I refuse to money is necessarily but a part of the deliver the horse I may turn round agreement between the parties, leav- and say you sliall never prove it be- ing out as it does all that portion of cause that portion of the agreement the agreement which induced the was not put into the writing? The undertaking to pay the mone}'; [140] truth is that even the common law and if this part could not be shown made an exception to that rule of by parol there must ever be a liabil- evidence in cases where notes or other ity to a failure of justice. Nor is the instruments for the absolute paj^ment exception to the general rule . . . of money are given. It has always confined to showing by parol a fail- been admissible to show by parol the ure of consideration. Usury, and, in (;onsideration upon which such in- fine, any other defense arising out of struments were executed. But what- the original agreement upon which ever may have been the rule of the the note was given, or of which the common law, our statute has ex- note constitutes a part, may be shown pressly provided for this defense ; by parol in order to establish a de- and necessarily, to give effect to the fense to the nota" statute, parol evidence must be ad- ^ Great Western Ins. Co. v. Rees, 29 mitted to show what the contract 111. 273. was, as well as to show that the con- 2 Marsh v, Bennett, 22 III 313. sideration has failed. The statute 1192 NOTES AND BILLS. [§ 552. "He (the plaintiff) might have held it till a consideration had arisen. This he did not choose to do, but brought his action, when in fact no consideration for the promise existed." It seems dillicult to reconcile with this case one decided by the same court in the following year.' The opinion was delivered by the same judge, and he states the facts set forth in the no- tice as a pleading, constituting the alleged defense : " It shows [1-41] that the several creditors of F. met him by appointment, of whom the plaintiff and defendant were two, and in pursu- ance of an arrangement then agreed to by all, W. gave his notes for the amounts of the several debts of the creditors present, as an evidence of the amounts due them from F. ; that this note is one of those then given for the supposed amount due from F. to S. The notice further shows that it was agreed between all parties that "VV. was only to pay the sev- eral notes then given, as he should collect the debts due F. Now, the notice nowhere states that he has not collected enough to pay all the notes, but it states that afterwards, but how long cannot be learned, the arrangement was broken up by F., with the consent of all parties, and the contract set aside, all the parties interested, including S., consenting thereto. The notice does not show, except by implication, that W. was to be empowered to collect F.'s debts." Upon this statement the learned judge proceeded to say: "If this notice is to be understood as statins^ that it was the agreement that W. should collect F.'s debts, and pay the proceeds over pro rata in satisfaction of the notes, as fast as he should collect the money, and that he should be liable to pay the notes only as fast as the collections would enable him to do so, it clearly states a fact which the law cannot allow him to prove. This is not an attempt to prove a want or a failure of considera- tion of the note, but it is an attempt to vary the terms of the note." ^ 1 Walters v. Smith, 23 111, 342. See amount of indebtedness due or to Harris v. Harris, 69 Ind, 181 ; King become due to him trom third per- V. King, id. 467. sons, and out of the proceeds of 2 The notice of defense which is which, when collected, the d(!fend- set out in the report states that the ant was to pay." Caton, C. J., said : note was given solely upon consider- " The paper says the money should ation that F. " would assign over and be paid on or before the 25th oi De- deliver to the defendant a large cember, 1859, absolutely. The offer § 553.] NOTES AND BILLS. 1193 § 553. Same subject. In a Mississippi case ' an ad- [U2] niinistrator at a sale of his decedent's personal proj^erty pro- claimed that the slaves about to be sold were subject to judg- ment liens, and he offered and agreed that in case they should be seized under the judgments, the sale should be considered as void, and the notes of the purchasers be given up. The slaves, on that assurance, sold for their full value. In an ac- tion brought by the administrator on a note given for the purchase-mone}^, it was held that the makers of it might show under the general issue that the slaves for the price of which the note was given were taken out of their possession and sold under judgments against the estate, and that the con- sideration of the note had thus failed. The court say the rule of law that parol testimony cannot be heard to vary written agreements has never been carried so far as to defeat the right to prove a failure of consideration.^ A promise cannot be enforced in full unless the consideration exists and continues intact as the promisee is bound to furnish and main- tain it. The consideration of commercial paper may, and usually does, exist in parol; it may be intrinsically or conven- of parol proof is that he did not Lane v. Sharp (3 Scam. 566) is di- agree to pay the money absolutely rectly applicable to this case, and on that' or any other day, but that he sufficiently expresses our view of the only made a conditional promise law on this subject." that he would pay the note if he In Great Western Ins. Co. v. Rees, collected the money, but never with- 29 111. 272, the court say : " The rul- out. Our statute allowing the failure ing of this "court in Lane v. Sharp or want of consideration of a note to and in all subsequent cases founded be proved by parol never intended upon that is to be considered as hav- to allow parol proof to change the ing no application to a case where terms of a note which has been de- no consideration or a total or partial livered and become operative. The failure of consideration is properly rule that the writing must speak the pleaded in an action brought upon intention of the parties is as appli- an instrument of writing for tlie cable to a note as to any other writ- payment of money or property or ten instrument It is, no doubt, the performance of covenants or competent to show what the note conditions to an obligee or payee." was given for, but that does not See Mann v. Smyser, 76 IlL 365 ; alone constitute a defense ; but in Nichols v. Huutou, 45 N. H. 470. order to make out a defense it is nee- i Buckels v. Cunningham, 6 Sm. essary to show that W. did not at the & M. 358. time promise as the paper says he ^ Sumner v. AVilliams, 8 Mass. 162 ; did. This it was inadmissible to Shepherd v. Temple, 3 N. H. 455; show by parol What we said m Tillotson v. Grapes, 4 id. 444. 1194: NOTES AND BILLS. [§ 553, tionally conditional or contingent; it may be subject to sus- pense, change or rescission by oral stipulation; its value and duration may be assured or determinable in the same manner, and so that the defendant's promise will also be correspond- ingly absolute or mutable; be enforceable in full when the consideration is intact, and wholly or in part discharged if it [143] be wanting, or if it fail entirely or partially. The cases already referred to of notes given for a special purpose, as for indemnity, future advances, or as security for other acts than that of paying the precise money mentioned in the instrument, are illustrations of the defeasibleness of such written prom- ises, as well as of the flexible nature and efficiency of the law in maintaining the conventional equipoise of right and obli- gation between the parties by proof relating to the consider- ation. These principles were clearly recognized in an early case in Maine.^ The defendant was a wharfinger in G., to whom the plaintiff, living in P., had been in the practice of sending vari- ous kinds of lumber for sale, which the defendant sometimes sold for cash and sometimes on credit. Whenever he made sales he credited the plaintiff with the amount ; it being, how- ever, understood that he was not to be debtor therefor to the plaintiff till he should actually receive the money. On the 10th of June, 1828, he sold to one H. four hundred and seventy-eight dollars' worth of the plaintiff's lumber, taking his negotiable note for that sum, payable to the plaintiff in ninety days ; the purchaser then being in good credit and the time comporting with the usage in such cases. For the pro- ceeds of this sale, among others, the plaintiff was credited in the defendant's books at the date of the note in suit. The plaintiff, wishing to make arrangements to preserve his prop- erty from being sacrificed by his creditors, made a nominal sale to the defendant of all his lumber then on the latter's wharf, for the amount of which, and for the sum credited as above to the plaintiff in the defendant's books, including the amount sold to II., the note in controvers}" was made ; it being then agreed orally between the parties that the defendant should sell the lumber, and collect what was due for lumber already sold, and account to the plaintiff therefor in the same 1 Folsom V. Mussey, 8 Me. 400. §553.] NOTES AND BILLS. 119.J manner as if no note had been given, and that his hability to the plaintiff should not be changed or affected by giving the note. The ])laintiff then indorsed the note of II. to the de- fendant. Here was a sale in form and legal effect between the parties, though voidable by creditors, of lumber and a note; and the question was whether the note should be [144:] enforced for the full amount expressed, or whether the amount collectible thereon should be adjusted according to the event- ual value of the consideration under the verbal bargain contem- ])oraneously made. The opinion of the court, by Weston, J., places the judgment upon broad principles which are believed to be sound and in accord with the best authorities of later date. He says: "It is an undoubted rule of the common law that parol testimony shall not be received to vary or contra- dict a written contract. In support of this principle many cases have been cited. That the defendant did make the con- tract declared on is not controverted. It is a note of hand which, like a specialty, imports a consideration, and, indeed, acknowledges one. Shall this written acknowledgment be contradicted by parol evidence? The rule upon which the defendant relies, strictly understood, would exclude it. Ar.d yet, that such evidence is admissible for this purpose is as well settled as the rule. Between the decisions which illus- trate and enforce the rule and those which recognize the ex- ception there may be an apparent discrepancy, but that will generally be found to arise from the different aspects in which they have been viewed. The case of Barker v. Prentiss ' and the opinion of Chief Justice Parsons there given has main- tained its ground in practice, although the language used in subsequent opinions . . . appears sometimes to lose sight of the distinctions there made. The position laid down m that case is that in all written simple contracts evidence of the consideration may be received between the original parties. And this is the uniform practice of our courts. If upon this inquiry it results that there was no consideration or that it has failed totally or partially, or that the contract was signed under mistake or misapprehension, the rights of the j^arties are determined as the justice of the case requires upon a view of all the facts. The plaintiff fails to recover, or he recovers 1 6 Mass. 430. 1196 NOTES AND BILLS. [§ 554. a part only, of what the note or other contract expresses ac- cording;^ to equity and good conscience. Of this character was the evidence in the case before us. It went to the con- sideration. The lumber which formed part of the considera- [145] tion of the note was assumed to be Avorth a certain sum, but its final value was to depend on the sales. If over- valued, there would be a failure of consideration by the amount of the excess. If undervalued, the defendant was to pay the difference. As the estimate fell short of the value as ascer- tained, this part of the evidence operated in favor of the plaintiff. With regard to that part of the note in suit which arose from the H. debt, if that was not at the defendant's risk, if lost without negligence imputable to him, there would be a failure of consideration to that amount. Now the evi- dence proves that the defendant did not become the guar- antor of the H. note, and that it was not taken at his risk. It has been lost. That loss must fall upon the plaintiff unless negligence in relation to it is chargeable to the defendant." § 554. Same subject. On like principles, in an action against the maker of a promissory note by an assignee with notice, it was held a good defense that the note was given in consideration of a tract of land, and that at the time of mak ing the note it was verbally agreed between the payee and the defendant that he should not be called on for its payment until the payee should obtain a patent from the United States for the land, which was expected before the note would by its terms mature, and that the payee had not obtained the patent.' The court allowed the defense because the consideration for which the note was given had not been received by the de- fendant. "Where a note was given instead of a receipt for money paid before it was due, the transaction was allowed to be proved by parol, and the fact being admitted by demurrer, it was held that there was no good ground for a promise.^ And where the only consideration of a note was a promise by the payee to convey to the maker on payment a tract of land, if the payee should own it, and if not, that he would buy it as cheap as he could and let the maker have it at cost, and the payee died insolvent before the note became due, without title » Gorham v. Peyton, 3 IlL 3G3. 2 gjade v. Halsted, 7 Cow. 322. § 554.] NOTES AND BILLS. 1197 to the land, it was ruled that the consideration of the note had wholly failed and the maker had a right to treat it as a nullity.' So in an action upon a note given for the price of per- [1-16] sonal property, a ])arol agreement for a deduction in case the property should not prove to be of certain quality was deemed equivalent to a warranty ; and on that defense the action was defeated.- An assurance given to a surety by the obligee, when solicited by the obligor to execute with him a writing obligatory, that the signing was but a matter of form, and that he should not be applied to for payment, has been proven, as tending to show that the execution of the instrument was procured by fraud, in an action against such suret}^ to enforce the obliga- tion.^ An acceptor sued by the indorsee of a bill may show by parol that the acceptance was for the plaintiff's accommo- dation, and without consideration; and for this purpose that it was agreed that the bill, when due, should be taken up by the plaintiff.* A note purported to be for consideration due to the plaintiff for business transacted for the defendant ; but it was allowed to be shown by parol that the real considera- tion for which it was made was future services which had not been performed.^ Where the consideration of a note was the assignment of a half interest in a bond for the conveyance of land, and it was agreed between the parties that the assignee should pay, by his note to the assignors, the same amount they had given therefor, and, through this misrepresentation, the note was taken for four times the sum paid for the same, the recovery was limited to the amount actually paid.® It is often difficult to determine, on a given state of facts, whether the parol evi- dence offered goes to the contract or the consideration. The difficulty is particularly apparent where a note or bill is based upon some precedent transaction, and by a contemporaneous 1 Tillotson V. Grapes, 4 N. H. 450. see Barnstable Savings Bank v. See First Nat Bank v. Breese, 39 Ballou, 119 Mass. 487. Iowa, 640. ■• Thompson v. Clubley, 1 SL & W. 2 Shepherd v. Temple, 3 N. H. 455. 212. 3 Miller v. Henderson, 10 S. & R. » Abbott v. Hendricks, 1 M, & G. 590; Hain v. Kalbach. 14 id. 159; 791. See Pecker v. Sawyer, 24 Vt. Zeiberi v. Grew, G Whart. 404. But 459. s Stevens v, Mclntire, 14 Me. 14. 1108 NOTES AND BILLS. [§ 555. verbal agreement resort may be had to that transaction for a new and more accurate statement of the amount of the debt, or of some ground of deduction ; or it is agreed that in a speci- fied event the note or bill is to be void without actual pay- [147] raent; or that it shall be paid only out of some special fund contemplated to exist. In cases of doubt there is a lean- ing — of the English more strongly than of the American courts — against the admission of the evidence, and even where there is much reason to believe that the inducement to make or become a party to the bill or note was the promise held out of relief, in whole or in part, from the obligation, in the manner indicated by such extraneous proof. If the evi- dence tends to show a defect of consideration it is admissible,' but otherwise not. This test, however, has not in all cases been very rigidly observed.^ It may be well to express what is implied in the preceding discussion, that the parties to a negotiable instrument may make the consideration for it a matter of contract, in which case parol proof is not admissible to show that it is other or different from that which is ex- pressed.* § 555. Liability of drawer and indorser for principal sum. All persons joining in drawing a bill are liable to the holder as drawers, whether personally interested in the con- sideration or not ; an accommodation drawer is liable to all parties who become the holders, except the accommodated party, in the due course of business, unless there has been a diversion of the paper from the special use intended, when it is good only to a bona fide holder for value. Where several persons join as drawers they are also jointly liable to the ac- J Smith V. Brooks, 18 Ga. 440. Warren Academy v. Starrett, 15 2 See Goddard v. Hill, 33 Me. 583; Me. 443; Isaacs v. Elkins, 11 Vt. 679; Mahan v. Sherman, 7 Blackf. 378: Fairfield T. Co. v. Thorp, 13 Conn. Miller v. White, id. 491 ; Leighton v. 173 ; Foster v. Jolly, 1 Cr., M. & R. Grant, 20 Minn. 345 ; Lash v. McCor- 703 ; Pike v. Street, M. & M. 226 ; mick, 17 id. 403 ; Walters v. Arm- Susquehannah B. & B. Co. v. Evans, strong, 5 id. 448 ; Spring v. Lovett, 11 4 Wash. C. C. 480 ; Hill v. Ely, 5 S. Pick. 417 ; Campbell v, Hodgson, & R 363 ; Abbott v. Hendricks, 1 M. Go%v, 74 ; Mosely v. Hanford, 10 B. & G. 791 ; Conner v. Clark, 13 Cal. & C. 729 ; Hodgkins v. Moulton, 100 168 ; Hyde v, Tenvvinkel, 26 Mich. 93. Mass. 309 ; Sawyer v. Chambers, 44 ' Reisterer v. Carpenter, 124 Ind. Barb. 43; Allen v. Furbish, 4 Gray, 80; Hubbard v. Marshall, 50 Wis. 322. 504 ; Pecker v. Sawyer, 24 Vt. 459 ; § 555.] NOTES AND BILLS. 1199 ceptor, if they draw without funds and he pays tlio bill. It is money paid at their request, and the amount paid is recover- able.^ " The presumption that the drawer has funds in the hands of the acceptor may be rebutted. The drawee may show that he accepted and paid the bill for the accommoda- tion of the drawer, and then, in the absence of any express stipuhition, the law will imply an undertaking on the part of the drawer to indemnify the acceptor. On this implied obli- gation the acceptor may have an action against the [HS] drawer, but not on the bill itself.- As between the drawer and drawee the bill is a mere request or direction to pay money ; it never speaks, as it docs between other parties, the language of contract, or imports any obligation. When the acceptor sues, whether he declares specially on the implied promise to indemnify, or generally for money paid, the bill itself is not the foundation of the action ; it is but an item of evidence." ^ The drawer's contract, as such, to the holder of the paper is to pay the sum mentioned in the bill condition- ally ; that is, if the bill is not accepted and paid by the drawee, and notice of the dishonor be duly given. His liability is that of the first indorser of a promissory note.* The drawing as well as the negotiating of a bill implies an undertaking to the payee, and to every other person to whom the bill may afterwards be transferred, that the drawee is a person capable of accepting the bill, and making himself re- sponsible for its payment; that he shall, if applied to for that purpose, express in writing upon the bill an undertaking to pay when it shall become payable; that he shall pay it on 1 Griffith V. Reed, 21 Wend. 503. of exchange is considered to stand in 2 Id., per Brouson, J. ; Young v. the same position as the maker of a Hockley, 3 Wils. 346; Chilton v. promissory note. The drawers are Whiffin, id. 13 ; Chitty on Bills, 344, in the character of indorsers. But 410. this analogy ceases when the ac- 3 Griffith V. Reed, supra. It was ceptor has paid tlie bill from his own held in this case that thei*e was no funds. The relation between the implied promise of the surety to re- drawer and tlie drawee is then re- pay the acceptor. versed, and the former becomes the But in Suydam v. Westfall, 2 Denio, debtor." 205, such an action was sustained * 1 Parsons on N. & B. 54 ; Ballin- by the corrt of errors, Bockee, Sen- galls v. Gloster, 3 East, 481 ; S. C, 4 ator, said: "As relates to all inter- Esp. 268. vening parties, the acceptor of u bill 1200 NOTES AND BILLS. [§ 555. presentment for that purpose when it becomes payable ; and that if the drawee fail to do either, he, the drawer, will pay the amount stated in the bill, with legal damages thereon, provided he have due notice of the dishonor.^ The indorse- ment of a bill or note is equivalent to the drawing of a bill; the former is like a new bill drawn by the indorser on the [149] drawee or acceptor; and the latter by the indorser on the maker in favor of the indorsee.- The indorser warrants that the bill or note wnll be accepted and paid, according to its tenor; that it is in every respect genuine; that it is valid; that the ostensible parties are competent, and that he has lawful title to and the right to indorse it.'' Of course, if the drawer's or indorser's contract in any of these particulars is not fulfilled he is liable, either on the principle of the failure of consideration, or on the contracf One who transfers such paper without indorsement im- pliedly warrants that it is valid, so far, at least, as he has been connected with its origin, as that it is not to his knowledge void for usury. ^ So, a drawer or indorser without recourse undertakes that the paper is what it purports to be, a valid iBayley ou Bills, ch. 5; Story on Gray, 518; Hurst v. Chambers, 13 Bills, § 108; Edwards on Bills, 287; Bush, 155. Evans V. Gee, 11 Pet. 80; Mellish v. & Whitney v. Nat Bank, 45 N. Y. Simeon, 2 H. Bl. 378 ; Milford v. May, 305 ; Bell v. Dagg, 60 id. 528 ; Smith 1 Doug. 55 ; Mason v. Franklin, 3 v. Corege, 53 Ark. 295 ; Delaware Johns. 202 ; Walker v. Bank, 13 Barb. Bank v. Jarvis, 20 N. Y. 226. See 636 ; S. C, 9 N. Y. 582. Brown v. Montgomery, id. 287. 2 Grinnell v. Herbert, 5 A. &E. 436. An oral warranty of the coUecti- 3 1 Daniel on Neg. Inst, § 669 ; Turn- bility of a note is not within the bull V. Bowyer. 40 N. Y. 456 ; Blethen statute of frauds. Smith v. Corege, V. Lovering, 58 Me. 437 ; Bank of sujira; Milks v. Rich, 50 N. Y. 269. Commerce v. Union Bank, 3 N. Y. On such a warranty the assignor will 230 ; Coolidge v. Brigham, 1 Met 547 ; be estopped by a judgment against Mills V. Barney, 22 Cal. 240. See his assignee, and if he directs the Swall V. Clarke, 51 Cal. 227. latter to sue the maker of the note 4 Chitty on Bills, *95 ; Edwards on he will be liable for the amount he Bills, 291 ; 1 Daniel on Neg. Inst, received for it and the costs of the § 669; Canal Bank v. Bank of Al- suit Smith v. Corege, supra. If, bany, 1 Hill, 287; Little v. Derby, 7 however, the genuineness of the note Mich. 325 ; Gurney v. Womersley, 4 has been considered by the parties E. & B. 133; S. C, 28 Eng. L. & Eq. and the vendor has declined to war- 256 ; Appleton Bank v. McGilvray, 4 rant it the rule is otherwise. Bell v. Dagg, 60 N. Y. 528. § 555.] NOTES AND BILLS. 1201 obligation of those whose names are upon it.* He is liable if any of the prior signatures are not genuine;'^ if the instru- ment was invalid between the original parties by reason of payment or set-off,^ for want of consideration,* or illegality of the consideration, or if any prior party was incompetent, or the indorser without title ; ^ so if there be fraud or misrepre- sentation.^ Although the drawer or indorser is held to such implied warranties, the damages are not assessed in respect to the principal sum according to the general rule applicable to war- ranties of quality or title of personal property, which is that the warrantor shall pay so much as the actual value of prop- erty falls short of what it would be worth if the warranty had been kept good. On the contrary, where recourse [150] is had to an indorser, the recovery on account of the principal sum is limited to the amount paid ; in other words, there is a compulsory refunding of the consideration and interest thereon.' Where, however, a party purchases accommoda- tion paper at less than its face, on representations made by a party to it that it is business paper, and he relies on them, he will be entitled to the whole sum payable by its terms, although it exceeds the amount paid for it, with the legal interest thereon.^ And if an indorser who has been made liable to his indorsee on accolmt of his indorsement set- tles with the latter, and obtains a transfer of the bill, he may 1 1 Daniel, Neg. Inst., § 670. Noble v. Walker, 33 Ala. 456 ; Raplee 2 Damon t. Williamson, 18 Ohio v. Morgan, 3 111. 561; Shaeffer v. St. 515. Hodges, 54 III. 337 ; Braman v. Hess, STiconic Bank v. Smiley, 37 Me. 13 Johns. 53; Short v. Coffeen, 76 111. 385. 845 ; Wynn v. Poynter, 3 Bush, 54 ; 4 Blethen v. Lovering, 58 Me. 437 ; Semnies v. Wilson, 5 Cr. C. C. 385 ; Gompertz v. Bartlett, 8 E. & B. 849; Bank of U. S. v. Smith, 4 id. 713; S. C, 84 Eng. L. & Eq. 156. Cook v. Clark. 4 E. D. Smith, 313 ; * 1 Daniel, Neg. Inst, § 670. Judd v. Seaver, 8 Paige, 548. •> Prettyman v. Short, 5 Harr. (Del.) In ]\Iechanics' Bank v. Minthorne, 360. See Curtis v. Brooks, 37 Barb. 19 Jolins. 344, it was held that the 476. plaintiflF, as indorsee, was not pre- 'Smeltzer v. White, 98 U. S. 390; eluded from recovering against the Munn V, Commission Co., 15 Johns, indorser seven per cent, the legal 43 ; Cram v. Hendricks, 7 Wend, rate, by having discounted the note 569 ; Ingalls v. Lee, 9 Barb. 647 ; at six. Hutchins v. McCann, 7 Porter, 94 ; » Burrall v. De Groot, 5 Duer, 379. Vol. II — 76 1202 NOTES AND BILLS. [§ 550, recover on it from the acceptor for his own use the same amount which his indorser might have recovered, or rather what he would have recovered if he had not negotiated the bill. And it is immaterial whether, upon such transfer, he paid more or less, or merely gave a new security.^ § 556. Interest on notes and bills. Interest is only al- lowed before maturity when expressly stipulated for; but when it is clearly reserved, it is calculated from the date of the instrument unless a different time is specified for it to begin.2 The simple words " with interest," or similar phrase, will suffice to give interest from date.' And on such a gen- eral reservation of interest, it may be recovered from date [151] until paid, although at maturity no suit could be brought.^ And it is the same if payable at the end of a specified time from the death of the maker.^ Commonly speaking, an in- strument of this sort, reserving interest in general terms, carries interest from date, whether payable on demand or at a specified time. The reason is that the party making the promise is expected to keep it; and, if he does, no interest can be due from any other period than its date.® 1 Deas V. Harvie, 2 Barb. Ch. 448. ing tlie life-time of her husband, yet 2 Kennerly v. Nash, 1 Stark. 453 ; that he having died, and it having Hopper V. Richmond, id. 507. been given for a good consideration, ^ Id. ; Dewey v. Bowman, 8 Cal. it was a chose in action surviving 146 ; Winn v. Young, 1 J. J. Marsh, to her, and that she might maintain 51 ; Ely v. Witherspoon, 2 Ala. 131 ; an action upon it against either of Dickinson v. Tunstall, 4 Ark. 170 ; the other makers at any time within Inglish V. Watkins, id. 199 ; Kilgore six years after the death of her hus- V. Powei-s, 5 Blackf. 22 : Pate v. band, and recover interest from the Gray, Hemp. C. C. 155 ; Doman v. date of the note. Richards v. Rich- Dibden, Ry. & M. 381 ; Whitton v. ards, 2 B. & Ad. 447. Swope, 1 Litt. 160 ; Roffey v. Green- 5 Roffey v. Greenwell, 10 A. & E. well, 10 A. & E. 222; Conners v. 222. Holland, 113 Mass. 50; Pittman v. ^I± Lord Denman said in this Barrett, 34 Mo. 84. case : " There is, indeed, another * A married woman, being admin- period from which it might be com- istratrix, received a sum of money puted, that of the maker's death ; in that character, and loaned it to but it appears improbable that if that her husband, and took for it the joint was his intention he should not have and several promissory note of her expressed it with more distinctness, husband and two other persons, jDay- We think that in the absence of all able to her with interest ; held, that particular proof we must presume although she could not have main- the note to have been given for value, tained an action upon the note dur- so that interest would be due fx-om § 550.] NOTES AND BILLS. 1203 The courts adopt a construction favorable to intei-cst, or most strongly against the maker; and where interest is promised to be paid in general terms in case the note shall not be paid at matni'it}^, it is computed from date.^ The rate stipu- [152] lated to be paid before maturit}' generally governs to the date of payment or judgment, if not in contravention of any stat- ute ; 2 and upon the assumption that such was the intention of the parties, such agreements are construed to mean that in- terest at the conventional rate shall continue not only to the time specified for payment, but until actual payment. There is, however, a w^ant of harmony in the decisions upon this point. In Minnesota the legal rate governs arbitrarily after maturity, if the parties have stipulated for a rate generallv above it or have even agreed, in express terms, that such rate shall be computed until the debt is paid. Any rate in excess of the legal rate stipulated to be paid while the debtor is in default is treated as penalty, and only the legal rate is al- lowed.^ In many cases elsewhere it has been held that the agreement fixing the rate without specifying the period for which it shall be computed is intended to have effect only dur- ing the period of credit; that if the parties desire to regulate the rate to be allowed afterwards, they should do so expresslv by agreeing that it shall continue after maturity or " until the date. If that be doubtful, the ris (la.), 294; Horn v. Nash, 1 Iowa, instrument ought to be construed 204; Hackenbury v. Shaw, 11 Ind. most strongly against the maker." 392. The cases of Billiugsly v. Ca- Washband v. Washband, 24 Conn, boon, 7 Ind. 184, and Wernwag v. 500 ; Adairs v. Wright, 14 Iowa, 22. Mothershead, 3 Blackf. 401, are per- See Carter v. King, 11 Rich. 125; haps distinguishable, and not to be Rollman v. Baker, 5 Humph. 406; considered as inconsistent; because Powell V. Guy, 3 Dev, & Batt. 70. in each the agreement was for a 1 Several notes were payable at dis- higher rate of interest upon default tant days ; some at three per cent, than the law would give in the ab- per annum, if paid at maturity ; •* if sence of any agreement ; and hence, not, six per cent, interest to be paid ; " as effect could be given to the lan- and one payable without interest, guage emploj'ed, without allowing " until the note is out, if not paid interest from the date of the notes, it then lawful interest until paid." was allowed to run from their ma- They w<*re not paid at maturity, and turity only. 2 Parsons on N. & B. it was he):^ *',mt interest was recover- 382, note d. See Flanders v. Chamber- able according to the agreements lain, 24 ^lich. 305. tlierein from date. Daggett v. Pratt, 2 gee ante, vol. 1, § 306 et seq. 15 Mass. 177; Parvin v. Hoopcs, Mor- ^See ante, vol. 1, § 310. 1204: NOTES AND BILLS. [§ 556. paid." ^ In Connecticut the conventional rate before maturity is applied during the period of default, not so mucli on the ground that the contract as such covers that period, as on the principle that it should be deemed a just rate because the par- ties had agreed to it before maturity .^ A stipulation for interest without stating the rate is a con- tract for the legal rate ; and this rate, and the validity of any stipulation specifying the rate, are to be determined by the law of the place of contract, which is the place where the con- tract is entered into, unless it was made with reference to the laws of some other state or country. A contract is governed by the laws of the place where it is to be performed.^ If 1 See ante, vol. 1, § 309 ; Brewster V. Wakefield, 23 How. 127 ; Burnhisel V. Firman, 22 Wall. 170. 2 See ante, vol. 1, § 309, n. In ch. 8, vol. 1, the subject of interest is fully treated. sGaylord v. Johnson, 5 McLean, 448 ; Arrington v. Gee, 5 Ired. L. 590 M'Queen v. Burns, 1 Hawks, 476 Doris V. Coleman, 7 Ired. L. 424 Hunt's Ex'r v. Hall, 37 Ala. 702 Barney v. Newcomb, 9 Gush. 46 Campbell v. Nichols, 33 N. J. L. 81 Lee V. Selleck, 20 How. Pr. 275 ; S. C, 33 N. Y. 615 ; Hyatt v. Bank of Ken- tucky, 8 Bush, 193 ; Cook v. Moffat, 5 How. (U. S.) 295 ; Bright v. Judson, 47 Barb. 29 ; Everett v. Vandryes, 19 N. Y. 436 ; Bailey v. Heald, 17 Tex. 102; S. C, 14 Tex. 226; Lizardi v. Cohen, 3 Gill, 430 ; Worcester Bank V. Wells, 8 Met. 107 ; Lewis v. Owen, 4 B. & Aid, 654 ; Smith v. Buchanan, 1 East, 6 ; Quin v. Keef e, 2 H. Black. 553; Bainbridge v. W^ilcocks, Bald. 536; Boyce v. Edwards, 4 Pet. Ill; Cooper V. Waldegrave, 2 Beav. 282 ; Braynard v. Marshall, 8 Pick. 194; Wilde V. Sheridan, 21 L. J. (Q. B.) 260 ; S. C, 16 Jur. 420 ; 11 Eng. L. & Eq. 380 ; Barker v. Sterne, 9 Exch. 684 ; S. C, 25 Eng. L. & Eq. 502 ; Hanrick v. Andrews, 9 Port 9 ; Healey v. Gor- man, 15 N. J. L. 328; Evans v. Clark, 1 Port. 388 ; Evans v. Irwin, id. 390 ; Chase v. Drew, 47 N. H. 405 ; Hop- pins V. Miller, 17 N. J. L. 185 ; But- ters V. Olds, 11 Iowa, 1 ; Burton v. Anderson, 1 Tex. 93 ; Lines v. Mack, 19 Ind. 223 ; Peacock v. Banks, Minor (Ala.), 387 ; Peck v. Mayo, 14 Vt. 33 ; Ramsey v. McCauley, 2 Tex. 189; Chambliss v. Robertson, 23 Miss. 302 ; Jack V. Nichols, 5 N. Y. 178; Kava- naugh V. Day, 10 R. L 393 ; Hacketts- town Bank v. Rea, 6 Lans. 455 ; S. G, 64 Barb. 175 ; Agricultural Nat. Bank V. Sheffield, 4 Hun, 421 ; Scolield v. Day, 20 Johns. 102 ; Newman v. Ker- shaw, 10 Wis. 333 ; Findlay v. Hall, 12 Ohio St. 610 ; McClmtick v. Cum- mins, 3 McLean, 158; Consequa v. Willings, Pet. C. C. 229 ; Archer v. Dunn, 2 W. & S. 327; Ralph v. Brown, 3 id. 395 ; Anonymous, Mart & Hay w. 149 ; Consequa v. Fanning, 3 Johns. Ch. 587 ; S. C, 17 Johns. 511 ; Stewart v. Ellice, 2 Paige, 004 ; Pom- eroy v. Ainsworth, 23 Barb. 118; Ir- vine V. Barrett, 3 Grant's Gas. 73 Roberts v. McNeely, 7 Jones' L. 506 Swet V. Dodge, 4 Sm. & M. 667 Gaillard v. Ball, 1 N. «fe McC. 67 ; Jaf- f ray v. Dennis, 2 Wash. C. C. 253 ; Cowqua v. Laudebrun, 1 id. 521 ; Busby V. Caraac, 4 id. 290 ; Bank of Illinois V. Brady, 3 McLean, 268; Moore v, Davidson, 18 Ala. 209 ; Lef- § ^^G.] NOTES AND BILLS. 1205 made in one state or country and payable in another, [153] and not made to evade the usury laws of one of them, it will be sustained if the rate of interest is valid by the laws of either.^ But the fate of a contract which violates the [154] laws of both the country or the state where it is made and that where it is to be performed will be deterjnined by those of the former.- Where the rate is governed by an}^ other tlian tlie law of Avhich the court takes judicial notice it is for the jury to as- certain what the rate by that law is as a fact ; but it is for the court, as a matter of law, to direct them as to the place ac- cording to the laws of which the interest is to be assessed.' Where the rate is governed by the laws of another jurisdiction they must l)e alleged and proved ; * otherwise interest according to the law of the forum will be given.^ ler V. Dermotte, 18 Ind. 246; Von Hemert V. Porter, 11 Met. 210; Win- throp V. Carlton, 12 Mass. 4; Hawley V. Sloe, 12 La. Ann. 815; Little v. Riley, 43 N. H. 109 ; Bolton v. Street, 3 Cold. 31 ; Summers v. Mills, 21 Tex. 77; Whitlock t. Castro, 22 id. 108; Butler V. Meyer, 17 Ind. 77 ; Bent v. Lauve, 3 La. Ann. 88; Smith v. Smith, 3 Johns. 235 ; Don V. Lippmann, 5 CI, & F. 1 ; Balme v. Wombough, 38 Barb. 352; Collins Iron Co. v. Burkani, 10 Mich. 283 ; Fergusson v. Fyflfe, 8 CI. & F. 121 ; Cash v. Ken- nion, 11 Ves. 314; Robinson v. Bland, 2 Burr. 1077 ; Ekins v. East India Co., 1 P. Wnis. 395 ; Houghton v. Page, 2 N. H. 42 ; Lapice v. Smith, 13 La. 91; Mullin v. Morris, 2 Pa. St. 85; Chapman v. Robertson, 6 Paige, 627 ; Ricbards v. Globe Bank, 12 Wis. 692 ; McAllister v. Smith, 17 111. 328 ; Van Schaick v. Edwards, 2 Johns. Cas. 355 ; Pearce v. Wallace, 1 Har. & J. 48 ; Goddin v. Shipl-y, 7 B. Mon. 575. 1 Andrews v. Pond, 13 Pet. 65 ; Richards v. Globe Bank, 12 Wis. 692; Jewell t. Wright, 12 Abb. 55, reversed, 30 N. Y. 259; Kilgore v. Dempsey, 25 Ohio St. 413; Bowen v. Bradley, 9 Abb. (N. S.) 395; Cope V. Wheeler, 41 N. Y, 303 ; Agricult- ural Nat. Bank v. Sheffield, 4 Hun, 421; Vliet v. Camp, 13 Wis. 198; Engler v. Ellis, 16 Ind. 475. 2 Andrews v. Pond, supra; Pine v. Smith, 11 Gray, 88; Mix v. Madison Ins. Co., 11 Ind. 117; Adams v. Rob- ertson. 37 111. 45. SGibbs V. Fremont, 9 Exch. 25; Leavenworth v. Brockway, 2 Hill, 201; Wheeler v. Pope, 5 Tex. 262; Hill V. George, id. 87; Pridgen v. McLean, 12 id. 420; Ingram t. Drinkard, 14 id. 351 ; Evans v. Clark, 1 Port. 388. 4 Surlott v. Pratt, 3 A. K. Marsh. 174 ; Burton v, Anderson, 1 Tex. 93 ; Wheeler v. Pope. 5 Tex. 202 ; Hill v. George, id. 87 , Abel v. McMurray, 10 id. 350; Pridgen v. McLean, 12 id. 420; Ingram v. Drinkard, 14 id. 351 ; Evans v. Clark, 1 Port. 388. According to the foregoing cases, where the note sued on is payable in another state no interest at all can be allowed unless the law of the state where it is payable is proved and shows a right to interest. See ante, vol. 1. § 358 et seq. 5 Surlott V. Pratt, 3 A. K. Marsh. 174 ; Desnoyer v. McDonald, 4 Minn. 1206 NOTES AND BILLS. [§ 557. § 557. Interest as damages to be paid by maker or ac- ceptor. Where the note or bill is silent as to interest, none is payable until maturity. If it be not then paid, interest is universally allowed from maturity unless the delay is by the fault of the holder.' And so much is interest the customary and invariable compensation for money delinquent on com- mercial paper that where a party undertakes to pay a debt by means of a bill or note and fails to do so, interest will be al- [155] lowed as it would accrue upon such note or bill if it had been given according to the undertaking.^ If paper is payable on demand interest does not run until demand is made by suit or otherwise.^ Bat a note expressing no time when pay- able is due immediately, and bears interest from date.* The rate of interest after maturity for default of payment, even when not expressly or by implication fixed by contract, is generally held to be that prescribed by the law of the place of contract ; in other words, the law of the place where the note is made payable, or of the place on which the bill is drawn.' If no place of payment is mentioned, that where the note is made or the bill accepted is the place of contract. But 515; Martin v. Martin, 1 Sm. & M, Selsey, 2 Beav. 350; Beeher v. Jones, 176 ; Brown v. Gracy, D. & Ry. N. P. 2 Camp. 428, note. 41, note ; De La Chaumette v. Bank 3 Hudson v. Daily, 13 Ala. 722 ; of England, 9 B. & C. 208 : Fouke v. Vaughan v. Goode, Minor (Ala.), 417 ; Fleming, 13 Md. 392 ; Whidden v. Freeland v. Edwards, Mart & Hayw. Seelye, 40 Me. 247; Deem v. Grume, 207; Lewis v. Lewis, id. 191; Hard 4G 111. 69 ; Prince v. Lamb, 1 id. 378 ; v. Palmer, 21 Up. Can. Q. B. 49 ; Pat- Clmmasero v. Gilbert, 26 id. 39; Hall rick v. Clay, 4 Bibb, 246; Bartlett v. V. Kimball, 58 id. 58; Lougee v. Marshall, 2 Bibb, 467: Schmidt v. Washburn, 16 N. H. 134 ; Hall v. Limehouse, 2 Bailey, 276. See Dar- Woodson, 13 Mo. 462 ; Gordon v. ling v. Wooster, 9 Ohio St. 517. Phelps, 7 J. J. Marsh. 619 ; Leaven- < Gaylord v. Van Loan, 15 Wend, worth V. Brockway, 2 Hill, 201; 308; Lewis v. Lewis, Mart. & Hayw. Booty V. Cooper, 18 La. Ann. 565. 191 ; Freeland v. Edwards, id. 207 ; 1 Gantt V. Mackenzie, 3 Camp. 51 ; Purdy v. Philips, 1 Duer, 369 ; Francis Mayne on Dam. 105 ; Thorndike v. v. Castleman, 4 Bibb, 282. United States, 2 Mason, 1 ; Robinson & Campbell v. Nichols, 33 N. J. L. V. Bland, 2 Burr. 1077; Baun v. 81; Scofield v. Day, 20 Jolins. 102; Dalzel, M. & M. 228 ; Laiug v. Stone, Mullen v. Morris, 2 Pa. St. 85 ; Boyce 2 M. & Ry. 561 : Greenleaf v. Kellogg, v. Edwards, 4 Pet. Ill ; Braynard v. 2 Mass. 568; Hastings v. Wiswall, 8 Marshall, 8 Pick. 194; Chapman v. id. 455. Robertson, 6 Paige, 627 ; Thompson 2 Marshall v. Poole, 13 East, 98; v. Powles, 2 Sim. 194; Hosford v. Slack V. Lowell, 3 Taunt. 157 ; Farr Nichols, 1 Paige, 220 ; Gaylord v. V. Ward, 3 M. & W. 25 ; Rhoades v. Johnson, 5 McLean, 448 ; Bank of § 558.] NOTES AIO) BILLS. 1207 the place may be affected by circumstances, as the residence of the parties, and the pUice where the money is to be used.' A bill was drawn on a resident of the state of New York, and by him accepted to be paid in that state, by a resident [15GJ of Illinois. The acceptance was for the accommodation of the drawer, and for the purpose of being afterwards negotiated by him to raise funds to be used in his business in lUinois, he to provide for its payment. After acceptance the acceptor placed the bill in the hands of the drawer, and he negotiated it for a greater rate of discount than was allowed by the laws of either state. It was held to be governed by the laws of Illinois. Strong, J., said : " The case is exactly the same as it would be if the defendants had been residents of Chicago, where the draft was draw^n, and had accepted it at Chicago for the accommodation of the drawer, designating New York as the place of payment. It is plain, therefore, that the con- tract is an Illinois contract, and that the rights and liabilities of the parties must be determined according to the laws of that state." It was treated as a controlling fact that before the acceptance had any operation, before the instrument be- came a bill, the defendants, who were the acceptors, sent it to Illinois for the purpose of having it negotiated in that state.^ § 558. Liability of drawer or iudorser for interest as damages. When not fixed by the contract, the liability is governed b}^ the law of the place where the contract of the drawer or indorser is made ; for their contract is im})lied, and the implication is that it is to be performed at the place where Illinois V. Brady, 8 id. 268 ; Bright was held that as between the parties V. Judson, 47 Barb. 29 ; Lee v. Selleck, to a promissory note executed in the 33 N. Y. 615; Cooke v. Crawford, 1 state of New York and made payable Tex. 9 ; Burton v. Anderson, id. 93 ; generally, interest should be allowed Wheeler v. Pope, 5 id. 263 ; Andrews at Vermont rate, if it appeai-s from V. Hoxie, id. 171 ; Barney v. New- the circumstances attending its exe- comb, 9 Cush. 46 ; Hunt v. Hall, 37 cution that it was the expectation Ala, 702 ; 2 Parsons on N. & B. 371. and intention that it would be paid But see Goddard v. Foster, 17 Wall, there. See Thompson v. Ketcham. 123 ; Wood v. Corl, 4 Met. 203 ; Ayer 8 Johns. 189. V. Tilden, 15 Gray, 178. 2Tilden v. Blair, 21 Wall 241. See 1 Davis V. Coleman, 8 Ired. 424. vol. 1, § 364 In Austin v. Imus, 23 Vt 286, it 1208 NOTES AND BILLS. [§ 559. it is made.' The ruie of liability under the English bills of exchange act is stated in a note.^ § 559. Notes and bills are by definition payable only in money. Within the domain of the law merchant there is a great variety of moneys made legal tender by many sover- eignties, and in many jurisdictions are other currencies not legal tender, but which, to a considerable extent, perform the functions of money by being freely paid and received as a sub- stitute in all local transactions. When an instrument in the form of a note or bill is payable in some special currency, the question has often arisen. whether it was payable in money. ^ 'Gibbs V. Fremont, 9 Exch. 25; Boyce v. Edwards, 4 Pet. 111. See vol. 1, § 358. 2 The English bills of exchange act, 1882 (sec. 57, ch. 61, 45-46 Vict.), pro- vides that where a bill is dishonored the measure of damages shall be : (1) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an indorser v^^ho has been compelled to pay the bill may recover from the acceptor or from the drawer, or from a prior indorser: (a) The amount of the bill. (6) Interest thereon from the time of presentment for payment if the bill is jjayable on demand, and from the maturity of the bill in any other case. (c) The expenses of noting, or, when protest is necessary, and the protest ■ has been extended, the ex- penses of protest (2) In the case of a bill which has been dishonored abroad, in lieu of the above damages the holder may re- cover from the drawer or an in- dorser. and the drawer or indorser who has been compelled to pay the bill may recover from any party lia- ble to him, the amount of the re- exchange with interest thereon until the time of payment (3) Where by this act interest may be recovered as damages, such inter- est may, if justice require it, be with- held wholly or in part, and where a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper. The South Australian act (47-48 Vict. No. 312, sec. 57) is identical with the above except that sub-section 1 (&) contains the words after in- terest thereon, "at the rate of ten pounds per centum per annum." Under this act it has been ruled that when a bill of exchange has been dis- honored out of that colony the only damages which the holder can re- cover are the amount of the re-ex- change, with interest thereon, as pro- vided by sub-section 2, and that he has no option to sue for interest un- der sub-section 1. In re Commercial Bank of South Australia, 36 Ch. Div. 522. SBlack V. Ward, 27 Mich. 191. A note made and indorsed in Michigan and payable " in Canada currency " was held to be payable in money, and therefore negotiable. Campbell, J., said : "The indorser's contract being governed by the laws of this state, and the note having been made here, its negotiability must in our courts be tested by our statute ; but as that § 559.] NOTES AND BILLS. 1209 The determination of this question in the affirmative [157] places the instrument in the category of commercial paper; is like the statute of Aune. in requir- iug the paper to be payable iu money, the only inquiry in this regard is what may be included in that term. It will be found by examining the authorities that the word 'money' has been used for some purposes in a very wide sense, and for othei-s in a restricted sense. When questions have come up in construing negoti- able paper it has never been extended beyond coin and paper at par value. In England, in the case of Miller v. Race, 1 Burr. 452, which involved the rights of holders of stolen Bank of England bills, the language of Lord Mansfield and of the judges was so pointed in treating such notes as cash, that if the question now dis- cussed had been mooted, there can be little doubt how it would have been decided. A series of decisions made afterwards sustained tenders in such bills, where no objection had been made to the medium in whicli the tender was made. Polglass v. Oliver, 2 Cr. & J. 15, 16 ; Brown v. Saul, 4 Esp. 267 ; Wright v. Reed, 3 T. R. 5o4. And these decisions have been followed universally in this country. The first time when the negotiability of a bill payable in Bank of England notes came up for decision was in the interval between 1797 and 1818, during which the bank was restrained from making specie payments. The statutes containing this restriction provided that if the amount of any debt were tendered in notes the debtor should not be ar- rested on the debt. Tomlin's Law Die, ' Bank of England.' It was held in Grigby v. Oakes, 2 B. & P. 526, that under this statute notes were not a legal tender. Reference was made by some of the court to the peculiar terms of the statute, as lim- iting tlie ell'ect of the tender to an exemption from arrest. In Ex parte Davison, Buck, 31, and Ex parte Imeson, 2 Rose, 225, it was held thnt notes payable in 'cash or Bank of Englaud notes' were not negotiable. In 1831 the notes were made a legtsl tender; but by the present law they are not such in Scotland or Ireland. Fisher's Dig., 'Bank of England,' 'Tender.' No case has since been re- ported in which any such question was raised ; and whether the silence of the courts arises from the change of the law, -whereby the notes are made equivalent to coin, or from any custom excluding any mention of notes in drawing up negotiable paper, we have no means of judging. [loSJ Where the notes are always convert- ible and at par with gold, and are a legal tender, there does not seem to be any veiy good reason for holding a bill payable in notes to be any more objectionable than one payable iu coin. In this country all paper not payable expressly in gold is impliedly payable iu greenbacks ; and we can- not conceive that it can change the legal character of any security to ex- press in it precisely what the law im- plies. Where a promissory note is payable in anything which is not a legal tender, the authorities are gen- erally, though not universally, against its negotiability. In New York and Ohio bank bills issued under suite authority, and where the courts hold they are bound to recognize their quality judicially, have been held at par to represent money, so that notes payable in cash, or in such notes, have been adjudged negotiable. Keith V. Jones, 9 Johus. 120 ; Judah V. Harris, 19 Johns. 144 ; Swetland v. 1210 NOTES AND BILLS. [§ 559. but if decided in the negative, it 1 elongs to another class of contracts which are not governed by the law merchant. The Creigh, 15 Ohio, 118. But in the same states paper payable expressly iu any other bills, or in the bills of specified banks of the state, has been held not negotiable. Leiber v. Good- rich, 5 Cow. 186 ; Shamokin Bank v. Street, 16 Ohio St. 1 ; Thompson v. Sloan, 23 Wend. 71 ; Little v. Phoenix Bank, 2 Hill, 425 ; 7 id. 359. Elsewhere, except where there are statutes to the contrary, there is no considerable support for the doctrine that paper i:)ayable expressly in the bank notes of private corporations is negotiable. •' Under the laws of this state bank bills may be levied on, and may be paid over as cash, if the creditor is willing to receive them ; but if he refuses they must be sold ' as other chattels.' Comp. L., §§ 6096, 6456. If the term ' Canada currency ' should be confined to private bank notes it would be difiicult to hold this paper negotiable. In Thompson V. Sloan the supreme court of New York held that a note payable in Buffalo in ' Canada money ' was not negotiable. This, however, is not, as we think, in accordance with the general current of decision. Judge Story says: 'If it be payable in money it is of no consequence in the cui-i*eucy or money of what country it is payable; in the currency or money of England, France, Spain, Holland, Italy, America or any coun- try.' Story on Bills, § 43 ; Chitty on Bills, 153, 158. We cannot, with any propriety, refuse to recognize the right of every country to fix its cur- rency, and it is impossible for any civilized government to exist with- out some legal standard of money. Tlie only question here is whether a note payable in ' Canada currency ' is, or is not, payable in money. It is claimed on the one side and denied on the other that the term ' currency ' is confined in our usage to paper which is not money. Upon tliis ques- tion many authorities have been cited, and we have examined each of them with such other references as we have been able to discover, and are led to the conclusion that there is no foundation for any such doc- trine. The only cases in which it has been held that ' currency ' does not mean money (except where it has been qualified by some further defini- tion) are certain cases in Iowa and Wisconsin, all of which rest entirely upon decisions where the paper in question was expressly payable in bank notes. None of these decisions support the idea that ' currency ' and ' bank notes ' are purely convertible terms, and the inference is un- [159] warranted, unless founded on what does not appear in any of those de- cisions. The decision in Wright v. Hart, 44 Pa. St. 454, that paper pay- able 'in current funds at Pitts- burgh'' was not negotiable, was also rested, without any further discus- sion, upon the authority of former decisions applicable to paper payable in bank notes. "In Dillard v. Evans, 4 Ark. 175, the term 'common currency of Ar- kansas ' (in which certain paper was made payable) was held designed to point out a different currency from that which was legal, and to refer to depreciated paper, which was then, in fact, the common medium of busi- ness. And in Farwell v. Kennett, 7 Mo. 595, it was held that the inser- tion of the words 'payable in cur- rency ' indicated a design to change the legal import which would have been found had no such words been 559.] NOTES AND BILLS. 1211 currency payable in order to give the contract the qualities of iieo'otiable paper must be money not in the popular sense inserted. And in Con well v. Pum- phrey, 9 Ind. 135. the use of the term 'current funds' was held fur the same reason an intentional variation. Subsequent decisions in each of those states have either overruled these cases or so interpreted them as not to make them apply to a case like the one before this court. Reference will be made presently to these later decisions. With these exceptions the general course of authority is in favor of the negotiability of paper payable in currency or current funds. And these decisions rest upon the ground that those terms mean ' money,' as the necessity of having negotiable paper, payable in money, is fully recognized. There is, how- ever, some difference in the methods of arriving at this result, and it is proper to refer, to the cases which have used careless language, as well as to those which have laid down rules cautiously. The fact that the bills of sound banks have been re- ceived promiscuously with the legal money of the country has led here, as in England, to remarks from courts, based on the assumption — which is well founded — that per- sons usually do not prefer one to the other, and they sometimes speak of payment in either as amounting to the same thing. It is only where the question is directly presented of a tender actually made in one or the other that discrimination becomes necessary. Thus in Lacy v. Hol- brook, 4 Ala. 88, where a bill of ex- change, payable ' in funds current in the city of New York,' was held ne- gotiable,* it was so held because deemed to be payable in cash, in gold or silver coin, 'or its equivalent.' So in Bank of Peru v. Farusworth, 18 111. 5G;3; Laughlin v. Marshall, l!i 111. 390; Swift V. Whitney, 20 111. 144, and Hunt v. Deviue, 37 111. 137. promissory notes or certificates of deposit, payable in ' currency,' were held to be negotiable on the same ground ; but there is reference made to the equivalence of bank notes with other money, which are open to the same hyper-criticism tliat the court confounded real with conventional money. It is to be observed, how- ever, that none of the cases called for any decision as to what would be a legal tender in payment of such notes. " The decisions of other states are less open to remark. In Arkansas, where the rule is strict in denying negotiability of paper not payable in money (see Hawkins v. Watkins, 5 Ark. 481, and Dillard v. Evans, 4 Ark. 175), it was held in Graham v. Adams, 5 Ark. 261, that a note paj'able in ' good, current money of the state ' was negotiable. The court, after some discussion, remark: 'A [100] good currency, then, in our opinion, means nothing more than a lawful currency, and that is current coin of the United States.' In Wilburn V. Greer, 6 Ark. 255, it was held a note payable in ' Arkansas money ' was payable in current coin of the United States, and therefore negotiable. In Burton v. Brooks, 25 Ark. 215, it was held a note payable in • green- back currency ' was payable in the currency of the United States, and not in national or other bank notes, and that the meaning was the same as if it had been made payable in dollars only. In Indiana, in Drake V. Markle, 21 Ind, 433, it was held that the term ' currency ' meant money, and that a note payable 1212 NOTES AND BILLS. [§ 55&. merely, but money whicli entitles the holder to legal tender [162] currency.' Notes payable in current bank notes are therein was negotiable. This case practically overrules Conwell v. Pum- phrey, which, as we have seen, was decided on the assumption that par- ties never use unnecessaiy words in making negotiable paper. In Missis- sippi, in Mitchell v. Hewitt, 5 S. & ]VL 30 1, the note was payable in ' cur- rency of the state of Mississippi.' The court say that this phrase ' can only mean that which has been declared to be a legal tender, be- cause currency implies lawful money.' Reference was made to an early Penn- sylvania case, Wharton v. Morris, 1 Dall. 133, where, upon a similar state of facts, it became necessary to de- fine the words of a note. The court there held that 'lawful' and 'cur- rent ' were synonymous words, and said the ' lawful current money of Pennsylvania,' that which was de- clared to be a lawful tender, and con- sequently became the legal currency of the land, was the money emitted under the authority of congress. In Lee V. Biddis, 1 Dall. 188, it was fur- ther held (as must necessarily be the case if courts are to construe such language), that evidence could not be received to give any other explana- tion. In Minnesota, in Butler v. Paine, 8 Minn. 324, currency was held to be lawful money ; and the following definition from Bouvier's Law Dictionai'y was approved : ' The nione}' which passss at a fixed value from hand to hand ; money which is authorized by law. ' In Missouri, where, in an earlier case (Farwell v. Kennett, 7 Mo. 595), it had been held, as it had been in Indiana, 'that words of surplusage must have a control- ling and repugnant meaning, and that a note payable ' in currency ' was not payable in money, it was distinctly held in Cockrill v. Kirkpatrick, 9 Mo. 688, that paper payable in 'currency of Missouri ' was paj^able in law- ful money of the United States, and that Missouri currency could tnean nothing else. In Tennessee it was held, in Searcy v. Vance, Mart & Y. 225, that paper payable in 'Tennessee money ' was only payable in gold and silver, and that those words would not include bank notes. The same state holds paper payable in current bank notes of Tennessee, or in such notes generally, not to be negotiable. Kirkpatrick v. McCullough, 3 Humph. 171 ; Whiteman v. Childress, 6 Humph. 303 ; Simpson v. Mouldeu, 3 Cold. 429 ; McDowell V. Keller, 4 Cold. 258. In Louisiana it was held, in Fry v. Dud- ley, 20 La. Ann. 368, that a bill of exchange payable * in currency ' is payable in legal current money, and a person who receives such a bill for collection is not authorized to receive anything else. In Ehle v. Chitten- ango Bank, 24 N. Y. 548, a dividend, * payable in New York state [IGlj cun-enc}', ' was held payable in cash. And it was held incompetent to in- quire of a cashier what he under- stood that phrase to mean. The court say : ' The term " New York state currency " must be held to mean what the ordinary signification of those words implies, unless by some general known usage some other technical meaning can be attached to it' •'We have been referred to the case of Gray v. Worden, 29 Up. Can. Q. B. 533, as bearing adversely on this point That case decides that a note payable 'in Canada bills' is not ne- gotiable, even though construed to iJd. § 559.] NOTES AND BILLS. 1213 not negotiable paper.' In an action on such a note or otlier form of agreement, the plaintiff must prove the value of such bank paper; otherwise it has been held he is not entitled to mean government legal tender notes. It is based upon the decisions made in England and America relative to paper payable in bank notes, and liolds the official notes as mere prom- ises to pay money, and not as money. That doctrine would not be admissi- ble under our legal tender laws. But the case is chiefly relied on for some remarks it contains distinguish- ing the word ' currency ' from * money.' It seems to have been sup- posed by counsel that this distinction was the same as between bills and money ; or, in other words, that cur- rency and bills are synonymous. This is an evident misapprehension. The language used is this : ' There is a difference between money and cur- rency. In Landsdowne v. Lands- downe, 2 Bligh, 78, Lord Redes- dale said, in 1820 : " There is no law- ful money of Ireland. It is merely conventional. There is neither gold nor silver coin of legal currency ; nothing but copper. There is no such thing as Irish money ; it is Irish currency." See, also, Kearney V. King, 2 B. & Aid. 301 ; Sprowle V. Legge, 1 B. & C. 16.' The dis- tinction which the Canada court points out is not one between paper and coin, but between the values of money in different countries. In the cases referred to it appears that the difference between the Irish pound sterling and the English pound ster- ling was such that twelve English pounds were equivalent to thirteen Irish pounds. In like manner, • a Canadian pound repi-esents only four-fifths of an English pound, and the old New York pound was but two dollars and a half; the New York shilling being twelve and a half cents, the Canadian shilling twenty cents, and the British sliilliiig taken nominally at about twenty-five cents. The pound in Jamaica is five-sevenths of the English pound. Scott V. Bevan, 2 B. & Ad. 78. Judge Story has collected some learning on this subject in Conflict of Laws, §S 308-313. See, also, Taylor v. Booth, 1 C. & P. 286 ; Cope v. Cope, 15 Sim. 118. In Macrae v. Goodman. 10 Jur. 555 ; 5 Moore, P. C. 315, a similar consideration came up in re- gard to 'Holland currency,' where that term was used in a contract made in Guiana, the colonial guilder being different from the Dutch guilder. In Landsdowne v. Lands- downe the question was whether, under a marriage settlement, a rent charge on lands in Ireland was pay- able in English currency, that is to say, whether the annuity of 3,000/. was to be in English pounds sterling or at a less rate. The currencies of Ireland and England have, it is said, been equalized since that decision. But there was not then, as remarked by Lord Redesdale, any Irish coin- age, and the difference was merely one of computation." 1 Whiteman v. Childress, 6 Humph. 303; Looney v. Pinckston, 1 Overt 381; Childress v. Stuart, Peck, 276; Gamble v. Hatton, id. 130; Lawrence V. Dougherty, 5 Yerg. 435 ; Kirkpat- rick V. McCullough, 8 Humph. 171 ; Hopson V. Fountain, 5 id. 140. In the last case suit was brought on a note payable " in current bank money of the state of Mississippi." On the trial the jury were instructed that this did not entitle the holder to the number of dollars specified in it, with interest ; that the word money 1214 NOTES AND BILLS. L§ ^59. [163] judgment for any sum.' And it has been held, if pay- able m " current bank notes," without any other description, they would be regarded such as are convertible into specie at had a technical legal meaning, signi- fying dollars and cents of constitu- tional currency, to wit, gold and silver. But on error this was held wrong. Eeese, J., said : " We cannot consent to the correctness of this definition of the word money. It is a generic term, embracing, according to the subject-matter of the discourse or writing, every species of coin or currency — guilders, guineas. Napo- leons, eagles and bank notes as well as dollars. But if its meaning were, as the circuit court holds, when standing alone, per se, still, like all other words, its meaning will be modified by accompanying words or phrases. Here the accompanying and qualifying words are current bank money of the state of Missis- sippi. Bank money means that spe- cies of money called hank notes; and of that species the parties in this case meant that sort or variety called Mississippi bank notes. They may not be the very best, but, at all events, they are those about which the parties contracted. The mean- ing and intention of the parties on the face of the instrument it is not difficult to perceive. Whether, on the grounds of policy, it would orig- inally have been better, in the con- struction of all such instruments, to have held the word dollar to have referred, not to the numerical amount of the bank notes, but to the stand- ard of value, it is now useless to in- quire. The principle in cases where it can apply has been long and well established. Societj' conforms to it in their contracts, and it must be ad- hered to. The measure of damages in this case is the value of the cur- rent Mississippi bank notes when the covenant was payable." Hixon v. Hixon, 7 Humph. 33. In Brker v. Jordan, 5 id. 85, in covenant, there was a plea of covenants performed ; no proof was introduced except a note for dollars payable in cuiTent bank notes. It was held that the jury was warranted in giving a ver- dict for the number of dollars called for. Ward V. Latimer, 12 Tex. 438 : Ac- tion on two notes payable in cash notes. The court charged the jury that if "cash notes at the time the notes sued on were due were the cir- culating medium of the country, and were generally the medium of trade, they thereby took the place of money and were to be considered its equiv- alent, provided the same value was attached to them by the community generally. Held not error. The proper criterion of the value of "cash notes" is not the price at which they were purchasable at the time in cash, but the value at which they were used in the ordinary and general transactions of trade by the community. A draft payable in Arkansas money held not a bill of exchange. Hawkins v. Watkins, 5 Ark. 481. Nor will debt lie on a note payable in North Carolina bank notes. Ber- berry V. Darnell, 5 Yerg. 451. Bank notes are treated as depreciated cur- rency. Gamble v. Hatton, Peck, 130; Kirkpatrick v. McCullough, 3 Humph. 171. So current bank notes. A note payable in current bankable funds, though given dur- 1 McKiel V. Porter, 4 Ark. 584 ; Elliott v. Chilton, 5 id. 181. § 560.] NOTES AND BILLS. 1215 the counter where they are issued and pass at par in the ordi- nary transactions of the countr3^^ § 560. Re-exeliani;e and damai^es on bills disliouored. A bill of exchange, as its name imports, is generally to [Ifi-t] exchange a debt or credit due in one place or country for a debt or credit due in another place or country. Therefore, the drawers and indorsers are respectively liable thereon to the holder for all damages sustained by him in consequence of its dishonor.- Among them is to be included a sum sutfi- -^ient to cover the premium necessary to be paid in re- exchange,' for the engagement of the drawer and indorser of ing the ascendency of the confed- eracy for confederate money, held good for its face value in United States currency. Taylor v. Turley, 33 Md. 500. And so in Williams v. Moseley, 2 Fla. 304, it was held that a note payable in "current Florida money" is paj^able in good funds. A note payable in United States six per cent, interest-bearing bonds is not a promissory note, Easton v. Hyde, 13 Minn. 90. Nor is a note payable in commonwealth bank notes. Mitchell v. Waring, 4 J. J. Marsh. 233. The holder of a check payable in current funds may demand current money par funds, money circulating without any discount, and cannot be compelled to take depreciated liank notes. Mare v. Kupfer, 34 111. 286 ; Galena Ins. Co. v. Kupfer, 28 111. 382; Klauber v. Biggerstaff, 47 Wis. 551. A certificate of deposit payable in " currency " is not nego- tiable. Huse V. Hamblin, 29 Iowa, 501. In Chicago F. & M. Ins. Co. V. Keiron, 27 111. 501, "Illinois cur- rency " received the same construc- tion. In Marine Bank v. Chandler, 27 id. 325, "current bank notes" were given the same meaning. In Marine c; F. Ins. Co. v. Tincher, 30 id. 399 ; and in Swift v. Whitney. 20 id. 144, held that currency is the same. In Moore v. Morris, id. 258, that a good current money is the same. Trowbridge v. Seaman, 21 111. 101. McCormick v. Trotter, 10 S. & R. 94, holds that a note paya- ble "in notes of the chartered banks of Pennsylvania " is not a negotiable note. Confederate Note Case, 19 Wall. 548, in "dollars," in a transac- tion occurring in insurgent states during the war, there was a latent ambiguity. Parol evidence might show to what currency it referred. A general deposit of the bills of the bank receiving it must be repaid at the nominal amount, although cur- rent at only one-half their amount at the time of the deposit Bank of Ky. V. Wister, 2 Pet. 318. State v. Cassel, 2 Har. & G. 407, bank notes considered as money, and larceny graduated by their nominal value. 'Id. :Pierson v. Wallace, 7 Ark. 282 ; Bizzell v. Brewer, 9 id. 58. See Bush V. Canfield, 2 Conn. 485. It was held in Edwards v. Morris. 1 Ohio, 239, that an obligation to pay in tiie notes of a specified bank must be paid in the notes of that bank or their numeiical value in money-. Their price in money cannot be sub- stituted. -' Edwards on Bills, *730. 3 Id. 1216 NOTES AND BILLS. [§ 560. every bill is that it shall be paid at the proper time and place ; and, if it be not so paid, the holder is entitled to indemnity for the loss arising from this breach of contract. The gen- eral law merchant of Europe authorizes the holder of a pro- tested bill immediately to redraw from the place where the bill was payable, on the drawer or indorser, in order to reim- burse himself for the principal of the bill protested, the con- tingent expenses attending it, and the new exchange which he pays.^ His indemnity requires him to draw for such an amount as will make good the face of the bill, together with interest from the time it ought to have been paid, and the necessary charges of protest, postage, and brokers' commis- sion, and the current rate of exchange at the place where the bill was to be demanded or payable, or the place where it was drawn or negotiated.^ Hence re-exchange is the expense incurred by the bill being dishonored in a foreign country in. which it was payable, and returned to the country in which it was made or indorsed, and there taken up. The amount depends on the course of the exchange between the countries through which the bill has been negotiated. It is not necessary for the plaintiff to show that he has paid the re-exchange; it suffices if he is lia- ble to pay it.' Where a re-exchange bill is drawn, the pay- ment of it fulfills the drawer's or indorser's engagement of indemnity ; if not, the holder may sue on the original bill, and will be entitled to recover what the drawer or indorser ought to have paid ; that is to say, the amount of the re- [165] exchange bill. This is the amount whether such a bill be in fact drawn or not.* 1 3 Kent's Com. 115. ^guse v. Pompe, 8 C. B. (N. S.) 2 Id. 537. In this case it is explained that If a bank owning and holding a the course of business as to the sale foreign bill remits it for collection to and purchase of foreign bills is as a correspondent abroad, and it is follows : When a London merchant protested for non-payment, the latter has to receive money from a corre- canuot recover damages against the spoudent abroad, he instructs his bill- former on account of the protest, broker to sell an amount of florins though the bank had failed before (or wliatever is the current coin of the protest was made and was then the country on which the bills are to indebted to its correspondent. Ham- be drawn) sufficient at the current bro V. Casey, 110 U. S. 216. rate of exchange to raise the amount 3 Cliitty on Bills, G84 in sterling money which he has to § 561.] KOTES AND lilLLS. 1217 § 561. Same subject. The doctrine of re-exchangc [IGG] is founded upon equitable principles. A bill is drawn, for example, in this country, payable in Paris, France. The receive. The rate of exchange is (Second and third of the same date constantly varying ; but usually the and tenor.) fluctuations do not amount to much. The following is a copy of the As soon as the seller (the merchant) memoranda and indorsements on the knows at what rate of exchange the second of the set : bills have been sold, he draws them " In need with Messrs. F. H. Ham- in florins or other foreign money; etz & Co. First for acceptance with and then the bills simply entitle the M. G. Molle, 580 Jaquerielle. Pay buyer of them to receive so many Messrs. Wilh, Bunge & Co. or order, florins (or as the case may be), and value in account, they contain no allusion whatever to " E. BuscH & Co. the amount of sterling money paid " Pay Messrs. Suse & Sebeth, or for them. Inasmuch, however, as . order, at the exchange of eleven there is no rate of exchange for guilders, flve cents, new Austrian foreign bills at Liverpool, or other currency, per pound sterling, value places in the interior, and as, by rea- of the same. London, 22d March, son of the fluctuations in the rate of 1859. exchange, merchants at these places " Pay to the order of Messrs. Kend- do not know at what rate their bills ler & Co. value in account, will be sold in London, they are un- " SuSE & Sebeth." able to draw thein in foreign coin, it The bills were accepted but pro- is usual to draw such bills in sterling tested for non-payment. The partic- money, but " payable at the exchange ulars of the plaintiffs' claim under as per indorsement." The London the money counts were for sums paid correspondent, when he has sold the for the draft at its inception and pro- bill, and knows the amount of foreign test charges, as follows : money which the buyer is to have, " Messrs. Wilhelm, Bunge & Co. : indorses them payable at the agreed £750 [ Bought 23d March, rate of exchange; and then the bills ^■l-^'J H " ) are practically turned into bills pay- ^ ^' "" able in foreign money. The action P^i*^ ^^rch 25th, 1859 1,240 11 was brought by the indorsee against Interest to June, 5 per the indorser of two drafts similar in ^^^^ 16 16 5 form, one of which was as follows: Brokerage, 1 per cent. 15 10 '•Liverpool, 21 Feb. 1859. For Protest charges fl. 3.83 £750 stg. Four months after date pay -^^^^ ••■ ^-^^ this, our first of exchange (second and third not paid), to the order of ■^'' '•"* ourselves, the sum of seven hundred ■^'' ^ ^^^ ^" " and fifty pounds sterling, at the ex- Postages 5 4 change as per indorsement, value in ourselves, and place to account as per i,~- 531 ; Harding v. Larkin, 41 III. 413 ; pie, 3 G. Greene, 261 ; Pearson r. Booker v. Bill, 3 Bibb, 173; Robards Davis, 1 McMuU. 37; Elliot v. Thorap- V. Netherland, id. 529; Davis v. son, 4 Humph. 99 ; Gridley v. Tucker, Hall, 2 id. 590; Marshall v. McCon- Freem. Ch. 209; Clark v. Burr. 14 nell, 1 Litt. 419; Cummins v. Ken- Oiiio, 118; Whitlock v. Crew, 28 Ga. nedy, 3 id. 118; Pence v. Duvall, 9 289; Cathcart v. Bowman, 5 Pa. St. B. Mon. 48; Robertson v. Lemon, 3 317; Conrad v. Trustees Grand Grove. Bush, 301 ; McClure v. Gamble, 27 etc., 64 Wis. 258. Pa. St 288; McGary v. Hastings, 39 On the breach of the covenant of Cal. 360; Davis v. Smith, 5 Ga. 274; warranty and an eviction, substantial Phillips v. Reichart, 17 Ind. 120; damages are recoverable. Comstock Burton v. Reeds, 20 id. 87 ; Cincin- v. Son, 154 Mass. 389. nati, etc. R. Co. v. Pearce, 28 Ind. i Stout v. Jackson, 2 Rand. 132. 502; Foster v. Thompson, 41 N. H. See Rawle on Cov. (5th ed.), § 164. 373; Staats v. Ten Eyck, 3 Cai. Ill ; 2 Tillotson v. Pricliard, 60 Vt 94 Bennett v. Jenkins, 13 Johns. 50; 131-S VENDOR ANL' PURCnASEK. [§ GOG. upon the land purchased;^ nor for the expense of removal therefrom after eviction when he buys with knowledge of the existence of a paramount title which he might have ex- tinguished by the expenditure of a less sum than that owing on the purchase price.^ Where the <',onveyance was made in good faith by the actual owner in jiossession, subject to a mortgage, but in- consequence of the failure of the record to show a deed in his chain of title the grantee was unable to borrow money on the land, and in consequence was evicted by a foreclosure of the mortgage, the grantor was not liable for the loss of the land, that being a consequence too remote, he having subsequently procured a deed to supply the miss- ing link in his chain of title.* § 606. Where property is the consideration. If the amount of the consideration is not expressly agreed upon and has been paid in property, it would follow that the value of that property should be adopted as the basis of damages on a breach of the covenant of warranty, if the consideration paid is adopted as the criterion, as we have seen is the case in assessing damages for breach of the covenant of seizin and power to convey ; ^ but in some cases the value of the land to which the covenant refers is adopted as the standard. And it has been made a question whether the value for this purpose shall be ascertained at the date of the grant and covenant, or at some earlier date when the contract of sale may have been made. By some of the early cases in Kentucky a very rigid rule was laid down, making the value of the land lost, estimated at the date of the grant, the basis of recovery, though contracted to be conveyed at a much earlier time. If the consideration was stated in the deed that was conclusive;* not because it was the measure of damages, but because it was the value of the granted land fixed by the parties." In one case a bond was accepted in 17S4, conditioned to convey five hundred acres of land as soon as a patent should issue; it contained also a provision for the conveyance of other land, equal in value, if that should be lost. It was held 1 Gunter v. Beard, 93 Ala. 227. Humes, 85 Term. 26; Cook v. Curtis, 2 Id. 08 Mich. 611. 3 Lamb v. Buker, 53 N. W. Rep. 5 McMillan v. Ritchie, 3 T. B. Mon. 285 (Neb.). 348. 4 See ante, § 575; McGuffey v. 6 Marshall v. McConnell, 1 Litt 419. § GOG.] COVENANTS OF WARRANTY — QUIET ENJOYMENT. 1;!40 that the object of the bond was to provide for the contingency of the land being lost before a deed of conveyance should bo executed, and did not extend to an eviction after the execu- tion of a deed of conve3'ance with general warranty. In this case there was a breach of the condition of the bond by fail- ing to execute a deed of conveyance; suit was brought, [283] and in 1805 a compromise made, and a deed with general war- ranty executed. The value of the land in 1805, when the dectl was executed, and not in 1784 with interest, was held to bo the measure of damages. The consideration paid was evi- dence of its value. The deed was deemed to have been re- ceived in satisfaction of the bond by the compromise, and to have extinguished all right to proceed upon the bond. The court said: "In deciding upon the amount which should be recovered ... we must look to the covenants of war- ranty contained in the deeds of conveyance. It would no doubt have been competent for the parties when the deeds were executed, by a clause to that effect, to have referred to the condition of the bond, and, by adopting it as part of the covenant of warranty contained in the deeds, made the stipu- lations in that condition control the recovery on the covenant of warranty. But this they have not done. . . . The amount to be recovered . . . must be regulated by the value of the land at the date of the deeds, and not by the value when the bond was executed ; . . . for it is incon- trovertibly settled, by repeated decisions of this court, that the value of the land at the date of the covenant of warranty forms the criterion of damages to be recovered for a breach of the covenant. We know it has been said, and no doubt said correctly, that the consideration given for lands forms a proper inquiry in actions founded on abroach of the covenant of warranty. It is not, however, because the consideration in itself constitutes the measure of damages that it is inquired into; but it is resorted to as a means to ascertain the value of the land. The value of the land at the date of the warranty Avitli interest forms the measure of damages, and the consid- eration given for the land constitutes evidence of that value; and where the amount of the consideration is definite and cer- tain, it forms evidence of a very persuasive and satisfactory character of the true value. It ought, perhaps, in such a case 1350 VENDOR AND PURCHASER. [§ 60G. to be conclusive on the parties ; for as it shows the vaUie which the parties themselves put on the land, if they should be con- cluded by it, they can have no cause to complain. But where the consideration is not of that fixed and certain character, and consists, as in the present case, in the compromise of a contest between the parties, it can form no rational means of [284] ascertaining the value of the land. The amount of that consideration is itself uncertain ; it cannot be defined by any ]irecise rule, and forms no inquiry in ascertaining the value of the land ; but the value of the land must, in such a case, be as- certained by the introduction of other evidence." ^ But in a hiter case it was held, on a breach of the covenant of warrant}^ that restitution to the extent of the failure of consideration is the fixed and only stable and consistent rule ; that the true cri- terion is not the value of the land at the time of the eviction, but the amount received for the lost land and all costs incurred in resisting the eviction.^ It is believed that the general rule 1 lu Cummins v. Kennedy, 3 Litt. 118, the court said: "The general rule, settled by a current of author- ities, is, that as the conveyance com- pletes the sale, the value of the land conveyed, at the date of the convey- ance, with interest and costs, forms the criterion of damages; and also that the price stipulated is the best evidence of that value. And where the parties have shown that price in the conveyance, it would not perhaps be going too far to say that they ought to be concluded by it. Hence, if the consideration was paid a long time before the date of the deed, still, if it is expressed, it would fix the criterion, though the land, when con- veyed, had gi'eatly risen in value. In this case, however, the parties have shown what constituted the consid- eration; but still, its then value is uncertain, because it consisted in laud, the price of which was not fixed. It is not necessary now to say that in every case, parties, where the deed dill not fix the price, should be con- fined to its date, and could, in no case, travel back and show that the consideration had passed long before, and of course was of less value ; for in this case there are circumstances which show that the warranty ought to be measured by the general rule, notwithstanding the contract was made in 1783 with the testator of the defendant." Marshall v. McCon- nell, 1 Litt. 419. In Pence v. Duvall, 9 B. Mon. 48, Judge Breck said : " The criterion of damages in a case of this kind is the value of the land at the time of the sale and interest ; and the best evi- dence of that value is held to be tiie price given, or the purchase-money — not the amount actually paid at the time, but the amount secured or stip- ulated to be paid. We do not perceive any principle upon which tlie failure of the grantee to pay the stipulated price can absolve the grantor from his covenants." 2 Robertson v. Lemon, 2 Bush, 301, §607.] COVENANTS OF WARRANTY — QUIET KNJOYMKNT. 13.">1 is to make the consideration paid the basis of recovery, and if that is paid in property at an agreed value, the value so agreed upon is taken as the actual vahie.^ § 607. Rule of (laiiiages in Eiiglaiul and Canada. In [285] England and her Canadian provinces the consideration does not appear to be fixed as the measure of recovery. In Bunny V. Hopkins 2 a sale of building lots was made, with covenants for title, to one Avho erected buildings thereon and sold them. His purchaser was evicted from a part at the suit of a grantee under a prior deed from the covenantor. This cove- nantor having died, the evicted party was permitted to claim as a specialty creditor the value of the property, including im- provements. The master of the rolls said: "I am of opinion that the measure of the damages upon these covenants in- cludes the amount expended in converting the land into the purposes for which it was sold." ^ " Where the plaintiff, who 1 In Koestenbader v. Piercp, 41 Iowa, 204, the breach consisted of a previous condemnation of a strip of land granted for the use of a rail- road. Day, J., said : " AVhen the par- ties have by their agreement fixed the value of tlie premises without the incumbrance, the sum so fixed is to be regarded as such value, and must be made the basis of estimating the value with the incumbrance. This rule is just to both parties. In an action on a covenant of warranty the grantee is entitled to recover such sum as will place him in as good condition as if the covenant had not been broken. Funk v. Cress- well, 5 Iowa, 62. Suppose, for illus- tration, the land in question to have been sold for $l,-')00, and that in fact, at the time of sale, it was worth un- incumbered only $1,000, and that the incumbrance depreciates its value $500. Then, if the actual value of the land at the time of sale, incumbered and unincumbered, is to be made the basis of damages, the grantee could recover only one-third of the consideration paid, although the land is depreciated in value one-half. This does not place him in the condition he would have occupied if no incum- brance existed. Upon the other hand, suppose the price paid is $1,000, and that the actual value of the land un- incumbered is $1,500, and the value as incumbered is but $500, making the depreciation $1,000. Then, upon the basis of the actual incumbered and unincumbered value, the grantee would recover the whole consider- ation paid, and he would have the land for nothing. The true rule is this: If the land is worth $1,500 without incumbrance, and $1,000 with it, it is damaged to the extent of a third of its value, and if sold for $1,000 the purchaser is damaged $333^." Cook V. Curtis, 68 Mich. 611 ; McGuffey v. Humes, 85 Tenn. 26. 2 37 Beav. 565. sin Hodgins v. Hodgins, 18 Up. Can. C. P. 146, the plaintiflf's father, by Indenture of bargain and sale, conveyed to him certain land, the dower of the grantor's wife, the plaintiffs stepmother, not being barred in the deed, whereby he (the 1352 VENDOE AND PUKCHASER. [§ 007. was the lessee of a term, was evicted, it was held that in ac- tions on the covenant for title or quiet enjo3'nient the meas- grantor) covenanted for quiet enjoy- ment in consideration, among other things, of five shillings. Upon the grantor's death his widow brought an action for dower against the grantee and recovered judgment, and this action was brought by the covenantee against the gran toil's ex- ecutors for breach of the covenant for quiet enjoyment. Upon a special case it was held that the measure of damages in an action founded on a breach of a covenant for quiet en- joyment was not to be governed by the consideration money in the deed of conveyance, and therefore that the plaintiff was entitled to sub- stantial damages, and was entitled to the value of the crops lost by reason of the eviction. But because the plaintiff should have satisfied the de- mand for dower upon receivmg no- tice, tlie costs of her action against the plaintiff and of the defense of the same were disallowed. Draper, C. J., in the course of his opinion said: "The widow of the testator brought an action of dower against the now plaintiff, who was testator's son by a former wife, and recovered judgment. He defended the action. The damages he claims now consist of the following items : £ s. d. The demandant's costs, etc., in her action of dower . . 24 3 The now plaintiff's costs of defending that action 10 7 1 The value of plaintiff's growing crops upon the portion of land assigned by metes and bounds to demandant 27 10 The value of the life intei'- est of the demandant in the laud purchased by plaintiff 100 " The court is to decide what part, if any, of tiie above sums should be disallowed. It further appeared that the consideration mentioned to have been paid by the plaintiff to the tes- tator in the deed containing the covenants sued on was only 5.s., and the court is called upon also to de- termine whether this affects, and if so to what extent, the plaintiff s right to recover and to reduce the verdict accordingly. So far as I can gather from the English decisions, and they are not numerous, the consideration actually paid or expressed in the deed does not affect the amount of damages recoverable in an action for breach of covenant for quiet en- joyment; and upon the principle of some of the cases to which I refer to below I think it clear that the plaintiff has a right to recover for the crops he has lost and the price he has had to i^ay to secure quiet en- joyment for the future of all the land which the testator conveyed to him. These damages have been as- certained. "No consideration was proved ex- cept what appeared on the face of the deed, which, according to the pleadings, appears to be ' in consid- eration, among other things, of five shillings.' This is obviously a merely nominal consideration, and conse- quently cannot be treated as the price agreed upon between the vendor and vendee as the actual value of the land. The foundation, therefore, of the alleged rule recognized or estab- lished in the case of McKinnon v. Burrows, 3 Up. Can. Q. B. (old series), 590, is wanting. When it is shown that the grantor was father to the grantee, . . . we may fairly as- sume that the true consideration was natural love and affection, coupled 60 T.J COVENANTS OF WARRANTY — QUIET ENJOYMENT. 135 ure of damage was the value of tlie unexpired part of the terra, and the amount of damage recovered against the phunt- iff by the ejector as mesne profits, without interest.^ And where an action is brought against the occupier by a person believe, was in a case where the evic- tion was made by a dowress, deriv- ing lier riglit from the vendors, and as tlie autliorities seem to establisli tliat she has a right to be endowed of the value at the death of her huK- hand, there would be some ground for a distinction as to the amount of damages recoverable in such a case by the husband's vendee for the evic- tion and for taking into account the value of his improvements ; but it is not necessary to decide this question, as the parties have not raised it." After citing and stating the doctrine laid down in Bunny v. Hopkins, tlie learned judge continues : " Here the plaintiff seeks only an amount which will satisfy him for not obtaining what the testator covenanted to give him, viz., uninterrupted quiet eujoj^- ment. He asks satisfaction for a partial and temporary interruption. If the vendor had covenanted that in the event of his wife surviving him a sum equal to the value of her dower should be paid the plaintiff as an indemnity, the plaintiff's right to that sum could not have been questioned. Looking at all the cir- cumstances of the present case, I think the covenant for quiet enjoy- ment entitles the plaintiff to a sim- ilar indemnity, and that the sum paid to compromise the widow's claim and the value of the crops lost by the plaintiff should be allowed to him." Compare Empire Gold Min- ing Co. V. Jones, 19 Up. Can. C. P. 245, 257; Piatt v. Grand Trunk R. Co., 12 0nt. 119. 1 " Williams v. Burrell, 1 C. B. 402. "So, where a lessor, being tenant for life, with jiower to grant leases in possession, granted to a lessee in pos- probably with a desii'e to provide at once for the child of his first wife. Suppose such a consideration to have been expressed without even a nom- inal money consideration, with full covenants for title, and the vendor's own title to have proved defective, the plaintiff would either have been entitled to the indemnity now sought as to the dower or the covenants would be wholly nugatory. The plaintiff's cause of action does not arise from a latent defect in the vendor's title which existed when he acquired it. The right of dower was, at the date of the conveyance to the plaintiff, only inchoate, and springs from the vendor's own act against which he expressly covenants. The action is upon the covenant for quiet enjoyment, which differs from that of title. The latter is broken as soon as entered into, and the damages for that breach are, not without suffi- cient reason, referred to the time of the breach. Hence, the purchase- money and interest thereon have been held to form the true measure of damages, and the value of the im- provements made by the purchaser have been generally excluded from consideration. In this case there was no breach until the vendor died ; for till then the right of dower was not consummated. If the time of the breach is to be referred to as affecting the measure of damages, then the plaintiff is entitled to the amount by which the value of the estate granted is diminished, which amount may be given him without conflicting with the decisions that he shall not recover for improve- ments made by himself before the breach. None of those decisions, I 135i VENDOR AND PURCIIASEU. [§ 608. with superior title, and the former compromises by paying money, he is entitled in an action upon the covenant for title to recover the whole sum so paid and his costs as between at- torney and client, even though he gives the covenantor no notice of his intention to compromise. The only effect of want of notice is to let in the party who is called upon for an indemnity to show that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged; that he made an improvident bargain, and that the defendant might have obtained better terms if the opportunity had been given him." ^ § 608. Rule of damages in some of the older states. [286] It is not surprising that in a country where the value of real estate fluctuates very little, and is seldom suddenly increased by expensive improvements, that damages for breach [287] of these covenants should be measured by the value of the land at the time of the loss by failure of title and eviction. This rule obtained an early and firm footing in 'New England, and was for a time in some degree recognized in the early [288] days of other older states.'^ In Maine,' Vermont,* Mas- sachusetts,' and Connecticut,^ it has been adhered to. In session a reversionary lease, which, 3 Desaus. 245 ; Nelson v. Matthews, 2 on the lessor's death, reversioner re- Hen. & Munf. 164 : Mills v. Bell, 3 fused to ratify, the lessee recovered Call, 277. The rule in South Carolina from the lessor's executor the pre- was changed by Furman v. Elmore, 2 mlum which he had paid to the lessor, N. & McC. 189; and in Virginia by and the difference in value between Threlkeld v. Fitzhugh, 2 Leigh, 451. the term professed to be granted by ^Cushman v. Blauchard, 2 Me. 268; the lessor and that ultimately granted Swett v. Patrick, 12 id. 9 ; Hardy v. by the reversioner, together with the Nelson, 27 id. 525 ; Elder v. True, 30 excess of the costs of the second id. 104 ; Doherty v. Dolan, 65 id. 87 ; lease over that of the void lease. Williamson v. Williamson, 71 id. 44^3. Lock V. Furze, 19 C. B. (N. S.) 96, * Drury v. Shumway, D. Chip, affirmed L. R 1 C. P. 441 ; Jenkins 111 ; Park v. Bates, 12 Vt. 381 ; Keith V. Jones, 9 Q. B. Div. 128 ; Henty v. v. Day, 15 id. 660 ; Keeler v. Wood, Wray, 19 Cb, Div. 492, reversed on 30 id. 242, another point, 21 Ch. Div. 332." » Gore v. Brazier, 3 Mass. 523 ; Cas- 1 Mayne on Dam. (4th Eng. ed.) well v. Wendell, 4 id. 108; Bigelow v. 198; Smith v. Compton, 3 B. & Ad. Jones, id. 512; Norton v. Babcock, 2 407 ; Rolph v. Crouch, L. R. 3 Exch. Met. 516 ; White v. Whitney, 3 id. 81. 44. See Sumner v. Williams, 8 Mass. 221. 2 Liber v. Parsons, 1 Baj', 19 : Guer- See next section for some limitations ard V, Rivers, id. 265 ; Eveleigh v. to the rule. Stltt, id. 92 ; Witherspoon v. McCalla, ^ Beecher v. Baldwin, 55 Conn, 419 ; § G09.] COVENANTS OF WARRANTY — QUIET ENJOYMENT. 1355 Massachusetts no exception is made to the liabihty for im- provements because, prior to their completion, a bill in equity had been brought to restrain the grantee from making them. He may rely u})on the warranty and will be protected if he proceeds in good faith.^ The rule also ])revails in Louisiana, but will not be applied to improvements made after the vendee has notice of a suit begun by the owner of the ymra- mount title unless they added to the value of the land or ben efited the warrantor.^ In the newer portions of this country the value of real estate rapidly advances with a general or local increase of population ; and such increase has been steady am. widespread. The regions thus occupied are dotted with cities and villages, built where but lately land was w^orth little more than government price. A parcel of land sold for five hundred dollars has not unfrequently been so built upon, and so surrounded with improvements, that before an adverse title would be barred by the statute of limitations it has been worth a million of dollars. If the purchaser is evicted by a paramount title, it seems unjust that he should have a legal demand against the vendor who received the five hundred dol- lars to make good the loss. The parties had equal means of learning the actual state of the title. The sudden increase of value was not in the contemplation of the vendor. So far as it was the result of improvements, he did not consciously become a guarantor. The party making them proceeded on his own judgment, and with a view to his own advantage, with equal knowledge of the title. The rule of damages generall}' adopted is a reasonable limitation of the vendor's responsibility, and equalizes and apportions between the par- ties, according to their respective interests, the hazard of loss from failure of title.^ § 609. Rule in case of partial breaeli. For a partial breach damages will be assessed j^ro ianio, according to the recog- nized standard for a total breach. Thus, for example, ['289] Horsford v. Wright, Kirby, 3; Ster- Stebbins v. Wolf. 33 Kan. 765, quot- ling V. Peet, 14 Conn. 245. ing the text In Wade v. Comstock, 1 Cecconi v. Redden, 147 Mass. 164. 11 Ohio St. 71, the court say tlie rule 2 Coleman V. Ballard's Heirs, 13 La is adopted on principles of public Ann. 512. policy. 3 See King v. Kerr, 5 Ohio, 154; 135G VENDOR AND PURCHASER. [§ G09. if a conveyance is made of several parcels, and the grantee is evicted by paramount title from one of them, the value of that parcel, measured by the consideration, or the valuation at the date of eviction, as the rule may be, will be the meas- ure of damages.^ Applying the same rule to a case where a part of one parcel is lost by failure of title, or the title to the undivided part of the whole, the measure of damages is a rat- able part of the consideration or value of such parcel, or of the entirety, ascertained in the same manner.^ If the breach results from an unexpired term or lease the measure of dam- ages will be the value of the use of the premises during the time the purchaser is deprived of them.^ The amount agreed to be paid by the tenant will ordinarily be considered to be such value.* If a partial eviction results from the existence of a public easement the recovery is to be measured by the depreciation in the value of the land, if any, resulting from the burden, with interest from the time of the eviction, and the plaintiff's costs in the action which resulted in the estab- lishment of the public right.^ The object of the law being com- pensation according to the standard which has been indicated, any partial compensation, realized as an occupant, rendering the eviction less than a total loss, may reduce the recovery ; as where the plaintiff has recovered from the evictor a sum for betterments, which passed to the covenantee with the land at the time of the sale.^ 1 Whitzman v. Hirsh, 87 Tenn. Long v. Sinclair, 40 Mich. 569 ; Win- 513; Mettev. Dow, 9 Lea, 93; Scheible nipiseogee Paper Co. v. Eaton, 65 V. Slagle, 89 IncL 323 ; Butcher v. N. H. 13. Peterson, 26 W. Va. 447 ; Clark v. 2 la. ; Downer v. Smith, 38 Vt 464. Hargrove, 7 Gratt. 399; Dickins v. s Fritz v. Pusey, 31 Minn. 368 ; More- Sheppard, 3 Murph, 526; Raines v. land v. Metz, 24 W. Va. 119, 139. Calloway, 27 Tex. 678; GrifEn v. Rey- < Moreland v. Metz, supra. nolds, 17 How. (U. S.) 609; Morris v. SHymes v. Esty, 133 N. Y. 842. xiarris, 9 Gill, 19; Dougherty v. Du- e Booker v. Bell, 3 Bibb, 173; King rail's Heirs, 9 B. Mon. 57; Hunt v. v. Kerr, 5 Ohio, 154; Drury v, Shuni- Orwig, 17 id. 73; Boyle v. Edwards, way, D. Chip. (Vc.) Ill; Mason v. 114 Mass. 373; Williams v. Beeman, Kellogg, 38 Mich. 132. 2 Dev. 483; Major v. Donnovant, 25 In Drew v. Towle, 30 N. H. 531, it 111.262; Hoot V. Spade, 20 Ind.326; was held that a grantee of land Dimmick v. Lockwood, 10 Wend, under a deed containing covenants 142. See King v. Ryle, 8 S. & R. 166; of warranty, who goes into posses- Adams V. Conover, 22 Hun, 424 ; sion, owes no duty to the grantor to Mischke v. Baughn, 53 Iowa, 528; remain in possession for the purpose § 609.] COVENANTS OF AVARRANTV QUIET ENJOYMENT. 1357 If the eviction is b}" some paramount charge or lien which may be discharged by payment of a sura not larger than the damages which would be recoverable if the eviction were under an absolute paramount title, as wiiere a mortgagee en- ters for the purpose of foreclosure, the measure of damages is the amount of the debt so secured.' In Tufts v. [290] Adams - land was granted by A. to T. with covenants against incumbrances and of general warranty, but incumbered by a mortgage to C, on which C. subsequently recovered condi- tional judgment and obtained possession of the land. While the land continued in T.'s possession he mortgaged it for a smaller amount than C.'s mortgage. After C. thus obtained possession T. brought an action against A. for breach of the covenants. And it was held : 1st. That the covenant against incumbrance was broken when the deed was executed, but that T. could recover only nominal damages, as he had paid nothing to remove the incumbrance. 2d. That the covenant of warranty was broken, and that the damages recoverable in the action was the amount of C.'s judgment for debts and costs, deducting the amount of the mortgage which T. had himself made; also, that if T., before judgment, paid off the mortgage made by himself, he could recover the whole amount without such deduction. In such cases the recovery is lim- ited to the sum which would be sufficient to extinguish the adverse claim if the action on the covenant is brought while such claim is defeasible. But it has been held that a cove- nantee so evicted is not obliged to redeem, and that after the redemption expires and the title under the foreclosure be- comes absolute he may recover full damages.^ But it would of litigating a question of the in- 1, §88; Weed v. Larkin, 49 111. 99: creased value of the estate from bet- Franklin v. Smith, 21 Wend. 621; terments while in possession of those Barmon v. Lithauer, 4 Keyes, 317. under whom he claims, but may at ' Donohoe v. Emery, 9 Met 03; once surrender to any one having Tufts v. Adams, 8 Pick. 547; White the paramount title ; and no deduc- v, Whitney, 3 Met. 81; Wiuslow v. tion will be made from the damages McCall, 32 Barb. 241 ; Holbrook v. to which he would otlierwise be en- Weatherbee, 12 Me. 502 ; Furnas v. titled by reason of anj- such claim of Durgin, 119 Mass. 500. betterments of which he might have ^ 8 Pick. 550. availed himself. This seems to ig- 3 Eider v. True, 32 Me. 104; Lloyd nore the duty of a plaintiff to exert v. Quiuby, 5 Ohio St. 262; Stewart v, I'.itnself to lesseu damages. See vol, Drake, 9 N. J, L. 130; Miller v. Hal- 1358 VENDOR AND PURCIIASEE. [§ 610. be otherwise if the covenantee owed purchase-money, pres- entl}^ paj^able, to the covenantor, and sufficient in amount to discharge the incumbrance or redeem the land.^ So, if the covenantor leave in the hands of the covenantee money suffi- cient to remove tlie incumbrance, and the latter undertakes to procure a discharge of it, the covenant of warranty is sat- isfied.^ § 610. Where covenantee has extinguished adverse title. [291] Where the grantee purchases the land upon the fore- closure of a mortgage existing prior to the grant, this will give him a right of action on the covenants to the extent of the amount paid by him to relieve the land.* He cannot in- crease his recovery by assigning his bid to another and per- mitting him to obtain a deed.* So in other cases ; if the cov- enantee has extinguished the adverse title, his recovery on any of the covenants will be limited to the amount paid by him for that purpose, including the incidental expenses and reasonable compensation for his trouble, not exceeding in all the limit of damages for a total breach.^ In Dale v. Shively" the holders of the paramount title were Indians, and had to be searched for in the Indian Territory and their conveyances had to be approved by the secretary of the interior; it was held that the party so procuring the adverse title was en- sey, 14 id. 48; Burk v. Clements, 16 Gray, 572; McGary v. Hastings, 39 Ind. 132; Chapel v. Bull, 17 Mass. Cal. 360; Lewis v. Harris, 31 Ala. 213; Norton v. Babcock, 2 Met 510. 689; Swett v. Patrick, 12 Me. 9; See Smith V. Dixon, 27 Ohio St. 471. Kelly v. Low, 18 id. 244; Fawcett 1 Harper v. Jeffries, 5 Whart. 26 ; v. Woods, 5 Iowa, 400 ; Dale v. McGinnis v. Noble, 7 W. & S. 454; Shively, 8 Kan. 276; Springy. Chase, Mellon's Appeal, 32 Pa- St 121 ; Cope- 23 Me. 505 ; Hard v. Hall, 12 Wis. laud V. Copeland, 30 Me. 446 ; Pitman 112 ; Claycomb v. Munger, 51 111. 373 ; V. Connor, 27 Ind. 337. Bailey v. Scott 13 Wis. 619; Loomis 2 Blood V. Wilkins, 43 Iowa, 565. v. Bedel, 11 N. H. 74; McKee v. Bain, 3 McGinnis v. Noble, 7 W. & S. 11 Kan. 569; Yokum v. Thomas, 15 454; Andrews V. Appel, 22 Hun, 429; Iowa, 67; Dickson v. Desire, 23 Mo. Cowdrey v. Coit, 3 Robt 210; S. C, 151; Lane v. Fury, 31 Ohio St 574; 44 N. Y. 383 ; Burk v. Clements, 16 AUis v. Nininger, 25 Minn. 525 ; Ind. 132. See Whitney v. Dinsmore, Richards v. Iowa Homestead Co., 44 6 Cush. 124. Iowa, 304 ; Jones v. Lightfoot 10 * Cowdrey v. Coit supra. Ala. 17. See Brady v. Spurck, 27 111. 6 Leffingwell v. Elliot, 10 Pick. 204 ; 478. S. C, 8 id. 457 ; Thayer v. Clemence, 6 8 Kan. 276. 23 Pick. 490 ; Estabrook v. Smitli, 6 § GIO.] COVENANTS OF WARRANTY — QUIET ENJOYMENT. l-j^O titled to pay for his time and trouble, traveling expenses and the amount paid for the title. In Leffingwell v. Elliott ^ counsel fees paid were disallowed, but the court held that if the plaintiff was put to trouble and expense in extinguishing the paramount title he was entitled to compensation therefor; that he might recover for time thus employed, for expense of horses and carriages, and for board, a^ well as the expense of preparing for trial and attendance a' L'ourt, This action was brought on the covenants against incumbrances and of warranty, and the plaintiff presented three classes of claims. The first was for expenses in- [*2ft2] curred, and money paid to extinguish the outstanding title before the commencement of the action. Of this class the auditor stated an account in which, besides the sums paid to extinguish the adverse titles, with interest from the time of the payments, there were charges for the plaintiff's time em- ployed in extinguishing the titles, with interest from the serv- ice of the writ ; for incidental expenses for horses and car- riages, board and lodgings, while the plaintiffs were from home, and interest from the time the same were paid; and for sums paid for advice and services of counsel. The second class was for expenses incurred and payments made, similar to those in the first class, subsequently to the service of the writ, not, however, including counsel fees. The third class was for expenses and charges incurred in preparing this case for trial, including the summoning of witnesses, attendance at court, personal services of the plaintiffs, and counsel fees since the commencement of the suit. The court allowed in full the sums reported by the auditor in the first and second classes, except counsel fees; but not those in the third class.^ [293] 1 10 Pick. 204 and made permanent and valuable 2In McKee V. Bain, 11 Kan. 569, a improvements on it. Afterward, deed of a vacant lot had been given Thomas, claiming the paramount by defendant to tlie plaintiff in 1868, title, brought ejectment against Mc- contaiuing covenants for title and Kee, and recovered judgment in 1870. good right to convey, for the con- Bain had notice of the pendency of sideration of $6,500, of which $2,050 this suit The defendant obtained was paid down, the balance being se- the benefit of the occupying claimant cured by notes and a mortgage of law, and the lot was valued at $5,000 ; the lot payable in one and two years, and the improvements at $14,700. McKee took possession of the lot Thomas elected to take $5,000 for the 13G0 VENDOR AND PUECHASER. [§ CIO. But it has been held ^ that a vendee who is legally evicted, and who thereupon repurchases the property from the evictor, [294] is in under a new title, and the price last paid is no cri- terion of the damages sustained by the failure of the vendor's lot, and the court ordered McKee to pay it. This sum being paid, a deed to McKee was made by Thomas in 1872. In the defense of that action McKee incurred $500 for counsel fee, and the costs recovered in that suit by Thomas were $19G.25. The court trying the action upon the covenants found that tlie counsel fee was ex- cessive beyond $400. McKee brought an equitable action against Bain on the covenants of seizin and warranty in the deed, asking judgment for the amount paid down, for the amount paid in costs and counsel fees, and interest on those several amounts; also that the notes and mortgage be canceled, and that the apparent in- cumbrance resting upon the title by virtue of the mortgage be removed. Valentine, J., said : *' The covenant of seizin is broken as soon as made if the title attempted to be conveyed is bad ; and when tlie vendee after- wards buys in the paramount title, the measure of his damages, as against the vendor, is, as a rule, the amount, with interest, it necessarily costs to obtain the paramount title up to the amount of the purchase-money and interest. In some cases the vendee may also recover the costs and at- torneys' fees neccfsarily paid by him in prosecuting or defending a suit, with reference to the land attempted to be conveyed. In the present case we think ]\Irs. McKee is entitled to recover from the Bains just the ex- cess of what she has necessarily and actually paid over and above what she agreed to pay to the Bains. For instance: She agreed to pay as fol- lows : cash down, $2,050 ; two notes, $4,000 ; interest on the notes to March 19, 1872, $1,555.55;— total agreed to be paid up to March 19, 1872, $7,605.55. She actually and properly paid as follows: Cash down, $2,050; at- torneys' fees, $400 ; costs, $196.25 ; for paramount title March 19, 1872, $5,000;— total paid March 19, 1872, $7,646.25. She therefore paid $40.70 more than she agreed to pay for the lot. The judgment in this case was rendered November 16, 1872, for $43.50, a little more than $40.70 and interest. . . . The title of the Bains to said lot was derived through judicial proceedings, and although defective on account of ii-regulari- ties, . . . yet it cannot be wholly ignored. The title was apparently good. The Bains acted in good faith in selling, and Mrs. McKee acted in good faith in purchasing and defend- ing. Mrs. McKee obtained possession of said lot under and by virtue of Bain's title, and she held possession thereunder -for nearlj' four years without paying anything therefor to the Bains, or to any one else, except what she paid as consideration for the lot; and she still continues to hold such possession, never having been in fact dispossessed. Bain's title, though defective, rested as a cloud upon the paramount title. By virtue of said conveyance from Bain to McKee, this cloud was extin- guished, or rather transferred from the Bains to Mrs. McKee. This was something of value. And after the action between Mrs. Thomas and Mrs. McKee was determined, the 1 Martin v. Atkinson, 7 Ga 228. § 611.] COVENANTS OF WARRANTY — QUIET ENJOYMENT. 1301 title.^ If the covenantee is a mortgagee, on a total breach the mortsao-e debt is the measure of daman:es.^ And so in every variety of circumstances the recovery will bo gradu- ated to the actual injury.' § 611. Mitigation of damages. The damages for which the vendor is liable may be diminished by any profit which the vendee has recovered for from the owner in the action in which the judgment of eviction was rendered. The covenantor held under a tax deed ; the covenantee recovered from the owner of the paramount title all taxes paid by the former with interest to the time of his eviction. It was ruled that the vendor was not merely entitled to the amount which he had paid as taxes, but also to the statutory interest thereon. The benefit of the statutory rate of interest on the money so paid accrued to the evicted party directly as the result of the im- perfect title, and he not being bound to account to any other p3rson for it, the vendor should be credited with it.* Where, after an eviction, possession has been restored, the right of action is not thereby destroyed, but such restoration will go in mitigation.^ And so payments on account of such damages may be shown to lessen the vendor's liability.'' right of Mrs. McKee to compel Mrs. obtained a good title to her lot, free Thomas to purchase Mrs. McKee's and clear from all incumbrances or improvements on said lot, and pay clouds, all she bargained for or ex- therefor $14,700, or to sell the lot to pected to get, and all that she had Mrs. McKee, under the occupying any right to expect, and she has claimant law, for $5,000, was founded paid to all persons in the aggregate, solely upon the title which Mrs. Mc- only what she agreed to pay to the Kee obtained from the Bains. The Bains. She has lost nothing by the title, therefore, which she got from failure of the Bains' title." Mrs. Thomas had its origin in the ^ Compare Claycomb v. Hunger, title she got from the Bains. Besides, 51 111. 373, and Hunt v. Orwig, 17 B. Mrs. McKee appeals to a court of Mon. 73, 85. equity to cancel said notes and mort- 2 Cm-tis v. Deering, 13 Me. 499; gage. Said mortgage wag a cloud, and Wetmore v. Green, 11 Pick. 463. an apparent if not a real incumbrance 3 Richards v. Iowa Homestead Co., upon the title to said lot. Is the re- 44 Iowa, 304. moval of said cloud and said apparent * Stebbins v. "Wolf, 33 Kan. 765 ; incumbrance of no value? Now, by Danforth v. Smith, 41 id. 146. virtue of the convej'ance from the s Baxter v. Ryerss, 13 Barb. 867. Bains to Mrs. McKee, and the judg- 6 Ferris v. Mosher, 37 Vt 318. ment in this case, Mrs. McKee has Vol. II — 86 1302 VENDOR AND PUKCHASEE. [§§ 612, 613. § 612. Wliere defect is a dower right. AVhere there is an eviction by a dowress tiie measure of damages is the value of the particular right estimated according to the expectation of life of the tenant in dower on the basis of the amount paid being the value of the fee-simple.^ The cases show many ways of expressing and arriving at this value ; as, that it is the amount that the fee-simple interest is diminished in value by carving out the life estate, estimating the value of the fee- simple interest according to the consideration money paid to the covenantor; ^ that is, the present value of an annuity equal to the interest on one-third of the consideration money for the time that the tenant in dower has a probable expectation of life.' The amount reasonably paid for release of the right of dower, or the amount assessed in lieu of it, under statutes which provide for such commutation, will also constitute the basis of recovery for breach of the covenants where the defect of title is thus cured.'* Where the eviction was by paramount [295] title for a term of years, the plaintiff was held entitled to the annual value of the land of which he was dispossessed, or the interest on the consideration paid for it.^ § 613. By and against whom recovery may he had. As these covenants run with the land they are available to any person succeeding the covenantee by purchase or descent.® It is not necessary that a conveyance be made with warranty in order that the covenants pass ; they will pass by release or quitclaim." Consequently, the action should be brought by him in whose time the breach occurs.^ The covenants are 1 Stewart v. Mathieson, 23 Up. C. P. 146 ; Jeter v. Glenn, 9 Ricli. Can. Q. B. 135 ; Western v. Sbort, 13 374 ; Maguire v, Riggin, 44 Mo. 512 ; B. Mon. 153 ; Davis v. Logan, 5 id. Welsh v. Kibler, 5 S. C. 405. See 341 ; Terry v. Drabeustadt, 68 Pa. St. Cuthbert v. Street, 9 Up. Can. C. P. 400 ; Hill V. Golden, 16 B. Mon. 551 ; 115. Bender v. Fromberger, 4 Dall. 436 ; 5 Rickert v. Snyder, 9 Wend. 416. Brown V. Dickerson, l2 Pa. St. 372 ; 6 Roe v. Hayley, 12 East, 464; Patterson v. Stewart, 6 W. & S. 527. Rawle on Co v. Tit. 561. 2 Johnson v. Nyce, 17 Ohio, 66. "^ Beddoe v. Wadsworth, 21 Wend. 3 Wager v. Schuyler, 1 Wend. 553. 120 ; Wilson v. Widenham, 51 Me. In this case the widow was fifty 566 ; Hunt v. Middlesworth, 44 Mich, years of age, healthy and of good 448. See Clay comb v. Munger, 51 habits, and her expectation of life 111. 373. was put at seventeen years. * Kane v. Sanger, 14 Johns. 89 ; ^Hodginsv. Hodgins, 13 Up. Can. Bickford v. Page, 2 Mass. 455, 460; § 614.] COVENANTS OF WAKRANTY — QUIET ENJOYMENT. 1363 divisible, and their benefits will go to each recipient of any part or interest in the lands to which they relate, and may be sued on separately in respect of any breach as to the portion taken by him.' If the covenantee has sold a portion of the land conveyed to him he can recover only for the failure of the title to the portion from which he was evicted, although the subsequent vendees are barred by the statute of limita- tions." The evicted grantee may bring suit against the first or any intermediate covenantor ; he may bring separate ac- tions against all, either at the same time or successively, [29G] and prosecute them to judgment; he is entitled, however, to but one satisfaction and his costs.' § 614. Wlien covenantee sues remote covenantor. A\ liere the action is brought by a remote grantee there is some di- Keith V. Day, 15 Vt. 660 ; Booth v. Starr, 1 Coun. 244; Thompson v. Sanders, 5 T. B. Mon. 358 ; Cunning- ham V. Knight, 1 Barb. 399; Clay- comb V. Hunger, 51 III. 373 ; Crooker V. Jewell, 29 Me. 527; Hunt v. Mid- dlesworth. 44 Mich. 448 ; Tillotson v. Prichard, 60 Vt. 94. I Whitzman v. Hirsh, 87 Tenn. 513, quoting the text; Dart on Vendors & P. 365 ; 3 Washb. on R. P. (5th ed.) 503; Dickinson v. Hoomes, 8 Gratt. 406; Brown v. Metz, 33 111. 339; Kane v. Sanger, 14 Johns. 89 ; Dough- erty V. Duval], 9 B. Mon. 57; Twy- nam v. Pickard, 2 B. & Aid, 105; Midgley v. Lovelace, Carthew, 289; Paul V. Witman, 3 W. & S. 407 ; Hen- niker v. Turner. 4 B. & C. 157 ; Swett V. Patrick, 12 Me. 9 ; Lamb v. Dan- forth, 59 id. 322. In Dart on Vend. & P. 365, it is said: "Where the estate is divided, as where it becomes vested in A. for life, remainder to B. in fee, and the breach of covenant affects the entire inheritance, each can sue for dam- ages proportioned to the extent of his estate." Noble v. Cass, 2 Sim. 343. Compare McClure v. Gamble, 27 Pa. St. 288. And on page 780, volume 2 (5th Eng. ed.), this author saj^s: "Where the estate is merely equitable there can be no assignee at law, and the covenants cannot be en- forced at law by an equitable as- signee; so, if the conveyance, al- though so intended to do, do not, in fact, pass any legal estate, it appears that the assignee cannot sue ; but, in either case, the assignee, although unable to sue in his own name, would be entitled to sue in the name of the original covenantee. See Riddell v. Riddell, 7 Sim. 529; Thornton v. Court, 3 De G., M. & G. 393.'' 2 Whitzman v. Hirsh, 87 Tenn. 513. 3 King V. Kerr, 5 Ohio. 154 ; Wilson V. Taylor, 9 Ohio St. 595 ; Dougherty V. Duvall, 9 B. Mon. 57 ; Crooker v. Jewell, 29 Me. 527; Claycomb v, Munger, 51 111. 373 ; Crisfield v. Storr, 36 Md. 129 ; Williams v. Beeman, 3 Dev. 483 ; Hunt v. Orwig, 17 B. Mon. 73 ; Lot v. Parish, 1 Litt 393 ; Lowe V. McDonald. 3 A. K. Marsh. 354; Birney v. Haim, 2 Litt. 262 ; Thomp- son V. Sanders, 5 T. B, Mon. 358; Birney v. Hann, 3 A. K. Marsh. 322 ; Withy v. Mumford, 5 Cow. 137 ; Gar- lock V. Closs, id. 143, note ; Suydam V. Jones, 10 Wend. 180; Cummings V. Harrison, 57 Miss. 275. 136J: VENDOE AND PUECHASER. [§ C14. versity as to the criterion of damages. Is it the consideration paid to the original covenantor, who is the defendant, or that paid by the plaintiff to his grantor? In Kentucky the rule is the consideration received by the defendant.^ In one case a suit was brought by a remote grantee, and it was sought to limit his recovery to the amount he paid, and it w^as insisted in behalf of the defendant that the plaintiff should disclose that amount. In reply the court said : " It does not ap- pear what amount he paid for it, nor was he called upon to state, nor was it shown in any other way. If it w^ere conceded that the plaintiff's recovery ought to be limited to the amount paid by him for the superior title, were that amount mani- fested, it cannot be so limited, as this amount is not made to appear. ISTor do we perceive that it w^as the duty of the plaintiff to disclose the amount in order to limit his recovery without his being called upon to do so. Prima facie the plaintiff had a right to recover the consideration in the deed of (the covenantor) proportioned to the land lost, and this is the amount decreed by the court." ^ In South Carolina, North Carolina, Tennessee and Maryland, the basis of recovery is the consideration paid by the plaintiff to his immediate grantor,^ with interest and costs of the ejectment suit, in all not exceeding the consideration received by the defendant.* 1 Dougherty v. Duvall, 9 B. Mon. the whole estate. What may be the 57. rule where there is a partial eviction 2 Hunt V. Orwig, 17 B. Mon. 73. of the estate, or other interest less 3 Crisfield v. Storr, 36 Md. 129 ; than a fee, or where the covenant is Williams v. Beeman, 3 Dev. 483 ; annexed to an estate less than a fee, Lawrence v. Robertson, 10 S. C. 8 ; is, as far as I know, not determined Mette V. Dow, 9 Lea, 93. by our courts. The interest upon the ■* In Williams v. Beeman, 2 Dev. purchase-money is merely incidental, 483, Henderson, C. J., said : " In ac- and depends on the circumstances of tions between the vendee and his im- each case. It ordinarily runs during mediate vendor upon the covenant the time that thetenant is liable for the for quiet enjoyment, it is the settled profits to the rightful owner. When law of this state that the value of the he is not so liable the profits are set lands at the time of the sale shall off against it. Had this action there- be the measure of the damages ; and fore been brought against Glasgow, incase of actual sales the purchase- Williams'immediatevendor, it would money is conclusive evidence of that have presented no difficulties, gov- value. This is the case whei'e a cov- erning ourselves by former decisions, enant of warranty is annexed to an Is the case varied by being brought estate in fee, and the eviction is from against Beeman, a remote vendor. § 614.] COVENANTS OF WAEKANTY — QUIET ENJOYMENT. 1365 In New York and Mississippi the warrantor is liable accord- ing to the value of the land at the time of his warranty, which is conclusively fixed at the amount of the consideration of the sale.' In Missouri the rule has been thus stated : " If a subsequent purchaser be evicted the damage is the value of the land at the time of the eviction, not exceeding, how- [208] ever, the sum for which the covenantor would have been liable to the first purchaser." ^ and whose estate, with his covenauts annexed thereto, have come to Will- iams? I think that it is not; for Beeman cannot be bound to pay to Williams more than Williams ought to receive. If he has money in his hands belonging to some other per- son, there is no reason why it should bs paid to AVilliams. Now it is settled that the purchase-money paid by Williams to Glasgow is the meas- ure of Williams' damages, and the fact that he is substituted to the es- tate of Sheppard, and to the cove- nants entered into with Sheppard for its enjoyment and protection, does not thereby substitute him to Shep- pard's claim to damages in case the latter had been evicted. He is only substituted to Sheppard's covenants to redress his own, not Sheppai'd's in- juries in regard to the estate. But as thei'e is no privity of contract be- tween Williams and Beeman, the injury of the former cannot exceed the liability of the latter upon his covenauts. But it may fall short of it. Neither would the case be varied if the action had been brought by Sheppard, as it is said it might be. For Sheppard having sold to Glas- gow, and Glasgow to Williams, he, Sheppai-d, could only claim an in- demnity, which is the amount of the consideration money paid by him who is evicted. And on this ground alone, or that he is trustee for the person evicted, can the action be sus- tained in his name. In either case Williams' injury is the one to be compensated. Should it be asked what is to become of the excess left in the hands of Beeman — for it is certain that he has given nothing for it — it is answered, who can claim it? Not Williams, for under the rule es- tablished by our decisions he has no pretense to recover it. Not Shep- pard, for he sustains no damage by the bad title, further than he may be compelled to comply with the cove- nants in his deed. And it would be strange that he should be placed in a better situation by selling a bad title than a good one. For had the title been good, he must have been con- tent with his loss upon his resale. Should it turn out to be bad, could he then regain his whole purchase- money? In fact, the difference be- tween what he gave and what he got for the land is sunk, is extinguished, and there is no person who can re- ceive it by making a resale at a reduction in the price. Tlie first vendee submits to the loss, and it can therefore form no part of a claim to an indemnity." 1 Jenks V. Quinn, 61 Hun, 427 ; Pe- trie V. Folz, 54 N. Y. Super. Ct. 223 ; Brooks V. Black, 68 Miss. 161. 2 Dickson v. Desire, 23 Mo. 151. The general rule that the consider- ation stated in a deed is open to ex- planation does not apply in an action on the covenant of wan-anty brought by a subsequent grantee; the sum named is the measure of his recov- 136G VENDOE AND TUKCIIASEK. [§ 014. An intermediate grantee may recover against an anteced- ent covenantor if he has suffered actual injury, though the eviction did not occur while he held the estate. If he con- veyed without covenants to the evicted grantee for full value, he suffers no injury and has no right of action.^ But if he conveyed with covenants and has satisfied them, they are re- stored to him, and he may sue any covenantor from whom he claims for his indemnity.^ [299] A tenant who has been evicted may sue any prior cov- enantor, and if he elects any but the first, and obtains satisfac- tion, such covenantor may, thereby, stand as to any prior cov- eiy. Illinois Land & Loan Co. v. Bonner, 91 111. 114; Greenwault v. Davis, 4 Hill, 643. 1 Booth V. Starr, 1 Conn. 244 ; Wy- man v. Ballard, 12 Mass. 304 ; Niles V. Savvtell, 7 id. 444. ^ Clay comb v. Hunger, 51 111. 373 ; Baxter v. Ryerss, 13 Barb. 267 ; Lot V. Parish, 1 Litt. 393; Wheeler v. Sohier, 3 Cush. 219; Thompson v. Sanders, 5 T. B. Mon. 358 ; Herrin v. McEutyre, 1 Hawks, 410. In Birney v. Hann, 3 A. K. Marsh. 322, Mills, J., said: "The question whether an intervening grantee, who had conveyed away the estate, can support the same action against a re- mote grantor, has never yet been de- cided. On this question we need not look for any aid from English prece- dents, where such an action of covenant was not indulged. In this case the plaintiff below has averred that Fields and Dunn, who were evicted from the lot, recovered a judgment against him on his war- ranty for the value of the land, with interest and costs, which judgment he had fully paid and discharged be- fore the commencement of this suit. If this statement in the declaration can be material to, or aid him in sup- port of, his action, as it is not contra- dicted by any plea, it must be taken as true, and the plaintiff below is en- titled to the benefit of these facts. The question remains, will they affect his case and enable liim to support his action? As Hann would have been entitled to the action if he had never conveyed ; as he has been sub- jected to the action because he had conveyed ; as the estate passed by the title has gone into other hands ; and his deed to Fields and Dunn can be of no more avail to them because they have once had the benefit of it, and it is now inoperative against Hann because it is merged in the judgment against him and dis- charged by payment, we see no good reason why Hann should not be ad- judged to have the right of action revested in him, and be restored to all he ijarted with by his deed, as much so as if Field and Dunn had reconveyed. As the indorser of a commercial instrument, who has paid its contents, can sustain his action against his remote indorser without a re-indorsement, because his own in- dorsement, by the act of payment, per se, has become functus officio as to him, so ought Hann, who has I'endered his own deed inoperative further against him, to be restored to the situation he was in before it was made, without a conveyance form- ally executed." Hunt v. Middles- worth, 44 Mich. 448. § 615.] COVENANTS OF WARRANTY — QUIET ENJOYMENT. 1367 enantor in the place he held before he had parted with the estate, and sue upon his covenant as though the breach had occurred during his ownership.* Where a grantee has been evicted by virtue of a judgment against him, the judgment is legally admissible to prove the ev^iction in an action on the covenant in the deed ; - but not to prove that such eviction was by paramount title unless the covenantor was vouched in to defend.' But if he had notice of that action and an opportunity to apjicar and defend, the judgment of eviction is evidence, and conclusive of the title.** The same principle has been applied in cases of judgments against the grantee in actions brought by him to recover the granted property, where the covenantor had been notified to take upon himself the prosecution thereof.'^ § 615. Notice of suit to covenautor. One who is sued upon his covenant of warranty may vouch in his warrantor, and he, in turn, may vouch in his; and a judgment in such action, so far as the subject-matters tried are concerned, will be binding upon the rights of any such previous warrantor properly vouched in or summoned to take the defense [300] of the suit whether he does so or not.'' 1 3 Wash. R. P. 400 ; Withy v. Mum- boru, 34 Vt. 234 ; Terry v. Draben- f ord, 5 Cow. 137 ; Thompson v. Shat- stadt, 68 Pa. St. 400 ; WilUamson v. tuck, 2 Met. 618 ; Suydam v. Jones, WilUamson, 71 Me. 442. 10 Wend. 184 ; Booth v. Starr, 1 Conn. » Dalton v. Bowker, 8 Nev. 190 ; 244; Markland v. Crump, 1 Dev. & Ryerson v. Chapman, 66 Me. 557. B. L. 94; Redwine v. Brown, 10 Ga. But see Ferrell v. Alder, 8 Humph. 311. 44; Wilder v. Ireland, 8 Jones' L. 85. 2 Hardy v. Nelson. 27 Me. 525; 6 3 Wash. R. P. 402; Chamberlain Gaither v. Brooks, 1 A. K. Marsh, v, Preble, 11 Allen, 373; Boston v. 409; Patton v. Kennedy, id. 389; Worthington, 10 Gray, 498; Little- Middleton v. Thompson, 1 Spears, 67 ; ton v. Richardson, 34 N. H. 187 ; An- Crisfield v. Storr, 36 Md. 129. drews v. Denison, 16 id. 469 ; S. C, 17 3 Id. ; Harding v. Larkiu, 41 111. 413 ; id. 413 ; Mason v. Kellogg, 38 Mich. Ryerson v. Chapman, 66 Me. 557 ; 132 (notice to the covenantor should Sheetz v. Longlois, 69 Ind. 491. be in writing) ; Williamson v. Will- * Id. ; Hamilton v. Cutts, 4 Mass. iamson, 71 Me. 443 ; Bever v. North, 349; Blasdale v. Babcock, 1 Johns. 107 Ind. 544; Cummings v. Harrison, 518 ; Sanders v. Hamilton, 2 Hay w. 57 Miss. 275 (verbal notice and op- 282; Dalton V. Bowker, 8 Nev. 190; portunity to defend, without demand, Fuhveiler v, Baugher, 15 S. & R. 45; concludes the covenautor); McCon- Jeter V. Glenn, 9 Rich. 374 ; Ferrell v. nell v. Downs, 48 111. 271. Contra, Alder, 8 Humph. 44 ; Knapp v. Marl- Martin v. Cowles, 2 Dev. & Batt 101; 13GS VENDOR AND rUKCIIASEK. [§ 616. § 610. Interest as an item of damage. Interest is not re- coverable when the premises have been occupied by the war- rantee, and he has not accounted and is not accountable for the rents and profits. It would be unjust. He who buys a farm, or house and lot, agrees to part with the use of the consider- ation forever for the use of the farm or house and lot for- ever. As long as he has the use of either, so long should the seller have the use of the consideration.^ In such case the use and occupation are presumed to be equal to the use of the purchase-money.^ And if not, the grantee has no ground for complaint while he is undisturbed in tiro enjoyment of that for which he was content to pay the purchase-money.* In case of eviction by the owner of the superior title, he is entitled to recover onesne profits for such period as is allowed by the statutes of limitation. For this period the grantee is treated as not enjoying the granted premises in virtue of the [301] grant ; and for the time he is so liable, as well as for the time succeeding actual eviction, or the fact which is treated as equivalent thereto, interest is recoverable on the principal of the damages allowed.* Where payments have been made Wilder v. Ireland, 8 Jones' L. 88. money which he has paid ; and if he See, as to the requisites of the notice, receives it, it must be deemed a sat- Rawle on Gov. Tit. (5th ed.), § 119. isfaction of the injury. If there is 1 King V. Kerr, 5 Ohio, 154. (^elay, there must be interest on the 2 Collier v, Covvger, 53 Ark. 322; amount of the purchase-money com- Stebbins v. Wolf, 33 Kan. 765, quot- mensurate with the delay ; and that ing the text; Gunter v. Beard, 93 interest the law deems a satisfaction Ala. 227, citing the text; Hutchins for the delay. If the grantee enters V. Roundtree, 77 Mo. 500 ; Wood v. into possession, the profits of the im- Kingston Coal Co., 48 111. 356 ; Hard- provements are deemed equivalent ing V. Larkin, 41 id. 413 ; Cox v. to the interest ; but as he may be Henry,' 32 Pa. St. 18; Sumner v. compelled to account for those prof- Williams, 8 Mass. 162, 221. its and pay them over to the owner. In the last case Sedgwick, J., said : he is for that reason entitled to de- '• Covenants having been broken at mand the interest, with the pur- ,the time of the execution of the chase-money, in an action upon his deed, a cause of action immediately covenant." See Selden v. James, 6 accrued. The real injuiy was then Rand. 465. sustained, and the amount of indem- 3 Spring v. Chase, 22 Me. 505 ; Kyle nity for it precisely the money which v. Fauntleroy, 9 B. Mon. 620. had been paid for a defective title. * Point Street Iron Works v. Tur- in such a case as this, if the grantee ner, 14 R. I. 122 ; Mette v. Dow, 9 cannot enter into possession, he is Lea, 93; McGufley v. Humes, 85 entitled to demand immediately the Tenn. 26 ; Hutchins v. Roundtree, 77 § GIT.] COVENANTS OF WAKKANTY — QUIET ENJOYMENT. 1309 imdor an antecedent contract, pursuant to wliicli the deed was executed, the grantee is not concluded as to the damages by the execution of the deed or the recital of the consider- ation therein; the amount actually paid may be recovered, and interest on payments made before the deed was exe- cuted.^ Wherever the circumstances are such as to preclude any recovery for mesne profits interest will not be allowed until eviction.^ Thus, where the grantee was evicted by a later jiatcnt, as he was not liable to the evictor for i^rofits prior to the patent, there was no right to interest during that })rior time.* So interest was denied where the right to mesne profits was barred by failure to claim them in the time and manner fixed by law.* Only simple interest at the legal rate is com- puted, and neither the interest nor consideration, as principal, is to be increased by the fact that it was payable by instal- ments at annual or any higher than the legal rate. Nor will the consideration be increased by the payment of taxes.'^ In a late case in lowa,^ an action was brought upon a note, a part of the consideration of which was for land conveyed by the payee to the maker with warranty, and to which the title had failed. The failure of title was set up as a defense to so much of the note as was purchase-money. The note stipu- lated for interest at the rate of ten per cent,, the ordinary legal rate being six. The plaintiff contended that the con- sideration for the land and interest at the ordinary legal rate was the proper measure of deduction ; but the court held that it was just to abate the conventional rate as well as the prin- cipal. § G17. Expenses, costs and counsel fees as damages. The rule of damages for a total breach of the covenants in a deed Mo. 500; Lambert v. Estes, 99 id. Fernandez v. Dunn, 19 Ga. 497; 604 ; Brooks v. Black, BS Miss. 161 ; Cogswell v. Lyon, 3 J. J. Marsh, 38. Gunter v. Beard, 93 Ala, 227 ; Jack- See Booker v. Bell, 3 Bibb, 173, 3»on V, Turner, 5 Leigh, 127; Rich v, i Devine v. Lewis, 38 Minn, 24, Johnson, 2 Pin. 88 ; Morris V. Rowan, "-^Wead v. Larkin, 49 111. 99; 17 N. J. I;. 304; Sumner v. Williams, Thompson v. Jones. 11 B. Mon. 365; 8 Mass. 162 ; Stewart v. Drake, 9 Whitlock v. Crew, 28 Ga. 289, N, J, L. 139 ; Backus v. McCoy, 3 3 Whitlock v. Crew, supra. Ohio, 211 ; Cox v. Henry, 32 Pa. St. * Wead v. Larkin, supra. 18; McAlpine v. Woodruff, 11 Ohio s Blake v. Burnham, 29 Vt. 437. St. 120; Clark v. Burr, 14 Ohio, 118; «Zent v, Picken, 54 Iowa, 535, 1370 VENDOK AND PURCHASER. [§ OIT. of land is often stated in general terms to be the amount of the consideration money and interest. This has been done [302] sometimes in the absence from the case of any item of expense or costs; sometimes in a direct contrast of this basis of recovery with that of the value at the time of eviction, and when of course other and incidental items common to both would not be mentioned; and in other instances purposely to exclude any items which would extend the recovery beyond consideration and interest.^ It is held that the grantee has the right to defend; he is justified in making every fair effort to retain the land which he must be understood to have pur- chased for his own convenience and advantage, because an equivalent in value may not be equally satisfactory .^ It has been declared to be his duty to defend.^ Where, at the date of the deed, the premises are adversely possessed, and the grantee, or his assignee, suffers that adverse possession to ripen into a title by continuance until an action to recover is barred by the statute of limitations, he has no right of action as for a breach of the covenant of warranty ; because in such a case the land is not lost by a paramount title existing at the date of the covenant but by his own laches.* It is therefore well settled by the best authorities that in actions for breach of the covenants, where there has been an eviction by suit, the plaintiff is entitled to recover damages, not only for loss of the land, usually, as we have seen, measured by the consideration paid with interest, but also costs reasonably and in good faith incurred in defending the title and resisting the eviction.'^ 1 Crisfield v. Storr, 36 Md. 129 ; Tur- Bennett v. Jenkins, 13 id. 50 ; Funk ner v. Miller, 42 Tex. 418; McGary v. Voneida, 11 S. & R. 109; Stanard V. Hastings, 39 Cal. 300 ; Eaton v. v. Eldridge, 16 Johns. 254 ; Taylor v. Lyman, 24 Wis. 438. Holter, 1 Mont. 688 ; Dalton v. Bow- 2Swett V. Patrick, 12 Me. 9. ker, 8 Nev. 190; Morris v. Rowan, 17 sstaats V. Ten Eyck,3 Cai. 111. N. J, L. 304: Cox v. Strode, 2 Bibb, 4 Rindskopf V. Fanners' L. & T. Co., 273; Robertson v. Lemon, 2 Bush, 58 Barb. 36. 301 ; Arinstrong v. Percy, 5 Wend. 5 Cushman v. Blanchard, 2 Me. 266 ; 535 ; Rickert v. Snyder, 9 id. 416 ; Swett V. Patrick. 12 id. 9 ; Ryerson v. Leffingwell v. Elliott, 10 Pick. 204 ; Chapman, 66 id. 557 ; Drew v. Towle, Kennison v. Taylor, 18 N. H. 220 ; 30 N. H. 531 ; Prescott v. Trueman, 4 Hohiies v. Sinnickson, 15 N. J. L, 313 ; Mass. 627; Delavergne v. Norris, 7 Stuart v. Matheison, 23 Up. Can. Johns. 358; Staats v. Ten Eyck, 3 Q. B. 135; Harding v. Larkin. 41 Caines, 111; Pitcher v. Livingston, 4 111.413; Lot v. Parish, 1 Litt, 393; Johns. 1; Waldo v. Long, 7 id. 173; Lane v. Fury, 31 Ohio St. 574; Will- C17.] COVENANTS OF WARRANTY — QUIET ENJOYMENT. 1371 And it does not appear to be necessary on principle or [303] authority that such costs should be incurred by the grantee as a defendant in actions by the claimant of the superior title. They are equally recoverable if necessarily incurred in proper proceedings taken by him to ascertain and protect the title supposed to be conveyed or to obtain possession of the land.^ iamson v. Williamson, 71 Me. 443; Swartz V. Ballou, 47 Iowa, 188 ; Steb- bins V. Wolf, 33 Kan. 765. 1 Pitkin V. Leavitt, 13 Vt. 379; Haynes v. Stevens, 11 N. H. 28; Kingsbury v. Smith, 13 id. 109 ; Gregg V. Eichardson, 25 Ga. 570 ; White v. Williams, 13 Tex. 258; Yokum v. Thomas, 15 Iowa, 67; Lane v. Fury, 31 Ohio St. 574 ; Merritt v. Morse, 108 Mass. 270. See Ferrell v. Alder, 8 Humph. 44. In Kingsbury v. Smith, supi-a, the action was brought on an implied warranty of the title in the sale of a chattel. K. purchased it of C, who previously had purchased and got possession of it from S. by fraud. In an action of trover by K. against S., who had repossessed himself of the chattel, C. was offered as a witness, and he was objected to as incompe- tent on the ground of interest, being, liable to K. on his warranty of title for the costs incurred in that action if the plaintiff should fail. Woods, J., after citing many cases, said : " The pi-inciple deducible from the cases cited would seem to be that the grantee, in an action upon a cove- nant of warranty, express as in a deed, or implied as upon a sale of personal property, is entitled to re- cover, as part of his damages sus- tained by reason of the failure of the title conveyed, the re^isonable and necessary expenses incurred in a proper course of legal proceedings for the ascertainment and protection of his rights under the purchase, as well as reasonable compensation for his trouble and expenses to which he may have been put in extiuguisii- raent of a paramount title. And it seems to us that there can be no sound distinction between the case in which the expenses are incurred in the necessary and proper prose- cution of a suit for the ascertain- ment and protection of the pur- chaser's rights, and the case of a defense for the same purpose. In the case under consideration it would, in our view, fall little short of ab- surdity to hold that if the plaintiff had kept possession of the horse, and the defendant had brought suit, the plaintiff would be entitled to recover as damages, in a suit against Chandler on the implied warranty of title, the expenses of the defense, and at the same time hold that when the de- fendant had got possession of the horse, and the only means left the plaintiff for the ascertainment and protection of his rights is the very suit he has brought, he would not be entitled, in an action on the war- ranty against Chandler, to recover the expenses of the present suit prop- erly and necessarily incuri-ed, in the event of a failure of success, by rea- son of the failure of the title con- veyed to him by Chandler. Such a doctrine, making such a distinction, we think cannot be sustained upon sound reason, or upon well-considered decisions, which go to establish the right of recovery of the costs and expenses, as clearly, we think, in one case as in the other." 1372 VENDOR AND rCECHASEE. [§ G17. [304] Where several suits and cross-suits have been brought^ involving the title to the property conveyed, and these were properly and in good faith prosecuted or defended by the grantee, the costs and expenses of all have been allowed as proper damages in addition to compensation for loss of the land. This proposition is very clearly declared and main- tained in a late case in Maine,^ in which Peters, J., delivering the opinion, said: "The foundation of a claim for damages under it (the covenant of warranty) must be that an eviction, or something equivalent thereto, has properly taken place. The covenantee, who has been evicted, is entitled to have re- paid to him all reasonable outlay which he in good faith ex- pends for the assertion or defense of the title warranted to him. Weston, C. J., says: ' He (the covenantee) was justified in making every fair effort to retain the land.' ^ If he is as- saulted with ever so many suits he must defend them, unless it is clear that a defense would avail nothing. If he defends but one, and lets the others go by default, he might get him- self into inextricable trouble. It is as essential that he should defend all the suits as well as any one of them. A defender of a walled city might as well plant all his means of defense at a single gate and leave all the others undefended, to be en- tered by the enemy. The covenantee becomes the agent of the covenantor in making a defense against suits. He should do for his warrantor what the warrantor should do for him- self, if in possession. It is no more expensive for the war- rantor to defend suits brought against his agent than suits against himself, and the presumption is that he would have been a party to the same litigations had he remained in pos- session. But the agent must act cautiously and reasonably. He has no right to ' inflame his own account,' ^ nor indulge in mere quarrelsome cases. It follows, therefore, that the plaint- iff may recover for the damages and costs and expenses of suits brought against him, and also for the costs and expenses of suits brought by him affecting the title to the estate. Each suit may have been part of the means by which the title was sought to be defeated." * 1 Ryerson v. Chapman, 66 Me. 557. * In Ryerson v. Chapman, 66 Me. 2 Swett V. Patrick, 12 Me. 9. 557, the defendant getting a supposed 3 Short V. Kalloway, 1 1 A. & El. 28. title to a parcel of land by levy, con- §618.] COVENANTS OF WAilBANTiT — QUIET ENJOYMENT. 1373 § 618. Same subject. Cases may, and have, occurred [3(i5] where the superior title asserted is so obviously well founded that resistance cannot be made in good faith ; then the cove- nantee cannot defend at the expense of the covenantor.' It is also true that in other cases the grantee is not obliged at his peril to decide upon the title. lie ma}^ defend without notice to his warrantor, and even exclude him from co-opera- tion in defending the title,^ without affecting his liability upon the covenant. And it may be doubted that the covenanto)-, when notified to defend, can affect his liability in respect to <;osts, afterwards incurred by the grantee, by silence, or direc- tion not to defend. In a New Jersey case ' Hornblower, C. J., pointedly said : " Suppose the defendants, conscious of the un- soundness of the title, had not only refused to defend the suit, but had given notice to the tenant that if he made any defense he must do it at his own risk and expense ; would that have availed them anything? I think not. It w^ould place a grantee in hazardous circumstances, if, upon such an intimation from his grantor, he must either defend at his own expense, or abandon the title, and look for compensation in damages under his covenants. On the contrary, I am of opinion that, not- withstanding such notice from the covenantor, the grantee would have a right to recover from him the taxable costs he had incurred in honestly and fairly resisting the claim of title set up by the plaintiff in the ejectment." In Pennsylvania the rule seems to be otherwise. In a recent case, where the [306] alleged breach of covenant was the recovery of a life estate in veyed it to the plaintiff by a war- After this tlie defendant paid to the ranty deed. The latter had been in plaintiff all the costs and counsel undisturbed possession under the fees incurred in the defense of that deed for about fifteen years when action, and also paid him the value his possession was invaded by one C, of the laud from which he had been who claimed title to the land upon evicted, but refused to pay the dam- the ground that the levy under which ages, costs and expenses incurred in the defendant acquired the land was the other actions, defective and void. The plaintiff ^ Cushman v. Blanchard, 2 Me. 268 ; sued C. and C. sued him Jn actions Hodgins v. Hodgins, 13 Up. Can. C. of trespass, and several other suits P. 146 ; Drew v. Towle, 30 N, H. 531 ; followed between them. While all Ryerson v. Chapman, 66 Me. 557. the suits were pending, one of them ^goyle v. Edwards, 114 Mass. 378. was carried up to decide the question ^ Morris v. Rowan, 17 N. J. L. 304. of title to the land, and C. prevailed. 1374 VENDOR AND PUKCIIASER. [§ G18. dower, Sharswood, J., said: "Without undertaking to lay down any general rule, it would seem to bo most reasonable to bold that whore a covenantor has been notified to appear and defend, and declines or fails to do so, and the covenantee chooses to proceed and incur costs and expenses in what it may be presumed that the covenantor considered to be an un- necessary and hopeless contest, he does so certainly upon his own responsibility." ^ In a Maryland case the court say : " Where such notice is given, and the party notified refuses to defend the title, the covenantee, or his assignee, has the right to employ counsel for that purpose; and may recover in an action on the covenant such reasonable fees as he has been compelled to pa^^" '' This is in accord with the rule in Rhode Island.^ Where there is such conflict of authority no rule can be stated that has general force as law. But recognizing that the grantee has a right to defend the title warranted to him, or to have it defended, if the covenantor declines to intervene for that purpose on request, the grantee ought to be at liberty to defend for himself; and on the principle of allowing full compensation for actual loss, if the title warranted fails, the expense and cost of defending it should fall on the party who covenanted to warrant and defend it and has broken his cove- nant. After the covenantor has come into court on notice and assumed the defense, the grantee is not entitled also to employ counsel for his own protection, and charge the expense, in the event of failure of title, to the covenantor.* As to the necessity and effect of notice to the covenantor to defend there is considerable diversity of opinion in other respects, as will appear by the cases already referred to and others. But as the covenant to defend is as absolute as that to warrant the title, notice would not seem to be more neces- sary in respect to costs and expenses, reasonably incurred in good faith in the defense of the title, than to confer a right to be compensated for the loss of the land. In a case already mentioned Ford, J,, said: "The defendant's counsel supposes [307] the costs on eviction are allowed, because it was the warrantor's duty to defend the suit upon receiving notice of 1 Terry v. Drabenstadt, 68 Pa. St 3 Point Street Iron Works v. Tur- 400. ner, 14 ft. I. 122. 2 Crisfield v. Storr, 36 Md. 129. * Kennison v. Taylor, 18 N. H. 220. §018.] COVENANTS OF WARRANTY QUIET ENJOYMENT. 1375 the action ; and he objects to them in this case because no no- tice was given to the warrantor or his representatives of the pendency of the action. But all the cases agree in allowing the costs of eviction, and it is immaterial whether he had no- tice or not. His covenant to defend is not a conditional one if he has notice; otherwise a want of notice would bar the warranty itself. lie covenants to defend as absolutely as lie does to warrant. The intent of notice is not to make him liable for costs; it is to make the record of eviction conclude him in respect of the title." ' And the language in the recent case in Maine Avhich has already been referred to is equally ex- plicit in response to a like objection : " ^Notice was not neces- sary to put him in position to enforce such a liability. "With- out a notice the plaintiff can recover his damages caused by the failure of the title warranted to him. And in this state the costs of the former action and the expenses of counsel fees attendino^ it, whether in assertinfi: or defendino- the title, are a portion of the damages recoverable. The want of no- tice of a suit to the warrantor undoubtedly increases the bur- den of proof that falls on the warrantee. In such case he would be held to prove that the actions brought against him were reasonably defended, and that the costs were fairly and necessarily incurred. And as to the costs in cases in which the warrantee was plaintiff instead of defendant, and also as respects counsel fees and expenses in cases where he was either plaintiff or defendant, and whether the covenantor was notified or not, from the nature of things the burden is on the covenantee to show such items to be reasonable and proper claims where the grantor does not appear in the suits." ^ While these general principles are supported by the best authorities,^ there has been an exception in some juris- dictions of the item of counsel fees. They are not allowed in Massachusetts,* Mississippi, or Texas,^ and perhaps in some 1 Morris v. Rowan, 17 N. J. L. 304. Taylor, 18 N. H. 220 ; Lane v. Fury, 2 Ryerson v. Chapman, 66 Me. 557. 31 Ohio St. 574 ; Harding v. Larkin, 3Staats V. Ten Eyck, 3 Cai. Ill; 41 III. 413; Keeler v. Wood, 30 Vt Pitcher v. Livingston, 4 Johns. 1 ; 243. Robertson v. Lemon, 2 Bush, 301 ; * LeflSngwell v. Elliot, 10 Pick. 204. Cox V. Strode, 2 Bibb, 273; Pitkin v. •■* Clark v. Mumford, 62 Tex. 531, Leavitt, 13 Vt. 379; Kennison v. 535 ; Brooks v. Black, 68 Miss. 161. 1376 VENDOK AND rUKCHASER. [§ 619. [308] other states.' It is difficult to perceive, however, any sound reason for this exception; for, as was said in an early- case in Mainc,^ "the plaintiff could not defend without coun- sel, and if employed they must be paid ; " and the same rea- son that would authorize the recovery of the clerk's, sheriff's and other costs Avould justif}^ the recovery of reasonable counsel fees. The character of these expenses is the same; one is just as requisite as the other, and both are essential to a defense.' § 619. Same subject. In Illinois the right of recovery is confined to costs incurred in actions in which the warrantee is a party to the record and in which he was evicted. And tlie rule is said to be limited to tlie taxable costs and reasonable attorneys' fees in that suit."* The covenantee is not entitled to damages on these covenants for any outlays necessitated by the existence or assertion of an invalid adverse claim. The covenant does not protect him against any but lawful claims, which negative the title that the deed to him purports to con- vey.^ JSTor can the covenantee or his assignee recover for any damages resulting from his own wrongful acts; " as where the breach of the covenant consists in a third person having a right of way over a stair-case in the tenement conveyed with warranty, and the plaintiff seeks to recover damages which he has been compelled to pay to such third person for removing the stair-case.^ In such a case there was a covenant of war- ranty and against incumbrances. The plaintiff was held en- titled to recover damages for the incumbrance only to the date of the removal of the stair-case; and nothing for the damages which he had been adjudged to pay for tearing it down, thouffh the act extinguished the incumbrance.^ Where an equitable title is conveyed with covenants, and the party having the leg^al title asserts it in such manner as amounts to an eviction, expenses incurred to procure that title by a suit in equity have been allowed on the same principle as where A White V. Clack, 2 Swan, 230. v. Parsons, 33 W. Va. 644, quoting See Holmes v. Sinnickson, 15 N. J. the text. L. 313. 6 Wilcox V. Danfortb, 5 IlL App. ^ Swett V. Patrick, 12 Me. 9. 378. 3 Taylor v. Holter, 1 Mont. 688. 7 Id. ■* Harding v. Larkin, 41 111. 413. 8 id, * Christy v. Ogle, 33 111. 295 ; Smith § G20.] COVENANTS AGA.INST INCU.MBRAXCES. 1377 the title undertaken to be conveyed has no equitable or [309] legal foundation, and the paramount title has been procured by the covenantee by purchase. This was held in a recent case in Ohio.^ A married woman sold real estate, but the acknowledgment of the deed was so defective that the title did not pass. Her heirs, having set up title, and brought suit for possession against one to whom tJie purchaser had conveyed with the covenants, a proceeding in chancery was successfully prosecuted to a decree for the correction of that defective conveyance, and the suit for possession was defeated by sea- sonably obtaining that decree. For the expenses incurred in curing that defect an action was brought on the covenant of warranty. The court held that it was not necessary that the paramount title should be established by judgment or decree. And if, under the circumstances existing when the petition to reform was filed, the plaintiff might have bought in the paramount title, and recovered of the covenantor any reason- able amount paid therefor, he might recover from him the costs and expenses, including counsel fees, in both suits; that, looking to the substance as well as the form of the transac- tion, it was a mode of getting in the legal title. But in a similar case in Iowa ^ the costs were denied because the suit in equity was brought without a previous request to the cove- nantor to obtain the legal title. The reformation of a deed so as to include in it and its cove- nants land which was not originally described therein will not be given retroactive effect so as to make the grantor liable for the expense of defending an action for trespass, upon the lahd conveyed and included in the reformed instrument, brought by him against the grantee.* Section 5. covenants against incumbeances. § 620. What are incnmhrances. An incumbrance has been defined to be every right to or interest in the land which may subsist in third persons to the diminution of the value of the • Lane v. Fury, 31 Ohio St. 574. 3 Butler v. Barnes, 24 Atl. Rep. 328 2 Yokum V. Thomas. 1 Iowa, 675. (Conn.). Vol. 11—87 1378 VENDOR AND PURCHASER. [§ 620. land, but consistent with the passing of the fee by the convey- [310] ance.^ The cases re})orto(l show a great variety of in- cumbrances, but they may be groujied or classified for the present purpose as incumbrances which consist: 1. Of a judg- ment, mortgage or some debt or charge that is a lien on the land conveyed. 2. Some right in a third person which may be absolutel}'^ or contingently asserted to the title, possession or use of the land conveyed or some part of it, or some priv- ilege or easement thereon ; or which imposes in the future some duty or restriction upon the grantee in respect to it.^ 1 2 Greenlf. Ev., § 242 ; Prescott v. Trueinan, 4 ]Mass. G27 ; Barlow v. Mc- Kinley, 24 Iowa, 69 ; Mitchell v. War- ner, 5 Conn. 497; Stambaugh v. Smith, 23 Ohio St. 584; Carter v. Denman, 23 N. J. L. 273; Rawle on Gov. T. 94, 95; Fritz v. Pusey, 31 Minn. 368. - It is said in a recent case : " In- cumbrances are of two kinds, viz. : 1, such as affect the title, and 2, those which affect only the physical condi- tion of the property. A mortgage or other lien is a fair illustration of the former; a public road or right of ■way, of the latter." Memraert v. Mc- Keen, 112 Pa. St. 315. Mr. Rawle, in his admirable work on Covenants for Title (4th ed., pp. 96, 97), thus enumerates what have been held to be incumbrances, the existence of which would be a breach of a covenant that the land con- veyed is free therefrom : " Thus there can be no doubt that the covenant is broken by the existence of a judg- ment, a mortgage or any debt which is a lien upon the land conveyed (Bean v. Mayo, 5 Me. 94 ; Shearer v. Ranger, 22 Pick. 447 ; Norton v. Bab- cock, 2 Met 510 ; Jones v. Davis, 24 Wis. 229 ; Case v. Erwin, 18 Mich. 434) ; a right of dower whether in- choate or consummate by the death of the husband (Shearer v. Ranger, 22 Pick. 447; Bigelow v. Hubbard, 97 Mass. 195 ; Porter v. Noyes, 2 Me. 26 ; Donnell v. Thompson, 10 Me. 170; Smith V. Connell, 32 Me. 126; Blanch- ard V. Blanchard, 48 Me. 177 ; Run- nells V. Webber, 59 Me. 488; Russell V. Perry, 49 N. H. 547 ; Carter v. Den- man, 23 N. J. L, 273 ; Jeter v. Glenn, 9 Rich. L. 370 ; Henderson v. Hender- son, 13 Mo. 151 ; Hatcher v. Andrews, 5 Bush, 561 ; McAlpin v. Woodruff, 11 Ohio St 120; contra dicta, Powell V. Monsou Co., 3 Mason, 355) ; or by the existence of taxes, whether pres- ently due (Almy v. Hunt 48 111. 45; Ingalls V. Cooke, 21 Iowa, 560; Mitchell V. Pillsbury, 5 Wis. 407); or which, when thereafter levied, relate back prior to the conveyance (Hutchius V. Moody, 30 Vt 655; S. C, 34 id. 433. See Pierce v. Brew, 43 Vt 292 ; Rundell v. Lakey, 40 N. Y. 513; Overstreet v. Dobson, 28 Ind. 256 ; Blossom v. Van Court 34 Mo. 394; Peters v. Myers, 22 Wis. 602 ; Long v. Moler, 5 Ohio St 27 1 ; and see, also, Cochran v. Gould, 106 Mass. 29; Carr v. Dooley, 119 Mass. 294; Blackie v. Hudson, 117 Mass. 181 ; Langsdale v. Nicklaus, 38 Ind. 289) ; but obviously not taxes which, assessed after the execution of the deed, do not so relate back. Jack- son v. Sassaman, 29 Pa St 106. So where a testator devised to his daugliter the right of living in part of a house, of which the whole was G20.] COVENANTS AGAINST INCITMBRANCES. 1379 The vendee's knowledge of the existence of an incumbrance of the lirst class does not afTect his right to recover (hunages on the breach of the covenant.^ In some jurisdictions it is presumed that where a servitude imposed upon land is visible and affects only its physical condition, the purchase is made with knowledge of it and the price is determined upon ac- cord ingiy.^ afterwards sold by the residuary devisee, such paramount right was held to be a breach of the covenant against incumbrances made by the latter. Jarvis v. Buttriclr, 1 Met 480. So when the premises were sold subject to a covenant that no ardent spirits should be sold there- from (Hatcher v. Andrews, 5 Bush, 561) ; or to a covenant that a certain fence should be erected or main- tained (Burbank v. Pillsbury, 48 N. H. 475; Kellogg v. Robinson, 6 Vt. 276. See Parish v. Whitney, 3 Gray, 516; Blain v. Taylor, 19 Abb. Pr. 228); or to a restriction against building except in a particular way. Roberts v. Levy, 3 Abb. Pr. (N. S.) 311. All these have been held to be breaches of the covenant." And on p. 100 the author says : " Again, it has been said that the covenant is broken by the existence of any ease- ments or servitudes to which the land is subject Mitchell v. Warner, 5 Conn. 508 [Wet more v. Bruce, 54 N. Y. Super. Ct 149 ; S. C, 118 N. Y. 819]. And as a general proposition this may be also true. Thus, the existence of a paramount private right of way. Wilson v. Cochran, 46 Pa. St 233 ; Russ v. Steele, 40 Vt 310; Blake v. Everett 1 Allen, 250; Wetherbee v. Bennett 2 Allen. 428. Or, it has been held, of a right of way for a railroad. Barlow v. Mc- Kinley, 24 Iowa, 70 ; Beach v. Miller, 51 111. 206. See, also, Burk v. Hill, 48 Ind. 52 ; Purcell v. Hannibal, etc. R Co., 50 Mo. 504. A right to cut and maintain a drain. Smith v. Sprague, 40 Vt 43, Or other artificial water- course. Prescott V. White, 21 Pick. 341. A right to cut timber or 'wood leave,' as it is sometimes called. Cathcart v. Bowman, 5 Pa. St 319; Spurr V. Andrew, 6 Allen, 420. And, in some cases, it is said, by the right to dam up and use the water of a stream running through the land conveyed. Morgan v. Smith, 11 111. 194; Ginn v. Hancock, 31 Me. 42. All these have been held to be in- cumbrances within the scope of the covenant." So is a right of way over a stair-case in a tenement con- vejed. Wilcox v. Danforth, 5 111. A pp. 378; McGowan v. Myers, 60 Iowa, 256. An incumbrance exists upon property which is subject to assessment for widening a street or for building a sewer from the date of the order to make the improve- ment Blackie v. Hudson, 117 Mass. 181 ; Carr v. Dooley, 119 id. 294 ; Cad- mus V. Fagan, 47 N. J. L. 549, revers- ing S. C, 46 id. 441 ; Barnhart v. Hughes, 46 Mo. App. 318. 1 Barlow v. McKinley, 24 Iowa, 69 ; McGowen v. Myers, 60 id. 257 ; Kel- logg V. Malin, 50 Mo. 496 ; Foster v. Foster, 62 N. H. 532 ; Lane v. Rich- ardson. 104 N. C. 642, 650 ; Cathcart V. Bowman, 5 Pa. St 317 ; Funk v. Voneida, 11 S. & R. 109. 2 Meramert v. McKeen, 112 Pa. St 315 ; Patterson v. Arthurs, 9 Watts, 152; Kutz V. McCune, 22 Wis. 628; Smith V. Hughes, 50 id. 620 ; Scrib- ner v. Holmes, 16 Ind. 142 ; Allen v. 1380 VENDOR AND PUKCIIASER. [§§ 621, 622. [311] § 621. A covenant in prescnti. The American cov- enant against incumbrances in general use is a covenant in presenti, that the premises convej'^ed are free and clear of all incumbrances. It is generally treated as a personal covenant, not running with the land, and broken, if at all, the moment it is made, it is thereby turned into a chose in action in the covenantee, and therefore incapable of transmission to his grantee by deed of the premises.' § Gi'i. The rule of damages. Being regarded as a cove- nant of indemnity, the mere existence of an incumbrance of the first class above mentioned is not ordinarily an actual in- jury, in the absence of anything done to enforce, or of any- thing paid by the covenantee to satisfy or extinguish it. In such cases, for the mere technical breach, nominal damages may be recovered, and no more. This was decided at an [312] early day in New York,- the court saying: "If he (the covenantee) has not extinguished it, but it is still an outstand- ino: incumbrance, his damao-es are but nominal, for he outyht not to recover the value of the incumbrance, on a contingency, where he may never be disturbed by it. This is the reason- able rule ; for if he was to recover the value of an outstand- ing mortgage, the mortgagee might still resort to the mort- gagor on his personal obligation, and compel him to pay it; and if the purchaser feels the inconvenience of the existing in- cumbrance, and the hazard until he is evicted, he may go and Kersey, 104 id. 1. It is said in a Bean v. Mayo, 5 Me. 94; Eaton v. late Wisconsin case that a highway Lyman. 30 Wis. 41 ; Pillsbury v. is the only exception. Bennett v. Mitchell, 5 id. 17; Delavergne v. Keehn, 67 Wis. 154, 163. See Messer Novris, 7 Johns. 358 ; Hall v. Dean, V. Oestrich, 53 id. 684. That is not 13 id. 105 ; De Forrest v. Leet, 16 id. admitted to be such in Massachu- 133 ; Stanard v. Eldridge, id. 354 ; setts (Kellogg v. Ingersoll, 3 Mass. Prescott v. Trueman, 4 Mass. C37 ; 101), it seems. This is the rule in Illi- Wyman v. Ballard, 13 id. 304; Gar- nois. Wadhams v. Swan, 109 111. rison v. Sandford, 13 N. J. L. 361 ; 46. In New York there is no dis- Brooks v. Moody, 35 Ark. 453; Stew- tinction recognized between incum- art v. Drake, 9 N. J. L. 139 ; Wad- brances which affect the title and hams v. Swan, 109 111. 46. The states those simply affecting the physical in which the rule is otherwise are in- condition of the land. Huyck v. dicated in § 635, post. Andrews, 113 N. Y. 81. - Delavergne v. Norri^, 7 Johns. 1 Andrews v. Davison, 17 N. H. 358. 413 ; Mills v. Saunders, 4 Neb. 190 ; § C,22.'] COVENANTS AGAINST INCUMIIRANCES. 1381 satisfy the moi'tgage, and then resort to his covenant." This is the settled x\merican rule.^ It has been applied in Illinois where the incumbrance was a railway across a farm, and was a benefit to the property.^ But in Missouri it has been held that the damaf^es cannot be reduced by evidence of the en- hanced value of the land on account of the road, or of ])rivi- le10 ; Dim- mick V. Lockwood, 10 Wend. 142; Patterson v. Stewart, 6 W. & S. 527 ; Chapel v. Bull, 17 Mass. 213; Mona- han V. Smith, 19 Ohio St. 384 ; Smith V. Dixon, 27 id. 471. Where the rule prevails that the measure of damages on the breach of the covenant of warranty is the value of the land at the time of eviction, it applies to the breach >f the covenant against incumbrances. Beecher v. Baldwin, 55 Conn. 419. If the land has depreciated in value equal to the unpaid purchase-money the notes taken to secure the paj'- ment thereof may be set off against the damages claimed, although they are barred as independent causes cf action. Ibid. *Nichol V. Alexander, 28 Wis. lia § 024.] COVENANTS AGAINST INCUMBRANCES. 13 85 amount so fairly paid, notwithstanding he received and re- tained an interest paramount to the incumbrance of greater value than the amount which he paid for that interest; • for purchasers have a right to the benefit of their purchases, and not simply to a return of their money and interest.- Refer- ring to the case in which tliis doctrine was announced,' the court, in Guthrie v. Russell, says: "This court ignored the doctrine that the consideration paid is to be taken as the value of the ]:)roperty as between the })arties. In tiiat case the court aimed to give full compensation, thus following, to some ex- tent, the rule adopted in Massachusetts and some other states, where the limit of recovery in an action for the. breach of the covenant is the actual value of the property at the time of the eviction or at the time of extinguishing the incumbrance. Yet we cannot think that the court designed to depart alto- gether from the other rule above set forth, which is in' accord- ance with the decided weight of authority, and which is expressly held by this court in Brandt v. Foster.* We have no doubt that if . . . the incumbrance paid off had ex- ceeded the purchase-money and interest, the plaintiff would have been limited in his recovery to that amount." If lands are conveyed by a single deed for an entire consideration actually paid and expressed therein, it cannot be shown that there was a prior parol agreement to the effect that a part of the land conveyed, upon which there was an incumbrance, was granted without consideration.'^ If the estate bargained for is entirely defeated, the purchaser's recovery cannot ex- ceed the purchase-money and interest on it for six years; taxes paid by him cannot be added thereto." § 624. The English and Canadian rnle of damages. In Canada the covenant against incumbrances has been construed and enforced to give substantial damages for the mere exist- ence of incumbrances, as the covenant of seizin is generally in the United States ; except that instead of following the analogy of allowing the consideration and interest for want of title, the amount of the incumbrance was held in the court of 1 Guthrie v. Russell, 46 Iowa, 269. » Bruns v. Schreiber, 43 Minn. 468. 2 Knadler v. Sharp, 30 Iowa, 232. See antp, § — , n. 3 Id. 6 Daggett V. Reas, 79 Wis. 60. 4 5 Iowa, 295. 1386 VENDOR AND PUKCHASEE. [§ 024. queen's bench to be the measure of damages without regard [316] to whether it is more or less than the purchase-money.' The covenant is there hekl to run with the Land, altliough the grantor w\is in fact seized only of an equity of redemption; that it can be sued upon as such by the grantee; and the court of common pleas held that the measure of damages was the difference between the value of the equity of redemption and the indefeasible estate of inheritance contracted and paid for, that difference being represented by the amount for which the mortfrase stands as security.^ 1 Connel] v. Boulton, 25 Up. Can. Q. B. 444 2Etiipire Gold K Co. v. Jones, 19 Up. Can. C. P. 345. A very inter- esting and instructive opinion on this point was given in this case. The court says: "Upon the question of damages, Hackett v. Boulton, 3 C. P. 407, is an express authority that sub- stantial damages are recoverable. Carlisle v. Orde, 7 C. P. 456, although there was a bond of indemnity sued upon as well as a covenant, shows. I think, the opinion of Draper, C. J., to have been that substantial dam- ages are recoverable upon the cove- nant under the circumstances ap- pearing here. The only diffei-ence be- tween Connell v. Boulton, 35 U. C. 444, and this case, is that there the mort- gage was due. It is an authority, also, that substantial damages are recoverable. Raymond v. Cooper, 8 C. P. 388, and Carr v. Roberts, 5 B. & Ad. 78, were cases of bonds of indemnity. Lethbridge v. Mytton. 3 B. & Ad. 773, was a case of a cove- nant of indemnity, and to pay off a mortgage within a year. Ten years elapsed without its having been paid, and although tlie mortgage never was enforced, on an action being brought on the covenant, the cove- nantee was held entitled to recover the full amount of the mortgage, although no damages whatever. further than what consisted in its mere existence, had been sustained by liim. In Graham v. Baker, 10 C. P. 426, and Snider v. Snider, 13 C. P. 156, the breaches consisted in a simple naked negation of title, and the parties had possession, and no damages by reason of the existence of any incumbrance was stated or suggested. It was treated tliat the defect of title might have been cured by lapse of time, so that these cases cannot affect the present There are, however, observations in Kennedy v. Solomon, 14 Q. B. at p. 028, in the judgment of the late Chief Justice Sir John Robinson, wliich give some countenance to the contention of the defendant, that nominal damages only are recoverable here. The ob- servations alluded to are not upon a point upon which the judgment was given, for the judgment was upon the covenant for quiet enjo3'ment. They related to the covenants for seizin and for good title. Tliere is also a difference between the cove- nant for right to convey there and here ; for here the covenant is spe- cially directed to a right to ccmvey free from incumbrance, so as to as- similate it to a covenant that the premises are free from incumbrances. Moreover, the learned chief justice does not express a decided opinion, but a doubt only. . . . He says, 625.] COVENANTS A.GAIN8T INCUMBRANCES. 1387 § 625. In some states covenant rnns with land. In [317] several of the states this covenant is held to run with the land for the protection of the owner who suffers actual injury *a mortgage or payment is treated in equity not as a matter affecting the title or right to convey, because they hold that the mortgagor or the judg- ment debtor is, nevertheless, the owner of the estate, and entitled to conver subject, of course, to the in- cumbrance. In ToNvnsend v. Cham- pernown, 1 Y. & J. 449, the court said that in practice, in the master's office, a mortgage, even though it may be to secure a sum larger than the value of the property, is always treated and considerrmed by the vendor, no action, of course, can be maintained on the contract for such part performance, and formerly there could be no recovery in any form; ^ and that doctrine is still ad- hered to in some states.^ But a more just and equitable rule [357] generally prevails. If the vendee retains the part de- livered after the vendor has made default in respect to the residue, it is a severance of the contract, and the vendor is en- titled to recover the contract price for what is so delivered and retained, subject to recoupment of such damages as the vendee sustains for non-performance of the entire contract,* or the value, subject to like counter-claim/' The vendee may return the part delivered when delivery of the whole is due and not made, if he chooses; but if he retains it, it is deemed just that he should make compensation for it; and the same rule applies to other contracts, namely, that the party who V. Filer, 7 Wis. 306; Loring v. Gur- id. 166; Keen v. Tupper, 33 N. Y. ney, 4 Pick. 16; Hunneman v. Graf- Super. Ct. 465; S. C, 53 N. Y. 550; ton, 10 Met. 454; Fuller v. Sweet, 30 Catlin v. Tobias, 26 id. 217; Mead v. Mich. 237; Barron V. Mullin, 21 Minn. Degolyer, 16 Wend. 632; Witherow 374 ; JlcCormick v. Basal, 46 Iowa, v. Witherow, 16 Ohio, 238 ; Williams 235; Rinehart v. Olwine, 5 W. & S. v. Sherman, 48 Barb. 402. See Leav- 157; Bicknell v. Buck, 58 Ind. 354; enworth v. Packer, 52 id. 132. Stoddard v. Mix, 14 Conn. 12; Car- * Bowker v. Hoyt, 18 Pick. 555; nahan v. Hughes, 108 Ind. 225 ; Smith v. Foster, 36 Vt. 705 ; Abbott Stephenson v. Repp, 47 Ohio St 551 ; v. Wyse, 15 Conn. 254 ; Horn v. Hanna v. Mills, 21 Wend. 90 ; Amer- Batchelder, 41 N. H. 86 ; Richard v. ican Manuf. Co. v. Klarquist, 47 Shaw, 67 111. 222 ; Polhemus v. Hei- Minn. 344. man, 45 Cal. 573. 1 Hanna v. Mills, 21 Wend. 90. » Cole v. Swan^ton, 1 Cal. 51 ; Ruiz 2 2 Kent's Com. 509. v. Norton, 4 id. 355 ; Clark v. Moore, 3 Champlin v. Rowley, 18 Wend. 3 Mich. 55 ; Chapman v. Dease, 34 id. 187 ; S. C, 13 id. 258 ; McMillan v. 375 ; Wilson v. Wager, 26 id. 452 ; Vanderlip, 12 Johns. 165 ; Youngs Begale v. McKinzie, id. 470 ; Oxen- V. Kent, 2 Sweeny, 257 ; Flanagan v. dale v. Witherell, 9 B. & C. 386; Demarest, 3 Robt. 183 ; Moses v. Cooke v. Muostone, 1 P. & B. N. R. Banker, 2 Sweeny, 267 ; McCormick 351 ; Read v, Rann, 10 B. & C. 441. V. Sarson, 1 id. 161 ; Currie v. White, § G45.] VENDOR AGAINST VENDEE. 1429 accepts and approi)i'iates tlie benefit of a partial performance should pay therefor to the extent of the benefit, but has the right to damages for the other party's failure to perform in full,' A contract for property to be delivered in instalments, where each instalment is to be paid for separately, is not en- tire. The vendor will be entitled to recover for any delivered instalment, irrespective of default in the delivery of others.- In contracts for future delivery of goods, to be subsequently cr concurrently paid for, the delivery being a condition on the performance of which the right to payment depends, if the contract is entire there must be a delivery of the whole to fulfill the condition/ But where delivery is to be made in parcels or instalments, severable not only in bulk but [358] prices and times of delivery, the delivery of each parcel is a condition only to payment jpro tanto} Xor will a default in respect to one severable part entitle the other party to re- scind, unless there is then a renunciation of the entire con- tract, persisted in afterwards.^ In Norrington v. Wright" Mr. Justice Gra}'- reviews the English and American cases, and, speaking for the court, says that the seller is bound to deliver the quantity stipulated for and has no right either to compel the buye^ to accept a less quantity or to require him • Chapman v. Dease, 34 Mich. 375. 6 M. & Gr. 943; Boyd v. Lite. 1 C. B. 2 Loouiis V. Eagle Bank, 10 Ohio St. 222 ; Atkinson v. Smith, 14 ]\L & W. 337 ; Moore v. Logan, 5 Up. Can. C. 695 ; Bankart v, Bowen, L. R 1 C. P. P. 294. See Seymour v. Davis, 2 484 ; Murphy v. St. Louis, 8 Mo. App. Sandf. 239. 483. 3 Howe V. Huntington, 15 Me. 350 ; ^ Smith v. Keith & P. Coal Co., 36 Warren v. Wheeler, 21 id. 484; How- Mo. App. 567; Johnson v. Allen, 78 land V. Leach, 11 Pick. 151 ; Swan v. Ala. 387 ; Brown v. Muller, L. R 7 Drury, 22 id. 485 ; Dana v. King, 2 Exch. 319, See Deming t. Kemp, id. 155 ; Lord v. Belknap, 1 Cush. 4 Sandf. 147 ; Seymour v. Davis, 2 id. 279 ; Gazley v. Price, 16 Johns. C67 ; 239, Williams v. Henley, 3 Denio, 363 ; & Roper v, Johnson. L. R 8 C. P. Cornwall v. Haight, 8 Barb. 327; 167; Withers v. Reynolds, 2 B. & Ad. Ciiampion v. Rowley, 18 Wend. 187 ; 883 ; Smoot's Case, 15 Wall. 36 ; Jones v. Marsh, 22 Vt. 144; Shaw v. Simpson v. Crippin, L. R 8 Q. B. 14; Turnpike Co., 2 Penn. 454; Smith Frost v. Knight. L. R 5 Exch. 323; V. Liscomb, 13 Tex. 532; Barber v. Burtis v. Thompson, 42 N. Y. 246. Willard, 4 McLean, 356 ; Grundy v. See Bloomer v. Bernstein, L. R 9 C. McClure, 2 Jones' I u 142 ; Hough v. P. 588. Rawson, 17 111. 588; Rawson v. John- M15 U. S. 188; Lee v. Sickles Sad- son, 1 East, 203 ; Jackson v. Alia way. dlery Co., 38 Mo. App. 201. 14:30 VENDOR AND VENDEE PERSONAL PROPERTY. [§ GiG. to select part out of a greater quantity. "When the property is to be shipped in certain proportions monthly the failure to ship the required quantity in the first month gives the pur- chaser the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should have been delivered at once, if such right is distinctly and reasonably asserted.^ § 646. Same subject. Where the contract provides for a serie« of deliveries, and there is a renunciation of it by the seller and a consequent default in respect to all or sev- eral of them, it has been held, where action was delayed until after the time stipulated for the last delivery, that the proper measure of damages is the sum of the differ- ence between the contract and market prices on the days when the several deliveries were due.' In Barningham v. Smith ^ the defendants contracted with the plaintiff to de- liver from the 1st of January until the 31st of December, 1872, six thousand two hundred and sixty wagons of coal at 7.^. ^d. per ton of two thousand pounds, at the fair average rate of twenty wagons per day ; payment by three months' acceptance drawn on the 10th of each month for the previous month's supply. The deliveries were irregular in point of time, and insufhcient as to quantity; they failed to comply with the condition that they should be at the fair average rate of twenty wagons per day. At the end of the year there was a large deficiency. The plaintiff, although constantly complain- ing of the deliveries, did not go into the market and buy against the defendant at any time during 1872, but on the 13th of February'", 1873, he bought coal in the market to supply ' This rule is substantially in accord 2 Brown v. Muller, L. R. 7 Exch. with Hoare v, Rennie, 5 H. & N. 19; 319; Johnson v. Allen, 78 Ala. 387; Coddington v. Paleologo, L. R. 2 Hill v. Chipman, 59 Wis. 211 ; Mis- Exch. 193 ; Bowes v. Shand, 2 App. souri Furnace Co. v. Cocliran, 8 Fed. Cas. 455 ; Reuter v. Sala, 4 C. P. Div. Rep. 463 ; Hamilton v. Magill. J>, L. 239 ; Houck v. Muller, 7 Q. B. Div. R. Ire. 186, 201 ; Roper v. Johnson, 92. It differs from that announced L. R 8 C. P. 167. in Simpson v. Crippin. L. R. 8 Q. B. 3 31 L. T. (N. S.) 540 ; Ex parte Llan- 14, and Brandt v. Lawrence, 1 Q. B. samlet Tin Plate Co., L. R. 16 Eq. 155 ; Div. 344. See Hill v. Blake, 97 N. Y. Simons v. Ypsilanti Paper Co., 77 216 ; King Phillip's Mills v. Slater. 12 Mich. 185. R. L 82 ; Smith v. Keith & P. Coal Co., 36 Mo. App. 567. § QiiQ.'] VENDOE AGAINST VENDEE. 1431 the whole deficiency at a very much higher price, namely, 19*. per ton. Coal had been gradually rising in price throughout the successive months of 1872, and it rose more rapidly in the months of January and February, 1873. The plaint- [359] iff claimed to be entitled to damages to the extent of the dif- ference between the contract price of 7s. 3d. and the market price at the expiration of such a reasonable time after the 31st of December, 1872, as would have enabled him to go into the market and obtain it, calculated upon the whole deiiciency left undelivered by the defendants throughout the year 1872. The defendants contended he was not entitled to wait until the expiration of the year before assessing his damages; that a breach was committed as often as a month expired with- out the proper quantity having been delivered, and that the plaintiff was bound to assess his damages in respect of such breach from an estimate of that month's market price; or that the breaches were committed at some shorter periods, but that the damages should be calculated at the end of each month. It was held that as soon as the defendants failed to deliver a fair average of coal according to the terms of the contract a breach had taken place, for which at that time the plaintiff was entitled to damages as upon that breach, and so on from time to time, to the last; that it was an erroneous way of estimating the damages, by waiting until the full period of the contract had expired, and then claim the differ- ence at that time.^ If the purchaser notifies the vendor that no more property will be received under the contract after a specified date, and a tender is subsequently made of the un- delivered portion, if there has been an advance in the price between the time of the notice and the tender and a diminu- tion in the difference between the contract and the market price, the variance between these when the tender is made measures the damages.^ If the purchaser's orders for the maximum quantity demandable in any month under the con- tract are not wholly filled, and in subsequent months more than that quantity is delivered and accepted, there is a waiver pro tanto of the earlier breach. In determining the disposi- tion to be made of the excessive deliveries courts will apply 1 See Tyers v, Rosedale, etc. Co., L. ^ Rhodes v. Cleveland Rolling Mill K- 8 Exqb. 305. Co., 17 Fed. Rep. 426. 1432 VENDOR AND VENDEE PERSONAL PROPERTY. [§ 647. the rule which governs the application of payments of money when no application thereof is made by the parties, and apply the excess on the first surplus delivery to the earliest deficient delivery, and the second excessive delivery to the next insuffi- cient one;' at least where it is not shown that the market price was higher when the first excessive delivery was made than when the earliest deficient one was.^ Where the contract is to supply an indefinite quantity of army supplies at a certain post for a specified time and no means exist by which it can be ascertained in advance how much will be required, each partj'" owes the other the duty of exercising diligence in keeping himself and the other in- formed of facts which tend to lessen the uncertainty. The re- ceiving officer may change or revoke his orders concernnig the delivery of suppfies any time before they are received. If he does so the government will be liable for such as the con- tractor had on hand ready to deliver and as to which he had incurred substantially all the cost and trouble which would have been taken if delivery had been made; as to these sup- plies it will be considered that he has complied with his agree- ment. For his preparations and progress towards furnishmg other supplies, not substantially ready for delivery, he may recovet' the cost, expenses and losses actually incurred ; but not the prospective profits.^ § 647. Recovery for not accepting goods. An executory agreement which requires a subsequent acceptance of the property by the buyer to consummate the sale does not be- come a complete bargain and sale so as to vest the title in him, if he refuses to accept it. In such case the vendor is en- titled to recover damages only to the extent of his actual in- jury from the failure of the vendee to fulfill his contract,* which is ordinarily the difi'erence betAveen the contract price and the market value at the time and place of the breach with [360] interest.^ This may be ascertained and fixed by a re- 1 Johnson v. Allen, 78 Ala. 387, 394. R Co. v. Mitchell, 38 Tex. 85 ; Rob- 2 Gallua V. Seymour, 7(5 Wis. 251. inson v. Varnell, 16 id. 382. 3 Field V. United States, 16 Ct of *Id. ; Georgia Refining Co. v. Au- Cls. 434. gusta Oil Co., 74 Ga. 497, 507 ; Thur- ■» Alien V. Jarvis, 20 Conn. 38 ; Dana man v. Wilson, 7 111. App. 312 ; Dwig- V. Fiedler, 12 N. Y. 48 ; Houston, etc. gins v. Clark, 94 Ind. 49 ; Schramm § CiT.] VENDOR AGAINST VENDETS. 1433 sale within a reasonable time, and after notice to the vendee of the vendor's intention to resell, taking all proper measures to secure as fair and favorable a sale as possible.' According to some authorities, if the buyer lias notice of the facts which give tiie vendor the right to resell and absolutely refuses to comply Avitli his contract, notice of an intention to resell is not essential.^ Such resale is made on the theory that the property is that of the vendee retained by the vendor as a means of realizing the contract price ; he acts as the agent of the vendee, and deducts from the proceeds all the expenses V. Boston Sugar Refining Co., 146 Mass. 211 ; Windmuller v. Pope, 107 N. Y. 674; Cullen v. Bimm, 37 Ohio St. 236; White v. Matador Land & C. Co., 75 Tex. 465 ; Geiss v. Wyeth & H. Manuf. Co., 37 Kan. 130 ; Un- excelled Fireworks Co. v. Polites, 130 Pa. St. 536 ; Girard v. Taggart, 5 S. & R. 19, 539 ; Davis v. Adams, 18 Ala. 264; Clement, etc. Manuf. Co. v, Mes- erole, 117 Mass. 362; Dauforth v. Walker, 37 Vt. 239 ; Beals v. Terry, 2 Saudf. 127 ; Whitmore v. Coats, 14 Mo. 9 ; Rand v. White Mts. R Co., 40 N. H. 79; Andrews v. Hoover, 8 Watts, 239; Gaiison v. Madigan, 13 Wis. 67 ; Rider v. Kelly. 32 Vt. 268 ; Weltuers -v. Riggs, 3 W. Va. 445 ; Pickering v. Bardwell, 21 Wis. 562; Hale V. Trout, 35 Cal. 229 ; Dustan v. McAndrew. 44 N. Y. 72; Lewis v. Greider, 49 Barb. 606 ; S. C. 51 N. Y. 231 ; Pollen v. Le R05-, 10 Bosw. 38 ; S. C, 30 N. Y. 549; Bridgeford v. Crocker. 60 N. Y. 627; Mettler v. Moore, 1 Blackf. 342 : Lucas v. Heaton, 1 Ind. 264; Ellison v. Dove, 8 Blackf. 571; Zehner v. Dale, 25 Ind. 433; Williams v. Jones, 12 id. 561 ; Young V. Mertens, 27 Md. 114; Hall v. Pierce. 4 W. Va. 107; Springer v. Berry, 47 Me. 330; Hall v. O'Hanlan, 1 Brev. 471; Clifton v. Newsom, 1 Jones' L. 108; Haskell v. McHenry, 4 Cal. 411 ; Nixon V. Nixon, 21 Ohio St. 114; BajT V. Logan, 5 Harr. (Del.) 52 ; Hewitt V. Miller, 61 Barb. 567 ; Rickey v.Teubroeck, 63 Mo. 563 ; McNaughter V. Cassally, 4 McLean, 530; Chap- man T. Cociuau, 30 Wis 295; Mar- shall V. Piles, 3 Bush, 249; Camp v. Hamlin, 55 Ga. 259; Sanborn v. Bene- dict, 78 111. £09 ; Pittsburgh, etc. R. Co. V. Heck, 50 lud. 303 ; Schnebly v. Shirtcliff, 7 Phila. 2.36; McNaught V. Dodson, 49 III. 446; Gibbons v. United States, 8 Wall. 269. 1 Whitney v. Boardmau, 118 Mass. 242 ; McEachron v. Randies, 34 Barb. 301 ; Williams v. Godwin, 4 Sneed, 558; Rickey v. Tenbroeck, 63 Mo. 563; Saladin v. Mitchell, 45 111. 79; Barr v. Logan, 5 Harr. (Del.) 52 ; Pol- len V. Le Roy, 30 N. Y. 549 ; Cook v. Brandies, 3 Met. (Ky.) 555; Dustan T. McAndrew, 44 N. Y. 72 ; McClure V. Williams, 5 Sneed, 718 ; Jackson v. Covert, 5 Wend. 139; Young v. Mer- tens, 27 Md. 114; Hall v. O'Hanlan, 1 Brev. 471; Lewis v. Greider, 49 Barb. 606; Lamkin v. Crawford, 8 Ala. 153; Camp v. Hamlin, 55 Ga. 259; Ullman v. Kent, 60 111. 271; Hughes' Case. 4 Ct. of Cls. 64 : Bell V. Off utt, 10 Bush, 632 ; Van Horn v. Rucker. 33 Mo. 391 ; Bigelow v. Legg, 102 N. Y. 652 ; Anderson v. Frank, 45 Mo. App. 482 ; Tufts v. Grever, 83 Me. 407 ; Woods v. Cramer, 34 S. C. 508. 2 Waples V. Overaker, 77 Texas, 7 ; Ullman v. Kent, 60 111. 273. 1^34 VENDOR AND VENDEE PERSONAL PROPERTY. [§ 647. incurred.^ After notice of the vendor's intention to resell, no notice of the time and place of the resale is required to be given, but it must be made according to the usage of trade.^ If at tlie time fixed for its delivery there is a market for the property the vendor cannot keep it for a rise in price at the vendee's expense.^ If the net ])roceeds of tlie sale are less than the contract price, he may recover the deficiency in ar. action on the contract.'* The vendor may, if necessary, trans- port the goods to another place at the expense of the vendee, for a market.' The place of resale is not necessarilj'- restricted to that where by the contract the vendees Avere bound to re- ceive the property; the vendor is authorized to exercise a reasonable discretion as to the place of sale, and may also, at the expense of the vendee, insure the property.^ If th<^re are several modes of sale open to the vendor he may ado])t such as his judgment approves; if he uses diligence in pursuing the one adopted nothing more can be required of him," Unless it is absolutely necessary he is not bound to incur any ex- pense involving an advance of money.^ If the title to the 1 Pollen V. LeRov, 30 N. Y. 549: Tuitan V. Mc Andrew, 44 id. 72; Westfall V. Peacock, G3 Barb. 209 ; Crooke v. Moore, 1 Sandf. 297 ; Bag- ley V. Findlay, 82 111. 524 ; Young v. Mertens, 27 Md. 114; Chapman v. Larin, 4. Can. Sup. Ct. 349. •-' Id. In Hickock v. Hoyt, 33 Conn. 553, it was held that where the title to property passes by a sale, and the vendor retains the possession as se- curity for the purchase-money, and finally sells to other parties for a less price, and seeks to recover the differ- ence from the first purchaser, it is necessary that specific notice of the time and place of sale should be given. But in a case where the con- tract is executory, no such notice is necessary. ^Thurman v. Wilson, 7 111. App. 312. * Id. ; Springer v. Berry, 47 Me. 330; Williams v. Godwin, 4 Sneed, 557; Barr v. Logan, 5 Harr. (Del.) 52 ; Hall v. O'Hanlan, 1 Brev. 471 Jackson v. Covert, 5 Wend. 139 Boorman v. Nash, 9 B. & C. 145 MacLean v. Dunn, 4Bing. 722; Sands v. Taylor, 5 Johns. 395 ; McClure v. Williams, 5 Sneed, 718. sSawyear v. Dean, 114 N. Y. 481 ; White V. Matador Land & C. Co.. 75 Texas, 465 : Jackson v. Covert. 5 Wend. 139; Lewis v. Greider, 51 N. Y. 231 ; S. C, 49 Barb. 606, Contra, Chapman v, Ingram, 30 Wis, 295 ; Rickey v. Tenbroeck, 03 Mo. 563. •> Lewis v. Greider, supra; Waples V, Overaker, 77 Texas, 7. ■^ If the sale is made at a general market for which the purchaser in- tended the property, he cannot ob- ject because it was not made at a nearer and less important market place. Anderson v. Frank, 42 Mo. App. 482. 8 Wonderly v. Holmes Lumber Co., 56 Mich, 412. § 6i8.] VENDOR AGAINST VENDEE. 1435 property has passed the vendor is not bound to resell it; it may be abandoned and the contract price be recovered.' If the refusal to accept a portion of the property is unauthor- ized the vendor may recover the market value of that ac- cepted without deduction for the non-delivery of the remain- der, which is excused by the vendee's act.^ § 648. Notice l)y vendee of refusal to accept goods. It is not competent for the purchaser of property which is to be delivered in the future to impose upon the vendor the legal duty to take such steps with reference to the subject of the contract, as by at once reselling the property on the market in the buyer's account or making a forward contract for the p rchase of other property of like amount, to be delivered at the same time, as shall most effectually mitigate the damages to be paid by the buyer in consequence of his refusal, though no loss would thereby result to the vendor. He is not bound to act upon a notice given by the vendee of his intention not to perform the contract. He may so act and treat the con- tract as at an end, and immediately bring an action for the breach; or he may await the time for its performance and hold the buyer responsible for all the consequences of his breach. If he does this, he perpetuates the contract for the latter's benefit as well as his own. If he exercises his option to terminate it, it will be his duty to make a resale of the property within a reasonable time for the buyer's benefit.^ If the purchaser's notice to the vendor has been acted upon by the latter it cannot be retracted if he has changed his posi- tion.* It is a well established rule that a party to a contract which has been broken by the other party must so conduct his affairs after he has knowledge of the breach as to lessen the damage he may sustain as the result of it; and to the ex- tent that loss can thus be avoided the vendee will be relieved 1 Hunter v, Wetsell, 84 N. Y. 549. Boorman v. Nash. 9 B. «& C. 145 ; 2 Smith V. Keith & P. Coal Co., 36 Cort v. Ambergate, etc. Ry. Co.. 17 Mo. App. 567. Q. B. 127 ; Ripley v. McClure, 4 Exch. » Leigh V. Patterson, 8 Taunt. 540 ; 345 ; Reid v. Haskins, 6 E. & B. 953 ; Philipots V. Evans, 5 M. & W. 475 ; Clement, etc. Co. v. Meserole, 107 Ripley v. McClure, 4 Exch. 359 ; Ka- Mass. 3G3 ; Smith v. Lewis, 25 Conn, dish V. Young, 108 111. 170; Wind- 024; Haines v. Tucker. 50 N. H. 307. miiller v. Pope, 107 N. Y. 674. See * Windmuller v. Pope, 107 N. Y. Stewart v. Cauty, 8 M. & W. 160 ; 674. 1436 VENDOR AND VENDEE PERSONAL PROPERTY. [§G19. from liability.^ Thus, where the defendant contracted with [362] the plaintiff for a quantity of potatoes to be delivered during the ensuing winter, as called for by the defendant, and before they were all purchased by the plaintiff the defendant notified him not to purchase any more until further advices, it was held that this order was not a rescission of the con- tract, but a refusal to receive any more tlian the potatoes al- ready purchased, and that the measure of damages as to the residue to be purchased when the direction was received was the difference between the price the defendant had stipulated to pay, and what it would cost the plaintiff to procure and deliver the potatoes according to the contract. The general principle was stated that in executory contracts a party has the power to stop the performance on the other side by an explicit order to that effect, by subjecting himself to such damages as will compensate the other party for being stopjied at that point or stage in the execution of the contract.^ The vendor in that case had no right, after receiving the direction to buy no more, to proceed w^ith his purchases, and after- wards recover for loss sustained on the potatoes by frost and rot. His damages as to such after-purchases must be limited to the difference between the agreed price and what it would cost the plaintiff to procure and deliver them.' § 649. Rule of damages where articles made to order. The rule which measures the vendor's damage on the refusal to accept goods contracted for by the difference between the contract price and the market value at the time and place of the breach with interest, some courts have said, will not al- Avays afford compensation when there is a breach of a con- tract to accept an article which has been manufactured after a prescribed measure, pattern or style. The measure of dam- ages in such a case is held to be the full amount of the con- tract price. The reason for the distinction was thus stated by Bunn, J., in a case where a water-wheel so made was not ac- cepted: There is presumably no certain market value for goods made according to such a specific order, and the manu- facturer having done all that is required of him to entitle him 1 Vol. 1, § 88. 3 Dauforth v. Walker, 40 Vt 357. 2Danforth v. Walker, 37 Vt. 239; Collins V. Delaporte, 115 Mass. 159. § 64:9.] VENDOR AGAINST VENDEE. 1437 to the full benefit of his contract, cannot, with any certainty, have this full benefit in any other way. If he was required to resell an article of this kind before he could maintain his action, he might be compelled to wait until the vendee should become irresponsible, and the article might have no marl^et value or no appreciable value at all for any person except the one ordering it. In such a case it seems more just and equi- table that the loss and inconvenience of having a cumbrous article like the one in suit on hand for sale, and the chances of finding a purchaser should fall upon the party who is in fault in not fulfilling his contract rather than upon the party who is in no fault and is claiming nothing but just what the other party agreed to do.^ The same principle applies where the purchaser fails to give directions for the completion of an article which cannot be finished without them, and then re- fuses to take it. The manufacturer is not bound to complete it, make a tender of it, and on the purchaser's refusal toaccejit sell it in the market. He may recover the difference between the cost of making the article and the price agreed to be paid for it,2 If an order for an article to be manufactured at a specified price is countermanded after labor has been put upon it and materials used in its construction, but before its com- pletion, so long as the materials remain in the manufacturer's hands he cannot recover on the common counts for their value, nor the cost of the labor. He must sue on the special contract and claim his damages for its breach or for beins: wrongfully prevented from completing it. In such a case the defendant has no interest in the materials, and no concern 1 Bookwalter v. Clark, 11 Biss. 126 ; was made in the name of tlie vendee. S. C, 10 Fed. Rep. 793 ; Black River Thompson v. Alger, 12 Met 428. Lumber Co. v. Warner, 93 Mo. 374; -Hinckley v. Pittsburgh Bessemer Shawhan v. Van Nest, 25 Ohio St. Steel Co.. 121 U. S. 264; S. C, 17 Fed. iQO; Smith v. Wheeler, 7 Ore. 49; Rep. 584; Black River Lumber Co. v. BtiUentine v. Robinson, 46 Pa. St. Warner, 93 Mo. 374 ; Crescent Manuf. 177 ; Scott V. Kittaning Coal Co., 89 Co. v. Nelson Manuf. Co., 100 id. 325 ; id. 231 ; Muskegon Co. v. Keystone Cort v. Ambergate & N. Ry. Co., 17 Manuf. Co., 135 id. 132; Bement v. Q. B. 127; Knowlton v. Oliver, 28 Smith, 15 Wend. 493 ; Dustan v. Mc- Fed. Rep. 516 ; Tufts v. Lawrence, 77 Andrew, 44 N. Y. 72. But see latter Texas, 526; Dolph v. Troy Laundry part of this section. Machine Co., 28 Fed. Rep. 553 ; Oly- The rule has been applied in Massa- phant v. St. Louis Ore & Steel Co., chusetts where a certificate of stock id. 729. 143S VENDOR AND VENDEE PERSONAL PROPERTY. [§ C50. with the amount of labor; the plaintiffs labor is upon his own materials to increase their value for the purpose of effecting a sale to the defendant of the article ordered when completed. The law, however, will not compel the plaintiff, after such countermand, to go on and complete the article ordered be- fore he can recover pay for what he has done, but he may treat the countermand and refusal as a prevention of perform- [363] ance on his part, and sue upon the contract on that ground. The value of the labor expended on the materials is not the proper criterion of the damages; for it may have en- hanced their worth to the plaintiff; if so, he is to that extent compensated; but it may have diminished their value, and in that event payment for the labor will not be adequate com- pensation. Whether the labor has enhanced or diminished the value of the materials is a question of fact for the jury in esti- mating the damages.^ In Maine acquiescence in the rule of damages stated in the first proposition in this section is with- held on the theory that the title to the property remains in the vendor until acceptance by the vendee. In answer to the contention that the difference between the contract price and the price which may be realized on a resale is inadequate to afford compensation because the manufactured article may be of little value to any one beside the vendee, it is observed that the less the goods are worth to sell in the market the more the plaintiff recovers, and if they are worth nothing at all, then he recovers the full contract price.- § 650. Yendee's right to return property. The recovery of damages by a vendor against a vendee for not p^cepting and paying for goods contracted for proceeds on the ground that the former has been ready to do his part, and has offered performance of the precedent or concurrent condition of de- livering goods which will answer the requirements of the contract in all respects — in time, quality and quantity, and confer a good title.' A want of punctuality may be waived by accepting for inspection of quality after the date fixed 1 Hosmer v. "Wilson, 7 Mich. 294. 595; Baker v. Higging, 21 N. Y. 397; See Chicago v. Greer, 9 Wall. 726. Newberrj' v. Furnival, 46 How. Pr. 2 Tufts V. Grewer, 83 Me. 407. 139; Byers v. Bonsall, 3 Pittsb. 482; 3 Kirkpatrick v. Alexander, 44 Ind. Bell v. Offutt, 10 Bush, 632. § 050.] VENDOR AGAINST VENDEE. 1439 for delivery,' and afterwards rejecting the goods on other grounds. In a contract for the sale of goods by sample the seller agrees to deliver, and the buyer to accept, goods of the same kind and quality as the sample. The identity of those sold in kind, condition and quality with the sample is of the essence of the contract.^ In such cases it is the privilege of the vendee to decline and return the goods if they are found not to correspond with it.' "Where the vendor delivers prop- erty on an executory contract which requires a particular quality or description, and the vendee has not had an oppor- tunity to examine it, he may receive and retain it sutliciently long to make a fair examination, and, if found substantially inferior to that described in the contract, he ma}^, within a reasonable time, return it to the vendor and refuse to accept it.* He may decline to receive it if not conformable to [36-t] the contract, by being superior to or otherwise different from the goods described therein.-^ If the vendee fails to give no- tice within a reasonable time that he declines to receive the goods because not conformable to the contract, or if he exer- cises ownership over them, as by selling part, he cannot after- wards repudiate the contract or refuse the goods.^ If those In Kidd v. Belden, 29 Barb. 266, it appeared that the plaintiff had man- ufactured and put into the defend- ant's steamboat a boiler, engines and other machinery, under a contract by which he was to be paid a certain specified price, a portion of which was to be secured by a chattel mort- gage upon the property, to be exe- cuted by the defendant when the plaintiff had completed his contract After the engine and boiler had been placed and partially fastened in the boat, but before the work was coni- pleted or ready to be delivered, the defendant clandestinely went off with the boat to Canada, and, on his re- turn, refused either to execute the mortgage, pay for the machinery or permit the plaintiff to remove it In replevin by the plaintiff, the jury having found that there had been no absolute and unconditional delivery 1 Newberry v. Furnival, 46 How. Pr. 139. 2 Gunther v. Atwell, 19 Md. 157 ; Young V. Cole, 3 Bing. N. C. 724; Mondel v. Steel, 9 M. & W. 858, 871 ; Beirne v. Dord, 5 N. Y. 95 ; Hargous V. Stone, id. 73; Waring v. Mason, 18 Wend. 425 : 1 Smith's Lead. Cas. (oth ed.) 256 et seq. 3 Id. ; Field v. Kinnear, 4 Kan. 476 ; Beebee v. Robert 12 Wend. 413; Brantley v. Thomas, 22 Tex. 270; Bradford v. Manly, 13 Mass. 139. * Wolf V. Dietszch, 75 111. 205 ; Haase V. Nonnemacher, 21 Minn. 486 ; Knob- lauch V. Kronschnabel, 18 id. 300; Cahen v. Piatt 40 N. Y. Super. Ct. 483 ; NeafHe v. Hart 4 Lans. 4. 5 Newmarket Iron F. v. Harvey, 23 N. H. 395. 6McFadden v. Wetherbee, 63 Mich. 390; Watkins v. Paine, 57 Ga. 50; Wolf V. Dietszch, 75 111. 205. 1440 vp:ndor and vendee — personal peoperty. [§ 051. sent upon a contract or order, when received, are found to be inferior, or otherwise not conformable to the contract, and the vendee rejects them after havint^ paid freiglit, or in- curred other expenses in obtaining the temporary possession, he has a claim on the vendor for reimbursement.^ And if they are of a kind which must be used to ascertain their quality and a test proves that they are inferior to those or- dered, the purchaser cannot be charged for the quantit}^ nec- essarily used for that purpose if he promj)tly rejects the re- mainder on being assured of that fact.^ Section 2. vendee against vendor. § 651. Becovery for non-delivery of property contracted [365] for. The breach of contract now to be considered is that of a vendor who has violated his executory agreement to sell goods or other propert}^ of a personal nature by not deliv- ering it. The same rule or measure of damages will not apply where there is a sale of specific property and the vendor sub- sequently refuses to deliver it. The general rule is, where payment and delivery are concurrent acts, and the vendor re- fuses to deliver, that the vendee is entitled to recover as dam- of the machinery to defendant, nor and held to have accepted the job as such an annexation of it that it could finished, and to have waived all ob- not be removed without injury to jection on account of defects. It the boat, it was held that plaintiff had was held that the defendant could not lost his title to the property, but not be allowed to show, in mitigation might maintain the action. It was of damages, what would be the value also held that in estimating the dam- of the machinery detaclied from the age the plaintiff had sustained the boat. The plaintiff's labor in putting jury were to be governed by the value it into the boat entered into and of the machinery as established by formed part of the value to be as- the parties in their contract, so far as sessed by the jury, it could be a[)plied ; and that its value ' Rucker v. Donovan, 13 Kan. 251 ; was to be assessed in the condition it Coit v. Schwartz, 29 id. 314 ; Phila- was at the time of the demand. The delphia Wiiiting Co. v. Detroit White defendant was not permitted to show, Lead Works, 58 Mich. 29 (also cost of in mitigation of damages, that the insurance) ; Barnett v. Terry, 42 Ga. machinery was not placed in the 283. boat in a workmanlike manner. He 2 Philadelphia WJiiting Co. v. De- was concluded by his election to take troit White Lead Works, 58 Midi. 29. the work in its unfinished condition, § 651.] VENDEE AGAINST VENDOR. 1441 ages the difference between the contract price and the market vahie of the goods at the time and place appointed for deHv- ery and interest.^ If earnest money paid was to be applied iCole V. Cheovenda, 4 Colo. 17; Capen v. De Steiger Glass Co., 105 111. 185; Young v. Cureton, 87 Ala. 727 ; Trunkey v. Hedstrom, 131 111. 204 ; Buckley v. Holmes, 19 111. App. 530; Wire v. Foster, 62 Iowa, 114; Osgood T. Bauder, 75 id. 550; Black V. De Camp, 78 id. 718; Faulkner v. Closter. 79 id. 15 ; Gray v. Hall, 29 Kan. 704 ; Crawford v. Geiser Manuf. Co., 88 N. C. 554; West Republic Mining Co. v. Jones, 108 Pa. St. 55 ; Ullman v. Babcock, 63 Texas. 68; Koch V. Godshaw, 12 Bush. 318: Harris v. Rodgers. 6 Heisk. 626 ; Piuckney v. Dambmann, 72 Md. 173: Coit V. Schwartz, 29 Kan. 344 ; Rahm V, Deig, 121 Ind. 283; Sweeney v. Jamieson, 2 Wash. Ty. 254 ; Bush v. Holmes, 53 Me. 417 ; Furlong v. Pol- Jeys, 30 id. 491 ; Smith v. Berry, 18 id. 122; Warren v. Wheeler, 21 id. 484 ; Berry v. Dwiuel, 44 id. 255 ; Randon v. Barton, 4 Tex. 289; Kemp V. Knickerbocker Ice Co., 51 How. Pr. 31; Norton v. Wales, 1 Robt. 561 ; Williamson v. Dillon. 1 H. & G. 444; Duncan v. McMahon, 18 Tex. 597 ; Fessler v. Love, 48 Pa. St. 407 ; Gilpin V, Consequa, 3 Wash. C. C. 184; Kipp V. Wiles, 3 Sandf. 585; Bartlett v. Blanchard, 13 Gray. 429 ; Clark V. Pinney. 7 Cow. 681 ; Currie V. White, 7 Robt. 637 ; Northrup v. Cook, 39 Mo. 208 ; Somers v. Wright, 115 Mass. 292; Worthen v. Wilmot, 30 Vt. 555 ; Doak v. Snapp, 1 Cold. 180 ; Blackwood v. Brennan, 1 Harp. 144 ; Hinde v. Liddell, 32 L. T. (N. S.) 449; L. R. 10 Q. B. 265; Paine v. Sherwood, 21 Minn. 225; Miles v. Miller, 12 Bush, 184; Giles v. Morn- son, 50 Barb. 50; Yorke v. Ver Planck, 65 id. 316; Brown v. Muller, L. R. 7 Exch. 319; Pendergast v. Vol. 11 — 91 Reed, 29 Md. 398 ; Camp v. Hamlin, 55 Ga. 259 : Dana v. Fiedler, 12 N. Y. 40 ; Watrous v. Bates, 5 Up. Can. C. P. 366 ; Baker v. John, 2 Robt. 570 ; Woodworth v. Curtis, 7 Wend. 112; Ruiz V. Norton, 4 Cal. 355 ; Crosby v. Watkins, 12 id. 85 ; Burnham v. Roberts, 70 111, 19 ; Davis v. Shields, 24 Wend. 322 ; Sanborn v, Benedict, 78 111. 309; Duncan v. Post, 3 Cal. 373 ; Pittsburg, etc. Co. v. Heck, 50 Ind. 303 ; Harrolson v. Stein, 50 Ala, 347 ; Hill v. Smith, 32 Vt. 433 ; Ham- ilton v. Ganyard, 34 Barb. 204 ; Par- sons V. Sutton, 66 N. Y. 92 ; Stewart V. Power, 12 Kan. 596; Boies v. Vin- cent. 24 Iowa, 387; Clark v. Daley, 20 Barb. 42; Havemeyer v. Cunning- ham, 35 Barb. 515; Brent v. Rich- ards, 2 Gratt 539; Meserve v, - Ammidon, 109 Mass. 415; Shepherd v. Hampton, 3 Wheat 200; Fishill v. Winans, 38 Barb. 228 ; Dey v. Dox, 9 Wend. 129 : Gregory v. McDowell, 8 id. 435 ; Boorman v. Nash, 9 B. & C. 145; Barrow v. Arnaud. 8 Q. B. 604; Valpy v. Oakeley, 16 id. 941 ; JosHng V. Irvine, 6 H. & N. 512; Chinery v. Viall, 5 id. 288 ; Griffiths V. Perry, 1 E. & E. 680 ; Peterson v. Ayre, 13 C. B. 353; Donald v. Hodge, 5 Hay w. 85 ; Connell v. McClean, 6 Harr. & J. 297; Kitzinger v. San- born, 70 111. 146; Wilson v. Lanca- shire, etc. Ry. Co., 9 C. B. (N. S.) 632 ; Orr V. Bigelow, 14 N. Y. 556 ; Stan- ton V, Small, 3 Sandf. 230 ; Beals v. Terry, 2 id. 127; Lattin v. Davis, Hill & Denio, 9; Bailey v. Clay, 4 Rand. 3 16 ; I\Iallory v. Lord, 29 Barb. 454 ; Cahen v. Piatt, 69 N. Y. 348 ; Brackett v. McNair, 14 Johns. 170; Gordon v. Norris, 49 N. H. 376 ; Stev- ens V. Lyford, 7 id. 360 ; West v. Pritchard, 19 Conn. 212; Shaw v. 1442 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 651. to the purchase price it may be recovered,' and so may money j)aid to a third person in pursuance of the contract.^ [366] If a contract is for a cargo, or for all the goods of a specified description in a given vessel, the vendee is not en- titled to recover damages on the basis of what they are worth in broken parcels.' ISTor will this general standard of damages be departed from though one or both of the parties were mis- taken in respect to material facts affecting the market price. Thus, in an action against a vendor for not delivering goods the court say : " The relation of buyer and seller is not a con- fidential one, and each of the parties is supposed to judge of his ability to perform his part for himself;" declarations of the plaintiff that he knew at the time of making the contract that the article contracted for could not be procured were not admissible in evidence to mitigate the damatres. A contract to perform an impossible thing may be void ; but it is never impossible to procure and deliver an article of commerce which may be had in the market in some quarter of the world.* So, where alcohol was contracted to be delivered on board a vessel under the tax law from August 20 to August 31, 1862, duty paid at a fixed price, the subsequent suspension, until after the time fixed for delivery, of an act of congress which practically rendered alcohol sold for exportation duty free did not relieve the vendor from the obligation to make delivery according to his contract, although such suspension was not contemplated by the parties.^ But where goods are sold in close packages, [367] and there is a mutual mistake of the parties as to the quantity, it will be corrected in an action between them on the basis of the purchase price.^ If a purchaser for a price below the market agrees that should he desire to sell the property he will sell it back to his vendor at the same price, and afterwards sells to another for more than the market price, he will be liable on his agreement for the difference between the amount he paid and the sum he Nudd, 8 Pick. 9; Quarles v. George, ZBullard v. Stone, 67 Cal. 477. 23 id. 400 ; Davis v. Richardson, 1 3 Duncan v. Post. 3 Cal. 373. Bay, 105; Whitmore v. Coates, 14 * Myers v. Drake, 10 Watts, 110. Mo. 9. See Harrison v. Ciiarlton, 37 ^ Baker v. Johnson, 2 Robt. 570. Iowa, 134. fiHargous v. Ablon, 3 Denio, 406. 1 Joyce V. Adams, 8 N. Y. 291 ; Gossard v. Woods, 98 Ind. 195. § 652.] VENDEE AGAINST VENDOE. 1J43 sold for.' This rule of damages, the difference between tlio contract and the market })rice, is founded on the consideration that the articles witliheld are wortli the market price to the vendor, and the vendee may immediately after the breach of the contract go into the market and supply himself at the market price, and having done so, he is in as good condition as if the contract had been performed.^ If the property can- not be purchased in the market where the delivery was to be made the vendee may go in to the nearest market and buy, and add the cost of transportation to the purchase price.' § 653. Tlie same subject. The agreement may relate to property which may not be found in the market, and can only be produced at an expense greatly above the contract price. In such a case it has been held that if the course pursued by the purchaser in obtaining other like property, as timber for example, was the only way it could be obtained; or was a reasonable and prudent way of obtaining it, irrespective of any special use or exigence, the difference between the con- tract price and the higher cost of the property thus obtained may be recovered by the purchaser as damages naturally aris- ing from the breach itself.^ The recovery is governed [3()8] by the market price, if there be one, although it may be en- hanced b}'- the fact that the article is patented, and the right to sell held exclusively by the vendor. The vendee has a right 1 Brent v. Eichards, 3 Gratt. 539; and what it would have cost the Duncan v. McMahon, 18 Tex. 597. plaintiff to procure, at the place of 2Frink v. Tatman, 36 Ind. 2.j9; delivery and at the time or times Beard v. Straw, 38 id. 128 ; Dana v, when it was reasonable and proper Fiedler, 13 N. Y. 40 ; Furlong v. to supply themselves, lumber of the PoUeys, 30 Me. 493 ; Deere v. Lewis, kind and quantity they were to re- 51 111. 254 ; Brandt v. Bowlby. 3 B. & ceive on the contract ; and, if it were Ad. 933 ; Wire v. Foster, 63 Iowa, impracticable for them thus to sup- 114. See Alder v. Keighley, 15 M. & ply themselves, except at retail rates, W. 117. they were entitled to demand those An instruction to the jury in an rates of the defendants. Haskell v. action for breach of a contract to sell Hunter, 33 Mich. 305. and deliver lumber that the proper ^ Capen v. De Steiger Glass Co., measure of damages is the difference 105 111. 185 ; Vickery v. McCormick, between the contract price of the 117 Ind. 594. lumber not delivered and the whole- * Paine v. Sherwood, 81 Minn. 225; sale price at the place of delivery is S. C, 19 id. 315; Hinde v. Liddell, erroneous. The true measure is the L. R. 10 Q. B, 265. difference between the contract price 14i4: VENDOR AND VENDEE — PERSONAL PROPERTY. [§ G52. to the benefit of the patent in wliatever degree it entered into the market value oi the article.^ Where the contract is for the sale of property which has no market value it is presumed that the parties have bargained with that fact in view; if the vendee cannot supply himself in the market lie may recover the amount lost by reason of not receiving an advance or profit through agreements which he has made in reliance upon the fulfillment by the vendor of his contract.^ If resort is nec- essarily had to an inferior article for use in manufacturing in order to fill contracts, the resulting damnge may be recovered, so far as it proceeds from experiments which it was prudent to make.^ Knowledge of the fact that the article sold is not obtainable has the same effect to make the vendor liable for consequential losses as his knowledge of pre-existing contracts made by the vendee has to make him so liable when the mar- ket furnishes the needed article. The amount reasonably ex- pended by a purchaser to avert the loss impending because of the non-delivery of goods which are not procurable in the market may be recovered.* Thus, where the defendant had contracted to supply to the plaintiff two thousand pieces of gray shirting to be delivered on the 20th day of October cer- tain, at so much per piece, and was informed that the property was intended for shipment, and shortly before the 20th of October notified the plaintiff that he would not be able to complete his contract, whereupon the plaintiff endeavored to get the shirting elsewhere, but, being unable to do so, in order to ship according to his contract with his sub-vendee, procured two thousand pieces of other shirting of a somewhat superior quality at an increase of price, the sub-vendee, having ac- cepted the substitute, but paying no advance in price to the plaintiff, he sued to recover against the defendant, for the breach of his contract, the difference between what he paid for the substituted shirting and the price contracted to be paid to him. It appeared that the shirting which the plaintiff bought was the nearest in quality and price that could be got by the 20th of October, and it was held that, there being no J Frink v. Tatruau, 36 Ind. 259. 520 ; Culin v. Woodbury Glass Works, ■-i McKay v. Riley, 65 Cal. 623; 108 Pa. St. 220. Loescher v. Deisterberg, 26 111. App. 3 McHose v. Fulraer, 73 Pa. St 365. * Vol 1, § 89. § 652. J VENDEE AGAINST VENDOR. 1445 market for the article contracted for, the measure of damages was the value at the time of the breach, and the plaintiff, hav- ing done the best thin^^ he could, was entitled to recover the difference in the price.' In Barker v. Mann,' after sale of si)e- cific goods, the vendors refused to make delivery and gave immediate notice to the vendee to that effect. The court say, by Williams, C. J.: "In this case the appellants promptly in- formed the appellees of their intention to abandon the sale, and there is no reason assigned or appearing why they could not procure a supply of the same articles within a few [361)] days from other vendors in the L. market [where the transac- tion took place]. Had they done so, their necessary expense, together with their time and trouble, and any possible advance in the price of such goods at L. which they would have had to pay, should be regarded as elements making up their dam- ages." ^ A vendee is not bound to go into a foreign market and procure other goods until the vendor has given him notice that he will not fulfill his contract.^ Where the general rule concerning the market price applies the jury cannot give damages in excess of it, though the re- fusal to deliver may have been made with a view to jn'ofit.^ But it is said if the price was not fixed, and appears by the evidence to have ranged between different rates, the jury may take the highest, lowest or medium rate according to the conduct of the defendant.^ It is the market price, when there 1 Hinde v. Liddell, L. R. 10 Q. B. 331. See Grand Tower Co. v. Phil- 265 ; Haskell v. Hunter, 23 Mich. 305. lips, 23 Wall. 471. 25 Bush, 672. *»Id. Hopkinson, J., vindicating 3 See Taylor v. Reed, 4 Paige, 561 ; this rule, upon a motion for a new Feehan v. Hallinan, 13 Up. Can. Q. B. trial for excessive damages, said : 440. "In assessing the damages for the It is for the defaulting seller who breach of a contract [for the sale and has given the buyer notice that he delivery of coffee], the law has estab- will not deliver to show that the lat- lished a rule for both the court and ter could have purchased the article jury, which, if it may fail sometimes in the market where the delivery to do exact justice in a particular' was to have been made. York-Draper case, affords generally as equitable M. Co. V. Lusk, 45 Kan. 182. and reasonable a rule as could be ^Cockburn V. Ashland Lumber Co., given. The damage to be recovered 54 Wis. 619; Shouse v. Neiswaanger, is to be governed by the pt-ice of the 18 Mo. App. 236. article at the time when it should ^Blydenburgh v. Welsh, 1 Baldw. have been delivered, compared with 144G VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 052. is one, at the date of the breach wliich governs in the esti- mate of diimages. "Whether the contract fixes a day for the delivery or allows a reasonable tune, delay of the vendor, al- the contract price. This rule is founded on an hypothesis, not always true in fact, perhaps not often so, and very favorable to the plaintiff, that is, that he would certainly have sold the article, if he had received it, at the advance of that day, and not have retained it subject to the con- tingency of a depression. It is also true, on the other hand, that he must be content with the price of that day, and cannot claim the benefit of a subsequent increase of value. Be- fore we inquire, from the evidence, what was the price of the coffee on the day the defendant was bound to deliver this parcel to the plaintiff, we must settle the true meaning or in- terpretation of the rule, v/hat is in- tended by the price of the article? On the one side it is contended that the plaintiff is entitled to recover so much money from the defendant as on that day would have enabled him to purchase the coffee ; to make good the contract, and put into his posses- [370] sion the article the defendant had contracted to deliver to him ; in short, to compel against him a spe- cific performance of his contract. We do not inquii'e w-hether there would be anything unjust in this rule — anything of which any one has a right to complain who has broken his engagements. But is it the rule which the law has adopted? Does it not inti'oduce a new rule and a new principle into such cases? It is the price — the market price of the article that is to furnish the measure of damages. Now, what is the price of a thing, particularly the market price? We consider it to be the value — the rate at wbich the tiling is sold. To make a market there must be buying and selling, purchase and sale. If the owner of an article holds it at a price which nobody will give for it, can that be said to be its market value? Men sometimes put fantastical prices upon their property. For reasons personal and peculiar they may rate it much above what any one would give for it. Is that its value? Further, the holders of an article, as flour for in- stance, under a false rumor, which if true would augment its value, may suspend their sales, or put a price upon it, not according to its value in the actual state of the market, or the actual circumstances which affect the market, but according to what, in their opinion, will be its market price or value provided the rumor prove to be true. In such a case it is clear that the asking price is not the worth of the thing on the given day, but what it is supposed it will be worth at a future day if the contin- gency shall happen which is to give it this additional value. To take such a price as a rule of damages is to make a defendant pay what never in truth was the value of the article, and to give the plaintiff a profit, by a breach of the contract, which he never could have made by its per- formance. The law does not intend this : it will give a full and liberal indemnity for the loss sustained by the injured party, and means to im- pose no higher penalty than this on the defaulter. " With this explanation of the rule which ))rescribes the market price of the article on the day of delivery, we must examine whether the jury in this case have executed it clearly in the verdict which they have rendered. § 652.] VENDEE AGAINST VENDOR. 1447 though by consent, but without any valid agreement for such delay which would preclude the juircluiser from bringing an action at once, does not extend the time so that an advance It is conceded by both parties that they liave calculated the coffee which the defendant was bound to deliver to the plaintiff, on the 14th of April, [371] 1825, at nineteen and three- fourths cents a pound. Does the evi- dence support this calculation or estimate for such coffee on so large a quantity on that day? Was this the buying and selling price? We feel, as the jury probably did, no inclina- tion to force the testimony in favor of the defendant; on the contrary, his unaccounted for and iniaccount- able conduct in this affair; the care- lessness, to say nothing more harsh of it, with which he disregarded a deliberate, and to him a profitable, contract, was calculated to induce the jury to go all allowable lengths against him. The reason he gave for refusing to perform his bargain with the plaintiff has been given up at the trial, and never had any solid founda- tion even in his own opinion. The ground taken for his justification or apology here, so far as appears by the evidence, did not occur to him at the time of the transaction, and of course formed no part of his mo- tive or reason for receding from his engagement. Unwilling to impute to [the vendor] a sordid design, we con- fess ourselves unable to discover the cause of his departure from the course it was so obviously his duty to pursue. If such considerations have influenced the jury, and very naturally too, in makmg up their verdict, we must not allow them to affect our judgment of the law of the case, and the application of it to the evidence. Juries may sometimes yield honestly to excitements, which judges must not feel. To correct such errors is a prominent use of the calm review of a case on a motion for a new trial. The question of market value is one so peculiarly proper for the decision of a jury that we would not oppose ourselves to their opinion upon it unless where we were assured that they have either mistaken the rule of law or contra- dicted the clear purport of the evi- dence. We inquire, then, have the jury erred on this point, and given to the plaintiff a higher rate of dam- ages than he is entitled to ; that is, have they estimated the coffee, which was the subject of the contract, at a greater value than it had in the mar- ket on the 14th of April, 1825? . . . " There was a sudden and consid- erable excitement in the coffee market on the 7th, founded on cir- cumstances and expectations which were not afterwards confirmed ; and no sales were made from that day to the 14th, inclusive, which, in our minds, show such an advance as would have raised the value [372] of this coffee to the price at which it has been estimated by the jury. Whatever prices the holders may have asked, no one was willing to give them. . . . It is enough that we think the jury have so far over- rated the value of this coffee as to support the objection of excessive damages to their verdict. It is not unlikely that they may not have exactly understood what was the meaning of the court in instructing them in the range they might take between the lowest and the highest price, as they might deem the re- fusal of the defendant to perform his contract to be wilful or inadvert- ent; proceeding from an unjust vio- 14:48 VENDOE AND VENDEE — PERSONAL PROrEKTi'. [§ G52. in the market price meanwhile can be considered in comput- ing daniayos on a failure to deliver after such delay .^ And lation of his engagement, or a con- scientious although niistaken view of the obhgatioa. While we then thought, and now think, that the jury might take such matters into their consideration in assessing the damages, we did not intend tliatthey should go out of the limits of the market price, nor take as that price whatever the holders of coffee might choose to ask for it, substituting a fictitious, unreal value wliich nobody would give, for that at which the article might be bought and sold. It has grown into a proverb that a thing is worth what it will bring, not what the caprice or speculating anticipations of its owner may in- duce liini to ask for it." Blyden- burgh V, Welsh, Baldw. 331. 1 Piucknej' v. Dambmann, 73 Md. 173; Norton v. Wales, 1 Robt. 561; Sleuter v. Wallbaum, 45 111. 43. Com- pare Hickman v. Haynes, L. R. 10 C. P. 598; Williams v. Woods, 16 Md. 220 ; Hill v. Smith, 34 Vt. 433 ; S. a, 34 id. 535 ; Ogle v. Earl Vane, L. R. 3 Q. B. 272 ; 2 id. 275. In Hickman v. Haynes, L. R 10 C. P. 598, the plaintiff agreed in writ- ing to deliver and the defendant to accept property at a specified date. The delivery was postponed pursu- ant to defendant's requests. In an action to recover for non-acceptance pursuant to the written contract the defendant contended that because of the verbal arrangement, made be- fore there was a breach of the orig- inal contract, there could not be a recovery upon the latter, on the gi'ound that there was never any readiness and willingness to make de- livery. It was held that the true effect of the verbal arrangement was that the plaintiff voluntarily with- held delivery at defendant's request; that no new contract resulted ; plaint- iff was entitled to recover damages estimated at tlie market price of the property at a reasonable time after the last request of the defendant to withhold delivery. It is said in Smith v. Snyder, 77 Va. 432, that where the time for per- forming a contract of sale is post- poned at the request of either party and is ultimately broken, the period at which the breach takes place is deferred until the final refusal to de- liver. If the property is to be furnished as needed the vendee may go into the market and supply himself as his necessities may require unless it is shown that he might have con- tracted for deliveries according to the vendor's contract. Long v. Conk- lin. 75 111. 32. If no time is fixed for delivery the market value will be estimated as of the time of the refusal to deliver. Guice V. Crenshaw, 60 Texas, 344. And so if the delivery has been post- i:)oned from time to time. Roberts V. Benjamin, 124 U. S. 64. Where the delivery is to be made on or about a stated time the market price within a reasonable time after the date named governs. Kipp v. Wiles, 3 Sandf. 585. If the delivery is made in instal- ments, but not according to the con- tract, and the property is received without protest or inducement, the market price will be determined as of the dates the shijiments were re- ceived. West Republic Mining Co. v. Jones, 108 Pa. St. 55. Growing crops are deliverable at their maturity (Smock v. Smock, 37 Mo. A pp. 56); or when they can be G53.] VENDEE AGAINST VENDOR. 1440 the market value at the pkice of delivery is that which [373] must fix the measure oi damages.^ § 653. Same subject. In the absence of a market at that place tiic value there is to be ascertained ; this may be done by proving the market price at the nearest point where the goods of the quantity in question could be bought or sold, with such addition or deduction of the cost of transportation as will be necessary to determine the value at the place of de- livery depending on its relation to the controlling market of sale.^ For the purpose of showing the plaintiff's loss from non-fulfillment of the contract, he is not confined to any par- ticular species of evidence to prove the value of the property at the place of delivery. He may show it by the market price there, if there have been sales enough to make such a price ; or he may show its value at the market where such commodities are usually sent for sale, and the cost of trans- portation from the place of deliver}^' There may be a custom Johnson v. Allen, 78 Ala. 387 ; Barry V. Cavanagh, 127 Mass. 394 ; Beiry V, Dwinel, 44 Me. 2o5 ; Furlong v. Polleys. 30 id. 491 ; Washington Ice Co. V. Webster, 68 id. 463 ; Rice v. Manley, 66 N. Y. 82 ; Harris v. Pan- ama R. Co., 58 id. 660; Gregory v. McDowell, 8 Wend. 435 ; McHose v. Fuhner, 73 Pa. St. 365. * McDonald v. Unaka Timber Co.. 88 Tenn. 38; Simons v. Ypsilanti Paper Co., 77 Mich. 185 ; Stevens v. Lyford, 7 N. H. 360; Grand Tower Co. V. Phillips, 23 Wall. 471 ; Hanson V. Lawson, 19 Kan. 201 ; Hazel ton Coal Co. V. Buck Mt. Coal Co., 57 Pa. St. 301; Sellar v. Clelland, 2 Colo. 532; Wemple v. Stewart, 22 Barb. 154; Muller v. Eno, 14 N. Y. 597: Durst V. Burton, 37 id. 167. If there is no general market in the place of delivery for raw material bought for manufacturing purposes, and the cost of transportation from the place where there is such a mar- ket will largely exceed the contract price, the market value may be ar- rived at by deducting the cost of harvested with ordinary diligence. Harris v. Rodgers, 6 Heisk. 626. 1 Myer v. Wheeler, 65 Iowa, 390 ; Merritt v. Witticli, 20 Fla. 27 ; Adams v. Sullivan, 100 Ind. 8 ; McCormick V. Jensen, 29 Neb. 102 ; Phelps v. McGee, 18 111. 155 ; Deere v. Lewis, 51 id. 254 ; Barker v. Mann, 5 Bush, 672; McKenney v. Haines, 63 Me. 74 ; Young v. Lloyd, 65 Pa. St 199 ; Hill v. Canfield, 56 id. 454; Gregory V. McDowell, 8 Wend. 435; Grand Tower Co. v, Phillips, 23 Wall. 471. Evidence as to the market price need not be restricted to property equal in quantity to that in question. It is not of substantial importance whether the supply is obtained from one or repeated pui'chases. Faulk- ner v. Closter, 79 Iowa, 15. Expenses incurred by the vendee in sending an agent to the vendor on account of the' purchase are not recoverable. Crawford v. Geiser Manuf. Co., 88 N. C. 554. 2 Capen v, De Steiger Glass Co., 105 111. 185 ; White v. Matador Land Co., 75 Texas, 465, quoting the text; 1450 VENDOK AND VENDEE — PERSONAL PROPEEIT. [§ 053. of a particuiar trade so long and well established that the parties may be presumed to have contracted with that in view. If according to sucli a custom the damages are meas- ured by the market price at the place of shipment the courts will give it effect.' If the vendor knows when he makes his contract that the property is to be sold in another market his liability is measured by adding to the contract price at the agreed time and place of delivery the cost of transporting the property to such market, less the price there at the time it would have reached its destination if there had been no breach.'^ Where the inquiry is properly confined to the ascertainment of the actual value at the place and time of delivery, it is not admissible to inquire as to the probable effect of adding the goods in question to the quantity in market;^ nor of the [374] plaintiff's going into the market to buy goods of the kind and in the quantity contracted for and not delivered.* If the market is fluctuating, and especially if it be raised or depressed by transient causes, or by interested and illegiti- mate combinations, for temporary, special and selfish objects, independently of the influences of lawful commerce, the mar- ket price on the precise day of delivery will not necessarily manufactnriug aud of such material at once upon the market. A suflS- from the market value of the manu- cient answer to ah these exceptions factured article. Equitable Gas Light is that they are founded upon an at- Co. V. Baltimore Coal Tar & Manuf. tempt to substitute a hypothetical Co., 65 Md. 73. market value for the actual market 1 Haas V. Hudmon, 83 Ala. 174. value. They call upon the jury to 2 Cockburn v. Ashland Lumber Co., speculate as to the consequences 54 Wis. 619; Hendrie v. Neelon, 12 which would have resulted to the Ont. App. 41 : S. C, 3 Ont. 603 ; Louis plaintiff if the defendant had per- Cook Manuf. Co. v. Randall, 62 Iowa, formed his contract. The rule of 244 : McCormick H. Co. v. Jensen, 29 damages was correctly laid down by Neb. 102. the court (Clark v. Pinney, 7 Cow. 3 Dana v. Fiedler, 12 N. Y. 40. In 681 ; Dey v. Dox, 9 Wend. 129 ; Davis this case questions to witnesses had v. Shields, 24 id. 322), and the market been excluded. Referring to them value of the article on the day of de- Johnson, J., said : " The evident ob- livery, which that rule fixes as a ject of all these inquiries was to test, requires an investigation of the show that if the defendant had per- actual condition of the market, and formed, aud the plaintiff had desired does not warrant the consideration to sell the whole quantity [one hun- of the conjectural consequences of a dred and fifty tons of madderj, the state of things which did not exist." mai-ket price would have been low- * Jemmison v. Gray, 29 Iowa, 537. ered by throwing so large a quantity § 653.] VENDEE AGAINST VENDOR. 1451 govern. The law in regulating the measure of damages con- templates a range of the entire market, and the average of prices as thus found, running through a reasonable period of time.^ Where there is a stimulated market price, created by artificial or fraudulent practices, it is not the true or only test of value. The market price being only evich^nce of value, the law adopts it as a natural inference of fact and not as a conclusive legal presumption. It stands as a criterion of value, because it is a common test of the ability to purchase the thing.^ In such cases, what is called the market price, or the quotations of the articles for a given day, is not the only evidence of value; the true value may be drawn from other sources.'' The defaulting vendor cannot be charged with more than that price merely because the vendee had a contract for re- sale at a higher price ;^ nor can he claim any mitigation where the vendee has contracted for a resale at less than the market price.^ But if the vendor sells the goods which he contracted, the party to whom they were bargained may recover on the basis of the amount the vendor has sold for.^ Where [375] the market price is less than the contract price at the date when the contract requires delivery, the vendee can suffer no actual injury ; he is, however, entitled to nominal damages.' If the vendor sells a part of the goods to another purchaser, and thus puts it out of his power to perform his contract, the vendee, if he has received none of the property, is entitled to the difference between the contract and the market price of all the goods purchased, and not merely of those which the vendor has sold to another.^ Where by the terms of a con- 1 Adams v. Sullivan, 100 Ind. 8, « Peterson v. Ayre, 13 C. B. 353; quoting the text; Smith v. Gritlith, Gainsford v. Carroll, 2 B. & C. 624. 3 Hill, 333 ; Durst V. Burton, 47 N. Y. "Rose v. Bozeman, 41 Ala. 678: 167 ; Cahen v. Piatt, 69 id. 343. Bush v. Cantield, 2 Conn. 485 ; Valpy 2Kountz V. Kirkpatrick, 72 Pa. St. v. Oakeley, 16 Q. B. 941 ; Griffiths v. 376 ; MuUer v. Eno, 14 N. Y. 597. See Perry, 1 E. & E. 680 ; Maher v. Riley, Trout V. Kennedy, 47 Pa. St. 387. 17 Cal. 415 ; Wire v. Foster. 62 Iowa, 3 Id. 114 ; Harrison Wire Co. v. Hall & W. 4 Williams v. Reynolds, 6 R & S. H. Co., 97 Mo. 280. 495; Cole v. Swanston, 1 Cal. 51. But » Crist v. Armour, 34 Barb. 378. see Trisg v. Clay, stated in § 000. In Somers v. Wright. 115 Mass. 292, 5 Josling V. Irvine, 6 H. & N. 512. A. agreed to sell by warranty deed a 1452 VENDOR AND VENDEE — PERSONAL TROPERTY. § G54. tract between the owner of property and another it is agreed that the hitter is not a purchaser of the propert}^ but is to sell it, and to account to the owner for the avails of the sales at a certain rate, the rule of damages as between vendor and vendee does not apj)ly.' § 654. Proof of value. The proof of value is generally by the judgments or opinions of witnesses.- If the article in ques- tion has a market price, that will usually contr.ol as the best evidence of its value.^ If this test has been applied by an [376] actual sale of it the fact may be proved as evidence of its value/ It is not conclusiv^e, but tends to show its value, and in the absence of other evidence would suffice.^ Even the amount goods cost is admissible for the same purpose." When the cost was the price at which a regular dealer in such articles had sold it when new, in the ordinary course of trade, it is evidence of the market value; and if afterwards deteriorated by use, like furniture, its present value can be ascertained by reference to the former price and the extent lot of land to B. for a certain sum, payable in lumber "at current retail prices." A. bound himself to dis- charge an existing mortgage on or before a certain day, and it was also agreed that B. should not pay the lumber agreed upon as the price above the amount of the mortgage, computed at the current retail prices, until the discharge of such mortgage. A. did not discharge the mortgage, and B. paid it to prevent a foreclos- ure. It was held that B., in an ac- tion on A.'s contract to discharge the mortgage, was entitled to recover the loss of profits which would have ac- crued by the delivery of tlie lumber, and that the measure of damages was the difference between the whole- sale and the retail price of the lumber. In Harrison v, Charlton, 37 Iowa, 134, C. bought of H. a lumber yard, the stock to be invoiced and delivered at a future day, and H. in the mean- time to make no additions thereto. H. made additions, which were un- knowingly included and paid for by C. Held, the measure of damages was the difference between the price paid by him for the additional lum- ber and the market price at which lie could have purchased the same. 1 Giles V. Morrison, 50 Barb. 50. 2 Vol. 1, § 445. 3Cahen v. Piatt, 69 N. Y. 348; Durst v. Burton, 47 id. 167. See Parks V. Morris Ax & T. Co., 54 id. 586. < Muller V. Eno, 14 N. Y. 597 ; Deck V. Feld, 38 Mo. App. 674 ; Stevens v. Springer, 23 id, 375. 5 Id. ; Each v. Levy. 101 N. Y. 511 ; Trustees of Howard College v. Tur- ner, 71 Ala. 429 (sale of college schol- arship), e Smith v. Griffith, 3 Hill, 333. When the sale is made by a manu- facturer to a purchaser who has or- dered the goods, the price agreed upon is presumably the market value. Geiss V. Wyeth H. & Manuf. Co., 37 Kan. 130, § 054.] VENDEE AGAINST VENDOR. 1453 of depreciation.' So proof of the amount it sold for at auction has been admitted.- Witnesses having the requisite knowl- edge may testify as to market prices. In doing so they tes- tify to facts rather than opinions. It is knowledge more or less special, though it is largely, and may be exclusively, hear- say.^ Market prices themselves are the estimate or opinion of those who inlluence the market; that opinion is expressed in actual transactions ; and it is a knowledge of these, in such form as is usually relied on, which qiialifies the witness to testify. Such a witness — that is, one who has thus informed himself in respect to market prices which are relevant, and not presumed to be within the actual knowledge of all jurors — may testify to them though he knows nothing of the prop- erty in question.* lie may be examined by hypothetical questions, even if he has not seen the particular subject to which the trial relates, and has not heard all the evidence given in the case.^ Merchandise brokers in Boston, and members of firms doing business and having houses established in Boston and New York, who are familiar with the market of a particular [377] line of goods in New York, and whose information is derived from the daily price-current lists, and returns of sales daily furnished them in Boston from their New York houses, may testify to such value in the latter market at a given time.*^ The market price of a marketable commodity may be deter- mined as well by offers to sell, made by dealers in the usual iLuse V. Jones. 39 N. J. L. 707; < Miller v. Smith, 113 Mass. 475; Jacksonville, etc. R. Co. v. Peninsular Beecher v. Denniston, 13 Gray, 354 ; Laud, etc. Co., 17 L. R. A. 33 (Fla.). Fitchburg R. Co. v. Freeman, 13 id. ■^ Cronnse v. Fitch, 14 Abb. 346. 401 ; Brady v. Brady, 8 Allen, 101 ; See Bissell v. Starr, 33 Mich. 297 ; Lawton v. Chase, 108 Mass. 238 ; Mc- Willamet Falls C. & L. Co. v. Kelly, Collum v. Seward, 63 N. Y. 316 ; Rey- 8 Ore. 99; Wilson v. Holden, 16 Abb. nolds v. Robinson, 64 id. 589, 133. ■■' Woodbury v. Obear, 7 Gray, 467 ; 3 Harrison v. Glover, 73 N. Y. 451 ; Hunt v. Lowell Gas Light Co., 8 Washington Ice Co. v. Webster, 68 Allen, 169, 173 ; Cornell v. Dean, 105 Me. 463; Whitney v. Thatcher, 117 Mass. 435 ; Browne v. Moore, 33 Mich, Mass. 523 ; Lush v. Druse, 4 Wend. 254, See vol, 1, § 446, 313; Savercool v, Farwell, 17 Mich, e Whitney v. Thacher, 117 Mass. 308; Cliquot's Chainpagne, 3 Wall, 523. 114; 1 Whart. Ev., ^i^ 446, 449; Stone V. C:ovell, 29 Mich, 359, 1454: VENDOR AND VENDEE -- PERSOJS'AL PROPERTY. [§ 054. conrsG of business, as b}'' actual sales; and statements of deal- ers, in answer to inquiries as to price, are competent evidence.' A price-current published in a newspaper is not competent evidence of market value, without proof as to the sources from which the information which formed its basis was ob- tained, or whether the quotations of prices were from actual sales or otherwise. The credit to be given to the paper must depend upon such extrinsic proof; it cannot be determined by the publication itself.'^ An unaccepted offer, as an isolated transaction, is not competent evidence upon the question of value. But in a market regularly attended by buyers and sellers, an offer as well as a sale of an article of recognized uniform character, constantly bought and sold there, so as to have a place on the daily price-current list, may serve to show that the market value of that article did not then exceed the price at which it was offered. It is admissible because of its publicity, and the presumption of the presence of dealers read}'^ to purchase, and who would have done so if the offer had been below the market value. That dealers are them- selves guided in their transactions by such indications of the state of the market makes the fact one that may properly be considered in evidence.* Whether the very property to be valued corresponds with that to which the market prices apply is a matter of judg- ment. A witness who has knowledge of market values and [378] knows the property in question may give his opinion of its value.'* Every one is supposed to have some idea of the value of such property as is in general use; it is not necessary 1 Harrison V. Glover, 72 N. Y. 451. 3 Whitney v, Thacher, 117 Mass. 2 Whelan v. Lynch, 60 N. Y. 469. 523. In Lush V. Druse, 4 Wend. 314, the * Id. ; Brill v. Flagler, 23 Wend." witness who testified as to the mar- ,354; Parks v. Morris Ax & T. Co., ket price had inquired of merchants 54 N. Y. 593 ; Kellogg v. Krauser, 14 dealing in the article and examined S. & E. 137 ; Haskell v. Mitchell, 53 their books, thus giving the sources Me. 468 ; Whiteley v. China. 61 Me. of his knowledge. In Cliquot's Cham- 199; Snow v. Boston & M. R., 65 Me. pagne, 3 Wall. .114, it appeared that 230; Shattuck v. Stoneham, etc. R, the pi-ice-current was procured di- 6 Allen, 115; Swan v. Middlesex, 101 rectly from dealers in the article, and Mass. 173 ; Kronschnahle v. Knob- was verified by testimony which lauch, 21 Minn. 56; Thatcher v. tended to show its accuracy. See vol. Kaucher, 2 Colo. 698 ; Clarion Bank 1, §447. V. Jones. 21 Wall. 325 ; Whelan v. § 655.] VENDEE AGAINST VENDOR. 1455 to have a drover or a butcher to prove the value of a cow ; ' and an expert is not an indispensable witness.- If the article in question has no market value, its value may be shown by proof of such elements or facts affecting the question as exist. Re- course may be had to the items of cost, utility and use. And opinions of witnesses properly informed on the subject may also be given in respect to its value.^ In an action for the conversion of the bonds of a California corporati(jn, which had never been put in market, and therefore had no market value, it was held that, though being payable in dollars, so that legally paper dollars would discharge them, yet it might be shown that in California they were treated as payable in coin and were practically payable in gold, with a view to their valuation by that standard.* In Xew Hampshire the rule ap- pears to be to exclude opinions u]ion the subject of value.'' § 655. Rule in favor of vendor when delivery impossible. The vendor may be relieved from the ])ayment of dam- [379] ages by delivery being rendered impossible by the act of God. Thus, where a contract is made for the sale and delivery of specific articles of personal property under such circumstances that the title does not pass, if the propert}'^ is destroyed by accident, without the fault of the vendor, he is not liable to Lynch, 60 N. Y. 469 ; Covey v. Camp- Lafayette, etc. R Co. v. Winslow, 66 bell, 52 Ind. 157 ; Chamness v. Cham- 111. 219 ; White v. Hermann, 51 III. ness, 53 id. 301 ; Williams v. Brown, 243 ; Kellogg v. Krauser, 14 S. & R. 28 Ohio St. 547 ; Lush v. Druse, 4 137 : Eaton v. Melius, 7 Gray, 566 ; Wend. 313; Cliquot's Champagne, 3 Berry v. Dvvinel, 44 Me. 255; Wemple Wall. 114; Lafayette, etc. R. Co. v. v. Stewart, 23 Barb. 154: Grand Winslow, 66 111. 219; Toledo, etc. R. Tower Co. v. Phillips. 23 Wall. 471 ; Co. V. Kickler, 51 111. 157; White v. Trout v. Kennedy, 47 Pa. St. 387: Hermann, id. 243 ; Eagle & P. Manuf. Saunders v. Clark, 106 Mass. 331; Co. V. Browne, 58 Ga. 240 ; Hanover Jemmison v. Gray, 29 Iowa, 537 ; Water Co. v. Ashland Iron Co., 84 Graham v. Maitland, 1 Sweenj% 149: Pa. St. 279; Holten v. Board, etc., 55 Jacksonville, etc. R Co. v. Peninsular Ind. 194 ; Carpenter v. Robinson, 1 Land, etc. Co., 17 L. R A. 33, 61 Holmes, 67; Barger v. Northern (Fla.), quoting the text. See Kirsch- Pacific R Co., 22 Minn. 343. mann v. Lediard, 61 Barb. 573. 1 Ohio & M. R Co. V. Irvin, 27 111. * Simpkins v. Low, 54 N. Y. 183. 178. 5 Rocliester v. Chester, 3 N, H. 349 ; 2 Ohio & M. R Co. V. Taylor, 27 111. Peterborough v. Jaffrey, 6 id. 462 ; 207. . Wliipple V. Walpole, 10 id. 130 ; Hoitt ' Masterton v. Mayor, 7 Hill, 61 ; v. Moultou, 21 id. 586. Murray v. Stanton, 99 Mass. 345; 145G VENDOR AND VENDEE — PERSONAL PROrERTT. [§ 656. the vendee in damages for non-delivery.' And it has been said in a comparatively recent case in England ^ that " where a contract has been made, amounting to a bargain and sale, transferring presently the property in specific chattels, which are to be delivered by the vendor at a future day, there, if the chattels without the fault of the vendor perish in the in- terval, the purchaser must pay the price, and the vendor is excused from performing his contract to deliver, which has thus become impossible." ^ In the case from which this quo- tation is made, Blackburn, J., delivering the unanimous decis- ion of the court, said : " The principle seems to us to be, that in contracts in which the performance depends on the con- tinued existence of a given person or thing, a condition is im- plied that the impossibility arising from the perishing of the person or thing shall excuse the performance." * This prin- ciple was applied where there was a contract to sell potatoes to be grown on defendant's land in W., which was rendered impossible of full performance because a disease attacked them.^ The vendor may likewise be excused, as may all con- tracting parties, when the act stipulated to be done has become unlawful, — as would be the case if. after making the agree- ment, a statute is passed rendering the performance illegal.'^ § 656. Rule where purchase price paid. If at tlie time of making an executory agreement for the sale of goods pay- ment for them is made to the vendor, and he afterwards neg- 1 Dexter v. Norton, 47 N. Y. 63; Davis v. Gary, 15 Q. B. 418. The Thomas v. Knowles, 128 Mass. 22; learned author just cited says gen- Gould V. Murch, 70 Me. 288. erally of defense of impossibility : 2 Taylor v. Caldwell, 3 B. & S. 826. "If the thing promised be possible 3 Rugg V. Minett, 11 East, 210. in itself, it is no excuse that the ■* Appleby v. Meyers, L. R 1 C. P. promisor became unable to perform 615; S. C, 2 id. 651; Robinson v. it by causes beyond his own control, Davidson, L. R. 6 Exch. 269 ; Knight for it was his own fault to run the V. Bean, 22 Me. 531 ; Dickey v. Lins- risk of undertaking, uncondition- cott, 20 id. 453. ally, to fulfill a promise, when he 5 Howell V. Coupland, 1 Q. B. Div. might have guarded himself by the 258. terms of his contract." Eenj. on •^ Benj. on Sales, § 571 and note ; Sales, § 571 and note g. See, also, Bailey v. De Crispigney, L. R. 4 Q. B. § 572 ; and Jones v. United States, 96 180 ; Baylies v. Fettyplace, 7 Mass. U. S. 24 ; Booth v. Spuyten Duy vil 325 ; Clancy v. Overman, 1 Dev. & R M., 60 N. Y. 487. Bat. 402 ; Jones v. Judd, 4 N. Y. 412 ; § 656.] VENDEE AGAINST VENBOK. 1^57 lects or refuses to complete the sale by delivery, the [380] amount paid with interest sliould be added to the damages which the vendee is otherwise entitled to recover. In otlier words, he is entitled to recover the market vaUie of the goods at the time and place when and where they should have been delivered.* In some states the highest market price between the date of the breach and the commencement of the action or the trial is the measure of damages where the price has been paid, if there has been no unreasonable delay in com- mencing or prosecuting the suit.^ This doctrine has been held in New York,'' but the tendency of the later de- [381] iBozetnan v. Rose, 40 Ala. 212; Rose V. Bozeman, 41 id. (578; Mc- Gehee v. Posey, 42 id. 330 ; Moore v. Fleming, 84 id. 49; Neil v. Clay, 48 id. 252 ; Rutan v. Hinchman, 29 N. J. L. 112; Fenton v. Perkins, 3 Mo. 23; Farwell v. Kennett, 7 Mo. 595 ; Alex- ander V. Macauley, 6 Md. 359 ; Dyer V. Rich, 1 Met. 180 ; Grand Tower Co. V. Phillips, 23 Wall. 471 ; Leach V. Smith, 25 Ark. 246 ; Kirschmanu v. Lediard, 61 Barb. 573 ; Cleveland & P. R. Co. V. Kelley, 5 Ohio St. 180 ; Underhill v. Gofif, 48 III. 198; Butler V. Baker, 5 Ohio St 484 ; Bicknall v. Waterman, 5 R I. 43; Marshall v, Ferguson, 23 Cal. 65 ; Enders v. Board of Public Works, 1 Gratt. 372 ; Balti- more City P. Ry. Co. v. Sewell, 35 Md. 238; McDonald v. Hodge, 5 Hayw. 86; Doak v. Snapp, 1 Cold. 180 ; Hamilton v, Ganyard, 34 Barb. 204; Haywood v. Haywood, 42 Me. 229 ; West v. Pritchard, 19 Conn. 212 ; Whitsett V. Forehand, 79 N. C. 230 ; Kitzinger v. Sanborn, 70 III. 146; Kribbs v. Jones, 44 Md. 396 ; Par- sons V. Sutton, 66 N. Y. 92 ; Sadler v. Bean, 37 Iowa, 439 ; Moorehead v. Hyde, 38 id. 382 ; Smith v. Berry, 18 Me. 122 ; Warren v. Wheeler, 21 id. 484; Furlong v. PoUeys, 30 id. 491 ; Berry v. I)winel, 44 id. 255 ; Bush v. Holmes, 53 id. 417 ; Rider v. Kelley, 32 Vt. 268; Hill v. Smith, id. 433; Vol. 11 — 92 Copper Co. v. Copper Mining Co., 33 id. 92 ; Wyman v. American Powder Co., 8 Cush. 168 ; Pinkerton v. Man- chester, etc. R.. 42 N. H. 424. In Dey v. Dox. 9 Wend. 129, a vendor when sued on a contract of sale, by which he agreed to deliver property, and for which only a nomi- nal sum was paid down, permitted the vendee to recover the value of the property because he did not set up the fact of non-payment ; held, he was thereby precluded from bring- ing a subsequent action for the value of the goods. The legal measure of damages for non-delivery of goods sold, but not paid for, is the differ- ence between the contract price and the market value at the time when they should have been delivered. 2 Gilman v, Andrews, 66 Iowa, 116 ; Harrison v. Charlton, 37 id. 134; Fisher v. Dow, 72 Texas, 432 ; Master- son v. Goodlett, 46 id. 402 ; Randon v. Barton, 4 id. 489 ; Calvit v. McFad- deu, 13 id. 324 ; Brasher v. Davidson, 31 id. 190; Gregg v. Fitzhugh, 36 id. 127; Cartwright v. McCook, 33 id. 612 ; West v. Pritchard, 19 Conn. 212 ; Davenport v. Wells, 3 Iowa, 242; Cannon v. Folsom, 2 id. 101 ; Staple- ton V, King, 40 id. 278 ; Kent v. Giuter, 23 lud. 1 ; Maher v. Riley, 17 Cal. 415. 3 West v. Wentworth, 3 Cow. 82; Clark V. Pinney, 7 id. 681 ; Commer- 145S VENDOR AND VENDEE PERSONAL PEOPEETY. [§ 65G. cisions is towards the standard of value at the time and place of the breach.^ The latest cases establish the rule that the pledgee of stock who converts it in good faith by making an purchaser lias not paid for the goods, he may, on the refusal of his vendor to deliver, go into the market and buy goods of a similar quality, and that vphat it would cost him to do this is the just measure of his dam- ages ; but where he has paid the pur- chase-money it is unreasonable to require him to pay it a second time : and therefore all fluctuations in price should be at the risk of the vendor who refuses to deliver while retain- ing the purchase-money. The very reasoning upon which these decisions are founded demonstrates their inap- plicability to a case like the present, where the purchase-money of the stocks [bought on a margin] has not been paid bj- the complaining party, and the only additional payment which he would be required to make for the purpose of replacing the stocks would be such as was occa- sioned by the rise in the market price." The general reasoning in this opin- ion is against the rule of the highest price after conversion or delivery due on contract, though the facts of the case were considered as not requiring the court to go the length of an un- qualified reversal of the rule which had been so generally followed in that state. But subsequent cases, which have just been cited, and oth- ers referred to in the next note, show that Baker v. Drake has been accepted and followed as a case which has ac- complished that departure. The facts of the case and the law involved are thus stated and com- mented on in the opinion : " All that appears upon the subject (of the terms of the contract) in the evidence is that the plaintiff, through his friend cial Bank v. Kortright, 23 Wend. 348 ; Wilson V. Little, 2 N. Y. 443 ; Lobdell V. Stowell, 51 id. 70. 1 Ormsby v. "Vermont Copper M. Co., 56 N. Y. 623: Tyng v. Commer- cial Warehouse Co., 58 id. 308 ; Me- chanics' & T. Bank v. Farmers' & M. Nat. Bank, 60 id. 40; Whelan v. Lynch, id. 469 ; Wintermute v. Cooke, 73 id. 107. In Baker v. Drake, 53 N. Y. 211, the previous decisions in cases of con- version were reviewed, and the law- held to be that there is not a fixed and unqualified rule giving the plaintiff, in all cases of conversion, the highest market price from the time of conversion to the trial ; and that such a rule cannot be upheld on any sound principle of reason or justice. Referring to Kortright v. Buffalo Commercial Bank, 20 Wend. 91, affirmed, 22 id. 248 ; West v, Went- worth, 3 Cow. 82, and Clark v. Fin- ney, 7 id. 596, Rapallo, J., said : " These were actions for the non-de- livery of merchandise in pursuance of a contract of sale, and the extreme rule was applied of allowing to the vendor, as damages, the highest value up to the time of trial. This rule was, however, strictly confined to cases where the purchase price had been paid in advance, it being con- ceded that in the ordinaiy case, where the price was to be paid on delivery, the only rule is the market value on the day appointed by the contract for their delivery. It cannot be disputed that this distinction, though ques- tioned by high authority, has long been acted upon in this state in re- spect to contracts for the sale and delivery of goods. The reason upon which it is founded is that, where the § 656.] VENDEE AGAINST VENDOR. Uu'J unauthorized sale of it and refuses to replace it on demand is liable for its bigliest market price between the time the owner receives notice of his act and sucli reasonable time tiiercafter Rogers, deposited various sums of money with the defeudauts, and from time to time directed them to purchase for his account shares of stock to an amount of cost from ten to twenty times greater than the sums depos- ited, which they did. No agreement as to margin or as to carrying of tlie stock by the defendants is shown by the evidence, but the plaintiff alleges in his complaint that the agreement was that he should deposit with the defendants such collateral secm-ity or margin as they should, from time to time, require ; and that they would purchase the stock and hold and carry the same subject to the plaint- iff's direction as to the sale and dis- position thereof as long as the plaint- iff should desire, and would not sell or dispose of the same unless the plaintiffs margin should be ex- hausted or insufficient, and not then unless they should demand of the plaintiflf increased security, or re- quire him to take and pay for the stocks, and give him due notice of the time and place of sale and due opportunity to make good his mar- gin. The answer denies only the* agreement to give notice of the time and place of sale, admitting, by im- plication, that in other respects the agreement is correctly set forth. . . . It appears that the plaintiff had during the whole course of his transactions with the defendants advanced, in the aggregate, but $4,240 towards the purchase of shares which at the time of the alleged wrongful sale, November 18, 1868, had cost the defendants upwards of $66,300 over and above all the sums so advanced by the plaintiff. By the stock lists in evidence it appears that these shares were then of the market value of less than $67,000, and the surplus arising from the sale after paying the amount due the defendants amounted to only $558, which sura represents the value at that time of the plaintiffs interest in the property sold. " It so happened, however, that within a few days after the sale the market price of the stock rose, and that at the time of the commence- ment of the action, November 24, 1863, the shares would have brought some $5,500 more than the sum for which they had been sold. But after tiie commencement of the action and before the trial the stock underwent an alternate elevation and depression, and reached its maximum point in August, 1869, at which time one sale of thirty shares at one hundred and seventy per cent, was proved. It afterwards declined, and on the day preceding the trial, October 20, 1879, the price was one hundred and forty- three, having for a mouth pi-evious to the trial ranged between one hun- dred and thirty-seven and one hun- dred and forty -five. The jury in obe- dience to the rule laid down by the trial court found a verdict for plaintiff for $18,000, being just the difference between one hundred and thirty-four, which was the average price at which the defendant sold, and one hundred and seventy, the highest price touched before the trial, — thirty-six per cent, on five hundred shares. More than two- thirds of this supposed damage arose after the bringmg of the suit. This enormous amount of profit given under the name of damages could not have been arrived at except upon the unreasonable supposition, unsup- 1460 VENDOE AND VENDEE PERSONAL PKOPERTY. [§ 656. as it may be necessary for him to use in replacing such stock by purchasing it in tlie market.' This rule applies as \Yell where the pledgee is a broker and carries the stock on a mar- gin for a customer as where the owner has paid in full for it and was holding it for an investment.^ It will be at once perceived that these cases rest upon the principle that it is the ported by any evidence, that the plaintiff would not only have sup- jilied the necessary mai-gin and caused the stock to be carried through all its fluctuations until it reached its highest point, but that he would have been so fortunate as to seize upon that precise moment to sell, thus avoiding the subsequent decline, and realizing the highest profit which could have possibly been derived from the transaction by one en- dowed with the supernatural power of prescience. " In a case where the loss of prob- able profits is claimed as an element of damage, if it be ever allowable to mulct the defendant for such a con- jectural loss, its amount is a ques- tion of fact, and a finding in respect to it should be based upon some evi- dence. In respect to a dealing which, at the time of iti termination, was as likely to result in a further loss as in profit, to lay down as an inflexible rule of law as damages for its wrong- ful interruption the largest amount of profit which subsequent develop- ment disclosed might, under the most favorable circumstances, have been possibly obtained from it, must be awarded to the fortunate indi- vidual who occupies the position of plaintiff, without regard to the prob- abilities of his realizing such profits, seems to me a wide departure from the elementary principles upon which damages have hitherto been awarded. . . . But the rule adopted in Mark- ham V. Jaudon (41 N. Y. 235), pass- ing far beyond the scope of reasonable indemnity to the customer whose stocks have been improperly sold, places him in a position incomparably superior to that of which ho was de- prived. It leaves him with his vent- ure out, for an indefinite period, limited only by what may be deemed a reasonable time to bring a suit and conduct it to its end. The more crowded the calendar, and the more new trials granted in the action, the better for him. He is freed f I'om the trouble of keeping his margins good, and relieved of all apprehension of being sold out for want of margin. If the stock should fall or become worthless he can incur no loss ; but if, at any period during the months or years occupied in the litigation, the market price of the stock hap- pens to shoot up, though it be but for a moment, he can, at the trial, take a retrospect and seize upon that happy instance as the opportunity for profit of which he was deprived by his transgressing broker, and com- pel him to replace with solid funds this imaginary loss." The court reached the conclusion that the dis- senting opinions of Grover and Woodruff, JJ., in the case referred to, embody the sounder law. 1 Wright V. Bank of Metropolis, 110 N. Y. 237 ; Gruman v. Smith, 81 id. 25; Colt v. Owens, 90 id. 368; S. C, 47 N. Y. Super. Ct 430 ; Barnes V. Brown, 130 N. Y. 371, reversing Barnes v. Seligman, 55 Hun, 339. 2 Wright V. Bank of Metropolis, 110 N. Y. 237. § 657.] VENDEE AGAINST VENDOR. 1461 legal duty of the person wronged to use reasonable means to lessen the damage which may result from the wrong. It is believed that the same principle applies to contracts for the sale of goods, and that the same result will be reached by the courts of New York if the question shall arise. A payment is not made within the rule by the transfer of earnest money, at least where that is repaid before a tender is made of the balance.^ In Texas interest is not recoverable from the time of the breach, but only from the date of the valuation.2 It is held in Iowa, but why it is not easy to de- termine, that where propert}^ has been paid for the purchaser is not bound to go into the market to lessen the liability of the vendor.^ § 657. Contracts for delivery of stocks. Bellows, J., [382] in a New Hampshire case, thus sums up the reasons for the prevailing rule: "The general rule is, undoubtedly, that he shall have the value of the property at the time of the breach ; and this is a plain and just rule and easy of application, and we are unable to yield to the reasons assigned for the excep- tion which has been sanctioned in Kew York and else- [383] where. It is true that in some cases the plaintiff may have been injured to the extent of the value of the property at the highest market price between the breach and the time of trial. But it is equally true that in a large number of cases, and perhaps generally, it would not be so. In that large class of cases where the articles to be delivered entered into [384] the common consumption of the country, in the shape of pro- visions, perishable or otherwise, to hold that the plaintiff might elect as the rule in all cases the highest market price be- tween the time fixed for the delivery and the day of trial, which is often many years after the breach, would in many cases be grossly unjust, and give to the plaintiff an amount of damages disproportioned to the injury. For in most of these cases, had the articles been delivered according to the con- tract, they would have been sold or consumed within the year, and no probability of reaping any benefit from the future in- crease of prices. So there may be repeated trials of the same 1 Worthen v. Wilmot, 30 Vt. 555. 3 Mann v. Taylor, 78 Iowa, 355. 2 Masterson v. Goodlett, 46 Texas, 403 ; Fisher v. Dow, 72 id. 432. 1462 VENDOK AND VENDEE — PERSONAL PKOPERTY. [§65^ cause, by review, now trial or otherwise. Shall there be dif- ferent measures of value at each trial? In the case of stocks, in regard to which the rule in England originated, there are doubtless cases, and a great many, where they are purchased as a permanent investment, and to be held without regard to fluctuations; and to hold that the damages should be the highest price between the breach and trial, when there is no reason to suppose that a sale would have been made at that precise time, would also be unjust. But it may be fairly as- sumed that a very large portion of the stocks purchased are purchased to be sold soon ; and to give the purchaser, in case of failure to deliver such stock, the right to elect their value at any time before trial, which might often be several years, would be giving him, not indemnity merely, but a power, in many instances, of unjust extortion, which no court could contemplate without pain." ^ 1 Pinkerton v. Manchester, etc. R R, 42 N. H. 424. In Majme on Damages (4th Eng. ed.), p. 174, this subject is thus treated : "In the cases above discussed, no payment had been made for the goods, and on this ground they were distinguished f Bom actions for not re- placing stock, because in that case the borrower holds in his hands the money of the lender, and thereby prevents him from using it altogether. Gainsford v. Carroll, 2 B. & C. at p. 625. Accordingly, where there has been a loan of stock, and a breach of the agreement to replace it, the meas- ure of damages is held to be the whole value of the stock lent, taken at such a rate as will indemnify the plaintiff. Therefore, where the stock has risen since the time appointed for the transfer, it will be taken at its price on or before the day of trial. Downes v. Back, 1 Stark. 318; Harri- son V. Harrison, 1 C. & R 412 ; Shep- herd V. Johnson, 2 East, 211 ; Owen V. Routh, 14 C. B. 327. And it is no answer to say that the defendant may be prejudiced by the plaintiff's delaying to bring the action ; for it is liis own fault that he does not per- form his engagement at the time ; or he may replace it at any time after- wards, so as to avail liimself of a ris- ing market. Per Grose, 2 East, 212. In one case where it liad fallen, it was estimated at its price on the day it ought to have been replaced (San- ders v. Kentish, 8 T. R 162) ; and in another case, where no day was named for its replacement, and it had fallen in value, at its price on the day when it was transferred to the borrower. Forrest v. Elwes, 4 Ves. 493. But the plaintiff cannot recover the highest price which the stock had reached at any intermediate day (Mc- Arthur v. Seaforth, 2 Taunt. 257); because such a measure involves the assumption that he would have sold out upon that day, which is purely speculative profit. Nor can he claim damages for any profit which he might have made, had he possessed the stock, at all events, vmless his wish to have it back for that express purpose was distinctly communicated to the defendant. Therefore, when § 657.] VENDEE AGAINST VENDOE. 1463 There are cases iu this country which distinguish con- [385] tracts for the delivery or repkioing of stocks from other con- tracts of sale, by allowing for breach of the former the highest value up to the time of trial, while the damages for the [38GJ the defendant lent five per cent stock whicli was to be replaced on a fixed day, and after that day the govern- ment gave the holders an option to be paid off at par, or to commute their stock for three per cents, the plaint- iff expressed to the defendant a wish to have the stock replaced, that he miglit be paid at par, but no wish to take the new stock ; held, that he was not entitled to recover the price of so much of three per cent stock as he might liave obtained in exchange for his five per cents. McArthur v. Sea- forth, supra. "In the case cited the profits claimed were both contingent in their nature, and collateral to the breach of contract But where a bond was given to secure the replacement of stock, and payment in the meantime of sums equal to the interest and div- idends, and a bonus was afterwards declared upon the stock, it was held by Sir John Leach, M. R., tiiat in equity, and perhaps even at law, the lender was entitled to be placed in the same situation as if the stock liad remained in his name, and was there- fore entitled to the replacement of the original stock, increased by the amount of the bonus, and to divi- dends in the meantime, as well upon the bonus as upon the original stock. Vaughan v. Wood, 1 Myl. & K. 403. " The rules established in the case of a loan of stock were held to be equally applicable where the loan was of mining shares. Owen v. Routh, 14 C. B. 337. There appears to be great similarity between these cases and that of a contract for the purchase of goods, in which pay- ment is made beforehand. The plaintiff is equally kept out of his money, and, therefore, equally un- able to protect liimself by going into the market to buy that which the defendant has agreed to sell him. The defendant has equally the use of the plaintiff's property, and is there- fore able to make all the profits by means of it which the plaintiff could liave made. If the case is to be gov- erned by exactly the same rules as that of stock, it will require no far- ther discussion. But upon this point there seems to be very little agree- ment. . . . The only two cases in England which touch upon the subject, specifically, do not tend to clear it up very much. . . . (Dutch V. Warren, 2 Burr. 1010; Startup v. Cortazzi, 3 Cr., M. & R 165.) . . . " Such is the unsettled state of the law upon tie subject Mr. Sedgwick is of the opinion that the period of breach is the true time, in all cases, for estimating the damages, unless it can be shown that the article was to be delivered for some specific ob- ject known to both parties at the time, and thus a loss within the con- templation of both parties has been sustained. Sedgw. on Dam. 310 (4th ed.). This doctrine cannot be maintained in England, if. as he also thinks, there is no valid reason for making any difference between stock and any other vendible com- modity. It is quite settled that the price of stock may be taken at the time of trial. The cases may, how- ever, be distinguished on the ground that stock may be supposed to be purchased rather as an investment than for resale, while goods are liGl VENDOR AND VENDEE — PERSONAL PROPEKTr. u >0i. breach of the others have been measured by the value at the thne when the goods should have been delivered.^ But there appears to be no sound reason for this distinction. The mar- ket [)rice of stocks fluctuates; so does the market price of other kinds of personal property; both are liable to factitious changes; but all stocks do not, nor do all other kinds of prop- erty, in fact, fluctuate to the same extent, or from the same immediate causes. The same considerations which commend [387] the rule of the value at the time of the breach in the case of a contract for the sale and delivery of merchandise apply with equal force to contracts for the sale and delivery of stocks. And it is believed the weight of American author- ity is in favor of assessing the damages for breach of contracts of sale by the same rule, whether they relate to stocks or merchandise, and whether the price has been paid or not.- In Pennsylvania the rule allowing the highest intermediate mar- ket price in stock transactions has been restricted to cases in which a trust relation exists between the parties.' In ISTew bought expressly to sell again. Con- sequently it may be assumed that the former would have remained in the possession of the buyer till the time of trial, while no such presump- tion can be raised in the latter case. If this be so, damages might fairly be calculated, in regard to stock, at the price it bore at the time of trial ; in regard to goods, according to their price at the latest period when we could be sure they would have re- mained in the plaintiff's hands, viz. : the time they ought to have been de- livered." The courts of England, in actions for non-delivery of railway shares, have given the value at the date of the breach, and not of the trial, and such cases are distinguished from those for failing to replace borrowed stock. Shaw v. Holland, 15 M. & W. 116; Tempest v. Kilner, 3 Q. B. 300; Earned v. Hamilton, 2 Eng. Railw. Cas. 624. And in Elliott v. Hughes, 3 F. & F. 387, tlie measure of dam- ages for non-delivery of goods was determined by the highest price up to the trial. 1 Wells V. Abernethy, 5 Conn. 222 ; Bank of Montgomery v. Reese, 26 Pa. St. 143 ; Kent v. Ginter. 23 Ind. 1 ; McKenney v. Haines, 63 Me. 74 ; Musgrave v. Beckendorff, 53 Pa. St. 310. 2 Enders v. Board of Public Woi'ks, etc., 1 Gratt. 372 ; Baltimore City P. Ry. Co. V. Sewell, 35 Md. 238 ; White V. Salisbury, 33 Mo. 150 ; Alexander V. Macauley, 6 Md. 359 ; Eastern R Co, V. Benedict, 10 Gray, 212; Noonan v. Ilsley, 17 Wis. 314 ; Doak V. Snapp, 1 Cold. 180 ; Smith v. Dun- lap, 12 111. 184, 193; Sargent v. Franklin Ins. Co., 8 Pick. 90 ; Smith- urst V, Woolston, 5 W. & S. 106; Coldren v. Miller, 1 Blackf. 296 ; Van Vleit V. Adair, id. 346 ; Columbia v. Amos, 5 Ind. 184. See Redding v. Godwin, 44 Minn. 355. 3 Huntingdon, etc. R. & C. Co. v. English, 96 Pa. St 247. § 658.] VENDEE AGAINST VENDOR. 14-65 York, after great discussion, the court of appeals lias settled the law to be that the vendor or pledgee of stock is liable for the highest market price between the time of the sale or con- version and such reasonable time as the vendee or owner can, after knowledge of the other's act, supply himself with stock by going into the market.' This rule as applied to stock transactions between a broker and his principal is approved by the federal supreme court.- In a Virginia case stock was borrowed to be returned at specified times; dividends to be paid in lieu of interest. It was not returned, but the borrower continued to pay the dividends for some time after the date for returning the stock. It was held the general rule of damages against a vendor was the value of the property at the time it should have been de- livered, and interest from that date until paid ; that there is no distinction in this respect between contracts for the sale and delivery of stocks and other executory contracts of sale ; that under the circumstances the lender might recover the value of the stocks at the time the borrower ceased to pay dividends, with interest from that date.^ In an action at law against a corporation for refusing to issue or transfer stock the rule of damages is the same as upon a sale; the plaintiff may claim in the same suit the value of the stock and the dividends thereon, and the meas- ure of damages is its value at the time of the demand, to- gether with the dividends accrued thereon at that time with interest.* § 658. Sale of good-will. The property known as good- will is intangible and consists in "the advantage or benefit which is acquired by an establishment beyond the mere value 1 See last section. In Barnes v. damages, although the defendant, in Brown, 130 N. Y. 371, there was a order to perform the contract, would breach of a contract to assign full- have been obliged to pay par for the paid stock of a certain corporation ; stock. Plaintiff's recovery could not stock not full paid was accepted and exceed the sum wliich would indem- returned. The stock stipulated for nify him for his loss, had no actual or market value at the "^Galigher v. Jones, 129 U. S. 193. time the pretended delivery of it was 3 Enders v. Board of Public Works, made. It was held (reversing Barnes 1 Gratt 372. V. Seligman, 55 Hun, 339), that ^ Baltimore City P. Ry. Co. v. plaintiff was only entitled to nominal Se%vell, 35 Md. 238. 1466 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 658. of the capital stock, funds or property employed therein, in consequence of the general public patronage and encourage- ment which it receives from constant or habitual customers on account of its local position or common celebrity or repu- tation for skill or affluence or punctuality or from other acci- dental circumstances or necessities, or even from ancient par- tialities or prejudices." ^ Owing to the peculiarity of the property, the degree of certainty as to the proof of damages which result from the breach of contracts for the sale of it is not as attainable as in the breach of contracts for the sale of tangible property. This uncertainty is not to work a denial of justice to a party who has been wronged ; the damages must be ascertained from all the facts and circumstances as best they may. They are to be measured by the injury done, not by ineffectual attempts to injure.^ The standard is the same whether relief is sought in an independent action or by counter-claim.^ Where the plaintiff purchased, not merely the good-will attached to the premises transferred, but the property and good-will of the businc ss and the exclusive right to use a trade-mark, it was held that proof of the damages resulting from a breach need not be made by showing specific loss of business and profits as of a bill of particulars of his in- juries.* In such a case the wrong done by the vendor is a wilful one, and the case is such as he has chosen to make it ; hence his is the loss which may arise from the uncertainty pertaining to the nature of it and the difficulty of accurately estimating the results of his own wrongful act.^ The good- will of a business which consists of labels and wrappers bear- ing the name of the vendor, or other marks or brands, will be protected on principles analogous to those which govern the infringement of trade-marks ; the plaintiff who has obtained the exclusive right to manufacture and sell articles so wrapped may recover all the profits made by defendant therefrom re- gardless of the effect upon his own business or profits." On 1 Story's Part., § 99. See Barber v. 3 Id. Connecticut, etc. Ins. Co., 15 Fed. Rep. * S. G, 43 Ohio St 474, 497. 312 ; Wedderburn v. Wedderburn, 5 Id. ; Mellersh v. Keen, 28 Beav. 22 Beav. 84. 453. 2Burckhardt v. Burckhardt, 36 6 Peltz v. Eichele, 62 Mo. 171. Ohio St. 261. § 659.] VENDEE AGAINST VENDOK. 1467 the breach of a contract not to resume the practice of a pro- fession the damages are measured by the value of the prac- tice lost by the plaintiff, less the sum due under the contract of purchase to the defendant.^ The damage sustained, not the consideration paid, measures the recovery .^ In an Indiana case it was claimed that fraudulent represen- tations were made to the purchasers of a stock of merchan- dise and the good-will of the business, in this, that the annual sales were represented to be $30,000, while they were in fact but one-half of that sum. The purchasers obtained a lease of the building in which the vendor had carried on business. The following is substantially the instruction given by the trial court on the question of damages, of which the supreme court said that it is as accurate, correct and fair a statement of the proper measure thereof as could well be given : The subject of good-will can be considered and its value deter- mined only in connection with the leasehold or rental value of the building or rooms wherein the business was done; the question is confined to the difference between the rental value of the building if the business done there had amounted to the sums represented and the amount of business in fact done there by the vendor. " By the increased rental value on account of the good-will attached is meant, not how much more money Avould the occupant of the building have made if the good-will had been as represented; that could never be certainly determined ; but how much was the rental value in- creased, or would it have been increased, if attended by such good-will; how much more rent for that place of business would men generally pay for the purpose of carrying on there the same business for the sake of getting such good- will. In short, what is the good-will worth, fixing the value beforehand, taking the chance of realizing on it." ^ § 659. Contracts to pay in or deliver specific articles. Where the vendee has ])aid or furnished the consideration, whether directly as purchase-money or in an antecedent debt, and the vendor, for that consideration, undertakes to deliver 1 Warfield v. Booth, 33 I\Id. 63. See 3 Rawson v. Pratt, 91 Ind. 9 ; Mont- Howard V. Taylor, 90 Ala. 341. goinery, etc. Society v. Harwood, 2 Stewart v. Challacombe, 11 III. 120 id. 440. See Musselman's Ap- App. 379. peal, 62 Pa St. 81. 1468 VENDOR AND VENDEE — PERSONAL PKOPEETT. [§ 659. a specific quantity of goods of a given description at a future [388] day, the contract is of the very nature of those consid- ered, and the damages are calculated upon the value of the property in case of failure to deliver it.^ The word " dollars " is sometimes used in such contracts not to express the value in legal currency to be paid but the quantity of the specific thing to be delivered. It is then a measure of quantity. Tlius, on the breach of an agreement to pay a given sum in a partic- ular species of paper, as bank or other notes, or stock, recovery can be had only of the value of such paper.'- Where one party gave another an acknowledgment of indebtedness, thus : " Due N. $300 in W. E. E. stock," it was held to bind the party giv- ing it to pay so many dollars in the stock of the company aSy when counted at par, would amount to $300. The court say : " If the stock is appreciated above par, the payee is to be ben- efited by the increased value; and if depreciated he is then [389] to be restricted to $300, although worth less than that » Montelius v. Atherton, 6 Colo. 224 ; Cummings v. Dudlej-, 60 Cal. 383; Barnes v. Brown, 130 N. Y. 371, stated in note to section 657; Butler v. Baker, 5 Ohio St. 484 ; Dyer v. Rich, 1 Met. 180 ; Neel v. Clay, 48 Ala. 252 ; Leach v. Smith, 25 Ark. 246;.Doak V. Suapp, 1 Cold. 180; McGehee v. Posey, 42 Ala. 330 ; Brasher v. David- son, 31 Tex. 190 ; Cartwright v. Mc- Cook, 33 id. 612 ; Edgar v. Boise, 11 S. & R 445: Safely v. Gilmore, 21 Iowa, 588 ; Hixon v. Hixon, 7 Hunipli. 83; Williams v. Jones, 12 Ind. 561; Pierce v. Spader, 13 id. 458; Will- iams V. Sims, 22 Ala. 512 ; Moore v. Fleming, 34 id. 491 ; Marr v. Prather, 3 Met. (Ky.) 196 ; Herbert v. Easton, 43 Ala. 547 ; Powe v. Powe, 42 Ala. 113 ; Mettler v. Moore, 1 Blackf. 342 ; Hedges v. Gray, id. 210 ; Clay v. Hus- ton, 1 Bibb, 461 ; West v, Wentworth, 3 Cow. 82 ; Barrett v. Allen, 10 Ohio, 426; Smith v. Berry, 18 Me. 122; Vance v. Bloomer, 20 Wend. 196; Rockwell V. Rockwell, 4 Hill, 164; Baker v. Mair, 12 Mass. 121 ; Brooks V. Hubbard, 3 Conn. 58; Gilbert v. Danforth, 6 N. Y. 585 ; Newman v. McGregor, 5 Ohio, 349; Starr v. Light, 22 Wis. 414; Jemmison v. Gray, 29 Iowa, 537. 2 Hixon V. Hixon, 7 Humph. 33; Robinson v. Noble, 8 Pet. 181 ; Hop- son V. Fountain, 5 Humph. 140 ; Bush V. Hibbard, 24 Barb. 292 ; Gordon v. Parker, 2 Sm. & M. 485 ; Walker v. Meek, 12 id. 495 ; Arnold v. Suffolk Bank, 27 Barb. 424 ; Bank of Mont- gomery V. Reese, 26 Pa. St. 143 ; East- ern R. Co. V. Benedict, 10 Gray, 212; Child V. Pierce, 37 Mich. 155 ; Coldren V. Miller, 1 Blackf. 296 ; Van Vleet v. Adair, id. 346 ; Cotton v. Reed, Sneed (Ky.), 24 ; Fosdick v. Greene, 27 Ohio St. 484 ; Green v. Sizer, 40 Miss. 530 ; Kirtland v. Molton, 41 Ala. 548 ; Will- iams V. Jones, 12 Ind. 561 ; Anderson V. Ewing, 3 Litt. 245 ; Pierce v. Spader, 13 Ind. 458 ; Memphis, etc. R. Co. v. Walker, 2 Head, 467; Williams v. Sims, 22 Ala. 512 ; Hart v. Lanman, 29 Barb. 410 ; Marr v. Brother, 3 Met. (Ky.) 196; Clay v. Huston, 1 Bibb, 461 ; Doak v. Snapp, 1 Cold. 467. § 659.] VENDEE AGAINST VENDOR. 14:09 sum in money. The authorities abundantly show that where the instrument, like the one at bar, is to be paid in bank notes, or in stock or scrip in the similitude of bank notes, then the market value of the notes, stock or scrip is the measure of damages. And the reason given for the rule is, that where a party engages to pay so many dollars in bank notes, stock or scrip, the articles are described and numerically calculated by the number they express ; so that $300 in railroad stock or bank notes is understood to mean that amount as expressed upon the face of the stock or note, and not the amount which will be equivalent in value to $300 in money; while an instru- ment drawn for the payment of so man}'^ dollars in chattels — wheat, salt, cloth, wool or other like articles — is construed to mean so much of those things as will amount to the sum in money, because tlie things themselves cannot be counted by dollars, as the name is tiever applied to them." ' It has been already stated that if the property to be deliv- ered has no market value its real value is to be ascertained by such elements of value as are attainable.- Of this char- acter are promissory notes ; stocks of projected corporations which fail to organize or any stocks in which there has been no traffic. Where such subjects are contracted to be sold, a,nd there is no market value, how may value be established? "Where, for instance, a contract is made for the transfer of a third person's note of a certain amount in exchange for prop- erty, upon breach it has been held that the measure of dam- ages is what the note purports to be worth.^ But in [390] 1 Noonan v. Ilsley, 17 Wis. 314 ; An- Hinchman, 29 N. J. L. 11 ; Sar.oent v. derson v, Ewing, 3 Litt. 2i5 : German Franklin Ins. Co., 8 Pick. 90 ; Eastern Union, etc. Ass'n v. Seudmeyer, 50 R Co. v. Benedict, 10 Gray, 212; Pa St 67; Dillard v. Evans, 4 Ark. Smith v. Dunlap, 12 111. 184; Sirlott 175; Phelps v. Riley, 3 Conn. 266; v. Tandy, 3 Dana, 142; Breckinridgo Eobinson v. Noble, 8 Pet. 181; Parks v. Rolls, 2 T. B. Mon. 150; January V. Marshall, 10 Ind. 20 ; Orange & A. v. Henrj', 3 id. 8 ; White v. Green, id. R. Co. V. Fulvey, 17 Gratt. 366; Met- 155; Alexander v. Macaulej-, 6 Mtl. tier V. Moore, 1 Blackf. 342 ; Wynian 359. See Thorington v. Smith, 8 V. American Powder Co., 8 Cush. Wall. 1 ; Shelton v. French, 33 Conn. 168 ; Hedges v. Gray, 1 Blackf. 216 ; 489. Humaston v. Telegraph Co., 20 Wall. ^Ante, §§ 653, 654. 20; Hussey v. Manufacturers' & M. spenton v. Perkins, 3 ]\Io. 23; Shel- Bank, 10 Pick. 415 ; Thrasher v. Pike ton v. Frencli, 33 Conn. 489 ; Farwell County R. Co., 25 111. 393 ; Rutan v. v. Kennett, 7 Mo. 595 ; Child v. 1470 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 660. Alabama it is held that such an undertaking is not one to pay the face of the notes ;^ that the omis of proving the value is on the plaintiff; and that, in the absence of afRrraative proof of value, only nominal damages can be given.^ It is believed that the weio-ht of authoritv is in favor of the rule that notes are prima facie worth their face; and that, in the absence of disparaging evidence, damages may be assessed on that basis, both in actions for failure to transfer and for conversion.' Where the contract is to pay in the notes of a third person the insolvency of such person may be shown to lessen the damages.^ § 660. Same subject. Stocks, like promissory notes, have a nominal value expressed in dollars or pounds sterling; and, as we have seen, on a breach of a contract for the delivery or Pierce, 37 Mich. 155 ; Bates v. Cherry Valley R. Co., 3 Thomp. & C. 16; Thomas v. Dickinson, 13 N. Y. 364 ; S. C, 23 Barb. 431 ; Kirsclimaun v. Lediard, 61 Barb. 573. 1 Williams v. Sims, 23 Ala. 513; Jolly V. Walker, 26 id. 690 ; Wilson V. Jones. 8 id. 536 ; Carter v. Penn, 4 id. 140 ; Moore v. Fleming, 34 id. 491. 2 Id. See, also, McKiel v. Porter, 4 Ark. 534; Elliott v. Chilton,:5 id. 181. 3 Neff V. Clute, 12 Barb. 466 ; Baker V. Jordan, 5 Humph. 485 ; Pledger v. Wade, 1 Bay, 35 ; Sturges v. Keith, 57 111. 451 ; Neiler v. Kelley, 69 Pa. St. 403 ; Work v. Bennett, 70 id. 484 ; Eastern R. Co. v. Benedict, 10 Gray, 212; Arnold v. Suffolk Bank, 26 Barb. 424 ; Thomas v. Dickinson, 23 id. 431 ; S. C, 12 N. Y. 364 ; Child v. Pierce, 37 Mich. 155 ; Clay v. Huston, 1 Bibb, 461; Parks v. Marshall, 10 Ind. 20; Smith v. Duulap, 12 111. 184; Rutan V. Hinchman, 29 N. J. L. 112. In Bicknall v. Waterman, 5 R. I. 43, there was an agreement for the exchange of a specified lot of cotton for a specified note of a third person at an agreed price for the cotton. The agreement was made through a broker acting for the parties, and, it being agreed that the purchaser's note should be given for the differ- ence, nothing remained to be done but to deliver the cotton and receive the notes. It was held to be no de- fense to an action upon the contract for not delivering the cotton upon tender of the notes, that before the contract was entered into the maker of the first named note had failed, both parties and the broker being at the time of the contract ignorant of the failure; the law implying, in such a contract of exchange, no war- ranty of the solvency of the maker. The rule of damages in such a case was held to be the value of the note in money at the time of the contract, at the stipulated price of the cotton to be received in exchange, with in- terest upon the value from the day the cotton was demanded : the note which had been deposited in the registry of the court to be at the dis- posal of the defendant. ^Derleth v. Degraaf, 51 N. Y. Super. Ct. 369 ; Potter v. Merchants' Bank, 28 N. Y. 655 ; Thayer v. Man- ley, 73 id. 307; Hynes v. Patterson, 95 id. 6. § 660.] VENDEE AGAINST VENDOK. 1471 transfer thereof recovery is based on their market vahio, if they have such. In the absence of that evidence of value, [301] other circumstances must be resorted to; and tlieir nominal vahie will perhaps be accepted where there is no other proof. In one case the plaintiff agreed to sell a certain patent to the defendants, Avho, it was recited in the agreement, were about to organize a company for the manufacture of the articles under the patent ; the plaintiff agreed to make such convey- ance as should be necessary to carry the agreement into effect immediately upon the organization of the company; and in consideration thereof the defendants agreed to transfer to the plaintiff, among other things, an amount equal to 8-50,000 of the capital stock of the corporation. The court held that the plaintiff was entitled to damages for the breach of this con- tract; that the amount depended on the value of the stock after the corporation was formed, to be proven by showing what such value would have been if the company had been formed, taking into consideration the property that was to be transferred, and also that by the breach the plaintiff was re- leased from the obligation to transfer it. In such a case it was held to be erroneous to give the plaintiff damages to the nominal amount of the stock. Referring to a previous case/ Ingraham, J., said : " In that case the rule of damages was said to be the amount of the obligation to be delivered in pay- ment. But there the plaintiff had transferred to the defend- ant the property he had agreed to sell, and the court held that the plaintiff could recover the price at which the same was agreed to be sold. Here there has been no conveyance of the property, but the same is retained by the plaintiff, and he is only entitled to damages, and not to the nominal value agreed to be paid. The rule of damages is to be fixed by proof of what the value of the stock would have been if the contract had been performed, over and above the property retained by the plaintiff. Had the property been transferred by the plaintiff, then, in the absence of any proof of value, the rule adopted on the trial would have been the correct one." The trial court had directed a verdict for the nominal amount of the stock.^ Contracts are not unfrequently made upon [392] 1 Thomas v. Dickinson, 23 Barb. 2 Kirschmann v. Lediard, 61 Barb. 431 ; reversed, 12 N. Y. 364. 573 ; Bates v. Cherry Valley, etc. R 1472 VENDOR AND VENDEE PEKSONAL PROPERTY. [§ GGO. executed considerations to pay a stated sum in specific articles. Upon failure to deliver the articles at the time they are due, the contract famishes, in the designated sura, the measure of damages. It is the sum stated and agreed to be paid, with interest.^ Where the agreement is to pay a certain specified ?um in specific articles at a stated price^ there is much conflict as to the criterion of damages. Thus, a contract to pay $250 at a future day, in brown cotton shirting at thirty cents per yard, was held to be an agreement to pay 8250, with an option to the maker to pay at maturity in brown shirting at the stipu- lated price per yard. The court say that the promise to pay $250 necessarily implies a recognition of indebtedness to that amount ; that the residue of the note has no bearing on this point, and relates exclusively to the mode of payment ; that the manner in which the debt is to be paid, whether in cash or in collateral articles, has no relevancy in ascertaining the sum due; it points to an object wholly separate and distinct. This is an early and leading case upon the rule of damages which it Co., 3 Thorap. & C. 16 ; affirmed, 59 N. Y. 641. In liyer v. Eich, 1 Met. 180, it was held that a promise that one shall receive a certificate of ten shares of the corporate stock of a certain man- ufacturing company whose capital stock shall be $100,000, divided into no more than two hundred si' ares, is not fulfilled by a tender of a certifi- cate of ten shares of stock in that company of which only $35,000 are paid in, divided into seventy shares. And it was also held that the rule of damages for breach of such promise is the value of ten shares in the full capital stock, if it had been made up at the time stipulated, and the com- pany had been then ready in good faith to operate upon such capital ac- cording to the charter. 1 Haywood v. Haywood, 42 Me. 239; Alexander v. Macauley, 6 Md. 359; Marshall v. Ferguson, 23 Cal. 65 ; Burr v. Brown, 5 W. Va. 241. See Currie v. WJiite, 6 Abb. (N. S.) 352; Moore v. Hudson R. Co., 12 Barb. 156. In Jones v. Foster, 67 Wis. 296, the purchaser of mill machinery was to pay a certain price with interest, by sawing logs which the vendor was to furnish, in yearly instalments until all the timber on certain lands was cut; this might be done in two years, and was required to be done in four. After the expiration of four years the purchaser brought an ac- tion based on the failure to furnish logs. It appeared that if the agree- ment had been complied with the machinery would probably have been paid for by the sawing which would have been done in two years. The plamtiff recovered as damages a sum equal to the profits he would have made if the logs had been supplied, less the price of the machinery and two vears' interest thereon. § CGO.] VENDEE AGAINST VENDOR. 1473 lavs down. Tlosmer, C. J., delivering the unanimous opinion of the court, further expounded the contract by saying : " If the defendant, when the note was given, did not owe the plaintiff $250, and this sum is to be considered as a penaltv to enforce the contract, what is the value of the stipidation? It is a promise to -pa,y blank yards of cotton shirting, and void for un- certainty. Ex])unge the $250, or what is virtually the same thing, decide that it is not the real amount of debt, or liqui- dated damages, and the note contains no criterion by which the number of yards of shirting can be estimated. Now, [393] as the quantity of shirting is not mentioned, it necessarily fol- lows that unless the $250 is the sum due to the plaintiff, and therefore a standard by which to establish the value of the con- tract, there is no certain engagement in words, or by reference, from which the debt can be ascertained. It is admitted by the defendant that if the note had been for $250, payable in cotton sliirting, and there had ceased, that the damages, in the event of non-payment, must be the sum expressed. This surrenders the question in controversy. Why should the above sum be pay- able in the event expressed ? For this convincing reason : be- cause the damages are liquidated. But if the damages had been liquidated, the subsequent agreement that the shirting should be received at thirty cents per yard can have no possible effect on the prior liquidation. It was not inserted for that purpose, but to obviate the necessity of recurring to parol proof for the ascertainment of the value of the shirting should it be deliv- ered. For this end the parties agreed on a certain arbitrary val- uation, which they anticipated would probably be the real value, but which, in all events, thoy, for their mutual conven- ience, agreed to consider as such. This is the whole scope and effect of this latter clause in the note : that the defendant micht know how many yards of shirting to deliver, and the plaintiff how much he was entitled to demand, if it should be tendered. The case has been argued for the defendant as if there had been a promise to deliver a certain number of yards of shirting, and an omission to deliver them. That would present a ques- tion of unliquidated damages, in which resort must be had to parol testimony to ascertain the value of the contract, but it has no imaginable bearing on the case before the court in which the debt is ascertained. It has been contended that in no case can Vol. 11 — 93 1474 VENDOR AND VENDEE — PEESONAL PROPERTY. [§661, the plaintiff recover a sum greater in amount than the value of the article, which, had it been tendered, would have satisfied the contract. This principle is manifestly incorrect ; and is not always true, even when applied to a case where the damages have not been liquidated. In a contract for the transfer of stock on a certain day, the party promising may be relieved by a strict performance of his engagement ; but, if he omit to do it, the court will award in damages against him the price of the [304] stock, although it has risen at the moment when the judgment is rendered. The construction which I have given to the note in question is according to the obvious intention of the parties, and perfectly equitable in its result. The sum expressed is to ascertain the indebtedness, that is $250 ; and the residue to give an option to the defendant to pay the debt in collateral articles at a stipulated price. If the payment were not made, what must be the expected consequence? That this part of the agreement should be as if it had never existed ; and then the whole contract should be comprised in the expression, 'I promise to pay $250.' Nothing can be more conformable to natural justice. The plaintiff will receive the precise sum admitted to be his due, and no more. And if the defendant is in a condition less eligible than he would have been if he had availed himself of the option allowed him it "was his voluntary choice. After he had renounced the privilege accorded to him, to limit the recovery of the plaintiff by the value of the cotton shirting, would be to give the defendant the abnegated option in another shape, in defiance of equity, and in opposition to the agreement of the parties." ^ § 661. Same subject ; author's opiuion. This view of the law was adopted afterwards in New York, There were ear- lier decisions there to the same effect, but they received less consideration. The clause of the contract providing for pay- ment in specific articles and fixing the value was deemed to be inserted for the benefit of the debtor ; it offers him a mode of payment which he can adopt or not at his pleasure. The contract thus construed is an alternative one, authorizing the debtor to pay the sum stated therein in specific articles when due, or in money. The chancellor remarked in the course of 1 Brooks V, Hubbard, 3 Conn. 58, § 661.] VENDEE AGAINST VENDOR. 1475 his opinion that "the language is certainly not the best which could be used to express such an intent, and probably if the contract was drawn by a lawyer he would put it in the al- ternative, giving the debtor the option in express terms to pay the debt in money or in wheat at the fixed rate per bushel. But certainly if the intention of the parties was that a certain number of bushels of wheat should be abso- [395] lutely delivered in payment, a lawyer would draw the note for so many bushels of wheat in direct terms." ^ In some other states such a contract is construed as an agreement for the delivery of the specific articles, and in case of breach by non-delivery the rule of damages is the value of the articles and not the sum stated therein.- Uninfluenced by any tradi- tional use or extraneous practical construction of such con- tracts in states or localities where they are common, giving them, or tending to give them, by custom, a special meaning which the language does not suggest, they appear to the writer to be contracts, not simply to pay the sum mentioned, but mutually binding to make and receive payment as the in- strument specifies, and that upon default of the debtor the general principle in respect to the quantum of damages which applies generally will govern; that is, that the creditor shall receive such sum in damages as Avill place him in as good con- dition as though the goods or property had been paid accord- ing to the contract. The divergence of the decisions is wholly attributable to the singularity of holding the promise to pay in property at a specified price as not absolutely obligatory; that it imposes no absolute obligation on the debtor, nor con- fers any right on the creditor. A valid promise, for instance, to pay $250 in shirting at thirty cents a yard is obviously an absolute promise, in terms, to pay eight hundred and thirty- three and one-third vards ; read as the law construes contracts generally there is no room for interpretation. The creditor is 1 Pinney v. Gleason, 5 Wend. 393 ; McDonald v. Hodge, 5 Hayw. 86 ; AVest V. Wentworth, 3 Cow. 83; Gregg v. Fitzhugh, 36 Tex. 127; Smith V. Smith, 2 Jolins. 243. See Price v. Justrobe, Harp. Ill ; Wilson Haywood v. Haywood, 42 Me. 229; v. George, 10 N. H. 445; Mattox v. Trowbridge v. Holcomb, 4 Ohio St. Craig, 2 Bibb, 584 ; Cole v. Ross, 9 B. 38. Mou. 393 ; Starr v. Light, 22 Wis. 414 ; 2Meason v. Phillips, Add. (Pa.) Pierson v. Spaulding, 61 Mich. 90. 346; Edgar v. Boise, 11 S. & R. 445; l-iTG VENDOR AND VENDEE PERSONAL PROPERTY. [§ GGl. rot only entitled to be paid $250, but he is entitled to receive it in shirting at that price, and the debtor binds himself to make payment accordingly. If there is a want of directness in the agreement, and it would be more natural to express the intention and legal effect by a direct promise of the num- ber of yards, it may be answered that it is not a legitimate deduction from this slight circuity that the parties do not [39G] mean what they say; it is more objectionable to infer that they mean something which they have not said, either directly or by any circumlocution. The interpretation which allows the promisor an option to pay the $250 in money in satisfaction of his promise ignores a part of the contract and treats it as expunged. The promise as made is not an abso- lute promise to pay $250, either in money or in value. If the shirting should be worth just thirt}'^ cents a yard when the pay- day comes the nominal would be the real value, not other- wise. If the shirting should be worth more than thirty cents per yard when due, the promise to the extent of that excess would be for more than $250. Hence by making this con- tract there is no precise liquidation of indebtedness. Nor is there any implication from the contract that the indebtedness ever existed in any other form. If it in fact did previously exist as an absolute debt for that amount, the action for breach of this contract would not be affected by that circum- stance. Doubtless, after a default an action might be sus- tained on the indebtedness in its prior form, as though the promise to pay it in specific articles had never been made ; because the making of the contract in such case, without per- formance, would not satisfy the debt; receiving it would be only a conditional payment, and after default no payment at all. In a case in Ohio where a contract was entered into for work at a certain price, with a stipulation that the same was to be paid for in specific articles at an agreed rate and price, the debtor was held to have an election to deliver the articles or pay the money if such right is expressed or fairly to be implied. If not expressed and the subject-matter, or res gesUv^ indicates that no such right of election was contemplated by the parties, then the general rules of law relating to execu- tory sales are applicable, and the contract is a single and im- § 662,1 VENDEE AGAINST VENDOR. 1477 pemtive promise to deliver the specific articles. If the right of election to i)ay money or the articles at the option of the debtor exists, and the latter are not delivei'cd, the ])laintitf should recover the amount of the debt and interest; but if no such election is expressed or implied the plaintiff is entitled to the market value of the articles with interest.' § 66'i. Couseiiuoiitial damages on contracts of sale. [397] The damages which a ])urchaser is generally entitled to for failure of the vendor to deliver the property contracted are measured by the rules which have been discussed in the preced- ing pages.- Under special circumstances known to the parties at the time of contracting, the damages may be enhanced be- yond the real or market value of the pro})erty. This is the case when the sale is made for some special use of it by the purchaser, and where, in consequence of the non-delivery, he, in respect to that intended use, sustains damages beyond its value, or the difference between the contract and market price of the property. If a person contracts with another for the sale of personal property and breaks his contract, the proper damages are such as may fairly and reasonably be considered either as arising naturally from the breach of contract, or such as may reasonably be supposed to have been in the contempla- tion of the parties at the time they made it as the ])robable result of its breach.* It is but the general rule of damages for breach of contract applied to contracts of sale. If the contract be simply one for merchandise at a certain price, to be delivered at a designated time and place, the rule of the difference between the contract and market price and interest affords full compensation ; for the vendee may go into the market and purchase like goods at the current price, and thus save himself from loss. Where, however, particular goods, or 1 Cleveland & P. R. Co. V. Kelley, Griffin v. Colver, 16 N. Y. 489; 5 Ohio St. 180. Sineed v. Foord, 1 Ellis & E. 602. In Harrington v. Wells, 12 Vt. 505, The holder of an insurance policy it was held that if one agrees to pay upon a house he has sold is not liable a certain sum in specific articles, because of his failure to assign it as worth much less than the agreed agreed for the loss resulting from the price, but fails to fulfill, he is liable destruction of the house. The cost for the sum stipulated. of insuring it for the remainder of -See, also, vol. 1, ij 45. the term measures his responsibility. 3 Hadley v. Baxeudale, 9 Exch. 341 ; Dodd v. Jones, 137 Mass. 322. 1478 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 662. those of a designated description, are bargained for for a spe- cial purpose, or for delivery at a particular time and place in view of ulterior contracts or preparations, a failure of the vendor to perform may cause injury which would not be com- ])ensated by that rule ; but unless, according to the great pre- ponderance of authority, that purpose, or the special circum- stances from which, in case of default, such consequential damages would proceed, were communicated to the seller when the bargain was made, such damages, though they may arise naturally and proximately from the breach of the con- tract, are yet exceptional, and cannot be said to have entered [398] into the contemplation of the parties.^ A view some- what at variance with that stated and the current of authority has recently been held in Virginia by a majority of the judges of the court of last resort. There was no market at or near the place appointed for the delivery of the property, which was paid for in advance, and which the vendor did not deliver. Subsequent to the making of the contract a resale of the prop- erty was made at an advance over the purchase price. The ])rice upon the resale was held to afford the best and ver}'' sat- isfactory evidence of its value. Referring to the distinction stated between a resale made at an advance subsequent to a contract of purchase and one made before that event and of which the vendor is informed, the court observe : " This is a rather fanciful distinction. It is not in accordance with the ordinary usages of trade that a dealer, a man bu3^ing to sell again, should disclose his dealings with the same goods at a profit to his vendor. But if there were any sound principle upon which this could rest, if the seller could be supposed to enter into his contract upon the basis of a resale in which he had no interest, still, in this case, it is reasonable to suppose that a lumber-getter selling seven hundred thousand feet of lumber to a dealer in lumber should know (1) that it was for a resale ; (2) that this resale was to be on a profit ; and (3) 1 Buffalo Barb Wire Co. v. Phillips, 420 ; Parks v. O'Connor, 70 Texas, 64 Wis, 338 ; Goodkind v. Rogan, 8 377 ; Cuddy v. Major, 12 Mich. 368 ; 111. App. 413 (cost of reshipment of Young v. Cureton, 87 Ala. 727 ; Mann goods not according to warranty not v. Taylor, 78 Iowa, 355 ; Rahm v. recoverable); Jones V. National Print- Deig, 121 Ind. 283; Citizens' N. Gas ing Co.. 13 Daly (N. Y.), 192; Liljen- Co. v. Slienango N. Gas Co., 138 Pa. gren Furniture Co. v. Mead, 42 Miuu. St. 22. § 662.] VENDEE AGAINST VENDOR. 1479 that he should know that his vendee would be damaged to the amount of his profit if the vendor sliould prove faithless." ^ But according to the accepted rule, if, at the time of contract- ing, suilicient notice be given of the intended use or of other and dependent plans, the vendor on failure to deliver, or de- laying delivery, will be subject to proximately conseciuential damages. Thus, if the buyer has, in advance, made a contract for resale and discloses that fact to his vendor, who undertakes to furnish the commodity and deliver it at a specified time and place, arranged with reference to enabling the buyer to fulfill his contract for resale, and the vendor fails to deliver the pro])erty, he will be liable to damages on the basis of the profits the vendee would realize upon his contract for such re- sale.- Those profits may justly be said to have entered into the contemplation of the parties in making the contract. This rule is based upon reason and good sense, and is in strict ac- cordance with the plainest principles of justice. It affirms nothing more than that where a party sustains a loss by rea- son of a breach of contract he shall, so far as money can do it, be placed in as good a situation, by recovery of damages, as if the contract had been performed.* Expenses incurred in making sales in antici})ation of delivery may be recovered as well as the profits which would have been made.* 1 Trigg V. Clay, 13 S. E. Rep. 434; Co., 40 N. Y. 422; Imperial Coal Co. — Va. — . See Sterling Organ Co. v. Port Royal Coal Co., 138 Pa. St. 4o. V. House, 25 W. Va. 64, 90, 93. 3 ghouse v. Neiswaanger, 18 Mo. 2 Hammer v. Schoenfelder, 47 Wis. App. 236, 244, quoting the text ; Mess- 455, fully stated invol. 1,§50; Vick- more v. New York S. & L. Co., 40 ery v. McCormick, 117 Ind. 594; N. Y. 422. It was also held in this Jones V. National Printing Co., 13 case that where the article furnished Daly (N. Y.), 92 ; Abbott v. Hapgood, by the seller was not sucli as thepur- 150 Mass. 248 ; Van Winkle v. Wil- chaser was entitled to, and the seller kins, 81 Ga. 93 ; Eagle Tube Co. v. was notified to that effect, the pr.r- Edward Barr Co., 32 N. Y. St Rep. chaser had a right to sell it at tlii^ 299; S. C, 10 N. Y, Supp. 113: Rich- place of delivery for the best price he ardsou v. Chynoweth, 26 Wis. 656 ; could obtain, without giving notice Hamilton V. Magill, 12 L. R. Ire. 186; to the defendant of the time and Carpenter V. First Nat Bank, 119 111. place of such sale; that after such 352; Ramsey v. Tully, 12 111. App. sale he could recover from the vendor 463 ; Stewart v. Power, 12 Kan. 596 ; the difference between the sum paid Watson V. Bates, 5 Up. Can. C. P. and the sum realized on the resale. 366 ; Johnson v. Matthews, 5 Kan. * Harrow Spring Co. v. Whipple 122; Morrison v. Lovejoy, 6 Minn. Harrow Co., 51 N. W. Rep. 197; — 319 ; Messmore v. New York S. & L. Mich. — . 14S0 VENDOR AND VENDEE — -PERSONAL PROPERTY. [§ 663. § 6GJ». Same subject ; illustrations. Thus if a vendor in guano knows that the buyer has ordered it for use as a fer- tilizer and fails to deliver a portion of the quantity ordered, if the latter is unable to procure it elsewhere, the seller is liable for damages equal to the difference in value between the crop raised on the land on which the guano delivered was used and that raised on the same quantity of land of like quality and subjected to the same method of cultivation on which none was used in consequence of his breach.^ A vendor had notice that the vendee was buying the article, caustic soda — not ordinarily procurable in the market — for the pur- pose of resale at a distance. It was to be delivered, twenty- five tons in June, twenty-five tons in July, and twenty-five tons in August, None was delivered until September, and then only tw^enty six tons. If the vendee could have deliv- ered, on his contract, the soda which the vendor failed to deliver the profit thereon would have been 52^. 5.04. at the time of the delayed delivery damages for the delay may be assessed at the amount of the depreciation.^ In Mer- rimack Manufacturing Co, v. Quintard- it was held that, in- ferior coal having been delivered after the contract time, the vendee was entitled to the difference between the value at the place of delivery of the coal called for by the contract and the value of the coal delivered as damages for the inferior quality ; and that the measure of damages for failure to de- liver in time was not the difference in market value, but the difference between tlie actual charge for freight and insur- ance which had to be paid by the purchaser and the average rate during the time covered by the contract for monthly de- liveries. It was also held that evidence was admissible that freight on coal was usually higher in the autumn than in sum- mer, to show what was in contemplation of the parties, and that the loss occasioned by the increase in freight is properly to be recovered as damages. But it has been held in a com- paratively recent case that compensation for delay in deliver- [401] ing plank intended for a road does not include the increased expense of laying the plank by reason of such de- lay; that such damages are too indefinite." Sharswood, J., said : " To say that the increased expense of labor in putting down the planks in consequence of such delay would be such an immediate and proximate effect as ought to be charged to the common carriers seems to be entirely too indefinite. It would include a rise in wages, stormy weather, bad roads in consequence, which would be entirely beyond what would naturally have been within the view of the parties, and might well have happened even had tlie railroad company punctually performed their duty. The natural consequences of delay and stoppage of work, payment of wages and expenses aris- ino^ therefrom, and the loss from not havino- the work fin- ished at the time it otherwise would have been, form the rule." * It seems huij, reasonable that the purchaser should so far rely upon the vendor's punctual performance of his con- tract as to be justified in making necessary preparations to •Spiers v. Halsted. 74 N. C. 620; 2 1 07 Mass. 127. Startup V. Cortazzi, 2 Cr.. M. & R. 3 Peunsylvania R. Co. v. Titusville, IGo ; Clements v. Hawkes Mauuf. Co., etc. Co., 71 Pa. St 350. 107 Mass. 302. * Id § 665.] VENDEE AGAINST VENDOR. 14S3 receive the property he has agreed to deliver, and that these should be compensated for by the vendor if he does not per- form ; ^ but this is not the rule in Pennsylvania if he has no notice of the circumstances.- Where the defendant agreed to construct a ship which he knew was intended to carry ])as- sengers to Australia, and special damages were claimed for delay in completing it, in this, that if the shij) liad been deliv- ered according to the contract the plaintiffs would liave made a profit of £7,000 on the voyage, but, in consequence of a fall in freight, they made only £-l:,2S0 after the vessel was deliv- ered, the jury gave a verdict for the plaintiff for £2,750 dam- asres, which the court refused to set aside.' § 665. Same subject. A vendor agreed to deliver by a stipulated day a steam-engine, intended, as he knew, to drive machinery for the sawing and planing of lumber. It was not delivered till a week after the day fixed. In the assessment of damages for the breach of contract in this delay, the vendee proved that the net average value of the engine at the time and place, and for the purpose intended, was §50 a day beyond the wear and tear of the machinery and the cost of running it. This result was obtained by a calculation of the wear and tear of the machinery, the cost of running it, and the amount of lumber it Avould saw and plane in a day, together with the prices which the vendee received for the sawing and planing. This mode of arriving at the damages was rejected. It was held that the proper rule for esti- [-lOtJ] mating them was to ascertain what would have been a fair price to pay for the use of the engine and machinery in view of all the hazards and chances of business.* Some general principles were laid down in the decision of this case which have been extensively quoted with approval. It was iieid that the rule which precludes the allowance of profits by wav of damages is not a primary rule, but a mere deduction from that more general and fundamental rule which requires that the damages claimed should in all cases be shown by clear and satisfactory evidence to have been actually sustained ; that it is a well established rule of the common law that the •Chatham v. Jones, 69 Texas, 744. 3 Fletcher v. Tayleur, 17 C. B. 21. 2 Billmeyer v. Wagner, 91 Pa. St. See Blanchard v. Ely, 21 Wend. 342. 92. * Griffin v. Colver, 16 N. Y. 489. 1484 VENDOR AND VENDEE PERSONAL PROPERTY. [§ GG5. (lama ores to be recovered for a breacli of contract must be shown with certainty, and not left to speculation or conject- ure; that it is under this rule that profits are excluded from the estimate in such cases, and not because there is anything in their nature which should j^er se prevent their allowance. Profits which would certainly have been realized but for tlie defendant's default are recoverable; those which are specula- tive or contingent are not. It w^as remarked that nearly every element entering into the vendee's computation of damages would have been of that uncertain character which has uni- forndy prevented a recovery for speculative profits. Selden, J., said : " The broad general rule in such cases is that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions. The damages must be such as may fairly be supposed to have entered into the contempla- tion of the parties when they made the contract ; that is, must be such as might naturally be expected to follow its violation ; and they must be certain, both in their nature and in respect to the cause from which they proceed. The familiar rules on the subject are all subordinate to these. For instance: That the damages must flow directly and naturally from the breach of contract is a mere mode of expressing the first; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or 1 4:03] contingent, are different modifications of the last. These two conditions are entirely separate and independent, and to blend them tends to confusion; thus the damages claimed may be the ordinary and natural and even necessary result of the breach; and yet, if in their nature uncertain, they must be rejected. ... So the}^ may be definite and certain, and clearly consequent upon the breach of contract, and yet if such as would not naturally fiow from such breach but for some special circumstances, collateral to the con- tract itself, or foreign to its apparent object, they cannot be recovered." ^ In a suit to recover damages for the non-delivery of a plan- ing machine, it appeared that the plaintiff, a resident of Iowa, 1 Freeman v. Clute, 3 Barb. 424; vol. 1, g§ 53, 58, 59. § 066.] VENDEE AGAINST VENDOR, 1485 came to the defendant's warehouse in Chicago and bought tlie machine, which he selected with reference to its weight and finish. He paid $100 in hand, and was to pay $4.o0 more on its delivery at his residence in Iowa. The contract was that he was to have the identical macliine he had selected, which was to be shipped when ordered. The plaintiff returned home to put up his shafting and pulleys, with the understanding that he was to send for the machine as soon as he should be ready to put it up. He ordered it by letter on the 13th or 14th of March, and after a delay of fifteen or sixteen days received a letter saying that a machine had been shipped to him. lie declined to receive any machine except the one bought ; he de- manded it, and it was refused on the 13th of April, and on the same day he bought another machine. On the trial the plaint- iff offered to prove that he had erected a building, and put in a steam-engine and shafting at an expense of $5,000, with a view to the use of this machine; that the defendant had notice of this when the contract was made ; that it all lay idle for thirty-five days in consequence of the defendant's breach of his contract. It was held that such evidence Avas admissible; that, in arriving at the damages which the plaintiff was en- titled to recover, he should be allowed to show what would have been a fair rent for the use of the building and machin- ery, if in running order, during the time they lay idle in con- sequence of the defendant's refusal to deliver the ma- [404] chine; though he should not be allowed for any longer time than was reasonably necessary for supplying himself with an- other machine of similar character, after being advised of the defendant's refusal to send the one purchased ; and should not be allowed anything for probable profits.^ § 666. Same subject. An English case illustrates this prin- ciple in a striking manner. The defendant had contracted to furnish a steam threshing-machine on a fixed day, which was wanted, as he knew, for the purpose of threshing the plaintiff's wheat in the field,' so that it could be sent at once to market. He failed to deliver the machine in time, and the plaintiff was obliged to carry the wheat home and stack it. The wheat was injured by a thunder-storm, and it was necessary to kiln- dry a part of it ; its market value was thereby diminished, and 1 Benton v. Fay, Gi 111. 417. 1486 VENDOR AND VENDEE PERSONAL PROPERTY. [§ C6G. before it could be sold the market price had fallen. It was held that plaintiff Avas entitled to recover damages for the ex- pense of carting and stacking the wheat, for tlie loss by reason of the exposure to the weather, including the expense of kiln- drying. In respect to these items Lord Campbell, C. J., said : " The plaintiff, wdio was a large farmer, was known by the de- fendant to be accustomed to thresh out his wheat in the field ; he gave the order for the threshing-machine, which, it was agreed, should be delivered on the 14th of August, at which time the wheat might reasonably be expected to be ripe for threshing ; the defendant knew that it was wanted for that pur- ]3ose. Then, was it not in the contemplation of the parties that, if it was not delivered at that time, damage by rain might en- sue to the plaintiff? The thunder-storm occurred, and the plaintiff's wheat was damaged. If the engine had been deliv- ered at the time agreed upon, the corn would have been threshed out, and would have been carried to market in good condition, instead of wiiich it was damaged. Is not this injury a natural consequence of the breach of contract? And may it not reason- ably be supposed to have been foreseen by the parties? . . . Therefore, as respects those items for which the plaintiff claims damages as resulting from the falling of the rain, I am of opinion that he is entitled to recover. But, as respects [405] the fall of the market price of wheat in respect of which he claims damages, my opinion is quite different; because it could not have been foreseen by the parties that the market would fall; it was not in the contemplation of the parties at the time they made the contract, and was not the natural con- sequence of the breach of contract." ^ This discrimination between a loss from exposure to rain and loss from fall in the market price does not appear to have caused any criticism, although the case has been frequently referred to.^ The latter, IS meed v. Foord, 1 E. & E. 602; 2in Wood's Mayne on Damages, See Friend & T. Lumber Co. v. Mil- p. 35, the following is said in respect ler, 67 Cal. 464 (holding that damages to Smeed v, Foord, 1 E. & E. 602 : caused by delay may be recovered, but " The concluding part of the above not those which result from a failure ruling was put upon a finding of fact, to perform) ; Van Winkle v. Wilkins, viz. : that the parties could not have 81 Ga. 93 (depreciation of cotton-seed contemplated a fall in the market while the owner was awaiting the ai*- as one of the natural consequences of rival of machinery, recovered for), a breach of contract Upon this § aQQ.} VENDEE AGAINST VENDOR. 14 S 7 however, arose as proximately from the delay in fnrnisl)ing the machine as the other loss did; neither could have been foreseen; both did occur; and the parties must have known when the bargain was made that, if the vendor dela3'ed per- formance, a loss from rain or from fall in the market was equally possible. The machine was relied u])on to do the threshing, and the circumstances were such tliat the court hold that the plaintiff was entitled to rely upon it. Had the storm destroyed the entire crop, notwithstanding such exertions of the plaintiff to prevent it as the law required him to make, the defendant, on the principle of the decision, would have been liable for its value ; and that value would be the market value at the time of the loss, or at the date when, by reason of the breach of contract, the plaintiff was prevented from real- izing the value by sale. On the principle that the injured party is to be placed in as good a situation by damages [406] as he would have been in if tiie contract had been performed, the value should be assessed, in the case supposed, at the time when, but for the defendant's breach of contract, the wheat would have been taken to market. In the actual case the plaintiff was entitled to that measure of damages, less the value of what he was able to save from destruction by the precautions he took and was required to take. As the plaint- iff's exertions, for this purpose, were rendered necessary by the defendant's breach of contract, he was bound to make compensation for them ; he was relieved thereby from paying tlie value of a totally lost crop.^ The net amount saved was its value, then, after satisfying the charges for the saving; and this, taken from the total value which would otherwise point, however, it is difficult to see loss so incurred would have been the distinction between this case and part of the natural loss arising frona the other cases quoted below: Col- breach of contract Here the def end- lard V. South Eastern Ry. Co., 7 H. & ant onlj^ undertook to supply him N. 79 ; Eorries v. Hutchinson, 18 C. with a threshing-inaciune. But eveiy B. (N. S.)445; 34 L. J. (C. P.) 169; consequence winch legally followed Ward V. New York C. R Co., 47 N. from the breach of the contract to Y. 29. If the defendant had under- thresh followed as an equally natural taken to thresh the plaintiff's wheat consequence from a breach of con- and hand it over to him, and, in con- tract to supply the means of thresh- sequence of his delay, the market iug." had fallen, these cases decide that the ^ Vol. 1, § 88. 1488 VENDOR AND VENDEE PERSONAL PROPERTY, [§ 6G7. liave been lost, would leave, according to familiar analogies, the amount of the plaintiff's actual loss. By this method of com])utation the loss from a decline in the market would fall on the defendant.' The agreement of a carrier to deliver is like a vendor's* agreement to deliver, and the same rule of damages is applied. A loss from a fall in the market at the time of a dela^^ed de- livery arises directly from the breach of contract.^ Here the liability would end, if the whole property were finally de- livered without diminution or deterioration, unless there are special circumstances which enter into the contract and give it more scope. A contract to deliver a threshing-machine at a given time to enal^le a farmer to thresh his wheat, with a view to its being taken at once to market, is not simply a contract to deliver a machine; it is a contract to do, at a specified time, one of a known series of acts for the purpose of getting the wheat immediately to market. The general damages aris- ing from delay in delivering property or the failure to deliver it in proper condition may be mitigated by proof of subse- quent delivery or of repairs made by the vendor.^ [407] § 667. Warranties of quality and of title. To de- termine whether a warranty exists is often a difficult ques- tion. On an executory contract for the sale and delivery of goods of a particular description the vendee is not obliged to receive and pay for those offered, unless they correspond therewith. The contract to furnish such goods is strictly a precedent condition. When the vendor offers goods the maxim caveat emptor warns the vendee to make due exami- nation, and reject them if they do not conform to the require- 1 See Ward v. New York C. R. Co., 576 ; Cowley v. Davidson, 13 Minn. 47 N. Y. 177; Collard v. South East- 92; Collins v. Baumgardner, 52 Pa. ern Ry. Co., 7 H. & N. 79 ; The Par- St. 461 ; Atkinson v. Steamboat C. G., ana, 1 P. Div. 453. 28 Mo. 124 ; Smith v. New Haven & 2 Ward V. New York C. R. Co., N. R. Co., 12 Allen, 531 ; Wilson v. supra; Sturgess v. Bissell, 46 N. Y. Lancashire R. Co.,9 C. B. (N. S.) 632; 462; Weston v. Grand Trunk R Co., Ingledew v. Northern R., 7 Gray, 88; 54 Me. 376; Peet v. Chicago, etc. R. Spring v. Haskell, 4 Allen, 112; Cut- Co., 20 Wis. 594; Medbury v. New ting v. Grand Trunk Ry. Co., 13 id. York & C. R Co., 26 Barb. 564 ; Sis- 381. son V. Cleveland, etc. R. Co., 14 Mich. 3 Marsh v. McPherson, 105 U. S. 489 ; Briggs v. New York R Co., 28 709. Barb. 515; Colvin v. Jones, 3 Dana, § 667.] VENDEE AGAINST VENDOR. 1-189 ments of the contract. If tliey are apparently goods of the kind so requh-ed, are tendered on the contract, and uncondi- tionally received without objection, the right to ol>ject is waived in respect to any want of conformity which could have been ascertained by a careful examination. The tender and jicceptance make the contract an executed one for the sale and purchase of specific articles.^ It is not always practicable or possible, by inspection at the lime of delivery, to determine whether property offered upon an existing contract, or for sale, possesses certain qualities which the purchaser is charged for in the price. To some ex- tent the law implies a w^arranty; but beyond this, the pur- chaser must assure himself against loss from defects or want of fitness for his purpose by inspection, or by obtaining a war- I'anty. The vendee is entitled to an opportunity to make such examination of the goods offered on an existing contract as will enable him to ascertain whether they fulfill its require- ments; and if they are of such a nature that qualities or fit- ]iess stipulated for can only be ascertained by the use or con- sumption of the property, or for any reason are intended to be ascertained before the title passes, the contract in respect to them is a warranty. Such a case is preciselj^ like an}'' bar- gain and sale with a representation or warranty of qualities or fitness.^ But in case of a sale of specific goods, there being no [408] undertaking to furnish those of particular quality or fitness; and when goods are delivered on an existing contract requir- ing a particular quality, the absence or presence of which can 1 Parks V. O'Connor, 70 Tex. 377, Ax, etc. Co., 54 N. Y. 586 ; Baird v. 387; Woods v. Cramer, 34 S. C. 508. Mathews, 6 Dana, 130; Lewis v. spiiiladelphia Wliiting Co. v. De- Roundtree, 78 N. C. 323; Pease v. troit White Lead Works, 58 Mich. 29 ; Sabin, 38 Vt. 432 ; Wolcott v. Mount. Lee V. Sickles Saddlery Co., 38 Mo. 36 N. J. L. 263 : Boothby v. Scales, 27 App. 201 ; Day v. Pool, 52 N. Y. 416 ; Wis. 626 ; Howard v. Hoey, 23 Wend. Foot V. Beutley, 44 id. 166; Howie v. 350; Murray v. Smith. 4 Daly, 277; Rea, 70 N. C. 559 ; Polhemus v. Hei- Seisworth v. Leffel, 76 Pa. St 476 ; man, 45 Cal. 573; Thomas v. Francis, Brown v. Burhans, 4 Hun, 227; Kim- 12 Ind. 282 ; Esty v. Read, 29 Vt. 278 ; ball & A. Manuf. Co. v. Vroman. 35 Dounce v. Dow, 57 N. Y. 16 : Hoe v. Mich. 310 ; Dill v. O'Ferrell, 45 Ind. Sanborn, 21 id. 532 ; Brantley v. 268 ; Cox v. Long, 69 N. C. 7. Thomas, 22 Tex. 270 ; Parks v. Morris Vol. n — 94 1490 VENDOR AND VENDEE — PEliSONAL PKOPEKTY. [§ 667. be seen on mere view, the purchase is without warranty; or their acceptance without objection leaves the seller relieved of all responsibilit}^ for the goodness, quality or fitness of the property.^ 'But if the goods delivered differ from those con- tracted for in kind or generic description, and there is no other acceptance than receipt and use of those furnished, the inten- tion to deliver or accept them on the contract will not be in- ferred, and the vendor will only be entitled to recover for them on a quanUim, msruit? In a recent case ^ Mellor, J., thus sums up and classifies the English cases: "First. Where goods are in esse and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent and not discoverable on examination, at least where the seller is neither the grower nor manufacturer.* The buyer in such case has the opportunity of exercising his judgment upon the matter ; and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment, he may, if he chooses, require a warranty. In such a case it is not an implied term of the Ci^ntract of sale that the goods are of any particular [409] quality or are merchantable.' So in the case of a sale in the market of meat, which the buyer had inspected, but which was in fact diseased and unfit for food, the maxim 1 Titley v. Enterprise Stone Co., 127 Mass. 197 ; Moses v. Mead, 1 Denio, III. 457; Howard v. Hoey, 23 Wend. 378; 5 id. 617; Hyland v. Sherman, 350; Hart v. Wright, 17 id. 267; 2 E. D. Smith, 234; Gaylord Manuf. Locke V. WilHamson, 40 Wis. 377 ; Co. v. Allen, 53 N. Y. 515 ; Ranger v. Delafield v. De Grauw, 3 Keyes, 467 ; Hearne, 37 Tex. 30. Muller V. Euo, 3 Duer, 421 ; S. C, 14 2 Murray v. Farthing, 6 Mo. 251 ; N. Y. 597; Wilkins v. Stevens, 8 Vt. Andrews v. Eastman, 41 Vt. 134. 214; Houghton v. Carpenter, 40 Vt. 3 Jones v. Just, L. R 3 Q. B. 197, 588 ; Reed v. Randall, 29 N. Y. 358 ; 202. Fitch V. Carpenter, 43 Barb. 40 ; Cole * Parkinson v. Lee, 2 East, 314. V. Champlain T. Co., 26 Vt. 87 ; Bar- 5 in Hinckley v. Kersting, 21 111. nard v. Kellogg, 10 Wall. 388 ; Hyatt 247, it was held that the rule of V. Boyle, 5 Gill & J. 110; Hargous v. caveat emptor applies to a banker or Stone. 5 N. Y. 73 ; Merriam v. Field, broker who deals in depreciated bills 39 Wis. 578 ; McClung v. Kelley, 21 as an article of commerce ; and if a Iowa, 507; Hamilton v. Ganyard, 34 bank bill purchased by him proves Barb. 204; Cleu v. McPherson, 1 to be of less value than the price Bosw. 480 ; Morehouse v. Comstock, given for it, the vendor is not bound 42 Wis. 626 ; Jones v. Murray, 3 T. B. to make it good, where the transac- Mon. 83 ; Emerson v. Bingham, 10 tion is in good faith. § 067.] VENDEE AGAINST VENDOR. 1491 caveat emptor applies.' Secondly. "Where there is a sale of a definite existing chattel, specifically described, the actual con- dition of which is capable of being ascertained by either party, there is no implied warranty.^ Thirdly. Where a known, described and defined article is ordered of a manufact- urer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, defined and de- scribed thing be actually supplied, there is no warranty ; there is no warranty that it shall answer the particular purpose in- tended by the buyer.' Fourthly. Where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particu- lar purpose, so that the buj'-er necessarily trusts to the judg- ment or skill of the manufacturer or dealer, there is in that case an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied.* In such a case the buyer trusts to the manufacturer or dealer, and re- lies upon his judgment and not upon his own.^ Fifthly. 1 Emerton v. Mathews, 7 H. & N. 586. 2I-Iege V. Newsom, 96 Ind. 426; Burr V. Gibson, 3 M. & W. 390. See ante, p. 1489 ; Kohl v. Lindley, 39 111. 195; Humphre5s v. Comline, 8 Blackf. 516; McGuire v. Kearney, 17 La. Ann. 295 ; Deming v. Foster, 43 N. H. 165 ; Moses v. Mead, 1 Denio, 378; Mixer v. Coburn, 11 Met. 559; Joslin V. Coughlin. 26 Miss. 134; Holden v. Dakin, 4 Johns. 421 ; Bart- lett T. Hoppock, 34 N. Y. 118; Bow- man V. Clemmer, 50 Ind. 10; Fount- leroy v. Wilcox, 80 111. 477 ; McCrea V. Longstreet, 17 Pa. St. 316. 3 Chanter v. Hopkins, 4 M. & W. 399 ; Ollivant v. Bayley, 5 Q. B. 288 ; Bounce v. Dow, 64 N. Y. 411 ; Dem- ing V. Foster, 42 N. H. 165; McGraw V, Fletcher, 35 Mich. 104; Bragg v. Morrill, 49 Vt. 45. 4 Brown v. Edgerton, 2 M. & G. 279 ; Jones v. Bright, 5 Bing. 533. s Dayton v. Hooglund, 39 Ohio St. 671 ; Jones v. George, 61 Texas, 345 ; Fox V. Stockton Harvester, etc. Works, 83 Cal. 333 ; Poland v. Miller, 95 Ind. 387; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108 ; Dunshanc V. Benedict, 120 id. 630 ; Hoe v. San- born, 21 N. Y. 552; Beals v. 0!m- stead, 24 Vt. 114; Brown v. Saylcs. 27 Vt. 227 ; Sims v. Howell, 49 Ga. 620; Parks v. Morris, etc. Co., 54 N. Y, 586; Gammell v. Gunby, 52 Ga. 504; Richardson v. Grandy, 49 Vt 22; Whitmore v. South Boston Iron Co.. 2 Allen, 58 ; Button v. Ger- rish, 9 Cush. 89; French v. Vining, 102 Mass. 135; Mallan v. Radloff, 17 C. B. (N. S.) 588; Gossler v. Eagle Sugar Refinery, 103 Mass. 331 ; Leo- pold V. Van Kirk, 27 "Wis. 152 ; Brown V. Murphee, 31 Miss. 91 ; Robinson M. Works V. Chandler, 56 Ind. 575 ; Brenton v. Davis, 8 Blackf. 317; Orton V. Phelau, 2 Head, 445 ; Beers V. Williams, 16 111. 69 ; Boyd v. Craw- ford, Add. (Pa.) 150; Cunningham v. Hall, 1 Sprague, 404 ; Walton v. Cody, 1 Wis. 420. 1-192 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 6G7. [4-10] Whore a manufacturer undertakes to supply goods man- ufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an im- plied term in the contract that he shall supply a merchant- able article." ^ It might be inferred, from what is said of the first class, that no distinction is observed between articles purchased for food and other merchandise; that if a purchaser has an opportunity for inspection, there is no implied warranty that the provisions are sound and wholesome. But it is believed that in all sales of provisions for consumption there is an im- plied warranty in this country.^ In case of a sale by sample, there is an implied warranty that the bulk of the goods sold is equal in quality to the sample;^ except in Pennsylvania, where 1 Laing v. Fidgeon, 4 Camp. 169 ; S. C, 6 Taunt. 108 ; Mann v. Evers- ton, 33 Ind. 355; Leopold v. Van Kirk, 27 Wis. 153 ; Walton v. Cody, 1 id. 420; Gaylord Manuf. Co. v. Allen, 53 N. Y. 515 ; Howard v. Hoey, 23 Wend. 350 ; Hamilton v. Ganyard, 34 Barb. 204; Morehouse v. Com- stock, 43 Wis. 626; Ketchum v. Wells, 19 id. 35 ; Cleu v. McPherson, 1 Bosw. 480 ; McClung v. Kelley, 31 Iowa, 508; Merriam v. Field, 39 Wis. 578. See Holden v. Clancy, 41 How. Pr. 1. 2Winsor v. Lombard, 18 Pick. 57, Hoover v. Peters, 18 Mich. 51; Di- vine V. McCormick, 50 Barb. 116; Davis V. Murphy, 14 Ind. 158; Os- good V. Lewis, 3 Harr. & G. 495 ; Emerson v. Brigham, 10 Mass. 197; Van Bracklin v. Fonda, 13 Johns. 468 ; Marshall v. Peck, 1 Dana, 613 ; Humphreys v. Comline, 8 Blackf, 516; Ryder v. Neitge, 21 Minn. 70; Moses V. Mead, 1 Denio, 378 ; S. C, 5 id. 617; Hart v. Wright, 17 Wend. 367; Hyland v. Sherman, 3 E. D. Smith, 334 ; Goldrich v. Ryan, 8 id. 334; French v. Viniug, 103 Mass. 133. See Howard v. Emerson, 110 Mass. 330. In Benj. on Sales. § 673, it is said that the responsibility of a victualer, vinter, brewer, butcher or cook for selling unwholesome food, does not arise out of any contract or implied warranty, but is a responsibility im- posed by statute that they shall make good any damage caused by their sale of unwholesome food. Burn by v. Bollett. 16 M. & W. 644. See Chitty on Cont. 420; 3 Black. Com. 166. But see Sinclair v. Hath- away, 57 Mich. 60. 3Myer v. Wheeler, 65 Iowa, 390; Bach V. Levy, 101 N. Y. 511 ; Oneida Manuf. Co. v. Lawrence, 4 Cow. 440 ; Andrews v. Kneeland, 6 id. 354; Sands v. Taylor, 5 Johns. 395; Galla- gher V. Waring, 9 Wend. 20 ; Beebee V. Robert, 12 id. 413; Boorman v. Johnston, id. 566 ; Moses v. Mead, 1 Denio, 386; Brower v. Lewis, 19 Barb. 574 ; Beirne v. Dord, 5 N. Y. 95; Hargous v. Stone, id. 73; Mes- senger V. Pratt, 3 Lans. 234; Leon- ard V. Fowler, 44 N. Y. 389 ; Gurney V. Atlantic, etc. Ry. Co., 58 id. 358; Williams v. Spafford, 8 Pick. 250; Hastings v. Lovering, 3 id. 319 ; Loth- rop V. Otis, 7 Allen. 435; Rose v. Beattie, 3 N. & McC. 538 ; Bradford COS.] VENDEE AGAINST VENDOR. 1493 a sale by sample is a guaranty only that the article delivered shall follow its kind and be simply merchantable.* The de- scription or name by which goods are sold is a war- [411] ranty that they are such as are known or pass by that de- scription or name.^ § 668. Same subject. There is an implied warranty of title, but only when the vendor has possession of the property sold.'' V. Manly, 13 Mass. 139 ; Henshaw v. Robins, 9 Met. 8G; Whittaker v. Hueske, 39 Tex. 355; Brantley v. Thomas, 22 id. 270. 1 Boyd V. Wilson, 83 Pa. St 319 ; West Republic Mining Co. v. Jones, ' 108 id. 55, 65. 2 Miller v. Moore, 83 Ga. 684 ; Bach V. Levy, 101 N. Y. 511; Bridge v. Wain, 1 Stark. 504; Bannerman v. White. 10 C. B. (N. S.) 844 ; Behn v. Burness, 3 B. & S. 755; Chanter v. Hopkins, 4 M. & W. 404; Allan V. Lake, 18 Q. B. 500; Josling v. Kingsford, 13 C. B. (N. S.) 447; Haw- kins V. Peinberton, 51 N. Y. 204; Os- good V. Lewis, 2 Harr. & G. 495; Henshaw v. Robins, 9 Met. 83 ; Bor- rekins v. Bevan, 3 Rawle, 23 ; White V. Miller, 71 N. Y. 118; Moore v. King, 57 Hun, 224. 3Scrantonv. Clark, 39 Barb. 273; 39 N. Y. 220 ; Brown v. Smith, 5 How. (Miss.) 387; McCoy v. Artcher, 3 Barb. 323 ; Gross v. Kierski, 41 Cal. Ill ; Thurston v. Spratt, 52 Me. 202; Boyd V. Whitfield, 19 Ark. 447; Scott V. Hix, 2 Sneed, 192 ; Miller v. Van Tassel, 24 Cal. 458 ; Bennett v. Bart- lett. 6 Cush. 225: Case v. Hall, 24 Wend. 101 ; Vibbard v. Johnson, 19 Johns. 77 ; Dorr v. Fisher, 1 Cush. 271; Burt v. Dewey, 40 N. Y. 283; Williamson v. Summers, 34 Ala. 691 ; Linton v. Porter, 31 III. 107 ; Chan- cellor V. Wiggins, 4 B. Mon. 201 ; Trigg V. Paris, 5 Humph. 343 ; Charl- ton V. Lay, id. 496 ; Hale v. Smith, 6 Me. 416; Butler v. Tufts, 13 id. 302; Bucknam v. Goddard, 21 Pick. 70 ; Huntington v. Hall, 36 Me. 501 ; Davis V. Smith, 7 Minn. 414; Chism v. W^oods, Hardin, 531 ; Robinson v. Rice, 20 Mo. 229 ; Payne v. Rodden, 4 Bibb, 304; Gookin v. Graham, 5 Humph. 480 ; Word v. Cavin, 1 Head, 506; Whitney v. Hey wood, 6 Cush. 82 ; Sargent v. Currier, 49 N. H. 310 ; Emerson V. Brigham, 10 Mass. 197: Pratt v. Philbrook, 41 Me. 132; Darst V. Brockway, 11 Ohio, 462; Lines v. Smith, 4 Fla. 47; McCabe v. More- head, 1 W. & S. 513; Scott v. Scott, 1 A. K Marsh. 217 ; Inge v. Bond, 3 Hawks, 101 ; Colcock v. Goode, 3 Mc Cord, 513; Storm v. Smith, 43 Miss, 497 ; Shattuck v. Green, 104 IMass. 42 Long V. Hickingbottom, 28 Miss. 772 Mockbee v. Gardner, 2 Harr. & G, 176 ; Coolidge v. Brigham, 1 Met. 551 In a contract for the sale of a cer- tain number of shares of fruit grow- ing on the trees of an orchard, owned in shares, where the vendor guaran- tied to the vendee that the shares of fruit should be at his disposal on the trees, free from trouble and annoy- ance from other parties, on breach of the contract, w^iere no special damage is alleged, the measure of damages is the highest market price of the fruit on the trees at the or- chard, if there is any market value for it there ; if not, then, if the vendee is prepared to gather it and carry it to market, the market value there, less the cost of gathering and car- riage. If other persons were in pos- session of the orchard when vendee went there to gather the fruit, and 1404: VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 668, Hu*: sales by executors, administrators and other trustees are exceptions ; there is no warranty of title in sales by them, un- [412] less there be fraud or express warranty and eviction ; in which case the}'' would undoubtedly be personally responsible.' In case of a failure of title while the purchase-money remains in their hands, undistributed or unadministered, it is suggested that there would exist no well founded reason why they should not refund to the purchaser.^ Caveat emptor applies in all its rigor to judicial sales.^ It is said by a learned author that the present rule in England may be stated in the follow- ing terms: A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he Avar- rants the title, unless it be shown by the facts and circum- stances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold,* On the sale of a promissory note, bill of exchange, shares or other securities or choses in action there is an implied war- ranty of the assignor's title, of the genuineness of the evi- dence of debt or other instrument assigned, and the capacity of the makers to contract.^ The party accepting the transfer if those persons forbade him or his Parker v. Eodman, 84 Ind. 256. See agents or servants from going in and The Monte Alegro, 9 Wheat. 616. gathering the fruit purchased, and if ^ Benj. on Sales, § 639 ; Hall v. Con- the vendee could not have done so der, 2 C. B. (N. S.) 22; Smith v. Neale, without risk of personal collision or id. 67 ; Chapman v. Speller, 14 Q. B. violence, then the guaranty was 621 ; Sims v. Marryat, 17 id. 281 ; broken, and though the vendee might Eichholz v. Bannister, 17 C. B. (N. S.) have been permitted to gather a por- 708 ; Bagueley v. Hawley, L. R 2 C. tion of the fruit bought, but not all, he P. 625. had a right to come away and hold ^ Delaware Bank v. Jarvis, 20 N. Y. defendant respc«sible on the guar- 226; Ledwich v. McKim, 53 id. 307; aucy, as he was not bound to take a Erwin v. Downs, 15 id. 575 ; Bell v. portion of the contract. A jury can- Dagg, 60 id. 528 ; Sherman v. John- not give compensation for loss of son, 56 Barb. 59 ; Thrall v. Newell, 19 time, remuneration for wages paid, Vt. 202; Smith v. McNair, 19 Kan. etc., unless there is an allegation in 330 ; National Bank v. Bangs, 106 the complaint as to these matters. Mass. 441 ; Lobdell v. Baker, 1 Met. Dabovich v. Emeric, 12 Cal. 171. 193; S. C, 3 id. 469; Terry v. Bissell, 1 Mockbeev. Gardner, 2 Harr. & G. 26 Conn. 23; Wilder v. Cowles, 100 176, Mass. 487 ; Cabot Bank v. Morton, 4 aid. Gray, 156; Merriam v. Wolcott, 3 s Corwin v. Benham, 2 Ohio St. 36 ; Allen, 258 ; Shaver v. Ehle, 16 Johns. 668.] VENDEE AGAINST VENDOR. 1495 is at liberty to act upon the implied assertion of the [413] validity of the paper, and to bring an action for its collec- tion,' and if defeated may recover the costs and expenses so incurred.^ In case of contest and adverse judgment, the vendor will be concluded by it if he has had notice of the action and an opportunity to be heard. ^ The indorsement of a promissory note imports a guaranty that the maker was competent to make the note in the char- acter and in the terms in which it was made* The drawee in a forged check who has paid it, after indorsement by the payee named therein, may recover the money from such in- dorser, if he has given currency to the check by his indorse- ment made without due inquiry.^ The measure of damages for breach of this implied warranty is the difference between the value of the paper as it is, and the value it would possess if the warranty had been true; or, if the instrument is void for a cause within the warranty, the assignee is entitled to re- cover what it would have been worth if conformable to the 201; Markle v. Hatfield, 3 id. 455; Herrick v. Whitney, 15 id. 240 ; Mur- ray V. Judah, 6 Cow. 484 ; Flynn v. Allen. 57 Pa. St. 482 ; Canal Bank v. Bank of Albany, 1 Hill, 287 ; Aldrich V. Jackson, 5 R. I. 218; Ellis v. Grooms, 1 Stew. 47 ; Bennett v. Bu- chan, 61 N. Y. 232 ; Furniss v. Fer- guson, 34 id. 485. In Harloe v. Foster, 53 N. Y. 385, it was held that where a creditor unites with others in the release of their debtor, and signs off for a de- mand which he has previously trans- ferred, he impliedly undertakes to protect the debtor from such de- mand ; and upon payment being en- forced against the debtor he can re- cover from the creditor, although the release was made upon only a nom- inal consideration. Where J. made a contract to sell the promissory note of C. to L., when he was not its owner and it was not in his possession, it was held that the purchase was at the risk of L. ; that the law implied no warranty by J. that he had title to the note ; that al- though J. subsequently acquired the title this did not inure to the benefit of L. so as to render effectual a pay- ment by C. to L. in extinguishment of the note. Scranton v. Clark, 39 Barb. 273. An assignment of a judg- ment without recourse implies no warranty that the record is free from error. And on reversal there is no remedy to recover the purchase- money. Glass v. Reed, 3 Dana, 168. A refusal to guaranty does not of it- self exclude an implied warranty of genuineness. Bell v. Dagg, 60 N. Y. 528. 1 Delaware Bank v. Jarvis, 20 N. Y. 226. 2 Giffert v. West, 33 Wis. 617. 3 Bell V. Dagg, 60 N. Y. 528. 4 Erwin v. Downs, 15 N. Y. 575. 5 National Bank v. Bangs, 106 Mass. 441. 1490 VENDOR AND VENDEE — PERSONAL TROPERTY. [§ 668. implied assurance; or, at least, the consideration and interest.^ Where a judgment against four defendants was assigned and one of them had been released, it was held that the assignee- [4:14] was entitled to recover the difference in value between a judgment against all, and its value with one released.- In Engkmd the vendor's liability is not based on the notion of a warranty, but on the obligation in the contract of sale itself to deliver, as a condition precedent, that which is genuine, not that which is false, counterfeit, or not marketable by the name or denomination used in describing it.' The vendee in 1 Giffert V. West, 33 Wis. 617 ; Eaton V. Knowles, 61 Mich. 625 ; Adams v. Bowman, 51 id. 189. 2 Bennett v. Buchan, 61 N. Y. 223. In Tlirall v. Newell, 19 Vt. 202, the defendant had executed an assign- ment in these words: "I hereby as- sign to R. H. T. a note in my favor against T. W. and J. H. P., dated 13th November, 1838, for $150, pay- able in one year from date, with use. for value received." It was held that the words "for value received " were not merely descriptive of the note assigned, but that j^'^'i'^^f^ facie, at least, they imported a sufficient con- sideration for the assignment ; it was also held that such an insti'ument, describing the property assigned as " a note," must be construed as an express warranty on the part of the defendant that it was a valid note ; and that the signers were of suffi- cient capacity to contract when they executed it ; and quere, whether such a warranty would not be implied from the sale without words indi- cating an express warranty. And it appearing that the note was invalid as to one of the makers by reason of his insanity and that an action upon it had been successfully defended by him on that ground, and that the other had removed from the state, it was held that the plaintiff, in an ac- tion upon the warranty contained in the assignment, was entitled to re- cover the difference between the act- ual value of the note and the amount appearing due upon it. See Marshall V. Peck, 1 Dana, 612. In Pacific Iron Works v. Nowhall, 34 Conn. 67, the plaintiff agreed to man- ufacture and sell to the defendant, for use in his business, a steam-engine with a cut-off known as "Greene's Patent Cut-off," for which they rep- resented that one Green had a patent, and that they had a license from him to make and sell the same ; and that it would be of great value to the de- fendant in connection with the en- gine, all which representations were untrue. The whole was to be for one agreed price, for which the de- fendant gave his notes when the en- gine was delivei'ed. After he had used it for a few months another person claimed the cut-off to be an infringement of his own prior pat- ent, and obtained an injunction against its use by the defendant. Held, that there was a failure of con- sideration to the extent of tlie value of the cut-off to the defendant in connection with the engine, and that that amount should be deducted from the price. 3 Ben j. on Sales, § 607 ; Jones v. Ryde, 5 Taunt 488 ; Young v. Cole, a 06S.] VENDEE AGAINST VENDOR. 1407 such cases can only recover the price paid.' In South Caro- lina a contract of sale for a full price paid for an article [4-15] always implies a warranty of its soundness.^ But the parties may agree that the vendee shall take the property at his own risk;^ nor will a warranty be implied if the vendor be not in possession of the property which he sells ; * nor against visible defects.'^ This implied warrant}'^ of soundness will exist though there is an express warranty of title ;^ and even thougli the contract be in writing and under seal/ if it is silent on the subject of soundness. A similar rule prevails in Louisiana.^ The rule in those states is derived from the civil law. Implied warranties are excluded when there is an express warranty on the same subject.*' And it has been held in some states that where the contract of sale is in writing and contains no warranty, none can be established by parol.'" But in such cases the silence of the written contract of sale does not negative the implied warranty of title." ]Sro particular form of words is required to constitute a war- Bing. N, C. 724 ; Gompertz v. Bart- lett, 3 E. & B. 849 ; Westropp v. Solo- mon, 8 C. B. 345. lid. 2 Simons v. Walter, 1 McCord, 70; Rivers v. Gragett, id, 71 ; Thompson v. Lindsay, 3 Brev. 403 ; Wood v. Ashe, 3 Strobh. 64 ; Vaughan v. Campbell, 1 Brev. 478; Colcock v. Goode, 3 McCord, 302. 3 Thompson v. Lindsay, suvra. 4 Galbraith v. Whyte, ] Hay w. 535. 5 Id. ; Wood V. Ashe, 3 Strobh. 64. See Furman v. Miller, 1 Brev. 536. 6 Pender v. Fobes. 1 Dev, & Batt. 250 : Houston v, Gilbert, 3 Brev. 216 ; Wells v. Spears, 1 McCord, 421, TWood V. Asbe, 3 Strobh, 64; Hughes V. Banks, 1 McCord, 537, 8 Bulkley v, Honold, 19 How. (U, S.) 390. Louisiana Civil Code, art 1764 : "There are things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the par- ties may expressly modify or re- nounce, without destroying the con- tract or changing its description ; of this nature is warranty, which is im- plied in every sale, but which may be modified or renounced without changing the character of the con- tract or destroying its effect." 9 Shepherd v. Gilro3% 46 Iowa, 196; Mumfoi'd V, McPherson, 1 Johns. 414 ; Dickson v. Zizinia, 10 C. B. 602 ; Wil- son V. Marsh, 1 Johns. 503 ; Carson v, Baillie, 19 Pa, St. 375; Smith v. Cozart, 2 Head, 526; Parkinson v, Lee, 2 East, 314 ; Willard v. Stevens, 24 N. H, 271 ; Brown v. Smith, 5 How, (Miss,) 387 ; Deming v, Foster, 42 N. H, 105, 10 Reed V, Wood, 9 Vt, 285 ; Smith X. Cozart, 2 Head, 526; Bond v. Clark. 35 Vt, 577. See Pickard v, McCormick, 11 Mich. 68, 11 Miller v. Van Tassel, 24 Cal. 458, 149S VENDOR AND VENDEE PERSONAL PKOPERTr. [§ 6G,^. ranty; any positive affirmation of facts, as distinguished from an expression of opinion, intended as a warranty, or receivetl [416] and acted upon as such, will be enougli.' A general warranty of soundness will only cover defects which are not visible and obvious as such, unless expressly made to do so, or they are fraudulently concealed.^ It does not cover defects which are perfectly visible and obvious to the senses, and act- ually known to the party taking the warranty.' "Where, how- ever, it was conceded that the defect complained of in a horse sold with warranty, so far as it was obvious and visible, was known to the purchaser or his agent, but it appeared that the seller represented that it did not injure the horse, nor affect him in the slightest degree, and the purchaser or his agent did not believe, and had no reason to believe, that the defect was anything but a mere blemish, which would never render the horse less useful or capable of service, and the testimony tended to prove that in point of fact the defect was a real un- soundness at the time of sale, it was held that this was one of 1 Robinson v. Harvey, 82 111. 58 ; Svvett T. Colgate, 20 Johns. 196; Chapman v. Murch, 19 id. 290 ; Car- ley V. Wilkins, 6 Barb. 557 ; Warren V. Van Pelt, 4 E. D. Saiith, 202 ; Rog- ers V. Ackerman, 22 Barb. 134 ; Law- ton V. Keil, 61 id. 558 ; Hawkins v. Pemberton, 51 N. Y. 198 ; White v. Miller, 71 id. 118 ; Stroud v. Pierce, 6 Allen, 413 ; Stone v. Denny, 4 Met. 151 ; Morrill v. Wallace, 9 N. H. Ill ; Henshaw v. Robins. 9 Met. 83; Hill- man V. Wiloox, 30 Me. 170 ; Bryant V. Crosby, 40 id. 18; Randall v. Thornton, 43 id. 226; Wolcott v. Mount, 36 N. J. L. 262; Taylor v. Bullen, 5 Exch. 779; Shepherd v. Kain, 5 B. & Aid. 240 ; Freeman v. Baker, 5 B. & Ad. 797 ; Power v. Bar- ham, 4 A. & E. 473; Hopkins v. Tanqueray, 15 C. B. 130; Powell v. Horton, 2 Bing. N. C. 668 ; Allan v. Lake, 18 Q. B. 560 ; Hawkins v. Berry, 10 III. 36 ; Towell v. Gatewood, 5 id. 22; Ender v.' Scott, 11 111. 35; Bond V. Clark, 35 Vt. 577 ; Beals v. 01m- stead, 24 Vt. 114; House v. Fort, 4 Blackf. 293 ; Humphreys v. Comline, 8 id. 507 ; Hahn v. Doolittle, 18 Wis. 196 ; McGregor v. Penn, 9 Yerg. 74 ; Henson v. King, 3 Jones' L. 419 ; Ricks V. Dillahunty, 8 Port. 133; Murphy v. Gay, 37 Mo. 535 ; Carter v. Black, 46 id. 384 ; O'Neal v. Bacon, 1 Houst. 215 ; Osgood v. Lewis, 2 H. & G. 495 ; Otts v. Alderson, 10 S. & M. 476 ; Blythe v. Speake, 23 Tex. 429 ; Weimer v. Clement, 37 Pa. St. 147 ; McFarland v. Newman, 9 Watts, 55. ^ Vanderwalker v. Osmer, 65 Barb. 556; Brown v. Bigelow, 10 Allen, 262 ; Chadsey v. Green, 24 Conn. 562 : Dillard v. Moore, 7 Ark. 466 ; Fisher V. Pollard, 2 Head, 314 ; Mulvany v. Rosenberger, 18 Pa. St. 203 ; Dana v. Boyd, 2 J. J. Marsh. 587 ; Hudgins v. Perry, 7 Ired. 105 ; Pinney v. An- drews, 41 Vt 631; Benj. on Sales, §616. 3 Hill V. North, 34 Vt 604 § 66S.] VENDEE AGAINST VEXDOK. 1400 those equivocal defects that a warranty may well be considered as taken to guard against.' The rule excluding from a warranty defects known to [-417] the purchaser only applies to such as are perfectly obvious, and the effects and consequences of which may be accurately estimated, so that no purchaser would expect the seller in- tended to warrant against them ; but all other defects, though apparent to some extent, but still equivocal and doubtful in their character, as to whether they are permanent or tempo- rary, or mere harmless blemishes, or but partially developed unsoundness, must be understood to be included in and cov- ered by a general warranty.^ For mere breach of warranty the sale cannot be rescinded by return of the property after it has been delivered and ac- cepted so as to vest the title in the purchaser, unless the con- tract gives that option or requires it.^ But in some states a warranty is considered in the nature of a condition subsequent at the election of the vendee ; and upon a breach of it he may rescind the contract by returning the property.* If, by the terms of the contract, the purchaser is required absolutely to return the property if found defective or in any wise not con- 1 Hill V. North, 34 Vt. 604. v. Cutting 19 Vt 536 ; Hoadly v. ^ Miller v. Moore, 83 Ga. 684 ; Hill House, 32 id. 179 ; Mayor v. Dwinell. V. North, 34 Vt. 604. See Callaway 29 id. 298 ; Matteson v. Holt. 45 id. V. Quattlebum, 19 Ga. 277. 336 ; Day v. Pool, 52 N. Y. 416 ; Rust 3 Minneapolis H. Works v. Bon- v. Eckler, 41 id. 488 ; Milton v. Row- nallie, 29 Minn. 373; Merrick v. land, 11 Ala. 732; Scranton v. Me- Wiltse, 37 id. 41 ; Street v. Blay, 2 B. chanics' T. Co., 37 Cal. 130 ; Freeman & Ad. 256 ; Gorapertz v. Denton, 1 v, Clute, 3 Barb. 424 ; Myer t. Or. & M. 207 ; Poulton v. Lattimore, Wheeler, 65 Iowa, 390 ; Miller v. 9 B. & C. 259 ; Parsons v. Sexton, 4 Moore, 83 Ga. 684. C. B. 899 ; Dawson v. Coll is, 10 C. B. * Door v. Fisher, 1 Cush. 271 ; Per- 530 ; Cutter v. Powell, 2 Smith Lead, ley v. Balch, 23 Pick. 283 ; Conner v. Cas. 26; Wright v. Davenport, 44 Henderson, 15 Mass. 319; Kimball Tex. 164; Thornton v. Wynn, 12 v. Cunningham, 4 id. 502 ; Bryant v. Wheat. 183; Withers v. Greene, 9 Isburgh, 13 Gray, 607; Hyatt v. Boyle, How. (U. S.) 213; Lyon v. Bertram, 5 Gill & J. 110; Taymon v. Mitchell, 20 id. 149 ; Voorhees v. Earl, 2 Hill, 1 Md. Ch. 496 ; Franklin v. Long, 7 288; Gary v, Gruman, 4 id. 625; Gill & J. 407; Rutter v. Blake, 2 Muller V. Eno, 14 N, Y. 601, per Com- Harr. & J. 353 ; Boothby v. Scales, stock, J. ; Kase v. John, 10 Watts, 27 Wis. 626 ; Wardle v. Whitney, 23 107 ; Lightburn v. Cooper, 1 Dana, id. 55 ; Merrill v. Nightingale, 39 id. 273; Allen v, Anderson, 3 Humph. 247. 581 ; Williams v. Hart, 2 id. 68 ; West 1500 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 6Q9'. formable to the warranty, with a view to the substitution of [418] other property, or rescission, then the vendee will have no right of action on the warranty without returning or offer- ing to return it.' It is nowhere obligatory to return the goods, unless it is re- quired by the contract. The buyer may sue immediately on the breach; his action accrues at once on the completion of the sale, if the goods are not according to the warranty .^ This is so, notwithstanding an}^ difficulty or inability of the pur- chaser then to ascertain the quality or condition of the prop- erty.^ If the buyer is required to return the property on ascertaining; its defect and does not do so, he cannot recover for expenses incurred after its condition is known to him.* § 669. Damages on breach of warranty of title. The measure of damages for breach of the warranty of title, it might be expected, would be at least what would be recover- able for failure to deliver ; that is, the value of the property lost by the defect of title,^ at the time of the breach, which is, in the absence of any stipulation, when there is an absolute refusal to deliver or a distinct announcement of inability to do so.^ A loss of property through a want of title is precisely the same to the vendee as a loss of it because the vendor fails to deliver, and the latter is equally the cause in either case, by violating his contract. The value of the property at the time the vendee is dispossessed has been held to be the meas- ure of damages.^ Generally, however, the measure has been 1 Davis V. Gosser, 41 Kan. 414 ; was not obliged to call upon the Buffalo Barb Wire Co. v. Phillips, seller to furnish another horse. Per- 67 Wis. 129 ; Sessions v. Hartsook, 23 rine v. Serrell, 30 N. J. L. 454. Ark. 519; Mayor v. Dwinell, 29 Vt. 2 Vincent v. Leland, 100 Mass. 432; 298, Hamniar Paint Co. v. Glover, 47 Kan. Under a warranty that a horse is 15. sound and kind, and if he should not 3 Allen v. Todd, 6 Lans. 823. suit the seller would take him back * Newberry v. Bennett, 38 Fed. Rep. and send the purchaser another, 308 ; Draper v. Sweet, 66 Barb. 145 ; held, that the warranty as to un- Nye v. Iowa City Alcohol Works, 51 soundness was independent, and that Iowa, 129 ; Murphy v. McGraw, 74 the right to provide another horse Mich. 318. under the contract did not extend to ^ itouth v. Caron, 64 Texas, 289. unsoundness; that the horse being 6 Lister v, Windmuller, 52 N. Y. unsound and having died, the pur- Super. Ct. 407. chaser could recover damages, and " Grose v. Hennessey, 13 Allen, § G69.] VENDEE AGAINST VENDOR. 1501 stated to bo the purchase-money and interest ; ' thus adopting the same rule that is usually applied in estimating the dam- ages for breach of covenants for title to real estate.- Tliere can be no recovery on warranty for more than nominal [410] damages unless the paramount title has been asserted or yielded to and the property given up to the owner.^ A recov- ery of the value by the owner against the vendee is equiva- lent to an eviction for the purpose of recovery against the vendor on the warranty of title.^ Where the vendee is dispossessed by suit, and has in good faith incurred expenses in defending it, he is entitled to re- cover these also as an additional item of damages, for the same reasons, and on the same conditions, as when an action is brought on the covenant of warranty in a deed of land, and in other instances of recovery over.^ By giving the [420] 389 ; Marlatt v. Clary, 20 Ark. 251 ; Dabovich v. Enieric, 12 Cal. 171 ; Boyd V. Whitfield, 19 Ark. 447. This is assumed to be the measure in Burt V. Dewey, 40 N. Y. 283. 1 Ellis V. Gosney, 7 J. J. Marsh. 109 ; Crittenden v. Posey, 1 Head, 311 ; Andiug V. Perkins, 29 Tex. 348 ; Noel V. Wheatley, 30 Miss. 181 ; Armstrong V. Percy, 5 Wend. 535 ; Burt v. Dewey, 31 Barb. 540 ; Goss v. Dysant, 31 Tex. 186 ; Granberry v. Hawpe, 30 id. 409 ; Ware v. Weathnall, 2 McCord, 413 ; Rowland v. Shelton, 25 Ala, 217; Shattuck V. Green, 104 Mass. 42; Eaton V. Melius, 7 Gray, 566 ; Arthur V. Moss, 1 Ore. 193 ; Atkins v. Hosley, 3 Thomp. & C. 322 ; Woods v. Woods, 1 Met. (Ky.) 512. ' If the failure of title is but partial the damages will bear the same pro- portion to the whole purchase-money as the value of the part to which the title fails bears to the whole prop- erty, estimated at the price paid. Moorehead v. Davis, 92 lud. 303. In Crittenden v. Posey, 1 Head, 311, the vendor had a life estate in the property, which was slaves, for the life of another, and in that case the consideration paid was permitted to be recovered, but with an abate- ment of interest during the period of enjoyment; it was computed only from the termination of the life es- tate. 3 O'Brien v. Jones, 91 N. Y. 93; Wanser v. Messier, 29 N, J. L. 256 ; Bordwell v. Collie. 45 N. Y. 594; S. C, 1 Lans. 141 ; Joslin v. Caughlin, 27 Miss. 852 ; Sumner v. Gray, 4 Ark. 467 ; Sweetraan v. Prince, 62 Barb. 258 ; Randon v. Toby, 11 Plow. (U. S.) 493 ; McGiffin v. Baird, 62 N. Y. 329 ; Burt V. Dewey, 40 id. 283 ; Brown v. Smith, 5 How. (Miss.) 387 ; Patrick v. Swinney, 5 Bush, 421 ; Ogburn v. Ogburn, 3 Port. 126 ; Conner v. Eddy, 25 Mo. 72 ; Case v. Hall, 24 Wend. 102; Richardson v. McFadden, 13 Tex. 278 ; Dent v. McGrath, 3 Bush. 174; Sehuchardt v. Aliens, 1 Wall. 359. See Grose v. Hennessey, 13 Allen, 389. 4 Bordwell v. Collie, 1 Lans. 141 ; 45 N. Y. 494 ; Allen v. Roundtree, 1 Spear, 76 ; Hynson v. Dunn, 5 Ark. 395 ; Sumner v. Gray, 4 Ark, 467. 5 Thurston v. Spratt, 52 Me. 202; Armstrong v. Percy, 5 Wend. 535; 1502 VENDOR AKD VENDEE — TERSONAL PROPERTY. [§ 669. vendor seasonable notice to defend the suit brought by the owner for the property he is so far made a party that, whether he responds to the notice and defends or not, the judgment is conchisive against him in favor of his vendee to the extent to [421] which his rights are tried and adjudicated.^ The vendor Boyd V. Whitfield, 19 Ark. 447. In the last case the vendor lived in Vir- ginia, and after his death his admin- istrator also. The securities for the purchase-money were in the hands of an attorney in Kansas for collec- tion. He had been attorney for the vendor, and. after his death was such for the administrator for the purpose of such collection. This attorney was notified of the suit, and the nat- ure of it, for the assertion of the paramount title, and requested to at- tend to it in behalf of the vendor. The attorney, being unable to attend court, said he would request his part- ner to do so, and he did assist in the defense. Testimony was taken in Virginia, and it was inferred by the court that the vendor's administrator in that manner obtained notice of the suit, and the object of it, as he was present at the taking of the depositions, and the record was held conclusive against him. The prop- erty was slaves, and in the action upon the warranty the court gave the plaintiff their value, and the amount of hire he had been adjudged to pay the true owner, with interest, " etc.," which, perhaps, refers to the costs and expenses of defending the title. 1 Davis V. Wilborne, 1 Hill (S. C), 27; Pickett v. Ford, 4 How. (Miss.) 246; Barney v. Dewey, 13 Johns. 225; Blasdale v. Babcock, 1 id. 517; Brewster v. Countryman, 12 Wend. 450 ; Minor v. Clark, 15 id. 427 ; Mid- dleton V. Thompson, 1 Spear, 67; Train v. Gold, 5 Pick. 380 ; Ives v. Niles, 5 Watts, 325 ; Collingwood v. Irwin, 3 id. 310; Eldridge v. Wad- leigh, 12 Me. 371 ; Marlatt v. Clary, 20 Ark. 251; Myers v. Smith, 27 Md. 91. This was so held in Armstrong v. Percy, 5 Wend. 535. In August, 1825, the defendant had sold a horse to the plaintiff for |140. In March, 1827, the plaintiff sold the horse, to- gether with another, to M., and took his notes for .$225. In May following, the horse bought of defendant was taken from M. by G. by replevin. A claim for property was interposed — the iDlaintiff and defendant in this action attended on the inquiry before the sheriff, — the jury found the property to be in G., and defendant expressed his satisfaction with the finding. The replevin was prosecuted to judgment. G. recovered $72.32 for damages, and $33.95 costs, which sums, together with $19.50, the costs of the defense, were paid by M. A. settled with M. by giving up his notes for $225 and paying him $20 in cash, and claimed of the referees a report in his favor for the amount of the original consideration paid P. and for the damages and costs re- covered against and paid by M., which he had subsequently paid to M. in the manner above stated. Ref- erees report $275. Marcy, J. : "Where the action is on the warranty of title, the damages which naturally result to the purchaser are the value of the article which he loses by the failure of the title, or the price he has paid for it. In the cases of Curtis v. Han- nay, 3 Esp. 82, and Caswell v. Coan, 1 Taunt 566, no special damages were set forth in the declaration ; the § 669.] VENDEE AGAINST VENDOR. 1503 is bound to protect the vendee from all actions arising from circumstances anterior to the sale of which the cause or germ existed at the time thereof: the debts charfreable on the thing sold, revenue duties to which the goods are liable, or measure of damages, therefore, in those cases was the price paid for the article ; but in the case of Lewis V. Peake, 7 Taunt 152, the declara- tion assigned as special damages, oc- casioned by the breach of the war- ranty, that the plaintiff, confiding in the defendant's warranty, resold the horse with warranty, and was thereby subjected to pay £88 as costs besides the price of the horse. Hav- ing given notice to the defendant that he was prosecuted on his war- ranty, and offered liim the option to defend (whicli was not accepted), the plaintiff was allowed to recover, in addition to the price of the horse, the costs which he was subjected to pay. The principle of that case is probably correct ; but it may well be doubted whether the plaintiff here has brought himself within it. We are not furnished with the declara- tion, and may, therefore, presume that it is so framed as to allow the plaintiff to recover such special dam- ages as by law he could, in any form of declaring, be entitled to recover. If the plaintiff was liable for the costs incurred in testing the title to the horse, or could have been made liable, and has, in fact, paid them, he may recover them of the defendant If he has paid them without being under a legal liability to do so, it ap- pears to me he had no just right to have them allowed to him in this cause. The extent of the plaintiff's right to damages could not be con- clusively settled by the sum which he agreed to allow, or had actually paid M., but by the amount that M. could have recovered against him. What sum could M. have recovered? Cer- tainly not more than the price paid fpr the horse when purchased of the plaintiff, and the costs of the suit in which the title was tested. The fact that $72.32 were allowed to the own- ers for damages proves that the horse had become deteriorated in the hands of M., and, if so, he could not have recovered of the plaintiff the dam- ages and costs which the owners re- covered against him, and the full value of the horse before the deteri- oration or at the time of his pur- chase. The damages must be allowed in part or wholly for the use of the horse; and as the plaintiff or M. must have had the benefit of that use, the defendant could not be le- gally charged therewith. The referees should have arrived at the amount which the plaintiff was entitled to recover by allowing him the price paid to the defendant for the horse and interest thereon, together with the costs which he became liable to pay to the true ownei's in their suit to establish their title. ... I pre- sume that the referees considered the costs paid by M. to his own attorney as an item to be taken into the calcu- lation, but I know of no authoritj^ for doing so. In the case of Lewis v. Peake the plaintiff was permitted to include as an item in the amount of damages the costs recovered against him on his warranty at the resale of the horse. In the case of Blasdale v. Babcock, 1 Johns. 517, which was an action on an implied warranty as to the title of a horse, the amount that had been recovered against the plaintiff by the owner of the horse was allowed to be the measure of his damages against the 150i VENDOK AND VE^'DiiE — TEUSOXAL PROPERTr. [§ GTO. such defects in the vendor's title as form a lobes realis. Thus, if rent be due at the time of the sale, the vendor is liable on his implied v/arranty of title if the property sold be after- wards lawfully seized and taken by tlie landlord to pay such rent.' This warranty extends to and protects against a prior lien as well as an adverse title. So where one sold jjroperty, and took a note for the price, the purchaser, finding a lien [422] upon it at the time of the sale, paid it, it was held that the law presumed the payment to have been made at the re- quest of the vendor, and that it was valid.^ Where the ad- verse owner has recovered the value instead of the property itself, and tlie vendor has had the requisite notice to defend the suit in which such recovery was had, he is liable to his vendee for the amount of that judgment both as to damages and costs. The same rule applies to the original vendor who warrants property when his vendee has sold it with a like warranty and judgment has been recovered against him by the sub-vendee.' § 670. Damages for breacli of warranty as to quantity or qnality. The general rule of damages for breach of warranty as to quantity or quality is the difference between the actual value of the property at the time of the sale and what its value would have been if it had conformed to the warranty.* This rule defendant. The expenses of Blasdale ' Blacker v. Slown, 114 id. 322 ; Deutsch in defending the suit against him v. Pratt, 149 Mass. 415; Merrick v. were not allowed to him as damage-s Wiltse, 37 Minn. 41 ; Young v. Filley, against Babcock." 19 Neb. 543; Bach v. Levy, 101 N. Y. 1 Myers v. Smith, 37 Md. 91. 511 ; Marsh v. McPherson, 105 U. S. 2Crowell V. Simpson, 7 Jones' L. 709; McMullen v. Williams. 5 Ont. 285 ; Dresser v. Alnsworth, 9 Barb. App. 518 ; Nye v. Iowa City Alcohol 619. Works, 51 Iowa, 129 ; Snow v. Scho- 3 Hammond v. Bussey, 20 Q. B. macker Manuf. Co., 69 Ala. Ill Div. 79. Sinker v. Diggins, 76 Mich. 557 ■* Hege V. Newsom. 96 Ind. 426 ; Birdsall Co. v. Palmer, 74 Md. 201 Jackson v. Mott, 76 Iowa, 268 ; J. I. Houghton v. Carpenter, 40 Vt. 588 Case Threshing M. Co. v. Haven, 65 Perrine v. Serrell, 30 N. J. L. 454 id. 359 ; Weybrich v. Harris, 31 Kan. Roberts v. Fleming, 31 Ala. 683 ; Bu 92 ; ]\Iinueapolis Harvester Works v. ford v. Gould, 35 id. 265 ; Rutan v, Bonnallie, 29 Minn. 373 ; Wickes Ludlam, 29 N. J. L. 398 ; Allen v. An Brothers v. Swift Electric Light Co., derson, 8 Humph. 581; Scranton v, 70 Mich. 322; Birdsall v. Carter, 11 Mechanics' T. Co., 37 Conn. 130 Neb. 143 ; Willingham v. Hooven, 74 Richardson v. Mason, 53 Barb. 601 Ga. 233 ; Means V. Means, 88 Ind. 196 ; Tuckwell v. Lambert, 5 Cush. 23; § CTO.] VENDEE AGAINST VENDOR. 1505 is not affected by the fact that the vendee has sold the prop- erty at an increased price/ or paid for it in advance of its de- livery .^ The difference between the value of the whole prop- erty purchased, where only a small portion of it is inferior to that required by the contract, and not merely the difference between the price paid for the defective portion as a part of the lot and its actual value, is the measure of the seller's lia- bility.' If the article purchased has been used in manufactur- ing, the cost of the labor and the waste of the material result- ing from its defects, with interest from the commencement of the suit, are elements of damage.'' There is not a total failure Wells V. Selwood, 61 Barb. 238 ; Corn- stock V. Hutchinson, 10 Barb. 211; Voorhees v. Earl, 2 Hill, 288 ; Pritch- ard V. Fox, 4 Jones' L. 140 ; Clark v. Neufville, 46 Ga. 261; Morse v. Hutchins, 102 Mass. 439; Foster v. Rodgers, 27 Ala. 602 ; Gary v. Gru- man, 4 Hill, 625 ; Tuttle v. Brown, 4 Gray, 457; Reggio v. Braggiotti, 7 Cush. 166; Van Valkenburgh v. Evertson, 13 Wend. 76; Decker v. Myers, 31 How. Pr. 372 ; Marshall v. Wood, 16 Ala. 806 ; Marshall v. Gantt, 15 id. 682 ; Scranton v. Tilley, 16 Tex. 183; Anderson v. Duffield. 8 id. 237; Williamson v. Conday, 3 Ired. L. 349 ; Seibles v. Blackwell, 1 McMull. 56; Badget v. Broughton, 1 Ga. 591; Sharon v. Mosher, 17 Barb. 518; Prentice v. Dike, 6 Duer, 220 ; Con- nor V. Dempsey, 49 N. Y. 665 ; Hook V. Stovall. 30 Ga 418 ; Lane v. Lantz, 27 Md. 211 ; Hoe t. Sanborn, 35 How. Pr. 197; Anding v. Perkins, 29 Tex. 348 ; Williamson v. Dillon, 1 Harr. & G. 444; Thornton v. Thompson, 4 Gratt. 121 ; Burton v. Young, 5 Harr. (Del.) 233; Brown v. Sayles, 27 Vt. 227 ; Smith v. Cozart, 2 Head, 526 ; Converse v. Burrows, 2 Minn. 229; Roberts v. Carter, 28 Barb. 462 ; Whit- more V. South Boston Iron Co., 2 Allen, 52 ; Edwards v. Collson, 5 Lans. 324. A vessel was warranted to be of a Vol. n — 95 certain class ; the vendor promised to insure her for a designated sum.. The warranty was not true and the- insurance could not be obtained'- After a total loss it was held that the vendee's damage was not the' amount for which the vessel was tO' be insured, but the sum it would have cost to have made her of the- warranted class. La Roche v. O'Ha- gan, 1 Ont 300. 1 Brown v. Bigelow, 10 Allen, 242 ; Texada V. Camp, Walk. (Miss.) 150: Hunt V. Van Deusen, 42 Hun, 392. 2 Loder v. Kekule, 3 C. B. (N. S.) • 128. 3 Deutsch V. Pratt, 149 Mass. 415. * Bagley v. Cleveland Rolling Mill Co., 22 Blatch. 342; 21 Fed. Rep. 159.. In Wait V. Borne, 123 N. Y. 592, it is held that if the manufactured article has been sold by the warrantee under circumstances which leave no liability upon him to his vendee, the measure of recovery against the war- i-antor is the difference between the price actually received for it and its value as it would have been but for the defect in the quality of the in- gi-edient which went into such ar- ticle. This was ruled on the assump- tion that the price received was at least equal to the actual value of the aii;icle sold, in which case it would be conclusive evidence of value. 1506 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 670. of consideration if the property retained by the purchaser has some value for any purpose, though it is valueless for the pur- pose for which it was bought.* The price paid for an article is in many jurisdictions deemed the best evidence of its value between the parties at the time of the purchase, and is pre- [423] ferred to any other evidence;- but in others it is not treated as exclusive of the test of value; — only as admissible evidence tendinn: to show value.^ I Brown v. Weldon, 99 Mo. 564 ; 27 Mo. App. 251. ^ South Covington, etc. Ry. Co. v. Gest. 34 Fed. Rep. 628; Clark v. Neuf ville, 46 Ga. 261 ; Marshall v. Wood, 16 Ala. 806 ; Scranton v. Tilley, 16 Tex. 183: Badget v. Broughton, 1 Ga. 591 ; Hook v. Stovall, 30 Ga. 418 ; Thornton v. Thompson, 4 Gratt 121 ; Stout V. Jackson, 2 Rand. 132 ; Threl- keld V. Fitzhugh, 2 Leigh, 451. SHege V. Newsom, 96 Ind. 426; Houghton V. Carpenter, 40 Vt. 588 ; Cai-y V. Gruman, 4 Hill, 625 ; Lane v. Lantz, 27 Md. 211 ; Gilpin v. Conse- qua, 3 Wash. C. C. 184 ; Anding v. Perkins. 39 Tex. 348. In Reggio v. Braggiotti, 7 Cush. 166, Shaw, C. J., said : " Prima facie, the price first paid for the article is good evidence of its value in one sense. But the value is not the same to both parties; and no merchant would make a purchase unless the goods bought were worth more to him than the amount he pays for them. In this country the estab- lished rule in relation to damages in such actions is that the plaintiff may recover what he can show that he has actually lost. A subsequent sale by the vendee of the article war- ranted is evidence of its value to liim." In Morse v. Hutchins, 102 Mass. 440, tlie court say : " To allow the plaintiff ouiy the difference between the real value of the property and the price which he was induced to In some states the damages pay for it would be to make any ad- vantage lawfully secured to the inno- cent purchaser in the original bar- gain inure to the benefit of the wrong-doer ; and, in proportion as the original price was low, would afford a protection to the party who had broken his contract at the ex- pense of the party who was ready to abide by the terms of the contract." In Rutan v. Ludlam, 29 N. J. L. 398, R. sold to L. a horse, for which L. conveyed to him a house and lot and gave him a note for $25. In an action against R. for a false warranty of the horse, it was held that evi- dence of the value of the house and lot was inadmissible; that the only question was the difference in value between a sound horse and an un- sound one. In Comstock v. Hutcliinson, 10 Barb. 211, a charge to the jury that the measure of damages was the difference between the price paid for the horse and the amount he realized on a resale was held erroneous ; and the same in Cary v. Gruman, 4 Hill, 625. See Foster v. Rodgers, 27 Ala. 602 ; Tuttle v. Brown, 4 Gray, 457. In an action by the vendor for the price of goods (cigars), the defendant sought to recoup for damages done to the property after the sale and be- fore delivery ; it was held to devolve on huu to prove that the injury was done during such period ; and that he must prove the actual damage without reference to the price paid at § 671.] VENDEK AGAINST VENDOR. 1507 are ascertained, where tlic sale is for cash, by the difference between the price paid for the property and its value.' This rule is rested on the principle that the purchaser is entitled to the benefit of his bargain, if he has bought at a low price, which he would lose if his recovery was limited to the amount paid; the same consideration applies to the defendant if he has made a good sale. But in Illinois this measure of dam- ages does not govern when there has been an exchange of property — then the general rule as stated at the beginning of this section applies.^ § 671. Same subject. The rule of damages just stated, ]i\ni all general rules, is intended for ordinary cases of the class to which it applies, and where it will afford to the injured party full compensation for his actual loss. It often happens, how- ever, that the delivery and acceptance of property which is not conformable to the contract imposes upon the vendee trouble and expense, which add to the loss for which compen- sation may be recovered under that rule, which, if it were ap- ])lied arbitrarily, excluding all other items, would in many instances fail to give adequate redress. As the paramount principle is to give compensation commensurate with the loss or injury, the rule on the subject of warranties is always stated, when the case requires it, so as to include inter- [424] est if the price has been paid, and any expense or other spe- cial damages naturally and proximately resulting from the breach.' Thus, where an article was sold as opium, the court auction ; that it was erroneous to al- Bank v. Blanchard. 65 N. H. 21 ; low him the difference in value be- MinneapolisHarvester Works v. Bon- tween the price at which he bought nallie, 29 Minn. 373 ; Joplin Water them at auction and the value when Co. v. Pathe, 41 Mo. App. 285; Ault- delivered. Gerard v. Prouty, 34 Barb, man v. Case, 68 Wis. 612 ; Hambrick 454. V. Wilkins, 65 Miss. 631 ; Halstead L. 1 West Republic Mining Co. v. Co. v. Sutton, 46 Kan. 192 ; Sinker v. Jones, 108 Pa. St 55; Crabtree v. Diggins, 76 Mich. 557; Swain v. Kile, 21 111. 180; Callender I. & W. Schieffelin, 31 N. E. Rep. 1025 (N. Y.); Co. v. Badger, 30 111. App. 314 ; Bump Roberts v. Fleming. 31 Ala. 683 ; Bu- T, Cooper, 19 Ore. 81. Compare ford v. Gould. 35 id. 265 ; Perrine v. Courtney v. Boswell, 65 Mo. 96, and Serrell, 30 N. J. L. 454 ; McKay v. Brown v, Welden, 99 id. 564. Lane, 5 Fla. 268 ; FosteV v. Rodgers, 2 Wallace v. Wren, 32 111. 146. 27 Ala. 602 ; Reggio v. Braggiotti, 7 3 New York & C. Mining Co. v. Cush. 106 ; Marshall v. Wood, 16 Ala. Fraser, 130 U. S. 611, 622 ; Union 806 ; Badgett v. Broughton, 1 Ga. 591 ; 1508 VENDOR AXD VENDEE PERSONAL PROPERTY. [§ G71. held there was an implied warranty of genuineness ; and there being a breach of it, and the vendee having resold with a like warranty, and judgment recovered against him for breach of it, the sum paid on this judgment was prima facie the amount he was entitled to recover against his vendor ; also, that if he gave the latter notice of the commencement of that suit, and requested him to defend it, the plaintiff might, likewise, recover his taxable costs incurred therein ; but, fol- lowing the Massachusetts rule, the attorney fees paid for the defense of such suit were not allowed.^ And where it was provided that if a w^arranted machine did not work properl}-- the purchaser's negotiable note should be returned upon the delivery of the machine to the vendor, and the vendee com- plied with the condition, but the vendor did not return the note, but indorsed it before it w*as due to a third person under circumstances which gave the maker some cause to believe that the transfer was not hona fide^ the vendor w^as held re- sponsible for the attorneys' fees incurred in defense of a suit thereon.^ In an action for the breach of warranty on the sale of a mare, the representation made to the plaintiff that she was perfectly gentle and kind was false. The action was for this representation, and it appeared that within tw^o days after Sharon V, Mosher, 17 Barb. 518; Pi-en- stallion sold for breeding purposes, tice V. Dike, 6 Duer, 220 ; Seibles v. TJie vendee was entitled to recover Blackwell, 1 McMull. 56. the diffei-ence between the real value In Clark v. Neufville, 46 Ga. 264, of the horse and what his value would an action for breach of warranty of have been if the warranty were not quality in the sale of goods, the court false, and also the reasonable costs say the measure of damages is the and expenses incurred for advertis- difference between the price paid and ing, keeping and staudmg the horse the value of the goods as they actu- for breeding purposes prior to the ally were at the time and place of the time his real qualities became known, sale and delivery, together with such Interest is not recoverable in New consequential damages, if any there York. White v. Miller, 78 N. Y. 393 ; be, as come within the rule excluding Riss v. Messmore, 58 N. Y. Super. Ct. indirect and speculative damages. 23. Thompson v. Bertrand, 23 Ark. 730 ; i Reggio v. Braggiotti, 7 Cush. 166 ; Tatiim v. Mohr, 21 id. 349; Murray Randall v. Raper, K, B. & E. 84; V. Meredith, 25 id. 164, Hammond v. Bussey, 20 Q. B. Div. In Short v. Matteson, 81 Iowa, 638, 70. there was a breach of warranty con- "^ 2 Osborne v. Ehrhard, 37 Kan. 413. cerning the colt-getting qualities of a § 071. J VENDEE AGAINST VENDOR. 1500 the sale and purchase the plaintiff attempted to drive the mare before a buggy, when she commenced running and kick- ing, and the buggy was broken; the plaintiff to save himself sprang to the ground and thereby broke one of his legs ; it was held admissible to prove the nature and extent and [425] permanent character of the injury to his leg; the length of time he was confined to his house, and the damage done to his buggy; that it should be left to the jury to say, as a ques- tion of fact, whether such injuries resulted from the vicious- ness of the mare and were the probable and natural conse- quences of the fraud practiced by the defendant.^ ^Where slaves were purchased as sound, and proved to be unsound or diseased, reasonable charges for care and attention and med- ical aid were allowed as damages.^ And the same rule applies to other property.^ tn-saoh cases the vendee must exert him- / self with diligence and goodfaijbh_iojeffect a cure, and thus prevent further damage.* Where a contract is made by one to furnish to another a spe- cific article of a designated description, to be used for a par- ticular purpose, or for use at another place, and the destina- tion, purpose and use are known to him who agrees to furnish it, "and the article furnished is defectiv^e for the purpose, and not according to the contract, the damages occasioned by rea- son of such defects, witli reference to the purpose and place, aredtrect and recoverable. The measure is the difference > between the value of the article received, and of that con- y tracted for, at the place and for the purpose contemplated.' /' > Sharon v. Mosher, 17 Barb. 518; Kornegay v. White, 10 id. 255 ; Willis Allen V. Truesdell, 135 Mass. 75. v. Dudley, id. 933 ; Stoudenmeier v. In Rich V. Smith, 34 Hun, 136, the Williamson, 29 id. 558 ; Worthy v. warranty that a horse was "good, Patterson, 20 id. 172; Gingles v. Cald- gentle and kind " to the extent of well, 21 id. 444 ; Buford v. Gould. 35 being a good family horse was con- id. 265 ; Hogan v, Thorington, 8 Port, sidered general as to his qualities 428. only — not as special for any partic- » Penny v. Andrus, 41 Vt 631; ular purpose. Injuries sustained by Philadelphia Whiting Co. v. Detroit the purchaser m consequence of the White Lead Works, 58 Mich. 29 (ex- animal's running away and colliding pense of testing goods, insurance, with a vehicle were remote and ac- freight and cartage), cidental. * Id. - Roberts v. Fleming, 31 Ala. 683 ; ^ Thorne v. McVeagh, 75 111. 81 ; Marshall v. Wood, IG Ala. 806; Beeraan v. Banta, 118 N. Y. 538 (seo 1510 VENDOR AND VENDEE — PEKSONAL PROPERTY. [§C71. Where the contract is made, to the knowledge of the vendor, for the purpose of shipping the article purchased to a foreign vol. 1, § 50) ; Hammar Paint Co. v. Glover, 47 Kan. 15; Swain v. Schief- felin, 31 N. E. Rep. 1025 (N. Y.); Passinger v. Thoiburn, 34 N. Y. 634 ; Van Wyck v. Allen, 69 id. 61 ; White V. Miller, 78 id. 393 ; Converse v. Bur- rows, 2 Minn. 229. In the last case cited the ti'ial court gave an instruc- tion to the jury embodying a legal proposition substantially as stated in the text, which on a])peal was ap- jjroved. The case is not a novel one, but the principle discussed in the opin- ion is of great practical importance, and will justify a full quotation. At- water, J., said : " Had there been nothing said between the parties to this contract as to the place where the pork contracted for was to be used, there seems to be no dispute but that the correct rule of damages would have been the difference in the value of the article contracted for and that of the article received at the place of delivery ; but the case at bar forms an exception to this general rule. The plaintiff designed this pork for a particular place and purpose, of which fact he notified the defendants at the time of the contract. The defendants therefore entered into the contract in view of these facts, and incurred the obliga- tions im])osed by the law in such cases. What were these obligations? In our view, to pay the difference bet%veen the value of the pork, as such value was actually found in its damaged state at Fort Ridgeley, and the market value of the quality of pork contracted for at the same place. The correct rule of damages in this case must be determined from the language adopted in the com- plaint, which purports to state the substance of the contract in refer- ence to the place of destination and use of the pork. The only clause la the complaint referring to this point reads as follows: 'The said plaintiff further shows to the court that the said pork was to be furnished to the plaintiff for supplies for Fort Ridge- ley, in the territory of Minnesota, which plaintiff had contracted to sup- ply, which fact was well known to said defendants.' Now had the com- plaint simply stated that the pork was destined for use at Fort Ridgeley, or for the market at Fort Ridgeley, and that the defendant had notice thereof, we presume there would have been little question but that the instruction of the court to the jury would have been correct. The case would have fallen within the rule laid down in Bridge v. Wain, 1 Stark. 504, a case which seems to be quoted with approbation in Gary v. Gruman, 4 Hill, 625, as well as in Hargous v. Ablon, 5 Hill, 472. The general rule of damages for breach of warranty on a sale of personal property, as above stated, is the difference be- tween the article sold, in its defective condition, and the market value of the article at the place where it was to be used, in the condition repre- sented by the vendor. The reason of this rule does not seem to be based upon the fact that such measure of damages would always restore the vendee to what he had lost by the breach of warranty, for in many cases this would not be true ; but rather upon grounds of public policy, it being manifestly more for the pub- lic interest that some rule should be established in such cases, rather than leave each individual case to be gov- erned by its own particular circum- stances. Hence, parties entering into 671.] VEXDEE AGAINST VENDOR. 1511 country, and he delivers one inferior in quality to that con- tracted for, and that fact is not ascertainable until it has contracts of this kind are a%varo of their rights anil liabilities under a breach of contract by either party ; and the exception to the rule in the case above referred to is founded on the same reason and is in harmony with it, the only dilTerence being that the rule of damages is made to de- pend on the market value of the article at the place where it is to be used, rather than the value at the place where it is purchased ; and no good reason can be offered why the rule should be otherwise. If the gen- eral rule be not based upon the prin- ciple of restoring the partj^ to what he has lost by the breach of contract, it is difficult to perceive why the ex- ception should be based upon such principle. For the parties sustain the same relation to each other and the subject-matter, save that in the latter case the article is purcliased for a particular market, of which the vendor is apprised,, and it is manifest justice that the vendee should be made whole in that market. And in the eye of the law he is made whole by receiving the difference between the actual value of the article in its damaged condition, and its real value in the condition required by the con- tract at the place where the article was to be used. But it is claimed that the allegations of the complaint extend the contract made between the parties, so that in case of a breach on the part of the defendants they became liable for the difference, not between the market value of such pork at Fort Ridgeley, as was called for by the contract, and the inferior article furnished by them, but for the difference in value between such article and the contract price between the plaintiff and the Fort " Let us look at the allegation, and see if this view can be sustained. It will be observed that it does not ap- pear from the pleadings what the contract was between the plaintiff and the party with whom he con- tracted at Fort Ridgeley; nor that there was any stipulated price for thi- pork. Much less does it appear tiiat the plaintiff, at the time he contracted with the defendants for the purchase of the pork, informed them that he had contracted with the Fort at any particular price, nor, if so, at what price. In the absence of any agree- ment, therefore, on the subject, the presumption would be that the plaint- iff had agreed to furnish the pork at current rates at the place of delivery (the Fort). But whatever his agree- ment may have been, it does not ap- pear that the defendants had any reference to it, or were influenced by it, in entering into their contract. They did not agi"ee to fill the contract of the plaintiff, nor does it appear that they knew what his contract was. They knew only that he had a contract to fill at that place ; and the fact that they were aware that tlie pork was to be used by the plaintiff at Fort Ridgeley makes the case an exception to the general rule which would govern damages on breach of warranty. And to bring the defend- ants within the exception, it was im- portant that they should know in reference to the plaintiff's contract, so far as the place was concerned. For the degree of care and diligence which they might exercise to fill their contract might be influenced by such knowledge. The fact that the pork was to be transported to a consid- erable distance during the summer season miglit lead them to exercise 1512 VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 671. reached its destination, the purchaser may sell it there for the best price obtainable, and the difference between that and the more care iu its selection and prep- aration than they otliervvise would liave done. It therefore becomes important to tlie plaintiff, if he would bring the defendants within the ex- ception to tlie general rule of dam- ages, that he should bring home to them the knowledge that the pork was to be used at a certain place ; and if he would go further than this, and make the defendants re- sponsible for the loss he has sus- tained on the particular contract, he must at least show that the defend- ants knew that the contract was to fill his own, or to make him whole for any failure to do so. The object of the court should be to apply the rule of law to the contract between t!ie parties, if that contract can be ascertained. We are satisfied that the defendants entered into the con- tract with the i)laintiff with the knowledge of the place where the pork was to be used by the plaintiff. But we are not satisfied, nor is there anything in the case to show, that the defendants, in making their contract, took into account in any manner the price the plaintiff was to receive for his perk; or that they ever even knew what price he was to receive. In such case we certainly can see no good reason why either the defend- ants or plaintiff should now claim any benefit from a consideration which never entered into the original contract. Suppose the plaintiff con- tracted to sell his pork at the Fort for $100 per barrel, should he be permitted to recover from the defendants the difference between that sum and the actual value of the pork per barrel at the Fort in itadamaged condition? Manifestly, it would not be just that he should do so, unless the defendants had ex- pressly agi'eed to pay such difference. "A law which should recognize such a measure of damages in such cases would be highly me^juitable and work great injustice. If such was the rule, as has been justly ob- served, it would open the door to unfair dealing, and a fraudulent inflation of pi'ice by the vendee, with a view to charge the vendor or guarantor ; for if the vendor was to be made liable for the loss of a par- ticular trade which the vendee might liave made with reference to the subject-matter of the sale, the particulars of such ti'ade, especially as to price, would be of the highest consequence to the vendor, and would form a principal element in, and become the very essence and basis of, the original transaction, instead of being considered of such little moment as not even to be men- tioned between the parties. Had the contract between the plaintiff and the defendants in the case at bar been in fact made with reference to the price at which the plaintiff resold the pork, as well as the place where it was to be used, that fact should have been averred by the defendants in their answer, if they would avail themselves of any advantages from it. If the rule in this case be that the plaintiff is entitled to recover fi'om the defendants such sum as he has lost by their breach of warranty, at the place where the pork was destined to be used, then the propo- sition must be true that the loss of a particular bargain, on resale of the warranted article, must be the rule of damages on breach of warranty ; but the authorities are directly to the contrary of this proposition. In § GT2.] VENDEE AGA08T VENDOE. 1513 market price of the article contracted for, with the necessary ^ expenses incurred by him, will be the damages.^ § 672. Same subject. The cases reported show a [426] great variety of illustrations of the rule that the damages are the difference between the actual value of the proj^erty and what its value would have been if conformable to the [-427] warranty. The special value to the vendee for a particuhir use will be taken into account, if known to the vendor at the time of the sale, and he expressly or by implication un- [4-28] dertook to furnish goods suitable for that use. The principle seems to be settled, that when the manufacturer of an article sells it for a particular purpose, the purchaser making [429] known to him at the time the purpose for which he buys it, the seller impliedly warrants it fit and proper for such purpose ^ and free from secret or latent defects.^ In Brown v. Sayles ^ it was held that \vhen an article is to be manufactured to order and nothing is said as to the quality of the material to be used, it is implied that it shall at least be of an ordinary qual- ity. The acceptance of an article so manufactured is not binding and conclusive upon the purchaser, if the material w\as Clare v. Maynard, 7 C. & P, 741, it said his lordship, " that by value is appears that the plaintiff gave |45 to be understood the value which the for a horse, and had sold him for |55, plaintiff would have received had the with warranty, but was obliged to defendant faithfully performed his take him back. This, per se, was contract." not allowed as a ground for recov- As to the necessity that the vendor ering the $10 difference, the court be informed of the price in tlie saying it was the mere loss of an vendee's contract for resale, see accidental bargain. The same prin- vol. 1, g 52 ; Hinde v. Liddell, L. R. ciple is recognized in Voorhees v. 10 Q. B. 265 ; Elbinger Actien Gesell- Earl, 2 Hill, 288 ; Clare v. Maynard, schaf t v. Armstrong, L. R. 9 C. P. 6 Ad. & E. 19; Hargous v. Ablon, 473; Booth v. Spuyteu Duyvil R M. 5 Hill, 472 ; Phillips' Ev., vol. 5, p. 105 ; Co., 60 N. Y. 487. Greenlf. on Ev., vol 2, p. 273 ; Sedg. i Camden Consolidated Oil Co. v. on Dam. 295," Schlens, 59 Md. 31, 45. See Bridge v. Wain, 1 Stark. 504 -i Pease v. Sabin, 38 Vt. 432 ; Ed- In this case scarlet cuttings were wards v. Collson, 5 Lans. 324 ; Char- purchased for sale in China. In an lotte, etc. R Co. v. Jesup, 44 How. action for breach of the implied Pr. 447; Merrill v. Nightingale, warranty that the goods were such, 29 Wis. 247 ; Gaylord Manuf. Co. v. Lord Ellenborough instructed the Allen, 53 N. Y. 515 ; Walton v. Cody, jury to consider the effect of their 1 Wis. 420. being of no use or value in China. 3 27 vt 227. " I am decidedly of the opinion," 1514 YENDOR AND VENDEE PERSONAL PROPERTY. [§672. defective, and the defect was not known nor observable on careful inspection. After such an acceptance of a defective article the purchaser will only be liable for its value, not for the contract price. Dealers who do not make or grow what they sell may, by the circumstances of the sale, incur a like obligation. They must agree that what they sell is suitable for the intended use; and the purchaser must trust to the judg- ment and skill of the vendor.^ In such cases, and also where there is an express warranty, the value of the property pur- chased to the vendee includes those gains which w^ould, with the requisite certainty, have accrued to him if the vendor had faithfully performed his contract, and exemption from those expenses and losses which naturally and proximately result from his failure to do so. Thus a warranty of a steam-engine, as having a certain capacity for w^ork, and as sound and in good order, if nntrue, w^ll entitle the vendee to recover the [430] difference between the actual value and what its value would have been had the engine been conformable to the warranty.'^ And the vendee may show this difference of value by proof of what it would cost to replace the machinery fur- nished with such as was demanded by the contract.* The sale of a rope for use on the vendee's crane was held to import a warranty of fitness, and the vendor was liable for a cask of wine lost by the breaking of the rope; * and in another case for the value of an anchor lost by the breaking of the cable sold for the purpose of holding it ; ^ and the vendor of a war- 1 Charlotte, etc. R Co. v. Jesup, 44 535. The authority of this case was How. Pr. 447; Mason v. Chappell, questioned in Hadley v. Baxendale, 15 Gratt. 573. 9 Exch. 341. This criticism is no- 2 Edwards v. Collson, 5 Lans. 324; ticed in Mayue on Dam. (Wood's ed.) Ladd V. Lord, 36 Vt. 194 ; Merrill v. 267, and the remark of Alderson, B., Nightingale, 39 Wis. 247 ; Giffert v. that on the same principle the jury West, 33 id. 617; Park v. Morris Ax might have given the value of the & T. Co., 4 Lans. 103. ship, if it had been lost. This author 3 Holmes v. Boydston, 1 Neb. 346 ; says : " No doubt the enormity of Hitchcock V. Hunt, 28 Conn. 343 ; the damages which would be i-ecov- Fisk V. Tank, 12 Wis. 275 ; Benjamin erable in such a case is very start- V. Hilliard, 23 How. (U. S.) 149 ; Marsh ling. But if a chain cable is sold for v. McPherson, 105 U. S. 709. the express purpose of iiolding a ship * Brown v. Egington, 2 1\L & G. to its anchor, and if, tlu-ough some 279. defect of it, the ship drifts on shore, * Borradaile v. Brunton, 8 Taunt, it is difficult to see why the damages § 672.] VENDEE AGAINST VENDOR. 1515 ranted lintel which caused the fall of a building in which it was used was liable for the damage.^ A manufacturer of bar- rels is liable for the loss of their contents by reason of defects in them,- The rental value of a mill which lies idle because of the insufficiency of warranted machinery is an element of damage ; ^ as is the cost of making repairs and the wages of men who are kept idle in consequence.'* The vendor of hay or grain which is to be fed to animals, or which is ordinarily used for that purpose, is liable for injury done to the vendee's animals b3''a poisonous substance contained therein.-^ x\ dealer in Paris green sold by mistake to a customer, knowing that he desired it to use on his crop for the purpose of destroying worms which injured it, another substance much in appear- ance like that applied for. Tl o substance delivered was used on the crop without producing the desired result. The vendor was held liable for the value of the crop as it stood just before it was destroyed, the cost of the article sold, the expense of preparing and applying it, with interest on the money expended, except in so far as the purchaser could, with ordinary care and reasonable expense, have prevented any of these elements of damage.^ If rags sold as clean, free from infection and fit to be manufactured into paper, are in- should stop at any smaller amount. Erie City Iron Works v. Barber, 100 When the pole of a carriage broke, Pa. St. 125. in consequence of which the horses * Aultman v. Stout, 15 Neb. 586 ; became frightened and were injured, Erie City Iron Works v. Barber, the court held that the sale of the suj^ra; New York & C. Mining Co. pole carried with it an implied v. Eraser, 130 U. S. 611, 632. warranty that it was reasonably fit In the absence of proof of value for its purposes; and that, as to the legal rate of interest upon the damages, the proper question to leave cost may be taken as the fair rental to the jury was whether the injury value of a mill. New York & C. to the horses was or was not a nat- Mining Ca v. Eraser, supra. ural consequence of the defect in the Expenses incurred in experiment- pole. Randall v. Newson, 3 Q. B. ing with a machine after it has been Div. 103. See criticism on this case demonstrated to be defective are not and that cited in preceding note, in recoverable from the vendor. Ault- note 7, p. 1516. man v. Stout, supra. I Riss v. Messmore. 30 N. Y. St. & Frencli v. Vining, 103 Mass. 133 ; Rep. 250 ; S. C, 9 N. Y. Supp. 320 ; Wilson v. Dunville, 4 L. R. Ire. 249 ; 58 N. Y. Super. Ct. 23. S. C, id. 310. ^ Poland V. Miller, 95 lud. 387. « Jones v. George, 61 Texas, 345. 3 Sinker v. Kidder, 123 Ind. 528; See vol. 1, §50, 1516 VENDOR AND VENDEE PERSONAL TROrERTY. [§ G72. fected with the small-i)ox and cause that disease to break out in the vendee's mill, the elements of damage are the loss of his trade because of the disability of his men and the money expended to support them while they are afflicted with the disease.^ The vendee may recover compensation for labor, expense or losses sustained in hona fide attempts to make a warranted machine produce the results which it was bought and sold for,- so far as they were incurred prior to the time he was bound by his contract to return it if it did not fill the warranty,' unless such efforts are clearly futile,^ or the con- tract limits the liability of the vendor.^ To make the vendor of a harvesting machin?3, sold with a warrant}^ of its quality and capacity, and with knowledge that it was purchased for the purpose of harvesting the vendee's grain, liable for dam- age sustained by the grain on account of the failure of the machine to work, it must appear that it was impracticable to secure the grain by other means, or that the delay in experi- menting with the harvester was justified, or that it was con- templated by the parties that such damage would be the re- sult of the breach of the warranty.^ In the absence of fraud or bad faith the vendor of a safe which is warranted to be "burglar proof" is not liable for damages sustaine'd hy the loss of valuables taken therefrom by burglars who broke it open.^ 1 Dushane v, Benedict, 120 U. S. 630. 6 Wilson v. Reedy, 33 Minn, 256 ; 2 Fox V. Stockton Harvester, etc. Froherich v. Gammon, 28 id. 476. Works, 83 Cal. 333 ; Whitehead & Compare Aultman v. Case, 68 Wis. A. Machine Co. v. Ryder, 139 Mass. 612. 366- But in Minnesota, in the ab- "^ Herring v. Skaggs, 62 Ala. 180. sence of fraud, expenses incurred by It is said in this case that Borradailo the purchaser for the medical exami- v. Bruuton and Brown v. Egingtou, nation and treatment of a warranted supra, carry the principle of liability horse are not recoverable. Merrick on the part of a vendor to extreme V. Wiltse, 37 Minn. 41. results. In the latter case "nothing 3 Newberry v. Bennett, 38 Fed. was said, either in the argument of Rep, 308. counsel or in the opinions of the * Draper v. Sweet, 66 Barb, 145 ; judges, on the question of the loss of Nye v. Iowa City Alcohol Works, 51 the wine being too remote to justify Iowa, 129; Murphy v. McGraw, 74 a recovery therefor." Distinguish- Mich. 318. ing those and other cases from the 5 Sycamore Marsh Harvester oneinhand.thecourtsay.byStone, J., Manuf. Co. v. Sturm, 13 Neb, 210; that the injuries in them resulted di- McCormick v. Vanatta, 43 Iowa, 389. rectiy from the known use for which u § C73.] VENDEE AGAINST VENDOR. 1517 The uncertainty of the extent to which damages have re- sulted from the breach of a contract is not ground for refus- ing the recovery of any. As was said in a late New York case : " When it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on ac- count of such uncertainty, any damages whatever for the breach." ^ Hence, where an article sold for a known use proves unfit therefor and produces injury to the customers of c^ the vendee, the vendor is liable for the value of the article and for the injury resulting to the vendee from its defects by loss of trade.- § 673. Same subject. Where coal dust was sold and war- ranted to contain no soft or bituminous coal, and with knowl- edge that it was intended by the vendee to make brick and that if there was soft coal dust in it its use would ruin the brick, on breach of the warranty it was held that the vendee was not limited in his recovery to the difference between the value of impure and pure dust, but that he might recover all the loss he had actually sustained from the use of the dust in making brick; these damages were clearl}^ such as were in contemplation by the parties.'' On a sale of onion seed it was warranted to be "good, fresh, and such seed as would [431] grow." There being a breach of warranty, the seed not grow- inCT, the vendee was held to be entitled to recover as damages the amount paid for the seed, the value of labor in preparing the ground for it (after deducting the benefit to the land) and in planting it, with interest on the several amounts."* In an- other case where the warranty was that the seed was " early strap-leafed, red-top turnip seed," on a breach because the seed sold was a different turnip seed, it was held that the measure of damages was the difference between the market value of the crop raised and one from the seed ordered.^ the articles were procured, without ' Wakeman v. Wheeler & W. extraneous interference or adventi- Manuf. Co., 101 N. Y. 205. tious circumstances, and purely from 2 Swain v. Schieflfelin, 31 N. E. inherent defects or inaptness for the Eep. 1025 (N. Y,). service required. They were the * Milburn v. Belloni, 39 N. Y. 53 ; natural consequence of the falsity of reversing S. C, 34 Barb. 607. the warranty. ■* Ferris v. Comstock, 33 Conn. 513. 6Wolcott V, Mount, 36 N. J. L. 283. 1518 VENDOR AND VENDEE — PERSONAL TROPEKTY. [§673. Depue, J., said : " Profits expected to be made from a whaling voyage, the gains from which depend in a great measure upon chance, are too purely conjectural to be capable of entering into compensation for the non-performance of a contract by reason of which the adventure was defeated. For a similar reason the loss of the value of a crop for which the seed had not been sown, the yield of which if planted would depend upon the contingencies of weather and season, would be ex- cluded as incapable of estimation with that degree of cer- tainty which the law exacts in the proof of damages. But if the vessel is under charter or engaged in a trade, the earnings of which can be ascertained by reference to the usual schedule of freights in the market, or if a crop has been sowed on the ground prepared for cultivation, and the plaintiff's complaint is that because of the inferior quality of the seed a crop of less value is produced, by these circumstances the means would be furnished to enable the jury to make a proper esti- mate of the injury resulting from the loss of profits of this character. In this case the defendant had express notice of tlie intended use of the seed. Indeed, the fact of the sale of seeds by a dealer keeping them for sale for gardening pur- poses to a purchaser engaged in that business would of itself imply knowledge of the use which was intended sufficient to amount to notice. The ground was prepared and sowed, and a crop produced. The uncertainty of the quantity of the crop, dependent on the condition of the weather and season, was [432] removed by the yield of the ground under the precise circumstances to which the seed ordered would have been ex- posed." There is no inconsistency between the result here reached and that arrived at in the preceding case, but the language here quoted would exclude the damages allowed if the seed did not grow when planted. In the foregoing quota- tion the uncertainties of weather and season render the crop, when the seed is not sowed, incapable of estimation; but it is conceded to be otherwise if a different seed is sowed and a crop raised on the ground prepared for the seed ordered. It is to be observed that the contract of sale was not made with reference to the use of the seed on any specified ground. And hence the uncertainties of weather and season miglit be removed by proof of actual turnip raising in the vicinity, and § 674.] VENDEE AGAINST VENDOR. 1519 the requisite proof would always exist if any turnips were produced in the neighborhood ; such proof would entirely har- monize with the principle of the other illustrations of a vessel under charter or engaged in a trade. A simihir case to the last arose in New York,^ and the court held to the same rule of damages, and it has been approved in a still later case.'' Andrews, J., referring to the preceding case, said: "It was carefully considered and decided, and we are not prepared to say that the rule there adopted is a departure from correct principles. Gains prevented, as well as losses sustained, may be recovered as damages for a breach of contract where they can be rendered reasonably certain by evidence and have naturally resulted from the breach.^ But mere contmgent and speculative gains or losses, with respect to which no means exist of ascertaining with any certainty whether they would have resulted or not, are rejected, and the jury will not be allowed to consider them. Can it be said that the dam- ages allowed in Passinger v. Thorburn are incapable of being ascertained with reasonable certainty by a jury? The char- acter of the season, whether favorable or unfavorable for pro- duction; the manner in which the plants set were cultivated; the condition of the ground ; the results observed in the same vicinity where cabbages were planted under similar cir- [-433] cumstances; the market value of Bristol cabbages when the crop matured ; the value of the crop raised from the defective seed; these and other circumstances may be shown to aid the jury, and from which they can ascertain approximately the extent of the damages resulting from the loss of a crop of a particular kind. The referee allowed interest on the damages from the time the crop would have been harvested and sold. We are of opinion this was erroneous. The demand was un- liquidated, and the amount could not be determined by com- putation simply, or reference to market values."* § 674. Same subject. A few months prior to the decision of White V. Miller the case of Van Wyck v. Allen ^ had been iPassingerv. Thorburn, 84 N.Y. 634 ^Citing Mahon v. New York, etc. 2 White V. Miller, 71 N. Y. 118. R. Co., 20 N. Y. 469; Smith v. Velie, 3 Masterton v. Mayor, etc., 7 Hill, 60 N. Y. 106. 61; Griffin v. Colver, 16 N. Y. 489; 5G9N. Y. 61. Messmore v. New York S. & L. Co., 40 N. Y. 422. 1520 VENDOR AND VENDER — PERSONAL PROPERTY. [§ GT-1, decided, but it is not referred to in the later case. The in- struction given the jury in Passinger v. Thorburn was that if the warranty was untrue then " the damages would be the value of the crop of Bristol cabbages such as they should be- lieve would ordinarily have been produced that year, deduct- ing all expenses "of raising the crop, and also deducting the product or value of the crop actually raised." In Van Wyck V. Allen the question was whether this instruction was suffi- ciently favorable to the plaintiff. Folger, J,, said : " It is urged here as error that the trial court departed from the rule in that case laid down in not directing a deduction from the value of the crop of the cost of producing it: so that we are to assume for the purpose of this case that the decision in Passiuffer v. Thorburn is not erroneous. But it will be ob- served of that case that it did not undertake to fix the limits of the rule on all sides. There came to this court therein for review a rule of damages laid down at the circuit, to wit : that the plaintiff w^as entitled to recover the value of a crop which could have been raised from good seed, less the cost of producing the crop, and the value of what was in fact raised. To this holding at the circuit the defendant excepted, but the plaintiff did not; so that there was raised in this court only the question whether the rule was unjust to the defendant : not any question whether the plaintiff could have found fault [434] with its limits. The appellate court could not review it, save to say that it was or was not too large. Whether it might not have l)een larger was not before the court, so that case is not an authority against the holding now before us. It is a decision which we may not in this case question, that where seeds are sold as, or warranted to be, those of a certain vegetable, and to produce that vegetable, then the vendee, the warranty failing, may recover the value of the reasonabl}^ anticipated crop, less the cost of tillage and the value of what was in fact raised. But if he may recover the value of the crop which should be, why, when naught is the product, should the vendee be held to credit the vendor with the lost labor and expenses? That he has expended, in this case, and should be remunerated, if he is to have full compensation. He would have been repaid it out of the profits of the crop had a crop been raised. He will repay it now out of the damages, which § 674.] VENDEE AGAINST TENDOE. 1521 stand in the place of the profits of the crop, if his judgment for them remains unimpaired. If he, having paid it out in futile tillage, is not to have recompense for it, he has lost it once. And if now he is to deduct it from the value of the crop which that tillage should have produced, he loses it twice. The crop, if raised, would have represented to him all that went into it, of time, labor, money, use of land and materials. The avails of the crop would have gone to reimburse each of those. He gets, in his damages, what the avails of the crop would have been, and those damages should go to reimburse each of those items. But if from the damages he deducts them, there are no damages to reimburse them, and he loses them entirely. If there had been any part of a crop raised, the value of that, clearly, should have been deducted." ^ In an English case seed potatoes sold with a warranty proved to have been mixed with another variety less valuable. The quantity purchased was twelve tons, from which thirty- five tons were grown. Cave, J., directed the jury that if they thought the purchaser ought to have examined the po- tatoes before planting them and ascertained their quality, that damages should be given on the basis of the quantity bought ; if he acted reasonably in not doing so, then the quantity pro- duced would be the basis upon which to calculate the dam- ages.- The vendor of impure clover seed has been held liable for the difference between the value of pure seed and of that sold, and also the difference between the value of the farm before and after the seed sold was sown thereon.' The dam- age to the farm may be shown by proof of the extent to which weeds grew upon it in consequence of the impurity of the seed, the expense, labor and difficulty of removing them and the hinderance to the growth of crops thereon.* Accord- ing to the view of the Tennessee court such damages as were recovered in the foregoing cases are too speculative for allow- ance.^ And in Georgia the extent of a recovery where seeds prove worthless is the purchase-money with interest and ex- 1 See Page v. Pavey, 8 C. & P. 769 ; ^ Fox v. Everson. 27 Hun, 355 ; Gary v. Gruman, 4 Hill, 625. McMullan v. Free, 13 Ont 57. 2 Wagstaff V. Short Horn Dairy * Fox v. Everson, supra. Co., 1 Cab. & E. 324 (1884). » Hurley v. Buchi, 10 Lea, 346. Vol. H — 96 1522 VENDOR AND VENDEE — PERSONAL TROrERTY. [§ 675. penses incurred in preparing the land for, and in planting, the seed, and compensation for any other necessary labor.^ § 675. Same subject. "Where seeds are sold with a war- ranty that they are of a kind identified by a particular name, with notice that the purchaser intends to sell them again to buyers who will purchase for the purpose of sowing them, if the warranty is untrue, there seems to be no difference in principle as to the subject of damages between such a sale and one with such warranty where the purchaser is known to buy for the purpose of sowing them himself. The warranty to one [435] buying seed to sell again justifies him in warranting it accordingly to his customers ; and as they have recourse to him for damages estimated by the standard just mentioned, that is also the measure of his loss as against his vendor.^ If animals sold are warranted sound, and are not so, but have an infectious or contagious disease which they communi- cate to others, where the parties contemplate their being placed with other stock, the loss not only in respect to the animals purchased, but to others to which the warranted ani- mals communicate the disease, may be recovered, as well as the expense of taking care of and doctoring them.' If sheep are purchased and sold for the purpose of breeding, and as a result of a contagious disease affecting them there is a deterio- ation in the lambs dropped soon after their sale, that forms a proper element of damages in an action for the breach of the 1 Butler V. Moore, 68 Ga. 780. The Ind. 112 ; Sherrod v. Langdon, 21 code provides that " remote or con- Iowa, 518 ; Wintz v. Morrison, 17 Tex. sequential damages are not allowed 372; Jeffrey v. Bigelow, 13 Wend, whenever they cannot be traced 518; Weaver v. Penny, 17 111. App. solely to the breach of the contract, 628 ; Joy v. Bitzer, 77 Iowa, 73, quot- or unless they are capable of exact ing the text ; Smith v. Green, 1 C. P. computation, such as the profits Div. 92 ; Long v. Clapp, 15 Neb. 417 ; which are the immediate fruit of the Routh v. Caron, 64 Tex. 289. contract and are independent of any A sale of " good merchantable cat- collateral enterprise entered into in tie " means such as are free from a contemplation of the contract." latent disease, and the vendor of 2 Randall v. Raper, E., B. & E. 84. those which are not so is liable for 3 Pinney v. Andrews, 41 Vt. 631 ; the vendee's losses proximately re- Bradley V. Rea, 14 Allen, 20 ; Marsh suiting. Parks v. O'Connor. 70 Tex. v. Webber, 16 Minn, 418 ; Brown v. 377. See Hill v. Ball, 2 H. & N. 299 ; Wood, 3 Cold. 182 ; Paris v. Lewis, Mullett v. Mason, L. R 1 C. P. 559. 2 B. Mod. 375; Rose v. Wallace, 11 § 675.] VENDEE AGAINST VENDOR. 1523 warranty,^ Knowledge of the existence of the disease in the animals sold is not necessary in order that the vendor shall be liable for the consequences of its communication to others where he expressly warrants against that result.- And ac- cording to some cases the right to recover does not depend upon knowledge in the vendor at the time of sale that the buyer designs to place the animals sold with others.^ The vendor is liable if he knew that this might be done.* A buyer may recover damages for personal injuries which result from selling property with a false warranty. A chemist or druggist may be held liable for such injuries received from deleterious compounds furnished which are unfit for the purpose for which he professed to sell them.^ A dealer will be liable for like in- juries resulting from the explosion of illuminating oils sold with warrant}^, express or implied, which is untrue." And so will any vendor be held answerable for such injuries from vicious animals, sold with warranty of gentle and docile nature.^ In such cases there is a negligence which, though free from fraud, involves a serious breach of social duty as well as contract ; and when the injury comes to the vendee from an exposure induced by the warranty, doubtless the right to dam- ages in an action upon the warranty would be co-extensive with that allowed for compensation in actions for negligence. Where an act of negligence is imminently dangerous to the lives of others, the guilty party is liable to one injured thereby whether a contract between them be violated by that negligence or not.^ If the law and a contract impose the same [436] duty the same redress for violation is due by either, and would be accorded unless there should be practical restriction in the form of action necessarily resorted to to obtain that redress. 1 Broquet v. Tripp, 36 Kan. 700. N. Y, Supp. 155 ; S. C, 31 N. E. Rep. 2 McKee v. Jones, 67 Miss. 405 ; Joy 1025 (loss of business resulting from V. Bitzer, 77 Iowa, 73. poisonous substance in ice cream re- 3 Sherrod v. Langdon, 31 Iowa, 518 ; covered for). See Longmeid v. Hal- Packa-d v. Slack, 32 Vt. 12. liday, 6 Eng. L. & Eq. 563. * Smith ^. Green, 1 C. P. Div. 92. 6 Miller v. Downer, etc. Co., 104 5 George t Skivington, L. R 5 Mass. 64; Davidson v. Nichols, 11 Exch. 1 ; Thomas v. Winchester, 6 Allen, 519. N. Y. 397 ; Jones v. George, 56 Tex. ^ Sharon v. Mosher, 17 Barb. 518. 149 ; S. C, 61 id. 345, fully stated in 8 Longmeid v. Halliday, 6 Eng. L. vol. 1, § 50 ; Swain v. Schieffelin, 13 & Eq. 563. 152^ VENDOR AND VENDEE — PERSONAL PROPERTY. [§ 675. In McDonald v, Snelling,^ Foster, J., said : " Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties. But where the defendant has violated a duty imposed upon him by the common law, it seems just and reasonable that he shall be held liable to every person injured, whose injury is the natural and probable con- sequence of the misconduct. In our opinion this is the well- established and ancient doctrine of the common law, and such liability extends to consequential injuries by whomsoever sus- tained, so long as they are of a character likely to follow, antl which might reasonably have been anticipated as the natural and probable result under ordinary circumstances of the Avrongful act. The damage is not too remote if, according to the usual experience of mankind, the result was to be ex- pected." 2 1 14 Allen, 290. 2 In McGavoch v. Wood, 1 Sneed, 181, a slave was sold to be taken south or elsewhere for sale or serv- ice ; and after the journey an action was brought by the vendee against the vendor upon his warranty of soundness ; held, there was no rule which would authoi'ize the plaintiff to recover the expenses of the slave on that trip. In Gas Light Co. v. Colliday, 25 Md. 1, it was held that for shutting off gas, and refusing to supply it accord- ing to contract, after the pipes and fixtures for that purpose had been put in place in a building used for business purposes, the depreciation of the property for sale or lease, and the expense of restoring the premises to proper condition, divested of the gas pipes, might be taken into ac- count as part of the damages. In the similar case of Shepard v. Milwaukee G. L. Co., 15 Wis. 318, which was like the common-law ac- tion on the case, the jury was in- structed that "plaintiff, if entitled to a verdict, should have such dam- ages as will compensate him for the pecuniary loss, and also for the in- convenience and annoyance experi- enced by him in his mercantile business, arising out of the defend- ant's refusal to furnish gas to him." Payne, J., delivering the opinion of the court, said : " It is claimed that this instruction gave the plaintiff punitive or vindictive damages. But we think this is clearly not so. The ' inconvenience and annoyance ' oc- casioned directly by the wrongful act or refusal of the defendant are always legitimate items in estimat- ing the damages in actions of this kind. Vindictive damages are those which are given over and above all this, as a punishment for the other party. In actions for a nuisance the damages usually consist almost en- tirely in inconvenience and annoy- ance. So also in many other actions of tort. In Ives v. Humphrey, 1 E. D. Smith, 201, the court says : ' Even if the plaintiff be confined strictly to compensation for the injury sus- tained by him the jury are to deter- mine the extent of the injury, and the equivalent damages, in view of all the circumstances of injury, in- § ore..] VENDEE AGAINST VENDOR. 1525 § 676. Defenses to actions for purchase-money. The [437] vendee cannot resist the collection of the purchase-money, where there is no fraud or warranty, merely because the prop- suit, invasion of the privacy and interference with the comfort of the plaintiff and his family.' And again : ' For an involuntary trespass, or a trespass committed under an honest mistake, the damages should be confined to compensation for the injury sustained by the plaintiff ; and in estimating the amount of such damages all the particulars wherein the plaintiff is aggrieved may be considered, whether of pecuniary loss, or pain, or insult, or inconven- ience.' So in an action for refusing to let a lessee into possession, the plaintiff gave evidence of injury to his wife's business as a milliner, without having averred it specially ; but the court held it admissible un- der the general allegation of dam- ages, as going to show that ' the plaintiff had sustained inconven- ience.' Ward V. Smith, 11 Price, 19. But the appellant further objects to the admission of evidence to show that it would injure the plaintiff's business to be deprived of gas when other stores were lighted with it. It is said that the object of this was to show that the want of gas would tend to prevent customers from coming to the store, and conse- quently that the plaintiff lost the profits that he otherwise might have made. And the appellant then relies on a class of authorities in which, both in actions of tort and for breaches of contract, it has been held that anticipated profits could not be recovered as damages. Upon this subject the authorities are full of confusion and uncertainty, and it is very generally conceded that no definite or satisfactory rule can be extracted from them. Sedgwick on Dam., p. 112; Cincinnati v. Evans, 5 Ohio St. 603. But I tliink it can by no means be said to be established that the profits of a business or of a contract may never bj considered in estimating the damages, where one party has been deprived of those profits by the wrong or default of another. On the contrary, I think the opposite conclusion is sustained, and that the tendency of the recent cases is to allow such profits to be recovered as damages where their amount can be shown with reason- able certainty. The question often arises in cases of breach of contract, and there ai'e many authorities which hold that the profits that might have accrued to the injured party on the contract itself, which was broken, may be recovered as damages. Phil- adelphia, etc. R. Co. V. Howard, 13 How. (U. S.) 307, 344 ; Masterton v. Mayor, 7 Hill, 61 ; Fox v. Harding, 7 Cush. 522. These cases confine the profits to be recovered to such as might have been made on the con- tract the breach of which is com- plained of. Yet it is very evident that even such profits cannot be ar- rived at with any absolute certainty, as they frequently depend upon fluct- uations in the market, and changes in the price of labor and materials, which may take place while the con- tract is being performed. Yet, inas- much as they may be estimated with reasonable certainty, and their loss is the direct result of the wrong com- plained of, they are allowed to be re- covered. And in the case of "Waters V. Towers, 20 Eng. K & Eq. 410, the rule was extended so as to include 1526 VENDOR AND VENDEE — PEESONAL PROPERTY. [§ 676. [438] erty is less valuable than he supposed ; ^ nor because of latent defects.^ But where goods are sold with warranty, which proves untrue, the vendee, when sued for the contract price either on a general count for goods sold and delivered or bargained and sold upon the special contract of sale, or upon a note or other security for the price, may allege the breach of warranty as a defense, and obtain an abatement of damao;es to the amount he would be entitled to recover for such breach in a cross-action. This defense is allowed under vari- ous names — reduction or mitigation of damages, partial fail- [439] ure of consideration, discount, or recoupment. It is not universally allowed, but nearly so, not only for breach of war- ranty, but also for any fraud of the vendor in the sale. The cases cited below fully define and illustrate this defense ; and profits on a collateral contract which the plaintiff had entered into with other parties. The court said : ' If reasonable evidence is given that the amount of profit would have been made as claimed the damages may be asked accordingly. . . . Had- ley V. Baxendale, 26 Eng. L. & Eq. 398 ; Fletcher v. Tayleur, 33 id. 187.' I think the principle fairly to be derived from these cases is, that the profits lost as a direct result of a breach of contract may be recov- ered as damages, where they are not so conjectural and remote as to be incapable of ascertainment with rea- sonable certainty. And their reason- ing seems entirely applicable to this case. The defendant here knew that if he refused gas to the plaintiff he could get it nowhere else. It stood, therefore, in the same position that the carrier would have been in, in Hadley v. Baxendale, if he had known the plaintiff could have no shaft to his mill until the model was delivered. The defendant, therefore, must be presumed to have contem- plated whatever damage would nat- urally arise from its refusal to fur- nish the plaintiff with gas. Its obli- gation to furnish it was, according to the decisions of this court, as clear and imperative as though it had ex- pressly contracted to do it. And it seems to me that the profits of an established business are quite as ca- pable of being ascertained with i*ea- sonable certainty as the profits to arise from a single contract or ad- venture. There is, in the case of such a business, the experience of the past to serve as a test. And the rule suggested by Jarvis, C. J., in Fletcher v. Tayleur, that the damages should be estimated ' according to the aver- age percentage of mercantile prof- its,' could readily be applied, and would seem just and reasonable. The cases already referred to seem to me, therefore, applicable! here, and to sustain the conclusion that the profits of a business which are neces- sarily lost by the wrong or default of another may, under some circum- stances and with proper restrictions, be considered in estimating the dam- ages for the injury." 1 Leonard v. Peebles, 30 Ga. 61. 2 Drew V. Roe, 41 Conn. 41. § 676.] VENDEE AGAINST VENDOE. 1527 for a full exposition of the subject, the reader is referred to the section on " Recoupment and Counter-claim." ' 1 Vol. 1, g§ 168-179 ; McAlUster v. Reab, 4 Wend. 484 ; Reab v. McAllis- ter, 8 id. 109 ; Van Epps v. Harrison, 5 Hill, 63 ; Ward v. Reynolds, 33 Ala. 384 ; Hoe v. Sanborn, 3 Abb. (N. S.) 189 ; Caldwell v. Sawyer, 30 Ala. 283 ; Jemison v. Woodruff, 34 id. 143; Davis V. Dickey, 23 id. 848 ; Rotan v. Nichols, 22 Ark. 244 ; Desha v. Rob- inson, 17 id. 228 ; Plant v. Condit, 22 id. 454 ; Peck v. Farrington, 9 Wend. 44 ; Parker v. Pringle, 2 Strobh. 249 ; Young V. Plumeau, Harp. 3^19 ; Har- mon v. Sanderson, 6 Sm. & M. 41 ; Wheelock v. Pacific P. G. Co., 51 CaL 223; Polhemus v. Heiman, 45 CaL 573; Huckaber v. Albritton, 10 Ala. 651 ; Simmons v. Cutreer, 12 Sm. & M. 584 ; Otis v. Alderson, 10 id. 476 ; Allaire v. Whitney, 1 Hill, 484; 1 N. Y. 305 ; Luffburrow v. Henderson, 30 Ga 482 ; Perley v. Balch, 23 Pick. 282 ; Aultman v. Mason, 83 Ga. 212 ; Dayton v. Hooglund, 39 Ohio St 671 ; Shaw V. Smith, 45 Kan. 334 ; Dr. Bar- ter Medicine Co. v. Hopkins (Wis.), 53 N. W. Rep. 501. See McDugald v. McFadgin, 6 Jones' L. 89 ; Henning V. Vanhook, 8 Humph. 678 ; McEn- tyre v, McEntyre, 12 Ired. 299. 1528 OONTKACTS FOE SERVICES. [§§ 677, 678, CHAPTER XY. CONTRACTS FOR SERVICES. § 677. Scope of subject. 678. Recovery where wages fixed, and under statute. 679. On quantum vieruit. 680. Proof of the value of services. 681. A statutory day's work. 682. Recovery for attorney's services. 683. Recovery for broker's services. 684. Various modes of compensating services. 685. Continuation of original contract. 686. Necessity of full performance of entire contract 687-690. Dispensation in case of inability. 691. Entire and apportionable contracts. 692-694. Wrongful dismissal of employee. 695. Liability of employee for violation of contract [440] § 677. Scope of chapter. This subject properly in- cludes the contracts not only of servants and laborers, of me- chanics and builders, for professional and skilled labor, but also salvage service, agency and many kinds of bailment. § 678. Recovery where wages fixed, and under statute. Where the contract is express and fixes the amount of com- pensation due on performance, that stipulated compensation is the measure of damages whether the action is brought on the contract or in general assumpsit} If the contract clearly provides that the compensation shall be determined by the em- ployer after the work is performed, his decision is binding in the absence of fraud or bad faith, which will not be inferred from the fact that the value of the services was considerably more than the sum named by him.^ Where a statute gives 1 Fells V. Vestvali, 2 Keyes, 152 ; State v. Hawkins, 28 Mo. 366 ; Kirk McKinney v. School District, 20 v. Hartman, 63 Pa. St 97 ; Balsbaugh Minn. 72 ; Edwards v. Goldsmith, 16 v. Frazer, 19 id. 95 ; Ludlow v. Dale, Pa. St 43 ; Dermott v. Jones, 2 "Wall. 62 N. Y. 617 ; Steinburg v. Gebhardt 1 ; Chesapeake & O. Canal v. Knapp, 41 Mo. 519. 9 Pet 541; Perkins v. Hart, 11 2 Butler v. Winona Mill Co., 28 Wheat 237. See Gay v. Botts, 13 Minn. 205. But in Illinois a contract Bush, 299 ; Sprague v. Morgan, 7 Ala. to pay whatever the party perform- 952 ; Evans v. Bennett 7 Wis. 404 ; ing may cljarge does not preclude § 679.] CONTEACTS FOR SERVICES. 1529 the owner of logs compensation for driving those owned by another person which are intermingled with his, the right to recover is not affected by a custom which regards such serv- ices as gratuitous, nor defeated by the fact that the owner did not know that they were driven. The recovery is to be measured by the value of the labor regardless of' the resulting benefit.' If a bill is presented for services, the amount claimed therein limits the recovery.^ § 679. Recovery on quantum meruit. If the compensa- tion has not been fixed by agreement he who has done work on a hiring for wages may recover so much as the services are rea- sonably w^orth, or so much as he deserves.' Recovery may be had according to the value of the services, not the benefit the employer derives therefrom.* A contract to pay may be in- ferred from circumstances, without any express agreement ; ^ and the price may be tacitly fixed by their indicating a [44:1] concurrence of the minds of the parties." The duty to pay may be imposed by law under the fiction of an implied prom- ise, where there was neither promise nor intention to pay, as where the performance of service has been procured by fraud.^ If a father repudiates a contract for service made by his minor son he may claim the value of the services rendered. If the employer has permitted the son to use part of his time for his ow^n purposes its value may be deducted.^ A promise by the employer is generally implied to make reasonable com- pensation for services rendered, unless there are circumstances which negative that implication.^ Where a person renders the person served from disputing the 358 ; Erben v. Lorrillard, 2 Keyes, reasonableness of the charge. The 567 ; Spencer v. Storrs, 38 Vt 156. plaintiff may only recover what liis *Sto\ve v. Buttrick, 125 Mass. 449. services are worth. Van Arman v. & Coleman v. Simpson, 2 Dana, 166, Byington, 38 111. 433. 6 Wilder v. Stanley, 49 Vt. 105 ; 1 Osborne v. C. N. Nelson Lumber Buck v. Worcester, 48 id. 2 ; Curley Co., 33 Minn. 285. v. Jenkins, 46 id. 721. 2 Daniels v, Wilber, 60 111. 526. ' Rumsey v. Northeastern Ry. Co., 3 Coleman v. Simpson, 2 Dana, 166 ; 14 C. B. (N. S.) 641 ; Morrison v. Downing v. Major, id, 228 ; Weston Bradley, 5 Cal. 503. V, Davis, 24 Me, 374 ; Smith v, Davis, « Sherlock v. Kimmell, 75 Mo. 77, 45 N, H, 566; Updike v, Tenbroeck, 9 Alexander v. Worman, 6 H. &N. 32 N. J. L. 105 ; Lewis v. Trickey, 20 100 ; Higgins v. Hopkins, 3 Exch, Barb, 387 ; Bergin v, W^emple, 30 N. 166 ; Boucher v, Norman, 3 B. & C, Y, 319 ; Ricketts v. Sisson, 9 Dana, 744 ; Kmgston v. Kelly, 18 L. J, 1530 OONTKACTS FOE SEKVICES. [^ 679. service for another, relying solely upon his generosity, and ex- pecting to be compensated by a legacy, he cannot, when dis- appointed in such expectation, maintain an action at law for the value of such service.^ It is, however, settled that a con- tract to pay for services by will is valid ; ^ and where the promise is of a specific sum by bequest, it may be recovered, but no more ; ^ or, if the promise is of a specific portion of the estate, its value will be the measure of recovery.^ So a general promise to make compensation in the promisor's will entitles the promisee to maintain an action against the per- sonal representative for reasonable compensation, if the prom- ise be not fulfilled.* Any circumstances will suffice to give such right of action if they negative any inference that the services were gratuitous, or that the matter of paying for them' was left to the will and pleasure of the employer.^ On [442] the other hand, if the services appear to have been ren- dered as a gratuitous kindness, or the facts are insufficient to show an intention to pay for them, no action will lie.^ Thus, where a slave servant accompanied his master from the West Indies to England, and there continued in his service without any agreement, he was held not entitled to wages.^ So guard- ians, executors, administrators, or other trustees, are not entitled to claim compensation for their services except by virtue of a statute or contract.^ (Exch.) 360 ; Lewis v. Trickey, 20 Lee v. Carter, 52 Ind. 342 ; Porter v. Barb. 387 ; Boylan v. Holt, 45 Miss. Dunu, 61 Hun, 310. 277. 3 Porter v. Dunn, 61 Hun, 310 ; Bell In Hay v. Walker, 65 Mo. 17, it v. Hewitt, 24 Ind. 280. was held that in order to raise an im- * Frost v. Farr, 53 Ind. 390. plied contract to pay for labor it was ^ Reynolds v. Robinson, 64 N. Y. 589 ; not necessary there should have been Nelson v. Masterton, 2 Ind. App. 524 ; an intention on the part of the S. C, 28 N. E. Rep. 731. laborer during his service to charge ^ Jacobson v. La Grange, 3 Johns, therefor; it is sufficient that the per- 199; Patterson v. Patterson, 13 id. son for whom the labor was done ex- 379 ; Martin v. Wright, 13 Wend, pected to pay for it. 460 ; Eaton v. Benton, 2 Hill, 576 ; 1 Granding v. Reading, 10 N. J. Eq. Robinson v. Raynor, 28 N. Y. 494. 370 ; Osborn v. Guy's Hospital. 2 Str. ' 2 Add. on Cont., § 851. See Swanzy 728 ; Le Sage v. Coussmaker, 1 Esp. v. Moore, 22 111. 63. 189; Little v. Dawson, 4 Dall. 111. § Alfred v. Fitzjames, 3 Esp. 3. 2Redfield on Wills,pt2,pp.281-2; 9Huggins v. Rider, 77 111. 360; Graham v. Graham's Ex'r, 34 Pa. St. Barrett v. Hartley, L. R 2 Eq. 789 ; 475 ; Myles v. Myles, 6 Bush, 237 ; Christophers v. White, 10 Beav. 523 ; § 679.] CONTRACTS FOR SERVICES. 1531 In actions for compensation on a quantum meruit^ the in- quiry being what amount the party who has clone the work deserves, every fact which will tend to enhance the merit and value of his services is admissible in evidence for his benefit ; and every fact which will detract from their merit and value is admissible against him in behalf of the employer.^ It is a good defense to show that the work was so unskilfully, care- lessly or wrongly done that the employer thereby suffered in- jury, or that it was for such cause useless, and had to be done over again.2 An employee engaged to perform particular serv- ices is entitled to recover therefor what they are reasonably worth, if faithfully and properly performed, notwithstanding the employer will derive no advantage from them. Thus, where an agent was employed to sell an estate, and the owner without sufficient reason refused to fulfill an agreement which the agent had made, a right to demand compensation accrued to him, and the amount was held to be ascertainable by the established usage.' A mechanic who skilfully works out the plan given him, and in a workmanlike manner follows his em- ployer's directions, has no concern with the success and profit of his work, or with the question whether it answers [443] the purpose intended.* It is enough that an attorney is em- plo3"ed to carry a case on appeal to a higher court. He is not responsible for its merits or demerits, but is entitled to pay- ment for his services, and as against this claim the inquiry ■ whether there was anything in the appeal to argue is irrele- vant.^ A failure to win a case is no defense unless it is lost through the attorney's mismanagement.'^ In Brown v. Post ^ it was held that commissions for procuring the charter of a vessel in the port of New York are payable as soon as the Moore v. Frowd, 3 Myl. & Cr. 45 ; v. Clark, 9 Cow. 57. See Clark v. Manson v. Baillie, 2 Macq. H. L. Cas. Fensky, 3 Kan. 389. 80 ; Collins v. Carey, 2 Beav. 128 ; 2 Ervin v. Epps, 15 Rich. 223 ; Morgan v. Hannas, 13 Abb. (N. S.) Farnsworth v. Garrard, 1 Camp. 38. 361 ; Lansing v. Lansing, 1 id. 280 ; 3 Kock v. Emmerling, 22 How, Hopper V. Adee, 3 Duer, 235. (U. S.) 69 ; McEwen v. Kerfoot, 37 111. 1 Cadman v. Markle, 76 Mich. 448 ; 530. See Walker v. Rogers, 24 Md. Morris v. Redfield, 23 Vt. 295 ; Mo- 237. line W. P. & M. Co. v. Nichols, 26 111. * Ricketts v. Sisson, 9 Dana, 358. 90 ; Robinson v. Mace, 16 Ark. 97 ; 5 Case v. Hotchkiss, 3 Keyes, 334. Duncan v. Blundell, 3 Stark. 6 ; Hay- « Brackett v. Sears, 15 Mich. 244. selden v. Staff, 5 A. & E. 153 ; Gleason < 6 Robt. 111. 1532 C0NTKACT8 FOE SEEVICES. [§ 680. charter is effected, and do not depend upon freight being taken or upon the voyage being completed. The plaintiffs, being ship-brokers, procured for the defendants a charter of a ves- sel for a voyage from New York to Cape Town, and thence to Mauritius or Batavia, the freight to be a certain sum (one dol- lar) and five per cent, primage in gold per barrel. The charter party provided that the charter money should be settled, if at Cape Town or Mauritius, at a certain rate of exchange in sterling (four shillings and two pence), for the price so fixed per barrel ; if at Batavia, at a certain other rate of exchange in the currency of the country (two and a half guilders), for the price so fixed. No cargo ever being shipped by the vessel the charter was not performed. It was held that the plaint- iffs were entitled to recover on their commissions five per cent, on the value in New York of the amount of sterling currency susceptible of being earned at Mauritius under the instrument ; that the percentage to be allowed the ship-brok- ers is to be estimated, not by the ultimate profits actually de- rived from the adventure, but by what they would be if it were successful. So, if a physician has employed the ordinary amount of skill in his profession, and has applied remedies fitted to the complaint, and calculated to do good in general, he is entitled to his hire and reward, although they may have failed in the particular instance, such failure then being at- tributable to some peculiarity in the constitution of the pa- tient for which the medical man is not responsible.* If serv- ice is performed under a contract which specifies the price to be paid for doing all the work to be done and full perform- ance is prevented by the employer, his liability in an action upon quantum meruit is such proportion of the contract price as the work done bears to the whole work agreed to be done.- [444] § 680. Proof of the value of services. The value of services may be determined by customary rates where auch exist ; they are then market values.^ And upon the value of services, as upon the value of |>roperty, the opinions of wit- nesses properly informed on the subject may be taken.* 12 Add. on Cont., § 876; Kannen Doolittle v. McCuUough, 12 Ohio St V. McMullen, Peake, 59; Hupe v. 360. Phelps, 2 Stark. 480. a Stanton v. Embrey, 93 U. S. 557; 2 Noyes v. Pugin, 2 Wash. St. 653 ; Pfeil v. Kemper, 3 Wis. 315. * Lewis V. Trickey, 20 Barb. 387 ; § 681.] CONTRACTS FOR SERVICES. 1533 § 681. A statutory day's work. AlSTew Hampshire statute provided that : " In all contracts for or relating to labor, ten hours of actual labor shall be taken to be a day's work unless otherwise agreed b}'^ the parties ; and no person shall be re- quired or holden to perform any more than ten hours' labor in any one day except in pursuance of an express contract re- quiring a greater time." In Brooks v. Cotton ^ it was held that if work is done through a season at a certain agreed price per day, and the work done from time to time in a day is done and accepted without objection as a day's work, an agreement may be implied that the work done in a da}^ whether on an average more or less than ten hours, shall be reckoned and paid for as a day's work. Perley, C. J., said : "The employer cannot require the laborer to work more than ten hours in a day without express agreement ; that is to sa}'', if the laborer is called on at any time to work more than ten hours in a day he cannot be required to do it unless he is bound to do it by an express agreement. But we do not understand that this provision reaches to the case where a laborer hired by the month or the year has voluntarily worked more than ten hours a day. If he is to be paid at a certain rate per day, it may in such case be implied, from the nature of the employment and the conduct of the parties, that what he did in a day was to be reckoned as a day's work." [-11:5] Ottawa University v. Parkinson, 14 mate their value in money. See vol. Kan. 159, 164 ; Reynolds v. Robinson, 1, § 446. 64 N. Y. 589 ; Elting v. Sturtevant. 41 i 48 N. H. 50. Under section 3738, Conn. 176; Byrne v. Byrne, 47 111. Revised Statutes of the United 507; Mercur v. Vose, 67 N. Y. 56; States, which provides that eight McCollum V. Seward, 62 id. 316; hours shall constitute a day's work Shepard v. Ashley, 10 Allen, 543; for all laborers, workmen and me- Madden v. Porterfield. 8 Jones' L. chanics now employed, or who may 166. be hereafter employed by or on be- In Craig v. Derrett, 1 J. J. Marsh, half of the government, it has been 365, it was said the jury have a right held that its purpose was not to in- to base a verdict upon their knowl- crease wages, and that an employee edge of value. who works twelve hours a day and In Madden v. Porterfield, 8 Jones' is paid by the day, and accepts the L. 166, it was held that it is the prov- payment, cannot be heard to main- ince of the jury to affix a value to tain that every eight hours consti- services according to their nature tuted a day's work. Averill v. United and extent as proved ; and that it is States, 14 Ct of C1& 200. not necessary for witnesses to esti- 1534: CONTRACTS FOK SERVICES. [§ 682. So in Luske v. Tlotchkiss * it was held that a week's work under a contract for a fixed price per week was work for the period of a week, and not for six periods of eight hours each ; and that, consequently, a party who under such a contract had worked sixteen hours a day could not recover for two weeks' work. It was considered that the only effect of the statute, where a case falls within it, is to release the laborer from work, and entitle him to compensation for a day's labor at the end of eight hours. If he works more than eight hours in a day, unless by special request or agreement, he cannot claim additional compensation for such extra work. The plaintiff contracted to conduct a coal gas establishment for the defendant, receiving a fixed sum per week as wages. The business was of such a nature as to require sixteen or more hours per day, and the contract was made with an under- standing on both sides of this fact. It was held that the case did not fall within the operation of the statute. § 682. Recovery for attorney's services. If an attorney brings suit for professional services, anything which shows that they were not of the value claimed is competent ; the nature of the suit conducted, the difficulties of it, the skill re- quired and exercised may be shown. A trial may result suc- cessfully, and yet the attorney have been guilty of negligence. To obviate the effect of his negligence and want of skill the client may have been put to expense ; if so, the fact will re- duce the value of the services.^ In an action to recover coun- sel fees for services in a chancery suit the papers and records therein are competent evidence to show the character of the suit, the amount involved, and what has been done in it.^ A client who has notice of the terms fixed by a bar fee-bill and [446] employs counsel at that bar will be bound by the rates 1 37 Conn, 219. 1 Hilt 498. See Templar v. McLach- '■i Nixon V. Phelps, 29 Vt. 198 ; Ian, 2 B. & P. N. R 136. Brackett v. Sears, 15 Mich. 244; It was held in Keenan v. Dorflinger, Bridges v. Hall, 13 Cal. 630; Cox v. 19 How. Pr. 153, that the taxable Livingston, 2 W. & S. 103 ; Hopping costs are prima facie the measure of V. Quinn, 12 Wend. 517 ; Runyon v. an attorney's compensation for serv- Nichols, 11 Johns. 547; Stow v. ices in an action carried to judg- Hamlin, 16 How. Pr. 452 ; Webb v. ment. Browning, 14 Mo. 354 ; Smith v. 3 Boylan v. Holt, 45 Miss. 277. Davis, 45 N. H. 566 ; Garr v. Mairet, § 682.] OONTEACTS FOK SERVICES. 1535 so fixed, on the ground that he has impliedly consented to them.^ Attorneys at law are professional laborers who as- sume, by accepting a retainer, peculiar responsibilities ; they are entitled to remuneration proportioned to the importance of their undertakings, and the diligence, skill and knowledge required for the proper performance of their duties. For- merly the higher grade of practitioners were presumed not to perform professional services with any mercenary view, and were unable to make any binding contract for advocacy in litigation or to maintain any action for their services, even upon an express contract to pay a stipulated sum, and this is now the law in England;- but this scruple and the dis- [448] 1 Boylan v. Holt, 45 Miss. 277. 2 Kennedy v. Brown, 13 C. B. (N. S.) 611. This case presents a masterly and exhaustive review of the author- ities and traditions upon this subject The following are extracts from the opinion of Erie, C. J. : " The material facts upon the first question (i. e., whether there was 'no evidence of debt ') are that in the course of the suit between Swifen and Swifen, the plaintiff, a barrister, became the ad- vocate of Mrs. Swifen, who, with her husband, are now defendants; that during the continuance of that litigation she made repeated requests to him for exertions as an advocate, and repeatedly promised to remu- nerate him for the same ; and that after the end of the litigation she spoke of the amount of his remu- neration ; and for the purpose of the present judgment we assume that she admitted the amount of debt due for such remuneration to be 20,000/., and promised to pay it These facts are no evidence to support the ver- dict if the promise of the defendant did not constitute any obligation; and we are of opinion that it did not We consider that a promise by a client to pay money to a counsel for his advocacy, whether made before or after the litigation, has no binding effect ; and furthermore, that the re- lation of counsel and client renders the parties mutually incapable of making any contract of hiring and service concerning advocacy in liti- gation. "For authority in support of these propositions we place reliance on the fact that in all the records of our law, from the earliest time till now. there is no trace whatever either that an advocate has ever maintained a suit against his client for his fees in litigation, or a client against an ad- vocate for breach of a contract to ad- vocate ; and as the number of prece- dents has been immense, the force of the negative fact is proportionately great To this we add the tradition and understanding of the profession, both as known to living memory and as expressed in former times. Sir John Davys (Davys' Report, preface, page 23) declares that understanding at the beginning of tiie seventeentli century, when he says that 'the fees of the professors of the law are not duties certain growing due 'by con- tract for labor or service, but gifts ; not merces, but honorarium.'' [447] Sir John Davys would have ample experience of the rules of the profes- sion from his eminence in the law ; and his opinion is entitled to much 1530 CONTKACTS FOE SERVICES. [§ 682. ability based thereon do not extensively prevail in this coun- try. All grades of practitioners may contract their services weight Lord Stowell, as appears in a work remarkable for learned re- search — Wallace's Reporters, p. 27 — speaks of him as 'a poet, a lawyer and a statesman, and highly distin- guished in each of these characters.' Lord Nottingham declares the saaie understanding of the profession in the note to Co. Littleton, 295, a, say- ing: 'A counselor cannot bring any action (i. e., for his fees), for he is not compellable to be a counselor; his fee is honorarium, and not a debt.' The same note contains the opinion of Mr. Butler to the same effect, say- ing that in England the fees of coun- sel are honorary in the strict accepta- tion of the word. Blackstone also (vol. 3, p. 28) declares the same un- derstanding: 'A counsel can main- tain no action for his fees, which are given, not as locatio and conductio, but as quiddam honorarium, not as salary or hire, but as mere gratuity.' As we know of no authorities that conflict with these, we only add the names of the judges who have had occasion to declare an opinion to the same effect ; and they are Lord Hard- wicke (Thornhill v. Evans, 2 Atk. 330), Lord Kenyon (Turner v. Phil- lips, Peake's N. P. Cas. 166), Kenders- ley, V. C, (Re May, 4 Jurist (N. S.), 1169), Pigot, C. B., (Hobart v. Butler, 9 Ir. C. L. (N. S.) 157), and Bay ley, J., :'nd Best, J., (Morris v. Hunt, 1 Chit. 544). These are authority for hold- ing that the counsel cannot conti'act for his hire in litigation. The same authorities we rely on to show that the client cannot contract for the services of the counsel in litigation. There is the same absence of any precedent for such an action, and the reason for the one incapacity is good for both. " The facts of the present case for- cibly show some of the evils which would attend both on the advocate and the client if the hiring of coun- sel was made binding. In this case the advocate, by disclosing words of intmiate confidence which passed in moments of helpless anxiety, has raised the phantom of a contract for a sum of monstrous amount; and of this we hope we may say that there is no one in the profession of the plaintiff who would be willing to ac- cept from him this verdict of 20,000Z. as a gift. In the present case, too, if the client compares the competence and peace secured to her by the former advocate with the perils and the miseries of wearisome litigation, derived from her later advocate, the contrast may suggest that gratuitous advocacy is preferable to contract as a mode of remunerating advocates. But it is not merely on such consid- erations as these that this law is based. The incapacity of the advo- cate in litigation to make a contract of hiring affects the integrity and dignity of advocates, and so is in close relation with the highest of human interests, viz. : the adminis- tration of justice. We are aware that, in the class of advocates, as in every other numerous class, there will be bad men, taking the wages of evil, and therewith also for the most part the early blight that waits upon the servants of evil. We are aware also that there will be many men of ordinary powers, performing ordi- nary duties without praise or blame. But the advocate entitled to perma- nent success must unite high powers of intellect with high principles of duty. His faculties and acquire- ments are tested by a ceaseless com- § 082.] CONTRACTS FOR SERVICES. 1537 and recover for them.^ And in many states statutes [440] have been passed expressly authorizing attorneys to fix the measure and mode of their compensation by agreement with their clients. But on account of their confidential relations petition proportioned to the prize to be gained, that is, wealth, and power and honor without, and active exer- cise for the best gifts of mind within. He is trusted with interests and privileges and powers almost to an unlimited degree. His client must rely on hitii at all times for fortune and character and life. The law trusts him with a privilege in re- spect of liberty of speech which is in practice bounded only by his own sense of duty ; and he may have to speak upon subjects concerning the deepest interests of social life, and tlie innermost feelings of the human soul. The law also trusts him with a power of insisting on answers to the most painful questioning; and this power, again, is in practice only controlled by his own view of the in- terests of the truth. It is of the last importance that the sense of duty should be in active energy, propor- tioned to the magnitude of those in- terests. If the law is, that the advo- cate is Incapable of contracting for hire to serve when he has undertaken an advocacy, his words and acts ought to be guided by a sense of duty, that is to say, duty to his client, binding him to exert every faculty and privilege and power in order that he may maintain that client's rights, together with duty to the court and himself, binding him to guard against abuse of the powers and privileges intrusted to him. by a constant recourse to his own sense of right " If an advocate with these quali- ties stands by the client in time of his utmost need, regai'dless alike of popular clamor and powerful inter- est, speaking with the boldness which a sense of duty can alone rec- ommend, we say the service of such an advocate is beyond all price to the client; and such men are the guaranties for the maintenance of his dearest rights ; and the words of such men carry a wholesome spirit to all who are influenced by them, "Such is the svstem of advocacy lAmes V. Gilmau, 10 Met. 239; Thurston v. Percival, 1 Pick. 415; Stevens v. Adams, 23 \yend. 57; Adams v. Stevens, 26 id. 451 ; Wil- son V. Burr, 25 id. 386; Merritt v. Lambert, 10 Paige, 352; Wallis v. Loubat, 3 Denio, 607 ; Case v. Hotch- kiss, 3 Keyes, 334; Smith v. Hill, 13 Ark. 173 ; Smith v. Davis, 45 N. H. 505 ; Creiger v. Cheesbrough, 25 How. Pr. 200 ; Brackett v. Sears, 15 Mich. 244 ; Stevens v. Monges, 1 Harr. (Del.) 127; Duncan v. Breithaupt, 1 Mc- Cord, 149; Cleudinen v. Black, 2 Bailey, 488; Christy v. Douglass, Wright (Ohio), 485 ; Baird v. Ratcliffe, Vol. 11 — 97 10 Tex. 81 ; Webb v. Browning, 14 Mo. 354 : Newman v. Washington, Mart & Yerg. 79 ; Rust v. Larue, 4 Litt 411; Caldwell v. Shepherd, 6 T. B. Mon. 389 ; Foster v. Jack, 4 Watts. 334 ; Balspaugh v. Frazer, 19 Pa. St 95; Dubois' Appeal, 38 id. 231; Lichty V. Hayne, id. 434; Maynard T. Briggs, 26 Vt 94. In New Jersey an action will not lie to recover counsel fees, unless, perhaps, there is an express contract Seely v. Cram, 5 N. J. L. 35 ; Van Atta V. McKinney, 16 id. 235. See Hyer v. Little, 20 k J. Eq. 443. 1538 CONTEACTS FOR SERVICES. [§ 082. their contracts are subject to careful scrutiny for the protec- tion of the client.^ Attorneys and solicitors are entitled to have allowed them for their professional services what they reasonably deserve to have for the same, having due reference to the nature of the service and their own standing in the profession for learning and skill; and for the purpose of aid- ing the jury to determine that matter it is proper to receive evidence as to the price usually charged and received for sim- ilar services by other persons of the same profession practic- ing in the same court.^ If the contract provides for compen- sation based upon a proportion of the property which may be recovered, and the client compromises the litigation for a sum which does not bear a fair ratio to such proportion, the attor- ney is not limited in his recovery to the same proportion of the money received by way of compromise as he would have been entitled to receive of the property if there had not been intended by the law requiring the remuneration to be by gratuity. But, if the law allowed the advocate to make a contract of hiring and serv- ice, it may be that his mind would be lowered, and that his performance would be guided by the words of his contract rather than by principles of duty, — that words sold and delivered according to contract, for the pur- pose of earning hire, would fail of creating sympathy and persuasion in proportion as they were suggestive of effrontery and selfishness, and that the standard of duty through- out the whole class of advocates would be degraded. It may also be, that, if contracts for hire could be made by advocates, an interest in litigation might be created contrary to the policy of the law against maintenance; and the rights of at- torneys might be materially sacri- ficed, and their duties be imperfectly performed by unscrupulous advo- cates; and these evils, and others which might be suggested, would be unredeemed by a single benefit that we can perceive." See Brown v. Kennedy, 33 L. J. (Ch.) 71, 342 ; Veitch V. Russell, 3 Q. B. 928 ; Mostyn v. Mostyn, L. R. 5 Ch. 457. 1 Stanton v. Haskin, 1 MacArthur, 558 ; Rose v. Mynatt, 7 Yerg. 30. In Lecatt v. Sallee, 3 Port 115, it was held that an agreement made by a client with his counsel, after the latter had been employed in a par- ticular business by which the orig- inal contract was varied, and greater compensation secured to the counsel than wms at first agreed upon, is in- valid, and cannot be enforced ; that if a bond or other security for a greater compensation be taken from a client by an attorney during their connection, it will, upon application to a court of equity, be either set aside or ordered only as security for the sum to which the attorney would have been entitled if no such bond had been given. 2 Stanton v. Embry, 93 U. S. 557; Vilas v. Downer, 21 Vt. 419 : Eggles- ton V. Boardman, 37 Mich. 14 ; Bab- bitt V. Bumpus, 73 Mich. 331 ; Kelley V. Richardson, 69 id. 430. § 6 S3.] CONTRACTS FOR SERVICES. 1539 a compromise.' But if the compensation agreed upon is con- tingent upon success, the attorney, though his employment is wrongfully terminated, is not entitled to recover if the litiga- tion could not have been brought to a termination in favor of his client.'^ If the result is favorable to the client the attor- ney is entitled to the share agreed upon, without deduction.' On the client's breach of a special contract for legal services he is liable for the amount he has agreed to pay, subject to such abatement as would in the natui*al course of things have becE incurred in the way of expense by the attorney if he had been permitted to perform his agreement. The value of his services will not be apportioned; and while the attorney will not be put upon the quantum meruit^ he will not be allowed to recover more than he would if he had gone on with the case. His time does not belong wholly to his client, and hence no deduction can, in ordinary cases, be justly made on the presumption that it was wholly occupied in other profes- sional business.* If attorneys and clients make contracts for the former's services to be rendered in another state than that in which they reside, their compensation will be gov- erned by the rate in the state of their domicile, rather than by that which prevails in the state in which the services were performed.^ An attorney who is employed as such to take charge of matters which involve the performance of services clearly professional in their nature, and also those which are not necessarily of that character, may recover therefor, it being impossible to draw the line between the two classes, on the basis that all the services rendered are professional,^ § 683. Broker's services. Where a broker, pursuant to his employment or the instructions of his principal, sells goods to arrive he may recover his commissions though the goods do not arrive. In such a case the broker does all he undertook, 1 Duke V. Harper, 8 Mo. App. 296. and incidental disbursements which 2 Swinnerton v. Monterey Co., 76 could not be charged to the client) ; Cal. 113. Moyer v. Cantieny, 41 Minn. 242 ; 3 Bartlett v. Odd Fellows Savings Webb v. Trescony, 76 Cal. 621. Bank, 79 CaL 218. 5 stanberry v. Gibson, 35 Iowa, 4Brodie v. Watkins, 33 Ala. 545 493. (the deductions made in this case «Kelley v. Richardson, 69 Mich, were the expenses which would have 430. been incurred in attending court 1540 CONTRACTS FOR SERVICES. [§ 683. [450] and should not be deprived of compensation because, without his fault, the event upon which the contingent agree- ment would become absolute did not take place.^ So where a broker who was employed to obtain a loan of $9,000 w^as promised one per cent, commission, found a person willing to make a loan of $7,000, which the principal agreed to take, but afterwards declined, such broker was held entitled to his com- mission, and an allowance at the agreed rate was affirmed.^ Where no custom to the contrary is shown, a broker, like any other person who performs service for another, is entitled to compensation ; and it matters not whether what he has done proves beneficial to the party who em]ilo3's him or not; if he has fully performed what he undertook to do he is entitled to be remunerated.^ If a mercantile usage prevails, and is shown, by which noth- ing is to be allow^ed to the broker unless the matter brought about by his instrumentality is completed, he can only recover in accordance with it, and especially where, by such usage, a larger compensation is allowed by reason of the contingency.* In such case the claim of the broker rests upon the custom, and not on a guant/wm meruit. The custom supposes a special contract between the parties, and, if that is not satisfied, no claim at all arises, for no other contract can be implied.' Where an agent employed for an agreed commission to sell land at a given price succeeds in finding a purchaser at the stipulated price, but the principal, from whatever cause, de- clines to sell and rescinds the agent's authority, the latter is entitled to sue for a reasonable remuneration for his work and labor ; he is not bound to resort to a special action for the withdrawal of the authority ; the contract to pay what is rea- sonable is implied by law ; it is not a question of fact for a jury ; and the proper measure of damages is the entire amount of the agreed commission." Where a land-owner agreed with 1 Paulsen v. Dallett, 2 Daly, 40. 296 ; Planche v. Colburn, 8 Bing. 14 ; 2 Van Lien v. Byrnes, 1 Hilt. 133. Moses v. Bierling, 31 N. Y. 462 ; 3Id. ; Read v. Rann, 10 B. & C. Doty v. Miller, 43 Barb. 529; Middle- 438 ; Dalton v. Irwin, 4 C. & P. 289 ; ton v. Findley, 25 Cal. 76 ; Knapp v. Broad v. Thomas, 7 Bing. 99. Wallace, 4 N. Y. 477 ; Cook v. Fiske, 4 Broad v. Thomas, 7 Bing. 99. 12 Gray, 491 ; Cook v. Welch, 9 Al- 5 Read v. Rann, supra. len, 350 ; Wheeler v. Knaggs, 8 Ohio, sPrickett v. Badger, 1 C. B. (N. S.) 169; Evrit v. Bancroft, 22 Ohio St. 683.] CONTEACTS FOR SERVICES. 1541 an agent that the latter miglit dispose of land within a time limited for a share of the profits arising from the sale, and in the performance of such agreement the agent rendered serv- ices and expended time and money, and the principal unjusti- fiably revoked the contract, he was held liable for such sum as the agent's share of the profits would have been if the sale had been made.^ If a broker is employed, and no special compensation [4:51 J is agreed on, the customary rate of brokerage is the proper rate of compensation for his services.- But if one not a broker is employed to negotiate he is entitled to the reason- able worth of his services, which may be more or less than the usual brokerage.* The right of one rendering services for another to have their value estimated under a quantum me- ruit upon the basis of commissions can only arise out of gen- eral custom.* The broker must perform his duty in such manner as to reasonably answer the intended purpose; and if he performs it so loosely that his principal can obtain no benefit from it the former cannot recover compensation.^ All 172; Rees v. Spruance, 45 111. 308; Chilton V. Butler, 1 E. D. Smith, 150; Morgan v. Mason, 4 id. 636 ; Short v. Millard. 68 111. 292; Glenworth v. Luther, 21 Barb. 145 ; McGavock v. Woodlief, 20 How. ^U. S.) 221 ; Clapp V. Hughes, 1 Phila. 382; Bailey v. Chapman, 41 Mo. 536; Stillman v. Mitchell, 2 Robt 523; Edwards v. Goldsmith, 16 Pa. St. 43. The plaintiff consigned to the de- fendant four hundred and ninety- seven barrels of whisky, to be sold on commission of two and a half per cent ; defendant sold eighty-four barrels ; the plaintiff sold two hun- dred and twenty barrels and gave an oi der on the defendant for deliv- ery of them. Defendant having com- plied with the oi-der refused to de- liver the remaining one hundred and ninety-thi'ee barrels without being paid commissions on the w'hole, which the plaintiff paid, and brought suit to recover back all the commis- sions except on the eighty-four barrels ; held, that the defendant was entitled to commissions on the two hundred and twenty barrels, and such part of the agreed commission as was in proportion to the trouble and risk he had for the balance unsold ; such proportion as the service and risk incurred bore to the whole trouble and risk of making sale; and was bound to refund what had been demanded beyond that sum. Briggs V. Boyd, 65 Barb. 197. iDurkee v. Gunn, 41 Kan. 496; Hawley v. Smith, 45 Ind. 183. 2 Erben v. Lorillard, 2 Keyes, 567. 3 Id. ; Dyer v. Sutherland, 75 111. 583. «Id. 5 Hammond v. Holiday, 1 C. & P. 384. See Hill v. Featherstonhaugh, 7 Bing. 569. 1542 CONTKAOTS FOR SERVICES. [§ 684. agents will forfeit their right to compensation by misconduct which injures their principal.^ § 684. Various modes of compensating services. Con- tracts providing specific compensation for services thereby fix, as has been stated, the measure of damages recoverable on the performance of the stipulated work. This compensa- tion maybe a share of net profits in a business;^ a share [452] of crops to be raised on a farm ; ^ such sum as can be raised by voluntary subscriptions for the purpose of such com- pensation ; * or wages may, by agreement, be specific property; in which case, if not delivered or transferred, the employee may recover its value, when he is entitled to receive it, with interest.^ For the breach of a contract to compensate for services with clothing and attendance on school in winter, under a special count based upon a breach as to the attend- ance on school and alleging that the plaintiff was kept at work, the damages are not measured by the value of the serv- ices rendered while he was deprived of his right.*' "Where the consideration to be paid for services was a pass over the de- fendant's road the court thought the value was so uncertain as to be incapable of proof, and allowed a recovery upon a 1 Sea V. Carpenter, 16 Ohio, 412; the subscriptions in full, the plaintiff Segar v. Parrish, 20 Gratt. 672. commenced an action to recover for 2 "Wiggins V. Graham, 51 Mo. 17; his services as pastor, he having con- Morrison V. Galloway, 2 Har. & J. tinued as such for the defendant for 4G1; Jennory v. Olmstead, 90 N. Y. five years under the same agreement. 3G3 ; Woodberry v. Warner, 53 Ark. It was held that the contract was one 488. See Ellster v. Brooks, 54 N. Y. of hire through the whole time, un- Super. Ct 73. der which the defendant was bound 3 Owens V, Durham, 5 Dana, 536. to pay the plaintiff for his services; 4 Myers v. Baptist Society, 88 Vt. that the defendant was bound to use 614. In this case the defendant, a due diligence in obtaining and col- religious society, engaged the plaint- lecting subscriptions, and the plaint- iff to become its pastor for one year iff was entitled to recover such an for $300. About the commencement amount as might have been collected. of the second year the defendant in- ^Strutt v. Farlar, 16 M. & W. 249; formed him that the amount sub- Owens v. Durham, 5 Dana, 536; scribed was less than that of the first Stone v. Stone, 43 Vt. 180 ; Fairbank's year, and he agreed to remain for Ex'rs v. Humphreys. 18 Q. B. Div. such sum as could be raised by sub- 54; Gibson v. Whip Pub. Co., 28 Mo. Bcription, the defendant to collect App. 450 ; Woodberry v. Warner, 53 the subscriptions. The defendant Ark. 488. having failed to collect and pay over <> Burroughs v. Morse, 48 Mich. 520. § 684.] CONTEAOTS FOE 8EEVICE8. 1543 quantum meruit} But it has been held that the value of a life pass for a plaintiflf and his family was not so uncertain as to be incapable of ascertainment.'^ If the employer is in no default in the payment he has a right to make it in the very mode specified in tlie contract. Thus, the plaintiff agreed that his minor son should work for the defendant for a certain time, to be compensated by the de- fendant boarding, clothing and schooling the son ; the son worked a part of the time and then voluntarily abandoned the defendant without his consent; it was held that the law would not imply a promise to pay in money what the services of the son were reasonably worth beyond the damages caused by his failure to complete the contract, the defendant being always ready to pay in the manner stipulated. The same rule ap- plies though the contract is void by the statute of frauds. If the employer is willing to abide by the void contract, has not repudiated it, or done anything to put it out of his power to fulfill it, he cannot be made to pay in any other mode. The existence of such a contract will negative any tacit promise to make payment in any manner or on any terms different from those mentioned in it.'' But where a contract providing [453] for a fixed compensation for services and a particular mode of payment is void by the statute of frauds for not being in writing, if the employer violates or repudiates it after services have been performed, they may be recovered for on a quantum meruit^ as services performed on request, without regard to the rate or mode of compensation contemplated in such con- tract.* If the services were to be paid for by conveyance of specific land, the contract being verbal and void, the value of the land on a quantum meruit is not the fixed measure of dam- ages. But it has been held that such value is competent evi- dence to be considered on the question of damages.^ "Where 1 Brown v. St. Paul, etc. Ry. Co., < Wallace v. Long, 105 Ind. 522; 36 Minn. 236. Rodman v. Woolman, 2 Houst. 581 ; 2 Erie & P. R Co. v. Doiithet, 88 Watson v. Watson, 1 id. 209 ; Jones Pa. St. 243. V. Hay, 52 Barb. 501 ; Updike v. Ten- 3 Roundy v. Thatcher, 49 N. H. 526 ; broeck, 32 N. J. L. 105 ; William B. Campbell v. Campbell, 65 Barb. 639; St. Co. v. Atkinson, 68 111. 421. See Abliott V. Draper, 4 Denio, 51 ; Quack- King v. Brown, 2 Hill, 485. enbush v. Ehle,5 Barb. 469. See Bur- 5 Ham v. Goodrich, 37 N. H. 185; roughs V. Morse, 48 Mich. 520. Abbott v. Drapei-, 4 Denio, 51 154:4 CONTEACTS FOE SERVICES. [§§ 685, 686. a verbal contract, void because not to be performed within a year, provided for service for two years, at $100 for the first year and $200 for the second, and was proved on the trial, and was the only evidence tending to show any understand- ing between the parties in respect to the compensation for the second year, an instruction that if during the second year the parties understood that the wages were to be $200 the amount would be fixed by tliat understanding was held erro- neous; ^ for otherwise the statute would be evaded by giving effect to the contract.^ § 685. Continuation of original contract. If a person en- ters the service of another under an express contract specify- ing the time and wages, and continues in the same employment after his term has ended without any new bargain, he will be considered as working under the original contract, or as re- engaged on the same terms.-' § 686. Necessity of full performance of entire contract. [45-]:] The general principle is, that where there is an express contract none can be implied relating to the same subject. The rule is of extensive application. On this principle, and so far as it governs, if work is done under a special contract recovery for it can be had only by action on the contract, at least where such an action can be maintained, and when it ap- pears that compensation has been earned and is due accord- ing to its provisions. Accordingly, under an agreement which is entire, to pay a gross sum for a particular term of service or for doing a designated piece of work, performance is a con- dition precedent, and no action can be maintained on the con- tract without alleging and proving that the condition has been fulfilled. Hence, unless there is some exception to the gen- eral principle excluding an implied promise where there is an express contract, and to the consequent rule requiring the ac- tion to be brought on the contract, there can be no recovery 1 Emery v. Smith, 46 N. H. 151. Patchin, 5 Cal. 474; Ranck v. Al- 2 Earl of Falmouth v. Thomas, 1 C. bright, 36 Pa. St. 367 ; Greer v. Peo- 8c M. 89 ; King v. Brown, 2 Hill, 485 ; pie's Telephone & T. Co., 50 N. Y. Hill V, Hooper, 1 Gray, 131. Super. Ct. 517; Adams v. Fitzpatrick, 3 Grover & B. S. M. Co. v. Bulkley, 56 id. 580. See Tucker v. Philadel- 43 111. ISA; Huntingdon v. Claffin, 38 phia & R. C. & I. Co., 53 Hun. 139; N. Y. 182 ; Vail v. Jersey Little Falls Castigan v. Mohawk, etc. R Co., 3 M. Co., 32 Barb. 564 ; Nicholson v. Denio, 609. 680.] CONTKACTS FOR SERVICES. 154; for part performance of an entire contract however beneficial it may be to the employer. There are exceptions both as to the necessity of suing u))on the contract, and also as to the right to recover only upon complete performance; but they do not embrace all cases of part performance. In respect to contracts for services the rigorous rule is generally enforced ; and where there is a hiring for a particular term as an entire contract there can be no recovery if the party hired volun- tarily quits, without cause or the consent of his employer, be- fore the expiration of that term,^ There is a like ina- [455] bility in England to recover for part of the service stipulated 1 St. Albans Steam B. Co. v. Wilk- ins, 8 Vt. 54 ; Sherman v. Transpor- tation Co., 31 Vt. 162 ; Heuderhen v. Cook, 60 Barb. 21 ; Lewis v. Esther, 2 Cranch C. C. 423 ; Bowling v. Var- num, id. 423; Shaw v. Turnpike Co., 3 Penn. 445 ; Krouse v. Deblois, 1 Crunch C. C. 156; Hutchinson v. Wetmore, 2 Cal. 810 ; Hogan v. Titlow, 14 Cal. 255 ; Schnerr v. Lemp. 19 Mo. 40; Winnv. Southgate, 17 Vt 355; Patnote v. Sanders, 41 Vt. 66 ; Holmes V. Stummel, 24 111. 370; Bellinger v, Craigue, 31 Barb. 534; Clark v. Gil- bert, 32 Barb. 576; 26 N. Y. 279; Halloway v. Lacy, 4 Humph. 468; Olmstead v. Bea!e, 19 Pick. 528 ; Stark V. Parker, 2 Pick. 267; Givhan v. Dail.-y, 4 Ala, 336 ; "Whitley v. Mur- ray, 34 Ala. 155 ; Greene v. Linton, 7 Pork 133 ; Suber v. Vanlew, 2 Spear, 126 ; Abernathy v. Black. 2 Cold. 314 ; Posc^y V. Garth, 7 Mo. 94 ; Caldwell V. Dickson, 17 id. 575 ; Hiuson v. Hampton, 32 id. 408 ; Aaron v. Moore, 34 id, 79; Larkin v. Buck, 11 Ohio St, 561 ; Noon v. Salisbury Mills, 8 Allen, 340 ; Cushman v. Sim, 2 Har. & J. 852 ; Brown v. Kimball, 12 Vt. 617 ; Cahill v. Patterson, 30 id. 592 ; Ewing V. Ingram, 24 N. J. L. 520 ; Hughes V. Cannon, 1 Sneed, 622 ; Marsh v. Rulessou, 1 Wend. 514 ; Han- sell V, Erickson, 28 111. 257 ; Angle v, Hanna, 22 id, 429 ; Mullen v. Gilken- son, 19 Vt. 503 ; Ripley v. Chipman, 13 id. 268 ; Hubbard v. Belden, 27 id. 645; Patrick v. Putnam, id. 759; Forsyth v. Hastings, id. 646 ; Mack v, Bragg, 30 id. 571 ; Hennessej' v, Far- rell, 4 Cush, 267 ; Davis v. Maxwell, 12 Met. 286 ; Jewell v. Thompson, 2 Litt. 52 ; Wright v. Wright, 1 id. 179 ; Morford v, Ambrose, 8 J. J. Marsh. 688; Rounds v, Baxter, 4 Me. 454; Miller v. Goddard, 34 id. 102 ; Green V. Gilbert, 21 Wis. 895; Evans v, Bennett, 7 id, 404; Henderson v. Stiles, 14 Ga. 135 ; Codey v. Raynaud, 1 Colo. 272; State v. Beard, 1 Ind. 460 ; De Camp v. Stevens, 4 Blackf, 24; Jennings v. Camp, 13 Johns. 94; Webb V, Duckingfield, id. 390 ; Lantry V. Parks, 8 Cow. 63; McMillan v, Vanderlip, 12 Johns. 165; Wolfe v. Howes, 20 N. Y. 197 ; Monell v. Burns. 4 Denio, 121 ; Taft v. Montague, 14 Mass. 282; Preston v. American Linen Co., 119 Mass. 400. In Hughes v. Cannon, 1 Sneed, 622, the court refers to several Tennessee cases on special contracts for particu- lar works, where a liberal rule for recovery on a qjtajitum meruit for part performance had been laid down, and say of them : " Without impugning the rule laid down by this court in the cases referred to, where benefit has been conferred by the use of materials or valuable 1546 CONTEACTS FOK SEKVICES. [§ 686. for or wages for the current broken period in an entire con- tract, where the employee is discharged by his employer for good cause.^ The rule has been so held in this country where the servant has been discharged for criminal violations of his duty.- The general rule, when a servant is discharged for cause, is to allow him his wages to the time of discharge, but subject to deductions for his torts or deficiencies.* When a laborer or other employee professing to be skilled in some })articular work, art or mystery has been hired on that ac- count, and for the exercise of the professed skill, and is found to be incompetent to do what he undertook, the employer is not obliged to go on employing him to the end of the term, [456] but may at once dismiss him.* So he may be dismissed for misconduct which involves a violation of duty in his em- ployment or position.^ The requirement to fulfill the precedent condition to do the entire work for which a gross sum is promised to be paid re- sults as a logical conclusion from such a contract; it is thus derived from the supposed intention of the parties, because they are held to mean what the contract thus expounded re- quires. "What is done, short of full performance, being refer- able exclusively to the contract, there is no operative promise to pay for it, the express promise excluding any other, and is not itself available until all the work is done. There is no defect in the logic of this rule ; and it may be said that as it never applies except to carry out the intention of the parties, things furnished undei* contracts, we ''Horton v. McMurtry, 5 H. & N. liold that it is different in the case of 667. contracts for personal service." ^ Harmer v. Cornelius, 5 C. B. 1 Atkin V. Acton. 4 C. & P. 208; (N. S.) 235; Robinson v. Hindman, 3 Ridgway v. Hungerford Market Co., Esp. 235 ; Atkin v. Acton, 4 C & P. 3 A. & E. 171; Walsh v. Walley, L. 208; Lilley v. Elwiu, 11 Q. B. 742: R. 9 Q. B. 3G7; 43 L. J. (Q. B.) 102; Arding v. Louiax, 24 L. J. (Ex. h.) 80; Turner v. Robinson, 6 C. & P. 15. S. C, 10 Exch. 734 ; Shaw v. Chjiritie, 2 Llbhart v. Wood, 1 W. & S. 265. 3 C. & K. 25 ; Spain v. Aruott, 2 ' Murdock v. Phillips Academy, 12 Stark. 256 ; Read v. Dunsmore, 9 C. Pick. 244 ; Carroll v. Welch, 26 Tex. & P. 588 ; Lacy v. Osbaldiston, 8 id. 147; Green v. Hulett, 22 Vt 188; 80: Turner v. Mason, 14 M. & W. Taylor v. Peterson, 9 La. Ann. 251; 112; Amor v. Fearon, 1 Perry & D. Congregation of Cliildren of Israel V. 398; Wise v. Wilson, 1 Car. & K, Peres, 2 Cold. 620 ; Eakeu v. Har- 662 ; Lamby v. Gage, 2 E. & B. 2ia rison, 4 McCord, 249. § 687.] CO.NTUACTS FOIi SERVICES. 1547 it is not to the rigor of the law, but to the improvidence of the contract, that any hardship in individual cases must be ascribed. It is true the employee might stipulate for a differ- ent rule, or an exception, if he should be prevented by sick- ness or death from completely fulfilling; and it may be deemed his fault that he has entered into a contract in such form that in no event but that of full performance can he claim any compensation. Formerly this logic was law, in- variably enforced; the intention of the parties, deduced by this rule of construction, was the iron rule and law of their contract, not dispensable, or subject to any legal evasion or mitigation. Thus it was held that where a sailor hired for a 7oyage took a promissory note from his employer for a cer- tain sum, provided he should proceed, continue, and do his dut;y on board for the voyage, and before the arrival of the ship died, no wages could be claimed either on the contract or on a quantum mertiit} The intention of the parties is still the law of contracts, and even in the matter of performing [457] conditions precedent there has been slight amelioration of the rule. If a party by his contract charge himself with an obli- gation possible to be performed, he must make it good unless its performance is rendered impossible by the act of God, the law or the other party. Unforeseen difficulties, however great, will not excuse him.^ § 687. Dispeusation in case of inability. The rule which binds parties to fulfill contracts has been somewhat relaxed by applying an equity to relieve against penalties, antl by admitting exceptions to the principle that an express contract excludes an implied promise on the same subject. This impli- cation of a promise is so purely a fiction to enforce an equi- table duty that, in this class of contracts, the implication is sometimes that of a proviso to the express contract leaaing to the same result. Thus, it is now well settled that if the employee is prevented by sickness or death from performing ail entire contract for labor, where such performance is by the teims of the contract a condition precedent to the right to claim any compensation, he will not, for such failure, be 1 Cutter V. Powell, 6 T. R. 330; 2 dyne v. Jayne, Alleyn, 26; Beal v. Smith's Lead. Cas, 17. Tliompson, 3 B. & P. 405; Beebe v. 2 Dermott v. Jones, 2 Wall. 1 ; Para- Johnson, 19 Wend. 500. 15-iS CONTRACTS FOR SERVICES. [§ 687. denied all right to be paid for what he has doneJ The elec- tion of an attorney to the bench was held to afford such excuse for not completing contracts for professional services that he could recover for part performance on a quantum me- ruit'} So when the contract was dissolved by the servant being called away as a witness.' In Smith v. Hill* a firm of lawyers contracted with a client for the personal services of a ]')articular partner. It was held that if he failed to perforn? [4:58] though it was a breach of the contract, the damages would be but nominal, if another partner had performed the stipulated service with equal professional skill and without injury to the client; that such a contract cannot be abandoned by the client upon the death of the partner whose services he has engaged, without tendering to the survivor a fair compen- sation for the services already rendered; and if the latter render the service with due professional skill and diligence he w'ill be entitled to the entire fee. But the amount of recovery will be reduced by any damage sustained by the emplo3^er in consequence of the contract not being strictly and literally performed.'^ In a New York case ^ it is said: "This rule is equitable, and it should be applied to such cases although the servant is not to be regarded as violating his contract in con- sequence of his inability fully to perform it by reason of his sickness or death. His failure fully to perform his contract for such cause is his misfortune and not his fault; and his em- ployer should neither gain nor lose by it. . . . Much more might be said in favor of this rule, but it needs no vindica- tion ; it is so well grounded in good sense it sufficiently com- mends itself. It may be said to be a common sense rule, and common sense is the basis of all just law." In an explanatory 1 La Du-King Manuf. Co. v. La Du, ton v. Trask, 9 Met. 577 ; Harrington 86 Minn. 473; Hubbard v. Belden, 27 v. Fall River Iron Works Co., 119 Vt. 645 ; Patrick v. Putnam, id. 759 ; Mass. 82 ; Clendinen v. Black, 2 Wo'.fe V. Howes, 20 N. Y. 197 ; S. C, Bailey, 488 ; Callahan v. Shotwell, 60 24 Barb. 174 ; Fenton v. Clark, 11 Vt. Mo. 398 ; Lacy v. Getman, 119 N. Y. 557; Fuller v. Brown, 11 Met 440; 109. Jones V. Judd, 4 N. Y. 412 ; Fahy v. 2 Baird v. Ratcliff, 10 Tex. 81. North, 19 Barb. 341 ; Hunter v. Wal- 3 Melville v. De Wolf, 4 E. «& B. 844. dron, 7 Ala. 753 ; Greene v. Linton, 7 '' 13 Ark. 173. Port. 138; Dickey v. Linscott, 20 Me. '^ Smith v. Hill, 13 Ark. 173. 453 ; Smith v. Hill, 13 Ark. 173 ; Moul- « Clark v. Gilbert, 26 N. Y. 279. § 688.] CONTRACTS FOR SERVICES. 1549 note to this case it is said that some of the judges dissented from the idea that the person employed, not being in fault in dying, could be treated as liable to damages to compensate the employer for a reduction of the profits in the further prosecution of the work, arising from the loss of such em- ployee's services. In such cases, however, such allowance to the employer is not strictly damages; that allowance is essen- tial to a fair apportionment of wages earned on the basis of the contract. I 688. Same subject. In Jones v. Judd ^ an action was brought by subcontractors for part of the work of construct- ing a canal. This contract was w4th the party who had con- tracted with the state, and their contract specified one price per yard for excavation and another for embankment, and pro- vided that the employer might reserve ten per cent, until the final estimate. The defendant proved on the trial that [459] the work done was Avorth less than the contract prices, and of- fered to prove that the remaining work was more difficult and would be more expensive, but this evidence was rejected. The court of appeals, evenly divided on the question, held it was properly rejected ; and as it appears to the writer erroneouslv, on the general theory of the prevailing opinion; for the plaintiffs were thus permitted to recover more than was due on the basis that the defendant w^as not at fault, and therefore not liable to damages. In such an adjustment the contract price, uniform for all the work, would not be due for a part rela- tively easier and less expensive to do. Gardiner, J., said : " If the contract had been performed by the plaintiffs they might have recovered upon the special agreement, or upon the com- mon counts, and in either case they would be entitled to the price fixed by the agreement.^ If the performance had been arrested by the act or omission of the defendant, the plaint- iffs would have had their election to treat the contract as rescinded, and recover on the quantum meruit the value of their labor, or they might sue upon the agreement and recover for the work completed according to the contract, and for the loss in profits or otherwise which they had sustained by the 1 4 N. Y. 412. Delaware & H. Canal Co., 4 Wend. 2 Phil. Ev. 109 (2d ed.) ; Dubois v. 285, and cases cited. 1550 CONTRACTS FOR SERVICES. [§ G88. interruption.^ In this case the performance was forbidden by the -state. Neither party was in default. All the work for which recovery was sought was done under the contract^ which fixed a precise sum to be paid for each yard of earth removed without regard to the difficulty or expense of the excavation. If the plaintiffs had commenced with the more expensive part of the work, they could not, under the circumstances, have claimed to have been allowed for the profits to arise from that portion which they were prevented from completing. Such an allowance is predicated upon a breach of the contract by the defendant.^ The defendants, m the lantjuage of Judge Eeardsley, 'are not by their wrongful act to deprive the plaintiff of the advantage secured by the contract.' Here there was no breach of the agreement by either party. The [460] plaintiffs could not recover profits, and the defendant cannot, consequently, recoup them in this action.^ Again, the plaintiffs assumed the risk of all accidents which might en- hance the expense of the work while the contract was sub- sisting; ^ and are entitled, consequently, to the advantages, if any, resulting from them. The suspension of the work by state authority was an accident unexpected by either party. It was one which, under the offer, we are bound to assume was of benefit to the plaintiffs. But the defendant cannot require an abatement from the agreed price for what has been done unless he could demand it in case a flood had par- tially excavated or embanked the section of the canal to be completed by the plaintiffs." In Fahy v. ISTorth^ a laborer was hired for a year commenc- ing in November to work on a farm. He worked until July, when he was taken sick; he was taken care of in the em- ployer's family, and after three weeks recovered and offered to work his time out, which the employer would consent to if the party employed would allow $20 damages for the time lost. The court held that this claim was not admissible, and that requiring such an allowance as a condition to permitting him to resume work justified him in departing, and gave him 1 Linningdale v. Livingston, 10 3 Blanchard v. Ely, 21 Wend. 346. Johns. 36 ; Boorman v. Nash, 9 B. & 4 Boyle v. Canal Co., 22 Pick. 384 ; C. 145 ; Masterton v. Mayor, 7 Hill, 69. Sherman v. Mayor, 1 N. Y. 316. 2 7 Hill, 71, 73. 6 19 Barb. 341. § GS8.] CONTEACTS FOR SERVICES. 1551 the right to recover on a quantitm meruit. The claim of dam- ages seems to have been rejected because none could be claimed; not because it was excessive. On a just appor- tionment under such a contract, if it appeared that the serv- ices of the laborer would be more valuable during the time lost by his sickness than during other parts of his term of service, his wages for the time he served should bo propor- tionately less ; otherwise the laborer's sickness would not be liis but the employer's misfortune. In this case the servant recovered fifty cents a month less than the employer was bound by the contract to pay him. There is an implication that this deduction was deemed Avrong in the allusion of Bal- com, J., to this case in Clark v. Gilbert.' And yet the learned judge, continuing, said: "There is no case which holds [461] that where the full performance of a contract for personal services is prevented by the sickness or death of the party who was to render the services, a greater compensation can be recovered than the stipulated value on proof that the serv- ices were worth more than such value. But there are de- cisions that the recovery in such a case cannot exceed the contract price or the rate of it for the service performed." 2 This apportionment should be so made that all loss which must result from the contract not being fully performed will fall on the party whose misfortune caused it, or by whose sickness or other providential disability its complete perform- ance has been prevented. In other words, the compensation for part performance should be determined on the basis of the benefit of it to the employer, regarding the obligation and consideration of the whole contract.^ If a household servant hired for a year or any aliquot portion thereof is hurt or temporarily disabled, or falls sick whilst doing his master's 1 26 N. Y. 283. 449, there was a hiring by the month 2 Coe V. Smith, 4 Ind. 79 ; Allen v. for stated wages, including board. McKibbin, 5 Mich. 449. The doc- After several months' work the la- trine was asserted in Allen a-. McKib- borer became sick and continued so bin that the servant cannot be per- for three weeks. It was held that he mitted to gain by his sickness, nor was not chargeable for board nor en- can the employer be permitted to titled to wages during that tima lose by it See Walker v. Norton, 29 In Fahy v. North, supra, the em- Vt 230. ployee was charged for his care and 3 Wolfe V. Howes, 20 N. Y. 197. board while sick. In Nichols v. Coolahan, 10 Met 1552 CONTRACTS FOR SERVICES. [§ 689. business, the latter is not entitled to make any deduction from the airi'eed wao-es for the time that the servant was in- capacitated for the performance of his ordinary work; but if he has been struck down with disease and permanently dis- abled, so that he can never be expected to resume work, the contract is dissolved, and the master may dismiss him.' § 689. Same subject. In contracts for personal services for a stipulated time, whether for manual labor or where skill is required or confidence reposed, the performance can be only by the very person employed. In such cases the contract is [462] understood to be on the condition that health and life continue; and, therefore, when inability from such causes arises to commence or continue in the employment performance is excused, and for any work done there may be a recovery on a qxiantum 'meruit? The justice and reason of this rule are clearly and forcibly explained by Storrs, J. : ' " It is difficult to reconcile the reported cases on the subject of the liability of an employer of a person who is hired to labor for a speci- fied time on wages to be paid at the expiration of that time, where such person has, without his fault, failed to labor for the whole time; or to extract from them any defined rule. There is much confusion in them which seems to have arisen from the different views entertained by the courts on the question whether such contract of hiring is to be governed by the principle which prevails in regard to a contract to do a specific piece of work, as to build a house or a machine, for a particular sum; in which case the contract is held to be entire, and the performance of it a condition ])recedent to any right of action against the employer, and the non-fulfillment of it is not excused by inevitable necessity. We do not propose to examine those cases in detail. In the earliest of them it was established that the same principle applied to both of these species of contracts, and that, therefore, where the service of 1 2 Add. on Cont, § 894 ; Rex v. Manning, 8 Cow. 297 ; Gray v. Mur- Sudbrooke, 1 Smith, 59 ; Chandler v. ray, 3 Johns. Ch. 167 ; Dexter v. Nor- Grieves, 2 H. Bl. 606, n. ; Cuckson ton, 47 N. Y. 62 ; Robinson v, Davi- V. Stones, 1 Ell. & Ell. 248 ; 28 L. J. son, L. R. 6 Exch. 268 ; Boast v. Frith, (Q. B.) 25. L. R. 4 C. R 1 ; Spalding v. Rosa, 71 2 Dickey v. Linscott, 20 Me. 453 ; N. Y. 40 ; Story on Bailm., § 36, and Lakeman v. Pollard, 43 id. 463; notes. Wolfe V. Howes, 20 N. Y. 197 ; Ryan 3 Ryan v. Dayton, mj^a. V. Dayton, 25 Conn. 188; People v. § 689.] CONTKACTS FOR SERVICES. 1553 a person hired to labor for a specified time censed within that time, there could be no apportionment of wages for the actual time of service, and, consequent!}'", no recovery for the services rendered within that time. But this rigid and unreasonable rule has recently been relaxed, and it is now generally, if not universally, held that w^ages may in particular cases be appor- tioned; which, in our judgment, is much more in accordance with the true character of such a contract, the presumed in- tention of the parties and the demands of justice. A contract of this kind is for the personal services of the individual who is hired, and cannot be performed by the agency of an- [463] other person, and in this important respect is peculiar and dif- ferent from a contract by w^hich one agrees to do a particular- piece of work, as, for instance, to build a house, which may be performed through another person. It is unreasonable to- suppose that the parties in such an agreement as the former, knowing that the person hired is liable to be interrupted in his labor by the act of God or inevitable necessity, intended or expected, although there should be no express stipulation on the subject, that he should, in such an event, not only lose his services, but, as the case might be, be bound to repay his employer what he has received in payment for them. And it is obvious that the rule which would subject him to these • consequences would be not only harsh but unjust. View- ing the present as a contract for the personal services of the plaintiff, and which could only be performed by himself, ^Ye think that from its nature a condition was impliedly attached to it that an inability to labor during a part of the time stipu- lated, produced by inevitable necessity, should so far consti- tute an excuse for not laboring during that period that he should not be deprived of a right to a reasonable compensa- tion for the service performed by him under it ; and that the rule that where a person by his own contract creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, which, properly understood, we do not impugn is not applica- ble to such a contract.^ In regard to a contract of this kind 11 Coke, 98; Williams v. Hide, bert on Gov., 473; Nash t. Ash ton, Palm. 548; 1 Shep. Touch. 180; Gil- Skin. 42. Vol. 11 — 98 1554: CONTRACTS FOR SERVICES. [§ 690. we are induced to adopt as the most suitable and just general rule in a case where the servant leaves the service before the end of the time for which he was hired, the one laid down by Chancellor Kent,^ that unless he so leaves without reasonable cause or is dismissed for such misconduct as justifies the dis- mission, he does not forfeit a right to his wages for the period for which he has served. It should be observed, however, that we do not intend to say that in such" a case he would be entitled to a proportional part of the sum agreed to be paid for the whole time ; and that it should not be reduced so as to [464] indemnify the employer for the loss which he has sus- tained by the non-fulfillment of the agreement." The reasons which require that the servant shall be excused from a full performance when it is prevented by the act of God also demand that the employer shall be relieved from liability under the like circumstances. Hence a contract to work as a farm laborer for one year is terminated by the death of the employer, and the servant cannot recover from the executrix of the decedent for services performed there- after, there being no new contract of hiring.^ § 690. Same subject. Where the right to quit at pleasure is reserved in the contract of hiring, but it is stipulated that such quitting shall be preceded by notice, a sudden going away, without notice, in consequence of sickness, will not work a forfeiture of wages already earned. The stipulation for notice will be construed to apply to a voluntary leaving.^ And the same rule was applied where the party hired stopped work before his time expired because he was arrested and convicted of a crime. The court say: "The stipulation [re- quiring two weeks' notice of intention to leave] evidently had reference only to a voluntary abandonment of the defendant's J 2 Com. 258-9. four weeks' notice of the intention - Lac}'- V. Getinan, 119 N. Y. 109. to quit, lie does not forfeit his wages 3 Fuller V. Brown, 11 Met. 440. by quitting without giving the no It was held in Hunt v. Otis Co., tice, but he is liable for all damages 4 Met 464, that where one hires with caused by not giving it; and these no express agreement to continue in may be deducted from the wages in a the service for any definite time, but suit therefor. See Harrington v. with knowledge of a regulation Fall R. Iron Works Co., 119 Mass. 82; adopted by the employers requiring Preston v. American Linen Co., id. all persons employed by them to give 100. § 690.J CONTRACTS FOR SERVICES. 1555 service, and not to one caused vis major, whether by visita- tion of God or other controlling circumstances. Clearly the abandonment must have been such that the plaintiff could have foreseen it. He could give notice only of such depart- ure as he could anticipate, . . . and when it was within his power to give the notice. . . . The true and reason- able rule of interpretation to be applied to such contracts is this: To work a forfeiture of wages the abandonment of the employer's service must be the direct, voluntary act or the natural consequence of some voluntary act of the person em- plo^^erl, or of some act committed by him wnth a design to ter- minate the contract or employment or render its further pros- ecution impossible. But a forfeiture of wages is not incurred where the abandonment is immediately caused by acts or occurrences not foreseen or anticipated, over which the person employed had no control, and the natural and necessary con- sequence of which was to cause the termination of the em- ployment of a party under a contract for services or labor." ^ In a Vermont case the court held that in contracts for [465] labor, where the plaintiff is not guilty of a wilful deviation from their terms, but has failed to fulfill them, and has per-, formed work and labor beneficial to the employer, he is en- titled to recover under the general counts for w^ork and labor; that the true rule of damages in such case is to allow for the labor according to the contract price, deducting whatever damages the employer has sustained in consequence of the work not being done according to the terms of the contract.^ In Wolfe V. Howes ' Allen, J., said : " There is good reason for the distinction which seems to obtain in all cases between the case of a wilful or negligent violation of a contract and that where one is prevented by the act of God. In the one case, the application of the rule operates as a punishment to the person wantonly guilty of the breach, and tends to pre- serve the contract inviolable; while in the other, its exception is calculated to protect the rights of the unfortunate and hon- est man who is providentially, and without fault on his part, prevented from a full performance." 1 Hughes V. Wamsutta Mills, 11 2 Blood v. Enos, 12 Vt 625. Allen, 201 ; Millot v. Lovett, 2 Danes 3 20 N. Y. 201. Abr. 461. 155G CONTRACTS FOR SERVICES, [§ 690. This relaxation of the rule requiring full performance as a precedent condition of an entire contract where disability by sickness intervenes, or there is other involuntary ]trevention, shows that the rule is technical, and does not in truth rest on the principle that there can exist no legal obligation to pay except on the express terms of the contract. Full perform- ance is not excused in such a case on the ground that it has become impossible ; nor on the ground that the employer has done some act to evince an acceptance of the benefit of part performance after default, so as to subject him to the duty of paying independently of his special undertaking in the con- tract. ISTeither is the rule founded on the principle that the parties intended, except in the sense of a penalty,^ that bene- [466] ficial part performance should not be compensated; otherwise there could be no exception when default is invol- untary, as where caused by sickness or death ; for no party to a contract is obliged to pay another party merely because of his disability or misfortune. The loss of wages earned for failure of complete performance is treated as in some sort a penalty, but a wholesome one, to secure a faithful execution of contracts. "When, therefore, there is an earnest and hona fide endeavor to fulfill, frustrated by sickness or other similar cause, the penalty is taken off, and the employee is then en- titled to recover on a quantum meruit. The rule against an implied, where there is an express, promise does not apply : an exception is admitted. And this exception being based on equitable grounds, it ought to embrace, but does not, all cases where the injured party would otherwise receive a benefit from part performance beyond his actual injury. A default- ing party should ^not be compelled to pay damages by one 1 The cases very generally treat the the laborer for his service at the rate loss of wages eai'ned in consequence he would have received if he had of a failure to fulfill the entire con- labored until the end of the time tract as a forfeiture, and hence the agreed upon, or making a tender of right to them will become absolute the amount due at that rate, was held by mere waiver of the forfeiture, to have waived thereby the forfeiture Thus in Patnote v, Sanders, 41 Vt. of the wages for the services per- 66, a laborer left his employer before formed. See Hughes v. Wamsutta the term of service expired, without Mills, 11 Allen, 201 ; Boyle v. Parker, consent or cause. The employer, al- 46 Vt. 343 ; Wolfe v. Howes, 20 N. though insisting that he did not ad- Y. 197. mit his liability by offering to pay § G90.] CONTRACTS FOR SERVICES. 1557 measure when ho fails to perform a condition precedent and is plaintiff, and another when he commits a breach of an inde- pendent stipulation of the same import and is sued upon it. There is no essential difference between a penalty stipulated to be paid if a condition of defeasance is not performed and a penalty in a sum withheld. In the former case, in equity as well as at law, the obligor is relieved from paying more than the actual damage the injured party has suffered from the de- ficient performance of the condition. Why should he be per- mitted to retain, in the other case, what is equally penalty but happens to be in his hands? ^ In several states recovery on a quaiitwn meruit maybe had for part performance of an entire contract, though there be no cause or excuse for its abandonment, if such performance is beneficial; and on the basis of the contract price after de- ducting the damages resulting from the failure to perform in full.- But an action cannot be brought to recover on a quantiLm meruit until the time when the wages would be [467] due if the contract had been performed.^ Where the contract of hiring is for a term, but each party reserves the privilege of putting an end to it when he pleases, the servant is entitled to recover at the stipulated rate for the time he serves al- though he quits upon his own motion,^ ~Eov is a person hired by the day to work upon a particular job required to prolong his services to complete a piece of work he has undertaken, or upon which he may happen to be employed, unless he has re- stricted himself by his contract.^ An infant will not be sub- 1 See Eichardson v. Woehler, 26 Dover v. Plemmons, 10 Ired. 23 ; Mich. 90. Eaken v. Harrison, 4 McCord. 143 ; 2 Britton v. Turner, 6 N. H. 481 ; Byrd v. Byrd, id. 141 ; Lincoln v. Page V. Marsh, 36 id. 305 ; Powers v. Schwartz, 70 111. 134 ; Dobbins v. Wikon, 47 Iowa, 666 ; Barr v. Van Higgins, 78 id. 440. Duyn, 45 id. 228; Pixler v. Nichols, 8 SHartwell v. Jewett, 9 N. H. 249; id. 106 ; Byerlee v. Mendel, 39 id. 382 ; Bailey v. Wood, 17 id. 365 ; Thomp- CarroU v. Welch, 26 Tex. 147 ; Riggs son v. Phelan. 22 id. 339 ; Davis v. V. Horde, Supplt. to 25 Tex. 456 ; Coe Barrington, 30 id. 517. See Kniitson V. Smith, 4 Ind. 82 ; Picks v. Yates, v. Knapp, 35 Wis. 86. 5 id. 115; Downey v. Burk, 23 Mo. * Evans v. Bennett, 7 Wis. 404; 228; Wilson V. Adams, 15 Tex. 323; Steed v. McRae. 1 Dev. & Bat. 435; Robinson v. Sanders, 24 Miss. 391 ; Coxe v. Skeen, 3 Ired. 443 ; Craig v. Hariston v. Sale, 6 Sm. & M. 634 ; Pride, 3 Spear, 121. McClure v. Pyatt, 4 McCord, 22 ; 5 Wyngert v. Norton, 4 Mich. 286. 1558 CONTKACTS FOK SERVICES. [§ 691. jected to the loss of what he has earned by failing to fulfill an entire contract for service.^ But if during the term for which he has engaged himself he becomes of age, and con- tinues thereafter to work, he thereby affirms the contract and must abide by it.^ [468] § 691. Entire and apportionable contracts. There can be no forfeiture of wages under the rigorous rule which has been stated, unless there is a failure to perform some stipulated service which as a whole is a condition preced- ent. Whether a contract is entire does not depend on any formal arrangement of the words, but on the intention of the parties as it is collected from the whole of it.^ Contracts are entire when it is the intention that service for a specified period, or some stipulated service or work, shall be entirely performed before any part of the consideration or wages can be demanded, and then that they are to be paid in one sum, A hiring for a year for a specified sum, to be paid when the work has been done, is a plain instance of such a contract.* The intention governs, and it is manifest that a year's work is to be performed before any wages are to be paid ; nothing short of the agreed sum can be earned ; it is a unit of compen- sation. "Where a contract was made to completely repair cer- tain chandeliers for a specified sum, and they were returned in an incomplete state, it was held that an action could not be 1 Van Pelt v. Corwine, 6 Ind. 363 ; Mountain v. Fisher, 22 Wis. 93 ; Dallas V. HolliDgsworth, 3 Ind. 537; Davies v. Turton, 13 Wis. 185; Weeks Wheatly v. Miscal. 5 Ind. 142 ; Lufkin v. Leigiiton, 5 N. H. 343 ; Harney v. V. Mayall, 25 N. H. 82 ; Nickersou v. Owen, 4 Blackf. 337 ; McCoy v. Huff- Easton, 12 Pick. 110; Vent v. Osgood, man, 8 Cow. 84; Stone v. Dennison, 19 Pick. 572; Judkins v. Walker, 17 13 Pick. 1; Badger v, Phinney, 15 Me. 38 ; Lowe v. Sinklear, 27 Mo. 308 ; Mass. 359 ; Holmes v. Blogg, 8 Taunt Thomas V. Dike, 11 Vt. 273; Hoxie 508; Dunton v. Brown, 31 Mich. 182. V. Lincoln, 25 Vt. 206 ; Millard v. 2 Forsyth v. Hastings, 27 Vt. 646. Hewlett, 19 Wend. 301 ; Medbury v. 3 Ritchie v, Atkinson, 10 East, 295; Watrous, 7 Hill, 110 ; Gaffney v. Hay- More v. Bonnet, 40 Cal. 251. den, 110 Mass. 137; Ray v. Haines, * Stark v. Parker, 2 Pick. 267; 52 111. 485 ; Whitemarsh v. Hall, Olmstead v. Beale, 19 id. 528 ; Davis 3 Denio, 375; Derocherv. Continental v. Maxwell, 12 Met. 286; Ewing v. Mills, 58 Me. 217; Moses v. Stevens, Ingram, 24 N. J. L. 520; Cranmer 2 Pick. 332; Garner v. Board, 27 Ind. v. Graham, 1 Blackf. 406; Jewell v. 323. See De France' v. Austin, 9 Pa. Thompson, 2 Litt. 52. St. 309; Taft v. Pike, 14 Vt. 405; § 691.] CONTRACTS FOR SERVICES. 155D maintained for what had actually been done.' So where an attorney covenanted to pay a clerk 2s. for every quire of paper he copied, the contract was held entire as to each quire, and there could be no recovery for copying any less number of sheets.^ The contract of an attorney to carr}^ a suit to its termination is an entire one; and he cannot recover for doing a part of this service and then abandoning the case, unless he is able to put the client in fault.* If the consideration is in its nature apportionable, as where it is money, and the stipulated service is to be continuous for a considerable period, or consists of a series of distinct acts, and there is no entire sum to be paid for all, nor anything in the contract inconsistent with a demand of payment as the Avork progresses, on part performance there may be a [469] recovery for what is done.^ Thus, where a shipwright agreed to put a ship into thorough repair, but there was no stipula- tion as to the time or mode of payment, it was held that he might sue for payment pro tanto when part of the work had been done.^ And where a party contracted to carry to mar- ket three kinds of lumber for different prices, and the contract was silent as to the time of payment, it was not deemed en- tire; delivery of the whole at market was not a condition pre- cedent to the payment of freight, but it became due and was demandable as fast as the lumber was delivered^ The question in every case is whether the intention of the parties was that the compensation should depend upon full performance and it is so expressed in the contract. Where such intention would seem contrary to the equity of the case, courts ought to require that it should be clearly expressed before they enforce it.^ If an agreement embraces a number of dis- tinct subjects, which admit of being separately executed and closed, it must be taken distributively, each being considered 1 Sinclair v. Bowles, 4 Man. & R 3 ; 6 Roberts v. Havelock, 3 B. & Ad. 9 B. & C. 94 404. 2 Needier v. Guest, Aleyn, 9. " Dunn v. Daly, 78 Cal. 640 ; Sickels 3 Harris v. Osbourn, 3 Cromp. & v, Pattison, 14 Wend. 257 ; Ritchie v. M. 629 ; Vansandan v. Browne, 9 Atkinson, 10 East, 295 ; Robinson v. Bing. 403; Nicholls v. Wilson, 11 M. Green, 3 MeU 159. & W. 106. 8 Leonard v. Dyer, 26 Conn. 177. 5 Taylor v. Laird, 1 H. & N. 266 ; Perkins v. Hart, 11 Wheat. 237. 1560 CONTKACTS FOK 8EEVI0E8. [§ 691. as forming the matter of a separate agreement after it is so closed.^ And this is more obviously so where the service or other thing to be done consists of distinct periods or parts, and a separate sum is agreed to be paid for each. Thus an agreement to deliver straw at the rate of three loads in a fort- night for a specified period, at a stated price per load, was silent as to the time of payment; it was held that the party delivering was entitled to demand payment on the delivery of each load.- But even where the compensation is by the contract to be computed at so much per month, or on some other detail, the intention may be found that the promise shall be deemed entire on one side, based on an entire consideration on the other. Where a plaintiff undertook to cure a flock of [1-70] sheep and lambs at so much per head for the sheep and so much for the lambs, and not to be paid anything unless he cured all, it was held there could be no recovery for any par- tial performance.'' So where a party agreed to work ten and a half months to spin yarn at three cents per run, and there was no stipulation as to the time of payment, in an action for spinning eight hundred and forty-five runs at three cents per run, he having worked only a part of the time, it was held that the contract was entire for the whole period of ten and a half months, and performance for it a condition precedent; therefore the action could not be maintained.'* It seems generally to have been considered that a contract of hiring for a year, or a less time, for so much per month, per week or per day, silent as to the time of payment, is entire, and the wages only payable on the services being rendered for the whole time.* Hubbard, J., speaking of such a con- tract, said:^ " There is no time fixed for the payment, and the law therefore fixes the time; and that is, in a case like this, the period when the service is performed. It is one bargain; 1 Perkins V. Hart, 11 Wheat. 237. Erickson, 28 111. 257; Swanzey v. 2 Withers v. Reynolds, 2 B. & Ad. Moore, 22 III. 63 ; Davis v. Maxwell, 882; More V. Bonnet, 40 Cal, 251. 12 Met, 286; Olmstead v. Beale, 19 3 Bates V. Hudson, 6 Dovvl. & R. 3. Pick. 528; Thayer v. Wadsworth, id. 4 McMillan v. Vanderlip, 12 Johns. 349; Winn v. Southgate, 17 Vt. 355; 165. Reab v. Moor, 19 Johns. 337; Larkin 5 Decamp v. Stevens, 4 Blackf. 24; v. Buck, 11 Ohio St. 561; Thorpe v. Monell V. Burns. 4 Denio, 121 ; Lan- White, 13 Johns. 53. try V. Parks, 8 Cow. 63 ; Hansell v. 6 Davis v. Maxwell, supra. § 692.] CONTRACTS FOE SERVICES. 1501 performance on one part and payment on the other, and not part performance and full payment for the part performed." The cases are numerous and harmonious enough to establish this as the proper construction of this class of contracts; but it is to be observed that this construction is based more upon the pohcy of the rule than the intention of the parties. The amount earned can be ascertained under the contract from time to time, and in the absence of any promise to pay for the whole service in one sum at the end of the stipulated period, there would seem to be no legal impediment to a demand of instalments of wages as the benefit accrues therefrom; there is a general expectation of such payments, and a need of them.' "Where wages are payable by instalments in the ratio of [471] part performance while the work is in progress, these may be recovered as they fall due, although there is a hiring for a definite term ; and if the work is abandoned without serving the full term, there can be no loss of any which is completely earned and due. There can be no recovery for an unfinished wages-period.^ § 692. Wrongful dismissal of employee. Where the em- ployer prevents the servant from performing his contract the latter is entitled to recover wages for the time he has served whether the contract is entire for a longer period or not, and whether the prevention is by wrongfully discharging him, or by giving him sufficient cause to quit work of his own motion.' He is entitled to damages for the wrongful dismissal- without cause before the expiration of the term for which he was em- ployed.* The same rule applies when no services are per- 1 See 2 Smith's Lead. C. [*47]. had there been no subsequent modi- In Thorpe v. White, 13 Jolms. 53, it fication of the agreement, he could was held that where there is a con- not have recovered wages until he tract of hiring for a definite period had served the whole period agreed at a certain rate per day, and a part upon. only of the time having elapsed, the 2 Qunnjugiiam v. Morrell, 10 Johns. parties settle the amount of the wages 203 ; Hamlin v. Race, 78 III. 422 ; which had then been eai-ned, and the Hartman v. Eogers, 69 Cal. 613 ; hirer gives his note to the servant for Beach v. Mullin, 34 N. J. L. 343. the amount, in an action on the note 3 Gates v. Davenport, 29 Barb. 160 ; it is no defense that the payee had Bull v. Schuberth, 2 Md. 57 ; Congre- left the maker's service before the gation of Children of Israel v. Peres, expiration of the time for which he 2 Cold. 620. had been originally hired ; although, ■* Pritchard v. Martin, 27 Miss. 305 ; 15G2 OONTEACTS FOR SERVICES. [§ 692. formed on account of the employer's wrongful conduct; if he puts it out of the employee's power to perform the latter need not make an offer.^ But the damages will not be substantial where the employment is for such time as the employee may elect to serve unless he makes his election before or at the time of his discharge.- If his time is subject to the employer's will the recovery will not be diminished by allowing compensa- tion for such time only as he may have given to the perform- ance of his duties.'' For the services actually rendered by the employee he may recover on a quantum meruit^ treating the contract as re- scinded on being discharged, or departing for good cause ; ^ or he may sue on the contract and recover damages, including the wao-es earned, to the amount of the actual loss sustained.'* But he cannot have both remedies. After treating the contract [472] as in force by bringing an action upon it for damages for a wrongful discharge, he cannot recover in general assump- sit for services actually rendered.^ And either action may be brought immediately. In the special action, however, there might be a disadvantage in its being brought before the ex- piration of the term of employment. The full damages for that term cannot be assessed in advance. This was strikingly illustrated in a Wisconsin case. The plaintiff had been em- ployed at an annual salary of $2,000 to act as superintendent of a lumbering establishment for five years. He was dis- Brinkley v. Swicegood, 65 N. C. 626 ; 5 Pritchard v. Martin, 27 Miss. 305 ; Adams v. Pugh, 7 Cal. 150; Barker Stewart v. Walker, 14 Pa. St. 293; V. Knickerbocker Life Ins. Co., 24 Willoughby v. Thomas, 24 Gratt 521 ; Wis. 630; Prentiss v. Ledyard, 38 id. Hunt v. Crane, 83 Miss. 669; Wal- 131 ; Roberts v. Crowley, 81 Ga. 429 ; worth v. Pool, 9 Ark. 394 ; Fowler v. Alberts v. Stearns, 50 Mich. 349. Waller, 25 Tex. 695; Saxonia Min- 1 Brown v. Board of Education, 29 ing & R Co. v. Cook, 7 Colo. 569 ; 111. App. 572. Richardson v. Eagle Machine Works., 2 Bolles V. Sachs, 37 Minn. 315. 78 Ind. 422 ; Nixon v. Myers, 141 Pa. 3 Stevens v. Crane, 37 Mo. App. 487. St. 477. * Brinkley v. Swicegood, 65 N. C. ^ Richardson v. Eagle Machine 626; Bull v. Schuberth, 2 Md. 57; Works. 78 Ind. 422; Goodman v. Given v. Charron, 15 Md. 502 ; Hart- Pocock, 15 Q. B. 576 ; Colburn v. man v. Rogers, 69 Cal. 643. Woodworth, 31 Barb. 381. See Watts Interest is not recoverable antei'ior v. Todd, 1 McMull. 26 ; Blun v. Hol- to verdict or judgment. Cox v. itzer, 53 Ga. 82. McLaughlin, 76 Cal. 60. § 692.] CONTKAOTS FOK SERVICES. 15G3 charged at the end of the first year, and then brought suit to recover damages in respect to the remaining four 3'ears. lie had found other employment for one year at a salary of $1,000, and the trial having taken place while he was per- forming this engagement, the trial court proceeded on the presumption, as a legal one, that the state of facts existing at the time of the trial would continue through the ensuing years to the end of the contract term, and a verdict for §4,000 was found in favor of the ])laintiff. This was set aside on appeal on the ground that there could be no such presumption. Cole, J., said : "In any business the price of labor fluctuates greatly within four years ; particularly is this true in the lumbering business in this country. Now suppose the respondent could only obtain for his services next year $500, and so on, would it not be unjust to say he should only recover according to the rule adopted by the jury in this case. Or suppose the value of the labor should rise so that he could obtain for his services $2,000 or $2,500 a year, what then would be his loss for the failure of the appellant to fulfill his contract? Still further difficulty presents itself. Suppose the respondent should die within the four years, or become incapacitated to perform service of any kind, would he be entitled to recover the damages he has recovered? . . . As the case now stands, we think he w^as only entitled to recover his salary on the contract down to the day of trial, deducting therefrom any wages which he might have received, or might reasonably have earned in the meantime." ^ But this rule does not pre- vail in some states. On a wrongful dismissal the employee must recover full damages in one suit, though it be brought before the expiration of the terra of service.^ J Gordon v. Brewster, 7 Wis. 355 ; Co. v. Bryson, 44 Iowa, 159 ; Lewis Wright V. Falkner, 37 Ala. 274 ; Fow- v. Atlas Mut. L. lus. Co., 61 Mo. 534 ; ler V. Armour, 24 id. 194; Pritchard Washburn v. Hubbard, 6 Lans. 11. V. Martin, 27 Miss. 305 ; SaxoniaMin- ^Tarbox v. Harteustein, 4 Baxter, iug & R. Co. V. Cook, 7 Colo. 569; 78; E. T., Va. & Ga. Pu Co. v. Staub, Mt. Hope C. Ass'n v. Weidenman, 7 Lea, 397 ; Litchensteiu v. Brooks, — 111. ; 28 N. E. Rep. 834 ; Wilson 75 Texas. 196 ; James v. Allen Co., 44 S. M. Co. V. Sloan, 50 Iowa, 367. See Ohio St. 226 ; Everson v. Powers, 89 Hartland V. General Exchange Bank, N. Y. 527 (it seems); Sutherland v. 14 L. T. (N. S.) 863 ; Alfaro v. David- Wyer, 67 Me. 64 ; ^(,na L. Ins. Co. son, 40 N. Y. Super. Ct. 87 ; Gifford v. v. Nexsen, 84 Ind. 347. Waters, 67 N. Y. 80; Howe Machine 15GA CONTEACTS FOK SERVICES. [§ 093. [473] § 693. Same subject. Where the action is not tried until the period of the stipulated service has expired, the plaintiff will be entitled to recover the agreed wages or salary for the whole time, but reduced by the amount which he has or might have earned by engaging to any other party during the time of the breach.^ This is not the rule, however, where a school teacher has been wrongfully discharged by the local authorities, and such action has been reversed by competent authority. In that case there is no legal obstacle in tae way of his performance of the contract, and he must at least offer to perform in order to recover compensation subsequent to the reversal.' Where there has been a wrongful discharge of an employee it is his duty to diligently endeavor to find other employment during the time for which he claims damages from the defendant. This is required because the law dis- courages idleness, and on the principle that it is the duty of the injured party to reasonably exert himself to prevent, or diminish damages arising from the acts of the defendant.^ iHolloway V.Talbot, 70 Ala. 389; Everson v. Powers, 89 N. Y. 527; Barker v. Knickerbocker L. Ins. Co., 24 Wis. 630 ; Prentiss v, Ledyard, 28 id. 131 ; Congregation of Children of Israel v. Peres, 2 Cold. C20 ; Decker V. Hassel, 26 How. Pj-. 528 ; Blun v. Holitzer, 53 Ga. 82 ; Fereira v. Sayres, 5 W. & S. 210; Algeo v. Algeo, 10 S. 6 R. 235; McDaniel v. Parks, 19 Ark. 671; Whitaker v. Sandifer, 1 Duv. 261 ; Colbura v. Woodworth, 31 Barb. 381 ; Shannon v. Comstock, 21 Wend. 4r)7 : Byrd v. Byrd, 4 McCord, 141 ; Squire v. Wright, 1 Mo. App. 172; Spiague V. Morgan, 7 Ala. 952 ; Davis V. Ayres, 9 id. 292; Fowler v. Ar- mour, 24 id. 194; Martin v. Everett, 11 id. 375; Ramey v. Holcorabe, 21 id. 567 ; Bromley v. School District, 47 Vt. 381 ; Howard v. Daly, 61 N. Y. 362; Hendrickson v. Anderson, 5 Jones' L. 246 ; Williams v. Anderson, 9 Minn. 50; Horn v. Western Land Ass'n, 23 id. 233; Walworth v. Pool, 9 Ark. 394 ; Utter v, Chapn7an, 38 Cal. 659; Jaffray v. King, 34 Md. 217 ; Cumberland, etc. R. Co. v. Slack, 45 id. 161 ; Costigau v. Mohawk, etc. R. Co., 2 Denio, 609. In Yerrington v. Greene, 7 R. I. 589, it was held that the death of the employer, who had retained a clerk and salesman in his business for three years, occurring before the expira- tion of that term, excused the further performance of the contract, and that no action could be maintained against the administrators of the em- ployer for their refusal longer to em- ploy such clerk. Lacy v. Getman. 119 N. Y, 109. 2 Park v. Independent School Dis- trict, 65 Iowa, 20y, 3 Miller v. Marineii-^ "Church, 7 Mo. 51 ; Jones v. Jones, 4 Md. 609 ; Cham- berlain V. Morgan, 68 Pa. St. 108; Sutherland v. Wyer, 67 Me. 64 ; Howard v. Daly, 61 N. Y. 362; Ben- ziger V. Miller, 50 Ala. 206 ; Baker v. Knickerbocker L. Ins. Co., 24 Wis. 630," Shannon v. Comstock, 21 Wend. § G93.] CONTRACTS FOR SERVICES. 15G5 The opportunity to be employed by another will not, how- ever, be presumed, but must be affirmatively shown by the defendant. While the rule here is the same as in other cases that compensation is limited to the actual injury, and [4:74:] this is deemed to be only the difference between the Avages stipulated to be paid by the defendant and the amount the plaintiff by dilioence can obtain for like service elsewhere, yet the burden is on the defendant to show the latter amount ; otherwise the damages will be measured by the salary or wages agreed to be paid.' The plaintiff is not required to diminish the damages measured by the agreed wages by en- gaging in a different business;- nor, it has been held, at a dif- ferent place.* If, however, compensation is received for serv- ices rendered in a dissimilar employment, the damages are lessened correspondingly.* The employee is not bound to ac- cept service of the employer who has wrongfully discharged him at less wages than the original contract stipulated for, because to do so would be a modification of that contract and a waiver of the right to claim under it. The rejection of such an offer neither prejudices the employee's right of action 457; Hecksher v. McCrea, 24 id. 300; l."53; Williams v. Chicago Coal Co., Walworth v. Pool, 9 Ark. 394 ; Polk 60 111. 149. V. Daly, 14 Abb, (N. S.) 156 ; vol. 1, In some states it is held that the § 88. plaintiff must show the amount of 1 Dunn V. Daly, 78 Cal. 640 ; Brown his loss by pi-oving his diligence to V. Board of Education, 29 111. A pp. get other employment, and what he 572 ; School Directors v. Kimmel, 31 has been able to realize. Hunt t. id. 537 ; Miller v. Boot & Shoe Co., 26 Crane, 33 Miss. 669 ; Fowler v. Waller, Mo. App. 57 ; Koenigkraemer v. Mis- :<;o Texas, 693 ; McDaniel v. Parks, som-i Glass Co., 24 id. 124; Saxonia 19 Ark. 671; Huntington v. Ogdens- Mining & R. Co. v. Cook, 7 Colo. 569 ; burgh, etc. R. Co., 33 How. Pr. 416. Ansley v. Jordan, 61 Ga. 482 ; Roberts See Whitaker v. Sandifer, 1 Duv, V. Crowley, 81 id. 429 ; Hinchlifife v. 261 ; Willoughby v. Thomas, 24 Koontz, 121 Ind. 422 ; Larkin v. Heck- Gratt 521. sher, 51 N. J. L, 133 ; Fee v. Orient 2 id. ; Strauss v. Meertief, 64 Ala. Fertilizing Co., 36 Fed. Rep. 509 ; 299 ; Holloway v, Talbot, 70 id. 389 ; Costigan v. Mohawk, etc. R. Co., 2 Fuchs v. Koerner, 107 N. Y. 529. But Denio, 609 ; Howard v. Daly, 61 N. Y. see Perry v. Simpson Waterproof Co., 362 ; Gillis v. Space, 63 Barb. 177 ; 37 Conn. 520. King V, Sturer, 44 Pa. St. 99 ; Cham- 3 Costigan v, Mohawk, etc. R Co., berlain v. Morgan. G8 Pa. St. 168. See 2 Denio, 609. Gazette Printing Co. v. Morss, 60 Ind. * Stevens v. Crane, 37 Ma App. 487. 1566 CONTRACTS FOR SERVICES. [§ 694. nor affects the amount he may recover.^ But an offer to con- tinue in the same employment under the terms of the orig- inal contract, if nothing has occurred to make it degrading for the employee to do so, or he will not suffer loss or injury thereby, must be accepted; if it is refused he cannot recover for such time as he thereafter remains unemployed.^ If the dismissed employee fails to secure other employment and goes to work for himself it is held in Michigan that the value of his services is not to be deducted from his claim against his former employer.' There is, however, a New York supreme court decision to the contrary.* It has been supposed that the right to recover at the rate of the stipulated wages rests upon the fact that the service is personal, and therefore during the term the employee keeps or should keep himself in readiness actually to do the stipulated work, and is not required or at liberty to enter into any en- gagement inconsistent with his duties under the contract sued upon.* Where the party employed stipulated to cause cer- tain services to be performed, and was not expected or re- quired to render them in person, and they were to be per- formed for a stated period for a stipulated sum, it was held that the contract was assimilated to an agreement for partic- ular work to be performed or materials to be furnished ; that the damages for the employer's breach would be the differ- ence between the cost of the work and the amount agreed to be paid ; that the employee was entitled to a^ro ra^^? compen- sation according to the terms of the contract for the time he had performed and had not been paid, and for the profits which he could have made during the residue of the time the contract had to run.* [475] § 694. Same subject. The damages recovered are not wages for constructive services, but compensation for being 1 People's Co-operative Ass'n v. 3 Harrington v. Gies, 45 Mich. 374 Lloyd, 77 Ala, 387 ; Whitmarsh v. * Huntington v. Ogdensburgh, etc. Littlefield, 46 Hun, 418. R. Co., 33 How. Pr. 416. 2Birdsong v. Ellis, 63 Miss. 418; 8 Jafifray v. King, 34 Md. 217. Saunders v. Anderson, 2 Hill (S. C), 6Ramey v. Holcombe, 21 Ala. 567. 486; Bigelow v. American F. P. See Shannon v. Comstock, 21 Wend. Manuf. Co., 39 Hun, 599; Beymer v. 457. McBride, 37 Iowa, 114. § 694.] CONTRACTS FOR SERVICES. 1567 prevented from earning the stipulated wages according to the contract. If at the beginning of the period hired for the employer refuses to take the person employed into his service, or afterwards, before the end of that period, wrongfully dis- charges him, there is no further duty on his part to be in read- iness to perform; or to decline any engagement which would have been incompatible if the other party had kept his agree- ment.^ The employer's violation of his contract to employ for a specified time or service has sometimes given a right to other damages than an equivalent for the direct wages or sal- ary thus prevented from being earned. Thus, the defendant, residing in Kew Hampshire, b}'' letter proposed to the plaint- iff, who was residing in Minnesota, that if he would come to Xew Boston he might move into the defendant's house ; that he would give the plaintiff and his wife a year's board ; and he might carry on the defendant's farm on any terms he might elect; the plaintiff, accepting the offer, moved there, and an arrangement for carrying on the farm was made. On a breach of this contract by refusing to allow him to enter upon its performance, it was held that in assessing the damages the jury might take into consideration the expenses of such re- moval, which were treated as part of the consideration paid by the plaintiff, and distinctly contemplated by the parties.'^ It is material that such expenses be incurred in consequence of the contract, and be contemplated when it is made.' [476J. Where the defendant, doing business in Massachusetts, wrote 1 Howard v. Daly, 61 N. Y. 362; years. The plaintiff was to take Moody V. Leverich, 14 Abb. (N. S.) charge of the business, and to have 145; Sutherland V. Wyer, 67 Me. 64; half of the net profits. It was held 2 Parsons on Cont 40 and note. See that, in estimating the damages, it Shaw V. Republic Ins. Co., 69 N. Y. was competent for the arbitrators, 286 ; Beck with v. Baldwin, 13 Ala. to whom the case was referred, to 720 ; also Williams v. Anderson, 9 allow the plaintiff compensation for Minn. 50. the loss of time and expenses of re- - Woodbury v. Jones, 44 N. H. 206 ; moving his family to and from the Cadman v. Markle, 76 Mich. 448. agreed place of business, instead of s Benziger v. Miller, 50 Ala. 206. the profits he would probably realize In Johnson v. Arnold, 2 Cush. 46, if the business had continued. The the defendant agreed with plaintiff, breach was the failure of defendant who lived in Massachusetts, to fur- to fulfill his agreement, thus pre- uish goods to a certain amount to venting the plaintiff from continu* stock a store in Indiana for two ing the business. 15G8 CONTKAOTS FOE SEEVICES. [§69-1. to the plaintiff in the Sandwich Islands : " I am ready to offer you a foreman's situation at these works as soon as you may rjet here ; pay, $1,500 a year ; " and the plaintiff accepted the offer and came, but the defendant refused to employ him, it was held that he was not entitled to recover as part of his damages either his expenses in coming from the Islands, or compensation for the time consumed in the journey.^ The discharge of a minor in contravention of a contract made with his father entitles the latter to recover for the trouble and ex- pense incurred in obtaining other employment for his son.^ Where a deed of apprenticeship gave the master the right to discharge for a designated cause on giving a week's notice, and a dismissal was made for another cause without notice, the damages were not restricted to the value of the week's no- tice, but extended to all that naturally resulted from the breach, including the difficulty the plaintiff had, as a dis- charged apprentice, in obtaining employment elsewhere.' A dismissal was made after four and a half months' service had been rendered under a contract which was to continue for two years, at a fixed salary and one-half the profits. The court refused to set aside a verdict w^hich awarded a year's salary and the stipulated share of the profits for that time.* If an auctioneer has incurred expense in cataloguing the goods he has been authorized to sell,^ or in advertising them and for his license, he may recover it on the revocation of his authority.** In a New York supreme court case ^ it was held by Lawrence, J., that one who relies upon a contract giving him the agency for the sale of a proprietary article and gives up his previous profitable employment may on the fail- ure of his employer to perform stipulations essential to suc- cess in the undertaking recover as damages the profits lost by withdrawing from his former employment and the expenses incurred in engaging in the new enterprise; the first item to 'Noble V. Ames Manuf. Co., 113 < Smith v. Thompson, 8 C. B. 44; Mass. 492. See Peters v. Whitney, S. C, 65 E. C. L. 44. 23 Barb. 24 ; Woodbury v. Brazier, ^ Carpenter v. Le Count, 22 Hun, 48 Me. 302. 106. 2 Dickinson v. Talmage, 138 Mass. ^ Russell v. Miner, 25 Hun, 114. 249. 7 Meylert v. Gas Consumers' B. Co., 3 Maw V. Jones, 23 Q. B. Div. 107. 26 Abb. N. C. 263. § 695.] CONTKAOTS FOR SERVICES. lu<>9 be computecl only for the time and to the extent he was un- able to follow his previous occupation. In the consideration of the certaint}'' of damages and profits as damages a number of cases which pass upon the rights of agents to compensation on the basis of commissions on the amount of sales which might have been made but for the principal's wrongful act in terminating tlieir emploj^ment have already been considered.^ The uncertainty which at- tends all mercantile transactions has generally induced the courts to disallow claims for compensation so far as they are based upon unearned commissions.^ There are some cases which have allowed such compensation. In a Georgia case ^n insurance company broke its contract with an agent by in- creasing its rates for policies to such a figure that he was un- able to obtain any risks. He was entitled to recover what he would have earned if the rates had remained as they were fixed by the contract.* The commissions due an insurance agent on the renewal of life policies have been held to be com- putable with sufficient certainty for the purpose of awarding damages.** § 695. Liability of emi)Ioyee for violation of contract. The employee is liable to the employer for violation of his contract of service ; and damages therefor may not only be recovered b}^ action, but may be deducted or recouped from the sums due for service in actions for their recovery.^ Where an overseer, employed at a stipulated sum per annum, was sick a part of the time so as to unfit him for active duty, but was permitted to remain in the service up to the end of the year, he was held entitled to jpro rata compensation ; and it 1 Vol. 1, § 69. 5 Alberts v. Stearns, 50 Mich. 349 ; 2 Brigham v. Carlisle, 78 Ala 243 ; Still v. Hall, 20 Wend. 51 ; Harper v. Beck V. West 83 id. 213 ; Stern v. Ray, 27 Miss. 622 ; Dunlap v. Hand, Rosenheim, 67 Md. 503; Washburn 26 id. 460; Doan v. Warren, 4 Up. V. Hubbard, 6 Laos. (N. Y.) 11 ; Howe Can. C. P. 423 ; Peters v. Craig, 6 S. M. Co. V. Bryson, 44 Iowa, 159. Dana, 307 ; Marshall v. Hann, 17 N. J. 3 Life Association of America v. L. 425 ; Forman v. Miller, 5 McLean, Ferrill, 60 Ga. 414. See Alfaro v. 218; Swift v. Harriman, 30 Vt. 607 ; Davidson, 40 N. Y. Super. Ct 87. Peters v. Whitney, 23 Barb. 24. See * ^tna Life Ins. Co. v. Nexsen, 84 section on Recoupment and Counter- Ind. 347 ; Lewis v. Atlas Mut. L Ins. claim. See contra, N. & K. Turn- Co., 61 Mo. 534. pike Co. v. Harris, 8 Humph. 558. Vol. II — 99 1570 CONTKACTS FOE SEKVICES. [§ 695. was fleclared as a general principle that if the employer had been injured by the imperfect performance of the overseer's undertaking damages adequate to the injury should be re- [477] couped.^ And this kind of defense may be made for unfaithful service against wages in a proceeding to enforce a lien.^ In an action by the father for the services of his sons, on an answer that they had been engaged for a specific time, and broke their contract, it was held that the defendant had a rio:ht to show the damao;es from such a breach to reduce the recovery.^ So in an action for work and labor against a man- ufacturing company, it appearing that the plaintiff was subject to a regulation requiring all persons in the company's employ to give four weeks' notice of their intention to leave the serv- ice, and had departed without doing so, it was held that the defendants were entitled to a deduction from the plaintiff's claim of the damages sustained by reason of his breach of the contract.*. In an action by a factor against his principal to recover a general balance the defendant was allowed to prove in mitigation of damages that the plaintiff had orders to sell the goods consigned immediately, and that they might have been sold in compliance with such order for more than suffi- cient to put the plaintiff in funds to the amount of his ship- ments and all costs and charges ; and it was held that such a 1 Hunter v. Waldron, 7 Ala. 753 : dated damages, might be set off Jones V. D3'er, 16 id. 221 ; McLane against the plaintiff's claim. See V. Miller, 12 id. 643 ; McCracken v. Spalding v. Vandercook, 2 Wend. 431. Hare, 2 Spear, 256; Farnsworth v. Where the counter-claim alleged Garrard, 1 Camp. 38 ; Marshall v. that if an abstract of title had been Hann, 17 N. J. L. 243. In this case made in time the defendant would it appeared that H. engaged to M. as have been enabled to borrow money a glass blower, with a specification on his property and with such money of his services, duties and compensa- would have been able to purchase tion ; it was also stipulated that for land for which he was negotiating, every wilful neglect or refusal to which subsequently increased in blow, flatten or do other work cus- value to a large extent over what it tomary, etc., the person so neglect- would have cost him, the claim was ing or refusing should pay to M. the held to be for damages which were sum of $10. In an action for serv- too remote. Pendleton v. Cline, 85 ices, it was held competent for the Cal. 142. defendant to show that the services 2 Ward v. Wilson, 3 Mich. 1. had not been performed in the man- ^Lowen v. Grossman, 8 Iowa, 325. ner agreed on, and that these penal * Hunt v. Otis Co., 4 Met 464. sums, being in the nature of liqui- § 695.] OONTEAOTS FOE SERVICES. 1571 defense would be a bar to all commissions, interest, storage and other charges caused by such negligence and breach of orders.^ According to the weight of American authority the em- ployer may obtain by way of recoupment damages, either direct or consequential, estimated by the same standard or measure as by an action for breach of the servant's contract.^ In an action for the breach of a contract to work on a farm, evidence of damage accruing to plaintiff's crops in consequence of the defendant's leaving his service is inadmissible, the loss being too remote.^ The employer may set up as a ground of recoupment not only want of diligence or skill, but even the torts of the person employed which involve a breach of duty in his employment. In an action brought upon a promissory note given for work done by the plaintiff for the de- [478] fendants, the defense was permitted by way of recoupment that while the plaintiff was in the defendants' employ as their servant, they were possessed of drawings, plans, models and patterns of steam-engines, etc., which had names, numbers and marks inscribed on them so as to identify them ; and that the plaintiff, contrary to his duty as such servant, destroyed the drawings and plans, and obliterated the names, numbers and marks of the plans, models and patterns. The damages, how- ever, were restricted to compensation ; it was held that noth- ing could be allowed on account of the malice with which the wrong; was done.* It is not a defense to an action for wages J Dodge V. Tileston, 13 Pick. 328 ; as agent for the sale of an article Montriou v. Jefferys, 2 C. & P. 113. after entering upon the agency the ^Railroad Co. v. Smith, 21 Wall, principal elements of the damages 255 ; Luf burrow v. Henderson, 30 Ga sustained by the other party are the 482 ; Ward v. Fellers, 3 Mich. 281 ; expense of procuring another agent vol. 1, § 188. and the increased expense of selling 3 Peters v. Whitney, 23 Barb. 24 ; the article direct to customers. The Riech V. Bolch, 68 Iowa, 526 ; Pros- fact that the price of the article is re- ser V. Jones, 41 id. 674. duced is not ground for making the There is not sufficient connection difference in the price before and between unskilf ulness in performing after the breach the basis of the re- labor by a servant and the loss of the covery. Cannon Coal Co. v. Taggart lease of a farm by the employer to (Colo.), 27 Pac. Rep. 238. make the former liable therefor, * Allaire Works v. Guion, 10 Barb. Hartman v. Rogers, 69 Cal. 643. 55; Brigham v. Hawley, 17 111. 88; On the breach of a contract to act Lee v. Clements, 48 Ga. 128 ; Satch- 1572 CONTKACTS FOK SERVICES. [§ 695. that the employee has so misconducted himself as to injure a third person, thereby exposing his master to liability for dam- ages, if the latter has not been found liable therefor.^ The omission to set up the defense of recoupment was held in one case in England to be a bar to an action for the same matter ; 2 but that is not the law in this country. Here mat- ter of recoupment which constitutes a cross-claim for which a separate suit could be brought may be used as a defense or not at the election of the defendant. But if set up in a plea or notice, and the defense offered on the trial, the judgment will be a bar, even though the defense be disallowed.* well V. Williams, 40 Conn. 371; 2 Kist v, Atkinson, 3 Camp, 63. Fowler v. Payne, 49 Miss. 33 ; Conger 3 Fabricotti v. Launitz, 3 Sandf . V. Fincher, 38 111. 347 ; Wilder v. 743 ; McLane v. Miller, 13 Ala 643 ; Stanley, 49 Vt. 105. vol. 1, § 189. 1 Merlette v. North & East River S. Co., 13 Daly, 114. § GdG.'] EMPLOYER AGAINST CONTKACTOE. 1573 CHAPTER XYI. CONTRACTS FOR PARTICULAR WORKS. Section 1. employer against contractor. § 696. Nature of the contract. 697, 698. Compensation for loss the measure of damages. 699. Defects in work must be remedied. 700. LiabiUty exists though accident prevents performanca 701. Contractor not answerable for defects in plans. 703. Works contracted for a particular purpose. 703, 704. Damages for delay. 705. Consequential damages for defective work. Section 2. contractor against employer. 706. Contract price. 707. Demands for extra work. 708. Recovery on part performance of severable contract 709-711. Demands for part performance of entire contract 712. Certificate of architect, engineer, etc. 713, 714. Liability of employer for stopping work. Section 8. SALVAGE. 715. Requisites of salvage service. 716. A specific amount may be fixed by agreement 717. Nature of peril and duty of claimant 718. Property must be saved. 719. Amount recoverable as salvage. 720. Derelict property. 721. Forfeiture of compensation. Section 1. employer against contractor. § 696. Nature of the contract. Contracts of tliis sort [479] do not contemplate service by particular persons as the chief object, but the accomplishment of certain results, by work, or work and material, as the making of a carriage or the erection of a building. The labor and materials are but means or instrumentalities of the contractor, and are at his discretion, except as they are prescribed, as they often are, to 157-1 OONTKACTS FOK PAKTICULAK WORKS. [§ 697. more certainly insure the required product, Sucli contracts are fulfilled by any service or means, in the absence of stipu- lations on that subject, if the end contracted for is attained. § 697. Compensation for loss the measure of damages. The rules for the assessment of damages, being based on the principle of compensation, are closely analogous to those which apply to executory contracts for the sale of personal property. If there is a total breach by the contractor only nominal damages can be recovered where the thing to be done or pro- duced would be of no value to the employer, or if damage is merely possible or conjectural.' Thus, the plaintiff leased to the defendant certain premises, naming no term, and reserv- ing no rent, the lessee covenanting to sink an oil well on them of a prescribed depth, by a certain day, and to pay a fixed price per cord for the wood standing on the lot ; a right of re-entry w^as reserved on breach of the covenant. The de- [480] fendant failing to sink the well, the court, on consider- ation of the improbability of injury to the lessor, held that only nominal damages could be recovered.^ It was said : " The measure of damages is to be sought iu the contract made by the parties ; and where the amount of compensation is not fixed by the contract,' the natural approximate injury occasioned by the breach of duty is, within the contemplation of the parties, the measure of damages. Where compensation is to be made to the plaintiff by delivery of an article of value, the value of the article is the loss sustained by the plaintiff if the contract is broken. So where a defendant for a compensation paid should agree to build a house for the plaintiff, the value of the house would measure the damages if the defendant omitted to perform the contract. In these and like cases it is easily seen that actual pecuniary loss has been sustained in consequence of the default of the defendant. But there may be loss, in a legal sense, sustained by the plaint- iff from the breach of a contract by the other party, although 1 Adams Exp. Co. v, Egbert, 36 Pa. ular works have been upheld in St. 360 ; Petrie v. Lane, 67 Mich. 454. several recent cases. De Graff v. 2 Chamberlain v. Parker, 45 N. Y. Wickham, 53 N. W. Rep. 503 569. (Iowa) ; Lincoln v. Little Rock Gran- » Contracts stipulating the dam- ite Co., 19 S. W. Rep. 1056 (Ark.). See ages from delay in completing partic- vol. 1, § 290. § 697.] EMPLOYEE AGAINST CONTRACTOK. 1575 it could be seen that the performance would have not bene- fited but might have injured him. If the owner of land em- ploys and pays another to perform a certain act upon it, or to erect a certain structure, it would be no defense to an action by the employer for the breach of the contract to show that the act to be done, or the erection to be made, would injure the land or impair its value. The owner would be entitled to recover the value of the work and labor which the defendant was to perform, although the thing to be produced had no marketable value. A man may do what lie will with his own, having due regard to the rights of others, and if he chooses to erect a monument to his caprice or folly on his premises, and employs and pays another to do it, it does not lie with a defendant who has been so employed and paid for building it to say that his own performance would not be beneficial to the plaintiff. . . . The contract on his (the defendant's) part to dig the well, ... if performed, could result in no benefit to the lessor, except in the possible contingency that after the well was dug the default of the defendant in pay- ing for the standing timber on the premises, according [481] to his undertaking in the lease, might enable them to re-enter on the premises. The whole production of the well, if oil should be found, would belong to the defendant for all time, unless the possible ground of forfeiture should occur, just suggested. If this contingency happened it might be delayed until the supply of oil in the well was exhausted and the pos- session of the well had become of no value. The loss or s^ain in sinking a well w^as wholly the defendant's. It may be con- jectured that the lessor had in view some advantage to other property in the vicinit}^ from the prosecution of the work of exploration by the defendant. There are no facts shown au- thorizing this inference, and such a ground of damage, if averred, would be speculative and conjectural, and could fur- nish no satisfactory basis for a recovery. The defendant was not paid for digging a Avell for the plaintiff on his premises, The well, when dug, would be upon the land of the defend- ant, and its product would be his. It is idle to say, and the law does not require it to be said, in face of the obvious facts, that the lessors have been damaged to the extent of the cost of digging the well by the defendant's default, . . . It is 15TG CONTEACTS FOR PARTICULAR WORKS. [§ 698. not jirobable that any authority can be found precisely in point ; but the rule which has been held by the English courts in several cases, to the effect that in an action of covenant by lessor against lessee for non-repair of the demised premises under an unexpired lease the proper measure of damages is not the amount required to put the premises in repair, but the amount in which the reversion is injured by the premises being out of repair, tends to support the conclusion that the rule of damages adopted in this case [the amount it would cost to bore such a well] was erroneous." ^ § 698. Same subject. The rule which is applied when there is a breach of a contract to deliver personal property governs the damages recoverable on the failure to publish an adver- tisement in a prescribed manner, if its publication in substan- tially that way can be obtained. If that is not shown to be impracticable it will be presumed that it can be done, and the price paid will be the measure of damages.- A general state- ment of the rule which applies as between a contractee and contractor, on a breach by the latter, is that the former is en- titled to such damages as will be equivalent to the benefit which he would derive from having a full performance of the contract. Where a defendant had agreed to build a house for the plaintiff, for which he covenanted to convey to the defendant a house and lot, for a neglect to build, the measure [482] of damages is the difference in value between the house and lot to be conveyed and the house to be built.^ A plaintiff 1 Doe V. Rowland, 9 C. & P. 734 ; rebuild, if it is availed of, couvert& Smith V. Peat, 9 Excli. 161 ; Turner the policy into a building contract. V. Lamb, 14 M. & W. 413 ; Payne v. If the insurer does not wholly com- Haine, 16 id. 541. plete the building he is liable for 2 Tribune Co. v. Bradshaw, 20 111. such sum as will finish it. Morrell v. App. 17. Irving F. Ins. Co., 33 N. Y. 429. 3 Laraway v. Perkins, 10 N. Y. 371 ; In Kidd v. McCormick, 83 N. Y. Mayor, etc. v. Second Avenue R Co., 391, the plaintiff covenanted to con- 102 id. 572; Morrell v. Long Island vey lots to the defendant, who was to R. Co., 15 Daly, 127 ; Cincinnati & S. give a bond and mortgage on each Ry. Co. V. Carthage, 36 Ohio St 631 ; lot to secure the purchase-money ; he Taylor V. North Pacific C. R. Co., 56 also agreed to erect a house upon Cal. 317 ; Louisville, etc. Ry. Co. v. each, plaintiff to make advances as Sumner, 106 Ind. 55. work on the houses progressed, and A provision in an insurance policy to be repaid out of the mortgage, which gives the insurer the right to Subsequently, and after building was § 698.] EMPLOYER AGAINST OONTKAOTOE. 1577 agreed to let the defendants have all the pine timber on his land that was suitable for good lumber; they agreed to saw the same into lumber and sell it as soon as they could; to saw no other lumber until it was done, and to pay the plaintiff an- begun, the vendee negotiated a loan of G., which was secured by a mort- gage upon a portion of the lots. All the parties agreed that a certain part of the monej-s loaned should be de- posited as collateral security for the completion of the houses, and that the last mentioned mortgage should have priority over that given to the plaintiff. The dwellings were not completed, and after the time fixed for erecting them the vendee aban- doned the premises, and plaintiff went on and completed the buildings. The question as to the measure of damages arose in an action to reach the trust funds. After stating the general rule as it is given in the text, Folger, C. J., said : "I am aware that there has not been harmony in the expressions of learned judges in passing upon the question of the measure of damages. I apprehend, however, that it has been principally in pointing out the kind of testimony by which the amount of damages was to be got at, rather than in the rule that was to govern. Stated in its broadest form, the plaintiff is to have that compensation which will leave him as well off as he would have been had the contract been fully performed. With more par- ticularity, he has a right to a house as good as that which the defendants agreed to furnish ; and his damage is the difference between the value of the house furnished and the house as it ought to have been furnished. One kind of testimony by which that difference may be made known is that of experts, saying what would have been the value of the one, and what is the value of the other. An- other kind of testimony is that of experts, what it would cost to com- plete the unfinished house up to the mark of the contract Another kind is, when the house has been in fact finished, what it did in fact cost to finish it. But these ways all lead to the same end : what is the difference in value between the unfinished house and a house had it been finished as agreed upon. And this is to be ob- served of the last-named kind of tes- timony, first, that the plaintiff is not under obligation to go on and finish the house ; second, that he cannot always finish it, as he could not in the case at hand, at the day called for by the contract, when there will come into the damages the element of loss from delays ; and third, that the cost of actual buildmg maj' have increased after the day of perform- anpe, and so be a detrimental gauge of damage for the defaulting con- tractor. . . . The plaintiff w^as entitled on the 1st of September, 1877, that there should be finished houses, rentable, and so productive of income with which to keep down interest on the mortgages on the lots, the taxes thereon, and insurance premiums. He could not, on that day, had he been let into immediate possession and control, by any ex- penditure of money or energy, have completed them at once ; nor, in the nature of things, could he have sup- plied the lack of completed houses by a purchase in the market The work needed to complete was one of time ; and while the time was run- ning, interest was running also, taxes were levied, insurance was to be kept up, and the premises were yielding 157S OONTEACTS FOK PAKTICULAK WOKKS. [§ 699. nually in money one-fifth of the gross proceeds of the lumber sold and collected by them. For breach of this contract by fail- ing and refusing to saw all the timber on the plaintiff's land, it was held but one action would lie, in which, although the time of performance may not have elapsed, he would be en- titled to recover damages for the continued and prospective failure of performance, to be assessed on the basis of the value at the time of the breach. And the measure of his recovery would be the profits which would have accrued to him from the performance of the contract, to be ascertained by deduct- ing the value of the timber left unsawed from one-fifth of the value of the lumber which it would have made.^ On a con- tractor's failure to perform the contractee may recover at least the difference between the contract price and the com. pensation he is obliged to pay under a new contract for the same work.^ § 699. Defects in work must be remedied. The measure of damages for breach of contract for putting up particular work, as, for instance, a steam boiler, by doing it unskilfully or with defective material, is the difference between its value in its defective condition and what its value would be if com- pleted in compliance with the contract. This latter sum may be more or less than the contract price, but it is obviously the proper standard by which to measure the damages of the em- ployer, because a boiler so completed is exactly what he is entitled to ; ^ then the contractor obtains also just what his no rent. It is plain to repay him i Fail v. McRee, 36 Ala. 61 ; Whalon just what he expended to finish the v. Aldrich, 8 Minn. 346 ; McGovern buildings would not make him v. Lewis, 56 Pa. St. 231 ; Houser v. whole ; for he had to pay, besides the Pearce, 13 Kan. 104 ; Robinson v. cost of building, interest to G., and Bullock, 66 Ala. 548; Leonard v. lose interest on his own mortgages, Beaudry, 68 Mich. 313. and pay taxes and premiums. To 2Goldsboro v. Moffett, 49 Fed Rep. put him in as good predicament as 213. he would have been had the build- ^ White v. Brockway, 40 Mich. 209 ings been done on the 1st of Sep- White v. McLaren, 151 Mass. 553 tember, 1877, he should have the Mack v. Sloteman, 21 Fed. Rep. 109 difference in value between the build- Leathers v. Sweeney, 41 La. Ann. ings thrown on his hands unfinished, 287 ; Norway Plains Savings Bank and the houses as they would have v. Moors, 134 Mass. 129. In the last been if completed according to the case the defendant borrowed money contract." on houses in process of erection, and § 699.] EMPLOYEE AGAINST CONTRACTOR. 1570 defective work is worth. Substantially the same measure is allowed Avhen the rule is stated, as it sometimes is, that the contractor is liable to damages for the reasonable cost and expense, after his default, of procuring to be done any [483] specific w^ork which he undertook to do and has not done ; or to cure defects in his work w^hen that is a prudent and prac- ticable method of removing objections.' If in an action on a bond to save the plaintiff harmless from liens on a certain building, and to build it by a specified day, there is a breach in both particulars, the expenditures in- curred by the plaintiff in completing the house, and in dis- charging liens made necessary by the defendant's default, constitute the measure of damages.- And where a bond had been given, conditioned to do certain work in clearing land, for breach of it the cost of performing the stipulated work w^as recoverable.^ On the failure to cut and remove within two years growing timber on land and to pay a stipulated price for it, the damages are the difference in the value of the timber not removed at the contract price and its market value where it is. If, however, it was within the contempla- tion of the parties that the timber was to be removed for the purpose of fitting the land for cultivation, there may be a recovery of the damage sustained from that cause, but only covenanted that they should cost not St 365 ; Brown v. Foster, 57 id. 165 less than a stated sum and should be Cutler v. Close, 5 C. & P. 337 finished in a good and workmanlike Thornton v. Place, 1 M. & Rob. 318 manner. There having been a breach Houser v. Peai'ce, 13 Kan. 104 of the contract, it was ruled in an Mayne on Dam. 97 ; Clifford v. Rich- action by the mortgagee that the ardson, 18 Vt. 620 ; Dean v. White, 5 measure of damages was the differ- Iowa, 266 ; Goddard v. Barnard, 16 ence between the value of the houses Gray, 205 ; Sunman v. Clark, 120 as they were to be and their value as Ind. 142 ; Lord v. Comstock, 52 N. Y. they were left, not exceeding the Super. Ct. 548; O'Brien v. Anniston amount due on the mortgage. The Pipe Works, 93 Ala. 582. time for determining the damage In Walker v. Ellis, 1 Sneed(Tenn.), was when the houses were left as 515, it was held that expenses in- finished, or as soon afterwards as curred in attempting to get else- plaintiff had notice, or might have where the articles that the defendant had it, of their condition. See Larao- had contracted to make were not re- reaux v. Rolfe, 36 N. H. 33 ; Colton coverable as damages. v. Good, 11 Up. Can. Q. B. 153. 2 Hirt v. Hahn, 61 Mo. 496. 1 Weed V. Draper, 104 Mass. 28; 3 Sullivan v. Reardon, 5 Ark. 140; Pittsburg Coal Co. v. Foster, 59 Pa. Seavey v. Shurick, 110 Ind. 494. 1580 OONTEACTS FOK TAKTICULAR WORKS. [§ 699. for such a reasonable time, after the expiration of the two years, as will enable the plaintiff to complete the work left unfinished by the defendant,^ The plaintiff, an engineer, was employed by one S. to re- pair a steam threshing-machine, the work to be finished before harvest, or by the end of July or the beginning of August. It being found necessary to get a new fire-box made, the ])laintiff, in June, contracted with the defendants to make one for him for 12Z., which was paid, and they agreed to make it in about a fortnight. The fire-box was not sent to the plaint- iff until the 3d of September, when it was found to be useless. He was then obliged to employ another person to make an- other fire-box, for which he had to pay 20^. The threshing engine, in consequence of these delays, not being ready until N'ovember, S. brought an action against the plaintiff to re- cover damages in respect of his breach of contract, claiming 501., but he ultimately settled the matter by accepting '201. and costs, making together 251. 17s. It did not appear that the plaintiff, when he gave the defendants the order for the fire-box, communicated to them the nature of his contract with [484] S., or that they were made aware of it until after there had been a complete breach of their contract. It was held that the plaintiff was entitled to recover the sum he had paid the defendants for the fire-box, and the further sum of SI., which he had to pay in procuring another one; but that the compensation paid to S. was not such a damage as might fairly and reasonably be considered either as arising naturally from the defendants' breach of contract, or as might reasonably be supposed to have been in the contemplation of the parties at the time they made the contract as the probable result of [485] the breach of it.^ In such cases the employer is gen- 1 Fursteubury v. Fawsett, 61 Md. 15 Kan. 435, is an interesting case on 184. the subject of damages. The city of 2 Portman v. Middleton, 4 C. B. Fort Scott subscribed for $75,000 of (N. S.) 323; Hadley v. Baxendale, 9 stock in the Missouri, Kausas & Exch. 341. See Smeed v. Foord, 1 E. Texas Railway Co., and issued $75,000 & E. 602 ; Collins v. Baumgardner, 52 of its bonds in payment therefor. In Pa. St. 461 ; Hawley v. Beldeu, 1 pursuance of the same contract the Conn. 93 ; Fisher v. Goebel, 40 Mo. city also issued $25,000 of its bonds 475, to the company for the purchase of Missouri, etc. Ry. Co. v. Fort Scott, right of way through the city, and § 699.] EMPLOYER AGAINST CONTRACTOR. 1581 erally entitled to measure his damages by what the necessary expense would be to procure to be done the work which the contractor neglected to do, whether it is done or not ; for the same reason that a vendee in an executory contract for the sale for grounds for machine shops, en- gine houses, etc. In consideration thereof, the company promised that, within six montlis, it would con- struct a railroad from Sedalia, Mo., through Fort Scott, to connect witli the line running from Junction City in a southeasterly direction ; that it would make this a great through line to the Indian Territory and Texas, and construct no other line of road south of Fort Scott in the same direction ; that it would make Fort Scott the end of a division, and erect engine liouses and machine shops at or near that place, before doing so at any other point south- west of Sedalia, on the through line of its road. The company completed this contract, except tliat it did not make Fort Scott the end of a divis- ion, and did not erect an engine house and machine shops there, but erected them at Parsons. In an ac- tion by the city for the breach of this contract, testimony was admitted, against objection on behalf of the company, of a diminution of popu- lation for the purpose of showing a decline in the price of real estate in the city during a period subsequent to the construction of the road, and prior to the building of the shops and engine house at Parsons, and ending after the fact of sucli build- ing became known at Fort Scott This testimon}^ was held, on appeal, inadmissible, because speculative; it only tended to show a loss of uncer- tain ijrofits expected to accrue from the performance of the contract ; and also because such depreciation and depopulation might have resulted from other causes as well as from the breach of the contract. The court suggested that recovery might be measured by the consideration, as though the company's undertakinfj; were a condition precedent or subse- quent; and, in the latter case, Uw city is entitled to recover the amount paid with interest; or, where the un- performed condition is the erectiorf of buildings or other improvements within the city, the value thereof for the purposes of taxation might be treated as the measure of damages. Brewer, J., said : " The city, b}' the non-performance of the condition, loses the value of the improvement for the purpose of taxation, and this is a direct pecuniary loss, and one susceptible of determination with reasonable certainty. The average rates of taxation in the past — there being no exceptional causes of tem- porary taxation — may fairly be ac- cepted as the rates of the future. The value of the improvement being shown, the amount of the annual tax is a simple mathematical calcu- lation. This annual tax may be con- sidered in the nature of an annuity whose present value is susceptible of exact determination by the ordinary tables." But where there is a breach of a contract to locate a depot on the land of an individual the damages are measured by the difference in the value of the land without the depot and its value if the location had been made. Mobile & M. R3-, Co. V. Gilmer, 85 Ala. 423, 436; Louis- ville, etc. Ry. Co. v. Sumner, lOG Ind. 55; Watterson v. Allegheny Valley R. Co., 74 Pa. St 208 ; Houston, etc Ry. Co. V. MoUoy, 64 Tex. 607. 1582 CONTEACTS FOE PAETICULAE WOEKS. [§ TOO. of goods need not, in fact, purchase the goods he was entitled to receive from the vendor in order to have his damages com- puted on the basis of what tliey would cost him at the time of the breach. § 700. Liability exists tliougli accident prevents perform- ance. Where the undertaking is to make some article, or even to build or complete a house on the employer's land, the contractor is not exempt from liability as for a breach of his contract, though he has been prevented from performing it solely by some accident or casualty, by which the result of his work before completion has been destroyed without any fault on his part ; as where the building he has contracted to erect has fallen in consequence of some latent defect in the soil impairing the foundation ; ^ or by lightning or fire.- But it is otherwise where a person agrees to expend labor upon a specified subject, the property of another, as to shoe his horse or slate or perform other work upon his dwelling-house, and the horse dies, or the house is destro^^ed by fire ; ' or where a iDermott v. Jones, 2 Wall. 1; School Trustees v. Bennett, 27 N. J. L.513. 2 Tompkins v. Dudley, 25 N. Y. 272 ; Adams v. Nichols, 19 Pick. 275; School District v. Dauchy, 25 Conn, 530 ; Bacon v. Cobb, 45 111. 47 ; Shanks V. Griffin, 14 B. Mon. 153. See Clark V. Franklin, 7 Leigh, 1. 3 Lord V. Wheeler, 1 Gray, 282; Cleary v. Sohier, 120 Mass. 210 ; Wells V. Calnan, 107 id. 514 ; Niblo v. Binsse, 1 Keyes, 476; Schwartz v. Saunders, 46 III 18 ; Smnott v. MuUin, 82 Pa. St 333 ; Bianchi v. Maggini, 17 Nev. 322; Rawson v. Clark, 70 111. 656; Cook V. McCabe, 53 Wis. 250. Contra, Brumby v. Smith, 3 Ala. 123. See Wilson V. Knott, 3 Humph. 273. In HoUis V. Chapman, 36 Tex. 1, the plaintiff, a carpenter, undertook to furnish material and do the wood work necessary to finish defendant's brick building, and to turn over the building, complete, by a given day for a specified gross sum. When the plaintiff had nearly completed the work the building was destroyed by fire without his fault. Ogden, J. : " Under our blended system of legal jurisprudence, and esi^ecially under our peculiar system of pleading, com- mon counts in declarations, as tech- nically known at common law, have never been considered as necessary or essential. But while most of the fictions and many of the forms rec- ognized and prescribed in the books have in this state been abolished, yet the substance of every count and form is as requisite vinder our prac- tice as under any other system ; every action being a special action on the particular case, the petition should set forth a full and clear statement of the cause of action ' without am- biguity or contradiction, and also a clear statement of the relief sought.' The case was therefore stated so as to exhibit the particulars, and might appear to be an action on the real transaction." The opinion continues TOO.] EMPLOYER AGAINST CONTKACTOE. 1583 building is agreed to be erected on the employer's lands, [487] and is destroyed by any cause against which he was bound to after disposing of some preliminary questions : " It may be admitted that by the civil and common law. where there is a specific and positive con- tract absolutely to do an entire piece of work, or job, subject to no condi- tions either express or implied, and to be paid for only when the work is completed accoi-ding to the contract, such contract is not apportionable, and the contractor is not entitled to any pay until the work is completed. But where there is a condition, or when the contract is dependent upon the execution of another contract, or where the payment is not specially deferred to the completion of the undertaking, in such a case the con- tract is apportionable ; and in case of an accident rendering the completion of the contract impossible, the con- tractor is entitled to pro rata pay for his work; and this appears to have been the rule recognized by the best authorities. Story on Bailments, 363. In the case at bar the appellant Hollis agreed to furnish the material and do the carpenter work on two brick buildings then in process of erection for a specified sum. He further agreed to turn the buildings over finished complete, and to do the work with all possible dispatch. This agreement could not possibly have been an entire, independent contract, for it was dependent on many circumstances, such as the erection of the walls to receive the carpenters' work, etc., etc. And we think the weight of authority author- izes us in deciding that on the event of the accidental destruction of the building by fire, he was entitled to recover the value of his labor and materials expended on the building. Clark V. Franklin, 7 Leigh, 1 ; Hay- ward V. Leonard, 7 Pick. 181 ; Story's Eq. 363." The court puts the recovery on the "apportionability" of the contract, and the authority of Texas cases to that quality of such contracts. Baird V. Ratcliff, 10 Tex. 81 ; Hillyard v. Crabtree, 11 id. 284; Gonzales College V. McHugh, 21 id. 256 ; and Carroll v. Welch, 26 id. 147. But neither of the cases cited bears any analogy to the case decided. They do not decide any question as to the contract being ap- portionable ; they were contracts not apportionable, and the workmen re- covered on the* quantum meruit, based on the benefit received by the other party from the part perform- ance. In the case of Hollis v. Chap- man the right to recover may be maintained, but certainly not on the ground that the contract was appor- tionable, but because the risk of such destruction was pi'operly on the other party, and the complete performance of the contract was prevented by the destruction of the building. The provision for payment on completion should be deemed to be on the im- plied condition that the building be not destroyed. Where there is no express stipulation as to the time of payment the contract is apportion- able, and it may be demanded as the work progresses, as stated in the quotation contained in the opinion from Appleby v. Myers, L. R 2 C. P. 651 : " It is quite tiue that materials worked by one into the property of another become part of the property, and therefore, generally, in the ab- sence of something to show a con- trary intention, the bricklayer, or tailor, or shipwright, is to be paid for the work and materials he has done and provided, although the 1584 CONTRACTS FOR PARTICULAR WORKS. [§ TOO. provide.^ The measure of damages in such a case is, jjyrima facie, the pro rata share of the contract price.^ whole work is not completed. It is not material whether in such a case the non-completion is because the shipwright did not choose to go on witii the work, as in the case of Rob- erts V. Havelock, 3 B. & Ad. 404, or because in consequence of a fire he could not go on with it, as in Mene- tone V. Athawes, 3 Burr. 1592." Id Cook V. McCabe, 53 Wis. 250, the authorities are considered by Cassoday, J., and these conclusions reached : " 1. Where there is a posi- tive contract to do a thing not in it- self unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, the perform- ance of his contract has become un- expectedly burdensome, or even im- possible. 2. But this rule is only applicable when the contract is posi- tive and absolute and not subject to any condition, either express or im- plied. 3. Where, from the nature of the contract, it appears that the parties must, from the beginning, have known that it could not be ful- filled unless, when the time for the fulfillment of the contract arrived, some particular specified thing con- tinued to exist, so that when enter- ing into the contract they must have contemplated such continuing exist- ence as the foundation of what was to be done, there, in the absence of any express or * implied warranty that the thing shall exist, the con- tract is not to be construed as a posi- tive contract, but as subject to an im- plied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. 4. Where, as here, one having noth- ing to do with the painting, glazing, carpenter or joiner work contracts to furnish materials for the mason work of a building and perforin the labor thereon, except that the owner, for whom the same is to be con- structed, is to furnish upon the ground all the sand, stone, and a cer- tain quantity of lime, and haul all the brick, and the building, not being in the exclusive possession of such contractor, just before completion is destroyed by fire without the fault of the contractor, the loss must fall upon the owner, especially where he has the same insured at the time for his benefit ; and such owner cannot require the completion of the balance of the building without restoring the parts which were so destroyed." 1 In Sinnott v. Mullin, 83 Pa. St. 333, the plaintiff contracted to build four houses for defendant, and failed to complete them by reason of the falling of a stone wall on another part of the defendant's lot, whereby the buildings which were nearly finished were destroyed. In an ac- tion to recover for work done and materials furnished, it was con- tended for the plaintiff that it was the duty of the defendant to pro- vide a place for the erection of the houses under the contract that was reasonably secure and safe, and that the contract itself implied an under- taking on his part that the place chosen was free from danger. The court say, by Woodward, J., that this point should have been affirmed "subject to the qualification that the plaintiff was barred of all right to a verdict, if he had taken upon himself the risk of danger from the 2 Cook V. McCabe, 53 Wis. 250. § TOI.] EMPLOYER AGAINST CONTRACTOR, 1585 § 701. Contractor not answerable for defects in plans. Where the builder constructs the building in a work- [488] manlike manner, according to the ])]ans referred to in the contract, or, in case of any material deviation, where it is made with the consent of the other party, such builder will be under no responsibility for its subsequent destruction, condition of the defendant's prop- erty. The wall was on tlie ground on which the houses were to be built, but on a part of it over which he had no rights. The case .stands as if tlie injury had resulted from the fall of a structure on adjoining })roperty belonging to the defendant The relations of the parties were created by the contract, and for the purposes of this question they do not essentially differ from the relations towards each other whicli exist be- tween master and servant in the ordinary contract for the eniploj^- ment of labor. The plaintiff had the right to require that the place where his work was to be done should, in the language of the point, ' be rea- sonably safe and secure,' and such a place it was the duty of the defend- ant to afford. Against manifest and patent danger the plaintiff would be held to take liis chance. It was for the jury to say whether the danger was manifest and patent here. Was this wall reasonably safe and secure? If not, were the defects in its con- struction latent? And were they such defects as the defendant was bound to know? Without entering on the perilous regions of implied warranty, it is sufficient for the pur- poses of justice to assert that it is the duty of the employer to advise the employee of all defects which the employee ought to know ; and that the employer, if he fail in per- forming his duty, is liable to the employee for injury the latter may thereby receive. Wharton on Neg- VOL. 11 — 100 ligence, § 209. Further than this, the employer is not only liable f(jr injury sustained from extraneous latent dangers, if he withhold from the employee notice of tliem (Baxter V. Roberts, 44 Cal. 187), but he is liable also for injury caused by de- fects of which the employer may not have been cognizant, but which it was his duty to have searched for and remedied. Whart on Neg., ^ 311. Where a servant is employed on machinery, from the use of which danger may arise, it is the duty of the master to take due car;^ and to use all reasonable means to guard against and prevent any de- fects from which increased and un- necessary danger can occur. The risks necessarily involved in the service must not be aggravated by any omission on the part of the master to keep the machinery in the condition in which, from tiie terms of the contract or the nature of the employment, the servant had the right to expect it would be kept Cockburn, C. J., in Clark v. Holmes, 7 H. & N. 9i37. There was evidence that the attention of the plaintiff was called to the condition of the wall while negotiations for the con- tract were going on. But whether he satisfied himself as to its safety, and assumed the risk which his work in its neighborhood might involve, or relied on the assui'auce of the de- fendant and concluded his contract in ignorance of latent dangeif, it was the province of tlie jury to de- cide." 158G CONTRACTS FOR PARTICULAR WORKS. [§ 702. whether caused b}" its own inherent weakness or from the violence of storms. "When his undertaking is simply to do the work with reasonable skill after the designs furnished by the architects, he is not a guarantor of the strength of the edifice when finished, or its capacity to withstand the violence of the winds.^ § 702. Works contracted for a particular purpose. If a contract is made for the manufacture of a specific article, or for specific work for a particular use or purpose, mutually contemplated by the parties, damages for a breach will be assessed with such scope as to afford compensation for any [489] injury which may naturally and proximately result in respect to that object, whether that injury be in gains pre- vented or losses sustained. Where the grantee of a right of Avay through the grantor's land covenanted to maintain a gate placed at the terminus, and failed to replace it after it had been destroyed, the cost of rebuilding the gate was held not to measure the damages, but the actual injury sustained by the covenantee upon his land; it was a continuing covenant, and intended for the protection of the farm.^ If machinery made to order proves insufficient for the purpose for which it was ordered, and varies from that contracted for, whereby the purchaser is prevented from manufacturing to the extent he would otherwise have done, he may recover the contract price of articles sold which he is prevented from manufactur- ing, less the expense he would have incurred if they had been manufactured, over and above the sum necessarily expended in manufacturing to the extent he has done.' If in conse- quence of the insufficiency of an article which has been man- 1 Clark V. Pope, 70 111. 128 ; Wright by individuals cannot be considered. V. Sanderson, 20 Mo. A pp. 534. Wiley v. Atliol, 150 Mass. 426. '^ Beach v. Grain, 2 N. Y. 86 ; Buck On the breach of a contract by a V. Rodgers, 39 Ind. 222 ; Hyde v. Me- railway company to fence its right chanical Refrigerating Co., 144 Mass. of way there may be a recovery for 432 ; Beeman v. Banta, 118 N. Y. 538. animals killed, damage done by tres- On the failure to furnish a city passing animals, and for the loss of with a full and ample supply of pasturage. Louisville, etc. Ry. Co. water for fire service the damages v. Sumner, 106 Ind. 55. are measured by the difference be- 3 Winans v. Sierra Lumber Co., 66 tween the supply furnished and that CaL 61. contracted for. Damages sustained § 702.] employ?:k against contractor. 15S7 ufactured with knowledge of the place in and the use to which it is to be put damage is done to other property of the pur- chaser, the manufacturer is lialjle therefor. If interest is awarded on the amount which will restore the property to its former condition, there cannot be a recovery for lost profits.' In a recent case it was understood between the parties to a contract for the manufacture of machinery that the order was given for the purpose of enabling the plaintiffs to organize, in accordance with an agreement they had entered into, a limited partnership of which they were to be the sole members. The machinery was not furnished as agreed and could not be ob- tained elsewhere, and the plaintiffs were disabled from turning over to the new company the property which they should have received for that purpose, and prevented from establish- ing such company and starting it under such favorable aus- pices and with such an equipment for the transaction of a profitable business as they could have done if the defendant had performed his contract. The court did not intimate that there might be a recovery of damages by the plaintiffs as members of the limited partnership, but held that the dam- ages which plaintiffs suffered b\^ reason of defendant's fault in preventing them from successfully establishing and fitting out a business to be conducted by them as such partnership might be recovered; in other words, the value of the articles contracted for were to be estimated with reference to their intended use in the business for which they were to be fur- nished.- The plaintiff sued on a note given for work done and materials furnished in the construction of a sheet and galvan- ized iron roof upon a livery-stable belonging to defendant. The latter pleaded that the roof was constructed in a negli- gent, unskilful and unworkmanlike manner, and of inferior materials, in consequence whereof it leaked, and defendant's hay was Avet and his wall damaged, and he was put to incon- venience in the necessary removal of his stock from one por- tion of his stable to another; for which he claimed damages. The court held these damages were not too remote ; that the defendant was entitled to recover to their extent if he had no knowledge of such defects ; but if he knew of them in time 1 Erie City Iron Works v. Barber, 2 Abbott v. Hapgood, 150 Mass. 248. 103 Pa St 156. 158S CONTKACTS FOR PARTICULAR WORKS. [§ 703. to protect himself at a trifling expense, or by reasonable ex- ertions, he could recover nothing for damages suffered in consequence of such leakage.' If the time for the completion of the work is extended by consent the contractor's liability for the consequences of defects in it continues during the extension and until the expiration of a reasonable time for remedying them.'^ In Michigan the recovery of lost profits on contracts of the nature herein considered is very much restricted. The cases establishing this limited liability are stated in detail and discussed elsewhere.' § 703. Damages for delay. For dela}'' in the performance of particular work damages will be recoverable according to the injury. Where it was paid for in advance, and no special damage was shown, interest on the amount paid was allowed as damages.* For delay in constructing and putting up ma- chinery in a flouring mill the employer was held entitled to recover such sum as the mill would have earned during the time of such delay, taking its fair ordinary earnings after deducting the expense of running it; but it should appear that the party claiming such damages was in a condition to work his mill by having grain to grind.® There can be no recovery for the loss of the use of a mill which has not been erected, though the person who w^as to manufacture a portion of the machinery therefor was apprised of the purpose of his cus- tomer to erect it.*" [4-90] Where a person undertakes to erect a buildmg, or to put a mill or machinery in operation, he ought to be holden to indemnify the other party against the loss of the use of either after the expiration of the time for performing the contract; and if it is defectively done, he should indemnify him for 1 Haysler v. Owen, 61 Mo. 270; On the failure to complete the vol. 1, § 88 ; Gibson v. Carlin, 13 Lea, printing of a book within the time 440. agreed there cannot be a recovery 2 Gibson V. Carlin, 13 Lea, 440. for profits lost on mere proof that 3 Vol. 1, § 63, note ; McKinnon v. there may have been a demand for McEwan, 48 Mich. 106 ; Allis v. Me- the book. But if sales had been Lean. id. 428. made and orders withdrawn in cou- •* Edwards v. Sanborn, 6 Mich. 348. sequence of tlie delay, proof thereof 5 Davis V. Talcott, 14 Barb. 611, re- would have been admissible. Hill v. versed on another point, 12 N. Y. 184. Parsons, 110 111. 107. But see Griffin v. Colver, 16 N. Y. e Bridges v. Lanham, 14 Neb. 369. 489. § 703.] EMPLOYER AGAINST CONTRACTOR. 15 SO such loss of the use during the time necessarily spent in re- pairing and ])utting it in order.^ In such cases the rental value during the delay is the general rule.- The loss of [491] the use is the direct and inevitable result of the breach. The ' Griffin v. Colver, IG N. Y. 489. 2McConey v. Wallace, 23 Mo. App. 377; Biowuell v. Cliapniaii, 51 N. W. Rep. 251 (Iowa) : Ruff v. Rinaldo. 55 N. Y. 664 ; Freeman v. Clute, 3 Barb. 424; Wagner v. Corkhill, 40 Barb. 175 ; Cassidy v. Le Fevre, 45 N. Y. 562 ; Wjlley V. Fredericks, 10 Gray, 357; Brown v. Foster, 51 Pa. St. 165 ; Hex- ter V. Knox, 63 N. Y. 561 ; Winne v. Kelley, 34 Iowa 339 ; Clifford v. Rich- ardson, 18 Vt. 620 ; Rogers v. Bemus, 69 Pa. St 432 ; Fisher v. Goebel, 40 Mo. 475 ; St. Louis, etc. R Co. v. Lur- ton, 72 III. 118; Sperry v. Fanning, 80 id. 371 ; Boyle v. Reeder, 1 Ired. 607; Korf v. Lull. 70 111. 420. See Fort V. Orndoff, 7 Heisk. 107 ; Fletcher V. Tayleur, 17 C. B. 21 ; Allis v. Mc- Lean, 48 Mich. 428 ; Taylor v. Maguire, 12 Mo. 313. In Friedlaud v. McNeil, 33 Mich. 40, it was held that delay in the com- pletion of a contract to do only the mason work of a church will not authorize the recovery of the loss of pew rents as damages ; such loss can- not be said to be the necessary, nat- ural or probable result of such delay, since the completion of the contract does not put the building in condi- tion for the renting of pews. Cooley, J., said : "A large amount of other work would still remain to be done, and large expenditures to be made, with which this contractor would have no concern whatever; and the building might never be put in con- dition for renting of pews, and yet he be in no way responsible. It can never be said that the loss of rents is a necessary, natural or probable re- sult of a particular default, when, had no default occurred, the neces- sary conditions to rent would still be wanting, and might never be sup- plied. Any claim against this con- tractor for damages resulting from loss of rents must assume that the trustees hp.d the ability and inclina- tion to proceed at once to complete the church, and were only delayed by the contractor's default." See Wagner v. Corkhill, 40 Barb. 175, which was an action to recover for work done under a building con- tract; the defense was that the build- ing was to be completed by a speci- fied time, and was not completed within that time ; it was held that, if it appears that the defendant had the building erected for his own use, and it was completed afterwards witli his knowledge and without ob- jection from him ; that he was kept out of the use by the plaintiff's fail- ure to perform on his part, the law will presume that he was damnified, and will give him, by way of com- pensation, what such use was worth for the time he was deprived of it ; so, if he was, by such failure, pre- vented from renting it. But if it was proved that he did not contem- plate using the building himself, or in his own business, but that he caused it to be built for the purpose of renting to others; and that he did not in fact lose an opportunity of renting it, by reason of the plaintiffs delay, he cannot recoup against his claim the rents and jjrofits from the time when it should have been to the time when it was completed. Blanchard v. Ely, 21 Wend. 342, is an authority opposed to the allow- ance of profits consisting of the earnings of a steamboat A boat 1590 CONTRACTS FOR PARTICULAR WORKS. [§ 'iTOS. value of that use the injured party is entitled to recover; and it should be assessed on the same principle as the value of personal property which a vendor fails to deliver in fuUilhnent of his contract of sale. Where no special use, enhancing the was delayed in its trips in conse- quence of being defectively con- structed. The jvidge at the trial directed the jury not to allow as dam- ages for delays tlie profits which might have been made from the trips lost ; in respect to which Cowen, J., said: "No common-law authority was cited at the bar, one way or the other, having any dii-ect application to the measure of damages in such a case as this, nor am I aware that any exiets." The direction of the judge below was approved. See Coweta Falls M. Co. V. Rogers, 19 Ga. 416. In Griffin v. Colver, 16 N. Y. 489, Selden, J., said : " It is clear that whenever profits are rejected as an item of damages it is because they are subject to too many contingen- cies, and are too dependent upon the fluctuations of markets and tlie chances of business to constitute a safe criterion for the estimate of damages. This is to be inferred from the cases in our own courts. The decision in the case of Blanch- ard V. Ely must have proceeded upon this ground, and can, I apprehend, be supported upon no other. . . . In . . . (that case) . . . the damages claimed consisted in the loss of tlio use of the very article which the plaintiff liad agreed to construct, and were, tlierefore, in the plainest sense, the direct and proxi- mate result of the breach alleged. Moreover, that use was contemplated by the parties in entering into the contract, and constituted the object for which the steamboat was built. . . . Had the defendants in the case of Blanchard v. Ely taken the ground that they were entitled to recoup, not the uncertain and con- tingent profits of the trips lost, but such sum as they could have realized by chartering the boat for those trips, I think their claim must have been sustained. The loss of the trips, which had certainly occurred, was not only the direct but the immediate and necessary result of the breach of the plaintiff's contract. The rent of a mill or other similar property, the price which should be paid for the charter of a steamboat or the use of machinery, etc., etc., are not only susceptible of more exact and defi- nite proof, but, in a majority of cases, would, I think, be found to be a more accurate measure of the dam- ages actually sustained in the class of cases referred to, considering the contingencies and hazards attending the prosecution of most kinds of business, than any estimate of antici- pated profits; just as the ordinary rate of interest is upon the whole a more accurate measure of the dam- ages sustained in consequence of the non-payment of a debt than any speculative profit which the creditor might expect to realize from the use of the money. It is no answer to this to say that in estimating what would be the fair estimate of the rent of a mill we must take into consider- ation all the risks of the business in whicli it is to be used. Rents are graduated according to the value of the property and to an average of profits arrived at by very extended observation ; and so accurate are the results of experience in this respect that rents are rendered nearly, if not quite, as certain as the market value of commodities at a particular time § 703.] EMPLOYER AGAINST CONTRACTOR. 1591 value to the employer or vendee, was mutually con- [492] temjilated when the contract was made, only the market or general value is recoverable. The enhanced value is not re- jected merely because it is uncertain; it may be quite certain, as where an existing contract for renting or resale provides for it; still it is rejected because it is not a gain mutually con- templated to accrue from performance of the contract, nor the loss of it as an injury mutually contemplated to result from its breach. In the absence of such notice the defaulting party is only liable for the general rental value — that which would be received in the multitude of instances.' The dam- ages recoverable must be such as may fairly be sup))osed to have entered into the contemplation of the parties when they contracted ; that is, they must be such as might naturally be expected to follow its violation, be certain in their nature and in respect to the cause from which they proceed.- If expenses have been reasonably incurred in anticipation of the perform- ance of the contract they may be recovered.* This rule of rental value for delay, however, has been de- parted from where the delay would be indefinitely continuous, as where the execution of the contract has been abandoned ; then the damages are measured by the difference between the value of the property as it would be if the contract had been performed and as it is in consequence of the failure to fulfill it. Where a railroad company was bound to build and per- petually maintain a side-track in front of certain lots owned by the covenantee, on a breach of this covenant by abandon- ment after the track had been laid, it was held that the proper measure of damages was the difference in value of the [4:93] plaintiff's lots with the side-track operated and not operated, together with interest thereon from the abandonment up to and place."' See Western Gravel If machines are ordered to be made Road V. Cox, 39 Ind. 2G0. Compare for sale iu a foreign market, and the Sikes V. Paine, 10 Ired. 280, and Bev- manufacturer has knowledge of that erly v. Williams, 4 Dev. & Batt. 236. fact when he contracts to supply 1 Hadle}' v. Baxendale, 9 Exch. 3-41 ; tliem, he is liable, on a breach of his Liljeugren Furniture & L. Co. v. obligation, for their value there. Ala- Mead, 42 Minn. 420. Compare Wa- bama Iron Works v. Hurley, 86 Ala. ters V. Towers, 8 Exch. 401 ; Fox v. 217. Harding, 7 Cash. 501. 3 Brownell v. Chapman, 51 N. W. 2 Griffin v. Colver, 16 N. Y. 489. Rep. 249 (Iowa). 1592 OONTEACTS FOR PARTICITLAE WORKS. [§ T04-. the date of trial, or not, at the discretion of the jury. This rule, say the court, " renders the ascertainment of the dam- ages easy, certain and final; and. limits them to what would surely be within the contemplation of the parties. Whereas, the annual rental value is more speculative and uncertain; is liable to great fluctuation from causes not within the scope of the contemplation of the parties, nor indeed within the range of their anticijiations; besides, if the damages are apportion- able, the measure of difference in annual rent would result in a multiplicity of suits; or, if not apportionable, then the re- sult must be purely speculative (as to future rents), or the ])laintiff be barred by one recovery from any other." ^ § 704. Same subject. The damages allowable for delay or entire neglect to perform may include any actual loss which happens naturally and in the ordinary course of things, where the circumstances from which tliey so result ma}'^ be supposed to have been mutually contemplated by the parties when they made the contract. Where there is delay in the erection of machinery, or neglect to repair it when found defective. Or it remains idle in consequence of failure to do some other work necessary to its operation, there may be a loss from the idle- ness of dependent machinery and of laborers;^ and in case of the manufacture of part of a machine the expenditure in- curred in making the other parts and the loss of profits.* So, also, such a breach of contract for particular work may result in the destruction of other property, or be detrimental to it, as by failure in building a fence or shelter. Compensation for such losses, when they occur notwithstanding due vigilance and exertion of the injured part}^ to prevent or reduce the injury, may be recovered.* But the contractor is not respon- sible where the injury is suffered, not directly from the delay or refusal to perform, but from some extraordmary or fortu- 1 Amsden v. Dubuque, etc. R. Co., ^ Hydraulic Engineering Co. v. 28 Iowa. 549. McHaffie, 4 Q. B. Div. 670 : Missis- -• Boyle V. Reeder, 1 Ired. 607 : Sa- sippi & R. R Boom Co. v. Prince, 34 Imla Manuf. Co. v. Pennington, 2 Minn. 71 (loss of profits resulting Spear, 735; Colton v. Good, 11 Up. from neglect of statutory duty to Can. Q. B. 153; Florence Machine boom logs). Co. V. Daggett, 135 Mass. 583. See ^Buck v. Rodgers, 39 Ind. 223; Jolinson V. Mattliews, 5 Kan. 118; Haysler v. Owen. 61 Mo. 370. See \Yalker v. Ellis, 1 Sneed, 515. Houser v. Pearce, 13 Kan. 104. § 704.] EMPLOYER AGAINST CONTRACTOE. 1593 itous cause having no relation to his breach of contract, ex- cept tliat it was contemporaneous.^ A ])hiintiff had [49-4] made a contract with defendants to tow two , boat-loads of coal by the lirst rise in the river; they refused to tow them when the rise came; the boats, remaining at their moorings, were struck by a raft set afloat by a sudden rise in the river and sunk without any neglect of the plaintiff. It was held that the defendants were not liable for the loss of the boats and coal. The contract was to tow the boats from Pittsburg to Oil City, and the plaintiff was unable to procure other tows. And it was also held that the jury had been correctly charged that there was a breach of contract which rendered the de- fendants liable for the difference in the value of coal at Pitts- burg and Oil City at the time the boats would have arrived there if the contract had been performed, less the cost of get- ting it there; and that the same rule applied to the boats.' In Calkins v. Baumgardner^ the court, for failure to boat coal according to contract, held that the employer Avas entitled to recover not only the difference in the price of freight, bat also for trouble and expense incurred in procuring other boats, and if all his efforts were ineffectual, and his suj)ply was in- sufficient and much less than it would have been had the con- tract been fulfilled by the defendant, whereby, in consequence of deficient supply and increased price of coal, he sustained loss and injury in his business, such loss would be another ele- ment of damages for which claim might be made; and that if he incurred expenses on account of his expected receipt of this coal under the contract, which he would not otherwise have encountered, these might also be added in making up the amount of damages.* 1 Ashe V. De Rossett, 5 Jones' L. item of alleged damage from defend- 299; Daniels v. Ballantiue, 23 Ohio ant's failure to complete a liighway St. 533; Michigan C. R. Co. v. Bnr- within the stipulated time was a de- rows, 33 Mich. 6; Denny v. New duction the plaintiff was obliged to York C. R. Co., 13 Gray, 481. Com- make in the rent of a house on the pai-e Parmalee v. Wilks. 23 Barb, line; held, conjectural and remote. 539. Another item, for being necessitated 2 McGovern v. Lewis, 56 Pa. St. by the same breach to build a wiu- 231. ter road for his use, was allowed. 3 53 Pa. St. 461. See Walruth v. Whittekiud, 26 Kan. * In Smith v. Smith, 45 Vt. 433, an 482. 1594 CONTRACTS FOR PARTICULAR WORKS. [§ 704. In Pittsburg Coal Co. v. Foster ^ the plaintiff contracted to furnish the defendant, on the 1st of February, an engine to draw coal cars on a track of unusual width; the engine was not delivered until May; the defendant gave evidence tliat an [4-95] engine for such track could not be hired, and that he had to transport his coal by horses; held, that evidence of tiie difference of cost of transportation between horse power and by the engine during the plaintiff's delay was admissible on the question of damages. Agnew, J., said: "The true in(]uiry which arose under these circumstances was whether the dam- ages thus cLaimed were the necessary consequence of the fail- ure to perform the contract in time, and whether they were presumptively, within the view of the plaintiffs at the time of making their contract to finish and deliver the engine in run- ning order on the defendant's track by the 1st of February. The damages ordinaril}^ recoverable are those necessarily fol- lowing the breach which the party guilty of the breach must be presumed to know would be the probable consequence of his failure.- This rule is well expressed by Strong, J., in Adams Express Co, v. Egbert.-^ They must be a proximate consequence of the breach, not merely remote or possible. There is no measure of losses of the latter kind, ' But, on the other hand,' he remarks, 'the loss of profits or advantages which must have resulted from a fulfillment of the contract may be compensated in damages when they are the direct and immediate fruits of the contract, and must therefore have been stipulated for and have been in the contemplation of the parties when it was made.'* . . . That the loss in this case was immediate and the necessary consequence of non- fulfillment is obvious. . . . The direct consequence of not getting it (the engine) was that they were obliged to continue transporting the coal as before by horses and mules until the engine was put there." But the offer to prove that the de- fendants could have mined and hauled one-third more coal with the engine than by the old mode, and to show the profits thence arising, was held too remote, "While it is obvious that F. must have known that the fadure Avould compel the ' 59 Pa. St. 365. * Fassler v. Love, 48 Pa. St. 410-11 : 2 2 Greenlf. Ev., § 253. Fleming v. Beck, id. 312-13; Hadley 3 56 Pa. St. 364. v. Baxeudale, 9 Exch. 341. § T04.] EMPLOYER AGAINST CONTKACTOR. 1595 company to continue in the use of the old mode of transporta- tion, it cannot be fairly inferred that they would know that the possession of the engine would enal)le the com])any to mine more coal and also to haul more. This is a possi- [-4%] ble or remote consequence, but not a necessary one." ^ A 1 In Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. St. BOl, the latter company covenanted to furnish for transportation over the otlier company's railroad all the coal tliey s'lould mine to the amount of one million tons, guarantying that the quantity should not be less than six hundred thousand tons in eight years. The Hazleton Coal Co. cove- nanted to furnish transportation ac- cordingly. The jury were charged, and it was held properly charged : " If the jurj' should find that the defend- ants failed to transport the coal of- fered to them under the contract, the damages would be the loss the plaintiffs suffered on the coal thus offered for transportation. This loss would be the difference between the cost of mining, preparing and trans- porting the coal to Peun Haven, and the price it would have brought there. This is the direct and immediate con- sequence of the defendants' breach of their contract. The defendants had the exclusive control of the trans- portation. The plaintiffs had no other route to Penn Haven to avail them- selves of and to reduce tlie loss to the difference in cost of transportation. The plamtiffs being con lined to this route, and yet denied it by the de- fendants' refusal to transport, the di- rect loss is the difference between the cost of the coal at Penn Haven and the price it would bring there, or in other words the profits. I say Penn Haven, because it is the terminus of the Hazleton road, and of the ship- ment under the contract But tlie jury will remember . . . that the actual shipments did not end there, the coal being carried by mining ar- rangements with otlier roads to mar- kets further off, and there was prob- abl}^ no general market for the sale of coal at Penn Haven. The jury would, therefore, have a right to take the price of the coal in the market of sale, and to deduct from this the cost of transportation from Penn Haven, and the expense of putting the coal in the market, in order to find a fair price at Penn Haven, and from this deduct the cost of mining and prepar- ing the coal and of transporting it to Penn Haven. But besides the coal actually mined and ready for trans- portation, if the defendants refused to furnish sufficient transportation, and thereby compelled the plaintiffs to desist from mining up to tlieir reasonable productive capa?ity, this would be an injury for which dam- ages 11133' be allowed. If, by the de- fendants' breach of their contract and failure to furnish the necessary transportation, the plaintiffs became unable to mine because of the block- ing up of their mines, so that the pro- duction must cease for the want of cars to take it away, the defendants cannot set up the consequences of their own breach as a defense, and resist a recovery, because the coal could not be mined and offered to them. The injury of the plaintiffs wouKl be the loss they suffered on tlie reasonable amount of coal they were, in the course of mining, able, ready and willing to mine, and offer for transportation, had they not been prevented by the defendants' acts 159G CONTRACTS FOR PARTICULAR WORKS. [§ T04. subcontractor who is prevented from performing by the neg- lect of his princiiml to do prehminary work may recover profits on the work he might have performed, but not for the loss of profits because of inability to do other independent f lom doing so. To the extent of this breach of the defendauts in failing to furnisli cars beyond the number they did furnish, if so found by the jury, the plaintiffs would be entitled to a fair and reasonable sum in dam- ages — what the jury can properly find, on all the evidence, as a compen- sation for the reasonable amount of coal they were thus prevented from mining." See Laurent v. Vaughn, 30 Vt. 90 ; Haven v. Wakefield, 39 111. 509; Taylor v, Maguire, 13 Mo. 517. In Prosser v. Jones, 41 Iowa, 674, J. agreed to thresh the grain of P. whenever the latter should require it to be done, but failed to comply with the terms of the agreement. This appears to be the naked statement as to the contract: but it was alleged that when notice was given from time to time to defendants, they promised to do the work, and the plaintiff, at their request, piled up and stacked a large part of iiis grain without binding it; that the rest was standing in shocks in the field and defendants directed that it should be left in that condition, to be threshed out in the shock ; that the [tlaintiff, relying on these promises and directions, did not stack all of his grain ; that he could not procure help to stack it; that he attempted to procure others to thresh it, but could not, for the reason that there was no other machine in the neigh- borhood, and tiiat by reason of these matters plaintiff's wheat was greatly injured, for which he demanded damages. The claim for these spe- cial or consequential damages was stricken out of the petition, because the plaintiff sought to recover on the original contract and not ou the subsequent promises; and because the latter added nothing to his rights upon the contract. Beck, J., said: "The defendants undertook to do the threshing within a time fixed after notice to them. The contract cannot be interpreted so that it may be inferred that damages of this kind were within the contemplation of the parties when it was executed. The law does not hold one liable for all the consequences that may follow the breach of his contract ; if it were so his liability would be without a limit, for it would continue as far as the consequences of iiis act could be traced. But the law wisely limits liability to the direct and immediate effects of the breach of a contract. The losses and expenses set up in the petition are not of this character. They resulted remotely from the fact that defendants failed to thresh the grain, and are not the natural and pi'oximate consequences of the de- fendants' breach of the contract. Such damages are not recoverable." According to the general rules on which consequential damages are allowed, the damages here sought to be recovered were not remote. Tliey were manifestly within the contemplation of the parties. The case of Smeed v. Foord, 1 E. & E. 603 (see ante, % 666), is a case in which such losses were held recov- erable for breach of contract to fur- nish a machine to thresh grain in the field. See Houser v. Pearce, 13 Kan. 104. § 705.] EMPLOYER AGAIXST CONTRACTOR. 151>T work;' nor can there be a recovery for the loss of time of men employed to clo the work, and also for the value of their services. This would be allowintj: double dama Zottman V. San Francisco, 20 Cal. 2 Smith t. Brady, 17 N. Y. 173; 96. Brown v. Weber, 38 id. 187; Adiard 1010 CONTRACTS FOK PAETICULAE W0EK8. [§ Yll. ]^e\v York, so that where a builder has in good faith intended to comply with his contract, and has substantially done so, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on ticcount of the defects.' This is substan- tially the rule of the Minnesota court.- The principle does not extend to a case in which the defect runs through the whole building, or is of such a nature that the object of the parties to have a specified amount of work done in a partic- ular way is defeated.* § 711. Same subject. It is necessary in California, in order that this doctrine of liability upon an implied contract may be applied, not only that there be no restrictions im- posed by law upon the party sought to be charged against makino; in direct terms a similar contract to that which is im- plied, but the party must also be in a situation where he is entirely free to elect whether he will or will not accept the work, and where such election will or may influence the con- duct of the other party with reference to the work itself.* But there is generally a more liberal consideration of the equi- table rights of the contractor where he has in good faith en- deavored to comply with his contract, and his labor has added value to his emploj^er's property, and a benefit necessarily accrues to him. Independently of any election to accept, the honesty of the contractor's efforts towards full performance, the beneficial character of the w^ork, and the impossibility of the employer declining and rejecting it so that the contractor may make it useful to himself, have induced the courts to adopt the rule of awarding compensation to the contractor to the extent that the employer is thus benefited. As early as [516] 1828 this rule was acted upon in Massachusetts, and it has been repeatedly approved in later cases there as well as elsewhere It was thus stated as a question on which there V. Muldoon, 45 111. 193; Bozarth v. v. Pinkney, 81 id. 211; Morton v. Dudley, 44 N. J. L. 304, quoted from Harrison, 53 N. Y. Super. Ct. 305; supra, § 709, n. ; Robinson v. Bullock, Nolan v. Whitney, 88 N. Y. 648. 66 Ala. 548. 2 Leeds v. Little, 42 Minn. 414. 1 Woodward v. Fuller, 80 N. Y. 3 Phillips v. Gallant, 62 N. Y. 264 : 312; Johnson v. De Peyster, 50 id. Woodward v. Fuller, 80 id. 312. 666; Glacius v. Black, id. 145; Phil- ^Zottman v. San Francisco, 20 Cal. lips V. Gallant, 62 id. 264 ; Heckmann 96, § 711.] CONTKAGTOR AGAINST EMPLOYEE. 1617 were many conflicting opinions : " Whether when a party has entered into a special contract to perform work for another, and to furnish materials, and the work is done and the mate- rials furnished, but not in the manner stipulated for in the contract, so that he cannot recover the price agreed by an action on the contract ; yet, nevertheless, the work and ma- terials are of some value and benefit to the other contracting party, he may recover on a quantum meruit for the work and labor done, and on a quantum valebant for the materials. We think the weight of modern authority is in favor of the action, and that, upon the whole, it is conformable to justice that the party who has the possession and enjoyment of the materials and labor of another shall be held to pay for them so as in all events he shall lose nothing by the breach of the contract." ' The doctrine is firmly established in Vermont that where a contract has been substantially, though not strictly, per- formed; where the party failing to perform according to its terms has not been guilty of a voluntary abandonment or wil- ful departure therefrom, has acted in good faith, intending to perform according to the stipulations, and has failed in a strict compliance with its provisions; and when, from the nature of the contract, and of the labor performed, the parties cannot rescind and stand in statu quo, but one of them must derive some benefit from the labor or money of the other, in such cases the party failing to perform strictly may recover of the other as upon a quantum, m^eruit for such sum only as the contract, as performed, has been of real and actual benefit to the other party, estimating such benefit by reference to the contract price of the whole work. The rule is treated as a relaxation from the strictness of the ancient law, [517] standing upon the solid ground of necessity and equity, but to be guarded with care, lest in its application it should tend to impair the obligation and faithful performance of agree- ments. The contractor must have intended in good faith to fulfill the terms of the contract ; its spirit must be faithfully 1 Hayward v. Leonard, 7 Pick. 181 ; Orange, 16 id. 193 ; Morse v. Potter, Smith V. First Cong. Meeting House, 4 id. 292 ; Powell v. Howard, 109 8 id. 178; Bassett v. Sanborn, 9 Cush. Mass. 192; Cullen v. Sears, 112 id. 58 ; Snow v. Ware, 13 Met. 24 ; Cardell 299 ; Atkins v. Barnstable, 97 id. 428 ; V. Bridge, 9 Allen, 355 ; Walker v. Clark v. Russell, 110 id. 133. Vol. 11 — 102 1618 CONTRACTS FOR PARTICULAR WORKS. [§ Til. observed, though the very letter of it fail. A voluntary abandonment or a wilful departure from its stipulations is not allowed. The principle applies only in cases where the contract cannot be rescinded, and where, from its nature, the labor performed under it must inure to the benefit of the employer, and it would be inequitable for him to retain it without making compensation. The party failing to per- form can only recover such a sum as his labor has benefited the other. Had he strictly and literally kept his agreement he would have been entitled to the contract price. Fail- ing in this — 1st, he must deduct from the contract price such sum as wall enable the other party to get the contract completed according to its terms; — or, where that is impos- sible or unreasonable, such sum as wnll fully compensate him for the imperfection in the work, and the insufficiency of the materials, so that he shall in this respect be made as good pecuniarily as if the contract had been strictly performed ; 2d, he must also deduct from the contract price whatever ad- ditional damages his breach may have occasioned to the [518] other.^ The substantial performance which is men- tioned as requisite to bring a case within this equitable prin- • Kelly V. Bradford, 33 Vt 35. See party who must have the benefit of Brackett v. Morse, 23 id. 554 ; Kettle it. This rule is adopted ex necessi- V. Harvey, 21 id. 301 ; Morrison v. tate, to prevent one party gaining Cummings, 26 id. 486 ; Hubbard v. an unconscionable advantage over Belden, 27 id. 645 ; Barker v. Troy & the other. The failure to perform R. R., 27 id. 780 ; Swift v. Harriman, the contract strictly according to its 30 id. 607 ; Eddy v. Clement, 38 id. terms may have been rather the mis- 486. fortune than the fault of the party, In Dyer v. Jones, 8 Vt. 205, Red- but it forever precludes a recovery field, J., said : " Where, from the upon the contract, for a strict per- nature of the contract, it is impossi- formance is a condition precedent to ble to put the parties in statu quo, any right of action. But the laborer as where A. builds a house or wall is entitled to his own labor or its on B.'s land, or, as in the present product, where it is in a shape that case, where labor has been performed he can carry it away. In this case on the plaintiff's land by defendant, he cannot. Hence the rule has been from which the plaintiff will and adopted that the laborer may recover must derive some benefit, and which as on a quantum meruit, or in strict- cannot be transferred to defendant, ness what the labor is worth to the the party really entitled to it, it has defendant, and no more. Otherwise been held that the party performing the party benefited would owe no the labor might recover so much equivalent, and the party laboring only as the labor is worth to the would be without all remedy." < 711.] CONTRACTOE AGAINST EMPLOYER. 1G19 ciple is not that near approach to perfect and complete ful- fiUment of the contract which is necessary to entitle the contractor to recover on it. In one case the contractor was reported to deserve about half price and was allowed to re- cover.' In another he agreed to build a stone wall four and a half feet high, and more than half of it was less ; but it was held that the contract was substantially performed for the purpose of that remedy;^ and in a later case a written con- tract was made to construct a road and bridge for the defend- ant, which specified in detail the length, width and mode of construction of both, and required that the whole work should be done in a thorough, workmanlike manner, and be com- pleted to the satisfaction and acceptance of the defendant's selectmen by a specified date, at which time, in consideration of such completion, the defendants agreed to pay for the same. By this contract the road was to be built sixteen feet wide and upon a line marked out ; as built it varied from that line in some places two or three feet, and in others it was not so wide in the rock cuts as it was stipulated to be. There was a defect in the bridge, in the interlocking of the long timbers or chords; they were not put together with sufficient strength and thoroughness of workmanship to bear the strain that was to come upon them. As to this the court say : " This defect [in the bridge] would not at first be apparent. After the bridge had been used and subjected to severe tests by the drawing of heavy loads of stone over it, the defect began to appear. In the outset a slight additional expense would have probably remedied the insufficiency, but after the arch by use for some six months had become depressed to a level, the expense of restoring it, and making it as safe and durable as the contract required, was much more. It seems to [519] us that the failure in this point, clearly not from design, but rather the misjudgment and misfortune of the plaintiffs, should not subject them to a total loss of their labor. So severe a rule would hardly be consistent with a reasonable regard for the infirmity of human nature, and for that lia- bility to mistake and failure which attends upon the best efforts of wise and skilful men. The defects in the making of 1 Dyer v. Jones, 8 Vt 205. 2 GUman v. Hal], 11 Vt 510. 1620 CONTEACTS FOE PAETICULAE WOEKS. [§ 711. the road seem to have been of still less significance : a diver- gence from the exact line staked out by the selectmen, but not thereby appearing to work any actual inconvenience; insuffi- ciency in the construction of a bank wall; im])erfections in making the road narrower than the contract required in some places, and not bringing it to the exact grade specified. But since the plaintiffs claimed the road as completed, it has been used by the public, and these defects do not seem to have im- paired its use or convenience, or to have occasioned actual damage to any one." ^ The principle enunciated in these cases has been applied in Connecticut in a recent case. It is there held by a majority of the court that, if the result of a builder's labor is a struct- ure adapted to the purpose for which it was designed, and the employer is in the use and enjoyment of it, and it cannot be made to conform to the contract otherwise than by the expenditure of a sum which would deprive the contractor of all compensation for his labor, a deduction may be made from the contract price to the amount of the diminution in value of the building, and not the amount it would cost to make it conform to the contract.^ Principles more or less liberal have been declared in other states in favor of defaulting contract- ors who have performed in part, and from whose work the Employer in fact derived a benefit ; and recoveries permitted on a qiiantuin meruit for a beneficial performance which was not sufficient to support an action upon the contract, either on the ground of voluntary appropriation, or the benefit the employer must necessarily derive from the work as done.* 1 Kelly V. Bradford, 33 Vt. 35. Clayton v. Blake, 4 Ired. 497 ; Elliott 2 Pinches v. Swedish Lutheran v. Wilkinson, 8 Yerg. 411 ; Porter v. Church, 55 Conn. 183. Woods, 3 Humph. 56; Harwood v. ^Veazie v, Bangor, 51 Me. 509; Tappan, 3 Spear, 536; Williams v. Horn V. Batchelder, 41 N. H. 86 ; Porter, 51 Mo. 441 ; Yeats v. Ballen- Bertrand v. Byrd, 5 Ark. 651 ; Jack- tine, 56 id. 530 ; Estep v, Fenton, 66 son V. Jones, 23 id. 158; Newman v. 111. 467; Lighthall v. Caldwell, 56 id. McGregor, 5 Ohio, 349 ; Goldsmith 108 ; Congregational Society v. Hub- V. Hand, 26 Ohio St. 101 ; Gonzales ble, 62 id. 161 ; Blakeslee v. Holt, 42 College V. McHugh, 21 Tex. 256; Conn. 226; ^tna Steel Works v. Carroll v. Welch, 26 Tex. 147 ; Hill- Kossuth Co., 79 Iowa, 40, and earlier yard v. Crabtree, 11 Tex. 264 ; Hous- cases in that court therein cited ; ton, etc. Ey. Co. v. Mitchell, 38 Tex. Phelps v. Beebe, 71 Mich. 554 ; Me- 85 ; Allen v. McKibbin, 5 Mich. 449 ; hurin v. Stone, 37 Ohio St. 49 ; Kane § 712.] CONTRACTOR AGAINST EMPLOYER. 10^1 § 712, Certificate of architect, engineer, etc. In important contracts for the erection of buildings and the construction of roads, it is very common to provide for evidence of their due progress and full performance in the certificate of an archi- tect, engineer or other person. When siich a certificate [520] is a condition precedent to payment it must be produced, and is the exclusive evidence in an action upon the contract;^ un- less its absence is excused by proof of the architect's sickness, death or refusal to act ; ^ and so when made it is conclusive be- tween the parties,' if on its production it is not impeached for fraud or mistake,* or bad faith.^ The mistake which will avoid the effect of the certificate must be one which clearly shows that the person who was authorized to make it was misled, deluded or so far misapprehended the facts that he did not exercise his real judgment." If the person for whom the work is done approves it the necessity for a certificate by the individual designated is superseded.^ And if the contract leaves it optional with the contractor whether there shall be an inspection, or requires it only if he shall so request, he may bring suit without having his work certified.^ The measurements or estimates to be conclusive must be made in accordance with the contract. If required to be made for the purpose of periodical payments during the progress of the work, the meaning is that they shall be accurate and final, not mere approximate or conjectural estimates.^ Where by V. Stone Co., 39 id, 1 ; Gove v. Island N. Y. 143 ; Baltimore & O. E. Co. v. City M. & M. Co., 16 Ore. 93 ; "Wal- Polly, 14 Gratt. 447 ; Board of Edu- worth V. Finnegan, 33 Ark. 751. cation v. Shaw, 15 Kan. 33 ; Haight 1 Smith V. Brady, 17 N. Y. 173; v. Vermont C. R Co., 27 Vt. 700; President, etc. v. Pennsylvania Coal Woodruff v. Hough, 91 U. S. 596. Co., 50 id. 250 ; Smith v. Briggs, 3 See Bledsoe v. Gonzales Co., 31 Tex. Denio, 73; Hennessey v. Farrell, 4 636. Cush. 267. 5 Mack v. Sloteman, 21 Fed. Rep. 2 Nolan V. Whitney, 88 N. Y. 648. 109. 3 Walker v. Orange, 16 Gray, 193 ; 6 McAuley v. Carter, 22 111. 57 ; Mclilahon v. New York & E. R. Co., Mack v. Sloteman, 21 Fed. Rep. 109 ; 20 N. Y. 463 ; Haight v. Vermont C. Boston Waterpower Co. v. Gray, 6 R Co., 27 Vt. 700 ; Koeltz v. Bleck- Met. 131. See Cook Co. v. Harms, man, 46 Mo. 320; Thomas v. Fleury, 108 111. 151. 26 N. Y. 26 ; Merrill v. Gore, 29 Me. ^ Kane v. Stone Co., 39 Ohio St 1. 346. 8 Sherman v. Mayor, 1 N. Y. 316. * Condon v. South Side R. Co., 14 9 Haight v. Vermont C. R Co., 27 Gratt 302 ; Wyckoff v. Meyers, 44 Vt 700. 1622 CONTBACTS FOR PARTICULAE WORKS. [§ 713. the terms of a contract for the repair of a building it is stipu- lated that the articles shall be of the best quality, and the work performed in the best manner, subject to the acceptance or rejection of an architect, all to be done in strict accordance with the plans and specifications, and to be paid for when done completely and accepted, the acceptance by the architect of a different class of work, or of inferior materials, will not bind the owner, and does not relieve the contractor from the agreement to perform according to the plans and specifica- tions. The provision for acceptance is an additional safe- guard against defects not discernible by an unskilful person.^ In New York it has been decided that under a contract for the construction of a railroad by Avhich all measurements are to be made and the amount of labor to be determined by [521] the employer's engineer, whose decision is final, the con- tractor is entitled to notice and an opportunity to be present ; and that he is not concluded by measurements made ex i^arte?- In Illinois it has been held that notice is not necessary unless the contract requires it.^ If a certificate is w^rongfully refused the contractor is entitled to interest for the time he is de- prived of his money.* § 713. Liability of employer for stopping work. Where the contractor's performance is stopped by the fault or direc- tion of the employer, he can recover not only on a quantum meruit for what he has done, but also damages for being pre- vented from completing the work, by bringing his action on the contract.^ Where payment is due at a specified time after the work is finished the damages include interest from the time the work would have been done if the employer had not 1 Glacius V. Black, 50 N. Y. 145. Myers v. York, etc. R. Co., 3 Curt. C. -' McMahon v. New York & E. R. C. 28 ; Clark v. Franklin, 7 Leigh, 1 •, Co., 20 N. Y. 463. Goodrich v. Hubbard, 51 Mich. 62 ; ^ McAuley v. Carter, 22 111. 53. Atkinson v. Morse, 63 id. 276 ; United * Pawley * v. Turnbull, 3 GifF. 70 ; States v. Behan, 110 U. S. 338 ; Cox v. Ranger v. Great Western Ry. Co., 8 McLaughlin, 54 Cal. 605. Ry. Cas. 298, 336. As to what constitutes a terniina- ^ Chicago V. Tilley, 103 U. S. 146; tion of the contract, see Palm v. Ohio Black V. Woodrow, 39 Md. 194; Wil- & M. R. Co., 18 111. 219; Cox v. Me- son V. Bauman, 80 111. 493 ; Whit- Laughlin, 54 Cal. 605 ; Moore v. Tay- field V. Zellnar, 24 Miss. 663 ; Orange, lor, 42 Hun, 45. etc. R. Co. V. Placide, 35 Md. 315 ; § 713.] OONTRACTOK AGAINST EMPLOYEE. 1623 interfered.^ If the action is on a quantwn meritit the measure of damages will be, according to some autliorities, what the work is worth, not necessarily the contract price,- though there are well considered adjudications which hold that the recovery cannot exceed the value of the services at such price.^ In cases where, in the progress of })articular work, jDcriodical measurements or inspections are provided for and made for the purpose of partial payments, the sums thus ascer- tained to bo payable are the measure of the compensation to be recovered for the work so measured or inspected, if the em- ployer afterwards breaks the contract by stopping the work, and they have not been made. The contractor in such an event may recover the percentage stipulated to be reserved until the completion of the undertaking, and it becomes im- mediately payable. When the contract is annulled or re- pudiated by the employer, and the contractor is prevented from going on to a completion of the work, the amount so re- served becomes part of the arrears of the periodical payments, to which he is as much entitled as if he had been permitted to finish the entire contract. It is released from the conditions under which it was retained by the employer's act, and the contractor is entitled to include it as an amount expressly admitted to be due. He also is concluded by these settle- ments, and by reason of their being closed as distinct and separate portions of the contract ; and he cannot open them again to prove and recover the actual value of the work.^ [522] But so far as other work has been performed, which remains unadjusted between the parties, the contractor is at large upon his quantum meruit^ and may prove its actual value. 1 Bassett v. Sanborn, 9 Cush. 58. the balance in two equal instal- 2 Kearney v. Doyle, 23 Mich. 294 ; ments, may recover the reasonable Cox V. "Western P. E. Co., 47 Cal. 87 ; value of his services, tliough it is Clark v. Mayoi*. 4 N. Y. 838 ; Derby more than one-third of the whole T. Johnson, 21 Vt. 17 ; United States sum, if the building is not completed, v. Behan, 110 U. S. 338. Contra, Noyes v. Pugin, 2 Wash. St. In Marquis v. Laretson, 76 Iowa, 653. 23, it is held that an architect who ^ Noyes v. Pugin, 2 Wash. St. 653 ; prepares plans and specifications and Doolittle v. McCuUough, 12 Ohio St agrees to audft and settle accounts 300; Western v. Shai'p, 14 B. Mon. and to whom one-third of the contract 177. jTiice for his services is to be paid * Chicago v. Sexton, 115 IlL 230; "when the plans, etc., are ready, and Dobbins v. Higgins, 78 id. 440. 1624 CONTEACTS FOR PAKTICULAK WORKS. [§'^13. Here the rates of compensation stipulated by the contract are no longer binding upon the parties. They constitute but an element in the proof proper to go to the jury as jyrim.a facie evidence of value, leaving it still open to the parties to show that the average standard of prices agreed on ought to be more or less according to the difficulties and value of this particular portion of the work in comparison with other portions.' Permitting the work to be stopped by an injunction at the suit of a third person,^ as well as by omission to perform some precedent or concurrent condition, is such a prevention by the employer as gives a right to damages for loss of the profits on that part of the contract which the contractor is thus pre- vented from executing.* The profits which are permitted to be recovered are those which are the direct and immediate fruits of the contract. These are part and parcel of it — enter- ing into and constituting a portion of its very elements, some- thing stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipu- lation. They are presumed to have been taken into consider- ation, and deliberated upon before the contract was made and formed, perhaps, the only inducement to it.* In an action u])on the contract against the employer for preventing com- plete performance, the contractor is entitled to recover the contract price for the work actually done, and, in the absence [523] of other damages,^ the difference between that price and what it would cost to perform the contract as to the residue.^ 1 Rodemer V. Hazlehiust, 9 Gill, 288. Thompson v. Jackson, 14 B. Mon. 2Doolittle V. Nash. 48 Vt. 441; 114; Smith v. O'Donnell, 8 Lea, 468; Whitfield V. Zellnar, 24 Miss. 664. United States v. Behan, 110 U. S. 338 ; 3 Grand Rapids, etc. R. Co. v. Van O'Connor v. Smith (Tex.), 19 S. W. Dnsen, 29 Mich. 431 ; Thorp v. Ross, Rep. 168. 4 Keyes, 546 ; Kugler v. Wiseman, 20 ^ An action for money paid will lie Ohio, 861 ; Allamon v. Mayor, 43 upon a special contract by which the Barb. 83; Christian County v. Over- plaintiffs, at the request of the de- holt, 18 111. 223 ; Palm v. Ohio & M. fendants, detained their laborers and R. Co., 18 111. 217 ; Goodrich v. Hub- paid them wages while waiting for bard, 51 Mich. 62 ; Atkinson v. Morse, material which the defendants were 63 id. 276 : McMaster v. State, 108 to furnish. Chesapeake & O. C. Co. N. Y. 542 ; Danolds v. State, 89 id. 36 ; v. Knapp, 9 Pet. 541. Sullivan v. McMillan, 26 Fla. 543. « Danforth v. Tennessee & C. R ^Masterton v. Mayor, 7 Hill, 61; Co., 98 Ala. 614; Philadelphia, etc. R Lawrence v. Ward well, 6 Barb. 428; Co. v. Howard, 13 How. (U. S.) 307; § T13.] CONTRACTOR AGAINST EMPLOYER. 102; The same rule applies where work has not been begun, except that loss of time is not an element of dama^e.^ In such a Heine v. Meyer, 61 N. Y. 171 ; Jones V. Judd, 4 id. 412 ; Preble v. Bottom, 37 Vt. 249; Masterton t. Mayor. 7 Hill, 61 ; New York & H. R. Co. v. Story, 6 Barb. 419 ; S. C, 6 N. Y. 85 ; Clark V. Mayor, 4 id. 338; Cunning- ham V. Dorsey, 6 Cal. 19 ; Burrell v. New York & S. S. Co., 14 Mich. 34 ; George v. Cahawba, etc. R. Co., 8 Ala. 234; Morrison v. Galloway, 2 Harr. & J. 461 ; Friedlander v. Pugh, 43 Miss. Ill; Collyer v. Moulton, 9 R I. 90 ; United States v. Speed, 8 Wall. 77; Allen v. Thrall, 36 Yt. 711 ; Derby v. Johnson, 21 Vt. 17 ; Thorp V. Ross, 4 Keyes, 546 ; Hale v. Trout, 35 Cal. 229 ; Morrison v. Lovejoy, 6 Minn. 319; Durkee v. Mott, 8 Barb. 423 ; Cincinnati, etc. Ry. Co. v. Lutes, 112 Ind. 276; Rayburn v. Corastock, 80 Mich. 448 ; Woodworth v. McLean, 97 Mo. 325 ; Hinckley v. Pittsburgh Steel Co., 124 U. S. 264 ; Glaspie v. Glassow, 28 Minn. 158; Pevey v. Schulenberg & B. L. Co., 33 id. 45 ; Crescent Manuf. Co. v. Nelson Manuf. Co., 100 Mo. 325 ; Nilson v. Morse, 52 Wis. 240 ; Nash v. Hoxie, 59 id. 384 ; Canieron v. White, 74 id. 425 ; Boyd V. Meighan, 48 N. J. L. 404 ; Smith v. O'Donnell, 8 Lea, 468; Porter v. Burkett, 65 Texas, 383; Hambly v. Delaware, etc. R. Co., 21 Fed. Rep. 541; Gibney t. Turner, 52 Ark. 117 (the cost of the work is measured by the market value of the materials on hand for use, the amount that would have been paid for other material and labor, and what the contractor might have gained by saving his time in not completing the contract) ; Watson V. Gray's Harbor B. Co., 3 Wash. St. 283, quoting the text. In an action against a railroad company to recover damages on ac- count of their preventing the per- formance by the plaintiff of a con- tract for the construction of their roadway, the difference between the amount of the principal contract and of the subcontract entered into by the plaintiff with other persons for the performance of the same work does not constitute the measure of damages. Story v. New York & H. R Co., 6 N. Y. 85 ; Masterton v. Mayor, 7 Hill, 61. The contract price may be recov- ered if there is no certain mode of ascertaining the damages to be less. Baldwin v. Bennett, 4 Cal. 392 ; Dan- ley V. Williams, 16 Wis. 581 ; Sprague V. Morgan, 7 Ala. 952; Manuel v. Campbell, 3 Ark. 324; Ashcraft v. Allen, 4 Ired. 98; Heyn v. Philips, 37 Cal. 529 ; Lake Shore, etc. Ry. Co. V. Richards, 126 111. 448. See Thorp V. Ross, 4 Keyes, 546. On the breach of a contract to give all the ferrying required by a rail- road company at a certain point, if the party bound to perform has kept his contract to keep sufficient boats and appliances to do the work, the profits on all the business diverted from the ferry company constitute the measure of damages. Wiggins Ferry Co. v. Chicago & A. R Co., 73 Mo. 389. If a delivery is made of an article manvifactured to order, and after- wards the contractor is prevented from performing, he can recover the full value of his labor and materials, although the employer did not use all of the latter. EUithorpe Air-brake Co. V. Sire, 41 Fed. Rep. 662. If the article has been manufact- ured and remains at the factory be- cause the contractee will not receive it, the damages, in the absence of proof of loss of profits, are the cost of storage and insurance. Id. 1 Singleton v. Wilson, 85 Tenn. 344. 1G2G OONTKACTS FOli rAKTICULAK WOKKS. [§ 713. case work performed as a preliminary necessity to the execu- tion of the contract may be recovered for to the extent of its reasonable cost, although there could not have been recovery for it if there had been a performance. If the contractor has derived any benefit from such preparatory Avork its value must be deducted from the cost thereof.^ This right of recov- ery is distinct from the right to recover profits ; when these are recovered the former is included.^ Where the general rule applies and the work entered upon has been stopped by the employer, if the contractor subsequent to his employment makes a contract with a third party for materials necessary to be used in executing the work, and prior to the abandonment of the contract such party has bestowed labor upon them, the contractor may recover for their loss, and the profits which would have been made on them.* The right to recover the profits which would have resulted from a full performance is subject to variation where the execution of the contract will require a large number of acts and a series of years. In such a case accidents and contingencies may intervene to vary re- sults ; capital, machinery and implements must be supplied and kept. In estimating damages all these matters ought to be considered; and in calculating profits allowance should be made for the labor, skill, supervision and care of the contractor, and his time. It cannot be assumed that he and his machinery and implements will remain idle for years after the contract is terminated. The value of these advantages must be de- ducted.^ In some cases the rule which makes it the duty of one who has been prevented from rendering personal service 1 Brent v. Parker, 23 Fla. 200; Cls. 17; Danforth v. Tennessee & Glaspie v. Glassow, 28 Minn. 158 ; C. R. Co., 93 Ala. 614 United States v. Behan, 110 U. S. In a recent case the contract was 338; Mandia v. McMahon, 17 Ont. for the erection of a bridge. The App. 34; O'Connell v. Main, etc. right to recover for the profits which Hotel Co., 90 Cal. 515. See Hender- would have been made was consid- son Bridge Co. v. O'Connor, 88 Kj'. ei-ed. The court (Blodgett, J.) as- 303. sumed that there should be a reason- 2 United States V. Behan, 110 U. S. able deduction for a release from 338. care, trouble, risk and responsibility 3 Smith V. Flanders, 129 Mass. 322. attending a full execution of the 4 McMaster v. State, 108 N. Y. 542, contract, and deducted thirty per 556 ; United States v. Speed, 8 Wall. cent. It also I'efused to allow for 77 ; Moore v. United States, 17 Ct. of the loss of material purchased, there § 71 J:,] CONTKACTOE AGAINST EMPLOYER. 10:27 to obtain other employment is applied to contractors who un- dertake to produce a stipulated result, and it is held that rea- sonable diligence must be exercised to that end; the burden of proving that it has or might have been obtained being upon the defendant.^ The weight of authority, however, is opposed to the application of that rule to contractors,^ except in cases in which performance of the contract would require an un- usual period of time.'' § 714. Same subject. Where a party was prevented from completing his contract in proper season by the neglect of the employer to furnish the necessary material, and for that reason was entitled to abandon it, but did not ; and afterwards, on being furnished with the material, completed the contract, it Avas presumed that he proceeded under it ; that it therefore furnished the measure of compensation; and he could not re- cover extra pa}'' by showing that the work was worth more on account of the state of the weather, or because the ground was frozen.* If any damages from that cause could be ascer- tained with the requisite certainty, they were recoverable on account of the employer's breach.'^ The Indiana court assents to the doctrine that a contractor who proceeds without ex- plicit notice or a new agreement to the completion of work specifically contracted for will be presumed to have done so under the special contract ; but where the execution of such contract is dependent upon something essential, which is to be performed by the employer, and his default results in dam- age to the contractor, the former is liable therefor, although the latter may not abandon the contract. While the contract being no evidence to show that it Co., 100 Mo. 325; Wolf v. Stude- could not be adapted to other bridges ; baker, 65 Pa. St. 459 ; Watson v. and also for patterns and expenses Gray's Harbor B. Co., 28 Pac. Rep. in submitting plans and specifica- 527 ; 3 Wash. St. 283. Compare Sav- tions, telegraphing, traveling ex- age v. Drs. K. & K. Medical & S. peuses, Ccc, incurred in obtaining the Ass'n, 59 Mich. 400. contract. Insley v. Shepard, 31 Fed. 3 Cases cited in note 4, p. 1626. Rep. 869. * Western U. R. Co. v. Smith, 75 1 Cincinnati, etc. Ry. Co. v. Lutes, 111. 496 ; Bush v. Chapman, 2 Greene 112 Ind. 276; Porter v. Burkett, 65 (Iowa), 549; Shaw v. Turnpike, 3 Pa. Texas. 383. 445. Compare the Illinois case with 2 Nelson v. Morse, 52 Wis. 240, 255 ; Tobey v. Price, 75 111. 645. Cameron v. White, 74 id. 425, 432 ; 5 Western U. R. Co. v. Smith, supra. Crescent Manuf. Co. v. Nelson Manuf. 1G2S CONTKACTS FOR PAKTIGULAR WORKS. [^ 7H is to be regarded as furnishing the exclusive measure of com- pensation for the work done, the actual damages which result from the default of the employer should not fall on the con- tractor. If he in good faith enters upon the performance of the contract and incurs expense, the employer having notice of that fact, and either by an order or negligently failing to perform an essential part devolving upon him suspends the execution of the contract, upon the resumption and comple- tion of the work it will be implied that all loss necessarily occasioned by such suspension shall fall upon him. The con- tractor may not acquiesce in the suspension and upon the com- pletion of the work claim the contract price and damages for that which may have occurred with his acquiescence. If, how- ever, notice be given of his readiness and willingness to prose- cute the work to completion within the time agreed upon, and that its suspension will involve him in loss, we can discover no principle upon which it can be held that the loss must fall upon the contractor in case of a voluntary resumption of the contract.^ In the case before the court the contractor recov- ered for damage to tools and interest for the period of delay on all moneys invested in materials which he furnished in pur- suance of the contract and in the cost of the labor used in fur- nishing them. In a New York case - it was held that under a [524] right reserved by the emploj'^er to make alterations he was not entitled to stop the work. The court approved the action of the referee in allowing more than the contract price for the part done, it appearing that it was worth. less than that price to do what remained. But on appeal it was held that under such reservation to make alterations in the form or di- mensions of the work the contractor is bound by any altera- tion made in pursuance of the agreement ; that he could re- cover no more than the contract price for the work done before the alteration, although it was more expensive than the portion dispensed with thereby.^ Where the subcontractor 1 Per Mitchell, J., in Louisville & Wall. 77 ; Koon v. Greenman, 7 N. R Co. V. Hollerbach, 105 Ind. 137, Wend. 121 ; Merrill v. Ilhaca, etc R. 144, referring to Tobey v. Price, 75 Co., 16 id. 586 ; Railroad Co. v. How- Ill. 645; Figh v. United States, 8 Ct. ard, 13 How. 307, 344. of Cls. 319 ; Harvey v. United States, 2 Clark v. Mayor, 8 Barb. 288. id. 501 ; United States v. Behan, 110 3s. c., 4 N. Y. 338. U. S. 338 ; United States v. Speed, 8 § '^14.] COXTKACTOB AGAINST EMPLOYEE. 1629 upon a public work was stopped by a law of a general and public character, it was held that no damages could be recov- ered in respect to the unfinished part ; that he was entitled to recover the contract price for the part performed, and that this was not subject to reduction by proof that that p^^rt was less expensive than the part which remained to be done when the work was interrupted, although the contract price was uniform for the whole.^ 1 Jones V. Judd, 4 N. Y. 412. See Grand Rapids, etc. R. Co. v. Van Dusen, 29 Mich. 431. In Rittenhouse v. Mayor, 25 Md. 336, a contract had been made by the municipal corporation with the plaintiff for the material and mason work for an almshouse. After the buildings had been commenced and some work done an ordinance was passed reciting that the site was un- healthy and unsuitable, and declar- ing that the public good required the building to be discontinued and the site abandoned, and that another more suitable be selected. It repealed the ordinance under which the con- tract had been made, and directed the committee having charge of the work to settle with the contractor as far as it could be done on fair and equitable terms. No settlement hav- ing been made, the contractor brought suit, and claimed in his bill of particulars : 1. His actual outlays in the preliminary steps for execut- ing the contract. 2. An indemnity against his liabilities to those with whom he had contracted to enable him to fulfill his contract with the city. 3. Damages equivalent to the profits which he would have realized on the contract if he had been per- mitted to execute it. It was held that the contractor was not entitled to claim any damages on account of profits he might have realized under the contract if he had been permitted to go on with the work. And evi- dence offered to support the third item was properly rejected, as well as the evidence to support the sec- ond item for indemnity against loss on account of subsidiary contracts, the evidence as to the latter being vague, and there being no proof of- fered of any damage actually in- curred. But he was entitled to recover on the first item any dam- ages which he had actually sustained by reason of the contract while the same was operative and in force. There was proof offered that the con- tractor had been for fifteen years en- gaged in the manufacture of brick near the city of Baltimore, and that at the date of the contract he had on hand sixty thousand brick of his own manufacture, which were of ready sale in the market, but which he retained in hand in consequence of the contract, and to enable him to supply brick necessary for the work. He was allowed to recover damages in respect to decrease in the market value of the brick before notice for the abandonment of the work. In Kugler v. Wiseman, 20 Ohio, 361, the contractor undertook to do certain work by the 1st of August. After the work had been commenced the employer requested a suspension, which took place. The work was re- sumed a month later at the employ- er's request, and upon his promise to pay, over and above the contract price, the additional cost of the work in consequenge of any increase in i<];30 CONTKACTS FOR I'AKTICULAR WOEKS. [§ TU. [525] In ascertaining what it would cost to complete the contract after the employer has stopped the work, with a view to measuring the damages by the difference between such cost and the contract price, it is competent to prove any cir- cumstance which should diminish such cost. Thus, where the work was of such character that it had to be done out of doors, and would hence be retarded and made more expensive by bad weather, it was held competent to show that the sea- son after the employer had stopped the work, and when, other- wise, the contractor would have done it, was pleasant and exceptionally favorable.^ In Georgia the rule of computing the damages on the basis of profits that the contractor could have made if he had been permitted to finish his contract is not adopted, unless, perhaps, where the case is one which ad- raits of very precise and certain proof of what such profits would be.^ the price of wages and materials. The work being finished in January following, suit was bi-ought, not on the contract, but for work and labor. It was held that the contract might be put in evidence by the plaintiff. It was also held that in order to ar- rive at the increased cost of the work in consequence of an advance in the price of labor and material, it was proper to inquire of a witness gener- ally the difference in the price thereof in the spring and summer and the fall and winter months, al- though the question was not limited to the particular year in which the work was done. Inquiry may be made as to the difference in the price generally, and then ascertain whether the difference in this particular year varied from others. 1 Burrell v. New York & S. S. Co., 14 Mich. 34. But see Masterton v. Mayor, 7 Hill, 61. - Vischer v. Railroad Co., 34 Ga. 536. In this case the question was what is the measure of damages against a railroad company for fraud- ulently hindering a contractor from completing its road. Walker, J., said : " Much was said as to the proper measure of damages in the case; and it is claimed, especially, that the court erred in ruling out Mr. Hall's testimony, introduced for the purpose of showing the amount of damages complainants sustained, or rather what amount of profits they would have made if they had completed the work accoi'ding to the stipulations of the alleged contract. The jury having found the facts against the complainants renders it unnecessaiy to decide what would have been the proper measure of damages in case the finding had been otherwise. Mr. Hall, from a profile of the projected road, makes a cal- culation of the quantity of work to be done, an approximation rather, and says : ' Under ordinary favora- ble circumstances some profit should be made on each of the items of work at the price proposed.' He enumer- ates various circumstances which it would be necessary to include ' in order to estimate accurately the cost ; ' and adds, ' then, the weather § n4.] CONTK ACTOR AGAINST EMPLOYER. 1G31 If the employment of a contractor is to construct arti- [520] cles out of his own materials, and he is prevented b}^ the em- ployer from proceeding in the execution of his contract, he cannot recover under the common count for work and labor done and material furnished or unfinished articles not deliv- ered, the property in which never vested in the em- [527] plover.' The defendant may show in defense that the per- of the loss actually sustained by the hire of hands, the interest on the in- vestment, and solid data like these, as the criteria of loss by the deten- tion of the machinery.' P. 420. We are aware that this case is not, in its facts, like the one at bar, but how much alike in the uncertainty of the evidence by which the amount of damages is to be ascertained. Again, in the Water Lot Co. v. Van Leonard, 30 Ga. 560, this court decides : ' That the measure of damages was the in- terest on the investment for the time the machinery was not employed for want of water,' caused by the failure of the other party to perform his contract; and affirm the case in the 19th Ga. We are aware that some cases hold that the proper measure of damages is the difference between the price to be paid and the actual cost of performing the contract. There may be cases where this may be the correct rule, but the» cases al- ready cited show the strong tendency of this court to discard ' speculative profits' and be controlled by 'solid data'' in estimating the amount of damages to which a party may be entitled for a breach of contract. We do not intend to be understood as laying down a rule for ascertain- ing the amount of damages a party, for the breach of contract of this kind, would be entitled to. It will be time enough to do so when the case before us shall make it neces- would greatly affect the result, so that no exact calculation could be made until the job is finished.' 'A good deal would depend on whether the hands would be able to work ; much would depend on whether they \teve well or sick, or run away. If they were sick or ran aw-ay most of the time, the contractor would make nothing.' ' Railroad contractors, when experienced, do get frequently mistaken as to underground work, and they sometimes find it for their interest to abandon a contract, and do sometimes abandon them.' The proposition of complainants is to as- certain by this sort of testimony how much money defendant shall pay them. In Coweta Falls M. Co, v. Rogers, 19 Ga, 417, this court decides that 'prospective profits which are speculative and conjectural are usu- ally too remote and uncertain to enter into the estimate of damages to be allowed for breach of contract.' In delivering the opinion in this case Lumpkin, J., says: 'We are inclined to think that this whole testimony as to the gains which the plaintiff would have derived from this contract, had he not been prevented from realizing them by the delinquency of the de- fendant, should have been rejected as too contingent and speculative, and too dependent upon the fluctua- tion of the markets, the chances of business, and other casualties, to en- ter into a safe or reasonable estimate of damages. And in lieu thereof a calculation should have been made sary." 1 Allen V. Thrall, 36 Vt. 711. 1G32 CONTKACTS FOK PAKTICULAK WORKS. [§ 715. formance would cost more than the contract price.' So the contractor ma}^ enhance the damages by showing that ex- ])enses have been incurred in preparations for performance.^ A part performance sliould be considered with reference to the scope of the entire contract when the employer in his own wrong or in the exercise of a right reserved puts an end to the contract. Thus, the plaintiffs agreed in August to deliver to the defendant as ordered, monthly, throughout a year, logs averaging a certain diameter, he to have the option to deter- mine the contract, and then to pay them the cost of the logs cut and ready for delivery or afloat, and which they have on hand in view of their contract; the defendant terminated the contract in October, the plaintiffs having on hand some logs afloat, and others cut in the woods, but not removed ; these Avere measured and found to be nearly all of less than the specified average diameter; but it was held that in the absence of evidence that they had acted unreasonably or in bad faith, he was liable for the cost of all the logs, and not merely of such as would average of the specified diameter.^ Section 3. SALVAGE. § 715. Eequisites of salvage service. A salvage claim is in the nature of a quantxini meruit', but certain facts must exist to give it validity : First, a marine peril to the property to be rescued; second, voluntary service not owed to the property as a matter of duty; third, success in saving the property, or some portion of it, from the impending peril."* These requisites distinguish salvage service from that which 1 Durkee v. Mott, 8 Barb. 423. ^ The Conneraara. 108 U. S. 352 ; 2 Id. ; United States v. Speed, 8 Murphy v. The Suh'ote, 5 Fed. Rep. Wall. 77; Thompson v. Jackson, 11 99; The Clarita, 23 Wall. 1. B. Mon. 114. The peril need not be great. The The recovery of such expenses Leipsic, 5 Fed. Rep. 108. A situation must not exceed disbursements made of actual apprehension, though not necessary by the contract. St. Louis, of real danger, is sufficient. Ply- etc. Ry. Co. v. Beard (Ark.), 19 S. W. mouth Rock, 9 id, 413. A raft of tim- Rep. 923. ber is subject to the admiralty ju- 3 Wolf V. Boston Veneer Box Co., risdiction on a claim for salvage. 109 Mass. 68. Muntz v. A Raft of Timber, 15 id. 555. § 716.] SALVAGE. 1633 is compensated on the quantum meruit at common law. Hence, a right to compensation may exist for service in saving a vessel, though it does not constitute a claim for salva^^e. Thus, where valuable services were rendered upon the employ- ment of the owners, to a vessel in imminent peril, by one having great skill in rescuing wrecked vessels and unusual means adapted to such exigencies, but under circumstances which prevented him from being compensated on the princi- ples of salvage, it was held that he was entitled to recover a very liberal allowance for his services, to be measured as well by the extent of his skill and means as by the time and num- ber of men employed. • So compensation for meritorious serv- ices in relieving a vessel aground, or otherwise in distress or danger, or even in attempting to do so, may be allowed upon a bill for salvage, although a case for salvage compensation is not made out.^ The later cases favor the extension of the ride of awarding compensation upon salvage principles so as to include towage when it is rendered to a disabled vessel, not with a view merely to expedite her passage from one place of safety to another, but with the obvious purpose of relief from some circumstances of danger, either present or reasonably to be apprehended. Cases of corporation salvors, at one time held not to be within the rule,^ are not an exception.* § 716. A specific amount may be fixed by agreement. An agreement for a specific sum dependent upon success does not alter the nature of the service, but only furnishes a rule of compensation. Nor will such an agreement be set aside and a higher rate allowed because it proves to be a hard one for the salvor.^ And a person hired to assist with [529] knowledge that his employer is operating under such a con- tract is also limited in the amount of his recovery by the con- tract price; and the fact that he is uninformed as to the terms of the contract will not subject the property or the 1 Sturgis V. Law, 3 Sandf. 451. The J. F. Farlan, id. 206. See S. C, 2 The Sailor's Bride, 1 Brown's 8 Blatchf. 207. Adin. 68 ; The WilHams, id. 208 ; The * Per Brown, J., in The Plymouth Clarion, id. 74 ; George v. The Arctic, Rock, 9 Fed. Rep. 413 ; The Camau- Bee, 232 ; The J. F. Farlan, 8 Blatchf. che, 8 Wall. 448 ; The Birdie, 7 207. Blatch. 238. STheStratton Audley, 3 Ben. 241; 5 The Silver Spray's Boilers, 1 Brown, 349. Vol. 11 — 103 1G34: CONTKACTS FOR PARTICULAR WORKS. [§ 71G. owners to an additional liability.^ Contracts made for ex- orbitant compensation when the property is in peril will be closely scrutinized and not upheld.^ Where the salvor, how- ever, has not taken advantage of his power to make an un- reasonable bargain, courts of admiralty will enforce contracts made for salvage service.' To defeat a salvage suit on the ground of a special contract, nothing short of a contract to pay a given sum for the services to be rendered, or a binding agreement to pay at all events, whether successful or unsuccess- ful in the enterprise, will have that effect.* If supervening 1 Id. ; The Marquette, id. 364. 2 The Leipsic, 5 Fed. Eep. 108 ; The C. & C. Brooks, 17 id. 548; Scott v. Four Hundred Tons of Coal, 39 id. 285; The Tornado, 109 U. S. 110; Two Hundred Tons of Coal, 7 Ben. 343; The A. D. Patchin, 1 Blatch. 414 ; Williams v. The Jenny Lind. 1 Newb. 443 ; Cowell v. The Brothers, Bee, 136 ; Schultz v. The Nancy, id. 139. See Post v. Jones, 19 How, 150. 3 The J. G. Paint, 1 Ben. 545. 4 The Caniauche, 8 Wall. 448. In this case the defense offered was that the services rendered were not salvage services, because, as alleged, they were rendered under an agree- ment for a fixed sum. Clifford, J., said, referring to it : " Three answers may be given to that proposition, each of which is sufficient to show that it cannot be sustained. (1) No such defense was set up in the an- swer. (2) Nothing was ever paid or tendered to the libelants for that part of their claim now in contro- versy, and it is well settled law that an agreement of the kind suggested is no defense to a meritorious claim for salvage, unless it is set up in the answer with an averment of tender or payment. Such an agreement does not alter the character of the service rendered; so that if it was in fact salvage service, it is none the less so because the compensation to be received is regulated by the terms of an agreement between the master of the ship or the owners of the salved property. The EmuUis, 1 Sumn. 207. Defenses in salvage suits as well as in other suits in ad- miralty must be set up in the an- swer, and if not, and the services proved were salvage services, the libelants must prevail. The Boston, 1 Sumn. 328. Agreements of the kind suggested ought certainly to be set up in the answer, as it is not every agreement which will have the effect to diminish a claim for salvage compensation. On the contrary, the rule is that nothing short of a con- tract to pay a given sum for the serv- ices to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for sal- vage. The Versailles, 1 Curt. 353; The Lushington, 7 Notes of Cases, 361; The Centurion, 3 Ware, 490; The Foster, Abb. Adm. 222; The Whitaker, 1 Sprague, 282 ; The Brig Susan, id. 503 ; Parsons on Shipping, 275 ; The Phantom, L. R 1 Adm. & Ecc. 58 ; The White Star, id. 68 ; The Saratoga, 1 Lush. 321 ; MacLachlin on Shipping, 531 ; Coffin v. The John Shaw, 1 Cliff. 230. (3) But if the agreement liad been set up in the answer, it would constitute no de- § 717.] SALVAGE. 1635 circumstances make the performance of a salvage contract im- possible and the vessel in distress is saved from peril by a dif- ferent service from that contracted for — as vvliere she is towed to C. instead of to G., as the contract provided — the court may award compensation as though no agreement there- for had been made.^ ■ Parties may agree on the amount of salvage compen- [530] sation or on the principles on which it shall be adjusted, and such agreements, if fairly made, and no advantage be taken of ignorance or distress, are readily upheld by the courts.^ In such cases the vessel-owners will be bound for the sum named without any deduction in respect of the salvage of the cargo.' § 717. Nature of peril, and duty of claimant. The vessel must be in imminent peril, though it is not necessary that but for the service for which salvage is claimed it would have been lost.** The peril may be from shipwreck, fire, pirates or enemies;^ but it must not originate in the negligence or fault of the salvors.^ They cannot force themselves upon a vessel in distress against the will of the master;^ nor claim against the cargo if the owner is accessible, when there is an attempt between the claimant and the master to throw the whole expense upon the cargo ; ^ nor found a claim for salvage fense, as by the terms of the instni- 3 The Prinz Heinrich, 13 Prob. Div- ment the libelants were not to re- 31, ceive any compensation whatever, or * The Connemara, 108 U. S. 352 ; be entitled to any lien upon the The Delphos, 1 Newb. 413; The property, unless the materials and Charles, id. 329 ; Talbot v. Seeman, 1 machinery were substantially saved, Cranch, 1, 43. so that it is clear that the compensa- ^ i(j. ; L^e v. The Alexander, 2 tion was not to be paid at all events." Paine, 466 ; Davison v. Sealskins, id. See Bowley v. Goddard, 1 Low. 154. 324. iThe Westbourne, 14 Prob. Div. 6 The Clarita and The Clara, 23 132. Wall. 1 ; The Copella, L. R. 1 Adm. 2 The Prinz Heinrich, 13 Prob. Div. & Ecc. 356 ; The Queen, 2 id. 53 ; The m ; Harley v. Four Hundred Sixty- Samuel H. Crawford, 6 Fed. Rep. seven Bars of R. Iron, 1 Sawyer, 1 ; 906. The Independence, 2 Curt. 357 ; Tlie ' New Harbor Protection Co. v. The Emulus, 1 Sumn. 207 ; Bearse v. Pigs Charles P. Chouteau, 5 Fed. Rep. 463 ; of Copper, 1 Story, 314 ; The True The Cleone, 6 id. 517 ; The Susan, 1 Blue, 2 W. Rob. 176 ; The Henry, 2 Sprague, 503. See Anna Leland, 1 Eng. L. & Eq. 564. See Gould v. Low. 310. United States, 1 Ct. of Cls. 183 ; 8 The C. M. Titus, 11 Fed. Rep. 442. Bondies v. Sherwood, 22 How. 314 1G36 CONTRACTS FOR PARTICULAR WORKS. [§T1' upon acts which are in themselves tortious or unlawful.^ Sea- men belonging to the ship in peril cannot, as a general rule, claim salvage compensation; not only because it is their duty to save both ship and cargo, if it is in their power, but because it would be unwise to tempt them to let the ship and cargo get into a position of danger in order that by extreme exer- tion they might claim such compensation.^ Pilots also are excluded from such compensation for any exertions or services rendered while acting within the line of their duty:^ but they may become salvors like other persons if they perform ex- traordinary services outside of the line of their duty.^ So may 1 Talbot V. Seeraan, 1 Cranch, 1 ; Davison v. Sealskins, 2 Paine, 324. •-'The Clarita and The Clara, 23 Wall. 1 ; Miller v. Kelly, Abb. Adm. 564 ; Hobart v. Drogan, 10 Pet. 108 ; Studley v. Baker, 2 Low. 205 ; Coffin V. Brig Akbar, 5 Fed. Rep. 456. 3 Studley v. Baker, 2 Low. 205; Hope V. The Dido, 2 Paine, 243. ^ Bean v. The Grace Brown, 2 Hughes, 112; Montgomery v. The T. P. Leathers, 1 Newb. 421 ; The Wave V. Hyer, 2 Paine, 131. The pilot act of Oregon (S. L. 1868, p. 23) provides that the steam tugs and pilot boats at the mouth of the Columbia river shall tow and pilot vessels upon the pilot grounds be- tween Astoria and the open sea out- side of the bar, " in all weather " when the bar "can be crossed by first-class steamers and sail vessels," for a uniform compensation, in pro- portion to the draft of the vessel, called pilot fees. Under this act it has been held that so long as it is reasonably safe to take a vessel in tow, anywhere on the pilot gi'ounds, the tug is bound to do so, and is not entitled to compensation therefor as a salvor ; but that she is not bound to incur extraordinary risk to tow a vessel or to rescue it from danger of wreck ; and when she does so, she is entitled to compensation therefor as a salvor. Roflf v. Wass, 2 Sawyer, 389. In Hobart v. Drogan, 10 Pet. 108, Judge Story said : " A pilot, as such, is not disabled in virtue of his office from becoming a salvor. On the contrary, whenever he perforins salvage services beyond the line of his appropriate duties, or under cir- cumstances to which those duties do not attach, he stands in the same re- lation to the property as any other salvor ; that is, with a title to com- pensation to the extent of the merit of his services, viewed in the light of a liberal public policy. . . . Ex- traordinary events may occur in which (the seamen's) connection with the ship may be dissolved de facto, or by operation of law, or they may exceed their proper duty, in which case they may be permitted to claim as salvors. Such was the case of the seamen left on board in the case of The Blaireau, 2 Cranch, 268 ; and such was the exception al- luded to in the case of The Neptune, 1 Hagg. Adm. 237. In this last case Lord Stowell, after saying that the crew of a ship cannot be considered as salvors, gave what he deemed a definition of a salvor. 'What (said he) is a salvor? A person who, with- out any particular relation to a ship in distress, proffers useful services, and gives it as a volunteer, without § 718.] SALVAGE. 1037 the crew of an imperiled vessel after they are discharged from their duty and allegiance as such;' and passengers if they perform extraordinary services,"^ All persons who give [5Ii*2] anv personal assistance in saving the property are salvors; and the ship, cargo, freight, etc., saved make one fund on the subject of salvage.^ § 718. Property must be saved. Salvors, strictly so called, are persons who undertake to save property in peril at the re- quest of the owner or the master ; they are under his direc- tion and control and may be discharged b}'^ him, with or with- out good cause, upon being compensated for what the}^ have already done, or without such immediate compensation if their lien is not endangered.* Risk of life is not a necessary element of salvage service; where such risk, however, is in- curred in saving property it will place the salvors in a higher ])osition of merit, and entitle them to a more liberal compen- sation. But the controlling inquiry in salvage is, was the prop- erty in peril of being lost, and was it saved by the efforts of those claiming to be salvors?^ Unless it is saved in fact by those who claim as salvors, salvage will not be allowed, however good their intentions and heroic and perilous their exertions.** Thus, if by accident or the negligence of the salvors a rescued ship is led into peril as great as that from which she has been any pre-existing contract that con- Sprague, 428;TheB]aireau, 2 Cranch, nects him with the duty of employ- 240 ; Hobart v. Drogan, 10 Pet 108. ing himself for the preservation of ^xhe Connemara, 108 U. S. 352; the ship.' And it must be admitted The Two Friends, 1 W. Rob. 286 ; that however liarsh the rule may The Brunston, 3 Hagg. Adm. 3, seem to be in its actual application to note. See Bond v. The Cora, 2 Wash, particular cases, it is well founded in 80. public policy and strikes at the root 3 xhe Cargo ex Ulysses, 13 Prob. of those temptations, which might Div. 205 (seamen on government ves- otherwise exist, to seduce pilots and sel) ; The Ottawa, 1 Low. 274. others to abandon their proper duty, * The Ida L. Howard, 1 Low. 2. that they might profit by the dis- ^ The Charles Avery, 1 Bond, 119; tresses of the ship which they are Blagg v. The Bicknell, id. 270. bound to navigate." Belong v. Per- t* Montgomery v. The T. P. Leath- agio, Bee, 212 ; Hand v. The El- ers, 1 Newb. 421 ; The John Wurts, vira, Gilp. 60; Le Tegre, 3 Wash. Olcott, 462; Clarke v. The Dodge 567. ' Healey, 4 Wash. 651 ; Andrew v. The iThe Connemara, 108 U. S. 352; Edam, 13 Fed. Rep. 135; The Algitha, The Olive Branch, 1 Low. 286 : The 17 id. 551 ; The Avoca, 39 id. 567. Antelope, id. 130; The Trmmpb, 1 1G38 CONTRACTS FOR PARTICULAR WORKS. [§ 719. delivered, all claim to salvage is lost.^ Where three vessels, at different times, rendered valuable services to a vessel in continuous peril, it was held that each was entitled to salvage, although the separate services of neither alone would have saved her.- Those who begin a salvao^e service and are in the successful prosecution of it are entitled to be regarded as the meritorious salvors of whatever is preserved though wrong- full}^ interrupted in the work by others who complete the service.^ § 719. Amount recoverable as salvage. The amount of salvage to be allowed is in the discretion of the court; there is no precise rule, nor is it in its nature reducible to rule, for [533] it must in every case depend upon peculiar circum- stances, such as peril incurred, labor sustained, value decreed, and so forth, all of which must be estimated and weighed.^ In an early case in this country in which the foregoing ob- servations were made, Johnson, J., said : " As far as our inquiries extend, when a proportion of the thing saved has been awarded, a half has been the maximum, and an eighth the minimum; below that it is usual to adjudge a compensa- tion m numero. In some cases, indeed, more than half may have been awarded; but they will be found to be cases of very extraordinary merit or on articles of very small amount." * The, more material considerations entertained by courts in de- termining the amount of compensation are thus stated, as the result of the admiralty decisions in England and America, by the British board of trade in instructions given in 1865 to the receivers of wrecks in Great Britain : The decree of danofer from 'The Duke of Manchestej-, 6 a departure from authority. The Moore's P. C. 91 ; The Yan Yean, 8 Bay of Naples, 48 Fed. Rep. 737. Prob. Div. 147; The Cheerful, 11 id. ^ xhe Adventure, s;(pra; Bearse v. 3 ; Tlie Benlarig, 14 id. 3. Pigs of Copper, 1 Story, 314 ; Bond - Muntz V. A Raft of Timber, 15 v. The Cora, 2 Wash. 80 ; British Fed. Rep. 555 ; The Island City, 1 Consul v. Smith, Bee, 178. See Mc- Black, 121. Ginnis v. The Pontiac, 5 McLean, 359 ; 3 The John Gilpin, Olcott. 77. Cross v. The Ballona, Bee, 193 ; The *The Adventure, 8 Cranch, 221; Dos Hermanos, 10 Wheat. 306; Smith The Conuemara, 108 U. S. 352; The v. The Stewart, Crabbe, 218; Hobart Hesper. 18 Fed. Rep. 692; S. C, id. v. Drogan,'10 Pet. 108; Peisch v. 696. The award will be reduced, if Ware, 4 Cranch, 347 ; Tyson v. Pryor, in making it there was a clear mis- 1 Gall. 133 ; The John Wurts, Olcott, take, violations of just principles or 462. § 719.] SALVAGE. 1039 which lives or property are rescued ; the value of the property saved; the risk incurred by the salvors; the value of the ))rop- erty employed by them in the enterprise, and tlie danger to which it was exposed; the skill shown in rendering service; the time and labor occupied. These considerations have been often acted upon, antl there has been added to them another: The degree of the success achieved and the proportions of the value of the property lost and saved. ^ The more important factors are the value of the property saved, that being the subject-matter in respect of which the action arises; tlie perils from which the vessel has been rescued ; the value of the res- cuing vesseh The last consideration affects the amount of the reward only in so far as it exposes the owner of the salving ship to risk of loss.- A distinction is made between the com- pensation of salvors who volunteer and those who go in> answer to a request. In the former case there can be no re- covery unless there is success; in the latter a recovery may be had in any event, and it will be more nearly approximated to the value of the services rendered.' In respect to vessels engaged in the business of salvage, where there are no cir- cumstances of unusual danger and no exceptional activity, the reward will not be out of all proportion to what would have been accepted upon a contract contingent upon success.* In one case this rule has been applied to a vessel not thus en- gaged.^ Although by the general maritime law, aside from the English statutes, the saving of human life, disassociated from the saving of property, is not a subject of salvage com- pensation, yet, when connected with the rescue of property, it is uniformly held to enhance the meritorious character of the service and the consequent remuneration.^ If salvors have sustained serious pecuniary loss in saving a vessel of iThe Sandringhani, 10 Fed. Rep. '•The Birdie, 7 Blatch. 243: The 556, 573; The Annie Henderson, 15 H. B. Foster, 1 Abb. Adm. 235; Ehr- id. 550; The Egypt, 17 id. 359; The man v. Swiftsure. 4 Fed. Rep. 463. Queen of the Pacific, 25 id. 610. 5 The Mary E. Long, 7 Fed. Rep. 2 The Werra, 12 Prob. Div. 52. 364. 3 Wilmington Transportation Co. <> The Aid. 1 Hagg. 84 : The Queen V. The Old Kensington, 39 Fed. Mab, 3 id. 242; The Emblem, Davis, Rep. 496; The Undaunted, 1 Lush. 121; The Plymouth Rock, 9 Fed. 90, quoted from on this point in The Rep. 413. Sabine, 101 U. S. 384, 390. KMO CONTRACTS FOK PARTICULAR WORKS. [§ 719. ample value to defray it, in addition to a proper sum for the master and crew, and also to leave a substantial surplus to the owner, the remuneration should include a sum sufficient to reward the risk and labor, and cover damages and expenses resulting- from the performance of the services, and evidence of these should be received.^ The principle which controls is adequate compensation for the service rendered, in view of the difficulties attending it and the results achieved, bearing in mind the policy of encouraging efforts to rescue imperiled lives and property.^ The value of the property saved is alwa^'s regarded, but its importance as a factor in determining the amount of the allowance is less than it was formerly. In- creasing consideration is given to the perils encountered.^ If the salving vessel reaches her destination in time to fulfill her contracts and sail on her appointed day, her detention will not be considered important.* In estimating the value of the property saved, it is said in a recent case, where the service rendered enabled the vessel to complete her voyage and earn the entire freight agreed upon, that the weight of authority has settled the rule to be that the freight to be considered is only such proportion as the distance at Avhicli the service was performed bore from the point of departure to the whole voyage.'^ Where a vessel was wrecked on Charleston bar, and her cargo of cotton cast ashore on the islands, and there secured by great labor and risk of life and health on the part of the salvors, the court noticed the fact that while employed in this service, and in securing and drying the cargo on shore, their I'Tlie City of Chester, 9 Prob. Div. 819. In the Jast case Locke, J., gives 183 ; The Sunnyside, 8 id. 137. the circumstances connected with -The Plymouth Rock, 9 Fed. Rep. several unreported cases in the south- 413; The John Gilpin, Olcott, 77; ern district of Florida, and the The Egypt, 17 Fed. Rep. 359; The amount awarded in each. See, fIso, Mary E. Dana, id. 353. Bond v. The Cora, 2 Wash. 80 ; The ^ Id. See Hand v. The Elvira, 1 Saragossa, 1 Ben. 553 ; The Lancaster, Gilp. 607; Murphy v. The Suliote, 5 8 Prob. Div. 65; The Marie Anne, 48 Fed. Rep. 99; The Hyderabad, 11 id. Fed. Rep. 742; The Kaaterskill, id. 749; Anderson v. The Edam, 13 id. 701. 185; The Cyclone, 16 id. 486; Baker •* The Werra, 12 Prob. Div. 52. Salvage Co. v. The Excelsior, 19 id. ^The Sandringham, 10 Fed. Rep. 436 : The Rio Grande, 22 id. 914 ; The 556, 576 ; The Norma, Lush. 124. Lalrador, 39 id. 503 ; The Neto, 15 id. 719.] SALVAGE. 1641 growing crops suffered from neglect.^ The whole net pro- ceeds may be awarded under special circumstances; as [5.*{4] where the amount is small, and the owner of the property re- fuses to appear ; ^ and counsel fees are sometimes considered by the court in estimating the amount to be awarded in sal- vage.' Where money is the thing saved, a fifth or a tenth, according to the circumstances, has been the ancient propor- tion.'' In awarding salvage upon a foreign vessel, courts in this country, it is said, will regard the rate of allowance in the courts of the owner's country.' But it is ruled in a recent case where the salved and salving vessel belonged to different foreion countries that their rights and liabilities were deter- 1 Stephens v. The Argus. Bee, 170 ; Bond V. The Cora, 2 Wash. 80. In The Attacapas, 3 Ware, 65, Ware, J., said : " The general princi- ple which governs courts of admi- ralty in awarding salvage is to give a liberal reward, not merely a compen- sation pro opere et labore, but such a reward as will be an inducement to men accustomed to the dangers of the sea to adventure on these perilous enterprises, by which not only property but often lives are saved. For saving life, at whatever risk, the courts can give no reward, for there is no common measure be- tween life and money ; but the merit of saving property may be measured by a pecuniary compensation. An- other reason for liberality is to make the compensation sucli as will in some measure guaranty the honesty of the salvors, so that they shall not be tempted to pay themselves by the embezzlement of property left with- out protection ; and farther, to in- sure the good faith of salvors, em- bezzlement is always visited with the entire forfeiture of salvage. . . . But, if I do not misjudge, there is another consirieration be- longing to this case that ought not to be overlooked. This vessel was rescued from the perilous shores of Cape Cod, a coast as much dreaded by mariners as the infames sco- jndos Acroceraunia of antiquity. For the interests of humanity, as well as those of commerce, it is cer- tainly desirable that the inhabitants of such a coast should understand that if they will hazard their lives in relieving vessels in distress they will not be dismissed with a par- simonious reward, such as will the next time put them to a calculation of the relative value of a gallant and hazardous salvage and the plun- derings of a wreck." If special losses or injuries are sus- tained by some of the men engaged in the service, the court, in distrib- uting tlie award, will allow compen- sation therefor. The Cyclone, IG Fed. Rep. 486. 2 The Lahaina, 19 Fed. Rep. 923; The Zealand, 1 Low. 1 ; Llewellyn v. Two Anchors and Chains, 1 Ben. 80. 3 The Liverpool Packet, 2 Sprague, 37. ■* Taylor v. The Friendship, Bee, 175. 5 The Waterloo, Blatchf. & H. 114 1G42 CONTRACTS FOR TARTICULAR WORKS. [§ 720, rainable by the principles of the general maritime law, and the court declined to follow the code of the country to which one vessel belonged and the practice in the courts of that of which the other carried the fiag.^ The rates of salvage com- pensation at sea cannot properly be adopted for such service on rivers.'^ No distinction is made between vessel and cargo in awarding such corai)ensation on the ground that less exer- tion is necessary to save the cargo. The service is considered single and to be compensated by a quantum of the proceeds of the whole property saved.^ So where there are several sets [535] of salvors who take part in the service, as in stripping and unloading a stranded vessel, they do not have separate liens on the several articles saved by each, but all are entitled to be paid out of the property saved.* It is as much the duty of salvors to care for property which has been rescued as to save it, so long as it is in their custody or control ; and service of this nature is not to be separated from the other and paid for independently.^ § TIO. Derelict property. The amount of salvage to be allowed in derelict cases is governed by the same principles that apply in other salvage cases, and is fixed in the discretion of the court according to the circumstances of each case; that is according to the danger to the property, its value, the risk to life, the skill and labor bestowed, and the duration of the service.^ And the amount so estimated has generally varied from two-fifths to one-half of the value of the property saved. ^ iThe Edam, 13 Fed, Rep. 13o. 372 ; Hindiy v. The Priscilla, Bee, 1 : Values will be ascertained by the Bell v. The Ann, 2 Pet. Adm. 278; rules prevailing in the port of the The Elizabeth and Jane, 1 Ware, 33 ; forum. The Marie Anne, 48 id. 742. The Boston, 1 Sumn. 328; The - McGinnis v. The Poutiac, 1 Newb. Charles Henry and Cargo, 1 Ben. 8: 130. The Henry Ewbank, 1 Sumn. 400; 3 Montgomery v. The T. P. Leath- Taylor v. The Cato, 1 Pet Adm. 48; ers, 1 Newb. 421 ; The Ottawa. 1 Low. The John Wurts, Olcott, 462 ; The 274. Georgiaua, 1 Low. 91 ; The Cayenne, 4 The Albion Lincoln, 2 Low. 71. 2 Abb. (U. S.) 42; Coast Wrecking 5 The Dolcoath, 16 Fed. Rep. 264. Co. v. Phoenix Ins. Co., 13 Fed. Rep. « Post V. Jones, 19 How. 150 ; The 127 ; The R C. Terry, 9 Fed. Rep. 920. Georgiana, 1 Low. 91 ; The Eleanor, In exceptional cases much greater 48 Fed, Rep. 842. proportions have been allowed. Cargo ' Barrels of Oil. 1 Sprague, 91 ; from Wreck of Bark Edwards, 12 Sprague v. Barrels of Flour, 2 Story, Fed. Rep. 508. 195; The John E. Clayton, 4 Blatch. § 721.] SALVAGE. ICAS " The tendency is, where the service rendered is prompt and gallant, to make liberal awards, in many instances exceeding more than half of the net value of the ])roperty saved." ' Two reasons are recog-nized for allowin*'' a liberal reward in cases of derelict propert}^ : first, that the property having been abandoned or lost, it is not for its owner to complain of the reward paid to strangers who restore it ; second, protection of the public against danger from the derelict property. Where a brig was abandoned in near proximity to the entrance to a great seaport, and in the track of vessels of every description inward and outward bound, so that, by being left floating, with some sails still up, and with no one on board to set her lights, to keep her on her course, or to answer or give hails, the court denominated her a dan oe rous thin o-- and that, for takino- in charge and saving a wreck so situated, the reward should be such as to insure at all times the rendering of any amount of labor, the incurring of any risk, and the deviation of any vessel from any voyage in order to su]>ply the wreck with a crew, and to make her presence safe.^ The fact that a derelict vessel might have been saved without the interposition of the salvors may be taken into account in the determination of the compensation, but cannot deprive them of all claim.^ § 721. Forfeiture of compensation. It is a general [536] rule of admiralty to deny compensation to salvors, no matter how meritorious their services may have been, if they are guilty of misconduct or bad faith. And where there is such forfeiture, the shares forfeited do not accrue to co-salvors, to increase theirs, but are reserved for the owners of the prop- erty saved.^ Embezzlement of any part of the property works a forfeiture.'^ So will neglect to inform the salved beforehand of an imminent and secret danger, known to the salvor, and against which he was able to warn her. But he may be en- titled to compensation for services performed, although his conduct has been such as to forfeit a salvage remuneration.'^ Where the captain and owners had concealed a part of the 1 The Flower City, 16 Fed. Rep. 866, ^The Rising Sun, 1 Ware. 385. See per Coxe, J. McGregor v. Ball, i La. Ann. 289. 2Tlie Anna, 6 Ben. 166. ^Id. 3 Holmes V. The Joseph C. Griggs <> American Ins. Co. v. Johnson, and Cargo, 1 Ben. 81. Blatchf. & H. 9. 1044 CONTRACTS FOR PAUTICCI.AR WORKS.' [§ 721. ^oods saved, their share of the salvage was declared forfeited to the owner of the vessel saved. ^ And if persons interfere unnecessarily with wrecked projierty which is being saved under a contract with the owners, such meddlers cannot claim as salvors, although they bring it into port.- The making of false representations for the purpose of exaggerating the danger and hardship of the service to enhance the reward, spoliation, smuggling, obtrusion of unnecessary service, or re- fusal to accept proffered or needful assistance, will be punished by total or partial forfeiture of compensation.^ 1 Flinn v. The Leander, 1 Bee, 260 ; 2 a Quantity of Iron, 2 Sprague, 51 ; Mason v. The Blaireau, 2 Cranch, Hand v. The Elvira, Gilp. 60. 239 ; The Boston, 1 Sumn. 328. 3Harley v. Gawley, 2 Sawyer, 7, 11. SURETYSHIP. 1645 CHAPTER XVII. SURETYSHIP. Section 1. creditor against surety. 5 722. The conti'act of suretyship. 723. Measure of surety's liabiUty. 724. Interpretation of surety's contract. ■725. Contract not to be extended by construction. 726. 727. Illustrations of the rule. 728. Guaranties. 729. Measure of liability. 730. Indorsement of negotiable paper. 731. Methods by which suretyship assumed for commercial paper. 732. Measure of guarantor's liability. 733. Guaranty of collectibility ; liability for costs ; diligence. 734. Guarantor's liability where collateral is given. 735. Discharge or reduction of surety's responsibility by act of creditor. 736. Right of subrogation. 737. Creditor's duty to realize on securities. 738. Release limited to injury sustained. 739. Creditor's duty to acquire liens. 740. Value of released securities. 741. Surety's right to put creditor in motion. 742. Release of one or more of several parties. 743. Surety's right to defend between pi'incipala 744. Surety may set up right of recoupment Section 2. surety's REMEDIES FOR INDEMNITY. 745. Action against principal for money paid. 746. Who is the principal. 747. When right of action accrues. 748. Measure of recovery. 749. Surety may compel debtor to pay. 750. 751. Payment giving right to reimbursement 752. Liability of principal for surety's costs. 753. Principal not liable for consequential damages, 754. Contribution between co-sureties. 755. Who are co-sureties. 756. Basis of contribution. 757. Insolvency of co-surety. 758. Indemnification of surety by principal. 759. Accrual of right of action ; voluntary payment 760. Conclusiveness of judgment. 1616 SURETYSHIP. [§§ 722, 723. Section 3. express indemnities. § 7G1. Damage the gist of the action. 7G2, 763. Wliat may be recovered. 764. Contribution or indemnity between wrong-doers. 765, 766. Contracts varying from indemnity but intended as such. 767. Effect of judgment. Section 1. creditor against surety. [537] § 722. The contract of suretyship. As the contract of a surety is to answer for the debt, default or miscarriage of another, either by joining in the undertaking of tlie prin- cipal, or by a collateral obligation, the amount recoverable by the creditor or promisee against the surety is a primary in- quiry; then arises the consequent right of the surety, who has been compelled to pay, against his principal for reimburse- ment ; and his right against co-sureties, if any, for contribu- tion. § 723. Measure of surety's liability. Against a surety the damages recoverable are the amount of the debt which he has undertaken to pay, or the loss he has consented to be answer- able for and interest, if the debt bears it, or if interest is chargeable on the principles by which it is imposed as dam- ages for default in payment. When a surety enters into the contract with the principal, undertaking with him to perform it, the consideration received by the latter supports it as to both ; ^ and the agreement of the surety cannot extend fur- ther than that of the principal.- And then, as well as when the surety afterwards assumes the same obligation upon a new consideration, he is bound to the like measure of responsibil- ity ; that is, the same rule of damages necessarily applies to both. In respect to the other party to the contract, they are equally principals in extent of liability,' A surety undertakes for another; the debt or damages 1 Savage v. Fox, 60 N. H. 17 ; Dil- Castner v. Slater, 59 Me. 212 ; Monk lingham v. Jenkins, 7 Sm. & M 479. v. Beal, 2 Allen, 585 ; Eastin v. Board 2 Ellis V. Bibb, 2 Stew. 63. of School Directors, 40 La. Ann. 705 ; 3 Mcintosh V. Likens, 25 Iowa, 555 ; St. Paul Foundry Co. v. Weyraann, Kirby v. Studebaker, 15 Ind. 45; 40 Minn. 419. § 724.] CREDITOR AGAINST SURETY. 1047 sought to be recovered result from the act or omission [538] of that other; the surety is only under obligation to pay or make compensation by his contract; his liability thus origi- nates, and has no greater scope or extent than that contract pro])ei'ly interpreted provides for. Hence, not unfrequently, the amount recoveral)le from liim will be materially affected by the construction which it receives. § 724. Interpretation of surety's contract. A surety's contract is to be interpreted like other contracts. In guaran- ties, letters of credit, and other obligations of sureties the terms used and the language employed are to have a reason- able interpretation, according to the intent of the parties as dis- closed by the instrument read in the light of suiTounding cir- cumstances, and to forward the purposes for which it is made.^ In many early cases in England and in tliis country it was held that such contracts should be construed strictly.- In Ivussell V. Clark'' Marshall, C. J,, said: " The law will subject a man having no interest in the transaction to pay the debt of another only when his undertaking manifests a clear inten- tion to bind himself for that debt. Words of doubtful import ought not, it is conceived, to receive that construction. It is the duty of the individual who contracts with one man on the credit of another not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligation he is about to assume." But in other, and especially the later, cases a more liberal rule is laid down. In Mason v. Pritchard ■* the king's bench declared that the words of the guarantor were to be taken as strongly against the party giving the guaranty as the sense of them would admit of. In Ilargreave v. Smee ^ Tindal, C. J., [53ft] said : " The question is what is the fair import to be col- lected from the language used in this guaranty. The words 1 Belloni v. Freeborn, 63 N. Y. 383 ; Mellville v. Hayden. 3 B. & Aid. 593 ; Locke V. McVean, 33 Mich. 473 ; Cremer v. Higginson, 1 Mason, 323 ; Gates V. McKee, 13 N. Y. 232; Lee v. White v. Reed, 15 Conn. 457; Wli it- Dick, 10 Pet 482 ; Crist v. Burlin- ney v. Groot, 24 Wend. 82 ; Mauran game, 62 Barb. 351 ; Reed v. Fish, 50 v. Bulkis, 16 Pet. 528. Me. 358 ; Bailey v. Larchar, 5 R. L 3 7 Cranch, 69, 90. 530; Boehne v. Murpliy, 46 Mo. 57; * 12 East, 227. Brown v. Haven, 37 Vt. 439. 5 6 Bing. 244. 2 Nicholson v. Paget, 1 Cr. & M. 48 ; 161S SURETYSHIP. [§ 724. employed are the words of the defendant in this cause, and there is no reason for puttini^ on a guaranty a construction different from that which the coui't puts on any other instru- ment. With regard to other instruments the rule is that if the party executing them leaves anything ambiguous in his ex])ressions, such ambiguity must be taken most strongly against himself." In Douglass v. Reynolds ^ Storj^ J., after quoting in part the foregoing extract from the opinion of Chief Justice Marshall in liussell v. Clark, said : " On the other hand, as these instruments (commercial guaranties) are of ex- tensive use in the commercial world, upon the faith of which large credits and advances are made, care should be taken to hold the party bound to the full extent of what appears to be his engagement; and for this purpose it was recognized by this court in Drummond v. Prestraan ^ as a rule in expounding them, that the words of the guaranty are to be taken as strongly against the guarantor as the sense will admit.^ And the same rule was adopted in the king's bench in Mason v. Pritchard." ^ In Lee v. Dick '" Thom])son, J., said a guaranty is a commer- cial instrument and ought to be construed according to what is fairly to be presumed to have been the understanding of the parties without any strict technical nicety.® As to com- mercial guaranties the language of Mr. Justice Storv in Law- rence v. McCalmonf has frequently been quoted with appro- bation,^ and probabl}'" expresses the rule of construction now generally accepted. He said : " We have no difficulty what- soever in savins' that instruments of this sort ouoflit to receive a liberal interpretation. By a liberal interpretation we do not mean that the words should be forced out of their natural meaning, but simply that the words should receive a fair and reasonable interpretation so as to attain the objects for which the instrument is designed and the purpose to which it is ap- plied. We should never forget that letters of guaranty are [540] commercial instruments, generally drawn by merchants 17 Pet. 113. ■^S How. 42a 2 12 Wheat. 515. 8 Gates v. McKee, 13 N. Y. 232; 3 Fell on Guaranty, ch. 5, p. 129. Davis v. Wells, 104 U. S. 159 ; La- < 12 East, 327. fargue v. Han-ison, 70 Cal. 380 ; « 10 Pet 482. Fischler v. Hofheimer, 73 Va. 35; « Mayer v. Isaac, 6 M. & W. 605. Tootle v. Elgutter, 14 Neb. 158. § Y24.] CREDITOR AGAINST SURETY. 1G49 in brief language, sometimes inartificial, and often loose in their structure and form ; and to construe the words of such instru- ments with a nice and technical care would not only defeat the intention of the parties, but render them too unsafe a basis to rely on for extensive credits, so often sought in the present active business commerce throughout the world. . . . Indeed, if the language used be ambiguous and admits of two fair interpretations, and the guarantee has advanced his money upon the faith of the interpretation most favorable to his rights, that interpretation will prevail in his favor ; for it docs not lie in the mouth of the guarantor to say that he may, with- out peril, scatter ambiguous words by which another party is misled to his injury." When the language used is not ambig- uous or loose its natural meaning will be given it,^ although it results in giving the obligation a retroactive effect.- A question which frequently arises on such instruments is whether the guaranty is a continuing one, or whether it is exhausted by the first transaction under it. The language of guaranties is so various and the accompanying circumstances so dissimilar that each case must depend largely on its own facts. The conflict that is manifest between some cases that very nearly resemble each other plainlj^ results from the ap- plication in one instance of a liberal rule of interpretation in resolving doubts in respect to the mtention of the parties, and in another a strict rule, by resolving the doubt in one case against the guarantor and in the other in his favor.* One 1 Bank of Montreal v. Eecknagel, 457 ; Whitney v. Groot, 24 Wend. 82 ; 109 N. Y. 482, 494. Fellows v. Prentiss, 3 Denio, 512; 2 People V. Lee, 104 N. Y. 441. Douglass v. Reynolds, 7 Pet. 113; Such effect cannot be given when Mayer v. Isaac, 6 M. & W. 605 ; Mason tlie liability assumed is expressed to v. Pritchard, 12 East, 227 ; Hargreave be for any default which " should " v. Smee, 6 Bing. 244 ; Melville v. Hay- occur. Brooks V. Baker, 9 Daly, 398. den, 3 B. & Aid. 593 ; Evans v. Whyle, 3 Compare Grant v. Ridsdale, 2 5 Bing. 485 ; Glyn v. Hertel, 8 Taunt. Har. & J. 186 ; Rapelye v. Bailey, 5 208 ; Cremer v. Higginson, 1 IMason, Conn. 149 ; Bent v. Hartshorn, 1 323 ; Gates v. McKee, 13 N. Y. 232 ; Met. 24 ; Drummond v. Prestman, 12 Bell v. Bruen, 1 How. 169 ; Haigh v. Wheat. 515 ; Boyce v. Ewart, 1 Rice, Brooks, 10 Ad. & El. 309 ; Martin v. 126; Bastow V.Bennett, 3 Camp. ■220; Wright, 6 Q. B. 917; Hitchcock v. Merle v. Wells, 2 id. 413; Nicholson Humphry, 5 M. & G. 560; Allan v. V. Paget, 1 Cr. & M. 48 ; Lee v. Dick, Kenning, 9 Bing. 618 ; Clark v. Bur- 10 Pet. 482 ; White v. Reed, 15 Conn, dett, 2 Hall. 197 : Crist v. Burlingame, Vol. H — 104 1650 SURETYSHIP. [§ 725. general rule for determining whether such obligations are con- tinuing is that, if the amount of liability is limited and the time is not, it is presumed to have been the intention of the parties that the instrument should not be limited in its scope to a single transaction.^ In ascertaining such intention the facts and circumstances attending the execution of the con- tract may be considered, and great weight is sometimes given them.2 In some cases the rule is said to be that unless the words used fairly imply that the liability of the guarantor is to be limited, it continues until the guaranty is revoked.' [541] § 725. Contract not to be extended by construction. The obligation of a suret}'^ or guarantor is confined to his con- tract. In this sense it is construed strictly. He is not liable on an implied engagement where a party contracting for his own interest might be, and has a right to insist upon the exact performance of any condition stipulated for whether others would consider it material or not.* " jSTothins' can be clearer," says Story, J.,^ " both upon principle and authority, than the doctrine that the liability of a surety is not to be ex- tended by implication beyond the terms of his contract. To the extent, and in the manner, and under the circumstances 63 Barb. 351 ; Boehne v. Murphy, 46 v. Humfrey, 6 Scott N. R. 540 ; Mo. 57 ; Bailey V. Larchar, 5 R I. 530 ; Tootle v, Elgutter, 14 Neb. 158. Adams v. Clark, Brayton, 196 ; "Wash- 2 Mathews v. Phelps, 61 Mich. 327 ; ington Bank v. Shurtlefif, 4 Met 30 ; Allen v. Savings Bank, 4 Mo, App. Williamson v. Chiles, 5 Ired. 244 ; 66 ; Gardner v. Watson, 76 Texas, 25 ; Lloyds V, Harper, 16 Ch. Div. 290 ; Rindge v. Judson, 24 N. Y. 64, 70 ; Tobler v. Willis, 59 Texas, 80 ; Mor- Gates v. McKee, 13 id. 232 ; Dobbin gan V. Boyer, 39 Ohio St. 324 ; Colum- v. Bradley, 17 Wend. 422 ; Evansville bus Sewer Pipe Co. v. Ganser, 58 Mich. Nat. Bank v. Kauf mann, 93 N. Y. 273 ; 385 ; Whipple v. Mississippi & Y. Rutherford v. Brachman, 40 Ohio St Packet Co., 34 Fed. Rep. 54; Ker- 604. nochan v. Murray, 111 N. Y, 306; 3 Wright v. Griffith, 121 Ind. 478; S. C, 53 Hun, 50 ; Ferryman v. Mc- Tischler v. Hof heimer, 83 Va. 35. Call, 66 Ala. 402 ; Flatter v. Green, 26 * Gates v. McKee, 13 N. Y. 232 ; Kan. 252 ; Young v. Brown, 53 Wis. Chatham v. McCrea, 12 Up. Can. C. P. 333. 352; People v. Chalmers, 60 N. Y. 1 Mathews v. Phelps. 61 Mich. 327 ; 158 ; Kingsbury v. Westfall, 61 id. Gard v. Stevens, 12 id. 265 ; Kimball 356 ; Evansville Nat Bank v. Kauf- Co. V. Baker, 62 Wis. 526 ; Seller v. mann, 93 id. 273. Jones, 16 M. & W. 112; Mason v. » Miller v. Stewart 9 Wheat 680; Pritchard, 12 East 227 ; Parker v. Hutchinson v. Woodwell, 107 Pa. St Wise, 6 Maule & S. 239 ; Hitchcock 509 ; Mann v. Brown, 71 Tex. 241. § 725.] CREDITOR AGAINST SURETY. 105i pointed out in his obligation he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. lie has a right to stand on the very terms of his contract; and if he does not assent to any variation of it and a variation is made, it is fataL And courts of equity, as well as of law, have been in the constant habit of scanning the contracts of sureties with considerable strictness. The class of cases , . . where persons have been bound for the good conduct of clerks of merchants and others illustrates this position. The whole series of them, from Lord Arlington v. Merricke ^ down to Pearsall v. Summersett,^ proceed upon the ground that the undertaking of the surety is to receive a strict interpretation, and is not to be extended beyond the fair scope of its terms. Therefore, where an indemnity bond is given to partners by name it has constantly been held that the undertaking stopped upon the admission of a new partner. And the only case, that of Bar- clay V. Lucas,' in which a more extensive construction is sup- posed to have been given, confirms the general rule ; for that turned upon the circumstance that the security was given to the house as a banking house, and thence an intention was in- 12 Saund. 413. general principles of law concerning 2 4 Taunt 593. the rights of sureties. Tlius it has 5* 1 T. R. 291, note. This case has been ruled that the sureties on the been doubted. Dance v. Girdler, 1 bond of a general agent are pre- New Rep. 42. In Weston v. Barton, sumed to know when they become 4 Taunt. 673, Lord Mansfield, after such that the business would nat- stating the general rule, said : " This, urally, if not necessarily, involve the then, being the construction of the employment by him of sub-agents, instrument from almost all tlie cases, and the former are therefore Ma- in truth, we may say from all (for ble for moneys received by the though there is one adverse case of latter (Phoenix Mut. L. Ins. Co. v. Barclay v. Lucas), the propriety of Holloway, 51 Conn. 310; Hayden v. that decision has been very much Hill, 52 Vt 259), or by a partner of questioned." the obligor. Palmer v. Bagg. Gt In Burch v. De Rivera, 53 Hun, Barb. 641. It is believed tliat these 3G7, the guaranty was of the credit adjudications are not sustained by of " the house of De Rivera & Co." the current of authority. Connecti- This was held to mean only the firm cut Mut. L. Ins. Co. v. Scott, 81 Ky. or partnership, and it did not con- 540 ; Parham Sewing IL Co. v. Brock, tinue after a change in the Individ- 113 Mass. 197; London Assurance uals composing it. Co. v. Bold, 6 Q. B. 523 ; Bellairs v. There are some American cases Ellsworth, 3 Camp. 52 ; White Sew- which are not harmonizable with the ing M. Co. v, Hiues, 61 Mich. 423. 1G52 SURETYSHIP. [§ ^^25. ferred that the parties intended to cover all losses, notwith- standing a change of partners in the house." The obligation is not to be extended to any other subject, [542] person or period of time than is expressed or necessa- rily included in it.^ Where debt was brought on a bond for the faithful performance of official duty by a deputy collector of direct taxes in eight townships, and the instrument of ap. pointment was referred to in the bond, it was held that the alteration of the instrument so as to include another .'.own- ship, without the consent of the sureties, discharged them from responsibility for moneys subsequently collected by the principal.^ So where J., being desirous of purchasing goods 1 Burge on Suretyship, cli. 3, p. 40 ; Mercer Co. v. Coovert, 6 W. & S. 70 ; Grant v. Smith, 46 N. Y. 93 : Way- man V. Hoag, 14 Barb. 232 ; Hollond V. Teed, 7 Hare, 50; McGovney v. State, 20 Ohio, 93; Bill v. Barker, 16 Gray, 62; Backhouse v. Hall, 6 B. & S. 507 ; State v. Boon, 44 Mo. 254 ; Simson v. Cooke, 8 Moore, 588 ; Fisher v. Cutter, 20 Mo. 206 ; Dunlop V. Gordon, 10 La. Ann. 243 ; State v. Medary, 17 Ohio, 554; Hamilton v. Van Rensselaer, 43 N. Y. 244 ; Glyn V. Hertel, 8 Taunt. 208; Supervisors V. Kaime, 39 Wis. 468 ; Chelmsford Co. V. Deniarest, 7 Gray, 1 ; Dover v. Twombly, 42 N. H. 59; Vivian v. Otis, 24 Wis. 518; Leeds v. Dunn, 10 N. Y. 469; Beckhead v. George, 8 Hill, 635; McCluskey v. Cromwell, 11 N. Y. 593; Connecticut, etc. Ins. Co. V. Bowler, 1 Holmes, 263 ; United States V. Cheeseman, 3 Sawyer, 424 ; Kelly V. Kellogg, 79 111. 477 ; Dunlap V. Wilson S. M. Co., 81 111. 496 ; Cut- ler V. Ballou, 136 Mass. 337 ; Boston & S. Glass Co. V. Moore, 119 id. 435 Harney v. Laurie, 13 111. App. 400 Bowers v. Cobb, 31 Fed. Ptep. 678 Cornell v. Eagan, 13 Daly, 505 ; Post V. Losey, 111 Ind. 74; John Hancock Mut. L. Ins. Co. V. Lowenberg, 120 N. Y. 44 ; Brennan v. Clark, 29 Neb. 385, 399; Patterson v. Gage, 11 Colo. 50 ; Bensinger v. Wren, 100 Pa. St. 500 ; Abrahams v. Jones, 20 111. App. 83 ; Dill V. Lawrence, 109 Ind. 564 ; Newton v. Devlin, 134 Mass. 490; Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273 ; Markland, etc. Co. v. Kimmel, 87 Ind. 560 ; Kimball Co. v. Baker, 62 Wis. 526; Graeter v. De Wolf, 112 Ind. 1. See Eichards v. Storer, 114 Mass. 101 ; Andre v. Fitz- hugh, 18 Mich. 93 ; Saunders v. Ste- vens, 116 Mass. 133; Leonard v. Spei- del, 104 Mass. 356 ; Tucker v. White, 5 Allen, 322. As to the effect upon sureties of the extension of the existence of a corpo- ration to which they are bound, see Thompson v. Young, 2 Ohio, 334; Union Bank v. Ridgely, 1 H. & G. 324 ; Bank of Washington v. Barrington, 2 Pa. 27; Brown v. Lattimore, 17 Cal. 93 ; Exeter Bank v. Rogers, 7 N. H. 21 ; National Bank of Poughkeepsie v. Phelps, 97 N. Y. 44 ; People v. Backus, 117 id. 196 ; National Exchange Bank V. Gay, 57 Conn. 224. 2 Miller v. Stewart, 9 Wheat. 680 ; Lafayette v, James, 92 Ind. 240 (ad- ditional duties imposed upon obligor by ordinance); Northwestern Nat Bank v. Keen, 14 Phila, 7 (book- keeper in bank promoted to teller and assistant cashier); People v. Pennock, 00 N. Y. 426 (money not re- § 72G.] CREDITOR AGAINST SURETY. 1653 of the plaintiff on credit, procured a letter of guaranty from the defendant to the plaintiff, by which the defendant ]>rom- ised to be surety for the amount of goods, to be paid Jan- uary 1, 1840, and the plaintiff sold the goods to J., and took his note, payable December 25, 1839, it was held that the defendant was not bound, although the plaintiff did not re(|uire payment from J. until after January 1, 18-10,' A guii.ranty that the earnings of a schooner shall pay a certain di'/idend for two years does not extend beyond the time of the guarantee's ownership of her,- Sureties on bonds given to employers to secure the fidelity, honesty, care and diligence of employees do not insure the former against the destruc- tion of his property or money, while in the latter's custody or control, by inevitable accident or against spoliation by thieves or robbers, when the employee is free from fraud or negli- gence.' § 726. Illustrations of the rule. A written guaranty " of the payment of all powder " consigned to a certain person for sale will not cover a sale to the consignee of powder remaining unsold upon closing the account between the consignor and himself; and it cannot be controlled by evidence of a custom known to the guarantor among commission merchants to pur- chase goods remaining unsold under such circumstances, and ceived by principal in his official such employment may increase the capacity) ; First Nat. Bank of Balti- temptation and opportunity for a more v. Gerke, 68 Md. 449 (assistant breach of the bond. Mayor v. Kelly, book-keeper promoted to note teller 98 N. Y. 467 ; Rollstone Nat. Bank v. and discount clerk). Carleton, 136 Mass. 226. See Home In order that sureties shall be dis- Savings Bank v. Trabue, 75 Mo. 199 ; charged from liability bj' the im- National Mech. Banking Ass'n v. position of new, distinct and separa- Conkling, 90 N. Y, 116. As to the ble duties upon their principal from release of sureties on the bonds of those covered by their guaranty, such pubHc officers, see § 485, ante. duties must render impossible or ma- ^ Walrath v. Thompson, 2 N, Y. terially hinder or impede the perform- 185; S. C, 6 Hill, 540; 4 id. 200; ance of those guarantied. "Where Dixon v, Spencer, 59 Md. 246. the new employment is separate and 2 Bishop v. Alcott, 86 N. Y. 503. distinct, and in no respect essentially 3 Chicago, etc. R. C/O. v. Bartlett, 20 interferes with the duty covered by the 111, A pp. 96; Baltimore & O R v. bond, the imposition of such added Jackson, 3 Atl, Rep, 100 (Pa,); duty is wholly a matter between the Walker v. British Guarantee Ass'n, employer and servant with which the 18 Q. B. 277; S. C, 83 E. C. L. 276. sureties have no concern," although 1G54: suRETYSiirr. [§ 720. to treat such a transaction as a sale to a third person,^ It was remarked by the court that the defendant might have been [543] willing to guaranty the fidelity of the factor to account for actual sales of goods consigned, with the right to return those unsold, and yet have been unwilling to assume the re- sponsibility of absolute purchases by him, to be retained whether he could sell them or not. One who has become guarantor for such notes of a specified description as another should give in pursuance of a written contract cannot by virtue thereof be held liable for notes dif- fering materially from those which the contract provided for. Thus, where the contract, the performance of which is guaran- tied, provides for notes at four months without interest, to be renewed, if desired, for sixty days at eight per cent., the guar- antor is not holden for notes running six months, with interest for four months at seven per cent, and thereafter at eight per cent. ; nor for six-month notes with interest at eight per cent, after four months; the variance is a substantial one.^ A guarant}'' to make good to a specified amount any deficit in the payment of certain subscriptions to capital stock does not mean that the subscriptions had been made, or that they would be paid in full. It was based upon the assumption that they had been made and were valid,* The sureties upon an assignee's bond given pursuant to the statute in reference to voluntary assignments for the benefit of creditors are not liable for the failure of their principal to account for the assets in his hands as required by a judgment in favor of creditors declaring the assignment void as to them, and directing the assignee to pay over the assets and the avails thereof in his hands to be applied in satisfaction of their claims.* Where the surety's contract embraced the payment 1 Carkin v. Savory, 14 Gray, 528 ; Mo. App. 371. See Farmers' & Mech. Weed Sewing M. Co. v. Winchel, 107 Nat. Bauk v. Lang, 87 N. Y. 209. Ind. 260 (sureties not liable for sales < People v. Chalmers, 60 N. Y. 154. made to an agent under their con- Under a statute which defined the tract guarantying his fidelity as duty of an assignee to be to take pos- such) ; Burlington Ins. Co. v. John- session of the insolvent's estate, to son, 130 111. 622. See Wilson v. Ed- sue and recover all of it and the debts wards. 6 Lans. 134. due, etc., and to convert the same '^ Locke V. McVean, 38 Mich. 473. into money, his sureties are not liable 'Sedalia, etc. Ey. Co. v. Smith, 27 for his conversion of the property of § 726.] CREDITOR AGAINST SURETY. 1655 of laborers employed by the principal or his agent, it did not extend to laborers employed by his subcontractor.^ A bond for the faithful discharge of duty by a life insurance agent was conditioned that he should " receive and forward applications for, and deliver policies, and receive and forward premiums upon the same, within the city of D." He received the pre- miums of certain parties who had been insured in D. by a forme> agent of the company, but who had since removed thereipom; and it was held that the failure to pay over to the company such moneys was not a breach of the bond subjecting the sureties to liability.^ The defendant guarantied payment to the plaintiff to the extent of 50^. for gold he might supply to E., a working goldsmith, for the purpose of carrying [544] on his business. The plaintiff discounted bills for the gold- smith, and gave him for them partly gold and partly money, deducting from the gold the usual charge for credit for the length of time the bills had to run, and from the money in- terest at the same rate. E. did not indorse the bills, and the gold was applied by him to the purposes of his business. The bills were dishonored and suit was brought on the guaranty ; it was held that the gold so advanced was not supplied within the meaning of the guaranty.' Where a surety signed a note with his principal payable to a bank ten days after date it was held that the surety was not liable on it for moneys advanced by the bank after the note was due; it w^as not a continuing security.^ But where the makers of a note, signed by them for the accommodation of others, payable to a bank on demand, deliver it to the ac- commodated party, it is an inference of law, in the absence of further authority or restriction, that the latter may put it to any use of which it is capable, and may pledge it for future loans as a continuing guaranty until the sureties terminate their responsibility by notice.* In such a case the principals delivered the note to the pa^'^ee bank with a written memo- another person to the use of the See Fond du Lac Harrow Co. v. estate. Best v. Johnson, 78 Cal. 217. Bowles, 54 Wis. 425. 1 McCluskey v. Cromwell, 11 N. Y. 3 Evans v. Whyle, 5 Bing. 485, 593; State v. Hinsdale-Doyle Granite ^Bank of St Albans v. Smith, 30 Co., 117 Ind. 476; Faurote v. State, Vt. 148. 110 id. 463. sAgawam Bank v. Straver, 18 N". 2 Crapo V. Brown, 40 Iowa, 487. Y. 502. 1656 SURETYSHIP. [§ 727. randum therein that it was left as collateral security for all liability incurred by them, and evidence was held admissible for the purpose of arriving at the intent of the parties in the hypothecation, that they were at the time under no liability to the bank; that in view of that fact they intended the note should be security for future advances, and that the words ^^ all liability''^ in the memorandum imported a continuing guaranty.^ " There was no contract," said Mr. Justice Selden, '' even in form, by the makers of the note, with any party ex- cept the bank; and that contract was made, not wlien the note was signed, but when it was delivered to the bank. Of course, then, the terms agreed upon, when the deposit was made, were terms agreed upon between the bank and the makers of the note, provided the agent did not exceed his authoritj^ ; and as [545] the note acquired its validity at that time, and by virtue of those terms, the whole arrangement is, upon well-settled principles, to be taken together as constituting but a single contract. Consequently, the absolute terms of the note are to be regarded as modified by the conditions of the simulta- neous agreement to hold it merely as collateral to the loans to be made upon the faith of it. Although payable on de- mand, no suit could bo maintained upon it until the debt for which it was held as security had become due ; and no more could be recovered than the amount of such debt." § 727. Further illustrations. In a contract with the war department to build a fort, it was agreed that advances should be made in part payment of the work for materials delivered with the invoice at the fort and pronounced by the engineer to be of proper quality, and at the end of each month for the work performed. After large advances had been made, the contract was assigned and the assignee gave bond, with sure- ties, to account for the advances made under and by virtue of the contract. It was held that the sureties were entitled to the benefit of all limitations provided in the contract, and were not answerable for advances made when such limitations were dispensed with, whether they were made before or after the making of the bond, it not appearing that the sureties knew they had been made,- It is apparent from the illustrations 1 Id. See "Weed v. Clark, 4 Sandf. 2 United States v. Tillotson, 1 Paine, 31. 305. § 727.] CREDITOR AGAINST SURETY. 1657 which have been given, and many others that might be cited, that the plaintiff must bring his case very strictly within the undertaking of the surety, and cannot recover beyond it. Thus the plaintiff and S. entered into a contract that S. should per- form certain work at a fixed sum, receiving from time to time payment for three-fourths of the work done; the remaining one-fourth to be paid a month after the com])letion of the whole; if S. should fail to complete the works plaintiff was to employ others and deduct the expenses from the sum payable to him. The defendant was suret}^ for the performance of this contract by S., who abandoned it when partly performed. The plaintiff, at the request of S., had advanced him a sum which exceeded the whole cost of the work then accom- [546] plished, but was less than the contract price. The plaintiff then had the works completed at a cost which, added to the price of that actually done, was less than the contract price, but, added to the money which he had advanced, was more than that sum. He sued the defendant on his guaranty, and it was held that he was only entitled to nominal damages, as the loss had arisen from his own act in advancing more money than he ought to have done, not from the refusal of S, to go on with the works.^ A surety who guaranties the punctual payment of the in- terest on a money bond which has six years and a half to run, and on which interest is payable semi-annually, can only be made liable for such interest as accrues before the bond be- comes due.^ In such a case Church, C. J., said: " The claim against the defendant is based upon the guaranty, which is in the following words : ' For value received, I guaranty the punctual payment of the interest on the within bond, and will 1 Warne v. Calvert, 7 Ad. & E. 143 ; otherwise than in pursuance of a Wood's Mayne on Damages, 417. legal obligation. Newton v. Devlin, The sureties on a bond for the com- 134 Mass. 490. pletion of a public work which re- 2 Hamilton v. Van Rensselaer, 43 serves to the coutractee the right to N. Y. 244. complete it upon a oreach bj^ the A guaranty of the payment of an contractor are liable for the increased interest-bearing obligation includes expense incurred in completiog it and the interest so long as the debt re- for damages done to the property of mains unpaid. Hurd v. Callahan,, third persons in prosecuting the 9 Abb. New Cas. 374. See French v. work; but not for payments made Bates, 149 Mass. 73. 1058 SURETYSHIP. [§ T27. pay the interest on demand in default of its payment by W.' The question is whether the defendant as guarantor is liable for anything beyond the interest up to the time Avhen the princi- pal became due according to the terms of the bond. This must depend upon the construction of the language of the in- strument, viewed in the light of circumstances existing at the time it was made. In ascertaining the meaning of the lan- guage used, the same rules of construction are applicable to contracts of suretyship as to other contracts. When the true signification of the contract is thus ascertained, the surety or guarantor has a right to insist that his liability shall not be ex- tended beyond its precise terms.^ What, then, is the true meaning of this contract? W. agreed to pay the principal in six years and a half, and, in the meantime, to pay semi-annual interest on specific days. The defendant is presumed to have seen and understood the exact agreement of W., and to have executed the guaranty in contemplation of its performance by him. He has a right to limit his liability, and he did limit [54:7] it. He did not guaranty the payment of the principal, but only the ' punctual payment of the interest on the within bond.' What interest? Clearly, the interest payable accord- ing to the terms of the bond, and that only. Ko other inter- est was specified or alluded to, and none other was contem- plated by the defendant, as he contracted, we must presume, with reference to the payment of the principal when due by W. He neither agreed to pay the principal, nor to be liable for the consequences of its non-payment. . . . The intent of the defendant, ascertained by legal rules, was to agree to pay the interest expressly provided for in the bond only ; but when the plaintiff urges that the defendant has employed gen- eral words guarantying the payment of interest upon the bond without limitation, and that these words include interest after as well as before default, and claims to enforce the r gid rule of liability therefor, it is pertinent to answer that, by strict legal rules, interest, as such, cannot be recovered after default in the payment of the principal, and that such interest is not, therefore, within the language of the contract." ^ 1 Gates V. McKee, 13 N. Y. 233, aud to the same effect. There is a re- cases cited. markable discrepancy between Ham- 2 Melick V. Knox, 44 N. Y, 676, is ilton v. Van Rensselaer, in the su- § T27.] CREDITOR AGAINST SURETY. 1Gj9 Where a lease was made to two, one of whom was sole occupant of the premises, which he hold over the term, and debt for the whole "i)eriod of actual occupancy was brought against both, it was held that the other lessee was not estopped to show that he signed the lease in the character of a surety for the term specified, without having in fact occupied the premises at any time ; and further, that he was not liable for the rent after the time mentioned in the writins", the holdin"- over being as to him no continuance of the lease.^ But where the premises are leased for a certain time with the privilege to the tenant to continue in possession for another succeeding lerm, and he avails himself of the privilege, the guaranty of a third person for the payment of the rent is a continuing guaranty during the possession of the tenant for such [518] extended term.'-^ The cases are very numerous on the point that the responsibility of a surety is confined strictly to his undertaking. Those cited below may be found Avorth con- sulting by the curious reader who desires to pursue the sub- ject.' Where the case is brought within the surety's contract preme court, as reported in 28 How. Pr. 193, and 43 Barb. 117, and in the court of appeals, in 43 N. Y. 244. In the former the facts and the law are thus stated : A surety who guaranties the punctual payment of the interest on a money bond, and there is no stipulation for interest in the bond, can only be made liable for such in- terest as accrues by way of damages after the bond becomes due. 1 Kennebec Bank v. Turner, 2 Me. 42. 5 Dufau T. Wright, 25 Wend. 636 ; Decker v, Gaylord, 8 Hun, 110 ; Kaigh V. Fuller, 14 N. J. Eq. 419 ; Deblois v. Earl, 7 R I. 26. 3 Taylor v. Wetmore, 10 Ohio, 490 ; Blecker v. Hyde, 3 McLean, 279; Barns v. Burrow, 67 N. Y. 39 ; Sollee V. Mengy, 1 Bailey, 620; Michigan State Bank v. Peck, 28 Vt. 200 ; Bus- sier V, Chew, 5 Phila. 70 ; Allison v. Rutledge, 5 Yerg. 193; Johnson v. Brown, 51 Ga. 498 ; Stevenson v. Mc- Lean, 11 Up. Can. C. P. 208; Penoyer V. Watson, 16 Johns. 100 ; Walsh v. Bailie, 10 id. 180; Parhani Sewing M. Co. V. Brock, 113 Mass. 194; Smith v. Montgomery, 3 Tex. 199 ; Montefiore V. Lloyd, 15 C. B. (N. S.) 203 ; 33 L. J. (C. P.) 49 ; London Ass. Co. v. Bold, 6 Q. B. 514 ; Bill v. Barker, 16 Gray, 62 ; Manhattan Gas Light Co. v. Ely, 39 Barb. 174 ; Hollond v. Teed, 7 Hare, 50 ; Spiers v. Houston, 4 Bligh (N. S.). 515; Wright v. Russell. 2 W. Bl. 934; Mackay v. Dodge, 5 Ala. 388 ; Grant V. Smith, 46 N. Y. 93; Baruett v. Smith, 17 III. 565 ; Sterns v. Marks, 35 Barb. 565; Simson v. Cooke, 8 Moore, 588 ; Wadsworth v. Allen, 8 Gratt. 174 ; Palmer v. Bagg, 56 N. Y. 523 ; Dry v. Davy, 10 Ad. & El. 30 ; Union Bank v. Costen, 3 N. Y. 203 ; Hood V. Mathis, 21 Mo. 308 ; Reed v. Fish, 59 Me. 358 ; Boelme v. Murphy, 46 Mo. 57 ; Dick v. Crowder, 10 Sm. & M. 71 ; Dobbin v. Bradley, 17 Wend. 422 ; Tucker v. White, 5 Allen, 322 ; 1G60 SURETYSHIP. [§ 728. he is only liable for such actual damages as the plaintiff shows.^ A defendant's covenant that the debts of a certain firm, into which the plaintiff was about to enter as a partner, did not exceed a certain sum ; and that if they did the defendant would pay on demand of the plaintiff the amount by which they exceeded that sum, was held not to be a covenant for liqui- dated damages, but a contract to indemnify the plaintiff as t ^ any loss he might suffer from an erroneous statement of the debts; it was for the jury to consider to what extent his position had been altered by reason of the defendant's breach of covenant,^ § 728. Criiaranties. A guaranty imports a contract col- lateral to the contract debt or obligation of another, except Avhere the word is used in the sense of warranty.' This col- [549] lateral contract may embrace part only of the debt or obligation of the principal,^ or the whole of it ; and the dam- ages for its breach will depend upon its nature and extent. If it be a full guaranty of payment or performance owing by the principal, then the guarantor, when in default, must re- spond by the same measure and standard as the principal."^ Richards v. Storer, 114 Mass. 101; ^ skinner v. Valentine, 59 N. Y. Sanderson v. Stevens, 110 id. 133; 473; Melick v. Knox, 44 id. 676; Clark V. Sawyer, 121 id. 224; Simon- Hamilton v. Van Rensselaer, 43 id. son V. Grant. 86 Minn. 439. 244. 1 King V. Norman, 4 C. B. 884. * Oakley v. Boorman, 21 Wend. ■^Walker v. Broadhurst, 3 Exch. 588; Gage v. Lewis, 68 111. 604; 889. See Mauran v. Bullus, 16 Pet. Smith v. Rogers, 14 lud. 224 ; Fur- 528. nas v. Durgin, 1 ] 9 Mass. 500 ; Fletcher 3 The fact that a contract is en- v. Derrickson, 3 Bosw. 181; Skinner tered into by a guarantor jointly v, Valentine, 59 N. Y. 473 ; Douglass with his principal does not prevent v, Howland, 24 Wend. 35 ; Gammel it fi'om being a guaranty if its terms v. Paramore, 58 Ga 54 ; Tuton \\ disclose that the latter is separately Thayer, 47 How. Pr. 180 ; Gutta bound b3' an original independent Percha, etc. Co. v. Benedict, 37 N. Y. contract to which thnt given as se- Super. Ct. 480; Upham v. Prince, 13 caiiCj IS culiaCeral, if tlie latter is Mass. 14; Cooper v. Page, 24 Me. TcJ; conditioned for the performance of More v. Howland, 4 Denio, 264; the principal's prior engagement. Carew v. Denney, 8 Pick. 863; The principal's obligation is original Blanchard v. Wood, 26 Me. 358; with the obligee ; the other is cumu- Gist v. Drakely, 2 Gill, 330 ; Cobb v. lative. La Rose v. Logansport Nat. Little, 2 Me. 261 ; Carter v. McGehee, Bank. 102 Ind. 332 ; Ward v. Wilson, Phill. (N. C.) L. 431 ; Beau v. Arnold, 100 id. 52; Singer Manuf. Co. v. Lit- 16 Me. 251 ; Campbell v. Butler, 14 tier, 56 Iowa. 601. Johns. 349 ; Allen v. Brightmire, 20 ■28.] CREDITOR AGAINST SURETY. 1 001 A guarantor may make himself liable for the principal debt although the demand may not be binding on the debtor.' A continuing guaranty ma}'' be determined by notice from the security, where it is in the nature of a continuing offer, and only binding as far as acted upon,'^ unless the considera- tion is "'iven once for all, when the oblifration cannot l)e ter- minated by the guarantor and does not end with his death.^ "Where performance of a contract is guarantied the surety may, after default by his principal which would justify tlio other party in terminating it, require that it be terminate!, >nd the claim against himself confined to damaores then re- i,; '•verable.* A guarantor of payment is, like his prin- [550] id 365 ; James v. Loug, 68 N. C. 218 ; Ellmaker v. Franklin Ins. Co., 5 Pa. St. 183; Remsen v. Graves, 41 N. Y. 471 ; Hendricks v. Banning, 7 Minn, 32; Samson v. Thornton, 3 Met. 275; Tenny v. Prince, 4 Pick. 385 ; Josselyn v. Ames, 3 Mass. 274 ; Ulen V. Kittridge, 7 id. 238 ; White V. Howland, 9 id. 314 ; Moeis v. Bird, 11 id. 436; Nelson v. Dubois, 13 Johns. 175 ; Harrick v. Carman, 12 id. 159 ; Hunt v. Adams, 5 Mass. 358 ; Sumner V. Gay, 4 Pick. 311; Baker V. Briggs, 8 Pick. 122. 1 Mason v. Nichols, 22 Wis. 360- McLaughlin v. McGovern, 34 Barb, 208 ; Veasey v. Willis, 6 Gray, 90. 2 Oflford V, Davies, 12 C. B. (N, S.) 748; Jordan v. Dobbins, 122 Mass. 168. See Brandt on Surety & G. (2d ed.), §^ 134, 135. " W^here a guaranty is a continuing one, and the parties must have un- derstood their liability thereunder would be increased and diminished from time to time, and the guaranty is uncertain as to when it will cease to be binding upon the guarantor, and when the party indemnified has the power at pleasui-e to annul and put an end to the contract guaran- tied without the knowledge of the guarantor, he is entitled to notice, within a reasonable time after the transactions guarantied are closed, of his liability thereunder." Davis Sewing M. Co. v. Mills. 55 Iowa, 543. If as the result of the neglect to give notice the guarantor suffers loss, he is relieved to that extent. Singer Manuf. Co. v. Littler, 56 Iowa, 601. 3 Lloyds V. Harper, 16 Ch. Div. 290. 4 Hunt V. Roberts, 45 N. Y. 691. In this case the defendant guaran- tied the performance on the part of C, of a building contract made by C. with the plaintiffs, wherein the plaintiffs agreed to perform the work by the 15th of October, and C. to furnish materials and pay a cer- tain sum. After October 15th, the work being unfinished, the defend- ant gave notice to the plaintiffs that if they did not complete the work before the 1st of November he would not be responsible as guaran- tor thereafter. The plaintiffs kept on until June following, being de- layed by C's failure to supply mate- rials. The defendant, by an arrange- ment with a third person, and to which the plaintiffs were not a party, had assumed C's obligations, and after November 1st urged the plaint- iffs to perform and himself supplied the material, but stated to them that he would not be personally responsi- 16G2 SUKETYSHIP. [§ T28. cipal, liable to interest from the time the money became due ; ' and for attorney fees when stipulated for in the contract.^ A guaranty upon a note of its payment after maturity or any time thereafter with interest " and all costs and expenses paid or incurred in collecting the same including attorneys' fees " embraces only the costs and expenses of an action against its maker ; not those incurred in an action upon the guaranty. The whole liabihty under such a contract must be exhausted in one action ; the guarantor cannot be sued for the debt and afterwards for the costs and expenses.^ Where the agreement guarantied provides for stipulated damages in case of the principal's default, the guarantor is liable by his ble. It was held, in an action on the contract of guaranty, that the effect of the notice was an extension of time for performance, and continued the defendant's liabihty, as guaran- tor, to November 1st only ; and his liabihty was limited to the debt and damages which the plaintiffs were entitled to claim at that time. See Estate of De Silver, 9 Phila. 302; Pleasanton's Appeal, 75 Pa. St. 344 While it is the duty of the obligee to give notice to the guarantors of their defaulting principal's conduct, except in cases governed by the com- mercial law, the failure to do so is matter of defense, and does not work a discharge unless damages re- sult to them. La Rose v. Logans- port Nat. Bank, 103 Ind. 382-, Ward V. Wilson, 100 id. 52 ; Davis v. Wells, 104 U. S. 159 ; Pittsburgh, etc. R. Co. V. Shaeffer, 59 Pa. St. 350 ; Grocers' Bank v. Kingman, 16 Gray, 473 ; Peel V. Tatlock, 1 B. & P. 419 ; Phoenix Mut. L. Ins. Co. V. HoUoway, 51 Conn. 310. A surety bound for the fidelity and honesty of his principal and for an indefinite and contingent liability, and not for a sum fixed and certain to become due, may terminate his liability in either of two cases : first, where the guarantied contract has no definite time to run ; and second, where it has such time, but the prin- cipal has so violated it, and is so in default that the obligee may law- fully terminate it on account of the breach. Emery v. Baltz, 94 N. Y. 408; Burgess v. Love, L. R. 13 Eq. 450 ; Phillips v. Foxall, L. R. 7 Q. B. 666; Sanderson v. Aston, L. R. 8 Exch. 73. The weight of authority denies the i'ight of a guarantor to I'evoke a con- tinuing contract for the faithful dis- charge of duty without cause. Gor- don v. Calvert, 3 Sim. 253 ; S. C, 4 Russ. 581 ; Williams v. Reynolds, 11 La. 230. The Indiana court sees no reason why such a right should not be exercised ; but it must be done reasonably and upon notice to all concerned. An employer, unless misconduct creating a probable emergency is shown to exist, is not bound to subject his affairs to em- barrassment by immediately dis- charging an employee. La Ro&e v. Logansport Nat. Bank, 103 Ind. 333. 1 Gammel v. Paramore, 58 Ga. 54 ; Gutta Percha, etc. Co. v. Benedict, 37 N. y. Super. Ct. 430. 2 First Nat. Bank v. Breese, 39 Iowa, 640. 3 Abbott V. Brown, 131 111. 108. § 729.] CEEDITOK AGAINST SURETY. 1663 guaranty for those damages.^ A guarantor of payment is not liable for the costs of an unsuccessful action against the principal debtor where the creditor is not bound to resort to legal proceedings against him before he can have recourse against the party secondarily liable ; ^ but it is otherwise where the guaranty is of collection and payment.^ If proceedings are taken against the debtor and something realized from iiim the amount to be credited in the guarantor's favor is the net sum realized. He has no equity which requires that the gross amount shall be applied to the satisfaction of the debt.^ § 729. Measure of liability. In case of a guaranty of the amount due on a note, and not of its collectibility, the dam- ages are what the plaintiff has lost by the breach ; and this loss is the value of a judgment against the maker, if one had been obtained ; and if it appears that the maker was solvent and prevented a recovery of judgment by proving payment, the measure of damages is the amount which purports to be due on the note.^ A guaranty against any loss which might occur by reason of a sale of goods, which, by stipulation be- tween the principal parties, are to be sold within ninety days, will not render the guarantor liable if, by their agreement, the goods are not sold within that time and the time for the sale is fixed at a subsequent date.^ But where the guaranty was of the payment of any purchase of bagging and rope between its date and a stated date in the future, it was held to extend to purchases upon a reasonable credit made between those dates, although the time of payment was not to arrive until after that day.^ A contract was made for furnishing a steam-engine, and a surety in behalf of the manufacturers guarantied its perform- ance, and in case of breach to refund all sums of money the other party might pay or advance with interest. It was held that the contract was not in the alternative, but con- [551] sisted of two terms : one, that the principals should perform their engagement, not merely by the delivery of some ma- i Gridley v. Capen, 72 111. 11. » Head v. Green, 5 Biss. 311. 2 Tuton V. Thayer, 47 How. Pr. 180. « Fisher v. Cutter, 20 Mo. 206. 3 Id. 7 Louisville ]\L Co. v. Welch, 10 4Hurd V. Callahan, 9 Abb. New How. (U. S.) 461. Cas. 374. 1664 SURETYSHIP. [§ 730. chinery, but of such as the contract required; the other, that if there should be a non -performance, whether excusable or not, the money advanced on the contract sliould be refunded to the extent that the principals were liable. The machinery delivered was imperfect so as to constitute a breach of the contract, and it was held that the surety was liable to such damages as would enable the plaintiffs to supply the defi- ciency ; the jury were not required to assume that the contract price was the full value of the machinery.' Where the action was on a guaranty that stock should be worth $700, market value, within one year from date, it was held that the true measure of damages w^as the difference between $700 and $500, the latter sum being the highest value reached in the market during the year, and not the difference between $700 and $300, the latter being the market value at the end of the year.2 The defendant sold to a plaintiff certain shares of railroad stock, with a guaranty that it should yield annually six per cent, dividends for the space of three years. In an action on the guaranty it was held that its true construction was that the stock should be equal in value to stock yielding annually a dividend of six per cent. ; the measure of damages in this action was the difference between the actual value of the stock transferred and a stock which should yield six per cent, annually for the next three years following the transfer.' § 730. Iiidorsemeiit of uegotiable paper. There is some conflict as to the effect of an indorsement made by a third person in blank upon a negotiable note at or after its incep- tion. In New York the contract implied, according to the intermediate decisions, is that of an indorser, and parol evi- dence cannot be admitted to modify it.* In the case^ which [552] established this doctrine in that state the chancellor said : " I fully concur in the opinion expressed by Mr, Justice Bron- son,'' that where a man writes his name in blank upon the back of a promissory note, he only agrees that he will pay the note 1 Benjamin v. Hillard, 23 How. * Seabury t. Hungerford, 2 Hill, 80 ; (U. S.) 149. Hall V. Newcomb, 7 Hill, 416 ; Spies 2 Woodward v. Powers, 105 Mass. v. Gilmore, 1 N. Y. 321. 108. 5 Hall V. Newcomb, supra. 3 Struthors v. Clark, 30 Pa. St. 210 ; 6 in Seabury v. Hungerford, 2 Hill, Morris v. Barrett, 24 Ohio St. 201. 80. § 730.] CREDITOR AGAIXST SURETY. 1665 to the lioltler on receiving due notice that the malrcr, upon de- mand made at the proper time, has neglected to pay it. ]\[ere proof that he has indorsed the paper to enable the maker to raise money on it does not change the nature of his legal liability as indorser, where the note is in the hands of a bona fide holder for a good consideration. . . . And for the courts to allow proof b}^ parol to charge a mere surety be- yond the legal effect of his written blank indorsement on such paper would bring them in direct conflict Avith the pro- visions of the statute of frauds." The more recent cases modify this rule so far as to allow the presumption that an in- dorsement in blank before the note is completed by delivery was made for the purpose of becoming liable as second in- dorser, to be rebutted by proof that it was made to give the maker credit with the payee. ^ In Connecticut the contract which the law implies, prirnof- facie, from a blank indorsement of a promissory note, whether' negotiable or not, is that it is due and paj'able according to its terms; that the maker shall be able to pay, and that it is col- lectible by the use of diligence.^ But the blank indorsement is on\j prima facie evidence of such contract; it is competent between the parties to the indorsement to prove by parol the agreement which was in fact made at the time of the indorse- ment.' "Where, however, there is an express guaranty of pay- ment, it is held to be an absolute engagement on the part of the guarantor that the note shall be paid within the time speci- fied therefor by the maker or himself.* But, generally, the stranger who indorses before delivery is liable as an original promisor, or as a guarantor ; ^ and one not a holder indorsing 1 Coulter V. Richmond, 59 N. Y. 5 Samson T.Thornton, 3 Met. 275 ; 478; Phelps v. Vischer, 50 id. 69. Hunt v. Adams, 5 Mass. 358; Ulen v. 2 Perkins v. Catlin, 11 Conn. 213; Kittridge, 7 id. 233; White v. How- Laflin v. Pomeroy, id. 440 ; Hunting- land, 9 id. 314 ; Burton v. Hansford, ton V. Harvey, 4 id. 124; Bond v. 10 W. Va. 470; Boynton v. Pierce, Storrs, 13 id. 412; Castle v. Candee, 79 111. 145; Underwood v. Hossack, 16 id. 223 ; Clark v Merriam, 25 id. 38 111. 208 ; Carroll v. Weld, 13 111. 576 ; Ranson v. Sherwood, 26 id. 437 ; 682 : White v. Weaver, 41 III. 409 ; Forbes v. Rowe, 48 id. 413. Champion v. Griffith, 13 Ohio, 228; 3 Id. ; Beckwith v. Angell, 6 Conn. Seymour v. Mickey, 15 Ohio St. 575 ; 315. Van Doren v. Tjader, 1 Nev. 380; 4 Breed v. Hillhouse. 7 Conn. 522. Fuller v. Scott, 8 Kan. 25 ; Chandler But see Sage v. Wilcox, 6 id. 81. v. Westfall, 30 Tex. 475 ; Horton v. Vol. II — 105 1G06 SURETYSHIP. [§ 730. [553] afterwards a guarantor.^ The rule which governs the federal courts is thus stated by Clifford, J. : " Where the in- dorsement is in blank, if made before the payee, the liability must be either as an original promisor or guarantor, and parol proof is admissible to show whether the indorsement was made before the indorsement of the payee and before the instrument was delivered to take effect, or after the payee had become the holder of the same; and, if before, then the party so indorsing the note may be charged as an original promisor; but if after the payee became the holder, then such a party can only be held as guarantor, unless the terms of the indorsement show that he intended to be liable only as second indorser, in which event he is entitled to the privileges ac- corded such an indorser by the commercial law." ^ In several states the prima facie liability of one wiio indorses in blank before the payee has received the note is that of indorser.' It is generally held that a blank signature or indorsement in pur- suance of a special undertaking authorizes the real agreement to be written over the name afterwards by the holder ; and that an agreement so filled up will satisfy the statute of frauds. Manning, 37 Tex. 23; Pahlman v. nenfelser, 59 Mo. 336; Hayden v. Taylor, 75 111. 629; Clapp v. Rice, 13 Weldon, 43 N. J. L. 128. Gray, 403 ; Schmidt v. Schmaelter, 2 Martin v. Good, 95 U. S. 90, 97 ; 45 Mo. 502 ; Chaffee v. Jones, 19 Pick. Miller v. Ridgeley, 23 Fed. Rep. 889 ; 260; Martin v. Boyd, 11 N. H. 385; First Nat. Bank v. Lock-Stitch Fence Chaffee v. Memphis, etc. R, Co., 64 Co., 24 id. 221. Mo. 193 ; Heise v. Bumpass, 40 Ark. 3 Kealing t. Vansickle, 74 Ind. 529, 545 ; Kiskadden v. Allen, 7 Colo. 206 ; and cases in that court cited on page Harding v. Hen-s of Waters, 6 Lea 538 ; Cogswell v. Hayden, 5 Ore. 22 ; (Tenn.), 324; Cayuga Nat Bank v. Milton v. De Yampert, 3 Ala. 648; Dunklin, 29 Mo. App. 442 ; Polking- Arnold v. Bryant, 8 Bush, 068 ; Jones home V. Hendricks, 61 Miss. 366; v. Goodwin, 39 Cal. 493 ; Fisk v. Mil- Woodman V. Boothby, 66 Me. 889; ler, 63 id. 367; Fessenden v. Sum- Ives V. Bosley, 35 Md. 262; Stein v. mers, 62 id. 484; Filbert v. Fink- Passmore, 25 Minn. 256 ; Rothschild beiner, 68 Pa. St. 243 ; Zahm v. First T. Grit, 31 Jlich. 150; Baker t. Rob- Nat. Bank of Lancaster, 103 id. 576. inson, 63 N. C. 191 ; McGee V. Connor, < Teuney v. Prince, 4 Pick. 385; 1 Utah, 92. Josselyn v. Ames, 3 Mass. 274 ; Camp- iTenney v. Prince, 4 Pick. 385; bell v. Butler, 14 Johns. 349; Nelson Thomas V. Jennings, 5 Sm. & M. 627 ; v. Dubois. 13 id. 175; Reynolds v. Rey V. Simpson, 22 How. (U. S.) 341 ; Ward, 5 Wend. 501 ; Fulton v. Mat- Whiton V. Mears, 11 Met. 563 ; Killian thews, 15 Johns. 433 ; Turner v. Bur- V. Ashley, 24 Ark. 511; Stagg v. Lin- rows, 8 Wend. 144; Russell v. Lan- § 731.] CREDITOR AGAINST SURETY. 1GG7 Whether written or not, it is open to proof; ' but in a case within the statute it must be written.^ § 731. Methods hy wliidi suretyship assumed for com- mercial paper. A contract of suretyship may arise in vari- ous ways in connection witli commercial paper. The maker of a note and the acceptor of a bill are the primary debtors thereon to the holder or his assigns for whose benefit either may be made. They may, as they often do, assume that lia- bility for the accommodation of some other party to the paper, or a third person; they thus become sureties for the person accommodated.' In his hands, as holder, the paper would be satisfied ; for being ultimately liable to the maker or acceptor, who is ostensibly bound as primary debtor thereon for any- thing he may have to pay, such holder is not permitted to re- cover from him ; his claim on the paper is for precisely the same sum that the accommodation maker or acceptor on pay- ment would be entitled to demand from him as their principal by way of indemnity; and to prevent circuity of action, when he becomes its owner the paper is canceled.* Thus, a note payable to a firm was signed by one of its members, and two other persons as sureties ; in an action by the other member against the sureties, it was held that, as the member signing the note was on the face of it entitled to one-half of the [554-] amount, the sureties were liable only for the other half, al- though there was a mistake in making it payable to the firm instead of the plaintiff alone, unless the sureties knowingly agreed to the making of the note as the plaintiff alleged it ought to have been made.^ So a note or bill may be in- dorsed by a surety to give it value for negotiation in the hands of the payee or any subsequent holder. While such paper, valid in its inception, is held by any person except the accom- modated party, deriving title from him for whose benefit it was made, it is enforcible against the accommodation maker, Btofife, 2 Doug. 514 ; Collis v. Emett, 2 Has'den v. Weldon, 43 N. J. L. 1 H. Bl. 313 ; Violett v. Patton, 5 128 ; Moore v. Folsom, 14 Minn. 340. Cranch, 151; Welsh v. Ebersole, 75 3 Bank of Toronto v. Hunter, 30 Va. 651 ; Harding v. Heirs of Waters, How. Pr. 293. 6 Lea (Tenn.), 324. * Vol. 1, g 143. 1 Welsh V. Ebersole, 75 Va. 651; & McMicken v. Webb, 6 How. (U. S.) Jones V. Dow, 142 Mass. 130 ; Oakley 292. V. Boorman, 21 Wend. 588. 1GG8 suKETYsnip. [§ 732. acceptor or indorser in the same manner and for the same amount as though he was not a surety. The drawer of an ac- cepted bill, and the indorsers of notes and bills, are secondarily liable to the holder, and are in a certain sense sureties. When their liability becomes fixed by demand and notice the holder '\^ 'prima facie entitled to recover from either the face amount of the paper ; but between immediate parties, indorsee against his indorser, or payee against drawer, the consideration of the transfer between them may be inquired into, and if the plaint- iff has discounted the paper at a larger rate than the interest, or has paid less than its face value, the amount paid and in- terest is the measure of damages exclusive of costs of protest and damages on bills.^ This is the measure of liability implied by law from the manner in which the drawer and indorsers become parties. § 732. Measure of guarantor's liability. In cases of guar- anty of payment, either express or implied, the rule is not the same. It is true that that consideration is open to examina- tion when a simple contract, and now generally by statute even when under seal ; but not with a view to limiting the re- covery to it, or to give weight to any complaint of inadequacy.^ The undertaking of the grantor is commensurate with that of [555] the principal debtor ; ^ and the general principle applies that the injured party is entitled to recover a sum as damages for the breach of a contract which is equivalent to the benefit he would have derived from its performance. In New York a few cases have been determined exception- ally, that is, on the principle that a guarantor, like an indorser, is only liable for the amount paid ; but they are believed to be departures from the general rule applicable to guaranties. In one of these cases* a note for $210, payable to the defend- ant or bearer, was sold by him to the plaintiff for $200, and he guarantied the payment of it. The plaintiff brought suit 1 Braman v. Hess, 13 Johns. 52 ; Coffeen, 76 111. 245 ; Cook t. Clark, 4 Wright V. Butler, 6 Wend. 284 ; E. D. Smith, 213 ; French v. Grindle, Powell V. Waters, 17 Johns. 176; 15 Me. 163 ; Lobdell v. Baker, 3 Met Baker v. Arnold, 3 Cai. 279 ; Miinn 469 ; Cobb v. Titus, 10 N. Y. 698. V. Commission Co., 15 Jolms. 44 ; - Oakley v. Boorman, 21 Wend. 588. Schaeflfer v. Hodges, 54 III. 337; 3 Gage v. Lewis. 68 111. 604 ; Lom- Wiflfen V. Roberts, 1 Esp. 261 : Cram bard v. Mayberry, 24 Neb. 674. V. Hendricks, 7 Wend. 509; Short v. *Mazuzan v. Mead, 21 Wend, 285. § 732.] CREDITOR AGAINST SURETY. IfJOO on this guaranty to recover only the amount he had paid, and it was insisted for him that the rule between indorsee and in- dorser applied.^ The defendant set up the defense of usury because for $200 he agreed to pay $210, with interest on the latter sura from a previous day. Cowen, J., said: " It is an- swered that an usurious intent is not to be inferred, inasmuch as the plaintiflf cannot in legal effect recover, and does not in truth seek to recover, more than he advanced with the legal interest. If such were the express agreement at the time, it would clearly take away the sting of usury ; and if that ap- pear upon the face of the declaration to be but the legal effect of the guaranty then the case is the same. Had the defend- ant simply indorsed the note, leaving himself to be charged in the usual way by demand and notice, the transaction would not have been usurious." It was considered as depending on the same principle as Cram v. Hendricks.^ In another case'' a bond and mortgage for $3,000, payable one year from date, with interest to become due half-yearly, and on which over five months' interest had already accrued, were assigned ab- solutely by the holder for $2,600, in order to raise money. The assignment stated the consideration paid by the assignee to be $3,000, and contained a covenant that that amount was due and owino; on the bond and morto:ao;e. At the time of executino^ the assignment the assignor also executed to the assignee a bond with »surety conditioned that the mortgagor should pay $3,000, together with the interest, by the day ap- pointed for that purpose, in the securities assigned. [556] On a bill filed by the assignor to set aside the assignment, and to have the bond of guaranty canceled, it was held that the transaction was on its face a mere sale of a chose in ac- tion, unconnected with a loan, and therefore not per se usu- rious. It was declared also, that in an action upon a bond of guaranty the assignee's recovery would be limited to the actual amount paid for the bond and mortgage. Cowen, J., dissented, and in his opinion opposes the principle of the pre- ceding case. He says: "The supreme court ruled the same way as this court did on what were believed to be equivalent circumstances, but on the express authority of a court having 1 Braman v. Hess, 13 Johns. 53. 3 Rapelj'e v. Anderson, 4 Hill, 4T"3. 2 7 Wend. 569. 1670 SURETYSHIP. [§732. power to review the decision." That a guaranty of payment and an indorsement are equivalent circumstances is expressly affirmed by the senators who delivered the prevailing opinions ; that is, equivalent in the aspect in which they were consid- ered — in an action by the guarantee or indorsee that the amount recoverable is the amount paid to the guarantor or indorser.^ 1 Franklin, Senator, said : " But it is contended that this ought to be con- sidered as a loan in consequence of a collateral bond having been given and received to secure the ultimate payment of the sum of $3,000 and interest, for which the original bond and mortgage were given and for which only $2,600 had been paid by the appellant. But I am unable to distinguish this case from that of Cram v. Hendricks, or from the still stronger one of Mazuzan v. Mead (21 Wend. 285), in which a note of $210 was sold for $200, being a greater discount than legal interest, and the seller guarantied, in express terms, to pay not only the $200, but the amount payable by the face of the note. ... If the condition of the bond of guaranty of Anderson and Remsen had been that in case John Anderson, the original obligor, did not pay the sum of $3,000 and in- terest secured by his bond and mort- gage, that then and in that case they would, it would have presented no stronger case than the indorsement of Cram on the note of Hendricks, or the guaranty mentioned in the case of Mazuzan v. Mead. The condition of this bond, however, is, not that Anderson and Remsen would pay the sum of $3,000 and inter, st if the obligor John Anderson did not, but that if he did not pay that amount, then the bond was to be void, other- wise to remain in full force and virtue; so that upon the principle laid down and decided in the case of Cram v. Hendricks and Mazuzan v. Mead, the amount which could be collected by Rapelye would have been, not the consideration expressed in the assignment, or the amount for which the bond and mortgage of John Anderson were given, but the actual sum received, being $2,G00, together with the interest which might have accrued thereon from the time of the actual receipt thereof. " Bockee, Senator, said : " The guar- anty above mentioned is that the mortgagor, Jolin Anderson, shall pay the $3,000. It is not in the al- ternative that the obligors shall pay that sum. If John Anderson does not pay, the obligors are left merely on the ground of their legal liability. The judgment is entered for the sum of $6,000, and the court may direct by indorsement on the execution a collection of the sum equitably due, or, on an assessment of damages by a jury, they may award the sum act- ually paid on the assignment and sale of the mortgage. It may be ad- mitted that privia facie the rule of damages would be the sum of $3,000, the consideration mentioned in the assignment. So it was in the case of Cram v. Hendricks. Cram stood on the ground of legal liability as gen- eral indorser of a promissory note, and ^ the rule for damages against him was, prima facie, the amount of the note. The court, by limiting the amount of recovery to the actual consideration of tlie indorsement, re- § 733.] CREDITOR AGAINST SURETY. 1071 While it is true that an indorsement in l^lank is by [557] legal construction a guaranty only of the payment of the note to the amount paid on its transfer with interest, it must be equally true that where the agreement is not left to be im- plied from a simple indorsement, but is expressed, the latter will have effect according to the intent which is thus mani- fested ; and if the undertaking is that the principal debtor shall pay the amount of the note, or if the guarantor undertakes directly to pay the sum mentioned in it on the default of the maker or other condition fulfilled, in either case that sum will, on general principles, be the measure of damages in the action upon the guaranty.^ In another case in New York, decided the same year as the first of the preceding cases,^ the court expressly ruled that the obligation of a guarantor is not to be measured by the con- sideration paid when the intent is clear to secure the full amount of the paper guarantied. Cowen, J., said : " It is not for us to hamper Mr. O., or any other citizen, in such a way as to preclude his making money by insuring the debts of his neighbors. It is enough that he has not been imposed upon. He is sui juris. He fixed the consideration of his indorse- ment; and had it been to secure a much larger amount the re- sult must have been the same. There is no distinction in principle between an indorsement to secure future ad- [558] vances and an indorsement to secure a precedent debt." § 733. Guaranty of collectibility ; liability for costs; dili- gence. A guaranty of collection is in legal effect an under- taking to pay the debt, if it cannot be made by diligent legal measures from the principal debtor; or any deficiency after all remedies are exhausted. It is only in that event, and to that extent, that such a guarantor can be put in default ; pay- ment according to that measure will satisfy his undertaking. There is some diversity as to the necessity of a judgment and return of execution unsatisfied against the principal debtor as an absolute condition to suit on such a guaranty.^ But it is fused to give a construction which 483, 486, 491 ; Yankey v. Lockheart, 4 would render the contract usurious." J. J. Marsh. 277. Goldsmith v. Brown, 35 Barb. 484; 2 Oakley v. Boorinan, 21 Wend. 588. Jones V, Stieubergh, 1 Barb. Ch. 250. 3 in New York, Wisconsin, Michi- 1 See Anderson v. Rapelye, 9 Paige, gan, Kentucky, Texas and Iowa the 1672 SUKETYSHIP. [§ T33. agreed that the guarantor is only answerable if, and to the ex- tent, the debt is uncollectible against the principal debtor. When a note is guarantied to be collectible the legal remedy against all prior solvent parties, such as an iudorser,' the es- tate of a deceased indorser,- and all of several principals,^ must be exhausted before the guarantor is in default.* Such rule is that ordinarily the only evi- dence that a claim is not collectible is the failure of legal proceedings, diligently pursued, to result in its collection. Toles v. Adee, 91 N. Y. 5G3; Schmitz v. Langhaar, 88 id. 503; Moakley v. Riggs, 19 Johns. 69 ; Craig V. Parkis, 40 N. Y. 181 ; Ralph V. Eldredge, 58 Hun, 203 ; Borden v. Gilbert, 13 Wis. 670 ; Bosnian v. Ake- ley, 39 Mich. 710 ; Ely v. Bibb, 4 J, J. Marsh. 71; Shepard v. Phears, 35 Tex. 71 ; Durand v. Bovveu, 73 Iowa, 573. The same rule has been an- nounced by at least one of the federal courts. Dvvight v. Williams, 4 Mc- Lean, 581. In New York nothing beyond an execution is required of the creditor. Schmitz v. Langhaar, 88 N. Y. 503. In Ohio, Pennsylvania, Massachusetts, Maine, Vermont and Connecticut the institution of a suit is not necessary if the debtor is in- solvent, and proof of the waiver of the condition by the guai-antor is al- lowed. Stone V. Rockefeller, 29 Ohio St. 625 ; McDoal v. Yeomans, 8 Watts, 361; McClurg v. Foyer, 15 Pa. St. 293; Miles v. Liunell, 97 Mass. 298; Gillingham v. Boardman, 29 Me. 79 ; Bull V. Bliss, 30 Vt. 127; Allen v. Rundle, 50 Conn. 1 ; Lemmon v. Strong, 55 id. 443. If the degree of diligence to be exercised by the cred- itor is stipulated in the contract it must be used. Allen v. Rundle, supra. Compare Heralson v. Mason, 53 Mo. 211, If legal proceedings have not been resorted to the proof must clearly show that the debtor was, when the obligation matured, and continued to be, so utterly in- solvent that an action against him would have been fruitless. Osborne V. Thompson, 36 Minn. 528. If the persons primarily liable have left the state and were insolvent, the creditor who has instituted suit is not bound to send executions against them to their present place of residence. Can.- den V. Doremus, 13 How. (U. S.) 515. Where the creditor is required to re- sort to legal proceedings the surety need not make a request of him to do so. Toles v. Adee, 91 N. Y. 562. The loss of an opportunity to arrest a principal for w'hose amenability to process the sureties are bound is pre- sumptively injurious to them without proof. Id. 1 Loveland v. Shepard, 2 Hill, 139 : Dana v. Conant, 30 Vt. 246; Sum mers v. Barrett, 65 Iowa, 292. 2 Benton v. Fletcher, 31 Vt. 418. 3 Aldrich v. Chubb, 35 Mich. 350 Northern Ins. Co. v. Wright, 70 N. 1 445. * Brandt on Suretys. & Guar. (2c* ed.), § 100. In Sears v. Van Dusen, 25 Mich 351, the purchaser of an ovei"-due note, the collection of which was guarantied by its prior owner, re- fused to receive the money from the maker and delayed for two years to sue upon it, during which time the latter became insolvent. Tlie guar- antor was held to be discharged. The exact effect of this case is not easily ascertainable ; it has been ap- provingly cited on the point that the delay was fatal. Clark v. Sickler, 64 § T3-i.] CREDITOR AGAINST SURETY. 1673 a guaranty not only binds him to ])ay the uncollectible debt, but also the costs of the action against the principal and other parties for its collection.' Where an action against the prin- cipal is required as a condition, this rule as to costs is mani- festly just. In such a case the guarantee will not have the full benefit of the agreement unless the guarantor bears the expense of complying with the condition he has impoSed.- Where other evidence will suffice to show the debt not col- lectible, so as to allow the guarantee to resort to the guaran- tor without first bringing a suit, the latter's liability for costs in a suit which is nevertheless brought must depend on [559] there being reasonable grounds to expect that the debt could be collected in whole or in part by the proceedings in whicii the costs were incurred. Where, on a guaranty of a mortgage, the guarantee incurred costs to foreclose it after a prior mortgage of the same premises had been foreclosed, a sale made and a deed delivered, it was held he could not recover the costs of such an unnecessary foreclosure.' § 734. Guarantor's liability where collateral is given. If the debt, the collection of which is guarantied, is collat- erally secured, there is some conflict of decision on the ques- tion whether the guarantor is liable for that part of it which might be made by resort to the security. In a case in Ohio * where the collection of a note was guarantied, and, pursu- ant to an understanding w^hen the guaranty was made, the creditor took security from the maker by mortsaofe of real estate, it ^vas held that on default and bankruptcy of the N. Y. 231. An unexcused delay of liability of the stockholders of a cor- five and one-half years in bringing a poration. National Loan & Build- suit against the debtor releases a ing Society v. Lichtenwalner, 100 Pa. guarantor. Tiffany v. Willis, 30 Hun, St. 100. 2G6. In Connecticut the holder of a i Mosher v. Hotchkiss, 3 Abb. App. note is not bound to attach the real Dec. 326; S. C, 3 Keyes, 161 ; Tutou estate of the maker before proceed- v. Thayer, 47 How. Pr. 180. ing against a guarantor, Forbes v. 2 Mosher v. Hotchkiss, supra. See Rowe, 48 Conn. 413 ; Allen v. Rundle, Redfield v. Haight, 27 Conn. 31 ; Gil- 50 id. 588. While the creditor must man v. Lewis, 15 Me. 452. exhaust all the property and securi- ^ Peck v. Cohen, 40 N. Y. Super, ties in his grasp, he is not obliged to Ct. 142. See Brown v. Haven, 37 Vt. pursue every claim which his debtor 439. may have, especially if it is contin- * Stone v. Rockefeller, 29 Oliio St. g'ent and uncertain, as the statutory 625. 1674 SURETYSHIP. [§ 734. maker the guarantee could at once pursue his remedy on the guaranty against the guarantor without exhausting it on the security, Gibnore, J., said : " In considering this question it is to be kept in mind that the plaintiff sues upon a contract of guaranty relating alone to the collectibility of the note upon the back of which it is indorsed. The terms of such a con- tract are to be construed strictly, and the words being those of the guarantor are to be taken most strongly against him. The law will not supply any condition which is not incorpo- rated into the agreement, or to be fairly implied from the lan- guage used; and, in the absence of accident or mistake, it is presumed conclusively that the terms of the contract as. agreed upon between the parties at the time are fully expressed in the written guaranty. It cannot be said that the contract sued upon and that set up by way of defense have any such necessary connection with each other as to require then! to be read and construed together as constituting one contract. Thev are neither of the same nature nor between the same parties. They are therefore wholly independent of each other, and must be so regarded. As independent contracts each must be suscepti- [560] ble of performance according to its terms and legal effect. These contracts are respectively susceptible of such perform- ance, and the guarantor is bound to perform according to the terms of guaranty sued upon ; i. e., to pay the note at maturity if the maker fails to do so, and is then entirely insolvent and bankrupt. When he pays the note in accordance with the terms of his guaranty the contract set up in his answer will, in equity, at once inure to his benefit by substitution." This rule is sustained by other authorities.^ The reasoning upon which it is rested is not very satisfactory. By the mort- gage the creditor acquires a specific lien on the debtor's prop- erty for the debt; the insolvency and bankruptcy of the debtor has not affected that lien ; hence, to the extent of that property so appropriated to satisfy the debt the insolvency or bankruptcy of the debtor is wholly immaterial. lie has so much property, notwithstanding his insolvency or bankruptcy, 1 Allen V. Woodard, 125 Mass. 400; Hayes v. Ward, 4 Johns. Ch. 123; Vance v. English, 78 Ind. 80 ; Watson Buck v. Sanders, 1 Daua. 187 ; Hill v. V. Sutherland, 1 Tenn. Ch. 208. See Bourcier, 29 La. Ann. 841. Gary v. Cannon, 8 Ired. Eq. 64; . § 735.] CREDITOR AGAINST SURETY. 1G75 subject to the appropriate process of a court for the satisfac- tion of the debt. The note and mortgage are connected, and, without exhausting the security afforded by the latter, the note in no proper sense could be treated as not collectible ; to the extent that the debt could be made from such security it should be deemed collectible. In a Michigan case ' the payee of a note secured by mortgage of real estate transfei'red the note and assigned the mortgage, lie indorsed on the note a guaranty of collection, and it was held that he was not liable on the guaranty until resort had been had to the mortgage. In such a case it was considered that the guaranty does not refer merely to the personal responsibility of the guarantor. When, Avith the guaranty itself, the guarantor furnishes the means of obtaining payment in whole or in part and these means have been attached to the debt itself, and cannot be severed from it, the parties must be held to have contemplated the entire transaction and a resort to those means. Any other rule would be at variance with the object of such securities. Al- though a mortgage is in a strict sense only collateral to the debt, yet it is generally regarded as forming its chief value, and persons usually contract with that idea.^ § 735. Discharge or reduction of surety's responsibility l)y act of creditor. A surety is a favorite of the law ; ^ [561] and where any act is done by the obligee that may injure him, the courts are very glad to lay hold of it in his favor.* If the creditor does any act injurious to the surety, or inconsistent with his rights, or omits to do any act required by the surety which his duty enjoins him to do, and the omission proves in- jurious, the surety will be discharged.^ Courts of law and equity are governed by the same principles in determining whether a surety has been discharged by anything done by the creditor.® Whatever will exonerate a surety from liability 1 Barman v. Carhartt, 10 Mich. 338 ; * Law v. East India Co., 4 Ves. 824. afBrmecl in Johnson v. Shepard, 35 ^1 Story's Eq., § 825 ; Wooliey v. Mich. 115. Louisville Banking Co., 81 Ky. 527, 2 Baxter v. Smack. 17 How. Pr. 183 ; 538 : Crim v. Fleming, 101 Ind. 154. Cady V. Sheldon, 38 Barb. 103 ; Van- See the notes to ^5 728, ante, for some derkemp V. Sheltou, 11 Paige, 28; 1 cases peculiar to the relation of Clark, 321 ; Brainard v. Reynolds, 36 guarantor and guarantee. Vt 614. eScluoeppell v. Shaw, 3 N. Y. 446. 3 People V. Chalmers, 60 N. Y. 154. 1GT6 SURETYSHIP. [§ 736. in equity will constitute a sufficient defense at law.^ The re- lation demands from the creditor that he exercise good faith toward the surety. Hence if a master holding a guaranty for the faithful performance of a servant's duty discovers in the course of his service that the servant is dishonest, he must discharge him or at least notify those who are bound for him. If he does neither he takes upon himself the responsibility for losses thereafter sustained. His concealment of the fact is a fraud as to the sureties.^ § 736. Right of subrogation. As a security for and means of reimbursement, a surety has a right of subrogation upon the performance of his contract ; he is then entitled to stand in the place of the creditor as to all securities for the debt held or acquired by the latter, and to have the same benefit from them as the creditor might have had.' This right extends to all securities held by him for the payment of such debt at the time the same is paid, even though they were acquired with- out the knowledge of the surety, and after he became bound.^ It does not depend upon any request or contract on the part of the debtor with the surety, but grows rather out of the re- lations existing between the latter and the creditor, and is founded, not upon any contract, express or implied, but springs from the most obvious principles of natural justice.^ 1 Id. ; Baker v. Briggs, 8 Pick. 128 ; 3 phUbrick v. Shaw, 63 N. H. 356 ; Springer v. Toothaker, 43 Me. 381 ; Briggs v. Hinton, 14 Lea (Tenn.), People V. Jansen. 7 Johns. 332; King 233; Culluiu v. Emanuel, 1 Ala. 23; V. Baldwin, 2 Johns. Ch. 554 ; Sailly Heart v. Bryan, 2 Dev, Eq. 147; V. Elmore, 3 Paige, 497 ; Viele v. Marsh v. Pike, 10 Paige, 595 ; Eaton Hoag, 24 Vt. 46; Heath v. Derry v. Hasty, 6 Neb. 419; Buchanan v. Bank, 44 N. H. 174; Watriss v. Clark, 10 Gratt. 164; Mathews v. Pierce, 32 id. 560; Rogers v. School Aikin, 1 N. Y. 595; McArthur v. Trustees, 46 111. 428 ; Shelton V. Hurd, Martin, 23 Minn. 74; In re Hewitt. 7 R I. 403 ; Wayne v. Kirby, 2 25 N. J. Eq. 210 ; Lewis v. Palmer, 28 Bailey L. 551 ; Maxwell v. Connor, 1 N. Y. 271 : Rice v. Rice, 108 111. 199. Hill Eq. 14 ; State Bank v. Watkins, The surety's rights in this respect 6 Ark. 123 ; Smith v. Clopton, 48 are not affected by the fact that the Miss. 66, property upon which he bases his 2 Phillips V. Foxall, L. R 7 Q. B. claim was mortgaged to him for an- 666 ; Sanderson v. Aston, L. R. 8 other and prior debt. Torp v. Gul- Exch. 73; Graves v, Lebanon Nat. seth, 37 Minn. 135. Bank, 10 Bush, 23, See Atlas Bank ^Scanland v. Settle, Meigs, 169; V. Brownell, 9 R L 168 : Andrus v. Smith v, McLeod, 3 Irecl Eq, 390 ; Bealls, 9 Cow, 693 ; La Rose v, Lo- Wendell v. Highstone, 52 Mich. 553, gansport Nat Bank, 102 Ind, 333, 5 Mathews v. Aikin, 1 N, Y. 595. § 7BG.] CREDITOR AGAINST SURETY. 1677 When one has been compelled to pay a debt which [562] ought to have been paid by another, he is entitled to a cession of all the remedies which the creditor possessed against that other. To the creditor, both may have been equally liable ; but if, as between themselves, there is asupcrior obligation resting on one to pay the d^bt, the other after paying it may use the creditor's security to obtain reimbursement.' He is entitled to recourse to all persons who stand in the relation of princi- pal to him for reimbursement, and to all co-sureties for con- tribution. " Where the sureties of a trustee have been com- pelled to answer for his breach of trust, they are subrogated to the rights of both the trustee and the cestui que trust against those who have participated in his wrongful acts." ^ Though the creditor has released the surety by surrendering a fund which he was entitled to, the former, if he has sustained dam- ages from the principal's breach of his contract, may set off the amount against the surety's demand for the application of the fund to his benefit.^ This right in the surety does not extend to independent collateral securities, but enables him to be substituted in the creditor's place and stead to the debt and the instrument which is its evidence, and to hold it alive and enforceable as against the principal debtor.* Such instrument ma}^ be as- signed to a third person.'^ The right of such person, when he owned the land bound for the debt, to bu}'^ the bond executed by the surety and sue upon it has been sustained.^ " A bond, therefore, may survive payment, which can become merely purchase-money when it is a surety who buys. If under such circumstances payment will not kill it, still less will that con- structive payment which is argued out of an assignment to the surety who is obligor. lie may hold it till the principal debtor is in default and then enforce it as against him pre- iMcCormick v, Irwin, 35 Pa. St. ^st Mary's College v. Meagher, 11 111 ; New York State Bank v. S. W. Rep. 608 (Ky.). Fletcher, 5 Wend. 85 ; Huston v. * Goodyear v. Watson, 14 Barb. 481 ; Brancl? Bank, 25 Ala. 250 ; Boyd v. Chandler v. Higgins, 109 111. 602 ; McDonough, 39 How. Pr. 389. Katz \. Moessinger, 110 id. 373. 2 Sheldon on Subrogation, § 29, ap- 5 Chandler v. Higgins, 109 III. 602; proved in Blake v. Traders' Nat. Searing v. Berry, 58 Iowa, 20, Bank, 145 Mass. 13. <* Wadswoith v. Lyon, 93 N. Y. 201, 214. 1678 SURETYSHIP. [§786 cisely with the same effect as if he had been a co-obligor in the bond, for in equity that is what his covenant made him. The surety's payment of what, as to the creditor, is his own debt becomes a purchase as against the debtor primarily lia- ble." ^ But the creditor who holds an obligation which is protected by collaterals furnished by the first indorser is not bound to account therefor to one who subsequently binds himself b}'' a separate instrument to pay any sum, within a stated limit, that might not be collected on that obligation or from the security." It was. said by Sergeant, J., in stating a limitation to the general rule that a surety may avail himself of any security given the creditor by the debtor, " but where such means consist of the responsibility of an individual be- coming a later surety or guaranty for the same debt of the principal, there arises a conflict of equities which may give rise to new questions as to priorit}'' between the former and the latter surety ; such latter surety stipulating at the instance of the principal to pay the debt suffers no absolute injustice in being obliged to do so, since he is compelled to perform no 1 FairchiM v. Lynch, 99 N. Y. 359 ; Searing v. Berry, 58 Iowa, 21 ; Cris- field V. State, 55 Md. 193; German American Savings Bank v. Fritz, 68 Wis. 390; New Bedford Inst. v. Hathaway, 134 Mass. 69. In Mason v. Pierron, 63 Wis. 239, 244, Lyon, J., points out the distinc- tion between the extent to which subrogation is granted in England and America. " It was formerly held in England, following the Roman law, that a surety subrogated to the rights of a creditor had precisely the same rights the creditor had and stood in his place ; but in later times the rule has been restricted in that countrj', and it is there now held that the right of subrogation extends only to securities other than the obligation or instrument which is the evidence of the debt. Thus, if the debt be evi- denced by a bond, payment by one of two sureties of the whole debt cancels the bond ; or if it be upon a judgment, such payment cancels the judgment, and the surety so paying becomes a mere general creditor of his co-surety, to whose demand none of the peculiar incidents of a debt upon specialty or judgment adheres. The courts of this country, however, have very generally adhered to the ancient rule, and hold that although the lien or obligation be extinguished at law by the payment of the debts, yet, for the benefit of the surety, it continues in equity in full force. The cases which illustrate the above prop- ositions are very numerous in both countries. A great many of them will be found cited in Story's Eq. Jur. in the notes to sections 8, 492, 493, 495, 496, 499, a, b, c; 3 Pom. Eq. Jur., §§ 1418, 1419 and notes." See Flem- ing V. Beaver, 2 Rawle, 128 ; Edgerl}- V. Emerson, 23 N. H. 555 ; Brewer v. Franklin Mills, 42 id. 292. 2 Tracy v. Pomeroy, 120 Pa. St. 14. § 737.] CKEDITOR AGAINST SURETY. 1679 more than he undertook, and he has no right to complain that he is not allowed to use as a payment by himself the money "which proceeds from another person whom his princi- pal was previously bound to save harmless." ^ § 737. Creditor's duty to realize on securities. If the cred- itor parts Avith or renders unavailable securities of any fund which he would be entitled to apply in discharge of his debt, the surety becomes exonerated to the extent of their value, be- cause securities which the creditor is entitled to apply in dis- charge of his debt he is bound to apply or hold as a trustee ready to be applied for the benefit of the surety.- The latter in such case is discharged to the extent that he is injured.* A waste or misapplication of a pledge or other securit}^ or its avails,'* or a fraudulent sale of property held as security at less than its value,'^ will entitle the surety to relief to the extent of his injury from such waste, sale, or sacrifice on such sale. Where securities are surrendered their value will be estimated as of 1 Potts V. Nathans, 1 W. & S. 155. 2 Theobald on Princ. & Surety, § 174 ; Cullura v. Emanuel, 1 Ala. 23. sCummings v. Little, 45 Me. 183; New Hampshire Savings Bank v. Colcord, 15 N. H. 119; Ives v. Bank of Lansingburgh, 13 Mich. 361; Wharton v. Duncan, 83 Pa, St. 40 ; Kirkpatrick v. Howk, 80 111. 123; Foss V. Chicago, 34 id. 488 ; Rogers v. School Trustees, 46 id. 428 ; Pitts v, Congdon, 3 N. Y. 353; Bonney v. Bonney, 29 Iowa, 448; American Bank v. Baker, 4 Met. 164 ; Holland V. Johnson, 51 Ind. 346; Baker v. Briggs, 8 Pick. 122 ; Chester v. Bank of Kingston, 16 N. Y. 336; Fin- ney V. Commonwealth, 1 Penn. 240 ; Hurd V. Spencer, 40 Vt. 581 ; Shan- non V. McMullen, 25 Gratt. .211 ; Law V. East India Company, 4 Ves. 824; Port V. Bobbins, 35 Iowa, 208 ; Taylor V. Jeter, 23 Mo. 244 ; Schroeppell v, Shaw, 5 Barb. 580 ; Brandt on Suretys. & G. (2d ed.), § 440 et seq.; Bowen V. Groover, 77 Ga, 126; St. Mary's College v. Meagher, US. W. Rep. 608 ; Allen v. O'Donald, 23 Fed. Rep. 573 ; Smith v. McKean, 99 Ind. 101 ; Sterne v. Bank of Vincennes, 79 id. 549 ; Sterne v. McKinney, id. 578 ; Humphrey v. Hayes, 94 N. Y. 594; Grow V. Garlock, 97 id. 81 ; Doty v. Case & W. Thresher Co., 50 Hun, 595 ; Day v. Ramey, 40 Ohio St 446 ; Kaufman v. Loomis, 13 111. App. 124 ; Brown v. Rathburn, 10 Ore. 158; Guild V. Butler, 127 Mass. 386 ; Hut- ton V. Campbell, 10 Lea, 170 ; Watson V. Read, 4 Baxter, 49 ; S. C, 1 Tenn. Ch. 196 ; Holt v. Manier, 1 Lea, 488 ; Sample v. Cochran, 82 Ind. 260 (it makes no difference that the obliga- tion was not enforcible against the principal) ; Clow v. Derby Coal Co., 98 Pa. St. 432 ; Brennan v. Clark, 29 Neb. 385, 399. 4Phares v. Barbour, 49 111. 870 Vose V. Florida R. Co., 50 N. Y. 369 Wendell v. Highstone, 53 Mich. 553 Austin V. Belknap, 54 Vt. 495 ; Nel- son V. Munch, 28 Minn. 314; Bixby v, Barklie, 26 Hun, 275 ; Hutchinson v Woodwell, 107 Pa. St 509, 520 ; Tem- pleton V. Shakley, id. 370. 5 Everly v. Rice, 20 Pa. St 297. 1680 SURETYSHIP. [§ 737. the time they were given up, not at the time of the trial of an action against the surety ; and if they are upon real prop- erty their value in the county in which it is situated governs.^ The fact that there are other sureties on other notes given to secure portions of the same debt will not affect the defendant's rio-ht to be released to the full extent of the value of the sur- rendered securities, the other sureties not being parties to the action." In order that the creditor's act shall have the effect stated upon a surety the former must have knowledge of the existence of the relation of principal and surety. If such fact does not appear otherwise it may be shown by extrinsic evidence.'' The creditor is affected by knowledge acquired at any time before he does an act which alters the surety's rights.'* It was contended in a recent Louisiana case that the sureties were not affected by a sale of their principal's prop- erty made by the creditor when the latter's judgment against the debtor was largely in excess of the amount for which they were bound. The theory of the creditor was " that, having a final and unqualified judgment against the defendant for $33,000 as their agent, the plaintiff had the right to receive payment or securities from him for the deficiency which was not covered by the obligations of the sureties," which aggre- gated only $10,000 ; that it had the right to appropriate prop- erty turned over by him to the satisfaction of the difference between those sums; that only when that difference was made up could the sureties complain of any application made of such property, and then only to the extent of any damage they had sustained. This contention was overruled and the sureties were adjudged to be released by the unauthorized sale of the securities received from their principal.' The principle of this 1 Bank of Monroe v. Gifford, 79 Lancaster, 6 id. 571 ; Swire v. Red- Iowa, 300. man, 1 Q. B. Div. 536, 542. 2 1(3. 5 New England Mut. Ins. Co. v, 3 Harris v. Brooks, 21 Pick. 195 ; Randall, 42 La. Ann. 260. The code Carpenter v. King, 9 Met. 511; Wil- of Louisiana provides: "The surety son V. Foot, 11 id. 285; Home V. Bod- is discharged when by the act of well, 5 Gray, 457; Guild v. Butler, the creditor the subrogation to his 137 Mass. 386. rights, mortgages and privileges can * Guild V. Butler, siqwa; Pooley v. no longer operate in favor of the Harradine, 7 E. & B. 431 ; Bailey v. urety." Edwards, 4 B. & S. 761; Ewin v. § 737.] CKEDITOK AGAINST SUKETV. 1681 case is undoubtedly correct. It finds support in the English cases which establish the proposition thus stated by Mr. Mayne : Where a debtor whose whole debt is covered by a guaranty becomes a bankrupt and a dividend is received, the creditor can of course only recover the balance from the surety. Where, however, only a portion of the debt is so se- cured the creditor cannot apply the dividend to the unsecured portion, and recover the whole of the residue from the surety. The latter has a right to have the dividend applied ratably to the whole debt, and a proportionate deduction made from the whole amount for which he is liable.^ And so if the difference between his liability and the entire debt is covered by the guaranty of another person, each surety may claim a ratable deduction out of each pound of the amount of the debt to which their respective guaranties extend. The plaintiff cannot apply the whole of the dividends to either part of the demand at his own election and thus vary at his own pleasure the ex- tent of the responsibility of the sureties.- In all these cases the court construed the contract by the surety as being a guaranty of a limited portion of the debt, in which case the surety who pays that portion has in respect of it all the rights of the creditor, including the right to a dividend.^ A different case, however, arises where the surety undertakes to be liable for the whole of the debt, subject to a limitation that he is not to be called upon to pay more than a specified amount. In such a case the creditor is entitled to redeem the whole debt by any dividends he can obtain, and to call upon the surety to pay the balance to an amount not exceeding the sum for which he has become bound.'* A surety is also discharged by the tender of payment to the creditor, refused by him.'^ An informal offer of payment when refused by the creditor is generally construed as a mere 1 Dumont v. Fry, 14 Fed. Rep. 293. s gee per Lord Hatherley, Hobson 2 Mayne on Dam. (4th Eng. ed.), v. Bass, siipra, at p. 794. 303, citing Bard well v. Lydall, 7 * Ellis v. Emmanuel, 1 Exch. Div. Bing. 489 ; Raikes v. Todd, 8 A. & E. 157. 846 ; Gee v. Pack, 33 L. J. (Q. B.) 49 ; & Joslyn v. Eastman, 46 Vt 258 ; Thornton v. McKewan, 1 H. & N. vol. 1, § 271 ; Spurgeon v. Smitha, 525; Hobson v. Bass, L. R. 6 Ch. 792; 114 Ind. 453; Hayes v. Josephi, 26 Gray v. Seckham, 7 id. 680. Cal. 535 ; Sears v. Van Dusen, 25 Mich. 351. Vol. II — 106 1CS2 SDKETYSUIP. [§ 737. gratuitous indulgence, having no legal effect upon the surety's liability unless it operates to prejudice or hinder him. But if the principal is insolvent at the time such a tender is declined the case is different, and becomes one of positive wrong to the surety, discharging his liability.^ So, if the creditor pur- chase property on which the debt for which the surety is bound is a lien, and removes it from the state; ^ if the creditor [503] has the means of satisfaction in his hands, and suffers such means to pass into the hands of the debtor ; ' or if a creditor of an estate, with surety, refuses to present his claims to the commissioners for adjustment when requested to do st), the surety will be discharged.^ But where the surety applies to a court of chancery before suit is brought against him, as he may do, to be relieved from his obligation on a debt for which a decedent estate is primarily liable, and it appears that such estate would not have paid the whole debt, the court will re- quire the surety to pay into court, for the benefit of the cred- itor, the deficiency out of which the surety will be allowed to deduct his costs, and the balance, if any, will be paid to the creditor.' Where the creditor has obtained a lien upon property by judicial process or judgment, and releases it, the surety for the debt will be discharged to the extent of the value of the property so released.** If the right of the creditor to resort to tiie principal debtor's property is lost in consequence of his exaction of unlawful interest, without the surety's knowledge, the latter is not liable.^ 1 White's Adm'r v. Life Ass'n of * McColIum v. Hinkley, 9 Vt. 143. America, 63 Ala. 419 ; Life Ass'n of As to the rule under the Illinois America v. Neville, 72 id. 517. See statute of 1869, see Huddleston v. Clark V. Sickler, 64 N. Y. 231 ; disap- Francis, 124 111. 195, and cases there proved of in Spurgeon v. Smitha, 114 cited. Ind. 453, 456. sMcCollum v. Hinkley, 9 Vt. 143. If a debtor owing two demands ^ Moss v. Pettengill, 3 Minn. 217 ; offers to pay one of them, and the Parker v. Nations, 33 Tex. 210 ; Jenk- creditor induces him to pay the other, ins v. McNeese, 34 Tex. 189 ; Mulford the indorsers upon the demand the v. Estudillo, 23 Cal. 94 ; Bank v. For- debtor designed to pay are not re- dyce, 9 Pa. St. 275 ; Sterne v. Bank leased. Second Nat Bank of Oswego of Vincennes, 79 Ind. 549 ; Sterne v. v. Boucher, 56 N. Y. 348. McKinney, id. 578. See Lusk v. 2McMullen v. Hinkle, 39 Miss. 142. Ramsay, 3Munf. 417. 3 Commonwealth v. Vanderslice, 8 ^ Small v. Hicks. 81 Ga. 691. S. & R 452. § 738.] CilEDITOR AGAINST SURETY.' 1683 § 738. Release limited to injury sustained. The surety is not, however, discharged by release of securities or liens unless he is injured; ^ or no further than his means of indem- nity are impaired.^ Thus a release of a part of the pro})erty included in the mortgage securing a debt, without more, will not discharge a surety; for, if tliere should still be enough left for his protection, he is entitled to have it subjected to the payment of the debt; and, if sufficient to pay it, he is not, of course, prejudiced by the partial release and cannot com- plain.'^ So the surrender of a fictitious or forged bond held as security will not affect the liability of a surety.* In Cum- mings V. Little ^ the defendants were joint and several prom- isors u})on three notes payable to one Smith or order. Smith also held a mortgage from one of the defendants of personal property of less value than the amount of the notes. After- wards, without consulting the other defendants, who were, in fact, sureties on the notes, though not signing as such, [564] he discharged the mortgage. The notes were transferred to the plaintiff by the payee after maturity. Davis, J., deliver- ing the opinion, said : " It has been treated as a doubtful ques- tion whether the value of the property stated in the mortgage is not conclusive upon the parties. Admitting that it is con- clusive, it is so only in regard to the value at the date of the mortgage. Any subsequent loss or depreciation may prop- erly be taken into consideration in estimating the value of the property at the time when the mortgage was discharged. And it is obvious that the discharge of the mortgage could have injured the sureties only to the amount of the value of the property so estimated. And, though the sureties are dis- charged to that extent, for the excess of the amount due at the date of the discharge, over and above the value of the property when released, the sureties are still liable.^ But it 1 Blydenburgh v. Bingham, 38 N. 3 Bonney v. Bonney, 29 Iowa, 448. Y. 371 ; American Bank v. Baker, 4 * Loomis v. Fay, 24 Vt 240. Met 164. 5 45 Me. 183. 2Barhydt v. Ellis, 45 N. Y. 107; 6 American Bank v. Baker, 4 Met Vose V. Florida R Co., 50 id. 375 ; 164 ; New Hampshire Savings Bank Underhill v. Palmer, 10 Daly, 478; v. Colcord, 15 N. H. 119; Neff's Ap- Lewis V. Armstrong, 80 Ga. 402 ; peal, 9 W. & S. 36 ; Evejly v. Rice, Rowley v. Jewett 56 Iowa, 492 ; Bed- 20 Pa. St 297 ; Payne v. Commercial well V. Gephart 67 id. 44. Bank of Natchez, 6 Sm. & M 24 1684 SUKETYSHIP. [§ 738. does not follow that they are liable in this action. If an ac- tion at law can be maintained upon the note, it cannot be against the principal and sureties jointlij. For, in such an ac- tion, the defendants cannot be separated in the judgment. They must stand or fall together. But they are not liable for the same amount. How, then, can judgment be entered up? There is no provision of law by which the principal may be held for the whole, and the sureties for a part only, and several executions issued accordingly. ISTor has this court general equity powders, as in some of the states, by which, after judgment against all the parties, the plaintiff may be en- joined from enforcing it against the sureties for the whole amount. Therefore, in an action at law, unless they may ])rove the release of the collateral security as an entire de- fense to the action, they have no remedy.^ In this action, if liable at all, they are liable for the whole amount of the note. Not being liable for the whole, they cannot be held in this suit for any part. If the plaintiff had released the principal he would have discharged the sureties. But a release of col- lateral securities of less value than the amount of the note discharged the sureties pro tanto only. As to the plaintiff's [565] remedy for the balance, it is unnecessary for us to ex- press any opinion." ^ Where the creditor has taken a security from his debtor, after a surety had become bound for the debt under an ar- rangement with the debtor, which binds the creditor in good faith to discharge the security upon an agreed event other than the actual payment of the debt, the discharge of the se- curity pursuant to such an arrangement will not necessarily discharge the surety. This was held in a case "^ involving these facts: A creditor, after the failure of the surety, who was an accommodation indorser of a negotiable note not then due, applied to the maker of the note for further security, who thereupon made a mortgage of real estate sufficient to secure the debt upon the parol condition that the creditor should release the mortgaged premises upon the debtor's pro- viding other satisfactory security, soon after which the debtor became bankrupt, and some months after, and before the note 1 Baker v. Briggs, 8 Pick. 122. 3 Pearl St Cong. Society v. Imlay, 2 See Carroll v. Bowie, 7 Gill, 34. 23 Conn. 10. § 739.] CEEDITOR AGAINST SURETY. 1685 became due, the creditor accepted as security the indorsement of the note by a responsible person under the name of the original surety, and thcrcu):)on, without notice to the original surety, released the mortgaged premises. The fact that the mortgage had been taken and was held by the creditor came to the knowledge of the surety; but the parol agreement to discharge it was wholly unknown to him. It was held in a suit by the creditor against the original surety on the note so indorsed that the above facts constituted no valid defense.' § 739. Creditor's duty to acquire liens. The direct dis- charge of a lien or security for the debt, whether it be one created by contract, or obtained by attachment or execution levy, or by judgment, will relieve a surety to the extent that he suffers loss thereby ; yet, where the loss of a security does not arise from a positive or aflfirmative act of the creditor, but results from his neglect to take some measures to protect or continue it, and render it effectual and productive, the surety has not always the same ground of complaint. As to securi- ties in the hands of the creditor when the surety assumes his obligation, and the existence of w^hich for what they purport to be must be presumed to be contemplated b}^ the [566] surety, conscience and good faith may impose some obligation upon the creditor, assuring the surety against any undisclosed infirmity known to such creditor or traceable to his act;^ and against any disappointment by the failure to do any act neces- sary to make such security effective. Thus, the failure of the creditor to have recorded the bill of sale of a vessel given him as security by the principal, in consequence of which she was taken possession of by a subsequent purchaser, was held to have discharged the surety to the full extent of her value.^ Because of the duty to pay his principal's debt which the surety has assumed and the right vested in him to pay it and become subrogated to the privileges of the creditor, the latter is not bound to take active measures to obtain payment from the principal unless required to do so by the surety's contract ; nor to obtain security ; and it has been held that he is not bound to active diligence to preserve liens which he has ac- 1 See Sheehan v. Taft, 110 Mass. 331. 3 Capel v. Butler, 2 Sim. & Stew- 2 Hayes v. Ward, 4 Johns. Ch. 133 ; art, 457. Russell V. Annable, 109 Mass. 73. 1686 SUEETYSHIP. [§ 739. quired subsequent to the surety becoming bound ; that he may omit to bring suit, or otherwise to prefer the claim against the principal or his estate; ^ that he may omit to take out ex- ecution, or countermand one already issued before levy; may omit to revive a judgment to continue it as a lien, or to enroll it when essential to create a lien;^ or may discontinue an ac- tion whether property has been attached or not.' If the surety has the same opportunity to administer upon the estate of his l)rincipal that the creditor has, equity will not hold the latter re- sponsible for mere neglect/ The rule as stated by the Con- 1 Johnson v. Planters' Bank, 4 Sm. 6 M. 1G5 ; Colien v. Commissioners, 7 id. 437 ; Cain v. Bates, 35 Mo. 427 ; Hathaway v. Davis, 33 Cal. 161 ; Peo- ple V. White, 11 111. 341 ; Hooks v. Bank of Mobile, 8 Ala. 580 ; Miuter V. Branch Bank, 23 Ala. 762 ; Fetrow V. Wiseman, 40 Ind. 148 ; Sibley v. McAllister, 8 N. H. 389 ; McBroom v. Governor, 6 Port. 32; Pearson v. Gayle, 11 Ala. 278 ; Ray v. Brenner, 12 Kan. 105; Villars v. Palmer, 67 111. 204; Mitchell v. Williamson, 6 Md. 210; Vredenberg v. Snyder, 6 Iowa, 39 ; Moore v. Gray, 20 Ohio St. 525 ; Ashby v. Johnston, 23 Ark. 163 ; Dye V. Dye, 21 Ohio St. 86 ; Richards V. Commonwealth, 40 Pa. St. 146; Hagood V. Blythe, 37 Fed. Rep. 249 ; Grisard v. Hiuson, 50 Ark. 229 ; Ben- edict V. Olson, 37 Minn. 431; Ed- wards v. Dargan, 30 S. C. 177 ; Alex- ander V. Byrd, 75 Va. 690 ; Cochran V. Orr, 94 Ind. 433 ; Martin v. Orr, 96 id. 491; Clark v. Sickler, 64 N. Y. 231 (no distinction made be- tween indulgence with the expressed consent or even request of the cred- itor and silent delay if there is no change in the contract); Wasson v. Hodshire, 108 Ind. 26 ; Star Wagon Co. V. Swezy, 63 Iowa, 520; Otis v. Von Storch, 15 R. I. 41 ; French v. Bates, 149 Mass. 73, 81; Smith v. Freyler, 4 Mont. 489 ; Harris v. New- ell, 42 Wis. 687 ; Hawkins v. Minis, 36 Ark. 145. But see McCollum v. Hinkley, 9 Vt. 143 ; Dorsey v. Way- man, 6 Gill, 59. 2 United States v. Simpson, 3 Penn. 437; Mandorflf v. Singer, 5 Watts, 172 ; The Farmers' Bank v. Reynolds, 13 Ohio, 84; Pickens v. Finney, 12 Sm. & M. 468 ; McGee v. Metcalf, 12 Sm. & M. 535 ; Bellows v. Lovell, 4 Pick. 153 ; 5 id. 307 ; Chipman v. Todd, 60 Me. 282 ; Schroeppell v. Shaw, 3 N. Y. 446 ; Terrel v. Townsend, 6 Tex. 149; Knight v. Charter, 22 W, Va. 422 ; Kindt's Appeal, 102 Pa. St. 441 ; Winton v. Little, 94 id. 64 ; First Nat Bank of Charlotte v. Homesley, 99 N. C. 531 ; Forbes v. Smith, 5 Ired. Eq. 369; Brown v. Chambers, 63 Texas, 131 ; Crawford v. Gaulden, 83 Ga. 173 ; Lumsden v. Leonard, 55 Ga, 374; Fuller v. Tomlinson, 58 Iowa, 111 ; Adams & French Harvester Co. V. Tomlinson, id. 129. See Coombs V. Parker, 17 Ohio, 289 ; Wornell v. Williams, 19 Tex. 180; Herrick v. Orange Co. Bank, 27 Vt. 584 ; 2 Am. Lead. Cas., notes to Pain v. Packard and King v. Baldwin, 364-418 ; note to Rees v. Berrington, 2 Lead. Cas. in Eq. 1867. 3 Bank v. Rogers, 16 N. H. 9 ; Barney V. Clark, 46 id. 513 ; Somerswortli Savings Bank v. Worcester, 76 Me. 327, applying the rule in New Hamp- shire in a case governed by its law. < Grindol v. Ruby, 14 111. App. 439. § 739.] CREDITOR AGAINST SURETV. 1G87 necticut court is sustained by the cases cited to this section : In order to discharge a surety there must be a release of " some mortgage, pledge or lien, some right or interest in property which the creditor can hold in trust for the surety and to which the surety, if he pays the debt, can be subrogated, and the right to apply or hold must exist and be absolute." ' This rule will not apply where the failure to sue or the forbear- ance in other matters results from a contract between debtor and creditor,^ although there is no injury sustained by the surety;^ nor where the neglect is so gross as to amount to fraud.'' As the creditor is a trustee in respect to any security he may obtain for the debt for which a surety is bound, he would seem to owe, as a duty to the surety, ordinary diligence at least to preserve it. And when it is lost in consequence [567] of a want of that diligence, the surety is relieved to the same extent as when the creditor by a positive act relinquishes or otherwise renders it unavailing. The latter is not bound to exert himself to obtain a lien ; but if he chooses to do so, he is bound to ordinary care and diligence in preserving it for the interest of all parties concerned.^ In Taft v. Gilford ^ D. as 1 Glazier v. Douglass, 33 Conn. 393 ; Tyler v. Waddingham, 58 id. 375, 398. 2 Forbes v. Sheppard, 98 N. C. Ill ; Stuart V. Lancaster, 84 Va. 772 ; Day V. Martin, 78 id. 1 ; Newark v. Stout, 52 N. J. L. 35, 47 ; Callaway's Ex'r v. Price's Adm'r, 33 Gratt. 1 ; Farns- worth V. Coots, 46 Mich. 117. 3 Forbes v. Sheppard, 98 N. C. Ill * Newark v. Stout, 52 N. J. L. 35, 47, 5 City Bank v. Young, 43 N. Y. 457 Sherraden v. Parker, 34 Iowa, 28 Wulff V. Jay, L. R. 7 Q. B. 756 Lochrane v. Solomon, 38 Ga. 286 Merchants' Bank v. Cordevoille, 4 Rob. (La.) 506 ; Saulet v. Trepagnier, 2 La. Ann. 427; Ramsey v. West- moreland Bank, 2 Penn. 203 ; Watts V. Shuttleworth, 5 H. & N. 235 ; Gil- lespie V. Darwin, 6 Heisk. 21 ; Hayes V. Little, 52 Ga. 555 ; Clopton v. Spratt, 53 Miss. 251 ; Slatterly v. Police Jury, 2 La. Ann. 444 ; Watson v. Alcock, 1 Smale & Giflf. 319 ; affirmed, 4 De- Gex, Mac. & G. 242 ; Ex parte Mure, 2 Cox, 63 ; Miller v. Berkey, 27 Pa, St 317; Toomer v. Dickerson, 37 Ga. 428 ; Burr v. Boyer, 2 Neb. 265 ; Teaflf V. Ross, 1 Ohio St 469 ; Mayhew v. Crickett, 2 Swanst 185. See Black River Bank v. Page, 44 N. Y. 453. There is a conflict of authority on this proposition. In Nebraska and Georgia it is held that the creditor's neglect to file a chattel mortgage ex- onerates the surety pro tanto. Too- mer V. Dickerson, Burr v. Boyer, supra. The same rule is applied to such neglect of a real estate mort- gage in Ohio (Teaff v. Ross, supra) ; but it is otherwise in Indiana and 6 13 Met 187. 1688 SUKETYSHIP. [§ 739. principal, and G. as surety, gave a joint note to T., in March, 1841, pa3^able in April, 1813. In April, 1813, T. demised a farm to D. for one year, by a written lease which contained a provision that the produce and profits of the farm should be holden for the payment (among other debts of D.) of the afore- said note. T. took no measures to obtain the produce of the farm, but permitted D. to dispose of it without objection ; G. had no knowledge of these provisions in the lease until after D. had disposed of such produce. Held, in a suit by T. on the note, that his omission to obtain the produce of the farm and apply it to the pa3nnent or part payment of the note did not discharge G. from his liability to pay it in full. The princi])al ^vas defaulted and the surety defended. His defense was put on the ground that the plaintiff voluntarily relinquished a security which was given- him by the principal, and from which the whole or a part of the amount of this note might have been realized ; that, by a rule of equity, adopted as a rule of law, the defendant is discharged in full ov pro tanto. Shaw, C. J., said: " The court are of opinion that the facts do not bring the case within the principle stated, even supposing — of which w^e give no opinion — that this would be a good defense in a joint action upon a joint note against principal and surety. [568] The plaintiff received nothing under this provision. It was a mere executory agreement authorizing the plaintiff to take possession of the produce when it should come into ex- istence; and if he had exercised that power and taken such possession before the right of any creditor or purchaser had intervened it might have given him a lien.^ But until posses- sion taken he had no lien, and could not hold the produce against a honafide purchaser or attaching creditor.^ And we think he was not bound to any active diligence in availing himself of the power to obtain a lien any more than the holder South Carolina. Philbrooks v. Mc- use reasonable diligence to that end Ewen, 29 Ind, 347 ; Lang v. Brevard, releases the latter, though he has not 3 Strobli. Eq. 59 ; Hampton v. Levy, taken any steps to hasten the per- 1 McCord Eq. 107. formance of the creditor's duty. If an assignee of the creditor takes Crim v. Fleming, 101 Ind. 154 ; Smith securities held by him with knowl- v. McKean, 99 id. 101. edge of an express agreement be- l Bartlett v. Williams, 1 Pick. 288. tween the former and the surety that 2 Jones v. Richardson, 10 Met 481. they shall be collected, the failure to § 740.] CREDITOR AGAINST SURETY. 1689 of a note, with a surety, is bound to active diligence in securing his note by attachment of the property of the principal when he has an opportunity to do so.' It was a collateral security, not given at the time the note was made, but afterwards, and not taken with the knowledge or for the use and benefit of the suret}^ It was a means of obtaining a pledge at the op- tion of the plaintiff, of which he might have availed himself or not, but it did not constitute an actual security. The plaint- iff's forbearing to act upon this executory agreement, and tak- ing no measures to enforce it, was not such a voluntary relin- quishment of any pledge or security as to bring the case within the principle relied on by the defendant." - § 740. Value of released securities. Where the creditor has released a security to the benefit of which the surety would be entitled on the performance of his contract, whether the latter is injured, or on w^hich party is the burden of proof in respect to the amount of damages, depends largely on the facts of the particular case. Where a judgment against the principal was discharged, and there was no proof as to its value, it was presumed to be of its face value.^ This conclusion Avould seem to be correct on the general presumption of solv- ency, and without invoking the principle stated, which is undoubtedly correct, "that when the amount is made incapa- ble of estimation by the act of the wrong-doer he must be made responsible for the value it may, by reasonable possi- bility, turn out to be of." A creditor who held sundry de- mands as a collateral security for a debt for which a [569] surety w^as also bound compromised with the debtors in such demands and sued the surety for such deficiency. The plaintiff insisted that these compromises Avere prima facie beneficial, rather than prejudicial, to the defendants, and if not so, it was incumbent on them to prove it, it being reported by the master that the compromises were made in good faith. The court said, however, that it w^as not sufficient for the plaintiff to prove that they acted in good faith. They might thus act, 1 1 Story's Eq., § 325. lien on his debtor's property the onus ^Grisard v. Hinson, 50 Ark. 229. is on him, in a suit against the surety, 3 Fielding v. Waterhouse, 40 N. Y. to show that the latter was not in- Super. Ct. 424. jured thereby. Allen v. O'Donald, Where a creditor relinquishes a 28 Fed. Kep. 573. 1690 SUEETYSHIP. [§ 741. on the opinion that they were authorized to make the com- promise without consulting the sureties; or they might think the compromises would be beneficial to them. But if they have in fact been prejudicial and not beneficial, the plaintiffs are clearly responsible, and must account for the securities at their nominal or real value. And they are bound to prove all the facts and circumstances in reference to which the compro- mises were made. If these should be proved, and it should thereupon appear that the-defendants have not been and can- not be prejudiced by the compromises, then another question would be raised, namely, whether the plaintiffs would be bound to account for the securities at their nominal or real value.^ There is doubtless a presumption that the surety is injured by the release of any security, but this presumption would not of itself entitle him to any substantial deduction from the debt ; but securities usually import a certain value or amount secured, and the value or amount thus indicated may usually be taken as a measure of the actual value in the absence of countervailing evidence.- § 741. Surety's right to put creditor in motion. The doctrine that a surety may call upon his creditor to collect the debt by legal proceedings against the principal debtor, although such duty is not expressly assumed by the contract, and that the surety is discharged to the extent that he is damaged by the creditor's delay, was established at law in New York in Pain v. Pacl^ard,^ and approved by the court of errors in King v. Baldwin,* overruling the court of chancery.^ The principle has not been formally denied, but the courts have not been disposed to apply it except in cases where the surety became such at the inception of the contract, or the relation had its origin in dealings between the parties originally bound by the contract subsequent to its inception of which the cred- itor had notice." It does not appl}'^ where there is a guaranty of payment made b}^ a vendor on the sale to the plaintiff of a 1 American Bank v. Baker, 4 Met. * 17 Johns. 884. 164. 5 2 Johns. Ch. 558. 2 See Cummiugs v. Little, 45 Me. ^ gee Trimble v. Thorne, 16 Johns. 183 ; Vose v. Florida R. Co., 50 N. Y. 151 ; Colgrove v. Tallman, 67 N. Y. 369. 95 ; Remsen v. Beckman, 25 id. 553. 3 13 Johns. 174 § T41.] CKEDITOR AGAINST SUEETY. IGOl bond and mortgage, the former receiving the full amount of the security as the consideration of the transfer, so as to re- lease the defendant from liability on his guaranty by reason of the neglect of an assignee of the bond and mortgage to proceed after notice to collect it, the property meanwhile having depreciated in value, and the obligor having become insolvent.^ The Tennessee and Pennsylvania courts have ap- plied or recognized the same rule ; ^ but it has been said by the former that it goes to the verge of the law.^ A surety can- not claim any benefit from his notice and the creditor's neg- lect to act upon it unless he establishes the solvency of his principal at the time notice was given and his subsequent in- solvency. The principal is not solvent unless he is able to pay all his debts according to the ordinary usage of trade/ The surety's notice must expressly state that he will consider himself discharged if the creditor does not proceed.^ The ex- istence of the right in the surety to put the creditor in motion and to claim any benefit from his failure to act pursuant to the notice is denied by the great weight of authority.'' In several states statutes have been enacted which empower the surety to call upon the creditor to pursue the debtor by legal proceedings, and release the surety from liability if he is injured by the creditor's neglect to do so. The recent cases construing these statutes are collected in the note below ; for obvious reasons they cannot be treated of here.' 1 Newcomb v. Hale, 90 N. Y. 326. v. Young, 6 G. & J. 243 ; Pintard v. 2 Hancock v. Bryant, 2 Yerg. 476 ; Davis, 21 N. J. L. 632 ; Broughton v. Thompson v. Watson, 10 id. 362 ; Duvall, 3 Call, 61 ; Dennis v. Rider, Cope V. Smith, 8 S. & R. 110. 2 McLean, 451 ; Carr v. Howard, 8 3 Burrows v. Bank of Tennessee, G Blackf. 191; Turner v. Hale, 8 Kan. Humph. 440. 38; Ingels v. Sutliff, 36 id. 444. 4Herrick v. Borst, 4 Hill, 650; ^ Alexander v. Byrd, 85 Va. 690; Marsh v. Dunckel, 25 Hun, 167. Coles v. Ballard, 78 id. 139 ; Hay ward 5 Jackson v. Huey, 10 Lea (Tenn.), v. Fullerton, 75 Iowa, 371; Moore v. 184. See Hunt v. Purdy, 82 N. Y. Peterson, 64 id. 423 ; German Amer- 486 ; Coykendall v. Constable, 48 ican Bank v. Denmire, 58 id. 137 ; Hun, 360. Medley v. Tandy, 85 Ky. 566 ; Clark 6 Harris v. Newell, 42 Wis. 687; v. Barrett, 19 Mo. App. 39; Boat- Hubbard v. Davis, 1 Aiken, 296 ; men's Savings Bank v. Johnson, 24 Hickok V. Farmers' Bank, 35 Vt. id. 316; Sisk v. Rosenberger, -82 Mo. 476; Page v. Webster, 15 Me. 269; 46; Hickam v. HoUiugsworth, 17 id. Mahurin v. Pearson, 8 N. PL 539 ; 475 ; Koenig v. Bramlett, 20 Mo. App. Bull v. Allen, 19 Conn. 101 ; Saseer 636 ; Clark v. Osborn, 41 Ohio St 1692 SUEETYSHIP. [§ 74:2. § 742. Release oi one or more of several parties. The creditor will discharge sureties, or reduce his recovery against them by releasing any party to whom they might have re- course for reimbursement or contribution after payment of the debt. Where the obligation is joint, a release of one, whether principal or surety, will, at law, discbarge all ; but the rule is otherwise in equity.' The discharge of the princi- pal will always discharge the sureties ; " for he is bound to re- [570] imburse them; and if the creditor releases him, or he makes a successful defense to the action on the merits, he is no longer under that obligation.' "Where a suit Avas brought against a sheriff and the two sureties on his official bond, on the first trial judgment was recovered against all ; the sheriff appealed, but the sureties did not, and on the final trial he 28; Baker v. Kellogg, 29 id. 663; Merrillan Silver Plate Co. v. Flory, 44 id. 430; Cochran v. Orr, 94 Ind. 433 ; Martin v. Orr, 96 id. 492 ; Darty V. Robinson, 86 id. 382. 1 Rice V. Morton, 19 Mo. 263 ; State V. Matson, 44 Mo. 305; Towns v. Riddle, 2 Ala. 694 ; Woolley v. Louis- ville Banking Co., 81 Ky. 527, 539; Potter V. Gronbeck, 117 111. 404. 2 A discharge under the national bankrupt act of 1867 did not affect the sureties (Cilley v. Colby, 61 N. H. 63 : Bank v. Simpson, 90 N. C. 467) ; though such discharge could not have been obtained but for the cred- itor's act. Ex parte Jacobs, L. R. 10 Ch. 211; Sigourney v, Williams, 1 Gray, 623 ; Guild v. Butler, 122 Mass. 498. Contra, Calloway v. Snapp, 78 Ky. 561. If the surety is fully indemnified against loss the i-elease of his princi- pal, without his consent and without payment, does not affect him. Jones V. Ward. 71 Wis. 152 ; Fay v. Tower, 58 id. 286. Nor will any act or omis- sion of the creditor. Crim v. Flem- ing, 101 Ind. 154. 3 Beale v. Cochran, 18 Ga. 38 ; Mc- Closky V. Wingfield, 29 La. Ann. 141. In Bank v. Robinson, 13 Ark. 214, it was held that if separate suits be brought for the same cause of ac- tion against co-obligors, where one is principal and the other is surety, and the principal is discharged on the trial on a plea to the merits which would inure to the benefit of both if sued jointly, as a plea of pay- ment or accord and satisfaction, such judgment in favor of the prin- cipal is not an estoppel against the plaintiff if pleaded by the suretj^ in bar of the action against him. There is no privity between principal and surety, and the parties are not the same in the two suits ; the questions in one are not precluded by the de- cision in the other. While it is true that satisfaction from either will conclude the creditor, and prevent his obtaining it again, yet he is not concluded by the decision in one case so that he may not, in the other, insist that he has not received satis- faction. See McKellar v. Bowell, 4 Hawks, 34; Douglass v. Rowland, 24 Wend. 58; Jackson v. Griswold, 4 Hill, 528 ; Hudson v. Robinson, 4 M. & S. 475. If a judgment is rendered against § T42.] CEEDITOE AQATNST SURETY. 1093 was acquitted, it was held that the first judgment could not be enforced against the sureties.' If, however, when the ])rin- cipal is released the right of action against the sureties is re- served they are not discharged.^ So if, in the discharge of one of several sureties, the right of action against the others is reserved their rights are not affected by such discharge ; for the discharged surety will still be liable for contribution.^ But without such reservation the discharge of one would be an injury to the others to the extent of such right to contribn tion. The release of one surety cannot be permitted to [571 | increase the obligation of the others ; therefore, so much of the debt as the released party would otherwise have been bound to pay by way of contribution is discharged by his re- lease.* A Missouri statute abro2:ates the rule that the volun- the maker of a non-negotiable note in proceedings supplementary to ex- ecution before notice is given of the assignment of the note, which judg- ment requires him to pay a certain portion of it to the judgment cred- itor's payee, such judgment is a defense jjro tanto to the principal and his sureties in a subsequent ac- tion on the note by the payee or his assignee. Bostwick v. Bryant, 113 Ind. 448. 1 Trotter v. Strong, 63 111. 273; State V. Matson, 44 Mo. 305 : Brown V. Ayer, 24 Ga, 288 ; Rogers v. School Trustees, 46 111. 428 ; Tyner v. Hamil- ton, 51 Ind. 259 ; Stockton v. Stock- ton, 40 Ind. 225 ; Vose v. Florida R. Co., 50 N. Y. 3«i9 ; McMillon v. Mc- Millon, 7 Lea, 78; Coots v. Farns- worth, 61 Mich. 497. 2 Boatmen's Savings Bank v. John- eon, 24 Mo. App. 316 ; Tobey v. Ellis, 114 Mass. 120; Mueller v. Dobschuetz, «9 111. 176 : Stirevvell v. Martin, 84 N. C. 4 ; Morse v. Huntington, 40 Vt. 488 ; Hood v. Hayward, 48 Hun, 330 ; Smith V. Winter, 4 M. & W. 454; Boultbee v. Stubbs, 18 Ves. 20 ; Kears- ley V. Cole, 16 M. & W. 128 ; Owen V. Homan, 3 Eng. L. & Eq. 125 ; Ex parte Gifford, 6 Ves. 805; Note to Dunn V. Slee, 1 Holt's N. P. 399; Kirby v. Turner, 6 Johns. Ch. 242 ; S. C, Hopk. Ch. 309; Union Bank v. Beech, 3 Hurl. & Colt. 672 ; Bateson V. Gosling, L. R. 7 C. P. 9 ; Hall v. Thompson, 9 Up. Can. C. P. 257: Green v. Wynn, L. R. 4 Ch. App. 204 ; S. C, L. R. 7 Eq. Cas. 28 ; Hubbell v. Carpenter, 5 N. Y. 171. See Austin v. Dorvvin, 21 Vt. 38. This rule governs where there is an agreement by the creditor not to sue the principal debtor within a stated time, and the right is reserved to sue the other parties who are bound. Kenworthy v. Sawyer, 125 Mass. 28 ; Hagey v. Hill, 75 Pa. St. 108. And where there is an abso- lute obligation not to sue one of several sux'eties. Bowne v. Mount Holly Nat. Bank, 45 N. J. L. 360. 3Clapp V. Rice, 15 Gray, 557; Thompson v. Lack, 3 C. B. 540 ; S. C, 54 Eng. C. L. 540. * Gordon v. Moore, 44 Ark. 349; Jemison v. Governor, 47 Ala. 390 ; State V. Matson, 44 Mo. 305 ; Dodd v. Winn, 27 Mo. 501 ; Rice v. Morton, 19 Mo. 263; Sterling v. Forrester, 2 Bligh, 575 ; Hodgson v, Hodgson, 2 Keen, 704; Morgan v. Smith, 70 N. Y. 537. 1694 SURETYSHIP. [§ 743. tary release of one surety discharges the liability of his co- sureties. But it has been ruled in equity, notwithstanding the statute, that where a levy made on the property of one surety by the request of a co-surety has been released by the cred- itor on the payment of a portion of the value of the property levied on, the other surety may claim the benefit of the full value of the property in diminution of his liabilit}''.' § 743. Surety's right to defeud between principals. A surety has the right for protection of his own interest to de- fend a suit brought against his principal though not himself a party.^ When sued with the principal he has, of course, the same right, and may set up any defense which pertains to the debt or demand. The payee of a note brought suit thereon for the use of a third person who had become the owner against one of the promisors, a surety; the consideration of the note was the sale of a tract of land by the payee to the principal. At the time of the sale there was an unsatisfied judgment against the vendor operating as a lien upon the land, and this judgment the beneficial plaintiff authorized the prin- cipal to discharge, promising to allow it as a credit against the note, and it was accordingly discharged. It was held that the promise to the principal inured to the surety; that it w^as a direct and original undertaking to allow the payment, not within the statute of frauds, and the instant it was made the note was extinguished jpro tanto? So where money was paid by a tenant for repairs which the landlord agreed to pay by deduction from the rent, it was held to be in effect a payment on account of rent, and as such should be allowed in favor of the surety.* He has a right to set up the defense that the con- tract was void in its inception, or an}'- defense " inherent to the debt," ^ but not those which are personal to the debtor.^ He 1 Lower v. Buchanan Bank, 78 Mo. * Rosenbaum v. Gunter, 3 K D. 67. Smith, 203. 2 Jewett V. Crane, 35 Barb. 208. 8 Conger v. Babbet, 67 Iowa, 13 ; An indemnitor who is not per- Huntress \^ Patton, 20 Me. 28 ; Deni- mitted to furnish evidence in defense son v. Gibson, 24 Mich. 187 ; Morse v. of his principal is not bound by the Hovey, 9 Paige, 197 ; Carrol Co. Sav- judgment. Peterborough Real Es- ings Bank v. Strother, 28 S. C. 504. tate Investment Co. v. Ireton, 5 Ont 6 Baldwin v. Gordon, 12 Martin 47. (La., O. S.), 373 ; Savage v. Fox, 60 N. 3 Cole V. Justice, 8 Ala. 793. H. 17; Wagoner v. Watts, 44 N. J. § 743.] CKEDITOE AGAINST SURETY. 1695 cannot, however, control the principal in respect to a defense which may be waived by his act. Thus, a surety to a bond for the purchase-money of a tract of land cannot set up [572] eviction b}^ title paramount from the greater part of the tract, for the purpose of avoiding the contract, when the principal himself has acquiesced in a pro rata abatement of the price.^ The surety will not be precluded from making a defense merely because the principal will not join in it.^ When the defense of usury is not available to the latter, it cannot be made by the surety; as where the principal is prohibited by statute from setting up that defense.* A bill was made by the principal in Ohio, taken to Virginia and there signed by the surety ; it was usurious by the laws of Yirginia but valid in Ohio, and it was held that the surety could not defend by re- course to the laws of Yirginia.* The failure of a surety to defend will not affect his right to indemnity unless it results from negligence in a case where an appearance would have been beneficial to the principal.-^ The surety, when sued alone, may preserve his right to indemnity by giving his principal notice of the action and imposing upon him the responsibility of the defense. In such a case the prin- L. 126 ; Wiggins' Appeal, 100 Pa. St. Also where the indorser of a note 155 ; Winn v, Sanford, 145 Mass. 303 ; becomes such without knowing that Kimball v. Newell, 7 Hill, 116; Weed it was executed by the maker under Sewing M. Co. v. Maxwell, 13 Mo. duress at the hands of the holder. 486. The indorser in such a case is de- It is generally held that the de- prived of his right of subrogation, fense of duress at common law, Griffith v. Sitgreaves, 90 Pa. St. 161. where no statutory right has been See, as indicating a contrary view on violated, is personal to the individual the general proposition, Strong v. who has been subjected to it. Hans- Grannis, 26 Barb. 122 ; Osborn v. combe v. Standing, Cro. Jac. 187 ; Robbins, 36 N. Y. 365. Wayne v. Sands, 1 Freeman, 351 ; i Commissioners v. Executors of Oaks V. Dustin, 79 Me. 23 ; Hazard v. Robinson, 1 Bailey, 151. Griswold, 21 Fed. Rep. 178 ; Robin- 2 Morse v. Hovey, 9 Paige, 196. son v. Gould, 11 Cush. 55. There is 3 Rosa v. Butterfield, 33 N. Y. 665; an exception to the rule when the Belmont Branch of State Bank v. surety is a husband, wife, parent or Hoye, 35 N. Y. 65 ; Union Nat. Bank child, and the principal is either of v. Wheeler, 60 N. Y. 618 ; Savage v. these. Harris v. Carmody, 131 Mass. Fox, 60 N. H. 17. See Merchants' 51, and cases there cited. And where Nat Bank v. Commercial Ware- a statutory right is violated. Thomp- house Co., 49 N. Y. 635. son V. Lockwood, 15 Johns. 256; * Pugh v. Cameron, 11 W. Va. 523. Ha Vires v. Marchant, 1 Curt. 136. 5 Doran v. Davis, 43 Iowa, 86. 1696 suRETYsnip. [§ 744. cipal is bound by the judgment.' Where the surety so sued notifies his principal so as to enable him to defend, or to fur- nish the surety with a defense, the judgment is conchisive be- tween them where there is no collusion ; and, if satisfied by the surety, is the measure of damages against the principal. It would be iniquitous for the principal to stand by and see an excessive recovery against his surety, which he alone could prevent, and then set up the defense when his surety sues him,- The suret3^'s failure to defend or give the principal notice will not prejudice his right to recover from the latter what he is compelled to pay unless he knows of a defense.^ [573] § 744. Surety may set up right of recoupmeut. The weight of authority favors the right of the surety to set up the principal's defense consisting of a right of recoupment.* In the Michigan case cited the principal was sued with the surety on a note given for the price of personal property sold with warranty, and it was insisted that the two defendants were not entitled to recoup the damages arising on the breach of warranty on a sale to one. Christianc}^, J., said : " If re- coupment were allowed on the same principle as set-off merely, this objection would be insurmountable. A set-off is in the nature of a cross-action to the full extent ; it does not deny the validity of any part of the plaintiff's claim or cause of action, but sets up a separate and independent claim against the plaintiff; and the defendant is entitled to judgment upon any surplus of his claims beyond those of the plaintiff. A defense by way of recoupment denies the validity of the plaintiff's cause of action to so large an amount as he claims. It is not an independent cross-claim like a separate and dis- tinct debt or item of account due from the plaintiff, but is confined to matters arising out of, or connected with, the iKonitzky V. Meyer, 49 N. Y. 571; Aultman & T. Co. v. Heffner, 67 Hare v. Grant, 77 N. C. 203 ; Rice Texas, 54, 62 ; Hollister v. Davis, 54 V. Rice, 14 B. Mou. 417 ; Thomas v. Pa. St. 508 ; Cole v. Justice, 8 Ala, Beckman, 1 B. Mod. 29 ; Wallace v. 793 ; Becker v. Northway, 44 Minn Straus, 113 N. Y. 288. 61 ; Himrod v. Baugh, 85 111. 435 2 Hare v. Grant, 77 N. C. 203. Hayes v. Cooper, 14 III. App. 490 3 Williams v. Greer, 4 Hay w. 235 ; Brundridge v. Whitecomb, 1 Chip, Stinson v. Brennan, Cheves, 15. See (Vt.) 180 ; Jarratt v. Martin, 70 N. C. Harley v. Stapleton, 24 Mo. 248. 459 ; McHardy v. Wadsworth, 8 Mich. < Andrews v. Varrell, 46 N. H. 17 ; 349 ; Waterman v. Clark, 76 111. 428. § 744:.] CKEDITOR AGAINST SURETY. 1697 contract or transaction which forms the basis of the plaintiff's cause of action. It goes only in abatement or reduction of the plaintiff's claim, and can be used as a substitute for a cross-action only to the extent of the plaintiff's demand. J^o judgment can be obtained by the defendant for any balance in his favor, . . . Now the only consideration given for the note was received by . . . [one of the defendants.] [The other] . . . though a joint maker in form, would seem to have been, as between himself and the other defend- ant, but a surety; and it is difficult to discover any good rea- son why he should not be entitled to any defense connected, with the consideration which would be available to the real principal in the transaction had he made the note and been sued alone. If the consideration paid to the former inures to- bind the latter, can there be any good reason why a want or failure of that consideration should not inure to his benefit?' We can discover no more reason why the defense in the pres- ent case should not inure to the benefit of both defendants- than if it had been a defense by way of payment, want [574] or failure of consideration for the note, or fraud in the sale- for which the note was given. It prevents circuity of action,, and accomplishes full justice to all the parties without the violation of any rule of law." In New Tork^ this defense in a precisely similar case, ex- cept that the action was brought against an accommodation in- dorser alone, was excluded. Selden, J., said: "If we regardi such defenses as resting upon a failure of consideration of the' contract on which the plaintiff's action is founded, then, un- questionably, the defendant could avail himself of a breach of warranty in this case, because an indorser or surety may al- ways, where the contract has not been assigned, show a fail- ure, partial or total, of consideration of his principal's con- tract which he is called upon to perform. But if such defenses are regarded as the settino^ off of distinct causes of action on© against the other then it is clear . . . that this defendant cannot avail himself of such defense." After remarking that there is no general concurrence of opinion, whether the reduc- iGillespie V.Torrance, 25 N.Y. 306, N. Y. 19; Thalheimer v. Crow, 13 affirmed in Lasher v. Williamson, 55 Colo. 397 ; Coffin v. McLean, 80 N. Y. N. Y. 618. See Springer v. Dwyer, 50 560; Harris v. Rivers, 53 Ind. 216. Vol. 11 — 107 1698 SURETYSHIP. [§ 744. tion of the plaintiff's claim by recoupment rests upon partial failure of consideration or upon the setting off of distinct claims against each other,' he continued: "A careful consider- ation of the subject, I think, must lead to the conclusion that wherever recoupment, strictly such, is allowed, distinct causes of action are set off against each other. This would seem to follow from the right of election, which all the cases admit the defendant has, to set up his claim for damages by way of de- fense, or to resort to a cross-action to recover them. . . . In ordinary cases of breach of warranty . . . both con- tracts remain binding to their full extent; and where recoup- ment is allowed, damages for a breach on one side are set off against like damages on the other side. The ' cross-claims aris- [575] ing out of the same transaction compensate one another and the balance only is recovered,' It has always been op- tional . . . since the doctrine of recoupment has gained a foothold in the courts with a party who has sustained damages by fraud or breach of warranty in the purchase of goods, when sued for their price, to set off or recoup such damages in that action, or to reserve his claim for a cross-action ; and when he elected to recoup, he could not . . . have a balance certi- fied in his favor, nor could he maintain a subsequent action for such balance." He remarked that under the code of pro- cedure a balance might doubtless be recovered, but that the right of election to set up a counter-claim in defense or to bring a cross-action still exists; and added that "it is not easy to reconcile with these established principles the right of the defendant in this suit to avail himself of the claim which . . . [the principal] . . . may have against the plaintiff on a breach of warranty. 1. Such damages constitute a counter- claim, and not a mere failure of consideration, and, not being due to the defendant, cannot be claimed by him.^ 2. . . , [The principal] has a right of election whether the damages shall be claimed by way of recoupment in the suit on the note ' Citing McAllister V. Reab, 4 Wend. Barber v. Rose, id. 78 ; Basten v. But- 483 et seq.; S. C. in error, 8 id. 109; ter, 7 East, 479; Withers v. Greene, Batterman v. Pierce, 3 Hill, 171, 177 ; 9 How. (U. S.) 213. Ives V. Van Epps, 22 Wend. 155 ; 2 Code, § 150 ; Lemon v. Trull, 18 Nichols V. Dusonbury, 2 N. Y. 286; How. Pr. 248; 16 id. 576, note. Van Epps v. Harrison, 5 Hill, 66; § 745.] sukety's remedies for ixdemnitt. 1699 or reserved for a cross-action. The defendant cannot make the election for him. 3. If the defendant has aright to set up the counter-claim and have it allowed in this action, it must bar any future action by [tlie principal] for the breach of war- ranty : and as no balance could be found in the defendant's favor he might thus bar a large claim in canceling a small one. ... 4. Supposing the other notes given for the tim- ber to have been indorsed by different persons, for the accom- modation of [the principal], and all to remain unpaid, each of the indorsers would have the same rights as the defendants. If they were to set up the same defense, how would the con- flicting claims be reconciled? " If the principal and his surety are sued jointly a right of recoupment established by the for- mer inures to the latter's benelit.' It is a general rule of equity that a surety who is jointly bound with his principal may, independently of statute, off- set against a suit for joint indebtedness his individual claim against the creditor where both he and the principal are in- solvent.^ Section 2. sukety's remedies for indemnity. § 745. Action against principal for money paid. It [576] is an equitable principle of very general application that where one person is a mere surety for another, whether he became so by actual contract or by operation of law, if he is compelled to pay the debt which the other in equity and justice ought to have paid, he is entitled to relief against the other, who was, in fact, the principal debtor. And when courts of law a long time since fell in love with a part of the jurisdiction of the court of chancery and substituted the equitable remedy of an action of assumpsit upon the common money counts for the more dilatory and expensive proceeding by a bill in equity in certain cases, they permitted the person thus standing in the situation of surety, who had been compelled to pay money 1 Springer v. Dwyer, 50 N. Y. 19. Md. 217; Wulschner v. Sells, 87 Ind. 2 Clark V. Sullivan, 49 N. W. Rep. 73; Brewer v. Norcross, 17 N. J. Eq. 416 (North Dak.) ; Merwin v. Austin, 219 ; Rothschild v. Mack, 42 Hun, 75 ; 52 Cona 22 ; Levy v. Steinbach, 43 Davidson v. Alfaro, 80 N. Y. 660. 1700 SUKETYSHIP. [§ 74G. for the principal debtor, to recover it from the person who ought to have paid it in this equitable action of assumpsit as for money paid, laid out and expended for his use and bene- fit.^ The hkw implies a promise by the principal to the surety to indemnify hira by refunding all sums of money he may have to pay as such surety. There exists in the surety an equity from the time of his assuming that relation, but no perfect right of action accrues until actual payment.^ But if there is an express agreement of indemnity made by the prin- cipal the surety must rely upon it; none is implied.' [577] § 746. Who is the principal. The surety can maintain an action only against his principal and one whose legal liability is discharged. The law does not imply a promise by other persons who may be benefited by the payment.* There was accepted for the United States the individual bond of one of several partners for duties due from the firm. In this bond a surety was bound; and, having been compelled to pay, it was held that only the partner who was principal therein was lia- ble to indemnify him. When the surety paid the money he discharged only the obligation in that bond ; and the principal who executed the bond, and who was relieved by the payment, was alone liable to reimburse hira.^ Kent, C. J., said : " There is no privity between the parties but what arises from the bond. It would be refining upon the doctrine of implied assumpsits, and going beyond every case, to consider the surety in a bond as having, by that act, a remedy at law against other persons for whom the principal in the bond may have acted as trustee. . . . The principal here was, as is stated, a surety for the debt of his firm ; and that debt might perhaps have arisen by tlieir being sureties for other persons 1 Hunt V. Amidon, 4 Hill, 345 ; 14 Ala, 505 ; Thompson v. Wilson, 13 Exall V. Partridge, 8 T. R 308 ; Tous- La. 138. saint V. Martinnant, 2 id. 105 ; Taylor 3 Toussaint v. Martinnant, 2 T. R V. Mills, 2 Covvp. 525 ; Preslar v. 105 ; Wesley Church v. Moore, 10 Pa. Stallworth, 37 Ala. 402. St. 273. 2 Barney v. Grover, 28 Vt. 391; ^Tom v. Goodrich, 2 Johns. 213; Sargent v. Salmond, 27 Me. 539; Sluby v. Champlin, 4 id. 460; Marsh Choteau v. Jones, 11 111. 300; Rice v. v. Hay ford, 80 Me. 97. See Russell Southgate, 10 Gray, 142 ; Konitzky v. Annable, 100 Mass. 72. V. Meyer, 49 N. Y. 571 ; Ward v. 5 Tom v. Goodrich, supra. Henry, 5 Conn. 595 ; Collins v. Boyd, § 746.] surety's remedies for indemnity. 1701 still behind them. We can only look to the principal and surety in the bond, . . . and to the obligations resulting from that relation because the money was paid by the plaintiff in discharge of that bond and in exoneration of the personal representatives of . . . [the principal], who alone were legallj'- responsible for the debt." But in an Ohio case, a Virginia case, and two Kentucky cases,^ a different, and, as it appears to the AA'riter, a sounder doctrine, is advanced. In the former case one partner put the firm name to a note under seal; it Avas held that it should be presumed, in the absence of proof to the contrary, that it was given for a consideration received or to be received by the firm, and was intended and under- stood to bind it; that the seal was added in mere ignorance of the effect of so doing; and that, although the instrument must at law be considered as the deed of the partner only who sealed it, there being no proof of the assent of the other par- ties, yet, in equity, the firm became liable; and that conse- quently were there no evidence of the contract of surety- [578] ship other than that afforded by the instrument itself, and that the plaintiff executed it as surety, the presumption would be that he was surety, not of the principal in the note alone, but of the firm; that whether the firm was or was not bound to the obligee, yet the fair presumption from the testimony was that the surety became such at the request of the partner who signed the note, professing to act for and in behalf of the firm ; and that his request under such circumstances, and in the absence of all proof that he alone was bound, was in law the request of the firm ; and the relation of principal and surety was thereby created between them.^ And it was also held that, though the liability of the other partners was merged at law, it was otherwise in equity, and therefore they were bound to indemnify the surety.^ When one of two sureties becomes such at the request of his iPurviance v. Sutherland, 2 Ohio v. Hanner, 5 Jones, 360; Neal v. Lea, St 478 ; Burns v. Parish, 3 B. Mon. 8 ; 64 N. C. 678. Weaver v. Tapscott, 9 Leigh (Va.), 3 See James v. Bostwick, Wright 424; Hikes v. Crawford, 4 Bush, 19. (Ohio), 141; Burns v. Parish, 3 B. See McKeo V. Hamilton, 33 Ohio St. 7. Mon. 8; Hikes v. Crawford, 4 Bush, 2 See Wharton v. Woodbnrn, 4 19. Dev. & Bat. 507 ; approved in Hurdle 1702 SUKETYSHIP. [§ T47. co-surety, and upon his promise that he would be put to no loss, he may recover the whole of what he may have been com- pelled to pay from the co-surety ; such promise may be shown by parol; it is not within the statute of frauds.^ § 747. When right of action accrues. Ordinarily, where a principal has made default in the payment of the debt or performance of the contract, the surety need not wait for a suit to be brought, but may pay and discharge the debt as soon as the liability arises. Nor is it necessary to obtain leave of the principal; the law implies a request to the surety to do this in behalf of the principal, and he may maintain an action for it." The right exists immediately in favor of a surety when he has paid the debt, or any part of it, if it was due.^ He may maintain assumpsit after he has paid it, as for money [579] paid at the principal's request.* When he pays the debt in instalments, he is entitled to sue his principal for each in- stalment as soon as it is paid.^ Without his special request the suret}'- may pay the debt before it is due;^ and after, but not before, sue for the money thus paid."^ But the surety must be legally required to pay. It seems he is not bound to set up the statute of limitations where it has not run against the principal.^ In Norton v. IlalP a note was made by H., payable to F., and indorsed by the plaintiff as surety for the accommodation of both H. and F. When it fell due the plaint- iff, not being able to pay it, at the request of the creditor, gave additional security by mortgage, which the creditor held until the plaintiff paid the note, more than six years after it became due. It was held that H. having failed to pay when due, the 1 Pieslar v. Stallwortli, 37 Ala. 403. is not damaged thereby, as by being 2Toberg v. Swensou, 33 Kan. 334; prevented from carrying out a com- Ilazleton v. Valentine, 113 Mass. 473. promise he has made with his cred- 3 Ritenour v. Matliews. 43 Ind. 7. itors. Barber v. Gillson, 18 Nev. 89, * Davis V, Humphreys, 6 M. & W. Td. ; Dennison v. Soper, 33 Iowa, 153 ; Ford v. Keith, 1 Mass. 139 ; War- 183 ; Armstrong v, Gilchrist, 3 Johns. rington v. Farbor, 8 East, 343. Cas. 434. sWeiler v, Henarie, 15 Ore. 38 Williams v. Williams, 5 Ohio, 444 Bullock V. Campbell, 9 Gill, 183 Davis V. Humphreys, 6 M. & W. 153 «Shaw V. Loud, 13 Mass. 447; Hol- linsbee v. Ritchey. 49 Ind. 361. But see Kiml le v. Cummins, 3 Met. (Ky.) 337 ; Hatcliett v. Pegram, 31 La. Ann. Hall V. Hall, 10 Humph. 353. 733; also Houck v, Graham, § 000, '■ Craig V. Craig, 5 Rawle, 91 ; White infra. V. Miller, 47 Ind. 385. If the principal Ml Vt. 471. § 748.] surety's remedies fok indemnity. ITOo plaintiff had a right to make this arrangement for time with the creditor; that H. could not avail himself of the statute of limitations as a defense to a suit by the plaintiff, brought within six years from the time he paid the note. When the liability of the surety has been in good faith continued for more than six years from the time the note became due, and payment is made by him, such continued liability carries with it the relation of principal and surety, and the liability of the principal to reimburse the surety for the money so paid by him. § 748. Measure of recOYery. The implied undertaking or promise of the principalis one of indemnity; the surety has no right of action merely because the debt is not paid by the principal when due ; nor until he has paid it or procured the discharge of the principal by assuming it himself.^ Nor can the surety recover any more than he has paid and in- [580] terest thereon ; - if he pays in a depreciated currency, as con- federate notes, he can recover from his principal only the market value of the payment at the time it was made, even though they were taken by the creditor at par.' 1 Ingalls V. Dennett, 6 Me. 79 ; Clark 4 ^ J. Marsh. 451 ; Snyder v. Blair, V. Foxcroft, 7 id. 348; Powell v. 33 n. J. Eq. 208; Hill's Estate, 67 Smith, 8 Johns. 249 ; Shepard V. Shep- Cal. 238; Waldrip v. Black, 74 id. ard, 6 Conn. 37 ; Hearue v. Keath, 03 409. Mo. 84 ; Hoyt v. Wilkinson, 10 Pick. it is held in Carpenter v. Minter, 31 ; Pigou V. French, 1 Wash. C. C. 72 Texas, 370, that where a note is 278; Elwood v. Deifendorf, 5 Barb, paid by a surety he may recover 398 ; Reynolds v. Magness, 2 Ired. from its maker the same amount as 26 ; Gillespie v. Creswell, 12 Gill & the payee could ; if the latter could J. 36; Thompson v. Richards, 14 have recovered attorneys' fees so Mich. 172 ; Butler v. Ladue, 12 id. may the former, although they were 178; Hall v. Nash, 10 id. 303; Paul payable only in case suit should be V. Jones, 1 T. R 599; Rodman v. brought, and the surety paid volun- Hedden, 10 Wend. 498 ; Taylor v. tarily. Compare Acers v. Curtis, 68 Mills, 2 Cowp. 525 ; Kraft v. Fancher, id. 423, stated in § 000. The contrary 44 Md. 204 ; Delaware, etc. Iron Co. is held in Indiana, and for better V. Oxford Iron Co., 38 N. J. Eq. 151 ; reasons. Gieseke v. Johnson, 115 Matthews v. Hall, 21 W. Va. 510; Ind. 308. Tyree v, Parham's Ex'r, 66 Ala, 424. 3 Feamster v, Withrow, 9 W. Va. 2 Martindale v. Brock, 41 Md. 571 ; 296 ; Butler v, Butler, id. 674 ; Jordan Eaton V. Lambert, 1 Neb. 339 ; Bon- v. Adams, 7 Ark. 348 ; Kendrick v. ney v. Seeley, 2 Wend. 481 ; Robin- Forney, 22 Gratt 748 ; Edmunds v. son V. Sherman, 2 Gratt. 178 : Hicks Sheahan, 47 Tex. 443 ; Gillespie v. V. Bailey, 16 Tex, 229 ; Miles v. Bacon, Creswell, 12 Gill & J. 36 ; Miles v. 1704: SUKETYSHIP. :§ '^«- A payment made by a surety in compromise of his supposed liability upon a disputed claim against him and his principal may be recovered if there was no actual liability, and the principal has or is entitled to the benefit of the payment in discharge of the original claim against him.^ He can only re- cover to the amount he has paid where he compounds a debt; and such will be the effect though he goes through the form of purchasing the demand and has it assigned to him. His relation of surety precludes him from speculating at the ex- pense of his principal,^ Bacon, 4 J. J. Marsh. 457; Crozier V. Grayson, id. 514. In Southall v. Farisli, 85 Va. 403, an insolvent bank held judgments against a principal and his surety, and deposits of the latter worth sixty per cent, of their face value. These a third party contracted to take at par. The surety paid the judgments with his deposits under an agree- ment witli the principal to pay their full value, which the former recov- ei'ed. 1 Bancroft v. Dwinnell, 27 Vt. 6G8. 2 Reed v. Norris, 2 Mylne & Cr. 361 ; Eaton v. Lambert, 1 Neb. 339 ; Coggeshall v. Ruggles, 62 111, 401 ; Pickett V. Bates, 3 La. Ann. 627; Crozier v. Grayson, 4 J. J. Marsh. 514. But see Blow v. Maynard, 2 Leigh, 29. In Reed v. Norris, supra, a surety's representatives made an arrange- ment with the creditor's executors by which the debt for which the surety was bound with the principal was got rid of and discharged, and the question was whether the rejDre- sentatives of the suret3''s estate were entitled to demand more than they had actually paid, they having pur- chased the demand and taken an as- signment. The lord chancellor said : "Now, if there had been no prece- dent on this subject, I should have found very little difficulty in making a precedent for deciding that, under these circumstances, the surety is not entitled to demand more than he has actually paid. I take the case of an agent Why is an agent precluded from taking the benefit of purchas- ing a debt which his principal was liable to discharge? Because it is his duty, on behalf of his employer, to settle the debt upon the best terms he can obtain ; and if he is emploj'ed for that purpose, and is enabled to procure a settlement of the debt for anything less than the whole amount, it would be a violation of his duty to his employer, or at least would hold out a temptation to violate that duty, if he might take an assignment of the debt, and so make himself a cred- itor of his employer to the full amount of the debt which he was employed to settle. Does not the same duty devolve on a surety? He enters into an obligation, and be- comes subject to a liability, upon a contract of indemnity. The contract between him and his principal is that the principal shall indemnify him from whatever loss he v^ay sus- tain by reason of incurring an obli- gation together with the ])rincipal. It is on a contract of indemnity that the surety becomes liable for the debt. It is by virtue of that situation, and because he is under an obligation as between himself and the creditor of § HS.] surety's remedies for indemnity. 1705 If the contract be tainted with usury, and the surety [581] has knowledge of it, and pays the usury, it has been held that he cannot recover from the principal beyond what the cred- itor could have recovered.^ Where, however, the creditor has recovered against the principal and surety a judgment which the surety has paid, the fact that part of the judgment is for usury will not avail the principal as a defense when sued b}^ the surety for indemnity .^ And this is so though the judg- [582] ment be confessed by the principal and surety.^ So where a note tainted with usury was signed by a surety who was then ignorant of that fact, and who paid it after he had knowledge of it, he was held entitled to recover unless he had been noti- fied by the principal not to pay it. The court said no man is hound to take advantage of a penal law, and avoid a con- liis principal, that he is enabled to make the arrangement with that creditor. It is his duty to make the best terms he can for the person in whose behalf he is acting. His con- tract with the principal is indemnity. Can the surety, then, settle with the obligee, and instead of treating that settlement as a payment of the debt, treat it as an asfiignmentof the whole debt to himself, and claim the bene- fit of it, as such, to the full amount ; thus relieving himself from the situ- ation in which he stands with his principal, and keeping alive the whole debt?" Ex parte Rushforth, 10 Ves. 420; Butcher v. Churchill, 14 id. 567 ; Coggeshall v. Ruggles, 62 111. 401; Eaton v. Lambert, 1 Neb. 339. In Flower v. Strickland, 107 Mass. 552, B. indorsed A.'s promissory note, payable on time to B.'s order, for A.'s accommodation; and A. negotiated it to C. for its full amount. At the maturity of the note B., having been informed by A. that he could not pay it, took it up, paying C. tlierefor half of the amount thereof. It was held that B. could recover the full amount of the note of A. in an action uj^on the note as payee. Tlie court said the plaintiff had the same right as any other person to purchase the note from the holder for such price as might be agreed on between them. If he purchased the entire interest of the holder in the note, he might re- cover the whole amount to his own use. Gray, J., said: "The defend- ants having received the whole amount of the note at the time of its original negotiation, and being now no longer liable to any action by . . . [the holder, to whom plaintiff paid it], the amount of their liability in this action against them as makers of the note is not affected by the question how much the plaintiff paid to . . . [the holder], or whether the sum recovered will belong to . . . [such holder], or to the plaintiff." Pinney v. Mc- Gregory, 102 Mass. 186. Contra, Pace V. Robertson, 65 N. C. 550; Burton v. Slaughter, 26 Gratt. 920. 1 Jones V. Joyner, 8 Ga. 562 ; Minis v. McDowell, 4 Ga. 182. '- Wade V. Green, 3 Humph. 547. 3 Thurston v. Prentiss, 1 Mich. 193. 1706 SURETYSHIP. [§ 748. tract which lie ought in equity to perform.^ But a surety who pays usurious interest to obtain time to pay his princi- pal's debt cannot collect such excessive interest.- A surety joined with his principal in making a note bearing eight per cent, interest. One of the sureties died before maturity of the note. By a statute of Kentucky it was provided that '' after the death of the payer or obligor of a contract for the loan or forbearance of money at a higher rate of interest than six per cent, per annum, such contract, after maturity, and any judgment rendered thereon, shall bear six per cent, per annum." Judgment had been obtained against the surety and surviving partner for the amount of the note at the stipulated rate of interest, which the surety paid, and then sought in- demnity from the estate of the deceased partner. He insisted that inasmuch as he was compelled to pay a greater rate of interest on account of his contract of suretyship, the law [583] would imply a promise on the part of the representative of his principal to indemnify him. But the court said : " To recognize this claim would be to defeat the operation of a plain and unmistakable provision of the act under which the original contract was entered into. The supposed hardship which it is insisted will result from a refusal to recognize it has no substantial existence. It is the duty of the surety to 1 Ford V. Keith, 1 Mass. 189. The lieved from an indemnifying security principal cannot plead usury in de- to them, the court said : " Appellant fense of a mortgage given his surety (the plaintiff) did not interfere to as indemnity, the latter not being protect them (the sureties) from pay- privy to the usurious contract. Tur- ing either the amount actually loaned, man v. Loopex', 42 Ark. 500. or the usurious portion of it, and 2 Thurston v. Prentiss, 1 Mich. 193; they were not bound to litigate the Lucking v. Gegg, 12 Bush, 298. matter with . . . (the creditor) In Thurston v. Prentiss, supra, a to get rid of the usury. Appellant usurious loan was made by the prin- might have done so, and he was the cipal, the usury being deducted from only person interested in reducing the loan. Judgments were confessed the amount to be paid; but he neg- by the principal and a surety for the lected to interfere for the protection amount of the loan, including the of his sureties, and . . . (one of usury, and another sui'ety became them) was liable to have the judg- security for stay of execution until ment enforced against him. By his the period of credit expired. The paying the whole, including the sureties paid the judgments to the usury, tiie appellant became bound creditor. In a suit by the principal to refund, or allow tlie same amount debtor against the sureties, to be re- in settlement with him," § 7J:9.] surety's remedies foe iNDEiiNrry. 170Y pay the debt at the maturity of the note,' If he had done this he would have stopped the accrual of interest against himself; and he would have been entitled to legal interest against the principal's estate on the sum paid for its benefit. He accepted indulgence from the common creditor with no- tice of the fact that the estate of the deceased debtor could not be required to pay a greater rate of interest than six per <;ent. per annum. He paid the additional interest for the in- dulgence extended to himself, and not for the use and benelit of . . . [his principal's] estate."^ If there are several principals the surety may proceed against each of them for the recovery of the whole amount he has paid. " Each of the principals is debtor of the whole debt in favor of the creditor, and the person being surety for each of them has, by paying the debt, liberated each of them from the whole, and consequently has a right to conclude in solido against each of them for tlie reimbursement of the whole of what he has paid, with interest from the day of the demand. This rule prevails in both civil and common law." ^ It is an exception to the rule requiring all persons interested in the subject-matter to be joined in a suit in favor of sureties, that one of several of them who has paid a joint debt may proceetl against the principal without joining his co-sureties.'' § 749. Surety may compel debtor to pay. It is an estab- lished rule of equity that when a debt falls due from a princi- pal debtor the surety is entitled to compel him to pay it. This right may be exercised although the surety has not been disturbed. So Ions: as the debt for which he is bound remains there is a cloud hanging over him which equity will remove 1 Tliis is probably incorrect. A the surety was bound to take notice surety does not owe to his principal of that statutory regulation. He the duty to pay the debt at maturity, could have saved himself from loss He is bound to the creditor to do so, by paying at once when the debt be- but the law cannot be said to impose came due, and he subjected himself that duty on the surety as one he to the greater rate by voluntarily de- owes to his principal, who, in case of laying payment, such payment, is instantly under 2 Lucking v. Gegg, 12 Bush, 298. obligation to reimburse him. But 3 Apgar's Adna'r v. Hiler, 24 N. J. L. under the statute of Kentucky, the 812; Overton v. Woodson, 17 Ma estate of the principal could not be 453; Clay v. Severance, 54 Vt 300. charged with interest beyond six per * Dodd v. Wilson, 4 Dela. Ch. 108. cent after the maturity of the debt ; See Madox v. Jackson, 3 Atk. 404 1708 SURETYSHIP. [§ 750. bv a proceeding in the nature of a bill quia timet} It was assumed in New York that a surety may always avail himself of this remedy after the debt has become due,^ but it is now settled in that state that " there must be some specific equity bevond the mere relation of surety and creditor to entitle the surety to this relief." ^ If a surety holds a mortgage given him by the principal as indemnity he may have foreclosure of it after the debt has become due, although he has not paid it."* The foreclosure may be for the whole amount of the princi- pal's liability, although the creditor's judgment against Uira is for a less sum.^ § 750. Payment giving riglit to reimbursement. The usual remedy at common law has been an action of assumpsit for money paid to the defendant's use, though sometimes the action has been special. When it is for money paid a technical question may be raised whether the particular mode of pay- ment will sustain that form of action. The more important inquiry is, what is payment which will entitle the surety to immediate recourse to the principal; and when made other- wise than in money, what is the measure of the surety's re- covery against him. It has been loosely said in a Yermont case that if a surety in any way extinguishes or pays the debt of the principal, it is, as far as the latter is concerned, equivalent to paying money [584] for his benefit and at his request; and the surety can maintain general assumpsit against him for money paid.* An extinguishment of the debt by the creditor at the request of the surety without actual payment in any form would cer- 1 Norton v. Reid, 11 S. C. 593; An- 4 Johns. CIi. 131 ; Newcomb v. Hale, trobus V. Smith, 3 Meriv. 569 ; Pride 90 N. Y. 326. 330 ; In re Babcock, 3 V. Boyce, Rice Eq. 386 ; King v. Bald- Story, 393 ; Wright v. Nutt, 3 Brown uiD, 2 Johns. Ch. 554; Ranelaugh v. Ch. 326; Story's Eq., § 327. Hayes, 1 Vern. 189; Irick v. Black, * McDaniel v. Austin, 11 S. E. Rep. 17 N. J. Eq. 189; Delaware, etc. Iron 350; S. C, 32 S. C. COl; Bodkin v. Co. V. Oxford Iron Co., 38 id. 151 ; Merit, 86 Ind. 560 (if the debt has Moore v. Topliff, 107 IlL 241; Keo- come into judgment against the prin- kuk V. Love, 31 Iowa, 199 ; Harris v. cipal and surety and the former has Newell, 42 Wis. 687 ; Hayden v. no other property). Thrasher, 18 Fla. 795. 5 Hellams v. Abercrombie, 15 S. C. 2 King V. Baldwin, 17 Johns. 386. 110. 3 Marsh v. Pike, 1 Sandf. Ch. 210; eHulIett v. Soullard, 26 Vt 295, S. C, 10 Paige, 595 ; Hayes v. Ward, § 750.] SURETY S REMEDIES FOR INDEMNITY. 1709 taiiily not be equivalent to payment by the debtor in money. He is entitled to recover the amount paid, not the amount ex- tinguished.^ The voluntary payment of the debt in property, real or personal, transferred to the creditor and received by him as payment; ^ or the seizure and ?alo of the surety's prop- erty at the instance of the creditor under execution will en- title the surety to maintain an action for money paid against his principal.^ In such cases the value of the property at the date of the sale is properly the measure of damages, if it does not exceed the amount due in money to the creditor.* Pay- ment of the principal's debt by a stranger, if the latter has been reimbursed by the surety, gives him a right of action.^ If the surety surrenders notes executed by his principal he is entitled to recover their full value regardless of the solvency of their maker.^ If he pays when there is no legal duty upon him to do so he cannot claim reimbursement from his princi- pal, nor contribution from a co-surety.'' Where a creditor re- ceives the negotiable paper of the surety as full and absolute payment and satisfaction of the debt of the principal, and not as conditional payment or collateral security, the surety may, without having first paid it, recover its amount of the princi- pal.* But he does not become entitled to sue his principal upon the ground of his having discharged the indebtedness to • Bonney V. Seely, 2 Wend. 481. 6 Harper's Adm'r v. McVeigh's 2Ainslie v. Wilson, 7 Cow. 668; Adnrr, 82 Va. 751. Randall v. Rich, 11 Mass. 494 ; Bon- 6 Barber v. Gillson, 18 Nev. 89. ney v. Seely, 2 Wend. 481. 'Kimble v. Cummins, 3 Met. (Ky.) 3 Lord V. Staples, 23 N. H. 448. 327 ; Spillman v. Duff, 15 B. Mon. * Bonney v. Seely, 2 Wend. 481 ; 134 ; Dawson v. Lee, 83 Ky. 49 ; Stone Atherton v. Williams, 19 id. 105 ; v. Hammell, 83 Cal. 547. Jones V. Bradford, 25 Ind. 305. 8 Witherby v, Mann, 11 Johns. 518 ; In Coleman v. Riggs, 61 Iowa, 543, Ripley v. Moseley, 57 Me. 76 ; An- a surety on a stay bond was adjudged thony v. Percif ull, 8 Ark. 494 : Little bankrupt, and his property sold to v. Little, 13 Pick. 426 ; Day v. Stick- satisfy a judgment The assignee re- ney, 14 Allen, 255 ; Pearson v. Parker, garded as worthless the claim against 3 N. H. 366; Rodman v. Hedden, 10 the judgment debtor, and its enforce- Wend. 498; Lee v. Clark, 1 Hill, 56; ment became barred by the statute. Cornwall v. Gould, 4 Pick. 444 ; Doo- It was held tiiat the surety might little v. Dwight, 2 Met. 561 ; Douglass maintain an action against his prin- v. Moody, 9 Mass. 548 ; Peters v. Barn- cipal; the measure of his recovery hill, 1 Hill L. (S. C.)234; Hearne v, being the amount paid, not the value Keath, 63 Mo. 84 ; Howe v. Buffalo, of the property sold. etc. R. Co., 37 N. Y. 297 ; Elwood v. 1710 SUKETYSHIP. [§ 750. the creditor by giving his own absolute obligation in payment thereof, so long as anything whatever remains to be done between him and the creditor to carry the engagement be- [585] tween them completely into effect,^ "When the surety has assumed the debt in other forms he has been allowed to recover of the principal without otherwise paying it; as where he has secured it by mortgage and the principal has been re- leased ; ^ where he has replevied a judgment, and thereby dis- charged it.' The surety on an administrator's bond, after a breach, was appointed administrator in place of his principal; and as such indorsed on the bond a receipt of money from himself for which his principal was in default, and included it in the inventory of assets in his hands ; and it was held that an action would lie immediately by him against the principal for the amount so recognized as paid to his use.* In England it has been held that where a surety procured a discharge of the obligation of his principal by giving his own bond for the debt he could not, thereupon, before paying the bond, maintain an action against his principal for money paid.* Lord EUenborough, C. J., said: "There is no pretense for considering the giving of this new security as so much money paid for the defendant's use." He added, apparently in deference to a previous case : ® " Supposing even the case of the note or bill of exchange, as the current representative of money, to have been rightly decided ; still this security, consisting of a bond and warrant of attorney, is not the same as that, and is nothing like money." A similar decision was Deifendorf. 5 Barb. 39S ; Bonuey v. 346 : Stone v. Hammell, 83 Cal. 547 ; Seely, 3 Wend. 481 ; Van Ostrand v. Brisendiue v. Martin, 1 Ired. L. 286 ; Reed, 1 id. 434 ; In re Morrill, 2 Saw- Nowland v. Martin, id. 307 ; Lynch v. yer, 356 ; Bone v. Torry, 16 Ark. 83 ; Hancock, 14 S. C. 66. Neale v Newland, 4 Ark, 506 ; Mims i Bank of Monroe v. Gifford, 79 V. McDowell, 4 Ga, 183; Lyon v. Iowa, 300; Hearne v. Keath, 63 Mo. Northrop, 17 Iowa, 314; Barclay v. 84. Gooch, 3 Esp. 571 ; Houston v. Fel- 2 McVicar v. Royce, 17 Up. Can. lows, 37 Vt. 634 ; Stubbins v. Mitch- Q. B. 539. ell, 83 Ky. 535 ; Bowers v. Cobb, 31 3 Burns v. Parish, 3 B. Mon. 8. Fed. Rep. 678; Sapp v. Underwood, * Hazelton v. Valentine, 113 Mas& 68 Iowa, 699 ; Rizer v. Cullen, 27 Kan. 473. 339. Compare White v. Miller, 47 sTaylor v. Higgins. 3 East, 169. Ind. 385 ; Romine v. Romine, 59 id. *> Barclay v. Gooch, 2 Esp. 571. § 750.] sukety's remedies foe indemnity. ITll made in a later case.^ One of the makers of a joint and sev- eral note, after the same had become due, gave his bond to the holder for the amount ; but before the commencement of the action no money was paid on the bond, and it was lield that until payment made upon it he could not maintain an action for money paid in order to recover contribution from any of the other makers of the note. Bayley and Abbott, eTJ., were at first inclined in favor of recovery on the ground that the court might properly consider the extinguishment of the debt as equivalent to money paid for the defendant's use; 1 !iat on tliat ground the bond was given as money and [586] the defendant had the benefit of it as money ; but on consider- ing the circumstances, and the previous case of Taylor v. Higgins, they finally decided that the action was not main- tainable. Bayley, J., said : " The plaintiff in this case has paid no money. It is said, indeed, that he has given what is equivalent to it, and that it ought to be considered for this purpose as money; so it was held in Barclay v. Gooch.- But in Taylor v. Higgins the court, having the former case before them, held that the action for money paid could not be main- tained. There are, therefore, at all events, conflicting author- ities on the point, the last of which is in favor of the defend- ant. In Taylor v. Higgins the old bond was delivered up^ and the new one accepted as payment and satisfaction of the old debt. . . . Then, as the authorities differ, it becomes necessary to look at the reason of the thing. No money has yet come out of the plaintiff's pocket; non constat ihsit an}' ever will; for if he recovers from the defendant in the pres- ent action, still it is possible that he may never pay it to [the creditor]. Then the period of time at which his remedy against the defendant shall commence has not yet arrived. If hereafter he is compelled to pay the money due upon the bond he may then have his remedy against Jameson for his contribution." The whole court seem to have proceeded upon the authority of Taylor v. Higgins, and the reason given by the court which decided that case. Holroyd, J., said : " In order to support this action the debt must have been extin- guished by an actual or virtual payment of money by the 1 Maxwell v. Jameson, 2 B. & Aid. 2 1 Esp. 571. 51. 1712 STTEETYSHIP. [§ 751. plaintiff to the defendant's use. There has clearly been no actual payment ; and in order to have made the giving of the bond operate as a virtual payment the defendant must be shown to have been a party to that transaction, which was not the case," The opinions in this case are based on the apparent assumption that the bond of one of the debtors ex- tinguished the old debt as against the other; but Abbott, J., said, incidentally, it was doubtfid. It was held in White v. Cuyler ^ that whore a wife and a surety entered into a cov- enant with the plaintiiT, which the wife failed to perform, and [587] suit was brought in assumj)sit against the husband, that covenant would not lie, for the wife had no authority to bind him by deed; and that the covenant of the surety did not by operation of law extinguish the debt of the principaL § 751. Same subject. These cases have been supposed to recognize a distinction between negotiable paper given by a surety in payment of the principal's debt and other forms of agreement or obligation for that purpose, based on the idea that negotiable paper is a representative of money, and that a bond is nothing like it. Such a distinction -cannot be main- tained; neither is money; but each has a money value; and if property may be accepted in lieu of money as a payment, and the discharge of a debt in this manner by a surety will sustain an action for money paid, why should not a payment made by the delivery of a bond, note or other valuable prom- ise to pay money? Several American cases have recognized this distinction, though not uniformly upon the same ground.^ These, as well as the English cases which they purport to fol- low, appear to turn on the technical point that payment of the debt by the surety with any new security, other than negotiable paper, will not support the action for money paid. Where the plaintiff gave his promissory note for an execu- tory consideration which failed, and the defendant, the payee, sold the note and got his pay for it, but it did not appear how 1 6 T. R 176. ware v. Robinson, 8 Tex. 327 ; Morrison 2 Petres v. Harmon, 8 Blackf. 112 ; v. Berkey, 7 S. & R 238 ; Sayre v. Bennett v. Buchanan, 3 Ind. 47 ; King, 17 W. Va. 563. This distinc- Romine v. Romine, 59 id. 346 ; Camp- tion is founded upon no apparent bell V. Jones, 4 Wend. 306 ; Cum- good reason. Stone v. Hammell, 83 ming V. Hackley, 8 Johns. 202 ; Boul- Cal. 547. § 751.] surety's remedies for indemnity. 1713 or in what form, it Wcas held that the plaintiff's action for money had and received was maintainable. The note was treated as having gone into the hands of an innocent holder, and the proceeds in the defendant's hands were, therefore, money had and received to the plaintilfs use.^ An ms« ranee broker effected, on behalf of another person, a policy under seal, with a company of which he was a member. The policy recited that the broker, upon his representation that he was duly authorized as owner, agent or otherwise, to make assur- ance upon the vessel mentioned in the policy, and was desir- ous of making such insurance, had covenanted with the [588] company to pay the premium; and then alleged that in con- sideration of the pretnises and of such covenant the policy was effected. The broker having become bankrupt without having paid the premium to the company, it was held that his assignees were entitled to recover from the assured the amount of the premium which he had covenanted to pay. This recovery was allowed under a declaration which charged that the defendants were indebted to the plaintiffs for pre- miums due to the bankrupt for and in respect of his having caused and procured to be underwritten divers policies; but it was declared that the plaintiffs were not entitled to recover such sums under the count for money paid because the broker had not actually paid the sums, or done anything which was equivalent to payment. Bayley, J., said: "Then it is neces- sary to consider in what situation the broker stands in order to ascertain whether he is not entitled to call on the assured for the premiums. The underwriters have a claim upon him for the full amount of the premiums; and if that be so he ought to recover those premiums from those persons who have had the benefit of the policies." Parke, J., said : '• He un- doubtedly did procure to be underwritten for them pohcief; in this particular form ; and the defendants havela^l the ben. - fit of them, and they have been as beneficial to the defend- ants as if the premiums had been actuall}^ paid by the bank rupt to the underwriters; for the company cannot have anv recourse to the defendants for the premiums, and in conse- 1 Colville V. BesTy, 2 Denio, 139 ; Van Ostracd v. Reed, 1 Wend. 424 ; Chap- man V. Sliaw, 5 Me. 59. Vol. II — 108 1714 SURETYSHIP. [§ Y52. qucnce the defendants are liable to pay a sum of money to the ])laintiffs." ^ § 752. Liability of principal for surety's costs. On the subject of the principars liability for costs incurred by the surety, it should be borne in mind tiiat as between them it is for the default of the principal that the surety is proceeded against by the creditor. It is not a surety's duty to his prin- cipal, but the principal's duty to the surety as well as to the other contracting party, to fulfill the contract by which they are bound. Hence, it is but just that if the surety is sued upon that contract the principal shall be liable to him for the costs [589] which he may have to pay in consequence of such suit; and so the law declares.- And this principle applies to ac- commodation parties to commercial paper," but not between other parties primarily and secondarily liable.* If a surety knows that a claim made by a creditor of his principal is just, he has no n^xht to contest a suit brous^ht against him and liti- gate the same. If he does, and fails, he cannot recover of his principal the costs so incurred. He is only entitled to re- cover the costs of a judgment by default * and the costs of execution. These latter, it has been held, could not be recov- ered,^ but it is believed the surety has the same right to costs incurred on an execution as in obtaining judgment; one equally with the other is the expense of the coercive meas- ures of the creditor to make the money in consequence of the principal's default. Redfield, C. J., said: ''If, when a surety v/as sued upon the debt of his principal, and was unable to 1 Power V. Butcher, 10 B. & C. 329. Short v. Galloway, 11 Ad, & El. 28. 2 Boyd V. Myers, 12 Lea, 175; Ben- See Whitworth v. Tilman, 40 Miss, nett V. Dowling, 22 Tex. 660; Apgar 76; Robinson v. Sherman, 2 Gratt. V. Hiler, 24 N. J. L. 812; Preslar v. 178; Redfield v. Haight, 27 Conn. 31. Stallworth, 37 Ala. 402 ; Hulett v. In Steinhart v. Doellner, 34 N. Y. Soullard, 26 Vt. 295 : Wynn v. Brooke, Super. Ct. 218, it was held that where 5 Rawie, 106; McKee v. Campbell, a surety allowed a suit to go by de- 27 Mich. 497. fault without notice to his principal, 3 Baker v. Martin, 3 Barb, 634 ; he should only recover the costs in- Hubbly V, Brown, 16 Johns. 70; cident to the service of the sum- Jones V. Brooke, 4 Taunt 464 ; Mott mons ; he should have notified his V. Hicks, 1 Cow. 513. principal, and thus enabled him to * Dawson v. Morgan, 9 B. & C, 618 ; settle without further costs. King V. Phillips, Pet. C. C. 3:0. 6 Emory v. Vinall, 26 Me. 235. 5 Holmes v. Weed, 24 Barb. 546; § 753.] surety's remedies for indemnity. 1715 pay it, and the same went into judgment, and was levied upon his land, he must lose all costs recovered and the ex- penses of the levy because he did not pay the principal debt more promptly than the debtor himself, whose duty it was to do it, and save the surety all trouble, it would certainly afford a remarkable instance of absurd refinement, not to say re- fined absurdity; and if the debt may be recovered [by the surety of the principal] as money paid, so equally may the costs." ^ Whether a surety may defend, and thus increase the costs at the expense of his principal, will, as in other cases of recovery over, depend on the reasonableness of his [590] conduct in doing so and the expenditures made.^ Where he persists in making a defense after being notified by the prin- cipal that none exists, and contrary to his express wishes, he does so at his peril." § 753. Principal not liable for consequential damages. In an early Massachusetts case disclosing extraordinary facts, the extent of a surety's redress against the principal was very clearly defined.'' The plaintiff signed a bond as surety for one of the defendants for the payment of duties at a custom-house in 1814. The British forces took possession of the custom- house and the bond, after which a monition was posted up directing the obligors to appear at Halifax and show cause why they should not be held to pay the bond to the captors ; this was followed by the issue of a capias against them ; the plaintiff fled to avoid the process; he went with his family to Boston and remained for a year or more ; he was a merchant of respectable standing and large business ; had many debts due him which were probably lost by reason of his absence. There was a written promise of the defendant to save the plaintiff harmless from any loss he might sustain by signing the bond. The court held that all the indemnity which a surety in a bond for the payment of money can claim from the principal is the amount he has paid on account of the bond, 1 Hulett V. Soullard, 26 Vt. 295 ; Miss. 76 ; Cranmer v. McSwords, 26 Norfolk V. American St Gas Co., W. Va 412 ; May v. May, 19 Fla. 373 ; 108 Mass. 404, Dubois v. Hermann, 56 N. Y. 673 ; 2 See vol 1, § 82; Downer v. Bax- Slingerland v. Bennett, 66 id. 611. ter, 30 Vt 467; Thomson v. Taylor, SBeckley v. Munson, 22 Conn. 299. 11 Hun, 274 ; Bennett v. Dowling, 22 < Hayden v. Cabot, 17 Mass. 169. Tex. 660 ; Whitworth v. Tilman, 40 171G suRET\'snip. [§ 753. with all such reasonable expenses as ho may have been obliged to incur; not such extraordinary and remote expenses as might have been prevented by its ]xiyment. Parker, C. J., said: " The common construction of sucha contract is that if tlie surety is obliged to pay the bond, by suit or otherwise, the principal shall repay him the Sum he has been obliged to ad- vance, together with all such reasonable expenses as he may have been obliged to incur, and which may be considered as the necessary consequence of the neglect of the principal to [591] discharge his own debt. But extraordinary expenses which might have been avoided by payment of the money or remote and unexpected consequences are never considered as coming within the contract. Thus, if a surety, by reason of being obliged to pay m.oney for his principal, becomes embar- rassed in his business, and is finally obliged to abandon it, it is not expected that the principal will be held to indemnify him for his consequential misfortune. It is not the natural and necessary effect of his becoming surety, but is occasioned by his undertaking to do w4iat he was not in a condition to per- form. So any loss or expense occasioned by an attempt to avoid payment of an obligation cannot have been contem- plated by the parties as a subject of indemnity; the true mean- ing of the contract being that if the surety pays voluntarily he shall be reimbursed; if he is compelled by suit to pay he shall also be indemnified for his costs and expenses. Flight to avoid payment of the debt is an accident wholly unforeseen, and its consequences cannot be considered as provided for. The principal had a right to calculate upon his surety's ability to pay, and did not stipulate to save him harmless from any- thing but the papnent of money. If the surety were put in prison,' or if his goods were sold at a sacrifice, these would not be legal grounds of suit for indemnity, because they might be avoided by payment which he must be considered as stipulat- ing that he was able to make. The indefinite nature and ex- tent of such damages as are claimed in the present action is also a sufficient objection to the character of the action itself. If a surety who flies to avoid paj^ment can recover an indem- nity for all the consequences of his flight, such as the loss of business, loss of debts, expenses of removing and supporting 1 Powell V. Smith, 8 Johns. 249. § 754.] surety's remedies for indemnity. 1717 liis family, the principal ^YOuld haYe no means of protectin;^ himself ag-ainst extravao-ant claims: so that the dano^er \youI(1 rather lie in haYing a surety than in becoming one, which has heretofore been thought to be attended with the most hazard." • § 754. Contribution between co-sureties. The right of one surety to call upon his co-surety for contribution arises from a principle of equity growing out of the relation which tho parties haYe assumed towards each other. It has been sup- posed not to result from any imjjlied contract between [502] them, but to be based upon an acknowledged principle of natural justice which requires that those who voluntarily as- sume a common burden should bear it in equal proportions.^ This equity attaches when the relation commences, and may at once be invoked wiien one surety has been compelled to pay the debt,' or has paid it without compulsion ; * but not be- fore.^ It is a right, however, now recognized and enforced at law, because the equitable principle has been so long and so generally acknowledged and applied that persons in placing themselves under circumstances to which it applies may be supposed to act under contract implied from the universality of that principle." By becoming sureties each impliedly prom- ises the others, in contemplation of law, that he will faithfully perform his part of the contract and pay his proportion of loss in case of the insolYcncy of the principal;' in other 1 Vance v. Lancaster, 3 Hay v\-. quent to such discharge. Liddell v. (Tenn.) 130. Wiswell, 59 Vl 365. 2 Liddell v. Wiswell, 59 Vt. 365 ; 3 Wayland v. Tucker, 4 Gratt. 2G7, Deering v. Earl of Winchelsea, 1 Contribution may be compelled with- Cox, 318; Wayland v. Tucker, 4 out proof of a request from co- Gratt. 267; White v. Banks, 21 Ala. obligors or anj- of them to pay. Hoyt 705 ; Russell v. Failor, 1 Ohio St. 327 ; v. Tuthill, 33 Hun, 196. Dent V. King, 1 Ga. 200 ; Warner v. •* Mason v. Pierron, 69 Wis. 585. Morrison, 3 Allen, 566 ; Camp v. 5 Gourdin v. Trenholm, 25 S. C. Bostwick, 20 Ohio St. 337 ; Roberts 362, 377. V. Adams. 6 Porter, 361; Wells v. «Lansdale v. Cox, 7 T. B. Mon. Miller, 66 N. Y. 255. Hence tlie ob- 4)1 ; Bachelder v. Fiske, 17 Mass. 464 ; ligations growing out of the relation Norton v. Coons, 6 N. Y. 33; Agnew are not affected by the discharge in v. Bell. 4 Watts, 31 ; Craythorne v. bankruptcy of one surety when his Swinburn, 14 Ves. 160 ; Paulin v. co-surety made the payment subse- Kaighn. 29 N. J. L. 480. • Hickborn v. Fletcher, 66 Me. 209. 1718 BUKETYSHIP. [§ T55. Avords, that lie will pay his proportion of the debt if the prin- cipal neglects to pay it, or will save his co-surety harmless from injury by being obliged, through the former's neglect, to pay more than his proper proportion of it. This obligation does not arise solely out of the consideration that the surety so liable has been relieved of a burden, but also from the con- sideration that he engaged to indemnify his co-surety against loss arising from neglect to pay his own share in case of the principal's delinquency.^ It is on this theory of the relation of sureties to each other that the estate of a deceased surety is usually bound to contribute to the discharge of a. liability which occurred subsequent to his death.^ § 755. Who are co-sureties. All sureties of the same prin- cipal in respect to the same debt or liability are not co- sureties. It is not sufficient that both parties are sureties; they must occupy the same position in respect to the principal, and without equities between themselves giving advantage to one over the other.* A surety in a note cannot claim contri- bution from an indorser as such,^ but proof, and even parol [593] proof, is admissible to show that they are co-sureties.'* Where one indorses a note before it is issued he is primob facie a guarantor, and may treat all the makers as principals for his indemnity, though he knew a part were sureties ; the actual relation of such indorser to other parties may be shown by parol." So it may be shown that though two persons signed the same obligation as sureties for a third, one of them did so at the request of the principal, and the other as surety of the first surety, and thus that they are not co-sureties as between themselves. In that case the first surety stands in the rela- 1 Crosby v. Wyatt, 23 Me. 156 ; 3 Rosenbaum v. Goodman, 78 Va. Howe V, Ward, 4 id. 195 ; Bradley v, 121 ; Moore v, Moore, 4 Hawks (N. C), Burwell, 3 Deuio, 61 ; Jolmsou v. 358 ; Wells v. Miller, 66 N. Y. 255. Harvey, 84 N. Y. 363. ^ Titcomb v. McAllister, 81 Me. 399. '^ Johnson v. Harvey, 84 N. Y. 363 ; » Houck v. Graham, 106 Ind. 195 ; Bradley v. Burwell, 3 Denio, 61; Knopf v. Morel, 111 id. 570; Nurre Kamskill v. Edwards, 31 Ch. Div. v. Chittenden, 56 id. 462 ; Dawson v. 100 ; Aikin v. Peay, 5 Strobh. (S. C.) Petvvay, 4 Dev. «& Batt. 396. 15; Conover v. Hill, 76 111. 342; ^ Hamilton v. Johnson, 82 111. 39 ; Stephens v. Meek, 6 Lea (Tenn.), 266 ; Keith v. Goodwin, 31 Vt. 268 ; Long- In re Blumen, 13 Fed. Rep. 623. ley v. Griggs, 10 Pick. 121. Contra, Waters v. Riley, 2 H. & G. (Md.) 305. § 755.] sueety's remedies for indemnity. 1719 tion of principal to the second surety, and is responsible to him for whatever he is compelled to pay, and has in no event any claim against him for contribution.' An ao;reement made between parties prior to or contempo- raneously with their executing a written obligation as sure- ties by which one agrees to indemnify the other from loss does not contradict the terms nor vary the legal effect of the written obligation; and it may be proved by parol evidence. Such promise, although not in writing, is a bar to an action by the party making it against his co-surety for contribution.^ In Longley v. Griggs * the plaintiff, as surety, was one of the makers of a note and paid it; the defendant was a guarantor by indorsement on its back before it was delivered to the payee. The note was given in payment of a similar note made by the same parties and indorsed by the defendant as surety. It was contended that he was liable to contribution because he indorsed the old note as surety, and the same rela- tionship continued after the new note was given. It was held, however, that he did not continue in the same relation to the note. He made a new engagement, and had a right to do so; he did it by filling up the indorsement with the en- gagement of a guarantor raerel}^ One who becomes surety in the course of legal proceedings against the principal has no right of contribution against the original surety for the debt ; but, on the contrary, the [594] latter is entitled to be subrogated to the creditor's rio^ht against such later surety, as in the case of bail, bonds for prison bounds, on appeal or injunction.* A judgment having been recovered against one surety, and an execution levied on his property, he executed a forthcom- ing bond with another of the sureties against whom no judg- ment had then been obtained as his surety. After the bond was forfeited it was ruled that the surety in the forthcoming 1 Cutter V. Emery, 37 N. H. 567 ; * Briggs v. Hinton, 14 Lea (Tenn.), Byers v. McClanahan, 6 G. & J. 250; 233; Rosenbaum v. Goodman, 78 Va. Harris v. Warner, 13 Wend. 400; 121; Chaffin v. Campbell, 4 Sneed, Thompson v. Sanders, 4 Dev. & Batt. 184; Mitchell v. De Witt, 25 Tex. 180 404; Carter v. Black, id. 425; Hay- (supplement); Osborne v. Cunning- den V. Thrasher, 18 Fla. 795. ham, 4 Dev. & Batt 423; Hartvvell v. 2 Barry v. Ransom, 12 N. Y. 462. Smith, 15 Ohio St 200 ; Branden- ^ 10 Pick. 121. burg v. Flynn, 12 B. Mon. 397. 1720 SUKETYSHIP. [§ 755. bond, liavino- paid the debt, was entitled to contribution from the other sureties in the original obligation. It was held also to be a general rule that if one surety is insolvent his share shall be apportioned among the solvent sureties; but the surety in the forthcoming bond having, by executing it, re- leased the property of the principal in the bond, and that prin- cipal having become insolvent, his surety was not entitled to recover from the other sureties in the original bond any part of the share of his principal in the forthcoming bond as one of the sureties in the oi'iginal; and held further, tiiat the surety in the forthcoming bond was not entitled to a decree for the costs of awarding the execution on that bond either against the principal in the original or his sureties, but only against the principal in the forthcoming bond.^ W., a deputy of L,, sheriff, gave a bond to his principal with five sureties for the faithful discharge of his duties; L. not being satisfied with this security, W. and three other jiersons as his sureties gave a second bond to L., with like condition, a memorandum being indorsed on this second bond at the time of its execution, in conformity with a previous agreement, that L. should not resort to the second bond for indemnity for the misconduct of the deputy so long as the sureties in the first bond should be residents of the state, and it should ap- ]>ear that he could be indemnified without recourse to the sureties in the second bond, L. recovered judgment on the [595] first bond against the sureties therein bound for the amount of damages sustained by him by reason of the deputy's misconduct in office; held, that the sureties in the first bond had no right to contribution from the sureties in the second.^ There is an exception in cases of tort ^ to the rule that de- fendants standing equali jure are bound to contribute. But it is not universally true that there is no contribution between trespassers or wrong-doers. If one of several parties who have engaged in an act which, when done, appears to them right and lawful, but Avhich turns out to be an injury to some third party, pays the damages which such third party may •Preston v. Preston, 4 Gratt. 88; v. Bing, 3 Ohio, 33; Hartvvell v. Dunlap V. Foster, 7 Ala. 734 ; Ham- Smith, 15 Ohio St. 200. mock V. Baker, 3 Bush, 208 ; Smith - Harrison v. Lane, 5 Leigh, 414. 3 Dent V. King, 1 Ua. 200. § 755.] surety's remedies for indemnity. 1721 recover on account of the injury so done, he may maintain a suit for contribution ; and all parties to the transaction may be compelled to pay their just proportions respectively of the sums so paid. As decided in Adamson v. Jarvis ' the rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the party seeking redress must be presumed to have known that he was doing wrong. When the parties think they are doing a legal and projier act contribution will be compelled; but when they are conscious that they are doing a wrong the courts will not interfere.- To produce equality and give sureties a reciprocal right of contribution, the legal character and effect of their undertak- ings should be in substance the same; they should be bound to the performance of the same duty, or the payment of the same debt, and in favor of the same party. AVhen this is the case they are co-sureties whether they all sign the same instrument, or sign different instruments, at the same or different times.* The guardian of a minor who had given a guardianship bond in the form required by law was subsequently required, in view of a late increase of the estate, to give a new bond [596] in a larger penal sura than the first; such bond was accord- ingly filed with a new surety. It was held that both bonds were valid, and the sureties in them co-sureties; that, being bound in different sums, they were, as between themselves, compellable to contribute in proportion to the different pen- alties in their respective bonds.* i4Bing. 66. Bosley v, Taylor, id. 157; Craig v. 2Acliison V. Miller, 3 OhioSt. 203. Aukeney, 4 Gill, 225; Norton v. Tlie distinction stated in the text is Coons. 3 Denio, 130 : Warner v. Mor- not always borne in uiiud. Block v. rison. 3 Allen, 566 ; Stout v. Vanse, 1 Estes, 92 Mo. 318. Rob. (Va.) 169; Bentley v. Harris. 2 3 Somers v. Johnson, 57 Vt. 274 ; Gratt. 357 ; Harris v. Ferguson, 2 Hanby's Adm'r v. Henritze's Adm'r, Bailey L. 397; Cobb v. Haynes, 8 B. 85 Va. 177; Stevens v. Tucker, 87 Ind. Mon. 137; Bell v. Jasper, 2 Ired. Eq. 109; Young v. Shuuk. 30 Minn. 503; 597; Bright v. Lennon, 83 N. C. 183. Perrins v. Ragland, 5 Leigh, 552 ; * Loring v. Bacon, 3 Cush. 465 ; Whiting V. Burke, L. R. 6 Ch. 342, Armitage v. Pulver, 37 N. Y. 494 ; affirming L. R. 10 Eq. Cas. 539 : Kellar Stevens v. Tucker, 87 Ind. 109 ; Cobb V. Williams, 10 Bush, 216; Deering v, v. Haynes, 8 B. Mon. 137; Pickens v. Earl of Winchelsea. 2 B. & P. 270; Miller, 83 N. C. 543; Bell's Adm'r v. Woodvvorth v. Bowes. 5 Ind. 276; Jasper, 2 Ired. Eq. 597; Bentley v. Breckenridge v. Taylor, 5 Dana, 110 ; Harris' Adm'r, 2 Gratt (Va.) 358 (.ad- 1722 ' SURETYSHIP. [§ 756. Whore several principals become bound for the same debt they stand in the relation of co-sureties.^ Where a debt is contracted by several persons for a common purpose, and one of them ])ays the whole of it, he may sue each of the others separatelv at law for his aliquot share thereof." Six persons drew a bill of exchange upon which money was received by them; at the same time they executed an instrument in which they recited that the bill was drawn for the mutual benefit of all the parties to it, and that each would bear an equal pro- ])ortion in its payment, each paying his separate portion. It was held that each was surety for the others for all above his own share in the bill; that they were co-sureties for all above the sum they were individually liable for.^ Indorsements upon negotiable paper for the accommodation of the drawer import not a joint, but a several and successive liability, each indorser being responsible to all who succeed liim.* § 758. Basis of contribution. Co-sureties are always sup- posed to assume the same risk, and to stand relatively to the principal in the same situation; neither obtaining any bene- fit by the transaction, and each equally subjecting himself to responsibility.'^ Where one surety, without the knowledge of his co-surety, by previous arrangement with the principal debtor, received one-half of the sum borrowed, he was denied [597] contribution from the other surety who undertook the responsibility in confidence that his associate was equally with him exposed to risk.^ If a surety is entitled to contribution his right of recovery, and the amount to which he is entitled from his co-sureties, are based on and governed by the maxim that " equality is ditioDal iujiiLct'ou boud); Keuter v. 432; Speuce v. Barcla5% 8 Ala. 581: Thompson, id Bush, 287 (additional McCune v. Belt, 45 Mo. 174 ; Stillwell official bond). v. How. 46 Mo. 589 ; Sherrod v. i Chipman v. Morrill, 20 Cal. 130 ; Rhodes, 5 Ala. 083 ; McDonald v. Hetfield v. Dow, 27 N. J. L. 440 ; Crafts Ma2;ruder, 3 Pet. 470. But see Daniel V. Mott, 4 N, Y. 603 ; Hayes v. Morri- v. McRae. 2 Hawks, 590 ; Richards v. son. 38 N. H. 90. Simins, 1 Dev. & Bat. 48; Currier v. '^ Parker v. Ellis, 2 Sandf. 223. Fellows, 27 N. H. 366. 3 JIartin v. Baldwin, 7 Ala. 92.3. ^ McPhersou v. Talbott, 10 Gill & 4 Bank of U. S. v. Bierne, 1 Gratt. J. 499. 239 ; McCarty v. Roots, 21 How. (U. S.) 6 id. § 756.] surety's remedies for iNDEMxixr. 1723 equity." Where all are solvent, each is responsible to his co- surety for an aliquot proportion of the money for which the}'" were bound, ascertained by the number of sureties.^ If one of several has paid the entire debt, or more than his share of it, each of the others is severally lialjle for his proportion, to which interest may be added.^ If, after each surety has con- tributed his share of the debt, to one of them is refunded the amount paid by him, he is answerable to the others for a rata- ble share of it.' And where one has been obliged to pay costs to the creditor, he may recover from his co-surety the same proportion of them as of the debt paid.^ The failure to pay the debt which occasioned the costs is to be imputed to all who were liable, and sued; and the extent of their neglect is to be measured by the respective proportions which they were bound to pay in reference to each other at the time of the suit brought. They were bound to contribute each his proper share towards the debt; and the costs which resulted from their neglect to pay it must be apportioned among them in proportion to the measure of neglect imputable to them. The same equitable principles which govern among co-prom- isors in reference to the debt for which they are jointly liable apply in case of costs recovered in a judgment against them jointly for non-payment of their joint debt.^ So a surety may recover in a suit against a co-surety a proportion- ate share of the taxable costs which he was compelled to pay in the suit against himself, for each is equally in fault for not paying the debt ; ** and also for costs and expenses of de- [5t)SJ 1 Gross V. Davis, 87 Teun. 226; though the co-surety was not served Rodgers v. McClure, 4 Gratt. 81 ; with process. Van Winkle v. John- Davies v. Humphreys, 6 M. & W. 153; son, 11 Ore. 469. But he cannot re- Norton V. Coons, 3 Denio. 130; S. C, cover attorneys' fees stiimlated for 6 N. Y. 33 ; McDonald v. Magruder, in a note unless he has paid tliem to 3 Pet. 470. the holder. Acers v. Curtis. 68 Texas. 2Acers v. Curtis, 68 Texas, 428; 432. But see Carpenter v. Minter, 72 Miles V. Bacon, 4 J. J. Marsh. 463 ; id. 370. Gibbs V. Bryant, 1 Pick. 118; Gross & Hayes v. Morrison, 38 N. H. 90. V. Davis, 87 Tenn. 226; Curtis v. « VVyun v. Biooke, 5 Rawle. 106; Banker, 136 Mass. 355. Kemp v. Finden, 13 M. & W. 421; 3Smith V. Hicks, 5 Wend. 48. See Briggs v. Boyd, 37 Vt. 534 ; Gross v. Gould v. Fuller, 18 Me. 364. Davis. 87 Teuu, 226. See conira, * Hayes v. Morrison, 38 N. H. 90 ; Knight v. Huglies. 3 C. & P. 467 ; Bos- Davis V. Emerson, 17 Me. 64. .Al- ley v. Taylor, 5 Dana, 157 ; McKenua lT2i suRETYsnip. [§ 757. fending a suit if tlie defense is reasonably and jiuliciousl}^ made.^ AVhere one of the sureties paid the debt, and took the assignment of a mortgage by which it was in part seciu-ed, he was allowed against his co-surety a commission of live per cent, on the value of the premises, and the expenses of fore- closure and sale.^ But it has been held in New Hampishire that unless there is some agreement, there is no right to con- tribution in respect to other expenses than the costs collected in a suit against a suretv. In the absence of anv agreement to that effect either of the parties incurring expense in de- fending the suit does so on his own account. The fact that othei's have a common interest with him in the defense will not of itself authorize him to incur expense upon their joint account.' § 757. Insolvency of co-surety. In equity an insolvent surety is ignored in the apportionment of the debt among the sureties; so that if one has paid the debt and sues for contri- bution, the amount which the insolvent should pay must be sliared and borne by the others, as though such insolvent had never been bound.'' But at law in some states this equity has not yet been adopted, and the amount is ascertained which each co-surety should contribute without regard to the in- solvency of any one or more of the sureties.'' In other states this principle of equity is in force at law." A surety who has removed from the state is considered insolvent.^ On the ques- V. George, 2 Rich. Eq. 15. Contribu- McKenna v. George, 2 Rich. Rq. 15; tion was decreed as to traveling ex- Rynearson v. Turner, 52 Midi. 7 ; penses in Preston v. Campbell, 3 Stewart v. Goulden. id. 143 ; Samuel Hayw. (Tenn.) 20. v. Zachery, 4 Ired. 377; Parker v. 1 Gross V. Davis, 87 Tenn. 226 ; Cur- Ellis. 2 Sandf. 223. tis V. Bankei', 136 Mass. 355 ; Fletcher ^jjiiey v. Rhea, Samuel v. Zachery, V. Jackson, 23 Vt. 581 ; Marsh v. supra; Cobb v. Haynes, 8 B. Mon. Harrington, 18 Vt. 150. See Comegys 137 ; Dodd v. Winn, 27 Mo. 501. V. State Bank, 6 Ind. 357 ; Walker v. 6 Gross v. Davis, 87 Tenn. 423 ; Lid- Hatton, 10 M. & W. 249 ; Greely v. dell v. Wiswell, 59 Vt. 365 ; Mills v. Dow, 2 Met. 176; Penley v. Watts, 7 Hyde, 19 Vt. 59; Currier v. Baker, 51 M. & W. 601. N. H. 613 ; Bosley v. Taylor. 5 Dana, 2 Livingston v. Van Rensselaer, 6 147; Harris v. Ferguson, 2 Bailey, Wend. 03. 397; Strong v. Mitchell, 19 Vt. 644; * Hayes v. Morrison, 38 N. H. 90. Magruder v. Admire, 4 Mo. App. 133. * Gross V. Davis, 87 Tenn. 226; - Liddell v. Wiswell, 59 Vt 365; Riley v. Rhea, 5 Lea (Tenn.), 116; Boardman v. Paige, 11 N. H. 431. § 758.] stJEETY's eemf:dies for indemnity. 1725 tion of contribution between co-sureties, partners who signed in the partnership name are to be regarded as but one surety.^ § 758. Iiicleninificatiou of surety l)y principal. It is no objection to an action for contribution that the pUiintiff has received a partial indemnity from the principal by an assign- ment of property; the assignment inures to the benefit [591)] of all the sureties, and the defendant is liable for his propor- tion of the balance paid by the plaintiff beyond the indemnity.' Where a surety had a deed of trust of certain property as an indemnity executed by the principal, and the surety neglected to have it registered, and the property was sold by other creditors, it was held that he lost his right to contribution.* To the extent that such security would save the sureties from loss, neglect of the surety in preserving, or his voluntary act in" relinquishing, it will detract from his right to contribution.'* And the presumption is that the securities surrendered are of the value expressed upon their face, and the burden of show- ing that they were not rests upon the party surrendering them.'^ A surety may take securities from his principal to indemnify himself; and if he brings an action against his co- surety for contribution tlie fact of his having sucli securities will not bar a recovery ; but after such recovery the defendant is entitled to enforce his right of subrogation, and so obtain the benefit of the securities. If before action brought for contribution securities held for indemnitj^ are converted into money, it is a payment pro tanto to the surety by the original debtor, and so far an extinguishment of the liability. A co- surety sued for contribution may show that money has been so realized." Whatever advantage or benefit results to one surety from his dealings as such with the common debtor or 1 Chaffee V. Jones, 19 Pick. 260. 24 Ala. 285; Schmidt v. Coulter, 6 2 Boughner v. Hall, 24 W. Va. 249 ; Minn. 492. Bachelder v. Fiske, 17 Mass. 463 ; John 5 Paulin v. Kaighn, 29 N. J. L. 480 ; V. Jones, 16 Ala, 454. Fielding v. Waterhouse, 40 N. Y. 3 Pool V. Williams, 8 Ired. 286. Super. Ct. 424. 4 Taylor v. Morrison. 26 Ala. 728; & Roberts v. Jeffries, 80 Mo. 115; Teeter V.Pierce, 11 B.Mon. 399; Ram- Wolcott v, Hagerman, 50 N. J. L. sey V. Lewis, 30 Barb. 403; Roberts 289; Keiser v. Beam, 117 Ind. 31; V. Sayre, 6. T, B. Mon. 188; Currier Tolle v. Boeckeler, 12 Mo. A pp. 54; V. Fellows, 27 N. H. 366; Goodloe v. Whiteman v. Harriman, 85 Ind. 49; Clay, 6 B. Mon. 236 ; Chilton v. Chap- Shaeffer v. Clendenin, 100 Pa. St. man, 13 Mo. 470 ; Steele v. Mealing, 565 ; Boughner v. Hall, 24 W. Va. 172G SURETYSHIP. [§ 758. creditor inures to the benefit of his co-ol)ligors.^ Hence a surety who has paid a judgment and pursuant tliereto has obtainetl a sale of his principal's property, and become ti-e purchaser of it at a nominal price, may be charged in the ad- justment of his claim against his co-surety with i s fair value ; ^ and if a surety who has received funds from his principal makes a profit on them, this will lessen the amount he may recover from a co-surety.' There are, however, some limita- tions upon this right. If indemnity is furnished one surety by a stranger to the contract the co-sureties have no claim thereto.* A surety who is fully indemnified cannot claim contribution.^ It has also been held that it is not inequitable, under some circumstances, for a debtor to make specific pledges of his own property, limited to the personal indem- nity of a single surety, without the benefit of participation or subrogation, as when the surety's liability is contingent upon conditions not common to his co-sureties, and which may never become absolute." The right of a co-surety to claim the benefit of security given to his fellow is subject to the superior claim of the creditor to the benefit of all securi- ties given by the principal debtor to a surety for the payment of the debt. The creditor's right does not rest upon any liability of the debtor to him, or upon any peculiar relation growing out of the suretyship, but upon the principle that the surety, being the creditor's debtor, and in fact occupying the relation of surety to another person, has received from that person an obligation or security for the payment of the debt which a court of equity will therefore compel to be ap- plied to that purpose at the suit of the creditor.^ This prin- 249; Simmons v. Camp, 71 Ga. 54; 3 Simmons v. Camp, 71 Ga. 54. Scribner v. Adams, 73 Me. 541 ; Mc- * Leggett v. McClelland, 39 Ohio St Mahon v. Fawcett, 2 Rand. (Va.) 514 ; 624. Paulin V. Kaighn, 29 N. J. L. 480; » Reinhart v. Johnson, 62 Iowa, Anthony v. Percifull, 8 Ark. 494. See 155. Smith V. Steele, 25 Vt. 427; White v. ^Fer Matthews, J., in Hampton v. Banks, 21 Ala. 705. Compare Morri- Phipps, 108 U. S. 260, 265, referring son V. Taylor, 21 Ala. 779 ; Goodloe to Hopewell v. Cumberland Bank, 10 V. Clay, 6 B. Mon. 236 ; Ramsey v. Leigh (Va.), 206. See Moore v. Moore, Lewis, 30 Barb. 403. 4 Hawks (N. G), 358. 1 Owen V. McGehee, 61 Ala. 440 ; ■? Per Gray, J., in Keller v. Ashford, Simmons v. Camp, 71 Ga. 54. 133 U. S. 610, 623. See ToUe v. Boeck- 2 Sanders v. Weelburg, 107 Ind. 260. eler, 12 Mo. App. 54. § 750.] surety's remedies for indemnity. 1727 cij)le applies where the security is given for mere indemnity,' and the creditor's rici^ht is not barred thouo^h the statute has run on the note indemnified against nor because the mortgage has been foreclosed by one to whom it has been assigned.^ But it does not extend to a security given by one surety to his co-surety to secure him against loss by reason of having assumed that relation.^ According to some authorities the creditor can only reach securities held by the surety as in- demnity by way of subrogation after he has actually or con- structively . been damnified.* But the weiglit of authority is to thf effect that an assignment of secui-ities by the prin- cipal to his surety for that purpose raises an implied trust in favor of the creditor, which, on the maturity of his debt, he may enforce, whether the surety has been damnified or not, and whether the latter or his principal, either or both, are insolvent.'^ §759. Accrual of right of action; voluntary payment* No suit against a co-surety for contribution can be maintained unless the plaintiff has paid more than his share of the debt.'' Parke, B., said : " This appears to us to be very reasonable ; for if a surety pays part of the debt only, and less than his moiety, he cannot be entitled to call on his co-surety who might [6C0] himself subsequently pay an equal or greater portion of the debt ; in the former of which cases, such co-security would 1 Keene Five Cents Savings Bank Men.' 299; Curtis v. Tyler, 9 Paige, V. Herrick, 63 N. H. 174. 432; Ten Eyck v. Holmes, 3 Sandf. 2 Holt V. Penacook Savings Bank, Ch. 428; Parris v. Hulett. 26 Vt. 308 ; 62 N. H. 557. Brandt. Suretys. & Guar., § 283 ; 1 s Hampton v. Phipps, 108 U. S. Story's Eq. Jur., § 499. To the same 260. See Bowditch v. Green, 3 Met. effect is Kelly v. Herrick, 131 Mass. 860. 373. 4 Rankin v. Wilson, 47 Iowa, 463; « Ex parte Gifford, 6 Ves. 805; Carpenter v. Bowen, 42 Miss. 28; Smith v. State, 46 Md. 617; Fletcher Pool V. Doster, 57 id. 258; Hopewell v. Grover, 11 N. H. 368; Camp v. V. Cumberland Bank, 10 Leigh (Va.), Bostwick, 20 Ohio St 337; Morgan 206. V. Smith, 70 N. Y. 537; Roberts v. 5 Per Powers, J., in Morrill V. Mor- Jeffries, 80 Mo. 115; Glasscock v. rill, 53 Vt. 74, citing New Bedford Hamilton, 63 Texas, 143; Gross Inst. V. Bank, 9 Allen, 175 ; Kramei-'s v. Davis, 87 Tenn. 226 ; Gourdin v. Appeal, 37 Pa. St. 71 ; Rice's Appeal, Treuholm, 25 S. C. 362; Hampton 79 id. 168; Seibert v. True, 8 Kan. v. Phipps, 108 U S. 260; Pegram v. 52 ; Ohio L. Ins. Co. v. Ledyard, 8 Riley, 88 Ala. 399. Ala. 866; Moore v. Moberly, 7 B. 172S SURETYSHIP. [§ 759. liave no contribution to pay, and in the latter lie would have one to receive. In truth, therefore, until he has paid more than his projiortion, either of the whole debt, or that part of the debt which remains unpaid of the principal, it is not clear that he ever will be entitled to demand anything from the other; and before that he has no equity to receive a contribu- tion, and consequently no right of action which is founded on the equity to receive it. Thus, if the surety, more than six years before the action, has paid a portion of the debt, and the principal, within six years, has paid the residue, tiie statute of limitations will not run from the payment by the surety, but from the payment of the residue by the principal ; for until the latter date it does not appear that the surety has paid more than his share. . . . The right of action having been once established, it seems clear that when a surety has paid more than his share every such payment ought to be re- imbursed by those who have not paid theirs in order to place him on the same footing.^ If he satisfies a debt or discharges a liability at a discount, he can only claim contribution on the basis of the amount he actually j^ays.^ But if the entire debt IS satisfied the right to contribution exists though the pay- ment made was less in amount than the surety would have been liable for if the full amount of the claim had been collected.^ One of two sureties of an insolvent administrator boug^ht up legacies for w^iich the sureties were bound at a discount, and it was held that he could only charge his co-surety for his proportion of what w\as paid for the legacies and of the ex- pense of purchasing them."* And if the payment is made in 1 Davies v, Humphreys, 6 M. & W. against such estate to the solvent 153. surety, who paid him in full. It was -Sinclair v. Redington, 56 N. H. held in equity that the surety could 146. See Comegys v. State Bank, 6 prove only one-half the claim against Ind. 357. the estate of his co-surety, although 3 Stalhvorth v. Preslar, 34 Ala. 507. he would not receive more than one- ^Tarr v. Ravenscroft, 12 Gratt. 642. half of what lie had paid if lie was In New Bedford Inst v. Hatha- allowed to jjrove to the full amount way, 134 Mass, 69, the holder of a But see Hess' Estate, 69 Pa. St 272 ; note, by arrangement with a solvent Ex parte Stokes, De Gex, 618. The surety thereon, proved it against the last case is inconsistent with Keith insolvent estate of another surety, v. Forbes, 3 Paton, 350 ; Ex parte El- and assigned his note and his claim ton, 3 Ves. 238. § 759.] sukety's remedies fok indemnity. 1720 propert}^ or in depreciated currency doubtless the same rule should apply between co-sureties as between surety and prin- cipal.^ Nor can a surety claim contribution until he has actu- ally made payment; and what is payment between surety and principal is such between surety and surety .^ If payment of more than is due is made a co-surety is not bound for the excess.^ If the debt is due any surety may pay it voluntarily, and hold his co-sureties for their respective portions ; but if the principal is solvent contribution cannot be enforced.** A surety released by the creditor with the consent of his [601] co-surety is not liable for contribution.^ If a surety discharge one of his co-sureties such discharge is equivalent only to pay- ment of his share.** A surety who voluntarily pays money on a void note or obligation is not entitled to contribution.'^ So one of two sureties who pays a judgment obtained against himself, on a cause of action which was barred as to the other or himself at the date of the judgment, cannot claim contribution.^ But if a suit be brought against one of two sureties on a note before the statute of limitations could be successfully interposed as a defense by either, and judgment is obtained after the time when the statute would have fur- nished a defense in a suit then commenced, and this judgment is satisfied, the right to contribution is not barred.^ The legal rights of sureties as against each other are not governed by the lex loci contractus; hence if, after an action against them is barred by the law of the state in which all the parties to the debt are resident, one of the sureties voluntaril}^, but in iSee ante, §§ 748,750; Edmunds 5 Bouchaud v. Dias, 3 Denio, 238. V. Shehan, 47 Tex. 443 ; Jones v. 6 Currier v Baker, 51 N. H. 613 ; Bradford, 25 Ind. 305 ; Hickman v. Hoyt v. Tuthill, 33 Hun, 196. McCurdy, 7 J. J. Marsh. 558. 7 Russell v. Failor, 1 Ohio St. 327; 2^n,/e, §§ 747, 748; Chandler v, Glasscock v. Hamilton, 62 Texas, 143, Brainard, 14 Pick. 285 ; Atkinson v. 153.. Stewart, 2 B. Mon. 348 ; Pinkston v. 8 Glasscock v. Hamilton, 62 Texas, Talliaferro, 9 Ala. 547 ; Brisendine 143, 153 ; Cochran v. Walker's Ex'rs, V. Martin, 1 Ired. 286 ; Nowland v. 82 Ky. 220 ; Cocke v. Hoffman, 5 Martin, id 307 ; White v. Carlton, Lea (Tenn.), 105 ; Shelton v. Farmer, 52 Ind. 371. 9 Bush, 314. 3 Briggs V. Hinton, 14 Lea (Tenn.), « Glasscock v. Hamilton, 62 Texas, 233. 143, 153 ; Cutter v. Emery, 37 N. H. ^ Glasscock v. Hamilton, 62 Texas, 567 ; Boardman v. Paige, 11 id. 437. 143. Vol. H — 109 1730 SURETYSHIP. [§ 760. ffootl faith, irocs into another state where there is no defense to the demand, and judgment is there rendered against him, he may compel his co-surety to contribute.' If the estate of a deceased surety is discharged from liability to a creditor on account of the debt not being presented within the period al- lowed by law for that purpose it is still liable to contribution in favor of a surety who afterwards pays the debt.- A surety is not bound to defeat a .suit on his contract because of an alteration in it. As to co-sureties who signed it after it was changed he may enforce contribution. They were liable to the pa3^ee, and the waiver of their co-surety's rights did not injure them. He is also liable for his proportion.^ The right of action by the surety for contribution does not accrue at the breach of the contract with the creditor, but upon his payment of the money.^ The common law, which has adopted the equitable principle of contribution by allowing an action upon an implied assumpsit, confines the remedy to those cases in which there is a just and equitable ground for contribu- tion. It has been denied where the surety who seeks contri- bution is indebted to the principal for more than he has paid,^ or has been otherwise reimbursed." § 760. Conclusiveness of judgment. If a surety has no notice of a suit against a co-surety he is not bound by the judg- ment therein.^ But a joint judgment against the sureties is [602] conclusive as between themselves that a cause of action exists against them.* A judgment against one is also conclu- sive against another if he is notified and has an opportunity to defend.'** And where a judgment has been recovered against a 1 Aldrich v. Aldrich, 56 Vt. 324. Briggs v. Boyd, 37 Vt. 534 ; Thomas 2 Camp V. Bostwick, 20 Ohio St. v. Hubbell, 35 N. Y. 120. 337. If a suit against all but one of sev- 3 Houck V. Graham, 106 Ind. 195. eral sureties is compromised by a * Reeves v. Pulliam, 9 Baxter judgment for a less sum than the (Tenn.), 158; Wood v. Leland, 1 Met. principal is liable for, a co-surety not 387 ; Evans v. Evans, 16 Ala. 465. sued and not included in the com- ^ Russell V. Failor, 1 Ohio St. 327 : promise is not bound to contribute McCrary v. Parks, 18 Ohio St. 1. to the reimbursement of the others. 6 Bezzell v. White, 13 Ala. 422. But Glasscock v. Hamilton, 62 Texas, 143. see O'Blenis V. Karing, 57 N. Y. 649. » Knopf v. Morel, 111 Ind. 570; 7 Mason v. Lord, 20 Pick. 447. Waller v. Campbell, 25 Ala. 544. SAnnett v. Terry. 35 N. Y. 256; '"Love v. Gibson, 2 Fla. 598. § 761.] EXPRESS INDEMNITIES. 1731 part of the sureties, and they have paid it, it is competent evi- dence of the amount the}^ were obliged to pay though not of their liability.^ Section 3. EXPRESS indemnities. § 761. Damage tlie gist of the action. An agreement to indemnify against or save harmless from damages is not broken unless there has been actual loss or injury from the cause against which the indemnity is given.^ In such cases damages are the gist of the action, and no cause of action arises until there is a breach resulting in actual injury.' The agreement for indemnity, however, may be so drawn that though intended exclusively as such, it will admit of a tech- nical breach before there is cause for recovery of substantial damages; in other wo^ds, before the event occurs against which the agreement is intended to protect. Such would be a note given as indemnity, but payable before a cause of ac- tion for indemnity had accrued. A suit could be maintained, but only nominal damages could be recovered ; for the true consideration and purpose of the note would be open [603] to proof.^ If, however, actual damages are sustained at any time before the trial, they may be proved and the recovery increased accordingly.^ A covenant against incumbrances is 1 Glasscock v. Hamilton, 62 Texas, 336 ; Hall v. Cresvvell, 13 Gill & J. 38 ; 143, 151 ; Preslar v. Stallworth, 37 Lyman v. Lull, 4 N. H. 495 ; Jeffers Ala. 403 ; Leake v. Covington, 99 v. Johnson, 31 N. J. L. 78 ; Chace v. N. C. 559 ; Fletcher v. Jackson, 33 Hinman, 8 Wend. 452 ; Weller v. Vt. 581. Eanies, 15 Minn. 461; Gennings v. 2 Oaks V. Scheifferly, 74 Cal. 478 ; Norton, 35 Me. 808 ; Churchill Little V. Ragan, 83 Ky. 314 ; Selover v. Moore, 15 Kan. 355 ; Ewing v. V. Harpending, 18 Abb. New Cas. 353 ; Reilly, 34 Mo. 113 ; Douglass v. Clark, Simonson v. Grant, 36 Minn. 439 ; 14 Johns. 177 ; Hussey v. Collins, 30 Staats V. Herbert, 4 Del. Ch. 508 ; Me. 190 ; Scott v. Tyler, 14 Barb. 303 ; Churchill v. Hunt, 3 Denio, 326 ; Ab- Abeles v. Cohen, 8 Kan. 180 ; Jones erdeen v. Blackmar, 6 Hill, 324 ; Coe v. Childs, 8 Nev. 121. See Conkey v. V. Rankin, 5 McLean, 354 ; Wicker Hopkins, 17 Johns. 113. V. Hoi pock, 6 Wall. 94 ; Little v. Lit- 3 id. tie, 13 Pick. 426 ; Crippen v. Thomp- 4 Boynton v. Twitty, 53 Ga. 314. son, 6 Barb. 533; Conner v. Bean, 43 ^Haseltine v. Guild, 11 N. H. 390; N. H. 202 ; Lott v. Mitchell, 32 Cal. Osgood v. Osgood, 39 id. 209 ; An- 33 ; Gardner v. Cleveland, 9 Pick, thony v. Percif ull, 8 Ark. 494 ; Boyn- 1732 SUKETYSHIP. [§ 7G1. another instance of such an agreement for indemnity of which there may be a technical breach giving a right to recover nom- inal damages before actual injury.^ In all cases of conditions or covenants to indemnify and save harmless from damages, the proper plea is non dainnlji- catus, and then the maintenance of the action depends on the proof of damages.^ But it is otherwise where the condition or agreement is to discharge or acquit the plaintiff from some particular thing ; for there the defendant must set forth af- firmatively the special manner of performance.'' The authorities are by no means uniform in the construc- tion of agreements of similar nature and words, in determin- ing whether they shall be deemed to be contracts of indem- nity merely, or agreements against the existence of a certain condition, or requiring some positive act of performance. If the contract deviates the least from a simple one to indemnify against damages, even though indemnity is the sole object of it, and where actual loss may be sustained in consequence of a breach, it is generally treated as belonging to the latter [604] class, and damages are recovered accordingly.^ Where the undertaking is simply to indemnify against damages, and a cause of action exists, the measure of damages is the actual ton V. Twitty. 53 Ga. 214 ; Day v. Cow. 332 ; Woods v. Eowan, 5 Johns. Stickney, 14 Allen, 255; Witherby 42. V. Mann, 11 Johns. 518; Cornwall v. < Conner v. Bean, 43 N. H. 202; In Gould, 4 Pick. 444; Douglass v, re Negus, 7 Wend. 502; Gilbert v. Moody, 9 Mass. 548 ; Child v. Eureka Wiman, 1 N. Y. 553 ; Hall v. Nash, 10 Powder Works, 44 N. H. 354. Mich. 303 : Churchill v. Moore, 15 1 Willson V. Willson, 25 N. H. 229 ; Kan. 255 ; Dye v. Mann, 10 Mich. 291 ; Brooks V. Moody, 20 Pick. 474 ; Van Jarvis t. Sewall, 40 Barb. 449 ; Webb Slyck V. Kimball, 8 Johns. 198 ; Stan- v. Pond, 19 Wend. 423 ; Jones v. nard v. Eldridge, 16 id. 254. Child, 8 Nev. 121 ; Lewis v. Crockett, 2 1 Saund. 117, note 1 ; Hulland v. 3 Bibb, 196 ; Rawson v. Copland, 2 Malken, 2 Wils. 126 ; Cox v. Joseph, Sandf. Ch. 254 ; WiUett v. Stewart, 43 5 T. R. 307 ; Archer t. Archer, 8 Barb. 98 ; Churchill v. Hunt, 3 Denio, Gratt. 539 ; Holmes v. Rhodes, 1 Bos. 326 ; Jeflfers v. Johnson, 21 N. J. L. 6 P. 640 and note ; Harmony v, Bing- 73 ; McDonald v. Bauskett, 10 Rich, ham, 12 N. Y. 113; Thomas v. Allen, 178; Weller v. Eames, 15 Minn. 461 ; 1 Hill, 146. Stroh v. Kimmel, 8 Watts, 157 ; 3 Id. ; Cro. Eliz. 94 ; Port v. Jack- Penny v. Foy, 8 B. & C. 11 ; War- son, 17 Johns. 239 ; Andrus v. War- wick v. Richardson, 10 M. & W. 284 ; ing, 20 id. 153 ; Coombs v. Newton, 4 Pond v. Warner, 2 Vt. 532 ; Morrison Blackf. 120 ; McClure v. Erwin, 3 v. Berkey, 7 S. & R. 238. § 7G2.] EXPRESS INDEMNITIES. 1733 injury of the kind indemnified against; where the undertak- ing is to acquit and discharge the promisee, or that some act or event shall or shall not transpire, the damages will be as- certained with reference to the benefit or immunity the prom- isee would have received if the contract had been performed.^ In the former case the principle is adhered to that compensa- tion will be limited to actual injutry; but in the latter not only will such compensation be given, but in many cases it will be allowed for probable injury .^ Some of the cases in which damages for such probable injury are allowed will here- after be referred to. § 762. What may be recovered. The damages allowable on express agreements for indemnity will depend on the scope of the undertaking; they can only be such as naturally and proximately proceed from the cause referred to in it.' When the indemnity is general against the costs and expenses of a certain act, or " against all actions, suits, costs, damages and demands whatsoever for or by reason or on account thereof," it extends to the costs of defending a groundless suit for the act, in which the indemnified party succeeded; * and so where the obligation is " for the payment of such sum as may from any cause be adjudged against the plaintiff." ® The words " all costs whatsoever " to which the officer " may be liable," and all the costs which he may be " obliged by law to pay any person or persons," include counsel fees reasonably incurred.® Under an agreement to indemnify for any loss that may be sustained by reason of becoming surety on a recognizance, there may be a recovery of the cost of taking judgment.'^ But where the indemnity is against damages which may be sus- tained b}^ an attachment if it proves to be unlawful, in the absence of wilful wrong or oppression, a successful claimant of the attached property cannot recover the sum expended for attorneys' fees or for his personal expenses or loss of time.^ The damages recoverable must be of the nature contemplated 1 Wicker v. Hoppock, 6 Wall. 94. 5 Jordan v. La Vine, 15 Ore. 329 ; 2 Gilbert v. Wiman, 1 N. Y. 552. Carlon v. Dixon, 14 id. 294. 3 Hallock V. Belcher, 42 Barb. 199. 6 Lindsey v. Parker, 142 Mass. 582. * Trustees of Newburgh v. Gala- ^Keeslingv. Frazier, 119 Ind. 185. tian, 4 Cow. 340 ; Chamberlain v. 8 Brinker v. Leinkauflf, 64 Miss. 236. Beller, 18 N. Y. 115; Chilsons v. Downer, 27 Vt. 536. 1734 SUKETYSHIP. [§ Y62. by the agreement, as well as the proximate consequence of the cause stated. A plaintiff in a writ of attachment, desir- ing to attach goods which had been put on board a vessel, gave a bond to her owner conditioned to pay " all expenses, dam- ages and charges which might be incurred by the owner or master of the schooner, or to which they might be subjected, for unloading said goods from said vessel, and for all neces- [605] sary detention of said vessel for said purpose." It was held that the obligee was not entitled to recover upon the bond, in addition to the expenses, damages and charges di- rectly and immediately incurred by him in unloading the merchandise from the schooner, compensation for legal ex- penses to which he was subjected in defending a suit com- menced against the schooner by the consignee of the goods in another state.^ A bond given by an administrator to save his sureties " from any loss or error which might arise from or be caused by said administration " does not make him liable for expenses incurred by them in an effort to secure their dis- charge, or to compel the obligor to account.^ Under a stipula- tion assuming all liability for and indemnifying the obligor's employer against '•' any damages arising from injuries sus- tained by mechanics, laborers or other persons by reason of accidents or otherwise," there is no duty to respond for the negligence of the obligee's employees.* The sureties on an indemnity bond preliminary to the issue of an attachment are not liable for the sheriff's wilful conversion of the goods with- out their knowledge or consent.'* An agreement to keep harmless and pay all damages in case of levying on and selling certain property on an execution was held to apply, though the property was replevied before sale; the officer was entitled to recover the costs, attorney fees, and expenses of defending the replevin suit, as well as the damages adjudged therein, although the principal obligor alone had notice of the commencement and pendency of such suit.^ It was considered that the bond was intended to indem- nify the officer for taking and holding, and also for selling the 1 Hallock V. Belcher, 43 Barb. 199. < Dawson v. Baum, 3 Wash. T'y, 2 Boyle V. Boyle, 106 N. Y. 654. 464. 3 Manhattan Ry. Co. v. Cornell, 54 » Fiuckle v. Evan, 25 Ohio St 82. Hun, 292. § T62.] EXPRESS INDEMNITIES. 1735 property. It was deemed proper also to allow the costs and expenses of defending the suit, because, as the court say, " the obligors had notice of the suit, and had agreed that it should be defended." And they add, "clearly this entitled the constable, if he chose to do so, to defend the suit and re- cover from the obligors his costs, attorney fees and expenses. Nothing less than this would be an indemnit\% according to the terms of the bond, and notice to one of the joint obligors was sufficient."^ In a late English case it appeared that the assignee of a lease undertook to indemnify the assignor against breaches of the covenants and conditions under which the latter held the premises. Ko assignment was executed, but the indemnifying party entered and held possession until the agreement ex))ired ; he let the premises fall out of repair, and the assignor was sued by his landlord for such dilapida- tions. After the assignee had notice of the action the as- signor paid money into court, which the jury found to be sufficient. It was held in an action brought by him against his assignee on his promise of indemnity that the plaintiff was entitled to recover as damages the extra costs necessarily in- curred by him over and above the taxed costs paid to him in defending the former action.- An interesting case on this point occurred in Maine, [606] and appears to have been decided on thorough consideration. It was an action of debt on a bond conditioned " to fully in- demnify and save harmless " the plaintiff " from all loss, dam- age and harm whatsoever by reason of a suit for the infringe- ment of any patent in selling paper collars which the plaintiff has had or may hereafter have " of the defendants, and " to pay all fair and reasonable charges for expenses in defending said suit." The case is thus stated by the court: "In 1S6T the plaintiff, a dealer in gentlemen's clothing, was the agent of the defendants in Maine for the sale of paper collars; the Union Paper CoUar Company commenced a suit against the plaintiff for an alleged infringement of their patent in the sale of these collars, and on December 17, 1867, attached upon their writ in that suit the plaintiff's entire stock of goods, of iFinckle v. Evan, 25 Ohio St. 82. (Exch.) 33; S. C, L. R. 6 Excli. 43; ^ Howard v. Lovegrove, 40 L. J. 23 L. T. (N. S.) 396 ; 19 W. R 188. 1736 SURETYSHIP. [§ 762. the value of $2,750; the plaintiff immediately notified the de- fendants of the attachment and used his best efforts to pro- cure the release of his stock from the attachment; but he was unable to do so until January 6, 1868, when he succeeded in procuring receiptors only by mortgaging the stock to secure them ; the plaintiff incurred reasonable and necessary expenses in two visits to the defendants in New York, the last time with counsel, resulting in the giving of the bond in suit ; the plaintiff contracted a severe illness on his return from New York, in consequence of which his store remained closed until the 1st of February, 1SG8; his business credit, which was previously good, was destroyed by the attachment; he has been obliged to retain the greater part of the goods mort- gaged to secure his receiptors, and the goods have depreciated twenty-five per cent. ; he lost the profits of his store during the time that it remained closed, and they have been greatly diminished since on account of the reduction of the stock caused by the attachment and mortgage, and the consequent loss of credit. The suit of the Union Paper Collar Company against the plaintiff is still pending and undecided, and the plaintiff has actually paid nothing as yet on account of it, ex- cept as above stated, though he has become Jiable for counsel fees to a considerable amount." The court held the plaintiff entitled to recover damages, first, for the depreciation of his stock of goods while necessarily withheld from sale by the at- [607] tachraent made on the writ in the suit for infringement of the patent; second, for the reasonable debt contracted, though not paid, for the services of counsel in defending the suit; and third, for the reasonable expenses of himself and counsel incurred in relieving his stock from the attachment. And it was held that no damages were recoverable, first, for loss of probable profits during the time the plaintiff's stock was under the control of the attaching officer; second, the loss of probable net profits while the store remained closed in consequence of the plaintiff's illness, contracted while trying to relieve the stock from the attachment; third, for the diminution of profits consequent upon the reduction of the stock; fourth, for the prospective damages arising from the loss of mercantile credit caused by the attachment; and fifth, § 763.] EXPRESS INDEMNITIES. 1737 for the expenses of the plaintiff and his counsel in procuring the defendants to enter into the bond in suit.^ § 763. Same subject. If the indemnified party, for [608] the cause indemnified against, suffers judgment and makes a procure its release, but was unable to effect it ou any terms which per- mitted him to make sale of the goods. This depreciation is a matter capable of being definitely ascertained. The loss is neither speculative nor de- pendent upon contingencies, and is one of the natural and dn-ect results of the suit. The plaintiff's stock has been taken from him. In the natural course of things, it is diminished in value by the lapse of time. It is a loss to him as much as if a portion of it were sold. And we are of opinion that the reasonable expense of him- self and counsel, incurred by the plaintiff in the effort to release his property from attachment, is also re- coverable; but not that which was incurred for the purpose of procur- ing the defendants to enter into the contract of indemnity. "And with regard to all the other items which go to make up the dam- ages assessed, we think them either too remote and uncertain, or too much complicated with other inter- vening efficient causes to be allowed in this suit. They do not seem to us to be either the direct and natural consequences of the suit, or to be such losses as may reasonably be supposed to have been in the contem- plation of both parties at the time the agreement was entered into. No small part of them accrued by reason of other efficient proximate causes, tlie force and effect of which cannot be estimated ; nor can the damages accruing from the combination be apportioned. The object of the bond was to reimburse the plaintiff for so much property as should be taken from him by reason of the suit and 1 Ripley v. Mosely, 57 Me. 76, Bur- rows, J,, said : " The language of the bond is general and comprehensive, and the plaintiff is entitled to re- cover all damages which he can legally be deemed to have suffered by reason of the suit, together with the expenses incurred in defending it, so. far as they are found 'fair and rea- sonable ; ' these last being expressly provided for. We think that under the latter clause in the condition, the debt contracted by the plaintiff to counsel for services in defending the suit against Iiim, though not yet jjaid, is a proper subject for allowance in making up tlie damages. The course pursued was undoubtedly contem- plated by both parties. The defend- ants do not appear to have employed any counsel to defend the suit ; and they bound themselves to pay 'all just and reasonable charges for the expenses in defending,' Ripley was to be saved harmless, not only from any judgment that the Union Paper Collar Co, might recover against him for damages and costs, but also from expense in defending the suit. He has not been saved harmless in the matter of these expenses, but has been forced to incur an indebtedness which the defendants should have provided means to discharge. . . . Lyman v. Lull, 4 N. H. 495. . . . Nor do we tliink it can be maintained that the depreciation of the plaintiff's stock, while it has been necessarily withheld from sale on account of the attachment, is not a legitimate sub- ject of damages recoverable here. The attachment of the stock was a natural and common incident of the suit. The plaintiff did his best to 173S SURETYSHIP. [§ 703. payment upon it;^ if his property becomes incumbered and he pays the incumbrance ; - or is subjected to service or trouble or any expense ^ within the scope of the agreement he may [609] recover damages for the same.* So if the party lose for the expenses of defending it. It cannot be so extended as to relieve the plaintiff from all the conse- quences of his unfortunate or unwise management since, though he may have fallen into the mistakes or met with the misfortunes in consequence of the suit operating as a remote cause. But the damages thence re- sulting are consequences of conse- quences, and not legally computable. Very manifestly, if there were no other elements of uncertainty, this should prevent the allowance made for loss of probable profits during the time the store remained closed in consequence of the plaintiff's illness contracted on his return from New York ; for the diminution of profits consequent upon the reduction of his stock ; and for the speculative dam- ages arising from loss of mercantile credit. Much of the reasoning in Hayden v. Cabot, 17 Mass. 169, is applicable in this case." Under a bond given to obtain the right to enter upon laud and lay a gas line, and conditioned to pay " all damages of whatsoever nature and kind that may be suffered or sus- tained," there may be a recovery for the loss of trade brought about by the enforced removal of the obligee's place of business. Penn. Natural Gas Co. V. Cook, 123 Pa. St. 170. 1 Valentine v. Wheeler, 116 Mass. 478 ; White v. French, 15 Gray, 339 ; Moule V. Garret, 41 L. J. (Exch.) 62 ; L. R. 7 Exch. 101; Wallace v. Gil- christ, 24 Up. Can. C. P. 40 : Green v. Brookins, 23 Mich. 48; Anthony v. Percifull, 8 Ark. 474; Brooklyn v. Brooklyn R. Co., 57 Barb. 497 ; Hold- gate V. Clark, 10 Wend. 216. 2 Webb V. Pond, 19 Wend. 423 ; Smith V. Compton, 3 B, & Ad. 407. 3 Nutt V. Merrill, 40 Me. 237 ; Jar- vis V. Sewall, 40 Barb. 449; Lyman V. Lull, 4 N. H. 495 ; French v. Par- ish, 14 N. H. 497 ; Smith v, Compton, 3 B. & Ad. 407 ; Fisher v. Fallows, 5 Esp. 171; Mott v. Hicks, 1 Cow. 513; Short V. Kalloway, 11 A. & E. 28; Orr v. Bigelow, 20 Barb. 21; Trustees of Newburgh v. Galatian, 4 (low. 340 ; Hayden v. Hill, 52 Vt 259; Milk v. Waite, 18 Abb. New Cas. 236 (expense of arresting ab- sconded defendant). 4 In Scott v. Tyler, 14 Barb. 202, the bond sued ou recited that an ex- ecution had been placed in the hands of the obligee, the plaintiff. As sheriff, and by virtue of it, his deputj- had levied on certain goods and chattels claimed by one Disbrow, who was not the execution debtor, and who had replevied the same from the plaintiff, and that action was pending. The condition was that in case the plaintiff" should de- fend that suit, then if the obligors should indemnify and save harmless the obligee from " all costs, charges and expenses which he shall incur in defending," the obligation to be void. It was held to be the intention of the parties to limit the obligation to the expenses of the defense, sti-ictly, and that the damages and costs re- covered by Disbrow were not em- braced. The plaintiff incurred costs and expenses which he had assumed to pay. but had not paid, amounting to $112.25. These were also disallowed because they had not been paid. Strong, J., said : " If the obligation of the defendants is to indemnify and § T63.] EXPRESS INDEiLNITIES. 1739 property by breach of the agreement to indemnify,^ he will be entitled, among other damages, to recover its value. The extent of recovery upon an express indemnit}' is not affected by the fact that other parties than the indemnitor shared the benefits of the act indemnified against. Thus, a sheriff was put to expense and costs, covered by a bond of in- demnity, in a successful defense of an action brought against him by a claimant of goods attached ; and it was held that he was entitled to recover the whole amount upon the bond, and not merely a proportional part, though other creditors who did not indemnify him received the surplus proceeds after sat- isfying the indemnifying creditor.^ The terms " damages, costs and expenses," in a covenant of indemnity against the payment of a demand, do not cover a premium or bonus which the party is compelled to pay to raise the amount of the de- mand.^ Where indemnitors are brought in as parties by the sheriff in an action against him for levying writs of attach- ment upon property not owned by the defendant named therein, they will be deemed to be before the court only for the purpose of enabling the sheriff to enforce his rights against them ; in such action their liability cannot exceed the pen- alty of their bond.'' If there are several writs and bonds and the sheriff is charged as for a conversion in a sum exceeding the gross amount of the penalties in all the bonds the obligors in each will be charged to the extent of the penalties in their respective bonds.^ The liability of the indemnitors of a sheriff who wrongfully seizes property under an attachment when he held another bond at the time of the levy and subsequently save the plaintiff harmless from only in cases of indemnity, but other charge or liability, he is entitled to cases where expenses constitute an recover to the " "tent of the charges item of damages. of his attorneys, his liability therefor i Sanders v. Hamilton, Mart & being established ; but, if it is to in- Hay vv. 458 ; Ackerman v. King, 29 demnify and save harmless from loss Tex. 291 ; Crump v. Picklin, 1 Pat or expenses, he must fail, no loss or & Heath (Va.), 201. expense within the terms of the bond - Chamberlain v. Beller, 18 N. Y. being proved." This decision on this 115. point covei's debatable ground ; and ^ Low v. Archer, 12 N. Y. 277. there is an irreconcilable conflict in * Lesher v. Getman, 30 Minn. 321 ; the cases relating to it It is believed Stevens v. Wolf, 77 Texas, 215. tliat there is a preponderance of au- ^ Lesher v. Getman, 30 Minn. 321. tlidrity against the above ruling, not 1740 suKETYSuip. [§§ 704, 7G5. received other bonds in other actions is not limited to the pro- portion which their bond bore to the whole amount of the bonds held by him. The attachment debtor may regard the cred- itors in the proceeding as joint trespassers, and proceed against one, several or all of them for his whole damages.^ But such liability does not extend to cases in which creditors act inde- pendently of each other, and in which valid liens have been obtained equal in amount to the value of the property, and judgments pursuant thereto have been recovered. In such a case the indemnitor's liability is limited to the residue of the property which was not subject to the prior seizures.^ If property conveyed in trust to indemnify a surety is wrongfully sold his damages are not measured by the net proceeds of the sale and interest thereon, but by its market value at the time his right to have it sold accrued.^ § 764. Contribution or indemnity between wrong-doers. [610] Though it is a well-settled principle that there is no con- tribution or indemnity between wrong-doers, this principle does not apply where one party induces another to do an act which is not legally supportable, and yet is not clearly in it- self a breach of the law ; ^ or where the object is apparently in furtherance of justice and in the exercise of a right, and the means are not in themselves criminal, and not known to the person employed to be wrongful to a third person.^ A prom- ise to indemnify another for committing a wilful and wicked trespass is not binding; but a contract to save harmless one who, from good motives, did an act for his employer which, contrary to his expectation, happened to be an injury to a third person, will be enforced; and any amount which may be recovered by the injured party from such employer he may recover on the indemnity.^ § 765. Contracts varying from indemnity, but intended as such. Contracts are often made, the general purpose of 1 Posthoff V. Bauendahl, 43 Hun, * Spalding v. Oakes, 43 Vt. 343. 570. See Lovejoy v. Murray, 3 5 jves v. Jones, 3 Ired. 538 ; Miller Wall. 1. V. Rhoades, 20 Ohio St. 494 ; Stone 2 Posthoff V. Schreiber, 47 Hun. v. Hooker, 9 Cow. 154 ; Brooklyn v. 593. Brooklyn City R. Co., 47 N. Y. 475 ; 3 Bush V. Haeussler, 31 Mo. App. Hamden v. New Haven, etc. Co., 27 47; Woolner v. Spalding, 65 Miss. Conn. 158. 204. "Id. § YC5.] EXPRESS INDEMNITIES. 1741 Avhich is indemnity, but which are not merely to save harm- less or to indemnify against damages, but provide against the cause of damage; they are contracts for the prevention of damage. Of this nature are contracts to indemnify against the bringing of actions, or the existence of debts or liabilities, or the occurrence of particular facts from which injury is ap- prehended. Such contracts may relate to existing actions, debts and liabilities, and require their discontinuance or dis- charge, or to the preservation of the rights of the indemnified party, and be intended to indemnify or save him harmless bv restraining acts which would impair or destroy such rights. It is held in England and in the up]ier Canadian province that where the undertaking is to save harmless, or protect against all actions or debts which the promisee may become liable to pay, the consequence follows that where judgment has been obtained against him in such action, or upon any such debt or liability, he is entitled to recover the whole amount of the judgment against the covenantor, although he may not himself have paid the debt or any part of it.' [611] But the rule supported by the greater number of cases in our courts, and which most accords with the sound principle of allowing compensation only for actual loss, as well as limiting the damages to the extent of the breach of contract, is that where the contract is to save harmless from actions, debts, costs and expenses, it is a mere indemnity against damages; and there is no cause of action until damages are suffered, and then the recovery is limited to them.^ It has been held, however, in some American cases, that a covenant to save harmless from all suits is broken by the commencement of a suit;* that when a covenant is made to indemnify aa^ainst a 1 Smith V. Teer, 21 Up. Can. Q. B. Beau, 43 N. H. 202; Douglass v. 412; Speuce v. Hector, 24 id. 277; Clark, 14 Johns. 177; Churchill v. Loosemore v. Radford, 9 M. & W. 657 ; Moore, 15 Kan. 255 ; Jeffers v, John- Warwick V. Richardson, 10 id. 284 ; son, 21 N. J. L. 73 ; McDonald \ Carr v. Roberts, 5 B. & Ad. 78 ; Smith Bauskett, 10 Rich. 178 ; Selover \ V. Howell, 6 Exch. 739. Harpeuding, 54 N. Y. Super. Ct. 251 2 Abei-deen v. Blackmar, 6 Hill, Sinsheimer v. Tobias, 53 id. 508 324; Crippin v. Thompson, 6 Barb. Trinity Church v. Higgins, 48 N. Y. 532 ; Lott v. Mitchell, 32 Cal. 23 ; 537 ; National Bank v. Bigler, 83 id, Donely v. Rockefeller, 4 Cow. 253 ; 51, 61. Hussey v. Collins, 30 Me. 190 ; Coe '^ Wilson's Adni'r v. Bowens, 2 T. V. Rankin, 5 McLean, 354 ; Conner v, B. Mon. 86. 1742 SURETYSHIP. [§TG5 debt or duty which may accrue in the future, a liability to suit is a breach, and recovery may be had to the extent of the debt or duty to which the indemnity applies,^ or as ascertained by a judgment, though no part of it has been paid nor any actual injury suffered.'^ Where the contract is more than for indemnity against damages, as where a party stipulates against the doing of cer- tain acts, or the existence of certain conditions, or for pay- ment or performance of any kind, then damages are not the gist of the action, and the value of performance will meas- ure the amonnt recoverable for the breach. Thus, for ex- ample, a contract to pay a debt or to discharge a liability then existing, no time being specified, is a promise to pay it when [612] due, forthwith or within a reasonable time, if already due.^ The promisee on breach of such contract is entitled to recover the amount of the debt and interest, though he has not paid it or any part of it, if it is a debt the discharge of which would be beneficial to him.* The measure of daraao-es 1 Robertson v. Morgan's Adm'r, 3 B. Men. 307; Chace v. Hinman, 8 Wend. 452 ; Rockfeller v, Donnelly, 8 Cow. 623. 2 Carman v. Noble, 9 Pa. St. 366 ; Fish V. Dana, 10 Mass. 46 ; Webb v. Pond, 19 Wend. 423 ; Gilbert v. Wi- man, 1 N. Y. 550 ; Jones v. Childs, 8 Nev. 121 ; In re Negus, 7 Wend. 499 ; Kirksey v. Friend, 48 Ala. 276; Conkey v. Hopkins, 17 Johns. 113 ; Jarvis v. Sewall, 40 Barb. 449 ; Ban- field V. Marks, 56 Cal. 185 ; McBeth V. Mclntyre, 57 id. 48 ; Martin v. Eol- enbaugh, 42 Ohio St. 508 ; Conner v. Reeves, 103 N. Y. 527. 3 Campbell v. Baker, 46 Pa. St 243 ; Roberts v. Riddle, 79 id. 468 ; Furnas V. Durgin, 119 Mass. 500; Lathrop v. Atwood, 21 Conn. 117; Wilson v. Stillwell, 9 Ohio St. 468; Gilbert v. Wiman, 1 N. Y. 550. 4Id. ; Banfield v. Marks, 56 Cal. 185; Trinity Church v. Higgins, 48 N. Y. 532 ; Belloni v. Freeborn, 63 id. 383; Stout v. Folger, 34 Iowa, 71; Jeffers v. Johnson, 21 N. J. L. 73 Dayton v. Gunnison, 9 Pa. St. 347 Wilson V. Stillwell, 9 Ohio St. 468 Kettle V. Lipe, 6 Barb. 467 ; Raymond V. Cooper, 8 Up. Can. C. P. 388; Braman v. Dowse, 12 Cush. 227; Churchill v. Hunt, 3 Denio, 321 ; Nutt V. Merrill, 40 Me. 237 ; Dye v. Mann, 10 Mich. 291 ; Hall v. Nash, id. 303 ; Dorsey v. Dashiel, 1 Md. 198 ; Conkey V. Hopkins, 17 Johns. 113; Kip v. Brigham, 7 id. 168 ; Sprague v. Sey- mour, 15 id. 474; Fish v. Dana, 10 Mass. 46 ; Gilbert v. Wiman, 1 N. Y. 550; Thomas V. Allen, 1 Hill, 146 Lathrop v. Atwood, 21 Conn. 117 Ketcham v. Jauncey, 23 id. 123 Merriam v. Pine City L. Co., 23 Minn. 314; Gage v. Lewis, 68 111. 604, In Gilbert v. Wiman, 1 N. Y, 550, Pratt, J., said: "Perhaps there is no branch of law concerning which the decisions of our courts have been more fluctuating than in relation to damages, especially in relation to the damages arising upon contracts in 766.] EXPRESS INDEMNITIES. 1743 on the breach of an undertaking to discharge the duties of a surviving partner is the amount which would have been re- ceived if there had been a faithful performance.^ A promise to pay a debt due a third person is not restricted in any way by a further promise to indemnify such person and save him harmless.^ § 766. Same subject. The amount of the debt agreed [613] to be paid is not the measure of damages if the promisee is the nature of contracts of indemnity. According to strict legal principles. a court of law, it would seem, should only give actual compensation for actual loss ; and such is the rule in relation to contracts of indemnity against damages merely. Aberdeen V. Blackmar. 6 Hill, 324 ; Jackson v. Post, 17 Johns. 432. ... But in personal contracts, when the instru- ment deviates the least from . a sim- ple contract to indemnify against damages, even where indemnity is the sole object of the contract, and where in consequence of the primary liability of other persons actual loss may be sustained, the decisions of our courts, although by no means uniform, have gradually inclined towards fixing the rule to be one of actual compensation for probable loss; so that in contracts of that character it may now be considered a general rule, both in this country and in England. Thomas v. Allen, 1 Hill, 146 ; Holmes v. Rhodes, 1 B. & P. 638 ; Hodgson v. Bell, 7 T. R. 97 ; Post V. Jackson, 17 Johns. 239. For instance, in an action on a covenant that a bond or other debt upon which a covenantee is liable shall be paid when due, or on a day certain, it has been long settled that the plaintiff may recover the full amount of his liability, although it is evident from the terms of the contract that it was intended merely as an indemnity, and although the parties primarily liable are abundantly able to pay. Mann v. Eckford's Ex'rs, 15 Wend. 502 ; Ex parte Negus, 7 id. 499 ; 7 T. R. 97 ; 2 M. R 181. Indeed, the late supreme court have gone so far in some recent cases as to allow a full recovery when it did not appear that the plaintiff was liable at all, or could be injured by a breach of the con- tract; the court deciding tiiat they had a right to infer that the plaintiff had some interest in having the debt discharged, or he would not have made the contract. Thomas v. Allen, 1 Hill, 146 ; Tyler v. Ives, MS. Sup. Court, 1839. That the plaintiff had some interest in such a case would be probable ; but that he had an inter- est to the full amount of the original indebtedness, in the absence of proof, seems to be rather a violent presump- tion ; such, however, is the effect of these decisions. In the last case cited above, Ives covenanted with Tyler that Raynor should pay up and discharge a bond and mortgage upon certain lands. There was no evidence to show that Tyler had any interest in the lands, or in the dis- charge of the bond and mortgage, or was in any manner liable upon the same ; yet the court held that he was entitled to recover the full amount of the bond." 1 Miller v. KingsUuy, 28 111. App. 532 ; affirmed, 128 111. 45. 2 Locke V. Homer, 131 Mass. 93, 109 ; Shattuck V. Adams, 136 id. 34. 174i SURETYSHIP. [§ 766. not liable for the debt assumed and cannot gain by its pay- ment, nor be prejudiced by its non-payment. Where a party owning land which is subject to a mortgage for the payment of which he is not personally bound sells and conveys it sub- ject to the mortgage which the grantee engages to pay, this agreement is construed as a mere declaration that the prop- erty was conveyed to him subject to the lien of the mortgage thereon, and that the general covenants of seizin and warranty ill the conveyance are not intended to extend to this particu- lar incumbrance, of which the grantee assumed the pa3"raent in case he should wish to retain the title of the land conveyed to him.^ Such a grantor, to whom the promise to pay such a mortgage is made, having no effect on its payment beyond the effect of such payment on the ccTvenants for title, the agree- ment is construed to accomplish what such facts indicate was the intention of the parties; and is restricted to secure the promisee just the benefit which would accrue to him from the payment agreed to be made — exemption as to that debt from liability on those covenants. If, however, the grantor of lands burdened with an incumbrance is personally liable for the debt so secured and the grantee agrees to pay it, then an actual discharge of that debt is necessary to the grantor's indemnity ; and the agreement to pa}'' it will be construed to extend his exoneration. In the former case the failure of the grantee to ])ay the mortgage would be no actual injury to the grantor; but in the latter case it would; and he is allowed to recover damages measured by the amount of the debt. In that case the [614:] mortgagor may by subrogation in equity also enforce the obligation in his own favor,^ The recovery of damages to the amount of the debt by the promisee who has not paid it, but is only liable for it, or has a beneficial interest in having it paid, has sometimes been re- ferred to as compensation allowed for only probable injury. It is not such in any just sense. Such agreements must have a consideration; the promisor, in contemplation of law, has received such value that it is a just and legal duty he has as- sumed to pay the debt, and the benefit of its cancelment by 1 Halsey v. Reed, 9 Paige, 446 ; supra; Blyer v. MonhoUand, 3 Sandf. Trotter v Hughes, 12 N. Y. 74. Cli, 478 ; Rawson's Adm'r v. Cop- 2 Trotter v. Hughes, Halsey v. Reed, laud, id. 251. § TOt).] EXPRliSS INDEMNITIES. 1745 payment to the promisee will equal its amount; and by neces- sary consequence, its non-payment is a legal detriment and injury to the same amount. The sale of land subject to a mortgage for which the seller is liable and which the bu^^er agrees to pay is an apt illustra- tion. An owner of land sells it; he owes a debt which is se- cured on the land. If he gets the full value of the land he can pay off the debt and discharge the incumbrance at once. He is then exonerated from that debt; his creditor has his dues, and the purchaser has only paid for the land. On the other hand, if the seller leaves so much of the purchase-money in the hands of the buyer as is equal to the incumbrance, on such bu\^er's agreement to pay the debt, so long as the buyer re- tains the money after the debt is due, he retains money equal in amount due for the land and which he had agreed with the seller to pay for his benefit. In the same sense, whenever one undertakes by an original agreement to pay another's debt, the latter suffers the injury at once when a default in making the payment occurs. The damages are to be estimated not exceptionally, but on the general ]irinciple of allowing the in- jured party compensation equal to the benefit he would derive from performance. It has been suggested that in such a case the promisee may never be compelled to pay the debt; that is not the proper test of injury to him. After such a contract he has a right to have his debt paid; and to be morally and legally exonerated by payment; not merely to be indemnified in a perpetual delinquency to his creditor. Trover will [615] lie by a maker for conversion of his note which he has paid, or one tortiously diverted from the use for which it was made.' In such a case it is equally true that the maker may never be called on to pay; but that consideration does not prevent a recovery for the face of the note wdiere the maker is exposed to injury to that amount. Courts of law are not adapted like courts of equity to do complete justice to all parties interested in such cases; that is. to protect the defaulting party by requiring the money so 1 Decker v. Matliews, 13 N. Y. 313; 98; Stone v. Clough, 41 N. H. 290; Buck V. Kent, 3 Vt. 99 ; Park v. Mc- Ne.al v. Hanson, 60 Me. 84 ; Otisfield Daniels, 37 Vt 594 ; Pierce v. Gilson, v. Mayberry, 63 Me. 197. 9 Vt. 216 ; Spencer v. Dearth, 43 Vt Vol. 11 — 110 1746 SURETYSHIP. [§ 767. recovered to be applied to the debt, though its payment may be important to him. This, however, has been done in some cases.^ § 767. Effect of judgment. "The covenantor in an action on a covenant of general indemnity against judgments is con- cluded by the judgment recovered against the covenantee from questioning the existence or extent of the covenantee's liabil- ity in the action in which it was rendered. The recovery of a judgment is the event against which he covenanted, and it would contravene the manifest intention and purpose of the indemnity to make the right of the covenantee to maintain an action on the covenant to depend upon the result of the re- trial of an issue which as against the covenantee had been con- clusively determined in the former action, ' always, however, saving the right, as the law must in every case where the suit is between third persons, to contest the proceeding on the ground of fraudulent collusion, for the purpose of charging the surety.' " ^ A judgment by default is covered by an in- demnity against judgments.' Where it is taken by the con- sent of the obligee, its force as evidence against the sureties is presumptive only ; they may show that it was not founded upon any legal liability or not to the extent it goes. In the absence of such evidence the amount of the judgment is the sura the obligee is entitled to recover."* 1 Martin v. Franklin F. Ins. Co., 38 3 Lee v. Clark, 1 Hill, 56 ; Aberdeen N. J. L. 140 ; Wilson v. Stillwell, 9 v. Blackmar, 6 id. 324 ; Annett v. Ohio St. 4G7. Terry, 35 N. Y. 256. 2 Conner v. Reeves, 103 N. Y. 527, * Conner v. Reeves, 103 N. Y. 527 ; and earlier cases cited, p. 530 ; Martin Lindsey v. Parker, 142 Mass. 582. V. Bolenbaugh, 43 Ohio St 508. INDEX, Eeferences are to sections. ACCEPTOR — primarily liable to the holder of a bill, 540. what liability arises from acceptance, 540. his agreement by acceptance, 549, 561. damages recoverable oh agreements to accept, 540, how amoimt of principal sum ascertained in action against, 540. fraud on him not available as a defense where transaction not repudi- ated, 549. may show in action against the drawer acceptance for liis accommoda- tion, 555. is liable on his acceptance as though he had given his note for same sum, 561. is not liable for re-exchange, 561. but this has been questioned on principle, 561. is liable to reimburse the drawer who has been compelled to pay re-exchange, 561. by what law his undertaking is governed, 563. ACCOMMODATION PAPER — it cannot be collected by the accommodated party, 543. parol evidence admissible to show a note or bill to be such, 551. on what consideration it is made, 551. liability of accommodation party, 551. how and to whom accommodation drawer liable, 555. measure of recovery on, when purchased for less than its face, 555. ACT OF GOD — no damages for breach of condition or agreement caused by, 476, 655, 709. ACTUAL LOSS OR INJURY — the measure of damages, 471, 535, 596, 599, 610, 637, 670, 675, 693. ADMINISTRATOR — not liable beyonds assets, 494. his duty is to apply assets to debts, 494. when liable, and to what extent, to beneficiaries of his trust, 494 AGENT — will forfeit his right to compensation by misconduct, 683. ANIMALS — damages for breach of warranty of soundness, in being diseased and communicating disease to other animals, 675. damages from breach of warranty resulting in personal injury from, 675. APPEAL AND SUPERSEDEAS BONDS — their usual conditions, 531. of supersedeas bonds in the federal supreme court, 533. liability on when the judgment or decree below ia only in part for money or in tn rem, 533-585. 1748 INDEX. Heferences are to sections. APPEAL AND SUPERSEDEAS BONDS — continued, damages on, 53'3-n35. liability on specific conditions, 536, 537. two sets of sureties in. not co-sureties, 536. iindertakiug on appeal under the code, 536. 537. interest and damages awarded on, 538. APPORTION ABLE CONTRACTS — for services, 468. whether a contract is such depends on the intention of the parties, 468. contracts for service are, when wages are intended to be paid as the work progresses, 468. contrariety of decision on contracts for particular work as to their being severable. 708, 709. APPORTIONMENT — of compensation for work done under special contracts not fully per- formed, or deviated from, 507, 509. ASSIGNOR — liability of, for breach of implied warranty on sales of noCes and clioses in action, 668. ATTACHMENT BONDS — conditions of, 510. breaches of, 510. who may sue on, 511. damages recoverable on, 512-514. costs, etc., recoverable, 516. when exemplary damages recoverable on, 514. what may be shown in defense, 515. , <• ATTORNEY'S FEES — effect of stipulations for, in notes. 564. such stipulations do not affect indorsers, 564. when an item of damages on breach of covenants for title. 610, 617, 619. allowance of for service in case of .breach of warranty of title .to per- sonal property. 669. ATTORNEY'S SERVICES — an action for, will lie, 683. may contract for a stated sum, or recover on a quantum meruit, 683. what may be shown to enhance or diminish the merit and value of such service, 683. in England actions cannot be maintained for advocacy in litigation, 683. when the expense incurred for such service an item of dan^age, 763. BARGAIN — when loss of, not an item of damages for breach of contract for sale of land, 578-581. when item of damage in such case without regard to cause of vend- or's breach, 580. BONA FIDE HOLDER — who is such, of commercial paper, and his rights, 541, 543, 555. BONDS AND PENAL OBLIGATIONS — definition of a bond, 470. what is a single bond, 470. nature and effect of a condition, 470. at law, tlie penalty became an actual debt on failure to perform the condition, 470. but relief was granted in equity ; that court would not allow tho obligee to take more than in conscience he ought, 470. penalties in affirmative agreements, 471. statute of 8 and 9 Wm. III., and its effect, 473. INDEX. 1749 Heferences are to sections. BONDS AND PENAL OBLIGATIONS — continued. statute of 3 and 4 Anne, and its efTect, 473. American statutes and practice, 474. by these statutes, courts of law give tlie obligee what is due by the condition, and save resort to ecjuity, 474. in practice, judgment is given for tlie penalty, but the breach of the condition is treated as the gist of the action, 474. if such judgment be sued, the damages assessed for breaches of the condition under it are the measure of the new recovery, 474. if the condition be to do an illegal act, the bond is void, 474. anil void pro tanto when illegal as to a severable part, 474. statutory bonds — their requisites, 475. if the condition be impossible, the bond cannot be enforced, 476. though in equity a conq^ensation allowed, 476. the penalty is the limit of recovery, 477. and it is a maximum limit of the obligor's liability on private bonds, 477, 478. interest may be allowed to amount of penaltj', 478, how duty to do eijuity treated with regard to hmit of penalty, 477. bonds of official depositaries of money, 479. obligors' liability absolute for the money received, 479. the difference between the operation of such bonds under different laws, 479. by some, the officers merely bailees: others strictly debtors; though both classes under the same absolute responsibility, 479. adjustment between different sets of sureties for same principal holding for successive terms, 480. when the liability of sureties for such officer begins and ends, 480, the sureties in last bond, when prima facie liable for defalcation, 480. how they may relieve themselves, 480. when the officer owns the funds officially received and is charged as debtor for them, his sureties at the time of the receipt are bound until tiie debt is paid, 481. the difference in the manner in which such officers hold the funds illustrated by the decisions relative to the application of pay- ments made by them. 481. effect of omission of supervising officers to make periodical exam- inations or settlements, 483. such regulations not intended for the benefit of sureties, i.-ut are a further protection to the public, 482. the neglect of one public servant cannot be set up to relieve another from responsibility, 482. effect on the liability of a surety for a tax collector of adding, after the bond, to the tax district, 725. BONDS OF OFFICERS NOT FISCAL — liability on, 484, 486, 487. construction of as against sureties, 485. measure of damages on against sureties, 488. BROKERS — entitled to commission on performance of service pursuant to employ- ment, 683. and whether tliey prove beneficial or not, if faithfully performed, 683. may recover customary brokerage in the absence of special agreement, 683. custom may require the business to be completed as a condition, 683. must perform their duties with skill and fidelity, 683. will forfeit their right to compensation by misconduct, 683. 1750 INDEX. Heferencea are to sections. BUSINESS — notes given for, subject to reduction or recoupment for vendor's re- sumption of it, 547. damages for injury to by attachment secured by attachment bond, 513. CARRIER — damages for his faiUire to deHver or delay in delivering ascertained by same rule as against a vendor, 666. CAVEAT EMPTOR — admonition to purchaser, 544, 667. has full application to sales by executors and other trustees, 668. in other casts applies where there is no fraud or warranty, 676. CERTIFICATE OF ARCHITECT, ENGINEER, ETC.— necessity of, when provided for by contract, 712. eifect of, 712. what necessary to render it conclusive, 712. where he acts contrary to contract, 712. may be impeached for fraud or mistake, 713. necessity of notice to parties of measurements, 713. CHOSES IN ACTION — warranty implied on sale of, 555. implied warranty on assignment of a judgment and damages for breacli, 668. COMMISSIONS — the right of brokers to them, 683. COMPENSATION — for actual loss or injury the principle which measures and limits recov- ery, 488, 697. COMPROMISE — a surety is only entitled to the amount he pays on the compromise of a lialjility for which lie is bound, 748. CONSEQUENTIAL DAMAGES — what may be recovei'ed as such for breach of a contract for the sale and delivery of chattels, 662. purchaser is entitled to recover such damages as were in the con- templation of the parties, 662. where the goods were bargained for for a special use or purpose, 662-664. what recoverable on breach of contract for particular works, 699. CONSIDERATION — received by the principal, supports the undertaking of the surety, 723. presumed in action upon commercial paper, 541. defenses connected with, to commercial paper, 542-554. inadequacy of, distinguishable from failure of, 544. want or failure of, a defense to notes and bills between immediate parties, 542. fraud in relation to, as a defense to such paper, 542. as to whom accommodation paper is without consideration, 543. a note made for a gift is without consideration, 542. other instances, 542. effect of partial want of, 543. may be shown, though unliquidated, 543. when a partial failure of consideration a defense to a note, 544 generally some remedy for, 546. instances of partial failure, 547. where part of consideration of note is fraudulent, 549. where part of the consideration is illegal, 549. parol evidence admissible to show want or failure of, 551-554. admissible to affect the holder with a trust, 553. that it was contingent, conditional or defeasible, 551, 553. where consideration executory, it may be shown to have failed, 552-554. INDEX. 1751 References are to sectiona. CONSIDERATION — continued. measure of damages including interest for breach of covenants for title, 59;i when not so, 595. actual, in deed may be proved, 594. CONTRACT — each party has the legal right to violate, on the terms of paying dam- ages, 569. to pay in or deliver specific article, 659-661. CONTRACTOR — entitled to contract price, or reasonable value of his work, 684, 706. demands for extra woik. 707. considerations on which allowance of depends, 707. effect of provisions tliat deviations and extra work be ordered in writing, 707. rate of compensation for extra work, 707. recovery may be had for part performance of a severable contract, 707, 708. contrariety of construction as to severable quality of contracts, 708. not answerable for defects in plans furnished to him, 701. when entitled to payment though work destroyed without his fault be- fore comjjletiou, 700. damages for delay, 703, 704. consequentiaf, for defective work, 705. demands for part performance of an entire contract, on quantum mer- uit 709-711. certificate of architect, engineer, etc., 713. may recover contract price by action on the contract when it has been substantially performed, 709. what is a substantial performance, 709. what a waiver of objection to w-ork so as to entitle him to recover on quantum meruit, 709. at what rate he is entitled to be compensated, 709, 710. what proof no answer to emploj^er's evidence showing extent of his loss from contractor's non-performance, 710. his right to recover for work done in part performance of contract, where he has in good faith endeavored to fulfill and employer is bene- fited, 709-711. his right of recovery when emploj^er stops the work, 713, 714. CONTRACTS FOR PARTICULAR WORKS - nature of such contracts, 696. rights and remedies of employees, 696-705. compensation for the actual loss the measure of damages, 697, 698. on contractor's breach of contract, the other party entitled to damages equal to the benefit he would have derived from performance, 697, 698. measure of damages against defaulting contractor, 697, 699. consequential damages recoverable, 699, 702. works contracted for a particular purpose, 702. damages for delay, 703. consequential damages for defective work, 705. contractor not excused by accidental destruction of the work. 700. when he is excused and entitled to payment for part performance not- withstanding destruction, 700, 708. contractor not answerable for failure of plans furnished him, 701. contractor's rights and remedies, 706-714 contract price, 706. demands for extra work, 707. recovery for part performance of a severable contract, 708. what will be a waiver of objections to the contractor's ]ierformanc?, so as to entitle him to recover on quantum meruit, 709-711. when recovery may be had for part performance, 710, 711. contractor's right of recovery when employer violates the contract by stopping the work, 713, 714. 1752 INDEX. References are to sections. CONTRACTS FOR THE SALE OF PERSONAL PROPERTY — recovery may be had of the price or vaUu; on executed sales, 642. where price not fixed there is an implied promise to pay tlio real value. (543. an aurcbase, may be recovered on bi-each of implied warranty, 668. 1754: INDEX. References are to sections. COSTS AND EXPENSES — continuotl. so when iucuned in defoudiag title to property bought with warranty, (508. of raising crop from seed warranted, G74. surety's right of recovery for, against his principal, 753. what costs a suretj'' may recover, 7.")3. what recoverable on contract of indemnity, 763. COVENANT AGAINST INCUMBRANCES — what are incumbrances. G20. damages coase when incumbrance removed, and if removed by cove- nantee wrongfully, he cannot claim on the covenant iiidemuity for tlie damages recovered against him, G19. generally held to be a covenant in prcseiiti, 031. rule of damages for breach of, 632, 633. in England and Canada, 624 criticism of the rule of damage, 626. in some states it runs with the land, 625. when it will pass to subsequent grantees by deed without covenants, 636. where connected with covenant for quiet enjoyment, 630. rule of damages when the incumbrance cannot be removed, 627, 638. liability of remote covenantor, 629. COVENANTS OF SEIZIN AND GOOD RIGHT TO CONVEY— purport of these covenants, and when broken, 5i)l. acceptance of deed merges contract, 591. how these covenants differ, 591, they are similar in purpose and effect, 591. they are generally regarded as covenants for title, and not merely for possession, 5'Jl. uniform in effect when formal and show intention to assure highest title, 591. diversity in the forms of this covenant in the United States. 591. construction of the covenant in Massachusetts, Maine and Nebraska, 591. they are covenants in presenii, 592. if broken, they are broken when made. 592. in England and in some of the states they are, however, held to be real, and run with the land, 592. doctrine in Ohio, 592. • the general doctrine is that they are personal covenants and do noi run with the land, 592. that being broken at the date of the deed, they are turned into mere choses in action, and incapable of assignment or of being available to any but the covenantee, 592. measure of recovery on. 593. actual consideration may be proved. 594. when consideration does not measure damages, 595. effect of recovery on a total breach. 596. it is a bar to any further recovery, 590. only nominal damages recoverable in absence of actual loss, 597-599. where covenant runs with land, 600. how damages may be prevented or mitigated, 601, 602. where title fails to part and reconveyance is tendered, 599. want of reconveyance no bar. 599. it will not affect the right to full damages when no title passed, 599. nor will a resale, 599. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT — scope of these covenants, 603. the same facts constitute a breach of both, 603. both run with the land, 603. and the rule of damages on a breach is the same, 603. INDEX. 1755 References are to sections. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT — con- tinued, what is a breach, 604. there must be an eviction under a paramount title existing when the covenant was made, 604. rule of damages for breacli of tliem, 605, 606. in England and Canada. 607. same in some of the older states, 608. rule in case of partial breach. 609. wliere tlie adverse claim and eviction are under a paramount in- cumbrance, 6(;9. matters provable in mitigation of damages, 611. rule where adverse title extinguished by the covenantee, 610. where the defect is an outstanding right of dower, 612. or a term of years, 613. by and against whom recover j' may be had, 613. not necessary a conveyance by covenantee be made with cove- nants to pass these covenants to grantee, 613. they are divisible, and benefit of them will go to recipient of any part of the land, 613. remote grantee evicted may bring suit against the first or interme- diate covenantor, 6i;?. 614. he may bring suits against all at one time or successively, 613, 614. entitled to only one satisfaction and costs, 613. when intermediate grantee may maintain action on the eviction of his grantee. 614. he must satisfy his covenant to his grantee. 614. the grantee lias a right to defend unless aware that no defense can suc- ceed, 617. notice of suit to covenantor, 615, 618. interest as an item of damages, 618. expenses and costs incurred may be recovered as part of the damages for breach of these covenants, 617, 619. COVENANTS TO PAY OFF INCUMBRANCES — when an instrument will be construed to be such a covenant, 631. CREDIT — injury to by attachment remote and speculative. 512. compensation for such injury has been allowed where there was malice, 512. CREDITOR — his duty to surety to realize on securities, 737. how secured by and his remedies on probate bonds, 393-395. CROSS- ACTION — necessity of, much diminished by practice and legislation increasing scope of defense, 544-548. DAMAGES — measure of, on bonds, is the sum due by the condition. 474. they are allowed in equity where the condition is impossible, 476. the penalty in a bond the limit of recovery, 477. and of the liability of the ohligors, 477. this limitation is only applicable when the suit is founded on the bond. 477. it does not apply when the suit is upon an affirmative agreement, or upon some security, 477. nor wlien suit is upon a judgment rendered on a bond, 477. equity may enforce a debt beyond a penalty against a complainant compelled to do equity. 477. or against a litigious and dilatory debtor, 477. so where advantage is made of the money, 477. 1756 INDEX. References are to sections. DAMAGES — continued. measure of ; why equity will limit the obligee as complainant to the penalty, 477. in a few" cases the sum due by the condition exceeding the penalty has been recovered, 477, 478. interest may be added to the amount of the penalty from the date of forfeiture when the actual debt or damages equals the penalty, 478. the measure of. on official bonds, as against sureties, 488. as against officers, 489-493. on probate bonds. 493, 494. on guardian's bonds, 496-498. are limited by the penalty, 496. measure of. on replevin bonds, 504-509. measure of, on bonds given by defendants in replevin to retain the property, 509. measure of, on attachment bonds, 512-514. where a stock of goods attached, recovery may be had for interrup- tion of business, 512. but not to the reputation of the goods, 513. may be enhanced by ]n-oof that attached property was intended for a particular use, 512. depreciation of the property in the officer's hands may be shown, 512, 513. but only when it is personalty of which the officer takes possession, 513. what consequential damages in such cases excluded, 512, 513. when exemyjlary damages allowable, 514. what may be shown in defense, 515, 516. measure of, on forthcoming bonds, 518. and on condition to pay the judgment, 519. measure of, on injunction bonds, 523-528. recovery may be had of costs and expenses, including attorney fees to procure dissolution. 524. damages recovei-abie for the injury sustained from the restraint of the injunction, 525-528. on siqwisedeiifi bonds for review in the supreme court of the United States, 533. liability where the judgment or decree below is only in part for money, or is i]i rem, 533-535. liability on more specific conditions in use in state courts, 536, 537. on undertakings under the code, 536. interest and damages awarded on appeal, 538. recoveries on notes and bills, 540-565. damages in lieu of re-exchange, 562, 563. statutes of the several states on that subject, 563. measure of, in vendor's action on contract for sale of land before con- veyance, 567-570. effect of resale in determining amount. 570. elements of, in vendor's action for purchase-money, 570. right of recovery where notes given for purchase-money, 571. recovery against purchaser of land where the price is not fixed by the contract, 574. elements of, in the vendee's action against the vendor for breach of the contract for the sale of land. 581-584. interest on purchase-money, 577. measure of damages in England, 578. seller must convey perfect title. 572. recoupment for defect of title. 573. when purchaser may not question title, 574. damages against the vendor for dilapidations, when he retains posses- sion as security for the purchase-money, 588. for waste and dilapidations on rescission, 587. INDEX. 1757 Eeferences are to sections, DAMAGES — continued. damages in suits for specific performance, 590. courts of e(iuity have sometimes given damages solely in lievi of specific performance, 590. tliey will give it in part where entire performance cannot be specific- ally decreed, 590. the measure of damages thus allowed is the same as at law. 590. it will entitle tiie (iurcliaser to an al)at(>ment of the price or to the value of tlie part lost, according to circumstances, 590. where the contract is in such terms as to imply no warranty of quantity tliere can be no abatement of compensation, 590. presumption as to benefits which would have accrued from per- formance of a contract, 590. may be given when specific performance would not be granted, 590. measure of, on breach of covenants of seizin and good right to convev, 593. not alfected by fact that the land has been enhanced in value by improvements or otlierwise, 598. reasons of policy for this exceptional rule of damages, 593. when value of improvements may be included. 593. if the consideration was property, its value will be adopted as the basis of recovery, 594. and agreed value will be adopted and may be proved. 594 when consideration will not measure the damages, 595. where it cannot be ascertained, 595. when paid by a third person. 595. any recovery beyond nommal damages for breach of the contract of seizin and good right to convey requires proof of actual loss. 597. if the purcliaser obtains anything by the deed its value will reduce recovery, 597-599. ■where there is a total breach, consideration and interest are prima facie the loss. 597. effect of grantee obtaining and enjojdng possession, 597. where these covenants do not run with the land possession will not generally prevent recovery measured by consideration and interest, 597. possession may compensate for interest when there is no liability to the superior owner for rents and profits, 598. where the defect of title is only technical, and there has been long possession under the conveyance, 598. where outstanding title has been bought in, 598. elective total breach and reconveyance when title to part fails, 599. damages will be reduced if the title has been made good bj' the statute of limitations, 598. damages are assessed with reference to the facts affecting the real loss at the time of the assessment, 599. at least nominal damages recoverable for any breach, 599. how damages for breach of these covenants may be prevented or mitigated, 601, 602. by the defect of title being cured, GOl. bj^ covenantor acquiring title and it inuring to covenantee by estoppel, 601. how damages adjusted on a partial breach, 602. when the defect is an outstanding life estate its value is meas- ure of damage, 602. for loss of things which would pass as appurtenant to the free- hold, as fences, buildings and fixtures, 604. measure of, for breacli of the covenant of warranty, 605. consideration and interest, together with costs and expenses of de- fending the title. 605. it is an exceptional rule, G05. increased or diminished value at time of eviction not regarded, 605, 606. 1758 INDEX. Heferences are to sections. DAMAGES — continued. measure; if property is the consideration its value is the basis of the measure of damages, 606. the rule of damages in England and Canada, 607. same in some of the older states, 608. rule in the case of a partial breach, 609. they will be assessed pro tanto according to the rule for total breach, 609. where the conveyance contains parcels and the title fails to one, 609. where it fails to an undivided part, 609. where the eviction is by some paramount chai'ge or incum- brance, 609. if action not brought until after title absolute under the incum- brance, 609. effect of covenantee owing purchase-money due to amount of the incumbrance, 609. or of the covenantor leaving sufficient money in hands of cov- enantee to discharge it, 609. rule of recovery where covenantee has extinguished the adverse title, 610. what may be included in the cost of extinguishing adverse title, 610. effect of covenantee repurchasing property after a legal eviction on the damages for breach of the covenant of warranty, 610. the recovery will be adjusted to the actual loss, 610. rule of, where remote grantee sues first covenantor, 614. interest as an item of damages in action for breach of covenant of warranty, 616. notice of suit to covenantor, 615. costs and expenses, including attorney fees, of defending reason- ably and in good faith against superior title, 617-619. covenantee on covenants for title cannot recover for any damages resulting from his own wrongful acts, 619. rule of, for breach of the covenant against incumbrances, 633, 033. in England and Canada^ 624, 625. comments on the American rule of damages, 626. rule of damages for breach of this covenant when the incumbrance permanent and cannot be removed, 637, 628. any recovery beyond nominal damages will be limited to the actual injury, 627. amount paid to extinguish incumbrance recoverable for breach of the covenant, 627, 628. measure of, where the incumbrance is a right of way over the granted land, 637. where incumbrance consists of a prior grant of timber growing on the land, 627. where it is an existing contract running with the land to fence a railroad, 637. where it is an outstanding lease, 627. where it is a life estate, 627. liability of remote covenantor, 629. where covenant connects with that for quiet enjoyment, 630. defenses and cross-claims against purchase-money, 633-641. measure of, for breach of covenant to pay off and extinguish incum- brances, 631. where the promisor is the purchaser of the incumbered property, and the promisee is not bound for the debt, 631. for not accepting goods contracted for, 647. value of the goods refused may be ascertained by an immediate re- sale, 647. theory of such resale, 647. if the net proceeds less than contract price the deficiency may be recovered as damages, 647. INDEX. 1759 Beferences are to sections. DAMAGES — continued. lor not accepting goods contracted for ; resale not necessary to be made at the place of delivery fixed by the coiitnict of sale, 047. foundation of rule of damages against vendee for refusing to accept goods contracted for, (ioO. measure of, for non-tleliveiy of property contracted to be sold. 0.11-053. on a contract for a cargo the vendee is not entitled to recover on the basis of wiiat the goods are worth in broken parcels. 6.")!. nor will the general rule be departed from though one or both of the parties were mistaken as to the material facts, fiol. where there is a mistake of (piantitj' in close packages, 6JJ1. rule of. where a purchaser agrees to sell to his vendor at a price below the market, and violates his agreement by selling to another for more than market i)rice. G51. the basis of the general rule of, Gol. where the properly not found in market, and can be obtained only at a ])rice much above the contract price, 652. or where tlie article is patented. 652. where other goods are purchased in market by the purchaser, the price paid, and expense and trouble of doing so, included, 652. where the market price fluctuates, and the refusal to deliver was with a view to profit. ()52. or raised and depressed by illegitimate combinations, 653. where there is no market at the place of delivery, how the value there ascertained, 652. not admissible to inquire as to the probable effect of adding the goods in question to the quantity in market; nor of the plaintitf going into the market to buy the kind and quantity in question, 658. profits on a contract for resale cannot be taken into account, 658. Dor can the vendor claim any mitigation because the vendee has contracted them for less than the contract price, 653. if the vendor sells the contracted goods recovery may be had on the basis of the amount he sold for, 653, there is no actual injury if the market price is less than the con- tract price, and the vendee then is only entitled to nominal dam- ages, 653. where the vendor sells to another a part of the goods, and then puts it out of his power to perform, the vendee ma}- refuse the residue and recover as for total breach, G53. rule of, in favor of vendee when delivery becomes impossible, 655. measure of, against a vendor when the purchase price has been paid, 656. in some states the highest market price to trial recoverable, 656. on contracts for the delivery of stock, 657. sales of good-will, 658. on contracts to pay in or deliver specific articles, 659-661. what consequential damages recoverable from vendor for not de- livering or delaying delivery of goods sold. 662-666. what profits may be taken into account, 664, 665. what other losses, 662-606. on vendor's warranties, 607-675. measure of, for breach of warranty of title, 669. no more than nominal damages can be recovered if the para- mount title has not been asserted, 669. costs incurred may be recovered if vendee dispossessed by suit, 669. recovery is limited to the actual loss, 671. may include interest, and special damages which are the proximate result of the breach, 671-675. damages resulting from resale with like warranty, 671. consequential damages on breach of fraudulent warrant}', 671. recovery by employee for services on a hiring at fixed wages, 678. on quantum meruit, 679, 080, 688, 692. 1 7G0 INDEX. Heferences are to sections. DAMAGES — continued. recovery by attorneys for services, G83. recovery liy liiokers, fiS:}. on sale of j;ood-vvilI. C5S. for part performance of contract which is not apportionable, 686. same when performance prevented by sickness or dealii, 687-089. or oLiier disability, 687. for part performance on apportionable contract for services, 691. where employer ^ives employee cause to quit, or wrongfully dismisses him, 692-094. other dama|j;»'s sometimes recoverable than the direct loss of salary or wages, 694. liability of employee for violation of his contract of service. 695. measure of, on contractor's breach of contract for particular work., 697-699. of contrac»t to build a house to be paid for by conveyance of a house and lot, 698. on breach by contractor of contract for particular works, what profits recoverable, 697, 698. damages recoverable may include amending and completing the contractor's work. 698, 699. consequential damages recoverable. 699-705. for breach of contract for work contracted for a particular purpose, 702. for delay in completing, 703. interest on value, when paid for, 703. loss of use during delay recoverable, 703. rental value recoverable, 703. must be such as were contemplated by the parties, 703. what damages for delay or entire neglect to construct partic- ular works may include, 704. no liability for damages from extraordinary immediate cause for which contractor's delay merely gave opportunity, 704. for defective work, 705. recoveries of, by contractor, 70C-714. damages recoveiable where c nployer stops performance under con- tract for particular works. 713. what may be shown to enhance damages, 714. where measurements provided for with a view to periodical pay- ments, they are final for the work so measured. 713. when employer violates ^.he contract by stopping the work, money earned and retained as security recoverable, 713. what may he shown to reduce damages, 714. amount recoverable against a surety, 733. when interest added, 723. same rule of, applies to principal and sui-ety, 723. surety only liable for actual damages, 727. what recoverable against surety m respect to interest, attorney fees, and stipulated damages, 728. on a guaranty of the amount due. 728. measure of. against guarantor of commercial paper, 729-734. discharge or veduction of the amount otherwise recoverable from surety by creditor's conduct in respect to the parties liable, or sureties, 735. defenses by surety alone or in suit in which he and the principal are defendants, 743. extent of the surety's right of recovery against his principal for indem- nity, 745-751. surety's right to recover costs which he has been compelled to pav, 752. consequential damages not recoverable by surety, 753. what damages bv way of contribution recoverable between co-sureties, 754. who are such, 755. INDEX. 1761 References are to sections. DAMAGES — continued. what may be recovered on contracts of indemnity, 702. under certain forms of indemnity, costs and expenses of defending groundless action recoverable, 762. confined to .those which immediately result from the act indemni- fied against, 702. what costs and expenses recoverable when the indemnity is against the consequences of a levy of attacliment or execution, 702. on an indemnity against breaches of contract. 702. on an indemnity agamst loss, damage and harm by reason of a suit for infringement of a patent, 702, 703. recovery may be had on indemnity for payment on a judgment, or incumbrance, for service, trouble and expense, within scope of agreement, 703. also for property lost by act indemnified against, 703. upon contracts to pay debts for purpose of indemnity, 705. DEALER — implied warranty in sales by, 607-072. DEED — acceptance of, merges the contract of purchase. 591. usual covenants in, 591. promissory note given for a void deed is without consideration, 542. DEFENSES — to actions for purchase-money, 032-641, 070. DEPOSITS — effect of deposit in court of a deed by vendor in action for purchase- money, 567-570. DEPRECIATED CURRENCY — on notes payable in, the value the measure of damages, 559. surety paying a debt in, only entitled to indemnity or contribution on the basis of the value, 748, 759, DILAPIDATIONS — vendor retaining possession as security for purchase-money and suffer- ing them, is liable for what it will cost to restore the premises, 588. DISEASE — damages for loss of animals bj', on breach of warranty against, 675. DISTRIBUTEES — how secured by, and their remedies on, probate bonds, 488, 494. when they may sue on such bonds, 494. DOLLARS — when this word expresses quantity rather than value, 659. DOWER — damages recoverable on covenant against incumbrances for existence of an inchoate right of, or of an unassigned dower right consummate, 027. damages recoverable on covenants for title for dower set oflE out of premises, 612. DRAWER — liability of, 555. warranty implied from drawing, 555. measure of damages against, 555. liability for re-exchange, 500. by what law liability of governed, 563. Ill 1TG2 INDEX. References are to sections. EARNINGS — of wroupjfuUy dismissed servant go in mitigation of his damages for be- ing so dismissed, 693. EMBEZZLEMENT — of auy part of property saved works a forfeiture of salvage, 721. EMPLOYEE — recovery by, where there has been a hiring at fixed wages, 678. his right of recovery on quantum meruit, 679, 686, 688, 689, 693. various modes of compensating for services, 684 recovery for services on contract void by statute of fi'auds and re- pudiated by employee, 684. necessity of full performance by, of entire contract, 686. in what cases the rule i-elaxed, 687-690. recovery on contract in which he has reserved the right to quit at pleasure on notice, 690. when entitled to pay as work progresses, 691. recovery by, when employer gives him cause to quit or wrongfully dis- misses him, 693-()94. liability of, for violation of a contract of service, 695. EMPLOYER — is entitled to pay for services in the very mode agreed on, 684. rule applies though the contract void by the statute of frauds, if he is ready and willing to perform on his part. 684. but if he repudiates such void contract, services rendered under it may be recovered for on quantum meruit, 684. liability of, where he gives servant cause to quit or wrongfully dis- charges him, 692-694. l^ayments made by, on contract for particular works, cannot be recov- ered, 708. option of, when work not completed at the agreed time, 709. liable for the work, though not done in time, if he afterwards per- mits it to be finished, 709. may show cost of completing work, 709. his voluntary acceptance and appropriation of work raises a duty to pay for it, 710. if work not in compliance with contract employer not bound to re- ceive it, and if he does not he is not liable, 710, 711. how he may avoid responsibility for work not done according to contract, 710. when done on his land or materials, 710. what not an acceptance or waiver of objections to work, 710. damages recovei'able when he stops the work, 713. under right to make alterations, not entitled to stop the work, 714. EVICTION — necessary to right of action for breach of the covenant of warranty and for quiet enjoyment, 604. where it takes place by virtue of judgment, such judgment admissible to show that fact, 614. but not sufficient to show that eviction was by paramount title in action against covenantor unless he was vouched in to defend, 614. EVIDENCE — proof of the value of the property in an action on a replevin bond, 504. when judgment evidence in action on covenant of warranty, and for what purpose, 614. judgment conclusive against covenantor when he was vouched in to defend, 614. life tables evidence of expectation of life, 601, 628. INDEX. 1703 Heferences are to sections. EVIDENCE — continued, proof of value, 6r)4. between vendor and purchaser, 6G9. vendee may sliow cost of replacing machinery, 672. of the value of services, OSO. opinions of witnesses admissible. G80. of the value of attorney's services, 682. circumstances which may be proved as tending to show a fixed sum tacitly agreed to, 683. or how much the services were worth, 682. evidence to support recoupment in action on contract for particular works, 709, 710. what facts admissible to show loss where employer stops performance in violation of contract for particular works, 714. what will suffice to show a debt not collectible, 733. effect of judgment recovered against a party having a right of recov- ery over. 669. 759, 760. what is, in suit against sureties in a probate bond, 495. when judgment or decree not conclusive against sureties upon official bonds, 495. EXCHANGE — when rate of, recoverable, 562. damages recoverable on failure to convey pursuant to agreement for exchange of lands, 575. EXPECTATION OF LIFE — life estates estimated on, 610. life tables as evidence of, 601. EXTRA WORK — what is extra work, 707. at wliat rate compensation should be made for, 707. assent to deviation not alone sufficient to warrant a charge for work as extra, 707. FAILURE OF CONSIDERATION — a defense between immediate parties to commercial paper, 542. as to defense of partial failure of, 544-548. instances of, 547, 548. admissibility of parol evidence to show, 551-554. FAILURE OF TITLE — measure of damages for, on covenants for title, 593, 605, 606. FLUCTUATIONS IN VALUE — how values ascertained which are subject to fluctuation, 653. FOOD — implied warranty on sales of, 667. FORTHCOMING BONDS — measure of recovery on, 518. on condition to pay the judgment, 519. what not a defense, 519. FRAUD — vitiates a contract at the election of the defrauded party, 542, if not avoided defense on the ground of, 543. where part of the consideration of a note or bill fraudulent, 549. where execution of note procured by fraud, 549. assurance by obligee to surety to get his signature that signing a mere matter of form and he should not be called on for payment, 554. FUTURE ADVANCES — parol evidence admissible to show that a note absolute in terms given for, 551, 552. 17G4 INDEX. Keferences are to sections. GIFT— a note transferred as a, without consideration, 542. GOOD EIGHT TO CONVEY, COVENANT OF — damages for breach of, 593. GOOD-WILL — contracts for sale of, 658. GUARANTIES — construction of, 724, 735. 728. instances of the, 725, 726, 728. what a guaranty imports, 728. when a continuing, may be determined by notice, 728. on default made on guarantied contract, sin-ety entitled to have his lia- bility limited to the damages then recoveralale, 728. of a contract to furnish an engine. 729. conflict as to the effect of blank indorsement of commercial paper by third person. 730. effect of a guaranty of collection, 733. what essential to right of action, and the measure of liability, 733. effect of there being collateral security not resorted to, 734. GUARDIAN'S BONDS — when action will lie on, 496. measure of recovery on, 497. HEIRS — how secured by, and their remedies on, probate bonds, 393-395. ILLEGALITY — in part of consideration of note, 549, 550. IMPLIED PROMISE — an express promise excludes an implied one, 686. otherwise where performance prevented by certain causes, 687. general remarks on the demand for part performance, 690. what necessary to raise implied promise, 710, 711. none of indemnity where there is an express promise, 745. IMPROVEMENTS — vendor's liability for, when contract by parol, and he refuses to fulfill, 583. allowance made to purchaser for, in equity on rescission for vendor's failure to make title, after deducting rents and profits, 589. value of, not an element of damages for breach of covenant of seizin and good right to convey, 593. INADEQUACY OF CONSIDERATION — distinguishable from want or failure of consideration, 544. INCUMBRANCE — what is such, 620, 627. when a purchaser with a covenant against, not bound to see to payment of, 623. damages for breach of covenant against, 622, 627, 629. INDEMNITY — a note given as, against consequences of an unlawful act, illegal and void, 550. parol evidence admissible to show that note given for indemnity though absolute in terms, 551. express indemnities, 761-767. damages the gist of the action for, 761. there must be actual damages to support the action on an agree- ment for, 7G1. INDEX. 1765 Heferences are to sections. INDEMNITY — continued. express indeninities; af;reoinoiits for may be so drawn as to admit of breacli without actual injury, 7(>1. then, for sucli breach only iiouunal damaj^es recoverable, 761. a covenant a<^ainst incumbrances an instance, 761. to actions for indemnity uou-danmilication istiie plea, and d. .mages must be proved, 701. diversity of decision as to such agreements, 701. effect of a contract deviating from mere indemnity, 761. but intended for indemnity, 70o, 700. in such cases damages may be given for probable injuiy, 701. what recoverable as damages on agreements for indemnity, 702. recovery may include costs and expenses of defending a ground- less suit, 702, 763. contribution or indemnity between wrong-doers, 764 effect of judgment, 707. INDORSER — his implied warrant}', 555. measure of dam;iges against. 555. liable for re-exchange on bills dishonored, 561. what the liability includes, 561. 502. by what law liability governed, 503. not liable for commissions to holder's agent for collecting bill of ac- ceptor, 504. cannot recover of prior parties costs which he has been compelled to pay, 504. stipulation for attorney fees and costs in notes does not affect his lia- bility, 505. INJUNCTION BONDS — scope of their obligation, and when action on arises, 520, 522. power of equity to award damages, 521. mode of assessing damages, 523. costs, expenses and attorney fees to obtain dissolution, as items of dam- age on, 524, 525. damages from the restraint of the injunction, 526-528. what facts no defense, 529. what facts may be shown in defense, 530. who entitled to benefit of, 529. INSPECTION — effect of, on acceptance of goods bought, 667. INTEREST — allowed on the damages between vendor and vendee of personal prop- erty, 651, 650. interest as an item of damages for breach of the covenants of warranty and of quiet enjoyment, 010. how affected by receipt of rents and profits without responsibility to superior owner therefor, 610. beyond penalty, when allowed on a bond, 477, 478. allowed on the value of the propertj' in action on a replevin bond, 505. when recoverable on bills and notes, 556. construction favorable to interest adopted, 556. rate stij)ulated before maturitj- enforced afterwards, 556. different in some jurisdictions, 556. agreement for mterest is generally for legal rate, 556, validity of agreement as to rate determined by the law of the place of contract, 556. by the law of the country where contract to be performed. 556. when made in one country and payable in another, interest agreement is good if conformable to the laws of either, 556. 17GG INDEX. Heferences are to sections. INTEREST — continued. agreement for interest on bills and notes which is repugnant to the laws of the country in which it is made and that in wliich it is payable is governed by the former, 556. the foreign law governing interest must be proved, 556. otherwise interest given according to the law of the forum, 556. interest as damages to be paid by maker or acceptor, 557. only given after demand on notes payable on demand, 557. when not stipulated, given accordmg to the law of the place of contract, 557. when no place of payment mentioned, the place where a note made or a bill accepted is the place of contract, 557. the place of contract may be tixed by circumstances, 557. liability of drawer and indorser for interest, 557. governed by the law of the place where their contract made, 558. when recoverable against a purchaser of land, 575. against vendor on rescission of land contract, 589. recoverable on consideration in the damages for breach of cove- nants of seizin and good right to convey, 593. allowed ou the value of the property in action on replevin bond, 503. JUDGMENT — in suit against a party having right of recovery over, conclusive against indemnitor if he had notice of the action. 669. effect of Judgment between co-sureties, 759, 760. how judgment or decree against principal on probate bond affects sureties, 495. in replevin suit, when binding on sureties in the replevin bond, 506. LEGAL TITLE — party holding legal title to note or bill may recover full amount, 541. exception, when plaintiff entitled to less than the face, and no other person entitled to receive from the holder the residue, 541. LEGATEE — how secured by, and his remedies on, probate bonds, 493, 494 when he may sue on probate bond, 494. LIABILITY — when an item of damages, 560, 565, 620, 763, 765, 766. LIFE ESTATE — value of, may be computed by life tables, 601, 628. LIFE TABLES — evidence of expectation of life, 601, 628. LORD CAIRNS' ACT, 590. LOST DEBTS — when an item of damages from restraint of an injunction, 527. MAKER OF NOTE — his express agreement, 540. > amount recoverable against for principal sura, 541. defense in behalf of, for fraud in consideration, 549. by what law his contract governed, 563. separate suits may be brought against, and indorser, 565. MASTER AND SERVANT. See Service; Employee; Employer; Prin- cipal AND Agent. MINE — damages recoverable on injunction bond for being restrained from work- ing, 527. INDEX. 17G7 References are to sections. MITIGATION OF DAMAGES — by return of attaclK'd property in an action on attaclimeut bond, 515. by return of property of which the owner is deprived by the restraint of an Hijunction in an action upon injunction bond, 527. what admissible as such in actions for breacli of covenants for title, GOl. earnings of wrongfully dismissed servant in action against employer for such dismisal, 693, 694. NOMINAL DAMAGES — recoverable for any breach of covenants of seizin and of good right to convey, 599. recovery confined to, until something paid or actual damage for breach of covenant against incumbrance, 609. ■when only such damage recoverable on probate bonds, 494. NOTICE — by covenantee of suit by superior owner, 614, 615. effect of judgment on covenantor when he is vouched in to defend, 614, 615, effect of judgment when covenantee sues for the granted property, 614, 615. how covenantor may be vouched in to defend action against his cove- nantee, 614. 615. as to the necessity of, to subject covenantor to costs and expense in defense of title, 617-619. after covenator has come in on notice and assumed the defense, the covenantee may not also employ counsel at covenantor's ex- pense, 618. of resale of goods rejected by purchaser, 647. effect of, by vendee of goods before time fixed for delivery, of his in- tention not to accept them, 647, 648. also in case of order to manufacture goods, 648, 649. effect of vendee failing to give notice of rejection of goods sold by sam- ple, 650. necessity of, to party bound by certificate of architect, engineer, etc., 717. to party liable ultimately, or to contribute, 669, 760. OBLIGEE — effect of his assurance to surety that he should not be called on for pay- ment, 554 OFFICER — note given in part or in whole to induce neglect of his duty, void, 550. right of action against, 484. liability of, having custody of money, 479. measure of damages against for neglect of duty, 489-492. OFFICIAL BONDS OF OTHER THAN FISCAL OFFICERS — general mode of redress for official dereliction, 486. vphat private injuries covered by, 487. measure of damages, 488. OPINIONS — admissible as evidence on questions of value, 654, 680. PAROL EVIDENCE — when admissible to show want or failure of consideration, 551-554. admissible to affect holder of note with trust, 551, 552. to show a deed to be a mortgage, 551. to turn a sale into a mortgage, 551. but not admissible thus to show a different promise, 553. instances of its rejection. 552. the promise may be rendered nugatory by showing want or failure of consideration, 552. 1768 INDEX. Beferences are to sections. PART PERFORMANCE. See Quantum Meruit. PARTIAL FAILURE OF CONSIDERATION — discussion of, as a defense, 544-548. PASSENGERS — may be salvors, 717. PATENT RIGHT — note given for one which is void or worthless, without consideration, 5-13. wliat not admissible as defense in action on such a note, 552. PAYMENT — cannot be appropriated by creditor to note, part of the consideration of which is illegal, 550. PERFORMANCE — what is, for the purpose of recovery on a contract, 709. PERSONAL INJURY — daiuages for. resulting from vice or disease of animals warranted against, 671, 675. from effects of selling a wrong drug, 675. from explosive illuminating fluids, 675. PILOT — may claim for salvage service, 717. POSSESSION — effect of purchaser's taking and retaining, in action for purchase- money, 573. purchaser in possession cannot object that contract is invalid, 574. when vendor retains possession pending a question incidental to specific performance, lie will be charged like a mortgagee, 588. effect of, by purchaser, to subject him to interest, 575. damages against vendor for withholding, 588. PRINCIPAL — liability of, to indemnify surety, 745. PRINCIPAL AND AGENT — a principal not liable for malice of agent unless he was the cause or participates. 514. PROBABLE INJURY — when damages for, may be given, 763. PROBATE BONDS — bonds for faithful administration of decedent estates, 493. what the principal's duties include, 493. the assets a trust fund for creditors, legatees and distributees, 493. a summary of their conditions, 493. their history, 493. what recoveries may be had thereon, 494. effect of recovery on, 494. when only nominal damages recoverable, 494. action on, as to sureties, 495. PROFITS — when recoverable upon resale of land contracted for, 570, 581, 584, 703. what profits recoverable as damages against defaulting vendor, 6C5, 673. on breach of contracts for particular works, 697. PROMISE — parol evidence not admissible to show a different promise from that stated in written agreement, 652. INDEX. 1709 Beferences are to sections. PROMISSORY NOTES AND BILLS OF EXCHANGE — the practice in respect to purchase and sale of foreign bills in England, 561. when re-exchange or damages not recoverable, 502. onlj" allowed in favor of parties at whose risk remittance is made, 5G2. by what law the liabilities of the parties governed, 563. stipulation for attorney fees and costs in notes, 564. value of notes and bills, 565. the value the measure of damages against parties by whose fau't they are lost, 565. damages recoverable for conversion of a paid note, 565. vendor's action on notes given for purchase-money of lands, 571. effect of a partial want of consideration, 543. may be shown though unliquidated, 543. partial failure of consideration good when the part which fails is cer- tain. 544. part failure of consideration different from inadequacy, 544 not a defense in England when the part failure is unliquidated, 541. unliquidated partial failure of consideration is held to be no de- fense in some states, 545. in others it is allowed, and in several by statute, 545. for partial failure of consideration there is generally some remedy, 546. remedy where the partial failure is a default in the performance of some other stipulation in the same contract, 546. instances of defense of that nature, 546-548. where part of consideration fraudulent or illegal, 549. where execution of note procured by fraud, 550. holder cannot appropriate general payment to, if part of consider- ation illegal, 550. parol evidence to show want or failure of consideration, 551. instances of same, 551-554. limitation of the right to affect note by such evidence, 552. liability on premium note given for open policy, 551. liability on accommodation paper, 551. it may be shown that note delivered on conditions, 553. amount recoverable as principal sura against drawer and indorser, 555. in acceptor's action against drawer the bill is only an item of evidence, 555. drawer's contract is conditional, 555. what the drawing and negotiating of a bill implies, 555. the indorsement of bill or note is like the drawing of a bill, 555. the warranty of the indorser, 555. warranty on transfers without indoi'sement, 555. measure of dajnages against drawer or indorser, 555. interest on, 556. only allowed before maturity when expressly provided for, 556. general promise sufficient, 556. collectible on debt for which a note or bill was promised, 557. if payable on demand, interest does not commence until demand. 557. when not stipulated, allowed as damages at rate given by the law of the place of contract, 557. liability of drawers and iudorsers for interest, 558. what notes are deemed payable in money, 559. opinion of Campbell in Black v. Ward, 559. measure of recovery when note given payable in a special currency, not legal tender, 559. exchange and damages on bills dishonored, 560. liability of the maker of a note and that of the acceptor similar, 540. their agreements, 540. what the recovery against the several parties may include, 540. 1770 INDEX. Beferences are to sections. PROMISSORY NOTES AND BILLS OF EXCHANGE — continued such paper is given for a sum certain, 540. and payable only in money, 559. the party having the legal title may recover the full amount, 541. he will be trustee of any other beneficially interested in the amount recovered, 541. when a holder having a right to a part only of the amount due, will be limited to the amount of his interest, 541. a defense between the original parties, when unavailable, 541. how the payment of less than the full value of a note in its purchase will affect the amount recoverable by an indorser without notice of an existing defense. 541. defense of want of consideration in whole or in part, 542. consideration presumed, 542. it has been lield otherwise, 542. the presumption not conclusive, 542. if there is a total want or failui'e of consideration there can be no recovery, 542. defense of fraud relating to consideration, 542. when accommodation paper without consideration, 542. a note made for a gift, without consideration, 542. note given for property having no existence, void for want of con- sideration, 542. so if given for void deed of land, 542. effect of total breach of warranty in suit on note for purchase- money, 542. the covenant of warranty not sufficient consideration, 542. instances of total waut of consideration, 542. what is a total failure of consideration, 542. instances of, 542. PURCHASE-MONEY — vendor's right to collect before conveyance, 567, 569. purchaser's defenses against collection of, 570, 571. what may be shown on defense to note for, 552, 554. defenses and cross-claims against, 632-641. PURCHASER — his right to rescind for seller's inability to convey a good title, 571, 572. is entitled to perfect title, 572. effect of his taking and retention of possession, 572, 574. right of recoupment for defect of title, 573. measure of recoveiy against, for land where the price is not fixed by the contract of sale, 575. where conveyance in consideration of non-pecuniary covenants, 576. measure of damages in his favor agamst vendor who is unable to con- vey a good title, 578. the rule laid down in Flureau v. Thornhill, 578. doctrine of this case adhered to in England, 578. what exceptions there admitted, 578. conflict of American decisions, 579. the general rule is the same as applies in other cases, but relaxed where vendor unexpectedly finds himself unable to make title, 579-581. this exception not universally recognized, 580. sometimes disa])proved when followed, 580, 581. elements of damage under the milder rule, 582. recovery on parol contract, 583. elements of damage where Flureau v. Thornhill does not apply, 584. where the vendor has extinguished or bought in the ad verse title, 584. INDEX. 1771 References are to sections. PURCHASER — continued. rights of a defaulting purchaser. 585. conflict in American cases, 58G. on rescission of contract. 587. adjustment of equities between vendor and purchaser in suits for specific performance, 588-590. specific performance allowed more liberally to purchaser than to vendor as to part, compensation being given as to residue, 590. after acceptance of deed, must look to covenants in latter. 591. extent of his right of recovery for breach of the covenant of seizin and good right to convey, 593. damages recoverable by, on vendor's breach of contract for sale of goods, 651, 653. for delivery of stocks, 657. sale of good-will, 658. consequential damages recoverable by, 670-675. QUANTITY — what description of land in contract implies no warx'anty of, 590. QUANTUM MERUIT — recovery on, for services rendered, 679, 687-692. any evidence admissible to show merit and value, 679. what services are reasonably worth if faithfully performed may be recovered though emploj'er not benefited. 679. attorney's may recover for their services on, 683. also brokers, 68o. services on, may be recovered when rendered under contract repudiated by employer because void under statute of frauds, 684. when services verbally agreed to be paid for in land, 684. when recovery may be had on, for services performed under entire con- tract not completely fulfilled, 686-690. when recovery may be had on, for work done under special contract partly performed. 687, 690. contracts for personal services, on implied condition that life and health continue, recovery may be had for any work done, if prevented from completing by sickness or death, 689. general discussion of, for part performance, 690. this claim, when the privilege of quitting at pleasure reserved in contract, 690. recovery may be had on, for services performed where employer gives servant cause to quit or wrongfully discharges him, 693. in contractor's action on, contract price should be taken as true value of work done, 708. recovery may be had on, for part performance, where entire contract has been rescinded, or full performance prevented by law or act of God, 709. there is then an apportionment of so much of the agreed compen- sation as has been earned, 709. when there is a deviation, by consent, from contract, 709. when recovery for part performance requires this count, 709. when recovery cannot be had in general assumpsit, 709. effect of fraudulent or intentional violation of contract, 709, 711. where objection for delay in performance waived, 709. what will be a waiver of objections to work, so as to entitle contractor to recover on, 709. recovery on, is not precluded by the contract having provided for payment otherwise than in n)oney, 710. recovery allowed in some states for part performance of contract where there has been an honest endeavor to fulfill it, 711. in such cases recovery can be had to the extent of the benefit to the employer, 711. 1772 i:ndex. Beferences are to sections. QUANTUM MERUIT — continued. waiver of objections to work so as to permit recovery for part perform- ance of entire contract; such recovery limited to particular cases, 711. what is a substantial performance for the purpose of this equi- table recovery, 711. what deductions will be allowed, 711. contractor may recover on, for work done, where employer stops the work and prevents full performance, 713. QUIET ENJOYMENT, COVENANT FOR — what is a breach, and the measure of damages therefoi", 604 RECEIPT — when note given in place of, facts may be shown in defense to action on the note, 554. RECOUPMENT — for breach of warranty in actions for purchase-money of personal prop- erty, G76. for fraud in sale, 676. by employer, in employee's action for wages, 694, 695, by employer against contractor for particular works, 708-710. against notes and bills, 547-549. in actions for purchase-money of lands, 552-554, 571, 632-641. RE-EXCHANGE ON BILLS DISHONORED, 560. what re-exchange bill may include, 560. not necessary to the right to re-exchange that it be actually paid, ©60. the doctrine of, founded vipon equitable principles, 561. the amount depends on actual course of exchange, 561. question whether acceptor liable for, 561. liable to reimburse it to drawer, 561. when not recoverable, 562. not allowed on promissory notes, 562. but damages equal to rate of exchange between the place where sued and where payable, 562. such damages do not depend on any principles peculiar to com- mercial paper, 562. notes may be drawn to include exchange, 562. damages in this country given in lieu of re-exchange, 562. RENT — when lien for, discharged by purchaser, he may recover on implied war- ranty of title, 669. RENTS AND PROFITS — what account made of, on rescission of land contract, 587, 589. vendor's liability for, when he withholds possession. 588. consideration of, in reduction of damages for breach of covenants of seizin and good right to convey, 597-602. in case of breach of covenants of warranty and for quiet enjoyment, 616. consideration of, in reduction of damages for breach of covenants for title, 597-599. REPLEVIN BONDS — their original conditions, 499. the condition to prosecute, and that to return the goods if return be awarded, independent, 499. what the former requires, 499. on forfeiture, there can be recovered, within the penalty, the value of tlie property, and costs of the replevin suit, 499. liability of the sheriff for taking insuthcient liaii. or other official neglect resulting in a loss of the security, governed by the same rule, 499. INDEX. 1773 Beferences are to sections. REPLEVIN BONDS — continued, the condition for return, 500. defendant may, but is not obliged to, enforce return by writ, 500. he may sue at once on the bond, 500. the provision for return is for benefit of defendant, 500. the consideration and import of it, 500. the conditions required by modern statutes more direct and precise, 501. there are generally three conditions — to prosecute to effect or to final judgment; to return the property if adjudged, and to pay such sum as shall be recovered in the replevin suit, 501. explanation of them, 501. what is a breach aud what a satisfaction of them, 501. not necessary to assess damages in the replevin suit, 503. if there assessed and paid, they cannot be assessed on the bond, 503. when sureties not bound by the judgment in the replevin suit, 503. measure of recovery on the bond not invariably the value of the property and interest, 503. 505. when returned interest will compensate for delay, but not for dete- rioration, 503. neither plaintiff nor defendant can claim damages for depreciation while he has the property in his own possession, 503. the party in default should be charged with the value of the prop- erty at the date wlien the duty to return attaches, 503. if of less value than when taken, the difference should also be com- pensated, 503. and such damages are recoverable on the bond, 503-505. statement of value in the bond evidence against plaintiff and his sureties, 504. evidence of value, 504. if the value has increased in the possession of the obligor, the obligee is entitled to the benefit of it, 504. not, however, if the value has been increased by the labor of the obligor, 504. interest recoverable on the value from the time of fixing the value, 505. also special damage, if any, 505. expenses of procuring teams, etc., to remove the property rendered useless by the replevin have been recovered, 505. attorney fees incurred in the replevin suit, it has been held, cannot be recovered on the bond, nor compensation for the obligee's attendance in court in that suit, 505. it has been ruled otherwise in Alabama and Illinois, 505. effect of the judgment in the replevin suit, 506. how far conclusive upon the p-arties and sureties, 506. what may be shown in defense, 507. tlie limited nature of the obligor's property, or that he had none, may be shown, if not precluded by the judgment in replevin, 507, 508. effect of failure to render alternative judgment, 507. equitable mitigation, 507. when the obligee will only be entitled to recover as special owner, 508. not so when the replevin suit brought by a mere stranger, with- out right or title, 508. bond by the defendant to retain the property, 509. measure of recovery thereon, 509. RESALE — when profits on, an item of damages for vendor's breach of contract to sell aud deliver goods, GG3. when evidence of value against a vendee, 570, 646, 664. 1774 INDEX. References are to sections. RESCISSION — the parties to be put in statu quo on. and for this purpose compensation to be reciprocally made for what has been enjoyed, 589. payments to be recovered and expenditures compensated, 589. in equity allowance to be made purchaser for beneficial expend- itures, either in improvements or repairs, 589. limitation as to time of. 589. rents to be deducted, 589. where vendor cannot make title to part, vendee may elect whether he will rescind in toto or as to that part, 589. compensation in case of election to rescind in toto, 589. compensation in case of partial res(;ission, 589. allowance for improvements, taxes, etc., only made in account for rents where merely nominal damages allowed for loss of the bargain, and purchaser will be charged with any waste or deteriorations by his act or negligence, 589. compensations to purchaser where, for vendor's fault, he is entitled to recover the value of his bargain, 584. recovery for total bi-each of contract of seizin and good right to convey not on tlieory of rescission, 596. defense of failure of consideration produces it, 548. adjustment of the rights of the parties on rescission of a land contract, 587. RETURN OF PROPERTY — a mitigation in case of wrongful attachment, 515. SALES (see Contracts for Sale op Personal Property), 643. SALVAGE — requisites of salvage service, 715. how claim for, distinguished from one on the quantum meruit, 715. a quantum meruit claim may be good for services not amounting to salvage services, 715. a specific amount may be fixed by agreement, 715. such agreement will not be set aside because a hard one for the salvor, 716. what will limit the claim of one hired to assist, 716. contracts for exorbitant amounts for salvage service will be closely scrutinized, 716. a special contract must make the compensation depend on saving the property in peril, 716. parties may agree on the principles on which salvage service shall be compensated, 716. what is necessary in respect to the peril, 717. how the claim affected by the claimant's duty to the vessel, 717. salvors cannot force themselves on a vessel in distress, 717. the objection to seamen being salvors, 717. when pilots may be, 717. property must be saved by salvage service, 718. those are salvors who begin the service and successfully prosecute it, though wrongfully interrupted, 718. ship, cargo and freight saved make one salvage fund, 718. salvage is a single service, 718. amount recoverable as salvage, 719. it is in the discretion of the court, 719. the amount is not reducible to rule, 719. depends on the peculiar circumstances of each case, 719. varies from one-eighth to half of the property saved, 719. when less is allowed it is usual to adjudge a compensation in numero, 719. INDEX. 1775 Beferences are to sections. SALVAGE — continued. compensation made on the basis of a fair division of the saved property between the owners and the salvors, 719. what may be considered to enhance the merit of salvage service, 719. where money is saved, a fifth or a tenth, according to circum- stances, has been allowed, 719. under special circumstances the whole net proceeds have been awarded, 719. in awarding on a foreign vessel the rate will be that of the courts of the owner's country, 719. the rate for services at sea inapplicable to rivers, 719. where there ai'e several sets of salvors they do not have separate liens, for salvage service is single, 719. derelict property, 720. salvage on, governed by same principles as where other property involved, 720. amount allowed out of such property, 720. reasons why reward for services in cases of such property should be liberal, 720. salvage forfeited by misconduct, 731. what is such misconduct, 731. SAMPLE — implied warranty on sales by, 667. SATISFACTION — effect of satisfying judgment for total breach of covenant of seizin and good right to convey, 596. SEAMEN — reasons for excluding them from claiming for salvage service, 717. under what circumstances they may be salvors, 717. SEED — damages on breach of warranty of, 673, 675. SEIZIN, COVENANT OF — damages for bi'each of, 593. SEIZURE OF GOODS — damages from, to business and credit, 512. SERVICES — recovery on a hiring for fixed wages, 678. on quantum vieruit, 679. contract to pay may be inferred from circumstances, 679. and the price may be tacitly fixed by them, 679. duty to pay may be imposed by law when there was no intention to pay, 679. promise generally implied to pay for, 679. may be made in a will, 679. no recovery for services rendered as a gratuitous kindness, 679. trustees not entitled to recover for services, 679. proof of the value of, 680. statutory day's work, 681. recovery for attornej''s services. 682. what may be sliown to reduce recovery, 683. broker's services, 683. when he sells goods to arrive he may recover his commissions, though the goods fail to arrive, C83. is entitled to compensation though his services do not prove bene- ficial, 683. where, by custom, he is not entitled to pay unless the business in- trusted to him is completed, 683. 17Y6 INDEX. Beferences are to sections. SERVICE — continued. broker's services ; where no special compensation agi'eed on he is entitled to customary rate, 683. if one not a broker employed to negotiate he is entitled to reason- able compensation, 683, must perforin his services in such manner as to reasonably answer the intended purpose. 683. if he or any ap,ent so carelessly perform his services that they are useless, he cannot recover for them, 683. he will forfeit his right to compensation by misconduct, 683. various modes of compensating, 684. the compensation may be a share of net profits of a business, 684. may be a share of crops to be raised on a farm, 684. may be such sum as may be raised by voluntary subscription for that purpose, 684. may be specific property, 684. and then if not delivered its value may be recovered, 684. employer has a right to make compensation in mode agreed, 684. and if in no default he cannot be required to pay otherwise, 684. this so though the contract void by the statute of frauds, 684. but if he repudiate such void contract, services rendered under it may be recovered for on a quantum meruit, 684. presumption of same terms where employee continues work, 685. necessity of full performance of entire contract, 686. dispensed with in certain cases, 687-690. where the right to quit reserved on giving notice, and notice not given, 690. distinction made on a wilful breach of the contract of hiring, 690. entire and appoi'tionable contracts of service, 691. whether apportionable or not depends on the intention of the parties, 691. illustrations of entire and apportionable contracts, 691. liability of employer where he gives servant cause to quit or unreason- ablj' discharges him, 692-694. employee may recover damages on the contract according to actual loss, 692. cannot afterwards recover in general assumpsit for services act- ually performed, 692. full damages on the basis of wages cannot be prospectively recov- ered, 692. after expiration of term agreed, wages may be recovered if there has been a wrongful dismissal, 693. tut subject to reduction by amount the servant has otherwise earned or could have earned, 693. duty of dismissed employee to seek other employment, 693. opportunity for other employment will not be presumed ; em- ployer must show the deduction he is entitled to, 693. in some states the emijloyee as plaintiff must show diligence and what his loss has been, 693. employee dismissed is not obliged to engage in a different busi- ness nor go to another place, 693. SEVERAL DELIVERIES — contracts for, when severable, 645. SPECIAL OWNER — recoveries by, on replevin bond, 508. recovery by legal holder of commercial paper who has only partial bene- ficial interest, 541. SPECIFIC PERFORMANCE — by vendor recovering full purchase-money before conveyance, 567. objections to, at law, 569. the practice in Pennsylvania, 570. adjustment of counter equities in suits for, 588. damages decreed in suits for, 590. INDEX. 1 ( 4 ( Heferences are to sections. STATUTES — 8 and 9 Wm. Ill, and its effect 472. 3 and 4 Anne, and its effect, 473. regulating security on appeal, 532-536. STATUTORY BONDS, 475. SUBROGATION— ^* surety's right of, 736. SURETY (see Indemnity) — adiustment between different sets of sureties on. bonds of fiscal officers. 480-482. how official bonds construed as against, 485. measure of damages against on official bonds, 488. effect of assurance given by obligee that signing only a matter of form, and that he should not be called on for payment, 554. a favorite of the law. 7:35. contract of suretyship. 722. liability of, cannot extend beyond that of principal. "^23. when bound to the same measure of responsibility, 723. only liable on his contract, 723. interpretation of his contract 724. obligations of, strictly confined to his contract, 725. they cannot be extended by implication, 725. instances of the application of this principle, 725. liability of, on bonds given for good conduct of clerks to a partnership afterwards changed in membersliip. 725-727. his right on his principal making default on a guarantied contrac*, when liable for interest, 723, 728. liable like the principal for attorney fees when stipulated for in the con- tract, 728. or stipulated damages, 728. discharge of, by creditor's conduct, 735. whatever will discharge him in equity will have that effect at law, 735. effect of creditor rendering securities unavailable to surety, 736, 738, 740. his right of subrogation, 736. release of one or more of several parties, 742. discharged by tender, 737. creditor's duty to realize on securities, 737. his duty to acquire liens, 739. 8uretj''s right to put creditor in motion, 741, diligence required of creditor to preserve securities, 737-739. not discharged by release of securities by creditor unless injured, 737. and only to the extent he is injured, 737. illustrations, 738-742. his right to defend between the principal parties, 743. what defenses may be set up by principal and surety, or the .;,uietv alone. 743, 744. failure of surety to defend, 743. when sued alone may make the judgment conclusive as to the prin- cipal by notice to defend, 743. entitled to indemnity for money paid for principal, 745. the law implies a pi'omise by principal to rtfund to surety all sums he has had to pay as such, 745. if there is an express indemnity surety confined to it, 745. the law implies promise of repayment by principal; not by all per- sons who may be benefited, 746. who may be considered principal within this rule, 746. 112 1778 INDEX. References are to sections. SURETY — continu(